A/HRC/36/50/Add.1
post-authoritarian contexts in which the model originally took shape), and from the
consequent tendency to replicate institutional formulas. More can be done to respond
creatively to these challenges, and to integrate better institutional responses with other
types of initiatives, in the cultural domain, in civil society — unfailingly the fulcrum of
transitional justice work — and in adjacent areas of policy intervention including
security and development.
B.
Recommendations
93.
The Special Rapporteur addresses the following recommendations to all actors
engaged in transitional justice, especially implementing States and civil society:
(a)
Learning between countries is valuable, but there is more mimicry,
replication of institutional forms and less sensitivity to function and to context than
there should be. Transitional justice would be significantly more effective if all actors
would (i) devote more attention than they do at present to clarifying what they expect
to accomplish through the adoption of these measures, (ii) engage in functional
analysis to shed light on the institutional forms most fit to satisfying those ends in
their particular circumstances, that is, after they (iii) engage in serious analysis of
context, including an assessment of institutional capacities, the identification of gaps
in expertise and resources, and similarly thorough political analysis;
(b)
Attention to functional adequacy, to the load that particular institutional
forms can bear and what they can realistically deliver, should manifest itself in the
prudent framing of the mandates of transitional justice institutions. This is important
for many reasons, a prominent one being not to awaken expectations of victims unless
there are good reasons to believe that those expectations can be satisfied;
(c)
Sensitivity to context should lead all actors to take more seriously the
differences between post-authoritarian and post-conflict transitions and to adjust
redress and preventive measures according to the specific constraints and the specific
needs of each type of context;
(d)
Increased attention to the ends sought through the adoption of
transitional justice measures, to the particularities of the context in which the
measures operate, and to the different institutional means through which obligations
can be effectively satisfied, should lead to increased creativity and diversity in the
design of redress and preventive measures — compatible with the universality of the
underlying norms, which in all cases require complying with criteria of equality,
impartiality, inclusivity and where applicable rule of law and due process
guarantees;54
(e)
For both normative and practical reasons, the sustainability of
transitional justice measures depends upon placing the rights and needs of victims at
the centre of design and implementation processes. There is no way of doing this
without consulting victims. Inclusive consultations of an ongoing character, not mere
one-off events, need to be established in order to give victims and other marginalized
groups a voice in these processes;
(f)
Transitional justice is not simply a technocratic process of clever
institutional engineering. As important as institutional responses are, other
dimensions — including cultural interventions, measures to strengthen civil society
and initiatives that may produce changes in individual convictions and dispositions —
deserve more attention than they have received as crucial elements of transitional
justice.
54
As the Special Rapporteur has insisted in previous reports, nothing undermines the effectiveness and
credibility of transitional justice measures more than the impression that they are instruments of
“turntaking”, tools to benefit supportive constituencies and to disfavour individuals, groups or
communities that oppose those in power.
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