4. The concept of transitional justice Transitional justice refers to a range of approaches that societies undertake to deal with diverse past political situations such as authoritarianism, totalitarianism, or conflicted democracies17 to a stable democratic state.18 States endeavor to achieve this by taking up a range of mechanisms to reverse a past marked by inter alia, regime illegitimacy, repressive institutions, absence of the rule of law and denial of human rights violations. In responding to the legacies of past widespread or systematic human rights abuses, states may have a number of objectives. These may vary from the need to punish perpetrators, establish the truth about past human rights violations, repair damages and prevent further abuses.19 Other aims include promoting national reconciliation through reversing past social and economic injustices. Likewise there are a variety of mechanisms implemented to reach these objectives ranging from a forgiveand-forget policy, as in Mozambique, holding trials in domestic or international courts, lustration,20 creating a commission of inquiry, awarding reparations, building memorials, or putting in place military, police, judicial or other reforms.21 South Africa took the way of a Truth Commission,22 Rwanda23 and the Former Yugoslavia24 opted for International Tribunals, there was a Special Court25 and Truth Commission26 established in Sierra Leone and a Historical Clarification Commission in Guatemala.27 17 See C Colm and F Ni Aolian, 'The Paradox of Transition in Conflicted Democracies', (2005) 27 Human Rights Quarterly 172 at 213. Also see RG Teitel, Transitional Justice (Oxford University Press 2000) for more detailed discussions on the genealogy of transitional justice. 18 SP Huntington, The Third Wave: Democratisation in the Late Twentieth Century (University of Oklahoma Press 1991) at xiii. 19 See United Nations Secretary General's Report, The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies S/2004/616 para 8. 20 UN Commission on Human Rights, Report of the independent expert to update the Set of Principles to combat impunity, Addendum, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005 states that: 'Public officials and employees who are personally responsible for gross violations of human rights, in particular those involved in military, security, police, intelligence and judicial sectors, shall not continue to serve in State institutions. Their removal shall comply with the requirements of due process of law and the principle of non-discrimination. Persons formally charged with individual responsibility for serious crimes under international law shall be suspended from official duties during the criminal or disciplinary proceedings.’ 21 See PB Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York and London Rout ledge 2002) at 11- 12. For a more detailed discussion of transitional justice mechanisms see CT Call, 'Is Transitional Justice Really Just', (2004) 11 Brown Journal of World Affairs, 101. 22 See Truth and Reconciliation Commission of South Africa Report 1999; Promotion of National Unity and Reconciliation Act, No. 34 (1995) which established the Truth and Reconciliation Commission. For an historical and what this thesis considers an insider's perspective from the former Deputy Chairperson of the South African Truth and Reconciliation Commission see A Boraine, A Country Unmasked (Oxford University Press 2000). 23 Statute of International Criminal Tribunal for Rwanda Nov 8, 1994, U.N.Doc.S/RES/827 (1993). 24 Statute of International Criminal Tribunal for the Former Yugoslavia, U.N Doc. S/RES/827 (1993). 25 Statute of the Special Court for Sierra Leone Aug 14, UN Security Council Resolution 1315 (2000). 26 Sierra Leonne Truth and Reconciliation Commission Act 2000. 27 See generally, Guatemala: Memory of Silence – Report of the Commission for Historical Clarification Conclusions and Recommendations at http://shr.aas.org/guatemala/ceh/report/english/toc.html (Last accessed on 5 July 2006). 16