A/HRC/21/46
norms that make it a trustworthy system for the resolution of conflicts amongst rightsholders. Conversely, legal systems, when they operate well, also catalyse the expansion of
the relevant forms of recognition and trust; the effective extension of rights to some has
historically unleashed processes of inclusion, and the legal stabilization of expectations
boosts confidence by diminishing the costs of trusting others.
3.
Reconciliation
36.
The idea of reconciliation has played an important role in some of the contexts in
which the measures under this mandate have been implemented. Indeed, some of the truth
commissions in countries that have implemented these measures either use the term in their
very names or mention this as one of their aims. 21 Resolution 18/7 refers to reconciliation
as one of the expected outcomes of the implementation of the four measures at its core
(preambular paras. 11 and 12).
37.
The Special Rapporteur emphasizes that, both on the basis of international
experience and, more proximately, the resolution that creates the mandate, reconciliation
should not be conceived as either an alternative to justice or an aim that can be achieved
independently of the implementation of the comprehensive approach to the four measures
(truth, justice, reparations and guarantees of non-recurrence).
38.
A conception of reconciliation that coheres both with these experiences and the text
of the resolution, and that at the same time would clarify the contribution that the
implementation of the four measures can make to its achievement would posit that
reconciliation is, at minimum, the condition under which individuals can trust one another
as equal rights holders again or anew. That means that individuals under the jurisdiction of
a given State are sufficiently committed to the norms and values that motivate their ruling
institutions, that individuals are sufficiently confident that those who operate those
institutions do so also on the basis of those norms and values – including the norms that
turn individuals into rights holders – and sufficiently secure about other individuals’
commitment to abide by and uphold these norms and values.
39.
To the extent that the implementation of the four measures under this mandate can
provide recognition and foster trust in the ways described, it can also contribute to the
process of reconciliation understood in the manner just sketched. However, the Special
Rapporteur highlights that implementing these measures does not guarantee that
reconciliation will be achieved. While transitional justice measures can contribute to
making institutions trustworthy, actually trusting institutions is something that requires an
attitudinal transformation that the implementation of the measures, again, can ground but
not produce. Such an attitudinal change calls for initiatives that target a more personal and
less institutional dimension of a transition. Primary among these are official apologies
which go beyond generic acknowledgments of responsibility and can play an important role
in aiding the required attitudinal transformation. Other measures that have the potential to
contribute are commemorations, the establishment of memorials and, very importantly, a
reform of the educational systems.
21
12
Contributions to a Discourse Theory of Law and Democracy (Cambridge and Malden, Polity Press,
1996), p. 119. See also Habermas, “On Legitimation through Human Rights” in Global Justice and
Transnational Politics, Ciaran E. Cronin and Pablo de Greiff, eds. (The MIT Press, 2002).
E.g., the South African Truth and Reconciliation Commission, Comisión Nacional de Verdad y
Reconciliación of Chile, Comisión de Verdad y Reconciliación of Peur and the Equity and
Reconciliation Commission of Morocco, among others.
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