Fighting Impunity in Peacebuilding Contexts
"The interest in transitional justice transcends regional divides. This is not an exclusive concern of the North, or of the South, the East or the West. Fighting impunity is at the heart of transitional justice. From a human rights perspective it is vital for crimes not to go unpunished."
Thank you Koen,
Good morning, Your Excellencies, ladies and gentlemen,
It gives me great pleasure to welcome you all to The Hague and to this conference on fighting impunity in peacebuilding contexts. I am delighted that you have come here today from so many different corners of the globe. I would particularly like to welcome His Excellency James Orengo, the Kenyan Minister for Lands and His Excellency Francisco José Aguilar Urbina, the Costa Rican Ambassador in The Hague. Francisco Aguilar is standing in for my good friend and fellow minister Bruno Stagno Ugarte, who has been held up at home in Costa Rica. That’s the life that ministers lead, even foreign ministers! In any event, I am glad that you all could be here.
I am also very pleased that we have in our midst Dr Alex Boraine, who conceived the South African Truth and Reconciliation Commission, served as its deputy Chair, and went on to co-found the International Centre for Transitional Justice in New York. Dr Boraine, the world owes a great deal to your experience and knowledge, and we are bound to benefit from your presence here today. Thank you for joining us. And finally, a warm word of welcome to Ms Justine Masika Bihamba, the first winner of the Human Rights Defenders Tulip, an annual Dutch award honouring human rights defenders who have shown great moral courage. Justine, welcome back to the Netherlands – it is a great pleasure to have you here.
The interest in transitional justice transcends regional divides. This is not an exclusive concern of the North, or of the South, the East or the West. Everywhere where conflicts have occurred and atrocities have been committed on a large scale, societies are struggling to come to grips with their past. The desire to secure justice in the aftermath of injustice is universal. This makes it easier for us to debate this issue: we do not disagree on the need for justice, even if we may have different views on the exact road that will lead to justice.
Ladies and gentlemen,
The textbooks tell us that transitional justice constitutes a set of measures aimed at bringing about justice in extraordinary conditions. We are speaking of worst-case scenarios. Countries where gross atrocities, sometimes even crimes against humanity, have been committed. Countries with very little institutional capacity, let alone a functioning and fair judicial system. Countries that are unstable, where perpetrators may still be in power, leaving their victims in fear and without any hope of redress.
In such circumstances, there are several mechanisms – both legal and non-legal – that can be applied to advance the cause of justice. These mechanisms include prosecution – by either a domestic court or an international legal tribunal – truth commissions, amnesties, reconciliation programmes, local mechanisms, such as the Rwandese gacaca proceedings, reparations and institutional reforms. All these measures fall under the umbrella of transitional justice. One does not exclude the other: it’s not a matter of choosing between A and B. The question rather concerns the right sequence. Should we build a reliable judicial system first, before we start prosecuting? Should we opt for a complete system overhaul, running the risk of destroying whatever capacity is left? Or should we leave some of the alleged perpetrators in office, so that the system can at least continue to provide some basic necessities? These are real-life dilemmas, to which we must seek real-life solutions. This is precisely the idea behind this conference: to share experiences and shed some light on what works best in specific circumstances.
Many of the dilemmas centre around the question: what should be our priority, peace or justice? Personally I find this question misleading. Peace and justice go hand in hand. Without justice, there simply cannot be lasting peace. It is precisely as the United Nations High Commissioner for Human Rights, Ms. Pillay, said on Monday in her opening statement of the 12th session of the Human Rights Council: “It is only through the firm establishment of human rights and the rule of law that a solid foundation for sustainable peace, security and development can be built. Accountability for violations that have been committed is critical to restoring public confidence and trust.”
And I agree. How could Justine Masika tell the women in the eastern Congo where she works – women who have been raped, who have given birth to their torturers’ children – how could she tell these women: ‘Sorry, but in the interests of peace, we have given up on securing justice for you’? To me, this idea is unacceptable. It constitutes a denial of our common sense of morality. Impunity cannot be an option, because impunity would mean trampling on these women’s human rights.
Frankly, I suspect that the argument that peace should prevail over justice is all too often used as an excuse by parties that have no real interest in actually moving the peace process forward. Imagine for a moment that the Security Council had in fact invoked article 16 of the Rome Statute and requested the International Criminal Court to defer prosecution of President Al-Bashir of Sudan for twelve months, in the interests of international peace and security. Do we really think that such a decision would have brought peace in Darfur one inch closer? I don’t. I think this is just a convenient argument for those who seek to escape accountability. The end result would be neither justice nor peace. We would lose on both counts. This is why I resent attempts to frustate the ICC’s proceedings under the pretext of peace. I don’t see any sign that the arrest warrant against the Sudanese President is undermining the peace process; the process is extremely fragile as it is.
Fighting impunity is at the heart of transitional justice. From a human rights perspective it is vital for crimes not to go unpunished. Fighting impunity is also key to achieving a just peace, from the point of view both of the individual victim and of society at large. Ensuring that perpetrators do not get off free is therefore a major objective of the Dutch human rights strategy, which in turn is central to our foreign policy.
We bear an even heavier responsibility in the case of crimes of genocide, crimes against humanity and war crimes, as defined in the Rome Statute of the ICC. It is unthinkable that perpetrators of such atrocities should not be brought to justice. The Netherlands, which has the honour to host many international organisations, particularly in the field of peace and justice, fully supports the International Criminal Court and other international tribunals. This is in line with our moral and constitutional obligation to promote the development of the international legal order. And we will continue to urge others to cooperate with these international legal institutions as well.
The Netherlands also aims to strengthen the rule of law and to foster respect for human rights in other countries. The Human Rights Fund that I have established finances projects for this purpose. These projects may focus on strengthening the judicial sector, for example in Sudan, Iraq and the Western Balkans, or they may be projects that deal with combating impunity and violence against women, for example in Morocco, Brazil, India, Honduras, Syria, Jordan and El Salvador. Many of our development cooperation programmes also have substantial rule of law and human rights components. Overall respect for human rights and the rule of law has the added benefit of strengthening specific transitional justice mechanisms.
Ladies and gentlemen,
Hugo Grotius, the founding father of international law, who was born within a stone’s throw of here, wrote: ‘where judicial settlement fails, war begins’. His message still rings true today: without just peace, there will be no peace at all.
I wish you all an inspiring conference. Thank you.