A/HRC/36/50/Add.1
governmental apparatus and, in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free and full enjoyment of
human rights”.50
70.
Significant knowledge has been accumulated about preventing both conflict and
human rights violations. This encompasses initiatives from establishing “gateway” rights
such as legal identity, to complex institutions such as constitutional courts. In between there
are effective preventive initiatives involving changes in policing strategies, anti-torture
mechanisms, limiting the jurisdiction of military courts, strengthening civilian oversight
over security and intelligence services, and vetting personnel in the security sector and
sometimes the judiciary.
71.
In all these areas important lessons have been learned. Transitional justice has not
been especially good at integrating these lessons, hence the impression that guarantees of
non-recurrence is the least developed pillar. To be fair, no policy field has developed a
systematic prevention framework successfully. The Special Rapporteur has argued in
favour of such an approach in his two reports on the topic, advocating for a framework that
would give space not only for the reform of official State institutions, but also, on account
of their preventive potential, for measures that strengthen civil society, and for those that
can lead to changes in culture and in personal dispositions.
IV. Challenges
72.
In a short period of time — at least by the standards of international normative
change — transitional justice has become part of the repertoire of measures that countries
undergoing different types of transitions are expected to implement. It has made important
contributions in the countries where it has been implemented earnestly, including to the
lives of victims and their families, to the quality of institutions, and, especially, to the way
in which citizens and institutions relate to one another. Having said this, the field faces
challenges which can be organized in two broad categories.
A.
External challenges
73.
This report cannot offer a full diagnosis of the state of human rights globally, but it
would be remiss to assess the state of transitional justice without mentioning three
tendencies that make achievements in the field more difficult. The first is the persistent
selectivity in the way in which universal legal obligations are implemented, and in the
consequences that follow from breaching them. The idea of an international community in
which all parties are equally bound by shared obligations is more distant today than it was
even twenty years ago. Transitional justice as a means of redressing and preventing serious
violations is not applied everywhere it should be applied, and it would be naive to fail to
observe that this pattern correlates with markers of power. Some powerful countries have
legacies of violations of the very type that they expect other countries to redress through the
implementation of transitional justice measures, but they do not. These countries have a lot
to learn from those that have found the courage and clarity to implement such measures.
They should also be clear about the fact that their “double standards” make it increasingly
difficult for countries to take the necessary leap.
74.
The second tendency is aptly captured by the term “securitization”, the decision to
understand certain risks in terms of an existential threat that justifies exceptional responses.
From the standpoint of transitional justice, this poses a double threat, providing a cover for
violations and abuses both ex post and ex ante. Many issues that may have been approached
in different ways are now “securitized”, with the consequent sidestepping of human rights
and other justice-related considerations.
50
Velásquez-Rodríguez v. Honduras, Judgment of 29 July 1988, Inter-American Court of Human
Rights, para. 166.
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