A/HRC/30/42
as imprescriptibility. 28 Other courts have carried out judicial processes using criminal
types that may have not been present in national codes when the acts were
committed, arguing that this does not violate the principle of legality if international
law already declared the acts in question to be illegal when they were committed. 29
Indeed, domestic and international courts have found ways to guarantee
simultaneously respect to the principle of legality as well as due process and fair trial
standards for the defendants, and to the rights of victims to see the perpetrators of
violations brought to justice. 30
2.
Emergency, security and counter-terrorism legislation
51.
Another crucial legislative reform that is not particularly onerous in terms of
expenses or complexity is to ensure that emergency, anti -terrorism or other securityrelated legislation is fully compatible with human rights standards, so that it does not
incentivize violations of rights. Authoritarian regimes, regimes mired in conflict and ,
for years now, States involved in so-called “wars on terrorism” almost invariably
adopt legislation that goes well beyond the objective security needs that purportedly
motivate it. 31 Such laws have been seriously misused to justify gross human rights
violations. For example, in addition to allowing for prolonged periods of
“preventive” detention, constraining access to defence lawyers, the absence of the
review of the legality of detention by a court, among other limitations of rights, these
laws either directly or indirectly promote, even instigate, the violation of rights. This
is the case, for example, with the singly objectionable, jointly pernicious, removal of
bars on the use of evidence that may have been obtained illegally, frequently by
coercion, and the weakening of the safeguards under which “confessions” can be
given by detainees.
D.
Judicial reforms
52.
Given the importance of an independent and effective judiciary in secu ring
rights — but also of acknowledging the dubious role some judiciaries have played in
pre-transitional periods in some countries — it is somewhat surprising that judicial
reform has not played a more prominent role in discussions about guarantees of non recurrence. This is in spite of recommendations made by many truth commissions in
relation to judicial reform and the fact that many transitional countries have
reformed their justice systems. 32 This serves as a good illustration of the lack of
focus and strategy in discussions about guarantees of non -recurrence, and of the
disconnect between transitional justice and other policy interve ntions with which it
coexists but rarely interacts.
53.
In the aftermath of mass violations, committed sometimes with the
collaboration of the judiciary, or in any case having shown itself an insufficient
bulwark against the violations, there are three important issues that should be tackled
in order to help prevent future violations: (a) screening judicial personnel; (b)
28
29
30
31
32
See Arancibia Clavel and Simón (Supreme Court, Argentina); and Fujimori (Specialized Criminal
Law Chamber, Peru).
See Special Tribunal for Lebanon, Appeals Chamber, STL-11-01/I, paras.132 and 133; Pérez García
(Colombia).
See Scilingo and Pinochet (National High Criminal Court, Spain); Gelman.
See A/HRC/16/51/Add.2; and A/HRC/25/59/Add.2.
See Linn A. Hammergren, Justice Reform and Development: Rethinking Donor Assistance to
Developing and Transitional Countries (Routledge, Oxford, 2014).
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents