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Mechanisms

  • Transitional justice mechanisms refer to a range of judicial and non-judicial approaches that societies undertake to address the legacy of widespread human rights abuses, as they move from a period of conflict and violence towards peace, democracy, and the rule of law (Bastick et al, 2007; UNFPA 2012). The main objectives of transitional justice are: (i) to introduce processes of accountability and acknowledgment that can reconcile all parties to the conflict and the affected populations; and (ii) to prevent and dissuade reoccurrence of conflict in an effort to creating an atmosphere of sustainable peace (Mobekk, 2006 as cited by Bastick et al, 2007).
  • For post-conflict settings, a transitional justice policy may contain many interrelated elements, such as:
    • Criminal prosecutions, particularly those that address perpetrators considered to be the most responsible. However, these cases are rarely prosecuted nationally. As a result, international and internationalized mechanisms driven by external agencies, including the UN, international humanitarian and human rights actor, may be created.
    • Reparations, through which governments recognize and take steps to address the harms suffered. Such initiatives often have material elements (such as cash payments or health services) as well as symbolic aspects (such as public apologies or days of remembrance).
    • Institutional reform of abusive state institutions such as armed forces, police and courts, to dismantle—by appropriate means—the structural machinery of abuses and prevent recurrence of serious human rights abuses and impunity.
    • Truth commissions or other means to investigate and report on systematic patterns of abuse, recommend changes and help understand the underlying causes of serious human rights violations (Adapted from ICTJ website.
  • Transitional justice can be practiced through a combination of temporary, specifically created bodies and a state’s permanent justice mechanisms. Some transitional justice systems can have broad jurisdiction while others are much smaller and targeted (adapted from Bastick et al. 2007; IASC, 2011). Experience has shown that beyond offering redress for the specific crimes women have survived, transitional justice mechanisms have the opportunity to bring about transformative change in the lives of survivors (UNWOMEN, 2011).

Example: Timor-Leste - After years of conflict in Timor-Leste, elements of customary justice were incorporated into transitional justice processes, in order to localize justice and accountability at the community level. In addition to the Serious Crimes Process, the Commission for Reception, Truth and Reconciliation (Comissão de Acolhimento, Verdade e Reconciliação – CAVR) was created to hear testimonies and document a range of conflict-related crimes. Serious crimes were referred to the courts for prosecution while offences considered less serious, such as looting and burning of property were dealt with through community-level reintegration and reconciliation processes implemented by the Commission. Among the CAVR’s activities was a community reconciliation programme based on the customary practice of nahe biti boot (spread out the big mat). It involved the public confession and apology of perpetrators who came forward. A local panel moderated the process and facilitated the negotiation of an act of reconciliation acceptable to the victim, such as community service, reparation, or other forms of compensation. After the session was concluded, a community reconciliation agreement was registered with the appropriate district court and once it had been fulfilled, the accused were granted immunity from criminal and civil liability.

Women’s representation was mandatory on the arbitration panels to ensure that they had a role in shaping them. The women who participated stated that it took time to build trust among the male elders and to convince them that women could be involved in conflict resolution. Gradually however, acceptance of their participation grew and the women became respected in these new roles

Source: excerpted from UNWOMEN, 2011, pg. 94.

 

Additional Tools

 The Prosecution of Gender-based Sexualized Violence in War: A Resource Manual (Medica Mondiale. 2009). This is the third revised and suplemented edition of medica mondiale’s Resource Manual on the prosecution of sexualized violence in armed conflict. The Manual intends to lay the foundation for a continuously growing documentation of international norms on and legal responses to sexualized war violence. The manual intends to be a general source of information for women activists not specifically trained in law and can be used as a tool for training purposes. Available in English.

 

Additional Resources

 Human Rights, Transitional Justice, Public Health and Social Reconstruction (Pham P.N., Vinck, P. and Weinstein, H.M,/Soc Sci Med. 70(1): 98-105, 2010). Available in English.

Under-enforcement and Intersectionality:  Gendered Aspects of Transition for Women International Journal of Transitional Justice (Fionnuala Ni Aolain and Eilish Rooney/ Transitional Justice and Reconciliation Vol. 1, No. 3, 2007). Available in English.

Transitional Justice and ESDP (Committee for Civilian Aspects of Crisis Management, Council of the European Union, Brussels, 10674/06, DG E1, 19th June 2006). Available in English.

 

1. Truth and Reconciliation Commissions

  • Truth and Reconciliation Commissions (TRCs) are officially sanctioned, temporary, non-judicial bodies whose aim is to officially acknowledge and condemn the human rights abuses committed, promote accountability and fight impunity, and to provide survivors with a forum to tell their stories. Often, TRCs also make recommendations for reparations programmes and institutional change (UNWOMEN, 2011; Bastick et al. 2007).
  • Recommendations made by TRCs have the potential for sustainable long-term impact on societies. However, TRC mandates have historically been gender-blind and failed to address the specific needs of survivors of VAWG. Furthermore, experience has shown that lack of protection services offered by TRCs has prevented many women from participating. As of 2011, the measures required to ensure both the physical and psychological safety of the victims and witnesses, and ensure their dignity and privacy, have never been put in place by a commission (UNWOMEN, 2011, pg. 95).
  • In addition, TRCs may not be effective in all cultural and political contexts and some gender justice advocates question the benefits of publicly sharing trauma and express concern that participating in TRCs can cause re-traumatization for survivors (UNWOMEN, 2011).

Example: Gender Sensitive TRCs in Peru, Timor-Leste and Sierra Leone. The truth commissions in Peru, Timor-Leste and Sierra Leone have drawn special attention to gender issues, employed more women staff members and involved local women’s organizations to a much greater extent than before. The 2001 Peruvian Truth Commission (Comisión de la Verdad y Reconciliación – CVR) was the first in which sexual violence was fully acknowledged, with a commitment made to mainstream gender into the proceedings, overseen by a special unit. In Sierra Leone, UN Women supported the work of the Truth and Reconciliation Commission to ensure that there was a comprehensive gender strategy. Women’s organizations were funded to facilitate outreach to local communities and provide transport, medical assistance and childcare for women witnesses. A data system was set up to collect sex disaggregated statistics. The Timor-Leste CAVR had a dedicated gender unit, which worked closely with women’s organizations. Community-based hearings allowed women to talk about their experiences in the conflict, including in their roles supporting the resistance movement. At the national hearings for women, for the first time in the history of Timor-Leste, women spoke out publicly, with people across the country following the hearings on television and radio. Similarly, in Sierra Leone, some women wanted to narrate their experiences in public, rejecting the notion that they should bear the stigma alone or keep their experiences private. However, for many others, particularly survivors of sexual violence, closed session hearings are vital to guarantee the confidentiality and safety necessary to enable women to come forward.

Source: excerpted from UNWOMEN, 2011 pg. 95).

 

Additional Resources

Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission (Human Rights Watch and Truth and Reconciliation Commission, Volume 3b. Freetown: Government of Sierra Leone, 2005).  Available in English.

Gender and Truth Commission Mandates (Vasuki, N. No date). Available in English.

Rule-of-Law Tools for Post-Conflict States, Truth Commissions (UN Office of the High Commissioner for Human Rights (OHCHR), 2006).  Available in English.

2. Reparations Programmes

  • Reparations programs are adopted by States, sometimes on the recommendation of courts or TRCs. They are intended to address the suffering of victims, compensate them for past harms associated with violations of human rights during conflict or repression, and help them rebuild their lives (UNWOMEN, 2011; Bastick et al. 2007).

Reparations can include:

  • Restitution: measures aimed at restoring the victim to the original situation before the crime occurred, including: restoration of liberty, return to one’s place of residence, restoration of employment and return of property.
  • Compensation: monetary awards for economically assessable damage, such as: physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings; moral damage; costs required for legal or expert assistance, medicine and medical services and psychological and social services.
  • Rehabilitation: medical and psychological care, as well as legal and social services.
  • Satisfaction: includes: establishing the truth about the crimes; the search for the whereabouts of the disappeared and for the bodies of those killed; public apology, and commemorations and tributes to the victims.
  • Guarantees of non-repetition: measures aimed at ensuring that victims are not subject to other crimes, including: strengthening the independence of the judiciary; human rights training for law enforcement officials as well as military and security forces; and reforming laws that contributed to or allowed the crimes to be committed.

Source: Excerpted from Amnesty International. n.d. Full Reparation.”

  • Reparations programs are considered the most survivor-centred of justice measures for women. That said, VAWG has been inadequately covered by reparations programmes: as of 2011, no programme has explicitly included other forms of reproductive violence including forced pregnancy, forced abortion, forced sterilization (UNWOMEN 2011). In order to better ensure that VAWG survivors are included and that their needs are appropriately met, reparations programmes should:
    • Consider gender dimensions throughout both programme planning and implementation (Bastick et al. 2007).
    • Be comprehensive, including individual and collective reparations, access to services including health care, symbolic measures such as acknowledgement and apology by the state as well as measures that attempt to empower women more generally and decrease vulnerability to future violations, including livelihood and skills training. Evidence has shown that reparations which support economic empowerment can contribute to transformative justice by placing beneficiaries in a better position to break historic patterns of subordination and social exclusion (UN Human Rights Council as cited by UNWOMEN, 2011).
    • Link to broader reforms including legislative reforms to repeal discriminatory legislation and other measures that would contribute to ‘guarantees of non-recurrence’ a key goal of reparations.
    • Ensure confidentiality. For example, in Timor Leste, survivors of VAWG were awarded the same amount as those who suffered other violations in order to minimize the risk that the VAWG survivors would be identified based on the amount received (UNWOMEN, 2011).
    • Ensure participation and consultation with beneficiaries in the design of modalities and implementation of reparations to ensure that they are appropriate to the context and can in fact contribute to ‘repair’ the harm. For example, in some countries victims have preferred lifetime pensions and access to services, in some contexts individual reparations and compensation was prioritized, in others collective (UNWOMEN, 2011).

Example: Reparations in Sierra Leone. Beginning in August 2008, the government of Sierra Leone and the United Nations implemented a one-year project aimed at building the institutional capacity of the National Commission for Social Action (NaCSA) to implement the TRC recommendations related to reparations, such as: building/improving infrastructure for reparations, administering urgent interim reparations, and registering victims. This project received $3 million USD from the United Nations Peacebuilding Fund. As of 2010, a total of 29,733 victims had been registered, including victims of sexual violence who were among the 5 categories of victims prioritized for urgent interim assistance. Sexual violence victims received nominal compensation (one-off payment) and 235 received fistula surgery. The UN Trust Fund to end Violence against Women and Government of Germany subsequently expanded the reparations programme for sexual violence victims by providing, for example, microcredit, human rights training, and psychosocial counseling. Funds are being solicitated for the expansion of benefits which would include (free of charge) physical health care, fistula surgery for those in need, HIV/AIDS and STI testing and treatment for victims of sexual violence. Subject to availability of funds, housing could also be provided for the most vulnerable victims

Source: excerpted from US Institute of Peace, Truth Commission: Sierra Leone.

Example: Reparations in Peru.  Peru’s Truth Commission recommended a Comprehensive Plan of Reparations (PIR) —including individual and collective reparations, access to services, symbolic reparations etc. The PIR is composed of seven programmes: civil rights restitution, reparations in education, reparations in health, collective reparations, symbolic reparations, economic reparations and access to housing. In terms of sexual violence however, only rape is included in their reparations programme. Based on recent policy decisions made by the Peruvian Government, the scope of SV victims able to benefit from the plan would be further limited to women who are over the age of 60 – effectively excluding the vast majority of victims from that country’s conflict.
Example: Reparations in Colombia.  Colombia’s new Victim’s Law on Reparations and Land Restitution includes amongst its beneficiaries children born of rape – a neglected category of beneficiary in most contexts. The law itself combines issues of reparations and land restitution: an important step forward in providing reparations not as limited compensation for the specific violation but rather a broader notion of reparative justice which aims to redress underlying gendered inequalities. However given that sexual violence has associated with forced displacement and land theft, including being used as a tool to drive communities from land and to prevent women from (re-)claiming land, the challenge for this law will be to ensure women’s security and protection so that the reparations programme does not in fact do further harm (ie, expose them to insecurity and violence) rather than ‘repair’.
Example: Reparations in South Africa (2003).  South Africa’s reparations programme originated directly from its TRC, which identified which victims could benefit from the reparations programme. Although the TRC did not explicitly include SGBV crimes in its mandate—rather these crimes fell under “gross violations of human rights” defined as “the killing, abduction, torture or severe ill-treatment of any person”— several forms of sexual violence were included under the concepts of “torture” and “severe ill-treatment,” including assault to genitals and breasts, rape, beating leading to miscarriage and sexual abuse. It is unknown how many victims of sexual violence benefited from South Africa’s reparations programme which consisted of approximately 20,000 one-off payments of approximately US$3500 to TRC-identified individual victims.
Example: Reparations in Guatemala.  Under the National Reparations Program (PNR) of Guatemala victims of sexual violence qualified for reparations. However other forms of gender violence were excluded, such as sexual slavery, forced labor, forced unions with captors, sexual torture, and amputation and mutilation of sexual organs. Also, SV victims did not qualify for material restitution unless they had also lost property through any of the other human rights violations (such as displacement or massacre). Eventually, in September 2005, a single, lump sum payment (economic indemnification) was agreed to for victims of sexual violence in the amount of 20,000 Quetzals (U.S $2,667).
Example: Reparations in Chile. The National Commission on Political Imprisonment and Torture, also known as the Valech Commission, identified 28,459 victims of torture including about 3,400 cases of sexual abuse of women. Following the completion of the Commission’s work, a law was enacted to provide reparations for the torture victims identified in the report. This would include annual pensions of between approximately US$2,300 and US$2,600 for survivors of sexual abuse. Children born in prison or detained with their parents would also receive a lump-sum payment of approximately US$6,800. Reparations for survivors of torture also include: access to the Comprehensive Reparations Program in Health Care, scholarships to enroll in university programmes, and exemption from the military service to the survivors’ children. The reparation pensions begun to be paid to the victims identified by the Commission four months after the law was passed and the victims were able to apply for scholarships within a year.
Example: Reparations in Timor Leste. The Timor Leste Truth Commission administered an Urgent Reparations Program (URP). The URP was funded through a Community Empowerment Program (CEP) of the Ministry of Interior which, in turn, was funded through a World Bank grant. Through the URP, approximately 700 of the “most vulnerable” victims selected by the CAVR were referred to organizations providing medical and social services, attended a healing workshop, and given grants of US $200.  Sexual violence victims were included in the definition of ‘most vulnerable.’

 Additional Resources

United Nations Secretary-General's 21-Page Guidance Note on Reparations for Conflict-Related Sexual Violence (2014).  Available in English.

Reparations, Development and Gender (UN Women and UNDP, 2012).  Available in English.

Sierra Leone: Getting Reparations Right for Survivors of Sexual Violence (Amnesty International, 2007).  Available in English.

Conflict-related sexual violence: report of the Secretary-General (United Nations Secretary-General A/66/657–S/2012/33). Available in English.

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