A/HRC/30/42
direct or indirect victims. 14 Given the Special Rapporteur’s interest in exploring the
development of preventive policies, State institutions will be the main “duty
bearers”. Nonetheless, considering the diversity of the potential elements of a
comprehensive policy, those bearers are ultimately manifold.
27.
Guarantees of non-recurrence are a function that can be satisfied by diverse
measures. Thus, there is no such thing as a general non-recurrence policy. An
effective policy designed to prevent systemic violations will need to adjust form to
function and choose the proper instruments.
C.
Framing considerations
28.
Three general considerations are relevant. First, transitional justice
programmes have not taken into account sufficiently the significant differences
between the post-authoritarian contexts, where the model of transitional justice
originally took shape, and the situations of (post-)conflict and fragility in which it is
now predominantly implemented. Two important differences relate to degrees of
(State) institutionalization and the types of violations, abuses and harms requiring
redress.
29.
These differences play out as follows: criminal trials, truth commissions and
reparations programmes all rest upon certain institutional preconditions that are not
satisfied in all settings. Furthermore, those measures are effective instruments for
redressing certain kinds of violations and not others. The transfer of the model from
the post-authoritarian context to the (post-)conflict setting has taken place with
virtually no functional analysis.
30.
The same applies to guarantees of non-recurrence: the institutional context, its
characteristics, capacities and history all matter, as do the cultural circumstances and
individual dispositions. Preventing mass violations does not call for the same
specific measures regardless of those factors. Similarly, the (risk of) prevalence of
some (patterns of) violations should naturally shape a prevention policy for a given
country.
31.
In addition, transitional processes are dynamic. Therefore, besides allowing
for functional adequacy between means and ends and suitability to context, the
design of the policies to implement transitional justice elements should take into
account fittingness to a certain stage in a process. Thus, what is necessary and
feasible for prevention changes over time, not only as institutional characteristics
change, but also as the horizon of possibilities shifts.
32.
Furthermore, the sort of transformations that are called for in order to
approximate anything resembling guarantees of non-recurrence following mass
violations cannot be achieved through “institutional engineering” or institutional
reforms alone. The challenge of achieving justice retrospectively and prospectively
is not merely a technical one. Lasting societal transformations require interventions
not only in the institutional sphere but also in the cultural sphere and at the level of
personal, individual dispositions. While culture and “character” play a stabilizing
function in social relations, and as such are by nature relatively immune to deliberate
change, they are not immutable altogether. Hence, in the present report, the Special
14
8
See Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, Vol. 19, No. 2,
p. 261 (May 1997).
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