A/HRC/36/50/Add.1
the past, academics have analysed the root causes of the regime and memorials are common
fixtures in the landscape.
11.
The end of communism in Eastern Europe spurred a distinct approach to transitional
justice, focusing on accessing secret surveillance archives that predecessor regimes had
created and vetting State officials. In East Germany, as the Berlin Wall fell and staff at the
archives of the Ministry for State Security (Stasi) burned and shredded files, citizens
occupied Stasi buildings to preserve the documentation. Subsequently, the German
Government created a Commission to maintain the archives and to open them to the public.
Additionally, in the former Czechoslovakia, East Germany, Hungary and Poland, successor
regimes developed laws and policies to exclude people linked to the communist regime
from government or civil service through policies known as “lustration”.5
12.
The collapse of communism in Europe led to devastating conflicts in Yugoslavia as
the country broke apart. In 1993, the United Nations Security Council reacted by creating
the International Tribunal for the Former Yugoslavia. 6 Bosnia and Herzegovina, Croatia
and Serbia have forged their own, often difficult paths in adopting transitional justice
approaches. The region has, however, been the site of many positive developments,
including the use of cutting-edge forensic approaches to identify the remains of 70 per cent
of the estimated 40,000 people missing because of the conflict. 7 Civil society groups
developed an innovative campaign (which has not yet born fruit) for a truth commission
that was regional, rather than national, in scope. Regrettably, a comprehensive approach to
reparation for victims of the conflict has lagged behind.
13.
The European Court of Human Rights has played a role in pushing States to uphold
their obligations to victims. As one example, the Court has established jurisprudence on the
procedural obligation of States to investigate serious crimes based on cases from Northern
Ireland.8
C.
Africa
14.
The South African Truth and Reconciliation Commission was established through
the negotiated end to apartheid in South Africa in 1994. While the Commission benefited
from the experiences of Argentina and Chile, it innovated beyond those models. It is the
only truth commission to include an amnesty-for-truth model (a highly conditioned amnesty
by design). It integrated a promise of reparations (alas, not completely satisfied), and,
importantly, provided a public platform for victims, not the least through highly successful
public hearings. Ultimately, the expectation that the amnesty process would generate
significant information was not met. Similarly, the idea that those whose amnesty
applications had been denied would be liable for prosecution (7,112 applications filed but
only 849 amnesties granted) has been emptied of force because of the reluctance to initiate
prosecutions.9 Nonetheless, the model has been extraordinarily influential. Kenya, Liberia
and Sierra Leone have adopted elements of this approach.
15.
Another regional innovation concerns the integration of local and traditional justice
in countries like Rwanda and Uganda. Rwanda developed the Gacaca courts, a system of
more than 12,000 community-level tribunals that functioned from 2005 to 2012 to deal with
all but the most serious crimes committed during the country’s 1994 genocide. Gacaca
filled a gap left by the decimation of the legal system during the genocide, combining
traditional conflict resolution measures with elements of modern judicial procedure. 10
5
6
7
8
9
10
Alexander Mayer-Rieckh and Pablo de Greiff, Justice as Prevention (New York, Social Science
Research Council, 2007).
See www.icty.org/en/cases/key-figures-cases.
International Commission on Missing Persons, “Annual report 2015”, p. 7.
McKerr v. the United Kingdom (Application No. 28883/95).
See www.justice.gov.za/trc/amntrans/index.htm.
Rwanda, “Gacaca Courts in Rwanda” (June 2012).
5
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