Last Thursday, 7 February 2012, a group of students, experts, and professionals gathered in Dublin to discuss the role of International Humanitarian Law (IHL) in Transitional Justice processes. The discussion was facilitated by Dr James Gallen, Dublin City University whose current research focus concerns the implementation of policy coherence in international assistance to transitions. James led the participants through the four pillars of transitional justice, (Truth, Justice, Reparations, and Institutional Reform) and discussion ensued as to the role of IHL in each of these as well as the more nebulous concept of reconciliation which can be seen as both the end goal of transitional justice as well as a process in and of itself.
It was noted that transitional justice has a much broader scope than IHL and involves both judicial and non-judicial mechanisms. It also may be of importance in situations in which IHL did not apply or as is often the case, the application of IHL is controversial in application. This is especially relevant in conflicts where it is unclear if the threshold of violence has been reached that would allow the international community to categorise a situation as a non-international armed conflict rather than internal disturbances or terrorist activity.
Nonetheless, various provisions within IHL are of importance when the fighting ceases and the transitional justice process commences. For example, during a conflict it is required under IHL to keep records of the dead and captured. This is hugely useful to families and the search for truth.
Within the ‘Justice’ pillar there is a marked overlap between IHL, international criminal law (ICL) and transitional justice. Over the past number of years a mutually supporting relationship between IHL and ICL has seen a gradual merger of the use of language for offences such as ‘grave breaches’; ‘war crimes’ and ‘crimes against humanity’. However, while many believe that each and every crime should be prosecuted, in a transitional justice setting this is often not practical due to lack of evidence, lack of resources or potential negative implications for peace and security. This sparked quite a lot of debate among participants especially with regard to the subtle differences between amnesties and immunity. The Rome Statute of the International Criminal Court (ICC) makes amnesties virtually impossible. Several participants however speculated that in some cases not having amnesties as a bargaining chip may prolong conflicts and there is no clear solution to address this problem internationally.
Reparations, another pillar of transitional justice are conceptualised as much broader in scope than mere monetary awards. A reparations programme can include an official apology from high ranking perpetrators and/or the State as appropriate, memorials to commemorate victims especially the dead, preferential access to services for victims, and pensions as well as single cash payments. Within IHL there are no direct provisions for reparations however this does represent a growing area of interest among practitioners and has seen some development in soft law.
IHL, which essentially promotes the idea that even wars have limits, provides transitional justice with a number of appropriate standards for security reform. Throughout the engaging discussion, two key ideas emerged. Firstly that adherence to the rules of IHL during a conflict, will aid the transitional justice process. Secondly in order to assist with transitional justice or advocate for compliance with IHL there needs to be a huge amount of understanding of a society and the actors involved from a range of perspectives.
If you would like more information about our IHL Dissemination Activities or how to register for future IHL Roundtable discussions please visit www.redcross.ie or email me on firstname.lastname@example.org