Introduction
One of the greatest challenges in the aftermath of any violent conflict is the issue of accountability
for serious human rights violations. Although impunity continues to characterise many post-conflict
situations, since the end of World War 2 there has been perceptible progress in efforts towards
securing justice and accountability and in undertakings to build polities based on fundamental
rights and freedoms and respect for the rule of law. Although there is much work still to be done in
this regard, addressing the rights of victims and survivors is increasingly recognised as an essential
component of any credible efforts designed to tackle issues of justice and accountability, which are
themselves integral components of building the foundations of a sustainable democratic culture.
Policies of amnesia and avoidance, which have characterised so much of the past, are under attack
and, in the words of the United Nations High Commissioner for Human Rights, “the preference for
doing nothing is no longer an option.”1
There is now a framework of international criminal law and institutions that operate at both
international and domestic levels. This has culminated with the creation of the International Criminal
Court whose statute has now been ratified by 97 States. The Statute is based on the principle that
international prosecution complements national efforts and encourages the emergence of national
judicial systems that are willing and capable of prosecuting serious violations (i.e. war crimes,
crimes against humanity and genocide) in accordance with international standards.
A theoretical framework for criminal prosecutions of such violations has therefore been developed,
but we are a long way from a comprehensive application of the principles of complementarity. In
other words, in many jurisdictions, often for differing reasons (political and/or pragmatic), national
judicial systems are simply not synchronised to pursue these options. Prospects for securing justice
and accountability are further compounded by a host of complexities and challenges associated
with investigating and prosecuting international crimes. International processes have been limited,
and as experience has already shown in the case of Rwanda, for example, these processes do not
effectively address the needs of victims and survivors.
Especially in developing countries, capacity within the formal criminal justice system is acutely
limited and it is necessary to explore alternative approaches to justice and accountability.
Consequently, it is necessary to assess the quality and capacity of national justice systems during
transitional periods.
Transitional Justice – or, the pursuit of comprehensive justice during times of political transition
– has come to refer to the development, analysis, and practical application of a wide variety of
strategies for confronting the legacy of past human rights abuses in order to create a more just and
democratic future.
In theory and in practice, the central objectives of a transitional justice approach are to confront
legacies of abuse in a broad and holistic manner that encompasses criminal justice, restorative
justice, social justice, and economic justice. In addition, this approach is premised on a belief that a
responsible justice policy must include measures that seek to achieve both accountability for past
crimes and the prevention of new crimes. In addition, it requires taking into account the collective
character of the various forms of victimisation, as well as the trans-national character of certain
human rights crimes.2
1
High Commissioner’s opening address on the Rule of Law Tools for Post-Conflict States to the Transitional Justice Workshop,
27–29 September, 2004, <http://www.unhchr.ch/hurricane.nsf>.
2
Taken from the ‘Background Paper’ provided to participants in the 2003 Summer Institute convened by the International
Center for Transitional Justice, <http://www.ictj.org>.
1