A/HRC/21/46
23.
Practice has shown that isolated and piecemeal prosecutorial initiatives have not
quelled the claims for forms of justice other than mere prosecution. 8 There is nothing
unusual about criminal justice in this respect. The same is true of all other measures under
the mandate; truth-seeking exercises, even thorough ones, 9 when implemented on their
own, are not taken to be coterminous with justice, for adequate redress is not exhausted by
disclosure. Justice is not merely a call for insight but also requires action on the truths
disclosed. Similarly, reparations in the absence of prosecutions, truth-seeking or
institutional reform can easily be seen as an effort to buy the acquiescence of victims.
Finally, measures to reform institutions, such as vetting, in the absence of the other
mechanisms, will be both inadequate to respond to the violations to which they seek to
respond and insufficient to guarantee non-recurrence.
24.
The Special Rapporteur emphasizes that success in the implementation of the four
measures under the mandate, and the likelihood that they will be interpreted as justice
measures, depends upon paying heed to the tight and bidirectional relations between them
when designing the relevant programmes. To illustrate, just as reparations call for truthtelling if the benefits are to be interpreted as a justice measure, truth-telling calls for
reparations if words are to be seen as more than inconsequential chatter. Similarly,
beneficiaries of reparations programmes are given stronger reasons to regard the sort of
benefits usually conferred by these programmes as reparations (as opposed to merely
compensatory measures) 10 if they proceed in tandem with efforts to prosecute human rights
violators. Conversely, since criminal prosecutions without reparations may be thought to
provide no direct benefit to victims other than a sense of vindication that otherwise does not
change the circumstances of their lives, a policy based exclusively on prosecution is likely
to be experienced by victims as an insufficient response to their own justice claims. Finally,
vetting office holders for past violations is an important complement to prosecutions, for
victims will have little reason to trust institutions that continue to be largely populated by
rights abusers even if a few have been prosecuted. But vetting without substantive measures
of corrective justice, consisting in a mere dismissal, will be unlikely to be seen as a
significant contribution to justice given the magnitude of the violations that trigger it.
8
9
10
8
the Independent Arbitration Instance ( IIA) operated as a stand-alone compensation commission. In
January 2006, after two years of operation, the Equity and Reconciliation Commission ( IER) made
its report public, including its decisions concerning reparations. In this instance, reparations were part
and parcel of a transitional justice policy that linked truth-telling and reparations closely.
Furthermore, unlike IIA, which provided monetary compensation alone, IER established a
programme involving services including health benefits, amongst others.
See the results of the research directed by Harvey Weinstein and Eric Stover (eds.) in My Neighbor,
My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004, Cambridge University
Press), exploring both the potential and limitations of International Criminal Tribunal for the Former
Yugoslaviaand the International Criminal Tribunal for Rwanda, and making a persuasive case that
international tribunals work best in conjunction with a variety of other measures, including local
initiatives more attentive to social integration and reconstruction and the needs and wishes of those
more directly affected by violence.
See Comisión para el Esclarecimiento Histórico, Informe de la Comisión para el Esclarecimiento
Histórico “Guatemala, Memoria del Silencio”. See also, Oficina de Derechos Humanos del
Arzobispado de Guatemala, Informe del Proyecto Interdiocesano de Recuperación de la Memoria
Histórica, “Guatemala, Nunca Más”.
The difference between mere compensation and reparation is that reparations, in order to be
understood as such, must be accompanied by some sort of acknowledgment of responsibility (which
need not be an acknowledgment of culpability).
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