A/HRC/27/56
mutually supporting, means to redress the legacies of mass violations, the measures help to
achieve justice in the aftermath of repression and/or conflict.
19.
The four elements share common goals: all of them are functionally designed to
provide recognition to victims, foster trust among individuals and particularly in State
institutions, strengthen the rule of law and promote social cohesion or reconciliation. The
report therefore stresses that “transitional justice” is not a special, even less a “soft”, form
of justice. It is rather a strategy for the achievement of a legally grounded understanding of
justice. Consequently, the report underscores that there is no “shortcut” to social
reconciliation, as reconciliation at a society level can only be reached in a sustainable
manner through measures of truth, justice, reparation and guarantees of non-recurrence,
among other reform policies.
20.
Based on a comprehensive approach, the present report pursues the undertaking by
the Special Rapporteur to devote a report to each of the four elements of the mandate to
strengthen its foundations and offer practical guidance with respect to the resolution of
abiding challenges in the implementation of the measures.2
21.
Within the element of “justice”, the present report focuses on criminal prosecutions,
which, in many ways, are the most developed element of the mandate. Prosecutions form
part of all formal justice systems, so there is extensive practice, dense frameworks of law
and jurisprudence at national, regional and international levels, in addition to conceptual
discussions about what justice requires in this domain.
22.
The contributions of criminal prosecutions to transitional processes are manifold. At
the most general level, criminal prosecutions provide recognition to victims as rights
holders. They also provide an opportunity for the legal system to establish its
trustworthiness. Effective prosecutions, in systems that respect due process guarantees,
strengthen the rule of law and finally, in doing all of the above, contribute to social
reconciliation.
23.
More concretely, criminal prosecutions in cases of serious violations, especially in
contexts in which the law has been applied arbitrarily, offer the possibility of giving life to
the principles of equality and the supremacy of law. No one, regardless of rank or status, is
above the law. More practically, given the complexities of criminal trials for massive
violations and abuses, prosecutions help to develop transferable skills, contributing to the
overall capacity of domestic judicial systems.
24.
Contexts in which gross violations of human rights and serious violations of
international humanitarian law have occurred pose particular challenges. In practice, only a
fraction of those who bear responsibility for violations are ever even investigated. Among
the main reasons for this outcome are: the high number of suspected perpetrators, the
relative scarcity of financial and human resources, capacity and will, in addition to the fact
that in many transitions the predecessor regime or forces maintain a certain power.
25.
The present report seeks to contribute to the fight against impunity. Given the
significant constraints on prosecutions in the aftermath of mass violations, efforts should be
directed at increasing their effectiveness. With this aim in mind, the report focuses on
prosecutorial strategies and, more specifically, on prioritization strategies at the national
level.
26.
Prioritization strategies need to be clearly distinguished from strategies for the
selection of cases. The question the report addresses is that of establishing a strategic order
for the investigation and prosecution of violations and abuses. Selection strategies, by
2
A/HRC/24/42.
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