"Transitional justice": general characteristics

Sergeeva Anzhelika Anatol'evna PhD in Law Associate Professor; Department of Criminal Law and Procedure; St. Petersburg Institute (branch) All-Russian State University of Justice 190000, Russia, Saint Petersburg, Baskov Lane, 16 lokhi@yandex.ru Other publications by this author     Voskoboinik Igor' Olegovich PhD in Law Associate Professor; Department of Criminal Law and Procedure; St. Petersburg Institute (branch) All-Russian State University of Justice 199034, Russia, Saint Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author     Pitulko Kseniya Viktorovna PhD in Law Associate Professor; Department of Criminal Law and Procedure; St. Petersburg Institute (branch) All-Russian State University of Justice 197341, Russia, Saint Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author

Sokolova Elena Valer'evna PhD in Law Associate Professor; Department of Criminal Law and Procedure; St. Petersburg Institute (branch) All-Russian State University of Justice 199034, Russia, Saint Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author

Using the term "transitional justice", it is customary to characterize the mechanism for establishing the circumstances of crimes against humanity during the functioning of various totalitarian regimes, in whose practice mass violations of human rights, the destruction of civil society institutions and other destructive phenomena aimed at stigmatizing ethnic, religious and other minorities are widespread. After the dismantling of these regimes as a result of a coup d'etat, armed conflict or other events, there is a need to rehabilitate victims of repression and resolve other negative consequences. In the center of retrospective judicial knowledge are, first of all, the precedents of gross violations of the rules of warfare, torture, mass executions, slavery. The criminal prosecution of persons involved in these crimes is quite difficult, since during the period of totalitarian rule there is an imitation of the legality of such actions, and in addition, ordinary perpetrators are influenced by both subordination and fear for their own lives, as a result of which it is often impossible to establish their guilt. The organizers of genocide and other crimes, on the contrary, do not always find themselves within reach of criminal prosecution, preferring to hide in exile or putting forward versions regarding their own ignorance or non-involvement in their commission. In addition, the civil accord established after the overthrow of the dictatorship may turn out to be fragile and prone to destruction, therefore, "transitional justice" requires taking into account these circumstances ^{[1, pp. 245-249]}.

It follows from this that within the framework of the implementation of "transitional justice", those models of judicial proceedings that are already functioning in the national legal system or those that are established by agreement between a particular State and the United Nations become the most in demand. It is the hybrid model of international criminal justice that seems to be the most effective, since it includes the use of domestic resources and well-established international legal experience. In this case, what the perpetrators have done is qualified in accordance with national criminal legislation and international standards formed in the universal human rights system.

"Transitional Justice" and its individual institutions have already been the subject of scientific research published by both Russian ^{[2, pp. 32-53; 3, pp. 75-80; 4, pp. 3-19]} and foreign authors ^{[5, pp. 87-91]}. Recognizing the value of the results obtained for the development of international law, as well as branch legal sciences (criminal law, criminal procedure law), it is worth paying attention to the fact that specific precedents of the activity of tribunals, judicial presences, reconciliation commissions were not subjected to a comprehensive analysis, taking into account a relatively large country-specific sample. At the same time, the conclusions of scientists based on the application of established concepts of the administration of justice (functions of the judiciary) to the institutions of "transitional justice" are debatable, since national models of judicial power in post-conflict countries are used in such cases in an extraordinary mode, implementing non-standard approaches to interaction with civil society. Within the framework of this article, it is intended to fill this gap.

"Transitional justice" has a wide range of diverse tasks, the main of which is to establish the true nature of the events under study and national reconciliation. In this regard, the UN structures practice the establishment of conciliation commissions that collect factual information and verify its reliability. As a rule, international human rights organizations actively participate in this activity, although their representatives do not always contribute to the restoration of a scale of values based on respect for the law, expressing open support for one of the parties to the conflict ^{[6, pp. 87-103]}.

"Transitional justice" is carried out in difficult conditions resulting from the underdevelopment of public institutions and the low level of authority of judicial decisions. It follows from this that in order to eliminate the consequences of social conflicts and achieve the goal of national reconciliation, it is necessary to conduct an open trial, during which it will be possible to give a legal assessment of events and facts related to the recent historical past. Conducting a trial in an adversarial environment and ensuring equal rights for the prosecution and the defense, charging not so much the perpetrators as the organizers of mass murders and other crimes, researching the maximum amount of information related to the incriminated acts are necessary and important parameters that determine the fairness of a future sentence.

"Transitional justice" has some specific risks related to prosecutorial evasion. In many cases, the activities of hybrid courts or national judicial institutions are criticized for the real or imaginary bias of the conclusions, based on the fact that the proceedings are carried out with the support of the international community by representatives of the side of the civil conflict that is in power. However, these are rather value judgments based on arguments based on the mechanism of "judging the winners over the losers." Meanwhile, a formalized judicial process obviously has an advantage over extrajudicial execution or public condemnation of events related to genocide and other crimes against humanity. Before the start of the process, the applicable law is determined, the scope of charges is formed, and the circle of persons whose activities will be investigated at the court session is determined. Unfortunately, after the end of World War II, society did not reach the level of civilization that excludes totalitarian practices that allow the destruction of dissidents, wars of conquest, ethnic and other violent conflicts. But the use of international justice mechanisms for their legal assessment seems to be the best option, taking into account the interests of both citizens of an individual state and the international community.

"Transitional justice" includes judicial and non-judicial mechanisms, including prosecution under the law, compensation for damages, truth-finding, and institutional reforms. These activities are overseen by the Office of the United Nations High Commissioner for Human Rights. The declared goals of "transitional justice" are to simultaneously restore the dignity of the victims, gradually build mutual trust between the warring groups and promote the institutional changes necessary to establish new relations among the population so that the rule of law is established in conditions of rejection of practices that make full or partial impunity possible. The various methodologies that make up "transitional justice" usually combine the "healing" measures of restorative justice (truth and reconciliation commissions) and a parallel system of punitive justice (mainly against those primarily responsible for the most serious crimes and their direct perpetrators) In addition, the activities carried out within the framework of "transitional justice" are aimed at reforming the institutions of society through the restoration of the rule of law and ensuring the functioning of the judiciary in the future. At the same time, their goal is to ensure that crimes committed during the previous period do not go unpunished.

Foreign scientists have identified the following signs of "transitional justice":

- investigation of particularly dangerous human rights violations committed during the existence of a dictatorship or other totalitarian regime within the framework of the judicial process;

- ensuring the priority of the interests of victims of crimes;

- limitation of the retroactive force of the law;

- a combination of restorative and punitive elements ^{[7, pp. 225-263]}.

Under the auspices of the United Nations, key concepts have been developed that are necessary to restore civil harmony in post-conflict societies. The most important of them are:

- The rule of law is the principle of governance, according to which all persons, institutions and structures, public and private, including the State itself, operate under the laws that have been publicly adopted, are equally enforced and independently implemented by judicial authorities and which are compatible with international norms and standards in the field of human rights. For its approval, measures are needed to ensure compliance with the principles of the primacy of law, equality before the law, responsibility before the law, impartial application of laws, separation of powers, participation in decision-making, legal certainty, prevention of arbitrariness and procedural and legal transparency;

- Justice is the highest expression of responsibility and justice in the protection and protection of rights and the prevention and punishment of violations. Justice implies respect for the rights of the accused, the interests of the victims and concern for the well-being of society as a whole;

- Transitional justice is a set of processes and mechanisms related to society's attempts to overcome the grave legacy of large–scale violations of the rule of law in the past in order to ensure accountability, justice and reconciliation. These may include both judicial and non-judicial mechanisms with varying degrees of international involvement (or none at all), as well as individual actions for prosecution, reparation, fact-finding, institutional reform, preliminary review and termination of cases, or a combination of the above actions.

The experience of establishing special bodies for the implementation of "transitional justice" shows that, depending on the socio-political situation, the following models can be chosen:

- the establishment of a special court (in fact, it is a kind of ad hoc tribunal, but with the peculiarities of recruitment with the participation of judges representing a post–conflict State). Such a court has autonomy in comparison with domestic judicial authorities, may be endowed with parallel jurisdiction and accept any case related to its jurisdiction, withdrawing it from the proceedings of an internal court that is not in an instance legal relationship with it. This approach was used in the creation of the Special Court for Sierra Leone, which established the circumstances of the commission of war crimes and crimes against humanity during the civil war in that State ^{[8, pp. 137-161]};

- Creation of special judicial presences, which are part of the national judicial system, at the initiative of the UN mission or the interim administration. Although judges representing a post-conflict State are involved in the activities of such bodies, representatives of foreign States with higher professionalism and independence play a major role in assessing evidence of crimes within the jurisdiction of such courts. Judicial collegiums are authorized both to consider cases on the merits and to review the verdicts on appeal. This method of justice has been implemented in East Timor, Cambodia, partly in Iraq, Kosovo, Eastern Bosnia and Herzegovina, Lebanon ^{[9, pp. 214-231]}.

Both models are implemented on the basis of agreements concluded between the UN and the Government of a post-conflict State. The initiative to conclude an agreement belongs to the Government, and in some cases it is manifested by the UN Interim Administration, which has full authority until the conflict is completely over. An essential element of the agreement is the determination of the date from which crimes against humanity, war crimes and violations of international humanitarian law become subject to the jurisdiction of the established tribunal. At the same time, using the example of the trials against citizens of the Congo and Sudan, it can be concluded that this mechanism is more simple and convenient than using hybrid models of international justice. It should also be mentioned that the defendants, whose cases are being considered by hybrid tribunals, exploit a defensive version based on the idea of the tendentiousness of the tribunal's activities and arguments about the accusatory bias.

Due to the complex nature of "transitional justice", it has a number of differences from traditional justice mechanisms based on the differentiation of pre-trial and judicial proceedings in a criminal case. This concept also includes non-procedural activities, the results of which can subsequently be studied in the framework of judicial proceedings. These activities, according to the established practice of UN structures, are implemented through truth and reconciliation commissions established in post-conflict states ^{[10, pp. 99-105]}.

The truth-finding process helps post-conflict States to investigate past human rights violations. It is carried out by truth commissions, commissions of inquiry or other fact-finding mechanisms. Truth commissions are non-judicial investigative bodies that identify the practice of systematic violations committed in the past and find out the causes and consequences of these destructive phenomena. Commissions of inquiry and other fact-finding bodies also aim to find out the truth of allegations of past human rights violations, but operate within narrower mandates. Each truth commission is a unique body created taking into account the context specific to a particular society, and its formation is based on the results of national consultations involving victims and civil society organizations. The Office of the United Nations High Commissioner for Human Rights contributes to the development of the structure and establishment of truth commissions, including by familiarizing them with applicable standards and best practices. It also supports the work of commissions of inquiry and fact-finding missions. The most significant elements of this activity should be mentioned.

From July 2008 to June 2009, OHCHR, in collaboration with the Department of Peacekeeping Operations and the United Nations Development Programme (UNDP), worked to document serious violations of human rights and international humanitarian law committed in the Democratic Republic of the Congo between March 1993 and June 2003. As a result of this work, a system of past human rights violations has been identified, the capabilities of the judiciary in combating impunity will be determined and recommendations aimed at ensuring the functioning of transitional justice mechanisms will be formulated. As is known, some warlords and other persons involved in the commission of crimes against the civilian population in the DRC were subsequently brought before the International Criminal Court.

The 2008 Power-sharing Agreement in Kenya provides for the establishment of a Commission to investigate the circumstances of post-election violence and a Truth, Justice and Reconciliation Commission (CIS). The first of them published a report in October 2008 documenting post-election violence and making recommendations for the establishment of a special tribunal and comprehensive police reform. In February 2009, the Kenyan Parliament rejected a bill to amend the Constitution to create a special tribunal. The CISP was legislatively established in November 2008.

The Comprehensive Peace Agreement in Liberia provides for the establishment of the Truth and Reconciliation Commission (TRC), which was legislatively established by the National Assembly in June 2005. The Human Rights and Protection Section of the United Nations Mission in Liberia (UNMIL) supported the enactment of the Law on the Commission and participated in the selection process of Commission members through awareness-raising and the distribution of nomination forms. A conflict mapping project was implemented, compiling 13,000 witness statements, which were submitted to the Commission after its creation in February 2006.

The Lomé Peace Agreement of 1999 contains a provision concerning the Sierra Leone Truth and Reconciliation Commission, which was established by Parliament, which passed the relevant law in February 2000. Subsequently, a special tribunal for Sierra Leone was established, which operated until 2013.

In countries such as Afghanistan and Somalia, the establishment of reconciliation commissions has not been generally successful. The conflicts in these States have not ended, and it is not possible to talk about the demand for "transitional justice" at the moment. In Colombia and Guatemala, where civil conflicts also occurred, reconciliation took place on the basis of domestic legal resources, and the legal assessment of human rights violations remained within the competence of national judicial systems. In Colombia, 3,637 of the 50,500 demobilized members of illegal armed groups have been prosecuted under the Justice and Peace Act. 73 members of Congress were indicted, 11 of whom were convicted and 4 acquitted.

In East Timor, a hybrid model of international criminal justice was implemented, which to some extent had an experimental character. The UN Interim Administration in East Timor lobbied for the establishment of an international tribunal, but this did not happen. East Timor had neither developed legislation nor an independent judicial system. In 1975, its territory was annexed by Indonesia, and over the next 24 years, the inhabitants of the island were subjected to violence, executions, and torture. The occupation was accompanied by systematic gross violations of the human rights of the inhabitants of Timor: mass killings, forced displacement, disappearances, expulsions abroad, restrictions on movement, forced labor, arbitrary arrests and detention, as well as criminal prosecutions for political activities. One of the bloodiest events was the bombing of the Matebian district, which led to the deaths of tens of thousands of civilians, the mass killings in the village of Karars in the district of Viqueque in 1983, when all adult men were exterminated in this village and only women and children were left alive, as well as the massacre in the Santa Cruz quarter in Dili in in 1991. More than 100 thousand people became victims of the genocide. In the period from January 1 to October 25, 1999, a number of crimes against humanity and war crimes were committed on the territory of Timor, the culmination of which took place immediately after the announcement of the results of the referendum, during which the inhabitants of the region resolutely refused integration with Indonesia.

In order to stabilize the situation and end the military struggle for East Timor's independence from Indonesia, a contingent of peacekeeping forces was deployed there. The UN Interim Administration was empowered to exercise legislative, executive and judicial powers, therefore, special panels on serious crimes were established by its unilateral decision, taken without negotiations and an agreement between the UN and the authorities of East Timor. The UN International Commission to Investigate Crimes Committed by Members of the Indonesian army during the occupation of the region has collected a sufficient amount of reliable evidence relating directly to 1999, when the struggle for independence escalated. It seems important that a number of respondents named persons involved in murders, rapes and other crimes. Some of these subjects were members of groups that functioned with the actual support of the occupation authorities.

In total, three panels were established: two in the Dili District Court (the capital of East Timor) and one in the Dili District Court of Appeal. Each consisted of two foreign judges and one judge from East Timor. At the same time, mass killings of East Timorese residents by the Indonesian military were recorded throughout the region. The subject jurisdiction of the collegiums was determined in relation to the following crimes: genocide, crimes against the laws and customs of warfare, murder, sexual crimes, torture, crimes against humanity. During the period of the special panels, charges were brought against 87 persons, and another 303 persons were charged in absentia and were not considered in court due to the fact that the accused were not in Timor-Leste. 85 defendants were found guilty and sentenced to various prison terms, but those guilty of the most serious crimes were not and probably never will be brought to justice.

The mechanism for the implementation of "transitional justice" functioned somewhat differently in the territory of the African State of Sierra Leone. The Special Court for Sierra Leone had substantive jurisdiction over crimes against humanity, violations of article 3 of the Geneva Conventions for the Protection of Victims of War, and other serious violations of international humanitarian law. Article 5 of the Agreement defined the alternative jurisdiction of the Special Court for Sierra Leone in cases of crimes, the responsibility for which was regulated by the National Law on the Prevention of Cruelty to Children (1926) and the Law on Intentional Harm (1861). Both of these laws were part of the national legal system of Sierra Leone and in this the quality turned out to be in the field of applicable law. This is due to the fact that an armed conflict of a non-international nature took place in Sierra Leone (although in fact foreign states intervened in its course, and the ex-head of one of them (Liberia) even appeared before a Special Court).

In addition to the listed rules applicable to the Special Court for Sierra Leone, it was allowed to use the National Criminal Procedure Act (1965), as well as the rules and procedures required by the International Tribunal for Rwanda, and in the appeal review of decisions, it was also allowed to be guided by existing decisions of this Tribunal and the International Tribunal for the Former Yugoslavia Yugoslavia. The Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, which existed at the time of the establishment of the Special Court, were applied mutatis mutandis to conduct legal proceedings in the Special Court. The judges of the Special Court could amend the Rules of Procedure and Evidence or adopt additional rules in the event that the applicable rules did not regulate or insufficiently regulated a particular situation. Subsequently, the Special Court for Sierra Leone convicted 13 people. Of these, three people have died, and one is a fugitive from justice. The remaining nine people, including former Liberian President Charles Gankey Taylor, were convicted and sentenced to 15 to 52 years in prison. Most of the defendants pleaded guilty, but Taylor did not admit guilt, and denied involvement in financing groups and organizing violent crimes against civilians. During the trial, about a hundred witnesses were questioned, and their testimony became important evidence of his awareness of the commission of such crimes and the commission of a number of organizational actions.

Using the example of the Special Court for Sierra Leone, it can be seen that a hybrid tribunal, which is not integrated into the national judicial system, but occupies a special position in it, has the capacity to effectively administer justice. In particular, it can give a correct legal assessment of the actions of several parties to the conflict, especially when they coincide to the point of confusion, accompanied by acts of violence against the civilian population. To a certain extent, the hybrid model tested in Sierra Leone also contributed to the reintegration of former participants in the conflict into peaceful life.

Summarizing the practice of implementing "transitional justice", it can be concluded that, in addition to its legal function, it has two important humanitarian activities: maintaining fragile civil harmony in post-conflict societies and restoring citizens' trust in public authorities. The active participation of representatives of international organizations in the activities of conciliation commissions and judicial presences is an important guarantee of its impartiality. The use of normative acts included in the legal system of such States as applicable law is a condition for a fair legal assessment of crimes committed during the armed conflict.