The passage of the Victims’ Reparations Bill by the Gambian National Assembly on November 1, 2023, is in every sense a positive step towards ensuring justice for victims of ex-president, Yahya Jammeh’s cruel dictatorship. His rule was infamously characterized by horrific abuses and human rights violations. Between July 1994 and January 2017, Gambians experienced a violent repression of their human rights and liberties. The egregiousness of the violence is better imagined. Victims were denied medical care, tortured, raped, forcefully disappeared, murdered, and even dismembered.
Since Jammeh’s exile in January 2017, Gambians have bid farewell to his dictatorship. However, the legacy of the horrors he inflicted remains with victims who continue to suffer and live with the consequences of those dark times.
It is not difficult to immediately see how the advent of the Victims Reparations Bill has the potential to secure justice for victims who continue to live with the scars of injustice after surviving Jammeh’s 22-year spell. Rightly so, the law has been greeted with a lot of jubilation and hope, but while this may seem like the pinnacle of the struggle for justice, it is indeed, in some sense, just the beginning.
One of the major challenges facing transitional justice in Africa has been the lack of political will to pursue justice. There are several examples across the continent where political leaders have; failed to implement the recommendations of truth commissions, disregarded the terms of peace agreements, interfered with the decisions of bodies they themselves had constituted, and failed to implement necessary transitional justice initiatives and mechanisms. Gambia can easily go down this path if advocacy is not sustained. The justice-seeking momentum must be maintained and kept high.
While the government of Gambia deserves some commendation for; having set up a truth commission, paying out reparations to some victims, and enacting the Victims Reparations Bill, it is worthy of note that the quest for justice does not and should not end with this. Beyond this newly passed bill, lies the question of implementation.
Moreso, the Gambian Truth Reparations and Reconciliation Commission (TRRC) made 265 recommendations, the majority of whom were accepted by the government. Some of those recommendations include the prosecution of Jammeh and his associates for their crimes. A lot of progress has not been made in that regard and there is increasing doubt about the readiness of the Barrow-led government to commit to judicial remedies for victims of Jammeh’s atrocities. These concerns have grown in the light of a political alliance Barrow has created with a faction of the Alliance for Patriotic Reorientation and Construction (APRC) – Jammeh’s party. There are also members of Jammeh’s party who had contributed to widespread human rights violations in the Barrow-led government. A major test for the government in this regard will be how well it implements the newly passed ‘The Ban from Public Office (TRRC) Bill 2023’ which seeks to ban from public office, public officials recommended by the Truth, Reconciliation and Reparations Commission (TRRC).
Overall, the advent of the victims’ reparations bill is a welcome development. However, it has to be complemented with a plan for speedy implementation and justice-seeking mechanisms. The provision of reparations should not be used as a substitute for criminal justice. While reparations are provided to victims, the government should ensure that those who committed atrocities are brought to book in accordance with the recommendations of the TRRC and the aspirations of victims who are yet to get a sense of justice.
Emmanuel Ayoola is a human rights lawyer and a transitional justice practitioner, he currently works with the Africa Transitional Justice Legacy Fund as a Grant and Programs Officer.
Memorial for victims of National Socialism in Stuttgart, Germany, built in 1970
Retributive justice is a justice paradigm responding to rather than preventing crimes, grounded on the relationship between crime and responsibility and proportional punishment (see Moore, 2009). In turn, restorative justice consists in processes whereby parties to crimes collectively resolve crime consequences, including how to repair the harm inflicted on victims and their communities (see Marshall, 1996). Furthermore, retributive justice and restorative justice interact with transitional justice concerning victims in post-atrocity scenarios. This blogpost briefly discusses how victims’ status is shaped by such interaction (see also Perez-Leon-Acevedo, 2014). This is discussed under two trinomials: victims, restorative justice, and transitional justice; and victims, combined retributive justice/restorative justice, and transitional justice.
Victims, restorative justice, and transitional justice
Restorative principles and processes are a central goal of transitional justice mechanisms tackling atrocities (Hoyle, 2021). Victims are central to transitional justice (Méndez, 2016). Restorative practices, which are present in truth and reconciliation commissions (TRCs) and reparations programmes, enable victims to play central roles and stand better chances to heal relationships between victims, offenders, and their communities.
Since international and hybrid criminal tribunals (ICTs) mainly reflect hegemonic Western punitive criminal justice values focusing primarily on retribution and deterrence and only secondarily on restoration (Drumbl, 2005), TRCs may be more suitable to fulfil restorative justice and better voice victims’ needs and viewpoints. TRCs meaningfully contribute to recognising victims and restoring their dignity. TRCs and traditional restorative mechanisms such as local dispute resolution (ibid.) focused on societal reconciliation, victims, storytelling, and reparations are seemingly better options if the goal is healing individuals and post-atrocity societies (Minow, 1998).
TRCs can focus on victims, facilitating their participation and that of perpetrators and victims’ and perpetrators’ communities. TRCs bring back the conflict to their original actors, enabling officials to grieve with victims (Minow, 1998). By involving all conflict stakeholders, TRCs address victims’ harm. As restorative justice is multidirectional (Aukerman, 2002), TRCs consider that the distinction between victims and perpetrators might sometimes be unclear in atrocity contexts: for example, child soldiers may hold the dual-status of victims and perpetrators. At TRCs, victims provide their testimonies in narrative forms, guaranteeing more inclusive processes for victims and avoiding re-victimization, which contrasts with criminal courts. This promotes national reconciliation and handles impunity collectively (Hayner, 2001).
TRCs can provide platforms for hearing traditionally excluded victims (Ramírez-Barat, 2011). They can enhance victims’ status. At TRCs (e.g., South Africa), victim definitions can be broad. Victims’ dignity, victims’ rights to information and privacy and to have their views and submissions considered have been recognised. TRCs may be better than trials at addressing victims’ fear, trauma, or anger (Zalaquett, 1992).
Nevertheless, some studies have questioned TRCs’ role in healing traumatized victims (Backer, 2004; Shaw 2005). Some TRCs failed in advancing victims’ needs (Brody, 1986). Even concerning well-organized TRCs, not necessarily victims regard truth-seeking mechanisms as options to meet their needs for justice and reparations (Fletcher et al., 2009).
Armenian woman survived from the Genocide tattooed in Arabic captivity. Source: Wikimedia Commons
Reparations programmes can be fundamental regarding victims’ status in transitional justice scenarios. Actually, ‘For some victims reparations are the most tangible manifestation of the efforts of the state to remedy the harms’ (De Greiff, 2006, p.2). Reparations programmes are attractive compared to criminal prosecution because the latter may be perceived as a struggle against perpetrators rather than a victim mechanism.
Reparations programmes constitute appealing options to enhance victims’ roles in transitional justice also vis-à-vis other restorative practices or restorative-oriented mechanisms. Truth-seeking may be only symbolic if tangible outcomes are absent (ibid.). Contextualised in transitional justice scenarios, reparations may also seek to achieve broader goals, namely, transformative and gender justice (Rubio-Marin, 2009; Hoyle and Ullrich, 2014), which should enhance victims’ situation.
However, reparations also present weaknesses in transitional justice contexts since they may be disproportionate to damages, trivializing victims’ suffering (Minow, 1998). Reparations alone are insufficient because victims have diverse interests requiring comprehensive approaches (Fulton, 2014).
Victims, combined retributive justice/restorative justice, and transitional justice
In transitional justice scenarios or mechanisms handling atrocities consequences, retributive justice and restorative justice should not be conflicting but, instead, complementary and mutually reinforcing. Retributive justice and restorative justice are necessary for democracy, the rule of law, and human rights in societies in transition (Villa-Vicencio, 2006). Integrating these justice paradigms should be applied to the relationship between ICTs or national criminal courts and other transitional justice mechanisms as well as within ICTs or national criminal courts. It is reasonable to talk about a ‘restorative side’ of (international) criminal justice (Villa-Vicencio, 2003). Combining retributive justice and restorative justice as the best option for victims in transitional justice contexts is argued below.
First, ICTs may be transitional justice mechanisms in atrocities scenarios. Since transitional justice is a holistic approach including diverse mutually complementary measures (Kritz, 1995), ICTs that strengthen victims’ status arguably implement the transitional justice approach. Reparations at ICTs exemplify transitional reparatory practices that display backward-looking and forward-looking purposes regarding victims and their societies (Teitel, 2000). Inter-American Court of Human Rights’ jurisprudence on victims (e.g., Velásquez-Rodríguez), partially laid transitional justice foundations (ICTJ, 2009), emphasising victim participation in criminal justice and reparations. ICTs have considered and should further consider this. The transitional justice approach seeks to integrate retributive justice and restorative justice. Some transitional justice advocates resist ‘restorative justice’ labels, solely using them when mentioning communities’ resort to customary law and traditional practices (Méndez, 2001). Nevertheless, they assert that transitional justice is victim-centred as victims are central to transitional justice (Aldana, 2006; Zunino, 2019). Researchers and practitioners have become aware of the International Criminal Court (ICC)’s function as one among diverse transitional justice mechanisms (UN Secretary-General, 2004; Okafor and U. Ngwaba, 2015). Hence, victim participation and reparations are intrinsically related to the ICC as a transitional justice mechanism (Méndez, 2016; Aldana, 2006). Although international criminal justice is not restorative justice, it can employ restorative practices through (primarily) reparations (Hoyle, 2012).
Second, there have been important international law developments towards combining retributive justice and restorative justice as the best alternative for victims in transitional justice. The UN Reparations Principles, which primarily deal with restorative justice, include satisfaction as a form of reparation (Principle 22(f)), and within satisfaction: judicial sanctions, which chiefly have to do with retributive justice. Under human rights law (e.g., Victims’ Declaration; UN Reparations Principles 11-15) and scholarship (Bassiouni, 2006; Ochoa, 2013), victims’ rights in criminal justice include: protection from re-traumatization; access to justice; be heard through active participation, including victims’ procedural rights to express their own views and concerns; and claim reparations.
Memorial for victims of National Socialism in Stuttgart, Germany, built in 1970. The wreaths commemorate victims of Kemalism. Author: Ikar.us. Source: Wikimedia Commons.
The ICC exemplifies the said synergy since its predominant retributive and deterrent goals incorporate restorative practices, contrasting with previous ICTs. The ICC Statute mentions both retributive and deterrent goals, and victims (ICC Statute, Preamble), underlying adapted restorative justice elements in the ICC Statute. Most ICTs created after the ICC have incorporated victims as important actors, being consistent with restorative practices. In principle, retributive justice and restorative justice are not mutually exclusive (Walgrave, 2008). Restorative practices may be adapted and incorporated into ICTs’ laws or practices: victim participation and reparations may be included in international criminal justice. This justifies that ICTs can adapt and incorporate restorative justice elements into their mandates. As adjusted and adapted to ICTs (Garbett, 2017), restorative justice has been a major force to strengthen victims’ roles at ICTs through victim participation and reparations (Moffett, 2014; McGonigle, 2011). This illustrates the influence of restorative justice elements at the ICC.
Since restorative justice regards victims as subjects rather than objects (Pena and Carayon, 2013), victims hold enhanced procedural roles and procedural rights at the ICC and other ICTs (McGonigle, 2011). This is consistent with that transitional justice processes must acknowledge victims’ needs (Robins, 2012), counteracting critiques of earlier ICTs that precluded victims from properly expressing themselves (Pena and Carayon, 2013). In societies transitioning from mass atrocities, victims’ active roles in (international), criminal justice may illustrate restorative justice practices, guided by goals concerning victims (UNODC, 2020). Yet, studies on victims’ perceptions reveal a mixed picture of how victims’ roles are implemented at the ICC (Cody, 2017; Cody et al., 2015). Partial mishandling of these roles has also conflicted with defence rights and ICCs’ efficiency (see Safferling and Petrossian, 2021).
ICTs are still predominantly retributive. Even ICTs such as the ICC where victims’ status is more robust are not restorative justice mechanisms, but they incorporate and adapt some restorative practices/elements and can be partially considered victim-oriented justice mechanisms. ICTs may integrate into their goals, victim-friendly/victim-oriented measures but without replacing their core mandate. These measures would provide victims with participatory rights, impacting criminal justice but without changing its rationale. This is different from pure restorative justice, which might question that rationale (Cavadino and Dignan, 1996). The victim rights movement inspired victim empowerment at the ICC (Moffett, 2014). Accordingly, victims participate in victim-oriented or restorative justice-oriented mechanisms at the ICC and other ICTs to influence criminal proceedings for victims’ interests by being participants or civil parties and claiming reparations. Nevertheless, unlike proper restorative justice mechanisms, ICTs involve judicial adjudication.
Third, balanced interactions between restorative justice-oriented mechanisms, especially TRCs, and retributive and deterrent justice mechanisms, e.g., ICTs, have been feasible. Although TRCs can be alternatives to prosecutions, TRCs and ICTs can work simultaneously through some coordination (Totten, 2009). The co-existing Sierra Leone TRC and Special Court for Sierra Leone overall had synergetic effects (Schabas, 2004; Cockayne, 2005). The latter recognized TRCs’ importance for victims and the mutually complementary mandates of ICTs and TRCs (Norman).
The necessary convergence of TRCs and criminal courts in transitional justice scenarios involves that whereas TRCs offer the advantage of listening to victims not as witnesses in a piecemeal fashion, the judicial ‘truth’ holds ‘a “tested” quality that makes it all the more persuasive’ (Méndez, 1997). The complementary relationship between TRCs and ICTs or national criminal courts ‘may have a synergistic effect on the search for post-conflict justice as part of the struggle against impunity’ (Schabas, 2004). The mutually complementary functions of restorative-oriented mechanisms and retributive or deterrent mechanisms stand more chances to enhance victims’ status in transitional justice contexts. This can be seen through ‘lenses of recognition’ as these mechanisms working together can ‘institutionalize the recognition of individuals with equal rights’ (De Greiff, 2006b). Victims’ perceptions about the ICC confirm the need for combining mechanisms, as victims consider that prosecution is important but not the sole accountability mechanism, and that the ICC is both a justice and peace-making mechanism (Cody et al., 2015). Yet, ICC’s justice goals are still unclear (Ullrich, 2016).
Fourth, the victims’ right to truth reveals some similarities or convergences between different mechanisms, e.g., TRCs and criminal courts. Although ICC instruments do not include victims’ right to truth, ICC’s jurisprudence has regarded it as a victim participants’ central interest at the ICC (Lubanga). This is coherent with human rights bodies’ case-law recognizing the right to truth as the victims’ right to access to justice and a remedy (Cyprus v. Turkey; Nech v. Guatemala). UN Reparations Principles 22(b) and 24 reflect this. Individual and collective dimensions of the right to truth are recognised (UN-OHCHR, 2006).
The victims’ right to truth can expand ICTs’ approaches to victims’ status. Criminal proceedings have upheld the victims’ right to truth (UN-OHCHR, 2007), which connects with victims’ roles in criminal justice (UN-Commission on Human Rights, 2005). This right can be implemented through several transitional justice mechanisms including ICTs, national criminal courts, and TRCs (ibid.). If trials are used for what they are intended for (Méndez, 1997), they can contribute to the truth (Fletcher and Weinstein, 2002). Accordingly, trials should not become places for ‘historic’ judgments or settlement of long-term socio-political conflicts, as this produces an unsatisfactory ‘truth’ (Méndez, 1997). Actually, historical truth has been sometimes ‘presented as a by-product of the international criminal proceedings rather than as an objective’ (Schabas, 2012, p.100).
Conclusion
Restorative justice should further be adapted and incorporated into transitional justice mechanisms, to enhance victims’ roles. Victims’ roles in transitional justice depend on each transitional justice mechanism’s mandate: more retributive- or restorative-oriented. However, the interplay among adapted restorative justice, retributive justice/restorative justice combinations, and transitional justice should mean more meaningful victims’ roles and rights.
Juan-Pablo Perez-Leon-Acevedo
Researcher and lecturer Jyvaskyla University (Finland); Affiliated researcher, PluriCourts, Oslo University
References
* Aldana, R., ‘A Victim-Centered Reflection on Truth and Reconciliation Commissions and Prosecutions as a Response to Mass Atrocities’ (2006) 5 J. Human Rights 107-126.
* Aukerman, M., ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal 39.
* Backer, D., ‘Exit, Voice and Loyalty in Transitional Justice Processes’, 2 September 2004.
* Bassiouni, C., ‘International Recognition of Victims’ Rights’ (2006) 6 Human Rights Law Review 203-279.
* Brody, R., ‘Impunity continues in Haiti’ (Report on the Americas, Sep.-Oct. 1986).
* Cavadino, M., and Dignan, J., ‘Toward a framework for conceptualizing and evaluating models of criminal justice from a victim’s perspective’ (1996) 4 International Review of Criminology 153.
* Cody, S., ‘Procedural Justice, Legitimacy, and Victim Participation in Uganda’, in N. Hayashi and C. Bailliet (eds), The Legitimacy of International Criminal Tribunals (2017) 376-398.
* Cody, S. et al. ‘The Victims’ Court? (2015).
* De Greiff, P., ‘Introduction. Repairing the Past’, in P. de Greiff (ed), The Handbook of Reparations (2006).
* Drumbl, M., ‘Collective Violence and Individual Punishment’ (2005) 99 Northwestern U. Law Review 539.
* European Court of Human Rights, Cyprus v. Turkey, Judgment, 10 May 2001.
* Fletcher, L. and Weinstein, H., ‘Violence and Social Repair’ (2002) 24 Human Rights Quarterly 573.
* Fletcher, L. et al., ‘Context, Timing and the Dynamics of Transitional Justice’ (2009) 31 Human Rights Quarterly 163.
* Fulton, S., ‘Redress for Enforced Disappearance’ (2014) 12 Journal of International Criminal Justice 769-786.
* Garbett, C., ‘The International Criminal Court and Restorative Justice’ (2017) 5 Restorative Justice 198-220.
* Hayner, P., Unspeakable Truths: Confronting State Terror and Atrocity (2001).
* Hoyle, C., ‘The Case for Restorative Justice’, in C. Cunneen and C. Hoyle, Debating Restorative Justice (2010).
* Hoyle, C., ‘Can International Justice be Restorative Justice? The Role of Reparations’, in N. Palmer et al. (eds), Critical Perspectives in Transitional Justice (2012).
* Hoyle, C. and Ullrich, L., ‘New Court, New Justice? The Evolution of “Justice for Victims” at Domestic Courts and at the International Criminal Court’ (2014) 12 Journal of International Criminal Justice 681.
* International Center for Transitional Justice (ICTJ), ‘What is Transitional justice?’ (2009).
* Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras, Judgment, 29 July 1988.
* Inter-American Court of Human Rights, Nech v. Guatemala, Judgment, 25 May 2010.
* International Criminal Court, Lubanga (ICC-01/04-01/06-1119), Decision on victims’ participation, Trial Chamber I, 18 January 2008.
* Kritz, N., ‘The Dilemmas of Transitional Justice’, in N. Kritz (ed), Transitional Justice, vol I (1995).
* Marshall, T., ‘The Evolution of Restorative Justice in Britain’ (1996) 4 European Journal on Criminal Policy Research 21.
* McGonigle, B., Procedural Justice? Victim Participation in International Criminal Proceedings (2011).
* Méndez, J., ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly 255
* Méndez, J., ‘National Reconciliation, Transnational Justice, and the International Criminal Court’ (2001) 15 Ethics & International Affairs 25.
* Méndez, J., ‘Victims as Protagonists in Transitional Justice’ (2016) 10 Int. J. of Transitional Justice 1-5.
* Minow, M., Between Vengeance and Forgiveness: A Facing History After Genocide and Mass Violence (1998).
* Moffett, L., Justice for Victims before the International Criminal Court (2014).
* Moore, M., ‘The Moral Worth of Retribution’, in A. von Hirsch et al. (eds), Principled Sentencing: Readings on Theory and Policy (3rd edn,, 2009).
* Ochoa, J., The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations (2013).
* Okafor, O. and Ngwaba, U., ‘The International Criminal Court as a “Transitional Justice” Mechanism in Africa’ (2015) 9 Int. J. of Transitional Justice 90-108.
* Pena, M., and Carayon, G., ‘Is the ICC Making the Most of Victim Participation?’ (2013) 7 IJTJ 518,
* Perez-Leon-Acevedo, J.-P., Victims’ Status at International and Hybrid Criminal Courts. Victims’ Status as Witnesses, Victim Participants/Civil Parties and Reparations Claimants (2014).
* Ramírez-Barat, C., Making an Impact (2011).
* Robins, S., ‘Challenging the Therapeutic Ethic: A Victim-Centred Evaluation of Transitional Justice Process in Timor Leste’ (2012) 6 IJTJ 83-105.
* Rubio-Marin, R., The Gender of Reparations (2009) 383.
* Safferling, C. and Petrossian, G., Victims Before the International Criminal Court (2021).
* Schabas, W., ‘A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ (2004) 15 Criminal Law Forum 3.
* Schabas, W., Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012).
* Shaw, R., ‘Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone’ (2005).
* Special Court for Sierra Leone, Norman (SCSL-2003-08-PT), Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, Trial Chamber, 29 October 2003.
* Totten, C., ‘The International Criminal Court and Truth Commissions’ (2009) 7 Northwestern UJIHR 1.
* Ullrich, L., ‘Beyond the “Global-Local Divide”: Local Intermediaries, Victims and the Justice Contestations of the International Criminal Court’ (2016) 14 JICJ 543.
* UN-Commission on Human Rights, ‘Updated Set of principles for the protection and promotion of human rights through action to combat impunity’, E/CN.4/2005/102/Add.1, 8 February 2005.
* UN-Commission on Human Rights, ‘Right to Truth’, E/CN.4/RES/2005/66, 20 April 2005.
* UN-OHCHR, ‘Study on the Right to Truth’, E/CN.4/2006/91, 8 February 2006.
* UN-OHCHR, ‘Implementation of General Assembly Resolution 60/251’, A/HRC/5/7, 7 June 2007.
* UN General Assembly, Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34/Annex, 29 November 1985.
* UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 16 Dec. 2005.
* UN Office on Drugs and Crimes (UNODC), Handbook on Restorative Justice Programmes (2020).
* UN Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General, UN Doc. S/2004/616, 23 August 2004.
* Villa-Vicencio, C., ‘Restorative Justice. Ambiguities and Limitations of a Theory’, in C. Villa-Vicencio and E. Doxtader (eds), The Provocations of Amnesty (2003).
* Villa-Vicencio, C., ‘Transitional Justice, Restoration and Prosecution’, in D. Sullivan and L. Tifft (eds), Handbook of Restorative Justice (2006) 390.
Brussels has become the new battleground for combating impunity for Iranian officials; sadly though, the Belgian government is not on the right side.
In March, the government of Belgium quietly signed an agreement with Iran for the transfer of convicted prisoners. While there aren’t many known Iranian nationals in prison in Belgium who would prefer to serve their sentences in an Iranian jail, there is one exception.
Assadollah Assadi, Third Secretary of Iran’s embassy in Austria, is currently serving a 20-year prison sentence in a Belgian jail for attempting to bomb the 2018 annual Free Iran convention in Paris. That event, organised by the National Council of Resistance of Iran (NCRI), was attended by tens of thousands of opponents of the Iranian theocracy and hundreds of international dignitaries including former US House Speaker Newt Gingrich, former Canadian Prime Minister Stephen Harper, former French Foreign Ministers Bernard Kouchner and Philippe Douste-Blazy, and dozens of Members of Parliament, including five from the UK. The keynote speaker was NCRI President-elect Maryam Rajavi.
Source: ncr-iran.org
All of them were potential victims of the bomb plot orchestrated by Assadi on behalf of the Iranian state. In the leadup to the event, Assadi flew in an Austrian Airlines passenger flight from Tehran to Vienna, with a 500-gram TATP explosive device in his diplomatic suitcase. He then handed over the explosives to two would-be bombers at a Pizza Hut meeting in Luxembourg. That pair, based in Belgium, were to travel to Paris posing as NCRI supporters to set off an explosion that if successful would have resulted in mass casualties. Little did Assadi and his cohorts know that they were under surveillance the whole time.
Police moved in and arrested the terrorist pair and a fourth accomplice on the day of the event, while Assadi was nabbed by German police the next day just before he could cross into Austria. Had he crossed over, he would have enjoyed diplomatic immunity, but since Germany was not his country of posting, and since he claimed he was returning from a family vacation in Luxembourg, his diplomatic immunity did not apply. (Diplomats do enjoy immunity while transiting third countries, but only when they are travelling back or forth between their own country and the state where they are posted. They don’t qualify for immunity while on vacation in third countries.)
All four suspects were eventually extradited to Belgium and later found guilty by a Belgian court. The Belgian Judiciary handed down a definitive maximum possible sentence to Assadi and stated that he was acting on behalf of the Iranian state.
Recently, however Iran has stepped up its strategy of hostage diplomacy. It has in recent times arrested a number of European citizens and dual nationals on spurious charges. Accordingly, Iran’s state media have stated plainly that these individuals would only be freed if Assadi is released back to Iran. A lenient approach in this regard would undermine the rule of law in Europe and could also lead to more acts of terrorism.
Source: www.bbc.com
The Belgian government’s secret treaty with Iran, signed on 11 March 2022, would allow Assadi to serve the remainder of his 20-year sentence in Iran.
Most worryingly, Article 13 of the treaty states: “Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.”
That article would effectively allow the Iranian government to grant pardon to Assadi the moment he steps foot in Iran.
Last week, 68 distinguished current and former EU and UN judges and human rights and legal experts sent an open letter to Belgian Prime Minister Alexander De Croo decrying the scandalous deal and urging his government not to encourage impunity for Iran’s officials by freeing its convicted diplomat.
Signatories to the open letter from 25 countries, among them 17 European countries, included 18 former senior United Nations officials including a former Under-Secretary-General for Legal Affairs and the Legal Counsel of the UN, a former Chairman of the UN International Law Commission, a former President of the UN Special Court for Sierra Leone, and four former UN Special Rapporteurs. Other distinguished signatories included a current Special Adviser to the Prosecutor of the International Criminal Court (ICC), a former President of the European Commission of Human Rights, and a former Council of Europe Commissioner for Human Rights and former Secretary General of Amnesty International.
Distinguished legal experts supporting the letter included an Ad hoc Judge of the European Court of Human Rights (ECHR), three former Judges of the General Court of the European Union, a former President of the OSCE Court of Conciliation and Arbitration, a former President of the Constitutional Tribunal of the Republic of Poland, and a former President of the Constitutional Court of Andorra. Other distinguished signatories included a former Foreign Minister of Canada, a former Attorney General of Portugal, France’s former Human Rights Ambassador, and a former US Ambassador to the UN Commission on Human Rights.
The open letter stated: “Releasing Assadollah Assadi back to Iran would only fuel the culture of impunity that exists for Iran’s officials.”
“Allowing Assadi to serve the remainder of his 20-year sentence in Iran, the state which was responsible for the attempted terrorist bombing, would make a mockery of the rule of law and foster further impunity for the Iranian government and its officials involved in terrorism and crimes against humanity.”
“Transferring Assadi to Iran would effectively free him from serving his sentence and would set a dangerous precedent and seriously weaken the rule of law in Europe. It would encourage more Iranian terrorism on EU soil and reassure Iranian officials that they could evade responsibility for major international crimes. Belgium would bear heavy responsibility in this regard.”
“Following a complaint filed by the NCRI and several international dignitaries, who were the potential victims of the terrorist plot, the Brussels Court of Appeal issued a temporary ruling blocking the transfer of Assadi to Iran.”
The international experts reminded Prime Minister de Croo that UN Security Council resolution 1373, which was adopted after the 9/11 terrorist attacks and which is binding on all UN Member States, decides that all States shall: “Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.”
“We strongly urge the government of Belgium to resist Iran’s hostage diplomacy tactics. Rather than helping to foster impunity in Iran by releasing a convicted terrorist, the Belgian government should unequivocally declare that Assadollah Assadi will not be released back to Iran and that he must serve the remainder of his sentence in Belgium,” the open letter added.
Their message was reinforced this week in a separate joint appeal by 21 former European prime ministers and ministers to Prime Minister De Croo, urging his government not to free Assadi.
Source: mek-iran.com
It would be delusional to believe that Assadi would carry out the remainder of his sentence in Iran and “make a mockery of the rule of law in Europe,” the ministers stated.
Their letter ended with a final plea in which the ministers wrote that “at a minimum, Brussels must make it absolutely clear that the treaty will not apply to terrorists” and that Assadi must stay in Belgium for the remainder of his sentence or for “the sake of the common safety and security of all European nations.”
It’s hard to fathom why in the battle against impunity for Iranian officials, the government of Belgium should be on the side of the guilty party, but now more than ever all advocates of the rule of law should speak up to ensure Belgium does not violate its obligations to international law to placate the world’s chief state sponsor of terror.
Hanif Jazayeri is Secretary of London-based NGO Justice for the Victims of the 1988 Massacre in Iran (JVMI) and a news editor. His Twitter handle is @HanifJazayeri.
In the first post of this blog, Fabián Raimondo questions whether ‘restorative sanctions’ granted by States in transitional justice (TJ) situations are compatible with the international obligation to punish perpetrators of gross human rights violations. The concept of restorative sanction is the product of combining two different criminal justice paradigms: conventional/traditional criminal justice (CCJ) and restorative justice (RJ). While the former can be summarized as trial and punishment for the offender, the latter is about the offender taking responsibility before victims and the community via the reparation of the harm provoked by the crime. Colombia’s 2016 Peace Agreement is a recent example of this kind of ‘hybrid’ system mixing CCJ and RJ. Following a CCJ process in which victims’ voices are enhanced, high-level perpetrators that acknowledge responsibility and contribute to truth can acquit their responsibility through restorative sanctions’ meaning non-carceral and reduced sentences with a reparative component.
These mechanisms have an increasing role in TJ situations in view of their greater potential to contribute to TJ aims, including truth, reparation, peace and reconciliation, while at the same time advancing criminal justice. Some international bodies showed receptiveness to hybrid mechanisms (AU Transitional Justice Policy; ACHPR Study on TJ and Human and People Rights; ICC OTP, see Here). However, the still majoritarian position in IHRL seems to reject them. In his recent report on accountability, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (UNSR) included the Colombian system under the heading of de jure impunity (Report, 42-44). He posited that RJ mechanisms do not fulfil the duty to punish when they do not impose terms of imprisonment proportionate to the gravity of the criminal offence (Report, 24-25). This proportionality principle is a keystone of CCJ.
Here, I claim that when it comes to assessing hybrid mechanisms, the scope of the duty to punish should be determined not only with CCJ principles but also with RJ theory. However, I will show that this is not a straightforward exercise. Given their structural differences, RJ and CCJ cannot be easily combined.
RJ and CCJ: two paradigms of justice
CCJ and RJ are two ways of dealing with crime. CCJ is grounded on the idea that crime is the violation of a fundamental norm that legitimate the exercise of the State’s right to punish. A State-driven process is then triggered to verify the commission of the crime and determine the consequent punishment. Different theories were elaborated to justify punishment (e.g. retribution; prevention), but in all cases, justice is about inflicting pain on the offender. Criminal responsibility in CCJ is only passive, meaning it is retrospective and focused on determining who committed the offence (Braithwaite 2006; Braithwaite and Roche 2001).
RJ proposes a very different idea of criminal justice. This is not casual. RJ fed on a diversity of critical movements that sharply identified the problems of the conventional system in the 1970s. Seminal writings proposed RJ to replace the conventional response to crime. Although the concept remains open to different and sometimes diverging interpretations, the common ground is that crime is defined as an interpersonal conflict harming individuals and relationships. Offenders must make themselves accountable before the individuals affected. Justice, on this understanding, is essentially a horizontal and voluntary process in which victims, perpetrators and the affected community decide how to deal with the conflict. Reparation of the harm is the main aim of the process.
RJ adds a new dimension to the idea of criminal responsibility. Passive responsibility is still relevant. It is a precondition of RJ, upon which a perpetrator’s willingness to acknowledge the wrong is predicated. However, passive responsibility is not acquitted through punishment but by taking active responsibility. Active responsibility is forward-looking and refers to the reaction expected from the offender to put right the harm. Offenders are expected to undertake necessary actions to repair and restore according to the decision taken in the restorative process. In this way, RJ seeks to achieve reintegration (Braithwaite 2006; Braithwaite and Roche 2001).
Practically, restorative justice takes different forms, such as peace circles, conferencing and mediation (See Here; for examples in TJ contexts, see Here and Here).
A gacaca court in session in Ruhango, Rwanda. Credit: Samuel Gasana
RJ and CCJ: two sets of standards
The fundamental differences between CCJ and RJ mean that different standards govern their functioning.
CCJ standards such as fair trial and due process, as well as the prohibition of cruel, inhuman, and degrading punishment, are universally recognized in IHRL (UDHR, Arts. 3, 5 and 9; ICCPR, arts. 9, 14, 15 and 7; ACHR, arts. 8, 25 and 5; AChHPR, art. 6, 7 and 5; ECHR, arts. 5, 6, 7 and 3). The proportionality principle is the rule to fix the maximum amount of punishment allowed. Following the UNSR interpretation, the rule also establishes a minimum that could not be lowered (Report, 24). Proportionality calibrates punishment to the seriousness of the crime, which is defined differently depending on the theory of punishment endorsed. Following the IHRL case law, which seems in line with retributive views, the seriousness of the crime refers to the ‘gravity’ or ‘nature’ and the degree of participation and culpability of the accused (Report, 24). The gravity is based on the harm provoked, defined in the abstract. Under this logic, offences of the same type must receive the same punishment. The perpetrators’ reaction after the crime is not a central factor in fixing the penalty because it does not change the deserved punishment.
Specific rules on RJ cannot be found in IHRL treaties, most of which were adopted before the global success of RJ during the 1990s and 2000s. The development of soft law documents promoting common principles reflected this expansion (UN Basic Principles on the use of restorative justice programmes in criminal matters (UNBPRJ); the Council of Europe Recommendation CM/Rec(2018)8).
The concern in RJ is not the State’s punitive power but the potential power imbalance among the parties of the conflict (mainly victim and perpetrator). RJ safeguards seek to counteract such imbalance to ensure the voluntariness and inclusivity of the process and agreement (See UNBPRJ); CM/Rec(2018)8). While punishment is a coercive State measure, restorative outcomes must be voluntarily agreed upon and in line with restorative values. Punitive, humiliating or stigmatizing decisions do not contribute to reparation, cannot be considered restorative and therefore should be banned.
Restorative agreements can only contain ‘reasonable and proportionate obligations’ (UNBPRJ, 7) or ‘fair, achievable, and proportionate actions’ (CM/Rec(2018)8, 50). However, the reference to proportionality should not be confused with the CCJ proportionality. RJ proportionality must align with the ideas of active responsibility, reparation of the harm and stakeholder ownership of the process. RJ proportionality would refer to ‘the maximum restorative effort’ that can be expected from the offender (Walgrave 2003). This upper limit does not pretend to reflect a maximum deserved punishment. It seeks to avoid outcomes that are not in line with restorative values.
The maximum effort should not be determined in the abstract and ex-ante for a category of crimes but in concreto. In contrast to CCJ proportionality, perpetrators’ reaction after the crime and the concrete experience of victims appears pivotal elements in defining offenders’ obligations. RJ proportionality neither imposes a minimum quantum of reparative action. The parties are free to agree that dialogue sufficiently satisfies their needs and interests, and ‘tangible outcomes’ are not necessarily needed (CM/Rec(2018)8, 52).
The idea of equal justice, meaning equal reaction for a similar crime, is not a RJ value. RJ does not seek a general crime solution but involves unequal responses to different conflicts and unequal perpetrators’ reactions (Braithwaite 2002). Given that each conflict is different, it is beneficial for the response to be tailored to the case.
Final reflections: is a hybrid standard on duty to punish possible?
As shown, CCJ and RJ do not assess the fairness of their respective outcomes -imprisonment and restorative agreement- with the same tools. If one takes an exclusive CCJ perspective, like the UNSR Report, RJ mechanisms may look like impunity for not imposing a minimum required amount of carceral punishment. RJ may also be accused of not respecting the principle of equality among offenders. This is not to speak about the potential violation of other IHRL, which are not the focus of this post (e.g. requirement of an independent and impartial tribunal). However, from a RJ perspective, a harsh penalty may be seen as an obstacle to justice. It would be ineffective and inappropriate to fight against impunity (understood as the absence of justice) because it does not require perpetrators to acknowledge responsibility before victims and to take reparative actions corresponding to victims’ needs.
Thus, IHRL should admit RJ mechanisms as legitimate ways to fight against impunity because they are based on a fully-fledged theory of justice. As a matter of principle, they should not be exclusively based on Western hegemonic understandings of justice but be flexible to include alternatives. From a practical perspective, IHRL would become obsolete if it does reflect practice. The potential of RJ to complement or be an alternative to CCJ is today globally recognized, at least for common criminality. Indeed, nothing in positive law excludes these options. IHRL courts and bodies considered that the duty to investigate, prosecute and punish was implicitly included in certain rights, such as effective remedy. However, treaties do not generally require a certain type and amount of punishment. From this perspective, it would be better to think about a duty to ensure individual criminal responsibility instead of the very specific duty to investigate, prosecute and punish.
However, hybrid mechanisms further complicate the question as they try to combine the CCJ and RJ. Given their structural differences, the combination of CCJ and RJ is not an easy task. Although RJ and CJ are no longer portrayed in binary and exclusive terms, how their relationship should go is among the main contested issues in the RJ field. Some RJ scholars reject their combination for distorting the paradigm. The idea of restorative sanction would be an aberration, as it touches on a defining feature of RJ. However, hybrid mechanisms could be helpful in situations such as TJ where fully RJ options may not be possible because of the nature of violence and contextual factors (e.g. amount of victims and perpetrators; intervention of a diversity of other actors in different roles; duration of violence; limited time and resources to set the mechanisms). Certain limitations of RJ theory are also clearer in these contexts. For instance, gross human rights violations are not just interpersonal conflicts but are embedded in structures of violence.
Then, to put these two ideas together, compromises are necessary. For instance, in the Colombian case, the Constitutional Court argued the restorative sanctions keep the CCJ ‘retributive’ dimension because they imply a restriction of rights and liberties under strict conditions of supervision during the sanction period (See Here, section 4.1.9). However, this is far from the CCJ minimum penalty that would have corresponded according to CCJ proportionality. RJ gained in the reparative component of the sanction. Still, even if there is a dialogic principle enhancing the voices of the stakeholders, the process is far from being owned by them. A professional tribunal takes the decisions in line with CCJ guarantees.
While CCJ proportionality is inappropriate to assess these processes, applying RJ standards could also be problematic, given that hybrid mechanisms are not fully restorative. Many questions remain open for further discussion. What criteria should we use to assess these mechanisms? What weight should be given to CCJ and RJ parameters? Does it depend on the degree of restorativeness of the mechanism? Is it possible to come up with hybrid standards?
Braithwaite J, ‘Accountability and Responsibility Through Restorative Justice’ in Michael Dowdle (ed), Rethinking Public Accountability (Cambridge University Press 2006)
Braithwaite J and Roche D, ‘Responsibility and Restorative Justice’, Restorative Community Justice: Repairing Harm and Transforming Communities (Anderson Publishing Co 2001)
Walgrave L, ‘Imposing Restoration Instead of Inflicting Pain: Reflections on the Judicial Reaction to Crime’ in Andrew Von Hirsch and others (eds), Restorative justice and criminal justice: competing or reconcilable paradigms? (Hart 2003)
Photos of victims of Iran's 1988 massacre of political prisoners outside the US Congress, August 2021
Last week, after more than nine months and 92 sessions, Stockholm’s District Court in Sweden handed down its landmark judgement and sentenced former Iranian prison official Hamid Noury to life imprisonment for his role in the 1988 massacre of thousands of political prisoners.
Hamid Noury in court
The families of the victims have long sought accountability for Noury and other perpetrators of the mass murder of their loved ones.
Photos of victims of Iran’s 1988 massacre of political prisoners outside the US Congress, August 2021
This long-awaited act of justice, that was made possible through Sweden’s use of the principle of universal jurisdiction, should serve as a guiding precedent to the international community for achieving accountability and justice for crimes against humanity.
Hamid Noury, acting as Deputy Assistant Prosecutor of Gohardasht Prison in 1988, was a junior figure in the massacre. Meanwhile, the most senior Iranian officials involved at the time, including current President Ebrahim Raisi, who in 1988 was a member of the Tehran Death Commission that sent thousands of political prisoners to death, continue to evade responsibility and enjoy impunity.
The massacre took place in the summer of 1988 based on a fatwa by Iran’s then-Supreme Leader Ayatollah Ruhollah Khomeini. His religious decree targeted members of the main opposition group People’s Mojahedin Organisation of Iran (PMOI or MEK).
Three-member commissions known as ‘Death Commissions’ were formed in dozens of prisons across Iran sending political prisoners who refused to denounce the MEK and abandon their beliefs to execution.
Protest Rally, Place des Nations, Geneva,26/02/2019 – Hundreds of Iranian exiles supporters of the Peoples Mojahedin Organization of Iran, carried Iranian flags and banners opposed to the Iranian regime in a rally on Tuesday February, 26,2019 in front of the UN Headquarters in Geneva to protest grave violations of human rights in Iran.
Based on the accounts of survivors and former Iranian officials, some 30,000 political prisoners were executed within the space of a few months. More than 90 percent of the victims were affiliated to the MEK. The rest were mainly members of leftist groups. The victims were buried in secret mass graves.
The perpetrators continue to enjoy impunity.
Since 2016, Justice for the Victims of the 1988 Massacre (JVMI) has confirmed the identities of nearly 100 ‘Death Commission’ members. Many still hold senior positions in the Iranian judiciary or government. They include the current President Ebrahim Raisi.
The failure of the international community, and in particular the UN, to hold the perpetrators to account for more than three decades has fuelled a culture of impunity in Iran.
Till the landmark 14 July 2022 judgement by the Swedish court, the perpetrators of the 1988 massacre have never faced justice. Exercising universal jurisdiction, the Swedish judicial system has now shown the world the good practice in standing against impunity.
Last week, Hossein-Ali Nayyeri, the current Head of the Supreme Disciplinary Court for Judges and former Head of the Tehran Death Commission, broke his silence and voluntarily confessed by defiantly defending the 1988 massacre with total impunity.
Hossein Ali-Nayyeri
Asked about the mass executions of 1988, Nayyeri stated: “In such critical circumstances, what were we to do? We had to hand down verdicts decisively. … In such circumstances, we cannot run the country by offering them hugs and kisses!”
Thanks to the impartiality and independence of the Swedish judicial system, justice and the rule of law have prevailed in the case of Hamid Noury. He was found guilty as charged and sentenced to life imprisonment.
In reaching their judgement to hold Hamid Noury accountable for the part he played in the summary execution of political prisoners in 1988, the Swedish judges relied partly on evidence provided by the laborious work of JVMI, published in two reports in 2017. This evidence has been cited throughout the text of the landmark judgement.
While Noury’s conviction is a welcome step, there’s not a moment to lose to hold other perpetrators accountable.
As recently as May 2022, there have been reports from Iran of the authorities taking steps to destroy mass graves to wipe away evidence of the 1988 massacre.
In January 2022, some 470 current and former UN officials, human rights and legal experts, and international NGOs and academic institutions wrote to the UN Human Rights Council calling for an international inquiry into the 1988 massacre of thousands of political prisoners in Iran. The letter urged the HRC to challenge the impunity enjoyed by Iranian officials by mandating an international investigation into the 1988 mass executions and enforced disappearances.
It’s high time the UN does its part to achieve accountability and justice over the 1988 massacre. The Office of the UN High Commissioner for Human Rights (OHCHR) should establish an independent international commission of inquiry into the 1988 mass extrajudicial executions and enforced disappearances, without further delay.
Furthermore, UN Member States that exercise universal jurisdiction should open criminal investigations against the most senior perpetrators of the 1988 massacre.
Hanif Jazayeri is Secretary of London-based NGO Justice for the Victims of the 1988 Massacre in Iran (JVMI) and a news editor. His Twitter handle is @HanifJazayeri.
The information that I bring here is unprecedented and very important, so Maastricht Blog on Transitional Justice deserves to be the first of all to report it.
As already reported by Prof. Flávio de Leão Bastos Pereira in January, 2022, a judicial process is underway in Sao Paulo-Brazil that aims to transform the former Doi-Codi facilities into a memorial. This memorial has two main purposes: to pay tribute to the thousands of tortured people and the dozens murdered by that agency between 1969 and 1983; to promote a better understanding of how the largest and most important center of repression of the Brazilian civil-military dictatorship functioned and was structured.
Created in 1969 from a consortium formed between the Government of the State of Sao Paulo, the Army and large companies, Doi-Codi was initially called Operação Bandeirante. It was installed on the premises of the Army’s 2nd Mechanized Reconnaissance Squadron, just 1km away from where it was later transferred, at Rua Tutoia, 921, occupying half of the 36th Police Station and an annex building at the back of the land. Understanding the importance of this place, in addition to its undoubted historical relevance, but also material and as an element of documentary evidence of the commission of felonies by the Brazilian State, it has been part of my work at the Historic Heritage Preservation Unit of the Secretary of Culture of the State of São Paulo since 2010.
In that year, the Council for the Defense of Historical, Artistic, Archaeological and Tourist Heritage of the State of Sao Paulo (Condephaat) was required to list as cultural heritage such buildings, considering “their historical importance and relevant didactic role that the aforementioned building has for generations of young Brazilians, who ignore the atrocities committed there, the listing will guarantee the preservation of this important physical document of our recent history” (SEIXAS apud NEVES, 2018). The request was presented by Ivan Akselrud Seixas – arrested at Doi-Codi in 1971 at the age of 16 along with his father Joaquim Seixas, murdered under torture days later. Five human rights organizations endorsed his request, including the State Council Defense of Human Rights (Condepe), state agency linked to the Secretariat of Justice and Citizenship. Provided for in the state constitution, Condepe’s main purpose is to “investigate human rights violations in the territory of the state of São Paulo” (CONDEPE, https://justica.sp.gov.br/index.php/servicos/condepe/).
From this request, initial technical reports prepared between September and December 2010 pointed to the historical importance of the place, consisting of four buildings, a patio and covered garage, with two possible entrances: one through Rua Tutoia, leading to the police station, and another along the perpendicular street – Tomás de Carvalhal. There were no outstanding or notable architectural values there – they were mass-produced buildings, probably in the 1960s, due to their stylistic characteristics. Like these buildings, there were many other police stations throughout the state of Sao Paulo. Two other buildings were out of tune: one resembled a residence and the other had exposed bricks and a garage on the ground floor, surrounded by a wall with two guardhouses, a typical feature of military installations.
In May 2012, Condephaat decided to preliminarily protect the building, guaranteeing the preservation of the property until the end of the technical studies and final decision of the Council. Between May 2012 and October 2013, the deepening of the studies allowed us to understand the dynamics of the Doi-Codi operation in each of the buildings. It also allowed us to understand how the military occupation of government buildings originally destined for civilian use took place. Based on research, very important documents were found:
Decree 36.628/1960, which permitted the expropriation of three lands for the construction of the police station, and the respective transcripts of the land registry office. The Decree confirms the thesis of serial construction policy, since several other expropriations were authorized in different cities of the State of Sao Paulo;
Two administrative processes that deal with the agreement for the transfer of part of the land from the State Public Security Secretariat to the Second Army Command;
Aerial photographs from 1958, 1962, 1968, 1973 and 1977 that allowed identifying the evolution of construction. Initially, the police station and its annex building. In 1960, buildings in reinforced concrete, with external coating made of ceramic tiles, two floors, longitudinal and wide windows. Between 1968 and 1973, the common residence, with symmetrical sides and ceramic roof, with a facade protected only by painting, and a brick building built on structures above ground level. These constructions, therefore, were constructed by the Army and therefore were different from the first ones.
Based on these documents, inspections were carried out with people who were kidnapped by Doi-Codi between 1969 and 1975 and who reported where they were detained, where they were interrogated and tortured, where they entered the buildings and what they were able to recognize from this visit. In Brazil, it was the first time that a heritage preservation agency and former political prisoners worked in partnership for the recognition and preservation of a building related to the forces of governmental repression.
However, we did not find the original architectural plans for the buildings. The administrative processes indicated that the Army did not present the plans for the constructions that it carried out from 1969, but we believe that they exist. The buildings built to house the police station in 1960 should have blueprints since they were included in the State Government’s Action Plan, which provided for the construction of hundreds of public facilities. However, they were not located at the time of the study, which led us to create an alternative simple plan to the building. This plan helped the ex-prisoners to identify where they were interrogated and tortured; and it allowed the technical team of the Historic Heritage Preservation Unit (UPPH) to choose different degrees of preservation for the buildings, considering the use and the value of material evidence.
Ten years after the beginning of the studies, UPPH learned that the collection of the Department of Public Works, which was responsible for the Action Plan, had been incorporated into the Public Archive of the State of Sao Paulo after being inaccessible for least two decades. In consultation with the Cartography Center, we requested a search of the collection and finally the plans were located thanks to the commitment of the Archive employees involved in the search, bringing us joy and the possibility of furthering archaeological and architectural research to support the creation of the memorial.
Three initial aspects of these documents draw attention:
One, the annex building was originally designed to be a training and housing unit, whose character was perverted and transformed into a place of interrogation, torture and murder;
Two, the existence of a barber shop on the first floor confirms the testimony of Ivan Seixas, who reported that it was in that room that his father was tortured in the Dragon Chair (a kind of electric chair), because he remembered the sink installed there. The sink was provided for in the original plan;
Three, the last aspect resolves a doubt as to why only two buildings were built in the early 1960s, leaving the land empty. With access to the original project, the police station and the annex would be used as a kind of training center, containing two classrooms, a barber shop and 5 bedrooms with beds. In the area where the Army built its intelligence sector and accommodation, the construction of a Court was originally planned.
Thus, in that place where thousands of people were tortured and dozens were murdered, the principles of Justice passed away, distorting its initial purpose. As Flávio de Leão Bastos Pereira reported here, it was only in 2021 that Justice really filled in that space, on the occasion of the conciliation hearing between the State and the Public Ministry. It was the first time that Justice entered Doi-Codi, but it was not the first time that it was designed for that space. Education will also have space, not to train the Police, but to transform it.
These original documents are still under analysis and will serve as a basis for archaeological research scheduled to begin in July 2022 as part of a project to create and build a memorial, transforming the space into a place of memory and consciousness. However, they already show the importance of public records and of scientific research for serving transitional justice, which is moving slowly in Brazil.
Deborah Neves is Ph.D. in History, specialized in cultural heritage and sites of difficult memories. Historian at Historical Heritage Preservation Unit, Government of the Sao Paulo State, Brazil
Atelier en ligne pour la formation et l’échange sur Le Système de Protection des Droits de l’Homme des Nations Unies
11 – 13 avril 2022
Equipe en charge de rapport de suivi des DESC/ USJPB
Dr. Ali A. MAIGA
Pr Mamadou B Dembélé
Dr Abdoul Kader Siby
Dr Mamoutou N’Diaye
Dr Diakalia S. Sidibé (Rapporteur)
I- Introduction
Dans le cadre des activités du projet de TMT+ OKP-SHL-20049, intitulé « Faciliter l’émergence d’une communauté régionale de pratiques pour renforcer la résilience des communautés au Sahel », il a été organisé un atelier en ligne (Visio-conférence) de renforcement de capacités de trois Universités au Sahel (USJPB/Mali, UAM/Niger et UJKZ/Burkina Faso).
Tenu du 11 au 13 Avril, cet atelier a pour but de familiariser les participants avec le « Système de Protection des Droits de l’Homme des Nations Unies ». Dans cette vision, il a été développé à l’intention des participants des communications sur les mécanismes de suivi des rapports par les organes de traités, en particulier le comité des droits de l’homme (CDH) et le comité de surveillance de la mise en œuvre du Pacte relatif aux droits économiques sociaux et culturels (CDESC).
Après cette phase préparatoire, il a été mis en place deux équipes de travail par pays, l’une devant produire un rapport de suivi des recommandations formulées par le CDH et l’autre devant travailler sur les recommandations formulées par le CDESC.
Le présent rapport de suivi est produit par l’équipe DESC du Mali. Son objet est de fournir des éléments d’appréciation sur les efforts fournis par l’Etat du Mali en matière de mise en œuvre des recommandations adressées, en 2018, à son endroit par le comité CDESC des Nations Unies à l’issue de l’examen du deuxième rapport périodique du Mali soumis par l’Etat du Mali Septembre 2018, en application de l’article 40 du PIDESC.
Source: premiumtimesng.com
L’équipe de travail a estimé important de structurer son rapport de suivi autour de 13 points de recommandations en faisant ressortir les éléments suivants : Recommandations du Comité DESC, Etat de mise en œuvre au Mali, Recommandations de l’équipe.
II- Recommandations du Comité, Etat de mise en oeuvre, Recommandations de l’équipe
Conflits armés et accord pour la paix
Recommandations du comité :
– la jouissance des droits énoncés dans le Pacte par les populations vivant dans les régions touchées par les conflits armés, notamment, dans le nord et le centre du pays ;
– la mise en œuvre effective de l’Accord pour la paix et la réconciliation signé en 2015, en assurant la protection de la population, ainsi que la participation active, ouverte et transparente de la société et en particulier des victimes et des groupes les plus touchés par les conflits, notamment les femmes, dans les mesures de mise en œuvre ;
– l’adoption des mesures législatives et administratives raisonnablement propres à prévenir les déplacements forcés de la population et de fournir une protection efficace aux personnes déplacées afin qu’elles aient accès à un logement convenable, aux soins de santé, à l’éducation et à la protection sociale ;
– le retour des personnes déplacées à l’intérieur du pays dans leur région d’origine en toute sécurité et dans la dignité, ou leur proposer des solutions alternatives appropriées.
Etat de mise en œuvre :
Jouissance des droits énoncés dans le Pacte
Pour la jouissance des droits énoncés, l’Etat a créé un département ministériel en charge de la réconciliation nationale, de la paix et de la cohésion nationale. Par ailleurs, pour leur meilleur ancrage institutionnel, les droits de l’homme sont confiés au Ministère de la justice (sans oublier l’apport des autres départements dans leurs domaines respectifs).
Aussi, la CNDH et les Organisation de la société civile œuvrent dans le sens de la protection et de la promotion de ces droits au Mali : à travers des plaidoyers, des formations, des études, et des actions de sensibilisations.
l’accord pour la paix et la réconciliation
Il y a moins d’avancées sur la question, toutefois, des actions de la commission vérité, justice et réconciliation (CVJR) et de la mission nationale de la réconciliation (MNR) ont des impacts positifs sur le processus de mise en œuvre inclusif et participatif. A cela s’ajoutent les conclusions des assises nationales de refondation.
Recommandations de l’équipe :
Nous recommandons une accélération des actions de sécurisation des populations dans les zones à conflits dans le strict respect des droits humains notamment les droits économiques, sociaux et culturels.
Nous recommandons une mise en œuvre effective de l’accord pour la paix et la réconciliation.
Défenseurs des droits de l’homme :
Recommandations du comité :
L’absence de décret fixant les modalités d’application de la loi relative aux défenseurs des droits de l’homme.
Etat de mise en oeuvre :
Le Mali a adopté le Décret n° 2020-0087/P-RM du 18 février 2020 fixant les modalités d’application de la loi relative aux défenseurs des droits de l’homme.
Recommandations de l’équipe :
Nous recommandons une application effective de la loi relative aux défenseurs des droits de l’homme et de son décret d’application.
Nous recommandons des actions d’information et de sensibilisation sur l’importance de l’action menée par les défenseurs des droits de l’homme afin d’instaurer un climat de tolérance leur permettant de s’acquitter de leur mission dans les zones de conflits sans aucun risque.
La Corruption
Recommandations du comité :
La persistance de la corruption au Mali et le manque de renseignements concernant l’effectivité des mesures prises pour lutter contre la corruption.
Etat de mise en œuvre :
D’abord au niveau juridictionnel, en plus de la section des comptes de la cour suprême, des pôles économiques et financiers (parquets spécialisés, cabinets d’instruction spécialisés, brigades judiciaires spécialisées) ont été créés.
Ensuite au niveau administratif, l’organe administratif de contrôle général des services de l’Etat (financier et économique) a été renforcé (ressources humaines, techniques : budget programme qui permet une traçabilité de la gestion des ressources financières de l’Etat et des Collectivités, le paiement électronique de certaines contributions fiscales etc…).
Enfin, il convient de noter que plusieurs autorités administratives indépendantes ont été créées : le Bureau du Vérificateur Général, l’Office Central de Lutte contre l’Enrichissement Illicite (OCLEI), l’Autorité de Régulation des Marchés Publics.
Recommandation de l’équipe :
Nous recommandons une transmission systématiquement des rapports de contrôle et de vérification des organes indépendants à la justice.
Nous recommandons un affermissement du statut du bureau de vérificateur général en le dotant de pouvoir de poursuite devant les juridictions compétentes.
La non-discrimination
Recommandations du comité :
L’absence d’une loi générale de lutte contre la discrimination, s’étendant à l’ensemble des domaines couverts par le Pacte.
Etat de mise en œuvre :
Au Mali, la non-discrimination est un principe constitutionnel, dont la déclinaison législative interdit la discrimination fondée sur le sexe, la race, l’ethnie, l’opinion religieuse, le rang social, opinion politique etc…
Ces bases légales constituent des fondements pour chaque victime d’ester en justice.
Ainsi, des mécanismes existent pour prévenir et combattre efficacement la discrimination dont font l’objet les personnes ou groupes défavorisés ou marginalisés tels que les minorités ethniques et les personnes handicapées, y compris par des campagnes de sensibilisation et le recours à des mesures temporaires spéciales, afin de leur garantir l’exercice effectif de l’ensemble des droits reconnus dans le Pacte.
Recommandations de l’équipe :
Nous recommandons l’adoption d’une loi spécifique sur la non discrimination nonobstant sa prise en prise en compte dans les textes sectoriels.
Égalité entre hommes et femmes
Recommandations du comité :
Certaines dispositions législatives sont encore discriminatoires à l’égard des femmes.
On constate une persistance de stéréotypes, pratiques et traditions coutumières qui renforcent cette discrimination dans tous les domaines, particulièrement en ce qui concerne leur accès à la terre et aux ressources.
Source: wvi.org
Etat de mise en œuvre :
Pour pallier certaines discriminations à l’égard des femmes, le Mali a révisé son code de la famille en 2011. Cette loi établit dans certaines mesures une égalité entre homme et femme (l’instauration de l’autorité parentale en lieu et place de la puissance paternelle etc…).
L’adoption en 2017 de la loi d’orientation sur le foncier agricole qui octroie plus d’autonomie, plus de facilité dans l’accès des femmes aux terres.
Recommandations de l’équipe :
Nous recommandons une relecture du code pénal pour d’avantage réprimer certaines pratiques discriminatoires à l’égard des femmes.
Nous recommandons l’adoption du projet de loi sur les violences basées sur le genre.
Nous recommandons le respect par l’Etat de la décision de la Cour Africaine des Droits de l’Homme relative à la révision de certaines dispositions du CPF.
Droit au travail
Recommandations du comité :
Le taux de chômage demeure élevé, particulièrement parmi les jeunes et les femmes, et de façon plus prononcée parmi les jeunes et les femmes qui ont un niveau d’études supérieures.
Environ 96 % des travailleurs sont employés dans l’économie informelle et ne sont pas couverts par la législation du travail ni par le système de protection sociale.
Le salaire minimum n’est pas suffisant pour assurer des conditions de vie décentes aux travailleurs et à leur famille.
Un important écart salarial existant entre hommes et femmes.
L’exercice des droits syndicaux, notamment la négociation collective et le droit de grève, n’est pas pleinement garanti en droit et en pratique. L’existence de licenciements abusifs de travailleurs ayant exercé des activités syndicales, ainsi que le défaut d’exécution des décisions de justice ordonnant leur réintégration.
Etat de mise en œuvre :
Il y a eu un amélioration dans la mise en œuvre de la politique nationale de l’emploi en y introduisant des objectifs précis, en ciblant les efforts en particulier sur les jeunes et les femmes et en allouant les ressources financières et techniques disponibles pour garantir sa mise en œuvre effective et sa pérennité.
Il y a également une amélioration de la qualité des programmes scolaires et de formation technique et professionnelle adaptés à l’accès et l’insertion au travail (secteur primaire : représente 45% du PIB avec 80% de la population active : programmes de formation sur l’agroforesterie, agropastoralisme, l’agronomie ; secteur tertiaire : l’industrie, etc…)
Les travailleurs employés dans l’économie informelle ont la possibilité de bénéficier d’une couverture de protection sociale : admission à l’INPS, à l’AMO.
Le salaire minimum a connu une relative amélioration en 2016 de 32 460 FCFA à 42 000 FCFA en 2022.
Il n’y a pas d’écart salarial entre hommes et femmes dans les services publics de l’Etat, tout comme dans les entreprises privées selon les documents du Patronat malien que nous avons consulté.
Le travail forcé est prohibé sous toutes ses formes au Mali. Dans les faits, des cas isolés peuvent être constatés.
L’exercice des droits syndicaux, notamment la négociation collective et le droit de grève, tout comme l’existence de licenciements abusifs de travailleurs ayant exercé des activités syndicales, ainsi que le défaut d’exécution des décisions de justice ordonnant leur réintégration (art. 8) demeurent des défis au Mali.
Recommandations de l’équipe :
Nous recommandons l’amélioration des conditions de vie et de travail des salariés.
Nous recommandons le respect strict par l’Etat et par le patronat de la législation du travail et de la sécurité sociale.
Nous recommandons l’organisation d’un forum social pour résorber la tension sociale que connait le pays depuis quelques années.
Pratiques néfastes à l’égard des femmes et des filles
Recommandations du Comité :
L’existence de pratiques néfastes à l’égard des femmes et des filles, telles que la polygamie, les mariages précoces et les mariages forcés, ainsi que les mutilations génitales féminines, demeurent largement répandues. La non interdiction de ces pratiques par la loi.
Source: wvi.org
Etat de mise en œuvre :
– la lettre circulaire n° 0019 du 7 janvier 1999 émanant du ministre de la santé, de la solidarité et des personnes âgées interdit la pratique des Mutilations Génitales Féminines par le corps médical.
– l’existence de projet de loi sur les VBG prenant en compte l’excision ; le code pénal (Article 207) réprime les autres formes de mutilations génitales féminines sous la qualification de coups et blessures volontaires. Les victimes ont accès à des recours effectifs, ainsi qu’à des mesures de compensation conformément à l’arsenal pénal.
Recommandations de l’équipe
Nous recommandons l’augmentation de l’âge requis pour le mariage à 18 ans.
Nous recommandons l’adoption de mesures efficaces pour prévenir les mariages précoces, les mariages forcés.
Protection des enfants
Recommandations du comité :
Le nombre élevé d’enfants âgés de 5 à 14 ans qui travaillent.
Des enfants continuent à être utilisés et recrutés par des groupes armés dans les zones de conflit dans le nord et le centre du pays.
Environ 15 % des enfants de moins de 5 ans ne disposent pas d’acte de naissance.
Etat de mise en œuvre :
– l’existence d’un système de protection intégrale des enfants, en particulier pour ceux qui sont dans une situation de vulnérabilité particulière : CPF, CMP, Code de l’état civil.
– l’Elaboration et mise en œuvre effective du plan d’action national pour l’élimination du travail des enfants au Mali 2011-2020.
– le renforcement des mesures de prévention de l’utilisation d’enfants par des groupes armés illégaux: le processus Démobilisation Désarmement Réinsertion (DDR), actions de sécurisation dans les zones de conflit.
Recommandations de l’équipe :
Nous recommandations un renforcement des actions de protection des enfants partout au Mali, et plus spécifiquement dans les zones de conflits.
Droit à l’alimentation
Recommandations du comité :
L’insécurité alimentaire et l’état nutritionnel de la population très préoccupants : 25,6 % des ménages maliens se trouvent en situation d’insécurité alimentaire dont 3,6 % en insécurité alimentaire très sévère, d’après l’enquête nationale de février 2017 sur la sécurité alimentaire et nutritionnelle.
La prévalence nationale de malnutrition chronique est d’environ 38 %.
Etat de mise en oeuvre :
L’Etat, les partenaires au développement et les organisations professionnelles agricoles mènent des campagnes de sensibilisation pour prévenir dans l’agriculture l’utilisation de pesticides et produits chimiques nuisibles pour la santé à travers des canaux d’information formels et informels.
Recommandations de l’équipe :
Nous recommandons la mise en œuvre effective de la Politique de développement agricole, de la loi d’orientation agricole et de la loi sur le foncier agricole.
Nous recommandons une accélération de la mise en œuvre de l’ODD (1, 2, 3, etc..) afin de garantir la sécurité alimentaire sur toute l’étendue du territoire national.
Nous invitons à l’adoption d’une loi-cadre sur le droit à l’alimentation au Mali
Droit au logement
Recommandations du comité :
Une proportion élevée de la population habite dans des logements précaires, dans des conditions peu adéquates, sans accès à l’électricité, à l’eau potable ni à un système d’assainissement.
Etat de mise en œuvre :
On constate une relative amélioration à travers des efforts déployés par l’État pour élargir l’offre de logement sociaux. Par exemple pour l’année 2022 l’Office malien de l’Habitat 12500 logements sociaux.
Il convient aussi d’évoquer d’importants efforts des institutions financières (banques et assimilées) dans la facilitation de l’accès au crédit immobilier à toutes catégories de travailleur (salariés, indépendants).
Recommandations de l’équipe
Nous recommandons la mise en œuvre effective de la politique de l’habitat qui prévoit des facilités d’accès à l’habitat décent.
Nous encourageons la promotion des logements sociaux conforment aux normes basiques d’assainissement et de salubrité et l’accès l’eau potable.
Exploitations minières
Recommandations du comité :
Les conséquences négatives des exploitations minières qui causent des dommages irréversibles à l’environnement et portent atteinte au droit à la santé et au droit à un niveau de vie suffisant des communautés touchées.
Etat de mise en œuvre :
– l’existence d’un outillage juridique sur l’évaluation environnementale : étude d’impact environnemental en amont et aval pour les projets d’envergure : exploitation minière, les notices environnementales pour mini projets et l’audit environnemental qui est un dispositif interne à l’entreprise (loi sur l’étude d’impact environnemental, le code minier).
– les communautés riveraines touchées par des activités liées à l’exploitation minière obtiennent des indemnisations pour les dommages ou pertes subis et bénéficient d’une partie des recettes tirées desdites activités : dans le cadre de la mise en œuvre de la RSE, les sociétés minières versent aux municipalités des ressources de compensations (Cahier de charge).
– les sociétés minières sont soumises au principe pollueur payeur et au principe de la restauration et de la responsabilité environnementale.
Source: magazines.rijksoverheid.nl
Droit à la santé
Recommandations du comité :
Les limitations importantes concernant l’accessibilité, la disponibilité et la qualité des services de santé physique et mentale, dues notamment au manque d’infrastructures et de matériel médical adéquat, la pénurie de médicaments et le manque de personnel médical, et leur aggravation dans les zones rurales reculées et les zones touchées par les conflits armés.
Etat de mise en oeuvre :
Dans les zones stables (urbaines ou rurales reculées), on constate une nette amélioration dans l’accessibilité, la disponibilité et la qualité des services de santé physique et mentale, dues notamment à la réalisation et la réhabilitation d’infrastructures (CSCOM, CSREF, Hôpitaux, Centres médicaux privés).
Il existe une nette amélioration du plateau technique, et de la disponibilité du personnel médical compétent.
Recommandations de l’équipe :
Nous recommandons :
– l’amélioration de la disponibilité et de la fonctionnalité des structures de santé ;
– l’Amélioration de l’accessibilité aux installations, biens et services de santé ;
– l’augmentation de la capacité d’accueil des structures de santé publique ;
– l’amélioration de la capacité logistique des structures de santé ;
-l’amélioration de la formation initiale et continue des agents de santé ;
– le renforcement des dispositifs de contrôle de la déontologie et de l’éthique dans les structures de santé ;
– l’amélioration de la qualité des soins et de services de santé ;
– l’amélioration de l’accès des groupes défavorisés ou marginalisés aux services de santé.
Santé sexuelle et procréative
Recommandations du comité :
Elévation des taux de mortalité maternelle et de mortalité infantile ;
Inaccessibilité et indisponibilité des services appropriés de santé sexuelle et procréative ;
Accès limité à des informations sur la santé sexuelle et procréative, y compris la planification familiale, et aux moyens de contraception.
Etat de mise en oeuvre
L’adoption de la loi n ° 02 – 044 du 24 juin 2002 relative à la santé de la reproduction constitue une avancé sur la question. Cette loi encadre et facilite la planification familiale. Elle prévoit une gamme de moyens contraceptifs. Elle garantit les droits reproductifs et droits sexuels : l’avortement dans certains cas, les informations sur le statut sérologique du partenaire sexuel, etc…
Par ailleurs, pour lutter contre la mortalité maternelle et la mortalité infantile, le Mali a adopté le Décret N°05-350/P-RM du 04 août 2005, relatif à la prise en charge de la gratuité de la césarienne.
Recommandations de l’équipe :
Nous recommandons le renforcement des actions de promotion de la santé de la reproduction.
Nous invitons au respect des droits reproductifs en faisant des campagnes de sensibilisation, d’information et d’éducation sur la question.
Conclusion
L’équipe de travail se félicite de la tenue de cet Atelier si important dans le renforcement de la compétence de ses membres sur les droits humains en général et sur les droits économiques sociaux et culturels en particulier. Elle exprime sa gratitude aux formateurs pour la qualité des échanges.
L’équipe sollicite au CDESC de prendre en compte les principales recommandations relevées sur la liste des points à traiter lors du prochain examen du second rapport de l’Etat du Mali.
A meme doing the rounds on Twitter shows a road sign, apparently repainted by Ukrainians to confuse invading Russian soldiers, with all directions pointed towards: ‘Гаага’ (The Hague). Whether real or photoshopped, the point is cleverly made. But when it comes to prosecuting alleged war crimes and crimes against humanity (CAH) in Ukraine should all roads really lead to The Hague?
Russia’s invasion of Ukraine, which began on 24 February 2022, is very much a war of the 21st century. Videos and images of alleged atrocities (e.g., attacks on (apparently) civilian objects such as maternity hospital and a theatre sheltering children marked ‘Дети’ (children) in Mariupol) have been posted to social media platforms in vast numbers in almost real-time. At a similarly break-neck speed, the international law community has debated forums for prosecuting international criminal law (ICL) violations including: an Ad-hoc or Special Tribunal for the crime of aggression, the International Criminal Court (ICC) and universal jurisdiction (e.g., here, here, and here). Remarkably little attention, however, has been given to Ukraine’s capacity to prosecute atrocities, namely war crimes and CAH, committed on its territory before its own courts.
Ukrainian emergency workers and volunteers evacuate an injured pregnant woman from a maternity hospital that was damaged by shelling in Mariupol on 9 March 2022. Photograph: Evgeniy Maloletka/AP
At the time of writing, the Ukraine conflict’s outcome is highly uncertain. Negotiations between Ukrainian and Russian representatives are ongoing, with some reports that an agreement is within reach. Russia’s invasion is on the backfootmaking a stalemate possible. It thus remains feasible that the Ukrainian government will retain, or even regain, effective control over substantial swathes of territory and/or that conflict may become ‘frozen’ in the medium to long-term. As such, this blogpost considers the possibilities for prosecuting atrocities committed in Ukraine in its own courts under the Ukrainian Criminal Code (UCC).
The Ukraine Conflict
Russia’s invasion of Ukraine is a dramatic escalation in hostilities between the two countries, both in terms of the geography and brutality of violence. All major cities in Ukraine have been attacked. Less than a month after the start of the invasion the official (conservative) death toll stands at over 900 (this is likely a major underestimate as it is currently impossible to count the dead in some places – in Mariupol, for example, the dead are left out in the street and buried in mass graves). The conflict in Ukraine is not new, however. According to the assessment made by the ICC’s Office of the Prosecutor (OTP) during its preliminary examination (concluded 11 December 2020) there has been an international armed conflict between Ukraine and Russia since 26 February 2014 in Crimea and since 14 July 2014 in the Donbas (paras 260 and 266). A parallel non-international armed conflict between Ukrainian government forces and ‘separatist’ forces in the Donbas has been underway since 30 April 2014 (para 266). Moreover, the OTP recorded in excess of 1,200 crimes including: wilful killing/murder; torture and inhuman/cruel treatment; outrages on personal dignity; and rape and other forms of sexual violence (para 278-9). Prior to 24 February 2022, around 14,000 people (mostly Ukrainians) were killed and 1.5 million internally displaced by the war.
Capacity
The outbreak of conflict in 2014 revealed Ukraine to be ill-equipped to prosecute atrocities committed on its territory in its courts. Criminal investigators did not know how to systematically gather and structure evidence for war crimes cases. Article 438 of the UCC on ‘violations of the rules of warfare’ proved challenging for Ukrainian prosecutors. A brief catch-all provision, Article 438’s operationalisation turns largely on the phrase: ‘any other violations of rules of warfare recognised by international instruments consented to by the Verkhovna Rada [Ukraine’s parliament]’ (emphasis added). As noted by Ukraine’s former Deputy Prosecutor, Gyunduz Mamedov, in essence this means: ‘for an effective investigation of this category of crimes, it is necessary to know these international documents, and there are about 30 of them’ (among them are the Geneva Conventions and Additional Protocol I and II). Consequently, Ukrainian prosecutors, who lacked expertise in international humanitarian law (IHL) and ICL, instead charged crimes committed in connection to the conflict as more familiar ‘normal’ offences – e.g., murder or membership of a terrorist organisation.
In recent years, however, Ukraine has made substantial progress in its capacity to prosecute war crimes. In October 2019, Ukraine established a dedicated War Crimes Unit (The Department of the Office of the Prosecutor General for the Investigation of Crimes Committed in the Conflict) at the initiative of then-Deputy Prosecutor Mamedov, who had built-up experience prosecuting conflict-related cases as the Prosecutor of Autonomous Crimea and on MH17 with the Dutch-led Joint Investigation Team (see also here). Under Mamedov’s leadership, the Unit centralised cases linked to the conflict (which were previously investigated individually by regional departments), set up cooperation networks with human rights groups documenting ICL violations and, with international assistance, trained Ukrainian jurists and investigators (see here, here and here). Importantly, the new Unit also worked to reclassify conflict-related cases under Article 438. As war crimes (and CAH) are exempt from statute of limitations and amnesties under customary international law (CIL) this shored up the viability of future prosecutions. To date, the Unit has secured three convictions for war crimes (two in absentia and one in propria persona) and opened another 21 cases against 41 people under Article 438.
Deputy Prosecutor General Gyunduz Mamedov taking part in the 19th session of the Assembly of States Parties to the Rome Statute in The Hague in 2020. Photo / MFA The Netherlands
Another significant development is ‘On Amendments to Certain Legislative Acts on the Enforcement of International Criminal and Humanitarian Law’ (Bill 2689). As already mentioned, the complexity of Article 438 has slowed war crimes prosecutions. Work to simplify Ukraine’s legislative framework and bring it into step with contemporary ICL norms was initiated in 2016. The end product of this five-year endeavour was Bill 2689 which, inter alia, amends the UCC to: i) provide a comprehensive list and definitions of war crimes; ii) and CAH in line with the Rome Statute (RS) (CAH are absent from the UCC as is); iii) legislate for modes of command responsibility in line with the RS; iv) provide for universal jurisdiction. As such, as well as facilitating domestic prosecution of atrocities, Bill 2689 also serves to ease issues of complementarity and cooperation with the ICC and helps Ukraine fulfil its treaty and customary IHL obligations. Importantly, Article 17 of Bill 2689 provides for its retroactive application (this is in keeping with the principle legal certainty as war crimes and CAH are criminalised under CIL – see Article 7(1) European Convention on Human Rightsand Article 15 of the International Covenant on Civil and Political Rights, both of which Ukraine is a State Party to).
Credibility
Ukraine’s capacity to carry out war crimes and CAH prosecutions, however, should not be viewed through rose-tinted glasses. Bill 2689 passed its second (final) reading at the Verkhovna Rada (Ukraine’s parliament) on 20 May 2021 and was sent to the President’s Office on 6 June 2021. Under Article 94 of the Ukrainian Constitution, it should have been signed, and thus enacted, or returned for review with comments by Ukraine’s President Volodymyr Zelensky within 15 days (i.e., by 22 June 2021). Disappointingly, it is still awaiting his signature despite repeat calls by civil society groups, including the Coalition for the ICC, for Zelensky to enact it. That Bill 2689 has not been handled in accordance with Ukraine’s Constitution is troubling. According to political and legal commentators (writing prior to the Russian invasion) this reluctance stems from concerns among Ukraine’s political and military elite that it could be used to prosecute government forces (as well as anti-government forces) for ICL violations. Speaking to Radio Svoboda, Vladimir Gorbach, a political analyst at the Centre for Euro-Atlantic Cooperation commented: ‘in military circles there are fears that this law may be turned against the defenders of Ukraine, especially those volunteers of 2014-15.’ Notably, this chimes with analyses of Ukraine’s reticence to ratify the Rome Statute as based on a politicised (mis)understanding of the ICC and ICL. Another concerning development is the removal of Mamedov from his position at the War Crimes Unit in June 2021 – a move that Ukrainian human rights groups have criticised as detrimental and a politicised ousting. Meanwhile, Ukraine must work ensure that trial rights are fully upheld.
Nina Branovytska (holding a photo of her son, Ihor Branovytsky, who was tortured by separatists) and former prisoner of the DNR, Igor Kozlovsky, attend a demonstration in support of Bill 2689 near the President’s Office in Kyiv on 19 August 2021. Photo Serhii Nuzhnenko / Radio Svoboda
That said, while it may be a case of two steps forward one step back, Ukraine’s progress in prosecuting ICL violations over the last eight years, in highly challenging circumstances (namely the conflict in Donbas and occupation of Crimea), should not be overlooked. Ukraine has successfully prosecuted war crimes cases under its existing legislative framework. Bill 2689 has passed its most significant hurdle of receiving parliamentary approval. Article 17, which provides for the law’s retroactive application, means that it could be applied to the entirety of the Ukraine conflict as soon as Zelensky signs it. Moreover, despite the hesitation over Bill 2689, Ukraine has prosecuted pro-government forces for atrocities committed in the conflict. A landmark case (widely viewed as a litmus test in this regard) was the trial of 12 members of the notorious Tornado battalion. Despite demonstrations outside the courtroom and political pressure from right-wing lawmakers who claimed the charges were ‘fabricated’, the men were convicted in April 2017 of abuses, including illegal detention and sexual assault, committed while policing Pryvillia – a town near the frontline previously controlled by separatist forces.
Two Tornado detainees being led into Kyiv’s Obolon district court in August 2016. Photo by Serhii Nuzhnenko / Radio Svoboda
Another important consideration is that Ukraine does not have to go it alone. Following an unprecedented referral by 40 State Parties the ICC’s Prosecutor, Karim Kham, announced the official opening of an investigation into the situation in Ukraine on 2 March 2022. The ICC is the most appropriate forum for prosecuting officials that either enjoy immunity before Ukraine’s courts (i.e., sitting Heads of State or Foreign Ministers) or who are who are so high-profile that international scrutiny is desirable. However, the vast majority of ICL violations in Ukraine will not end up in The Hague. The Rome Statute’s (RS) gravity threshold (Articles 17(1)(d)) is high and must be satisfied for each case. Additionally, the OTP prosecutes selectively (normally with the goal of building up towards cases against prolific individuals). Moreover, the ICC is a Court of last-resort which prosecutes only when States are ‘unwilling or unable’ to do so (Article 17). The RS’s provisions on the principle of complementarity (Articles 1, 17, 53) go beyond simply ensuring non bis idem. The RS subordinates the Court to (properly carried out) domestic investigations and prosecutions and, moreover, encourages them. Article 93(10) provides: ‘the Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court’. The opening of the ICC investigation therefore also provides an opportunity for the Court to bolster Ukraine’s capacity to prosecute ICL violations. Another avenue of support open to Ukraine is the structural investigation (Strukturermittlungsverfahren) opened by Germany, under the principle of universal jurisdiction. Structural investigations can be opened when there is evidence a crime has taken place, but perpetrators have not yet been identified. It allows for fast collection of evidence and has proven an effective tool for prosecuting and structuring war crimes cases. Such evidence could also be shared with Ukraine, which is a State Party to the European Convention on Mutual Assistance in Criminal Matters.
Ukrainian President Volodymyr Zelensky addresses the German parliament via video call in Berlin on 17 March 2022. Photo / Getty Images
Conclusion
The war in Ukraine started eight years ago. During this time Ukraine, with international assistance, has made substantial progress in investigating and prosecuting ICL violations. Given the escalation in the conflict, Bill 2689 is more relevant than ever. Zelensky should enact it without further delay. Doing so will signal to the international community Ukraine’s commitment to fulfilling its obligations under IHL and upholding ICL even in its darkest hour. Ukraine will undoubtedly need international support in prosecuting atrocities, but it is available and should be both sought and provided. The benefits of conducting trials close to affected communities in conflict and post-conflict societies are well-documented in the transitional justice literature, both in regard societal healing and bolstering rule of law after seismic events. The outcome of the war in Ukraine is deeply uncertain. But nearly a month in, it is apparent the capabilities of Ukraine’s military were drastically underestimated by most. We should not make the same mistake with its legal system. Ukraine is a sovereign State and, as such, insofar as it is possible in accordance with the rule of law, it is desirable that the bulk of war crimes and CAH committed on its territory are prosecuted in its own courts.
Harriet Salem. Harriet is an LLM student in international law (specialisation in human rights law) at Maastricht University. She also holds an MA in International Politics with distinction from the University of Manchester. She has worked as a journalist for over ten years and reported extensively on the conflict in Ukraine.
In a post published on Maastricht Blog on Transitional Justice, María José Guembe referred to the following statement made by the UN High Commissioner for Human Rights in relation to the right of victims of serious human rights violations to reparations: “the fundamental obligation of a comprehensive reparations plan is not so much to return the situation to their status quo ante, which may be impossible, but to recognise the gravity of the violations and to show the State’s willingness to respect the rights” (translation mine).
Adopting reparations that truly satisfy the expectations of the victims of serious human rights violations may be a difficult task. The adoption-making process should not ignore the characteristics of the culture of the peoples of the affected nation, the daily priorities of the victims, the historical dynamics of each State and the main aspects of the transition to democracy, among other factors.
Relatives of dead and missing political prisoners at a demonstration at the former DOI-Codi headquarters in São Paulo
During the Brazilian civil-military dictatorship (1964-1985), the 36th Police District shared its facilities with one of the most important bodies of political repression: the Department of Operations and Information – Centre of Operations for Internal Defence (DOI-Codi), which was the first torture and extermination centre of the regime, in Sao Paulo. DOI-Codi was created in 1970, following the “successful”Operaçao Bandeirante (Oban) of 1969, which was launched to fight political opponents by political and military means.
According to the final report of the Brazilian National Truth Commission, DOI-Codi was commanded by an Army officer, generally a major or a colonel, and it was funded not only by the government but also with contributions from the private sector. DOI-Codi units were set up all over Brazil. Each unit was responsible for gathering information and planning security actions against left wing organisations, academics and other intellectuals, journalists, students, artists, workers, union leaders, and any other political opponents; such actions included the capture and interrogation of suspects.
Sao Paulo DOI-Codi is considered as one of the most active clandestine centres of torture and extermination during the Brazilian dictatorship. In fact, the goal of quickly obtaining information from kidnapped opponents by the DOI-Codi led to torture, rape, the killing of prisoners who were then presented as dead in combat or victims of suicide, etc.
After the dictatorship the premises of Sao Paulo DOI-Codi have been housing a police station (see here), but in 2014 they were declaredof historical interest by the Council for the Defence of Historical, Archeological, Artistic and Touristic Heritage, following a petition by Mr Ivan Seixas—a survivor of this torture and extermination centre. The declaration of the premises of DOI-Codi as a site of historical interest was also consistent with the report issued by the Brazilian historian Debora Neves, who recommended the creation of a memory centre to honour the victims, and as a part of an educational process aimed at the new generations, so that another period marked by State terrorism will never happen in Brazil again.
The former site of operations of the DOI-Codi torture and extermination. Photo: Sergio Sade/Editora Abril/Memorial da Democracia
However, due to the inertia of the successive governments of the State of Sao Paulo since 2014, in June 2021 the State Public Prosecution Office filed a lawsuit against the State of Sao Paulo so that effective measures are taken to convert the premises of Sao Paulo DOI-Codi into a memorial site. The Centre for the Preservation of the Political Memory of Sao Paulo, the Brazilian Bar Association and human rights organisations have joined the lawsuit as claimants.
The initial idea proposed in the lawsuit is for the police station to continue functioning on the site, with the other buildings of the premises already starting to be converted into a memorial. Later, the police station would be relocated to another address. In the lawsuit it is also requested that the site be transferred from the Secretariat of Public Security to the Secretariat of Culture of the State of Sao Paulo.
Unfortunately, the State of Sao Paulo refuses the conversion of the site into a memorial, despite the aspirations of victims of the dictatorship.
A hearing was scheduled for 9 September 2021, which took place not at the seat of the Court site but at the premises of the former torture and extermination centre. The hearing was attended by survivors, relatives of victims and the press. This historic hearing was recorded for the documentaryO Dia em Que a Justiça Entrou no DOI-Codi (The Day Justice Entered the DOI-Codi), directed by Camilo Tavares.
The Court hearing held at the former DOI-Codi torture and extermination center, in Sep.,9th,2021 Photos by Professor Flávio de Leão Bastos Pereira
The DOI-Codi case is one of the most important ongoing cases in the context of transitional justice in Brazil. The struggle of DOI-Codi survivors, victims relatives, civil society organizations, federal and state prosecution offices, and the Brazilian Bar Association is of particular importance at present, given the extremist and denialist nature of the government of President Bolsonaro, who insists on destroying the democracy conquered with the great suffering of many.
Against this background, we trust the competent judicial authorities will uphold the claim filed by the State Public Prosecution Office and oblige the State of Sao Paulo to adopt all the necessary measures to convert the premises of the former Sao Paulo DOIC-Codi into a memorial site.
Dr Flávio de Leão Bastos Pereira is the correspondent of Maastricht Blog on Transitional Justice for Brazil and the lawyer representing Sao Paulo Political Memory Preservation Centre and the Brazilian Bar Association (Sao Paulo Section) in the DOI-Codi Case.
Relatives of enforced disappearance victims at the office of the European Commission of Human Rights in Huamanga, Ayacucho, located in the Huamanga municipality premises. July 1985. Photo: Ernesto Jimenez
In 2001 Peru entered a post-dictatorship and post-armed conflict transitional period. Since then, various transitional justice (TJ) mechanisms have been established to address the pillars of truth, justice, reparation, and non-repetition required by the universal model of TJ. Nevertheless, after 20 years the TJ agenda receives little attention, as does the assessment of whether the TJ period has ended or if there are still pending challenges. This post briefly summarizes the current state of TJ in Peru and mentions some of the pending challenges for each TJ pillar.
1. The armed conflict in Peru
Soldiers escort Ramón Laura Yauli and Concepción Lahuana after declaring having been forcefully recruited by Shining Path. La Mar, Ayacucho. June 1985. Photo Abilio Arroyo- Caretas
During the closing decades of the last century, Peru went through an internal armed conflict and was subject to an authoritarian regime. According to the Final Report of the Truth and Reconciliation Commission (TRC), the armed conflict began in 1980 with the public burning of the electoral amphorae in the village of Chuschis, perpetrated by the terrorist organization Sendero Luminoso – Shining Path (SL), and it lasted until 2000. In the last decade of that period, Alberto Fujimori, who was democratically elected as president in 1990, perpetrated a coup on April 5, 1992. With the support of the armed forces, Fujimori dissolved the Congress and established an antidemocratic regime that ended in November 2000, when he resigned by fax from Brunei, where he was attending the APEC summit.
It is worth mentioning that prior to the internal armed conflict, Peru had a military dictatorship, which had been established in 1968. The military junta appointed General Juan Velasco Alvarado as de facto president, who was himself deposed in 1975, after another coup. The new de facto president, General Francisco Morales Bermúdez installed a Constituent Assembly in 1979 and called for democratic elections in 1980.
Consequently, during the period of transition to a democratic government, an armed conflict started in Peru. Thus, the period in which mechanisms to deal with human rights violations committed during the military dictatorship should have been established, Peru had to face the uprising of terrorist violence, with young and weak democratic institutions, and an almost non-existent rule of law.
During the armed conflict, there were two terrorist organizations responsible for the attacks and mass atrocities. SL led by Abimael Guzmán, a group to which the TRC attributes the highest number of deaths (54%), and the Revolutionary Movement Tupac Amaru (MRTA), to whom the TRC attributes 1.5% of deaths. The latter group extinguished after the Chavín de Huántar operation, in which the armed forces broke into the Japanese Embassy in Lima to rescue the hostages taken by the MRTA.
Shining Path, on the other hand, has not ceased to operate in Peru. After the capture of Abimael Guzmán in 1992, and the consequent dismantling of a large part of the organization, SL continues to operate in the zone of the Valley of the rivers Apurímac, Ene, and Mantaro (VRAEM). This is despite the capture of other SL leaders such as Oscar Ramírez Durand (a.k.a comrade Feliciano) or Jorge Quispe Palomino (a.k.a comrade Jose). However, the current group is divorced from the initial ideology of Abimael Guzmán (pensamiento Gonzalo) and survives through illegal activities such as drug trafficking, extortion, and murders.
Furthermore, the armed forces and the police were also responsible for serious human rights violations. State agents, self-defense committees, and paramilitary groups were responsible for 37% of deaths and disappearances reported to the TRC. Emblematic cases that illustrate this period are the Cabitos military base, and the Frontón prison before the Fujimori dictatorship, and the cases of Barrios Altos and La Cantuta, during the Fujimori dictatorship.
2.Truth, justice, reparations
Victims of the armed conflict giving their testimonies in the TRC. 21 June 2002. Photo: Reuters
After the end of the authoritarian regime, Peru started a period of transitional justice, which seems to be still ongoing. The transitional government of Valentín Paniagua created the TRC in June 2001, with the task of establishing the facts about the terrorist violence and the serious human rights violations that occurred in the preceding decades. The mandate of the Commission included the clarification of the political, social, and cultural conditions that permitted the conflict; assist the judiciary to establish the truth about the crimes committed by the terrorist organizations and State agents, as well as to identify alleged responsibilities; submit proposals for reparation, recommendations for institutional reforms, and the establishment of monitoring mechanisms for the recommendations. In August 2003, the final report of the TRC was presented. It gathered the testimonies of 17.000 victims and calculated the loss of 69.000 lives during the conflict. In addition, its recommendations on reparations fostered the comprehensive reparations program, and the findings on human rights violations and terrorist acts contributed to the prosecution of these cases.
Moreover, the judicial bodies have also made efforts towards the investigation and prosecution of terrorist acts and serious human rights violations. The judiciary created the National Criminal Chamber and endowed it with jurisdiction for cases of terrorism and serious human rights violations. The Office of the Public Prosecutor also created a specialized subsystem for the same type of crimes. Within the framework of these subsystems the SL leader, Abimael Guzmán, and the SL’s leadership were retried in 2005. The new trial followed a decision of the Constitutional Court that declared the previous trial null and void, because it was conducted in the military jurisdiction, in summary manner, and with “faceless judges.” In 2006, Abimael Guzmán was sentenced to life imprisonment along with other SL leaders, who never apologized to the victims.
Angelica Mendoza Ascarza – Mama Angelica. Founding member of the National Association of the Relatives of the enforced disappeared, kidnapped, and unlawful detainees (ANFASEP)- most visible victim of the Cabitos case
The human rights violations perpetrated by State agents have also been prosecuted within the aforementioned judicial system: illustrated in the cases of Accomarca, Cabitos, Barrios Altos, and la Cantuta. Alberto Fujimori was also tried for the facts that concern these last two cases, and he was sentenced to 25 years in prison. Nevertheless, the prosecution of these cases has presented a series of technical challenges (related to the evidence and principle of legality), as well as obstructions of political nature. Proof of this is that emblematic cases such as Accomarca and Cabitos were sentenced and reached final judgments only 31 and 35 years after the events occurred (with many defendants removed from the process for health or other reasons), and that there are cases from that period that are still in trial, or even remain at the investigation stage (see cases Manta y Vilca, Fronton, and Forced Sterilizations), because they are investigating mass crimes committed by high-ranking military personnel and political leaders.
Following the TJ framework, Peru has gradually implemented a comprehensive reparations plan (CRP) recommended by the TRC. In 2005, the Congress enacted a law creating the CRP that was composed of the following 6 programs: restitution of citizens’ rights, reparations in education, reparations in health, collective reparations, symbolic reparations, and facilitation for housing access. Additionally, this law and its regulations established that the High Level Multisectoral Commission (CMAN), and the Reparations Council (RC) -in charge of the registry of victims – would be in charge of the implementation of the CRP.
The aforementioned normative framework for reparations considers the relatives of the disappeared or killed persons, displaced persons, persons who were arbitrarily detained, tortured victims, victims of rape, kidnapped persons, members of the armed forces, the national police, self-defense committees, and civil authorities wounded or injured in actions that violated their human rights as beneficiaries of the CRP. Likewise, indirect victims are also beneficiaries of the CRP, considered as such: children who were the product of rape, minors who were part of self-defense committees, people unduly accused of terrorism, and people who were undocumented because of the conflict. Peasants and native communities, and other small rural villages affected by the violence and groups of organizations of non-returning displaced persons are also beneficiaries of the CRP as collective victims. The exception to these categories are former members of the terrorist organizations, even if they suffered human rights violations, and victims who have already received reparations for other decisions or State policies.
A reburial ceremony for victims who were killed in the conflict. Photo: ICTJ
The report on reparations in Peru from the Queen’s University of Belfast indicated that until April 2018 there were 226.727 people registered in the single registry for victims; 5.712 communities and rural villages, and 127 organized groups of non-returnees were registered for collective reparations. Of this total, the CMAN has given reparations to 1.852 (32.5%) rural villages and communities in fifteen departments. Additionally, the report indicates that individual financial reparations were granted to 98.132 beneficiaries; 12.082 people were registered in the Special Registry of Beneficiaries of Reparations in Education; 139.296 beneficiaries of the health reparations program joined the National Comprehensive Health Insurance. The report also points out that as symbolic reparations, the Place of Memory, Tolerance and Social Inclusion (LUM) was created, which is a space for pedagogical and cultural commemoration, and the Monument “the eye that cries” was built as an initiative from the civil society. Finally, the report mentions that the Ombudsman’s Office registered around 2.000 victims of enforced disappearance, which has allowed their declaration of absence and access to related civil rights for their family members.
Despite the progress in reparations, there are still many challenges Peru must face. These include the many provisions and registries established for the victims, because they are confusing and mutually exclusive, which makes it difficult for victims to benefit from the reparations programs. Other challenges to execute the reparations program include the lack of coordination between the State entities, the misperception of reparations as social programs, the failure to institutionalize the budget for reparations, the lack of symbolic reparations that include public expressions, and the lack of political will to carry them out.
3. Guarantees of non-repetition
Regarding institutional reform, the Peruvian State has had limited activity. An illustrative example of this is the TRC recommendation for strengthening the independence of the administration of justice that entailed the establishment of an independent system for the appointment, evaluation, and sanction of magistrates (judges and prosecutors), and the reestablishment of the judicial career. An effort in this regard was made with the enactment of the law for the judicial career. However, no structural change or vetting system was proposed, and a large number of provisional magistrates continued to be appointed. The more visible impact of this failure in the institutional reform of the judiciary happened in 2018, when a systematic corruption web involving judges and prosecutors of the highest level, and members of the National Council of the Magistracy (CNM), the body that evaluates and appoints magistrates, was discovered to be appointing magistrates through unlawful means. After this finding, the CNM was dissolved and a National Board of Justice was created to investigate these events, remove the magistrates involved, and propose reforms for the appointment and evaluation of magistrates.
In addition, the TRC recommended measures for the armed forces and the police, which involved training in human rights, the introduction of civilian control in the intelligence services, and the definition of the police as a non-militarized civilian institution in the constitution. Even though there have been efforts to improve the human rights training for both institutions, they have not reviewed their protocols to ensure compliance with human rights standards, no civil controls have been introduced to the armed forces, and the constitutional definition of the police has not changed. The consequences of this lack of reform are evident in the mismanagement of public order crisis, especially when facing protests, which have left citizens dead and others injured in recent years (see protests of November 14, 2020 and the agricultural strike of December 2020)
Street art in Cusco. Photo: Unknown
Furthermore, the TRC recommendation to strengthen the presence of the State throughout the territory, especially in the most neglected and affected areas by the conflict, has been hardly implemented. The causes of the conflict, according to the TRC, are related to the absence of the State and exclusion in the political, social, and economic representation of a sector of the population. This link was so strong that the TRC found there was a relationship between the situation of poverty and social exclusion and the probability of being a victim of armed violence. After twenty years, these structures have not changed, and this scenario does not guarantee the non-repetition of the violent past.
4.A final remark
Twenty-one years after the armed conflict ended, is clear that the TJ period in Peru has not yet finished, and there is still a lot to do for each TJ pillar. In the current state of affairs, the reconstruction of the social tissue and the re-founding of a social pact that generates trust between citizens and in the Peruvian State institutions is a distant but urgent aspiration that could generate reconciliation in the country. Therefore, the introduction of a TJ agenda in the public policies is a task that cannot be further postponed by the Peruvian government.
PS. Some of the pictures were taken from Yuyanapaq, a graphic account of the conflict. It can be visited here
