A/HRC/21/46
4.
Strengthening the rule of law
40.
Promoting the rule of law is one of the aims frequently attributed to transitional
justice measures. As an illustration, virtually all truth commissions to date have used the
concept both in an explanatory role (lack of respect for the principles of the rule of law is
one of the factors leading to the rights violations under scrutiny) and as one of the objects
of their work (their recommendations are intended to strengthen the rule of law). 22 Scholars
largely agree both about the centrality of the concept and the usefulness of transitional
justice measures in efforts to re-establish the rule of law. 23 Resolution 18/7 follows suit,
declaring that the comprehensive implementation of the four elements aims to “promote the
rule of law in accordance with international human rights law” (preambular para. 12).
41.
To illustrate the contribution of the various aspects of the mandate to the rule of law,
the Special Rapporteur outlines a number of examples. 24 Criminal trials that offer sound
procedural guarantees and that do not exempt from the reach of justice those who wield
power demonstrate the generality of law; truth-seeking exercises that contribute to
understanding the many ways in which legal systems failed to protect the rights of citizens
provide the basis on which, a contrario, legal systems can behave in the future; reparations
programmes that try to redress the violation of rights serve to exemplify, even if ex post
facto, the commitment to the notion that legal norms matter; institutional and personnel
reform measures, even those basic reforms consisting merely of the screening and
dismissing of those who abused their positions, increase the integrity of rule of law
systems.
42.
Furthermore, the implementation of transitional justice measures plays a strong
catalytic role in the process of civil society organization. 25 There is sufficient international
experience with transitional justice measures now to assert confidently that one of the
virtually inevitable consequences of even putting one of these measures for discussion on
the public agenda in a country – let alone implementing one such programme – is the
formation of a plethora of civil society organizations. This is as true of reparations
measures as it is of truth commissions, and as true in South Africa as it is in Morocco and
Peru. A strong civil society is not only important in order to guarantee broad local
ownership of transitional justice measures, but, more generally, it is an important correlate
of the rule of law and its absence a common legacy of systematic rights violations; certain
types of violations are, precisely, intended in part to impede the free operation of civil
society including in the public sphere for that impedes the coalescence of effective peaceful
opposition. 26 By contrast, catalysing the organization of groups is empowering, at least in
22
23
24
25
26
See, for example, Security Council report entitled, “From Madness to Hope: The 12-year War in El
Salvador: Report of the Commission on the Truth for El Salvador”, S/25500, chapter VTruth and
Reconciliation Commission, “Institutional Hearing: The Legal Community” in Truth and
Reconciliation Commission of South Africa Report (London, Macmillan Reference Limited, 1998),
esp. vol. 4, chap. 4; Comisión de Verdad y Reconciliación of Peru, “Los factores que hicieron posible
la violencia”, vol. VIII, No. 2, in Informe Final (Lima, Comisión de Verdad y Reconciliación, 2003),
esp. chap. 1, part 4.
See, e.g. Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, Yale
Law Journal, vol. 106, No. 7 (1997), pp. 2009–2080.
See also the Special Rapporteur’s forthcoming report to the General Assembly at its sixty-seventh
session.
For the example of Peru, see Lisa Magarrell and Julie Guillerot, Reparaciones en la Transición
Peruana: Memorias de un Proceso Inacabado, chap. 6.
As Hannah Arendt puts it, “totalitarian government, like all tyrannies, certainly could not exist
without destroying the public realm of life, that is, without destroying, by isolating men, their political
capacities”. The Origins of Totalitarianism, 2nd ed. (Harcourt Inc., 2009) p. 475.
13
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