A/HRC/21/46
part in virtue of the “power of aggregation”. In the face of systematic, organized violence, it
makes a difference whether one has to respond to it alone or as part of a group. Moreover,
the crucial point is not simply one of numbers, but of the characteristic activities to which
civil society organizations thus formed devote themselves; these have as their core claimsraising, i.e., not pleading, but asserting recognition of status, entitlements, and rights.
43.
The claim that the implementation of the measures under this mandate can make a
contribution to strengthening the rule of law requires two qualifications, however. First,
clearly, the measures cannot, on their own, bear the weight of either bringing about or
sustaining the rule of law. In addition to political will, overcoming the legacies of gross
human rights violations and serious violations of international humanitarian law will
require a whole host of interventions (including broad constitutional and legal reforms,
development programmes, rebalancing structural inequalities, overcoming patterns of
exclusion and marginalization, etc.) with which transitional justice measures ought to be
coordinated.
44.
Second, the concept of the rule of law to which transitional justice has so often been
said to contribute is not a purely formalist notion, as evidenced by the fact that many of the
countries where transitional justice measures have been implemented are countries in which
the rule of law, understood formally, was satisfied. The reports of the truth and
reconciliation commissions of both Chile and South Africa, for example, were critical of
the formalist understanding of the rule of law that they found to be widespread in their
respective country. In the context of the application of measures of transitional justice, rule
of law has to be understood in a way that coheres with an understanding of its ultimate aim,
promoting a just social order, as well as with the more particular aims in terms of which
transitional justice measures are specified, including recognition, trust and reconciliation,
all of which are crucially concerned with the conditions under which individuals can
reasonably consider themselves to be the holders of rights, and exercise that condition in
the practice of raising claims against others, and particularly vis-à-vis State institutions.
45.
Transitional justice measures in their context of origin were applied following
regime change. Nevertheless, they were both an expression of, and contributed to,
strengthening the successor regimes’ commitment to the rule of law. This was done not
simply by distributing criminal punishments via procedurally fair trials when those could
take place, but through the combination of the described measures. That combination was
meant to give reasons to individuals to think of themselves as rights holders, free to
organize themselves to, among other causes, make claims and establish that the violations
that they had suffered would not remain without consequence. The operative rule of law
here goes well beyond a purely juridical concept that can be reduced to regularity or
consistency in the application of the law. It includes also the conditions under which
individuals are guaranteed meaningful participation in processes of law-making through
which they can give content to the notion of justice (not limited to their own redress).
46.
In summary, the Special Rapporteur stresses that all of the four main goals of the
mandate identified and elaborated on, contribute to what resolution 18/7 describes as
“preventing the recurrence of crises and future violations of human rights, to ensure social
cohesion, nation-building, ownership and inclusiveness at the national and local levels and
to promote reconciliation”.
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