TRANSITIONAL

JUSTICE:
INTERNATIONAL LEGAL
FOUNDATIONS
Atty. Cecilia Jimenez (LL.M. Public International Law; M.D.C.;
LL.B.; B.S. Foreign Service)

Introductory Lecture
 WHAT IS TRANSITIONAL
JUSTICE?
 “Refers to the ways countries emerging from periods of conflict and repression address
large scale or systematic human rights violations."
 There is no one way to practice transitional justice given the variety of contexts in which it can
be applied, but TJ "is rooted in accountability and redress for victims. It recognizes their
dignity as citizens and as human beings." 
 Its constant features include the "recognition of the dignity of individuals; the redress and
acknowledgment of violations; and the aim to prevent them from happening again."
 "It is the application of a human rights policy in particular circumstances.
It is the attempt to provide the most meaningful justice possible in the political conditions at
the time."
 https://www.ictj.org/about/transitional-justice
SET OF PRINCIPLES TO
COMBAT IMPUNITY
 Developed by UN Special Rapporteur Louis Joinet
 Approved by the UN Commission on Human Rights 1997
 Updated by the UN Independent Expert Diane Orentchiler 2005

 FOCUS: ON VICTIMS AND PERPETRATORS AND THEIR TRANSFORMATION INTO

CITIZENS WITH EQUAL RIGHTS

 Current UN mechanism: UN Special Rapporteur on “Transitional Justice”

(for more information, see:

https://www.ohchr.org/en/issues/truthjusticereparation/pages/index.aspx )
A CONCEPTUAL FRAMEWORK
FOR “DEALING WITH THE
PAST”* Four main areas and mechanisms of a holistic TJ or“DwP” approach

Right to Know
Right to Justice
Right to Reparation
Guarantee of non-Recurrence

All areas mutually influence and depend on each other.

A long-term process that aims at establishing a culture of
ACCOUNTABILITY, RULE OF LAW AND RECONCILIATION.

Developed by SwissPeace and the Swiss Federal Department of Foreign Affairs (FDFA)
A Conceptual Framework for Transitional Justice & Reconciliation

RIGHT RIGHT TO
TO KNOW REPARATION
• Rehabilitation
• Truth commissions
• Fact-finding bodies • Compensation
• Documentation • Restitution
• Archives • Memorials, public apologies
• History books • Commemorations
• Missing persons • Educational initiatives
Victims
Citizenship / Citizenship
Perpetrators
GUARANTEE OF RIGHT TO JUSTICE
NON-RECURRENCE • Civil lawsuits, alternative
• Decommissioning dispute mechanisms
• Institutional reform • International, domestic,
• Democratic control of and ‘hybrid’ courts
the security sector • Witness support and
• Vetting and lustration protection
• Trial Monitoring

Swisspeace and FDFA 2009 Inspired by the ‘Joinet/Orentlicher’ principles against impunity
1. RIGHT TO KNOW
 AN INDIVIDUAL RIGHT on the part of the victim and his/her family

 A COLLECTIVE RIGHTS on the part of society

 AN OBLIGATION on the part of the State

 Refers to the importance of individual and collective knowledge re the

causes, experiences and legacies of human rights violations
RIGHT TO KNOW:
MECHANISMS AND TOOLS
 Approaches to missing persons: search; knowledge of life or death; exhumations and forensic
investigations
 Truth Commissions
 Commissions if Inquiry
 Archives
 Memorialisation
2. RIGHT TO JUSTICE
 Entails the duty of the State to hold accountable those who are responsible for
HRVs
 IHRL and IHL proscribe obstacles e.g. blanket amnesties for crimes against
humanity, war crimes, crimes of genocide, torture
 Legal standards followed are those according to international human rights
law, IHL and international criminal law
 Principle of fair and transparent trials as primary mechanism for ensuring:
 LEGITIMATE ACCOUNTABILITY to challenge cultures of impunity
 LEGAL RECOGNITION of the harm to the victims
RIGHT TO JUSTICE:
MECHANISMS AND TOOLS
 International Mechanisms

 Hybrid / mixed tribunals

 National prosecutions

 Universal jurisdiction

 DECISIONS on type of trial: best suited to achieving a meaningful and legitimate form of
accountability in a given context
3. RIGHT TO RESTITUTION
 Restitution, compensation or rehabilitation provided to victims of HRVs
 Meant to acknowledge harm suffered, promote dignity and support ongoing
capacity building
RIGHT TO RESTITUTION:
MECHANISMS AND TOOLS
 Restitution of property and compensation
 Individual and collective reparations
 Symbolic reparations
4. GUARANTEES OF NON-
RECURRENCE
 NUNCA MAS!
 Presupposes the following:

 DEMOCRATIC SOCIETIES,
 CIVILIAN OVERSIGHT OF SECURITY FORCES,
 FUNCTIONING JUDICIAL SYSTEM,
 THE RULE OF LAW
GUARANTEES OF NON-
RECURRENCE: MECHANISMS
AND TOOLS
 Demobilisation and reintegration of combattants (DDR programmes)
 Elections and constitutional reforms
 Security Sector Reform (SSR)
 Reform of the Legal System
 Lustration / Vetting
“HOLISM IN PRACTICE”
Importance of CONTEXT: DwP as a starting point

 CHALLENGE: to ensure that a DwP process is sensitive to conflict dynamics

and informed by a nuanced understanding of the social, political, cultural and
economic contexts

 OPPORTUNITY: to design a DwP process which is conflict sensitive and

which is meaningful for, owned by, those who have been most affected by
HRVs
SOME CHALLENGES FOR
TRANSITIONAL JUSTICE IN THE
PHILIPPINES
 The Focus on the Bangsamoro
 Who is the constituency? How organized is it?
 Who supports the constituency?

 Coalescing with other Transitional Justice approaches

 Martial Law – victims, communities and societies
 Displacement – durable solutions
 Non-State Armed Groups abuses and atrocities

 Role of States and non-State Actors (incl. NSAGs)

 Primary responsibility of the State
 Responsibility of NSAGs under IHL

 Emerging issues: internal displacement and EJKs

 Towards a National process for transitional justice and reconciliation?
 Who is involved? E.g. problem of elite capture 15