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Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice

Author: Office of the United Nations High Commissioner for Human Rights
Date: 2010
Size: 43 pages (399 KB)

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Summary

How can national consultations support effective transitional justice programmes? This report presents national consultations as a crucial element of the human rights-based approach to transitional justice. A process of consultations ensures that there is local ownership and participation and can bolster transitional justice programmes by reigniting stalled peace processes and triggering community debate. Donors should periodically conduct consultations during the implementation of a transitional justice programme, with a view to recalibrating it and enhancing its impact.

In post-conflict settings, one of the key components to reconciliation is a system of transitional justice which examines the root causes of conflict and the human rights violations that occurred during the conflict. Consultations enable people affected by past oppression or conflict to inform the design of transitional justice programmes by freely expressing their views in a secure environment. Consultations are a form of respectful dialogue, not one-way information or public relations exercises. Even if consultations are not acted upon, they are valuable sources of information about the capacity and willingness of communities to undertake reconciliation, and about the assistance they need.

A well-designed national consultation exercise must take account of the forms of transitional justice that are envisaged for a country: the design of criminal justice-related consultations may look very different from, and be more limited than, those preceding a non-judicial exercise. Well-designed national consultations should:

• Be preceded by a mapping exercise, taking account of previous conflict patterns, to determine where consultations should take place
• Involve all the key stakeholders, including victims and witnesses of past patterns of abuse and oppression
• Be conducted in times of relative peace and security and when the relevant communities are available
• Be conducted by independent experts who have no stake in specific transitional justice outcomes
• Provide the people to be consulted with information of the transitional justice options open to them and of the specific purpose of the consultations, so that they can express informed viewpoints
• Note that while most consultations have used qualitative methods, such as focus groups, interviews and participant observation, quantitative methodologies such as surveys can also be used.

Even well-designed consultation processes are not without risk or the possibility of bias. Below are steps policymakers can take to minimise bias and to maximise consultation effectiveness:

• Consultations should be conducted with a sense of propriety and in a manner that is culturally sensitive to local conditions, demonstrating respect for victims
• An enabling and protective national legal environment for consultations must be in place, ensuring that people are not at risk of prosecution for anything they might say
• The report of a consultation exercise must always be true to the views that have been expressed, while avoiding the exposure of particular individuals or communities to retaliation.

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Source: Office of the United Nations High Commissioner for Human Rights, 2010, 'Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice', United Nations, New York and Geneva
Organisation: Office of the United Nations High Commissioner for Human Rights (OHCHR), http://www.ohchr.org