Helen Clark: A Role for Development in Transitional Justice: the Arab Spring and Beyond

Nov 14, 2011

Draft remarks for Helen Clark, UNDP Administrator
on the occasion of the New York University Emilio Mignone Lecture on Transitional Justice and Development:
A Role for Development in Transitional Justice:
the Arab Spring and Beyond”
14 November 2011
NYU School of Law, 6pm

I thank the Center for Human Rights and Global Justice at the New York University School of Law and the International Center for Transitional Justice for inviting me to speak this evening.

I also acknowledge the important work of both Centres, which has deepened understanding of transitional justice and human rights, and helped strengthen the capacity of countries and actors to learn from experience and turn concept into practice.

The work of the ICTJ has done a great deal to make the concept of transitional justice a widely accepted part of the political discourse in many countries, including in the Arab States region this year. Transitional justice will be particularly critical for nations there as they tackle the challenges of dealing with the past and of building more inclusive societies, economies, and governance systems.

Both Centres partner with the UN, including UNDP - the organization which I head. Just one example: in Colombia UNDP works with the ICTJ and the United Nations Office of the High Commissioner for Human Rights to strengthen national justice institutions and promote co-existence and reconciliation.

As I will elaborate later in my remarks, this kind of collaboration between actors in transitional justice and development is not just desirable; it is also central to advancing the objectives we share. That shared vision is well captured in the words of Martin Luther King who urged all to “see that the end we must seek is a society at peace with itself, a society that can live with its conscience.”

Transitional justice and human development

Transitional justice is perhaps best known to the lay person from the reporting of high-profile processes such as the Nuremburg trials, the trial of the generals in Argentina, the International Criminal Tribunal for Rwanda, and the South African Truth and Reconciliation Commission.

As the UN Secretary General’s “Guidance Note on the United Nations Approach to Transitional Justice” makes clear, for the UN, “transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses in order to ensure accountability, secure justice, and achieve reconciliation.” These processes and mechanisms are seen as “a critical component of our framework for strengthening the rule of law.”

Part of UNDP’s mandate places it precisely at the crossroads of support for countries recovering from crisis and seeking to move to social peace and inclusive and sustainable development. We believe that clearly linking transitional justice to broader development work, including institutional reforms, contributes to building the peace, stability, and respect for human rights which underpin sustained development.

UNDP’s work overall is based on the pursuit of human development. In societies emerging from conflict and/or repression, transitional justice which addresses the legacy of the past can also build a bridge to constructing the rule-of-law based societies which are so essential for accelerating human development.  

Fundamentally, transitional justice and human development are about building societies which can be at peace, just, and inclusive. The challenge we share is ensuring that transitional justice and development practice do contribute to transformations which bring sustained and meaningful improvement to peoples’ lives.  That is why at UNDP we encapsulate the objective of our work as “Empowered Lives: Resilient Nations”.

Converging disciplines ?

Transitional justice and development have been very different disciplines with seemingly distinct goals. Each has evolved greatly, but the expansion of each has not taken place in isolation from the other. The links between the two disciplines are increasingly well recognized, and in many countries transitional justice and development efforts directly and practically inform each other.

I understand that transitional justice has come to incorporate two important concepts: one based on individual accountability for human rights abuses; and the other based on the assumption that societies which are able to face their history of violence are less likely to repeat it in the future.

Transitional justice processes have over time sought to uncover the root causes of conflict and the extent of harm done to victims, and to promote economic and social justice. Increasingly the transitional justice field is contributing to the goals of peace-building, enhancing relations between state and society, and establishing the rule of law.

The development discipline has also refocused over the years, not least through the application of the concept of “human development,” pioneered by Amartya Sen and Mahbub ul Haq, and highlighted by the annual global Human Development Reports issued by UNDP. That has helped development move away from a narrow focus on GDP growth, to a process encompassing the range of initiatives which can expand the freedoms, choices, and capabilities of people to live lives which they value.

That in turn has led to development practitioners paying more attention to the importance of strengthening institutions and advancing democratic governance, including through efforts to expand the rule of law and the legal empowerment of the poor.

Development actors also increasingly engage directly to empower civil society groups and individuals to exercise their rights and participate in the formulation of policy. UNDP supports civil society groups, including women’s and youth organisations and other non-state actors, as vital stakeholders in shaping national agendas and as partners in development. National consultation processes on transitional justice are now a common, although not a universal, starting point.

Transitional justice has moved discernibly in the same direction, with its focus on the participation of victims, and on victim-centered mechanisms, such as reparations, which provide redress well beyond material compensation. Because of the disproportionate and different impact of human rights abuses on women, it is especially important to ensure that victim-centred approaches can have a transformational impact on women’s lives.

Transitional justice and development actors increasingly work together to address the root causes of conflict and violence, which often lie in economic, social, and cultural exclusion, and in discrimination and injustice.

UNDP supports countries to engage with UN human rights mechanisms and develop domestic institutions which can promote and protect human rights and achieve reconciliation. In Kenya, for example, UNDP is engaged with the Truth, Justice and Reconciliation Commission to help it deliver on its mandate.

Capacity development of institutions and national actors is critical in making transitional justice mechanisms sustainable and effective. In Sierra Leone and the countries of the former Yugoslavia, for example, UNDP has been working to strengthen the capacity of justice systems to tackle crimes related to past violent conflict. We have found that such support, if appropriately designed, can benefit a country’s justice system overall. It may inform the local judiciary about international law and promote its use in domestic practice. In turn, justice sector-wide development support can improve a country’s ability to prosecute crimes against humanity committed by their citizens.

UNDP has also helped countries to strengthen the capacity of informal and traditional means of ending impunity. For example, in Rwanda UNDP supported the Gacaca courts. They will come to a close this year after hearing 1 million cases. Such processes can play an important role in transitional justice. In Uganda and Burkina Faso, customary justice mechanisms have held lower-level perpetrators accountable, and helped to facilitate their reintegration into society.

National ownership of the transitional justice process is indispensible, but it can also be highly contested. On the one hand, to have a transformative impact, the process of facing past atrocities must be initiated and driven locally, with a role for authorities and for victims. Transitional justice efforts may not succeed if they are led by or appear to be led by the international community.

On the other hand, the nature of transitional justice strikes so deeply at the core of power and social dynamics in countries that an impartial assessment of the history of gross human rights abuses and of the roles of those responsible can be very difficult to achieve. Development actors and others thus need to play sensitive and diverse roles in many transitional justice processes. The International Criminal Court now features in the dialogue in countries facing the legacies of large-scale human rights abuses. The dynamics and politics around the involvement of such international actors can be challenging.

The context of the Arab States uprisings

In a number of the Arab States over the past year, millions of people have braved bullets, dodged batons, and come out onto the streets to express their deep desire for dignity, opportunity, and the upholding of their human rights. They have called for a meaningful say in decision-making and an end to corruption, abuse, and repression.

To meet the expectations of those who demanded change and to be sustainable, the transition processes and the reckoning with the past in the region must be driven and led by national actors.

Leadership and engaged citizens in the countries undergoing transitions, despite their differences, widely recognize that dealing with the legacy of grave human rights violations is critical for making a full transition from the old regimes to the new. That has opened windows of opportunity for transitional justice processes to be established.

The interest in regional transitional justice events held by UNDP and the ICTJ in Cairo recently suggests that information about transitional justice processes is in high demand. I am told that these events have been useful in supporting countries to identify local expertise and options on ways to proceed.  

Fear, however, can arise among legal professionals, human rights activists, and civil society that truth-seeking methods might enable perpetrators of abuse to escape accountability, while meaningful legal accountability and security and justice sector reform can arouse suspicion and outright opposition - including from authorities compromised by past practice.

A widely owned process of transformational justice will require the sustained commitment of leaders, as well as the inclusion of civil society and the victims of past repression. In Tunisia, UNDP is supporting the efforts of the Ministry of Justice to identify and pursue options for transitional justice, including by facilitating engagement with civil society and bringing together relevant units within Tunisia’s new government.

Attention must be focused on what it will take to deal with past violations systematically and constructively – balancing the needs for justice, for reconciliation, and for assurance that human rights abuses will not be repeated. Establishing and empowering a network of champions, including victims, opinion makers, civil society groups, and others can be a way forward.

An imperative for countries probing past wrong doing is to boost capacity rapidly to investigate crimes and abuses, including corruption. Where gaps appear between the expectations of effective prosecution and a limited capacity to deliver, that hurts efforts to engender trust in state institutions and the rule of law.

Transitional justice processes in the Arab States also provide opportunities for the region to examine and redress the broader injustices underlying the uprisings. For example, a legacy of exclusion and of discrimination against marginalised groups, including women and young people, could be addressed. Prospective solutions would require the support of national actors and the collaboration of development and transitional justice actors.

 Getting to transformative justice: An agenda

The convergence of the work of transitional justice and development has expanded the opportunities to advance the practice of each. We can see the way to more integrated approaches to development and transitional justice, which will be beneficial to people in countries endeavouring to recover from past trauma, and will be transformative.

There is, as I have emphasised, a role for development actors in supporting national transitional justice processes, and in grounding them in the longer term development agenda.

There is also room for transitional justice scholars and practitioners to embrace development approaches and goals. To realize this potential, on-going dialogue is needed among development, human rights, and transitional justice actors about the mutually supportive roles each can play. I suggest some areas for that:

1. On the development side, we can provide platforms for government, civil society, and other stakeholders to build trust through multi-stakeholder policy dialogue. For example, in Guatemala, UNDP’s justice and security programme has created a platform for victims’ groups, national justice and security actors, forensic experts, and national archivists to come together to discuss how to take transitional justice forward.

2. The development community is also well placed to provide capacity development support to national actors and to empower reform constituencies to lead and implement transitional justice processes. Traditional or indigenous mechanisms could also be more widely employed for justice, peace, and reconciliation efforts.

Increasingly development actors should also make the link between supporting access to justice for conflict-related crimes with a systematic effort to drive reform in the justice and security sectors. Collaboration with the transitional justice community will be important in this area, as its practitioners are well placed to contribute to institutional development, and its scholars can help expand the conceptual and knowledge base of the range of approaches.  

3. There is much that both communities can do to ensure that reparations and gender equality are linked to on-going development initiatives. Ensuring that women’s empowerment is at the core of our programming can help to reach the goal of transformational justice. 

For example, development programmes in economic recovery, legal empowerment, and other support programmes provide opportunities to leverage from and maximize the benefit from reparations for women’s empowerment. That could be achieved through micro-finance, the generation of jobs and livelihoods, land restitution, and access to education, health care, legal aid, and other services.

4. We can also work together to address the root causes of economic, social, and cultural rights violations, which transitional justice mechanisms are increasingly uncovering. This can help guide us on targeting development policies and programmes. For example, the recommendations of truth commissions can inform development programming.

5.We can also do more to make the best use of the resources available to simultaneously advance development and transitional justice initiatives. International development-related funding can be used to advance transitional justice programmes, such as reparations. In turn, international justice-related funding can increasingly be made available to support efforts to develop the capacity of national justice institutions.    

6.   Together the UN and UNDP in particular and the transitional justice community can better integrate and co-ordinate our efforts through joined up strategic planning. Transitional justice programmes and results can be introduced into long-term strategic planning frameworks, including through UN Development Assistance Frameworks, and broad national development and peacebuilding strategies, Post-Conflict Needs Assessments and the support given through the UN’s Peacebuilding Fund. UNDP can help by ensuring that its programmes are developed to advance justice, security, and development simultaneously.

7. Finally, as work is done to define the international development agenda beyond the 2015 target date for the Millennium Development Goals, we must ensure that sufficient attention is given to the convergence between development and justice broadly and between transitional justice and development specifically. This audience is well placed to continue to advocate for transitional justice with transformative outcomes. With sustained support, policy development, and increased research and advocacy, the opportunity is there for UN Member States and the international community to fully embrace transitional justice as integral to development.

UNDP looks forward to working with transitional justice actors to challenge our disciplines to be flexible and increasingly open to innovative and new ways of working together, taking some of these specific suggestions forward.

Reaching transformative justice which delivers sustained improvements in the lives of people is worth our concerted and persistent efforts.  The words of Martin Luther King again capture our mission: “Injustice anywhere is a threat to justice everywhere. We are all caught in an inescapable network of mutuality - whatever affects one directly affects us all indirectly.”

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