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# L'approche française de la justice transitionnelle

Alain Laraby, Arnaud Garcette

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Alain Laraby, Arnaud Garcette. L'approche française de la justice transitionnelle. Ministère des Affaires étrangères et du Développement international. 2014, pp.24. halshs-05118880

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NEW HORIZONS FOR
TRANSITIONAL JUSTICE,
A FRENCH APPROACH

STRATEGY REPORT

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Directorate-General of Global Affairs, Development and Partnerships

2014
The full report is available on the France
Diplomatie website

http://www.diplomatie.gouv.fr/en/photos-
publications-and-graphics/publications/

This document is a summary of a final report
commissioned by the French Ministry of Foreign
Affairs and International Development.
The analysis and remarks contained herein
commit only their authors and do not constitute
an official position.

All adaptation, translation and reproduction rights,
using any means including photocopy and microfilm,
are reserved for all countries.

Acknowledgements

The authors would like to thank all participants
in the seminar series "International and transitional justice:
for a French diplomatic doctrine", as well as Charles Girard,
Joël Hubrecht and Kora Andrieu.
NEW HORIZONS FOR TRANSITIONAL JUSTICE,
A FRENCH APPROACH

Report coordinated by:

Arnaud Garcette (Ministry of Foreign Affairs and International Development/
Directorate-General of Global Affairs, Development and Partnerships – DGM)

Alain Laraby (Ministry of Foreign Affairs and International Development/
Analysis, Planning and Strategy Centre – CAPS)
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# Table of contents

<table><tr><td>Foreword</td><td>6</td></tr><tr><td>Introduction: the French approach to transitional justice</td><td>7</td></tr><tr><td>Chapter 1 The stakes: understanding transitional justice</td><td>8</td></tr><tr><td>1.1 The basis of transitional justice</td><td>8</td></tr><tr><td>1.1.1 The "four pillars" of transitional justice</td><td>8</td></tr><tr><td>1.1.2 The various contexts of transitional justice</td><td>9</td></tr><tr><td>1.2 The parameters of transitional justice</td><td>9</td></tr><tr><td>1.2.1 The time parameter</td><td>9</td></tr><tr><td>1.2.2 The ownership parameter</td><td>9</td></tr><tr><td>1.2.3 The security parameter</td><td>10</td></tr><tr><td>1.3 Synergies: justice, diplomacy and development</td><td>11</td></tr><tr><td>1.3.1 Reconciling justice and peace</td><td>11</td></tr><tr><td>1.3.2 Transitional justice and institutional justice</td><td>11</td></tr><tr><td>1.3.3 For a holistic approach to diplomacy</td><td>12</td></tr><tr><td>1.3.4 Rule of law and development</td><td>13</td></tr><tr><td>Chapter 2 Principles and approaches adopted by France</td><td>14</td></tr><tr><td>2.1 Drawing on and strengthening existing assets</td><td>14</td></tr><tr><td>2.1.1 Supporting victims' rights</td><td>14</td></tr><tr><td>2.1.2 Strengthening democratic governance</td><td>15</td></tr><tr><td>2.1.3 Expanding the civic space</td><td>16</td></tr><tr><td>2.1.4 The media and peacebuilding</td><td>16</td></tr><tr><td>2.1.5 Strengthening international legal institutions</td><td>17</td></tr><tr><td>2.2 Inventing new tools and partnerships</td><td>17</td></tr><tr><td>2.2.1 Mobilizing France's research institutions and operators</td><td>17</td></tr><tr><td>2.2.2 Forging partnerships with local stakeholders</td><td>17</td></tr><tr><td>2.2.3 Tying transitional justice into security processes</td><td>18</td></tr><tr><td>2.3 Encouraging coherent international action</td><td>18</td></tr><tr><td>2.3.1 Expanding cooperation with the institutions and countries of the French-speaking world</td><td>18</td></tr><tr><td>2.3.2 Drawing on the expertise of the International Organisation of La Francophonie</td><td>19</td></tr><tr><td>2.3.3 Fuelling debate in consultation and decision-making forums</td><td>19</td></tr><tr><td>Useful websites</td><td>22</td></tr><tr><td>Acronyms and abbreviations</td><td>23</td></tr></table>
Foreword

Experience of transitional justice shows the extent to which national reconciliation processes are essential during post-crisis and restructuring phases and to prepare for the development phase. France aims to contribute its full support by drawing on the various transitional justice initiatives in order to restore the confidence of populations in their institutions. In countries deeply affected by mass crimes, transitional justice helps lay the foundations for long-term social and economic development. Several emerging countries are a demonstration of that.

To address that concern, and particularly in French-speaking countries, the Ministry of Foreign Affairs and International Development organized a seminar series entitled “International and transition justice: for a French diplomatic doctrine” in 2011 and 2012, in partnership with the *Institut des hautes études sur la justice* (IHEJ). These seminars regularly brought together specialists from various fields (legal experts, diplomats, military personnel, NGOs, etc.) to discuss their experiences and transitional justice issues. During those sessions, the group looked at several case studies and specific themes common to a number of countries. Symposia were open to a wider audience and enriched these discussions, helping to:

* review current research into transitional justice, emphasizing French and French-speaking expertise and focusing on a common approach;

* put theory into practice and identify synergies to establish with existing French strategies and actions in the areas of post-conflict reconstruction, legal and judicial cooperation, support for international criminal justice, security system reform, support for electoral processes, strengthening the rule of law and promoting human rights;

* produce guidelines and, more generally, aid in decision-making for French institutional players, using summaries based on discussions and scoping papers produced during the seminar.

These recommendations are based on all of those reflections, which have been shared at intermin-
isterial level and aim to determine France's positioning in terms of transitional justice. They should
help better coordinate work in this area with France's diplomatic and cooperation efforts.

Justin Vaisse

Director of the Analysis, Planning and Strategy Centre

Marc Trouyet

Deputy Director of the Democratic Governance Department,
Directorate-General of Global Affairs, Development and Partnerships

Ministry of Foreign Affairs and International Development
Introduction:

THE FRENCH APPROACH
TO TRANSITIONAL JUSTICE

Working alone or in multilateral frameworks, France is constantly engaged in numerous peacekeeping, reconstruction and transition support processes. In the diplomatic field, France's action is conducted through the many projects and channels of development assistance. When required by the situation, it takes military action to protect civilian populations, which are the first victims of conflict. France responds to complex situations where security issues are accompanied by the demands of justice and where addressing the challenges of the future is bound to the torment of the past.

Its support is thus requested to strengthen transitional justice mechanisms and help combat impunity (at national, regional and interregional levels). Given its longstanding involvement in insuring the rule of law, in promoting international criminal justice and in all forms of mediation and reconciliation, France would like to address such requests on the basis of its capacities and the legitimacy of these processes.

Transitional and international justice are central to such post-conflict and democratic transition situations, but are however subject to various interpretations and, consequently, responses which are not always entirely coherent.

A French approach in this area appears necessary for several reasons, and so:

* principles should be **drawn up** for French diplomacy and development cooperation in the area of combating impunity and supporting reconciliation;

* a framework for action should be **established** to facilitate coordination of French players and mobilization of French and French-speaking expertise. That expertise exists but needs to be coordinated and enhanced;

* legitimate local players should be **supported** as well as possible, to ensure demands for truth, justice and reparation of victims are echoed internationally and locally;

* a French vision should **impact on debates** and international efforts. That vision needs to be conceived collectively in the light of transitional justice experiences worldwide;

* cooperation instruments that serve local and international players should be **redesigned and invented**, as they are often surpassed by the scale of crises and the urgency of democratic and post-conflict transition situations;

* interactions between diplomacy, development and the various forms of justice should be **understood** more widely;

* collective reflection should **take place**, incorporating the above principles into cooperation programmes and diplomatic negotiations.

To best approach those ambitious goals, it should first be recalled that this document does not aim to be exhaustive. It seeks to highlight the synergies that need to be developed between the different types of diplomacy, including political, legal, economic and cultural forms, and the response to security and development issues.

We feel is important to underline that international and transitional justice is not just a national matter. It is constructed and develops both in international frameworks and at very local, or even individual levels. France is therefore committed to developing and implementing a specific approach, tailored to legal and cultural realities and traditions where it takes action.

The aim of this approach is to make France's efforts in the fight against impunity and supporting reconciliation as effective as possible, so as to reduce conflict situations and promote peace wherever that can be done.
# Chapter 1

## THE STAKES: UNDERSTANDING TRANSITIONAL JUSTICE

### 1.1 The basis of transitional justice

From the 19th century until the Second World War, there was a tension between peace and justice, with seeking peace prevailing over the fight against impunity. The advent of the Nuremberg and Tokyo tribunals after the Second World War established the principle of international criminal justice with the aim of punishing mass crimes. Further developments were held back throughout the Cold War and decolonization, before a real change in visions of international relations took place during the 1990s. The end of the bipolar world led to the emergence of a new type of conflict and "multidimensional" responses going far beyond security.

A new paradigm is beginning to set in around "transitional justice", a holistic approach incorporating conflict settlement and democratic transition. Transitional justice aims to go above and beyond the strict framework of criminal justice, which is crucial for combating impunity but insufficient to help whole populations recover from mass crimes and avoid further conflicts.

#### 1.1.1 The “four pillars” of transitional justice

Louis Joinet<fnref n="1" /> summarized transitional justice under four pillars:

* **the right to the truth** (establishment of facts, seeking of missing persons, archives, etc.);

* **the right to justice** (commissions of inquiry; national, regional, international and mixed justice; etc.);

* **the right to reparation** (individual and/or collective reparation programmes, public apologies, memorials, remembrance, etc.);

* **the guarantee of non-recurrence**, through the implementation of institutional reforms (constitutions, structural reforms, security institutions, etc.).

The latter pillar has a wider scope, particularly because of the importance of the disarmament, demobilization and reintegration (DDR) process and security system reform (SSR) which are often attached to it. From that perspective, vetting policies for the armed forces and public officials (police and justice) are important in order to ensure that the perpetrators of massive human rights violations are not reemployed in the new judicial and security institutions.

This vision of transitional justice is taken up by a great number of international players. The United Nations Human Rights Council in particular created a Special Rapporteur's mandate<fnref n="2" /> based on the “Joinet pillars”. This typology is also used by the Office of the High Commissioner for Human Rights (OHCHR) in its work. The International Organisation of La Francophonie (IOF) and the Swiss Federal Department of Foreign Affairs (FDFA), two of France's major partners in this area, also employ the definition of transitional justice built around these four pillars.

Taking into account vulnerable groups (women, children, minorities and disabled persons) is a crucial aspect of each pillar. Otherwise, the discrimination that may have led to past abuses and conflicts may re-emerge during reconstruction.

#### 1.1.2 The various contexts of transitional justice

Transitional justice takes place in a great variety of contexts. It is important to avoid indiscriminate application of solutions and “off the shelf” templates, always bearing in mind that the most

<footnote n="1">1. Louis Joinet (Ed.), *Lutter contre l'impunité : 10 questions pour comprendre et agir*, Paris, La Découverte, 2002.</footnote>

<footnote n="2">2. Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence: http://www.ohchr.org/EN/Issues/TruthJusticeReparation/Pages/Index.aspx</footnote>
sensitive aspects of such processes stem from the contexts
that shape them:

* **situations of genocide and mass crimes**, after which the international community employs *ad hoc* or mixed jurisdictions to judge senior officials, such as in Rwanda, former Yugoslavia and Cambodia;

* **immediate post-conflict phases**, during which demands for justice following massive violations of human rights may seem to be an obstacle to peace talks. The transitional justice process therefore needs to reconcile political and security issues, as in Burundi, the Central African Republic, Côte d'Ivoire, Guinea, Mali, Sierra Leone and Uganda;

* **periods of major political transition** or of breaking away from an authoritarian regime are generally appropriate moments for significant societal changes, such as in South Africa, Chile, Peru and, more recently, Tunisia;

* **transitional justice outside of a transition phase** but following a certain period of human rights violations, or a break-away from institutional continuity, as in Morocco, Togo and even Lebanon. In some countries, such processes are instrumentalized for the purposes of consolidating legitimacy, so as to give the impression of moving on from the past;

* **democratic states** where tensions linked to the past remain present many years after the events, such as in Brazil, Canada and Spain.

# 1.2 The parameters of transitional justice

## 1.2.1 The time parameter

The "time parameter", which varies greatly from situation to situation, involves reconciling agendas that do not necessarily have the same timescale. For example, the timescale of politics is not that of justice, which is itself not that of reconciliation, security stabilization or development. Similarly, the timescale of truth is not that of reparation, and even less that of institutional reforms, which take years or decades.

Another dimension of the time parameter is linked to a *posteriori* efforts to address past events. The issue of missing persons – and the legal logic enabling the statute of limitations to be postponed so long as the bodies have not been found or as the disappearance has not been explained – is one illustration.

It is important to remember that all pillars and components of transitional justice cannot be tackled at once. Two pitfalls need to be avoided: excessive haste to achieve the necessary reconciliation, or constant postponement at the risk of causing a situation of impunity.

The initiation of a transitional justice process first requires stabilization of the security situation. That requirement is no barrier to beginning reflection and consultations during the stabilization phase concerning the purpose and role of such a process and the form it should take.

The sequences of transitional justice should therefore be coordinated depending on their timescales. Those include urgency (creation of inquiry and investigation units, reestablishment of ordinary courts, reconstruction of the basis of the state, facilitation of the return of refugees, etc.), the medium term (establishment of a truth and reconciliation commission, support for media, SSR and DDR processes, reparations, etc.), and the long term (education reform, remembrance policies, etc.).

## 1.2.2 The ownership parameter

Transitional justice aims to achieve goals and changes that outlive periods of transition. It needs to be tied into a national agenda to be successful in combating impunity and ensuring non-recurrence. The principle of national ownership is essential from that point of view. It concerns at once the authorities, the population and the intermediary bodies. For example, an *ad hoc* or transitional legal system will be much more viable if it is coordinated with the national legal system.

The same applies to mechanisms such as truth and reconciliation commissions (TRCs), which are a component of transitional justice. It is important for such bodies not to exist completely outside of institutions, so that their recommendations and inquiries do not go unheeded when such a commission – by nature temporary – is closed.

National ownership of transitional justice is greatly facilitated by development and development cooperation programmes. The international cooperation initiated in the framework of the Millennium Development Goals (MDGs), and in that of the future Sustainable Development Goals (SDGs), can contribute to reconciliation, so long as the design and implementation of these goals take into account the issues of transitional justice.
## Commissions of inquiry in Tunisia

Following the fall of President Ben Ali on 14 January 2011, a provisional authority was established for the “realisation of the objectives of the revolution, political reform and democratic transition”.

Two commissions were set up to support the political transition when that authority was put in place: a National Fact-Finding Commission on Corruption and Embezzlement to investigate cases that occurred throughout Ben Ali's reign, and a National Fact-Finding Commission to investigate the abuses during the recent period, aimed at establishing the truth of serious violations committed between 17 December 2010 – the day of the self-immolation of a young Tunisian – and 23 October 2011 – when the first free elections were held. Two decree-laws were promulgated, providing for material and symbolic reparations for former political prisoners and the “martyrs and wounded of the revolution”. Certain cases concerning past violations were referred to the military tribunals.

In January 2012, a Ministry of Human Rights and Transitional Justice was created to coordinate a national dialogue on transitional justice and encourage the drafting, by a technical committee of civil society representatives, of an organic law on transitional justice, based on wide consultations.

That law was adopted on 15 December 2013, creating three specialist chambers to judge grave violations of human rights committed between 1955 and 2013; a Truth and Dignity Commission to investigate those violations and compile a victims database; a Fund for the Dignity and Rehabilitation for Victims of Tyranny; a Committee for Vetting Public Servants and Institutional Reform, and a technical committee for arbitration and reconciliation.

### 1.2.3 The security parameter

Some members of the armed and security forces (such as police, gendarmerie and intelligence services) can be central to the abuses committed, either through their direct involvement in human rights violations or through their inability to protect populations from such violations. They may also be concerned as victims. They are often later asked to testify and participate in the reconstruction and reconciliation process. It is essential to recognize this link between transitional justice and security institutions, so that synergies can be established with international justice and security support.

The armed forces can contribute to the realization of transitional justice, but that does raise three questions concerning:

* coordination between the timescale of justice and that of security system reform (SSR);

* the socio-historic relationship between a population and its army and security services;

* vetting: the screening of persons involved in a fallen authoritarian regime or in abuses committed during a conflict, with a need for clarity concerning any possibility for them to be reintegrated into the system. That is a central issue both for local and international armed forces and for police, judges and other personnel from the sovereign institutional sphere.

The risk of vengeance and the difficulty of vetting are real. The aim is more to break away from the “culture of impunity” than to identify the guilty, which can fuel cycles of revenge and also consolidate political power relations and exclude parts of the population. Vetting efforts need to be carried out with great care to avoid causing other human rights violations (particularly purges, expropriation and denial of civil and political rights).

The security parameter does not simply boil down to vetting of security forces in the strictest sense of the term. Vetting of the judiciary also contributes to restoring the rule of law.
# 1.3 Synergies: justice, diplomacy and development

## 1.3.1 Reconciling justice and peace

Transitional justice is unique in that it confronts two imperatives that are not always compatible on the face of it. Justice and reconciliation appear to be contradictory as the return to peace often involves an amnesty. However, a general amnesty can be more a factor of tension than a factor of peace.

What place can be accorded to justice in a reconciliation process without enshrining impunity? In that situation, how can the conflict over the past and social obstacles – or even violence – be avoided? Truth and reconciliation commissions (TRCs) help facilitate coordination between justice and reconciliation processes.

## 1.3.2 Transitional justice and institutional justice

The issue of coordinating justice at national, regional and international levels is crucial for transitional justice to have real effect. Institutional justice is not sufficient at any of these levels to cover

all the fields and situations that a transitional justice process needs to handle.

* **At national level**

It is important for victims to be able to take legal action as a civil party in order to initiate criminal proceedings. That possibility for victims is a specific feature of civil law drawing on French traditions, different from that of common law legal tradition. The existence of a TRC in no way excludes institutional justice. On the contrary, it may prove necessary in certain contexts. In Togo, for example, the TRC can refer certain cases to the judicial authorities, while trials have been held in Peru following the work of its commission.

The implementation of reparation and compensation programmes can lead to judicial reparation and thus referral to the national – most often criminal – courts or to an *ad hoc* commission.

Traditional chiefdoms, customary justice and hybrid customary jurisdictions (*gacaca* in Rwanda or *bashingantahe* in Burundi) can play an essential role, being very close to local populations. The sentiment of ownership of transitional justice by the authorities of the countries concerned is thus facilitated. Taking into account the various sources of law helps improve understanding of the dynamics of reconciliation at local level.

Constitutional justice must not be forgotten. Where a constitutional court exists, such as in South Africa, it can and must play an essential role in constitutionalizing the recommendations of the TRC, enshrining certain principles linked to reparation and ensuring the constitutionality of transitional justice and amnesty laws.

* **At regional and international levels**

Regional human rights courts, like the Inter-American and European Courts of Human Rights, play a key role with regard to the right to reparation, defining impunity and enshrining the international responsibility of the state. Regional organizations such as the African Union can also contribute to transitional justice by deploying missions of inquiry.

## History, remembrance, culture

"You cannot turn a page before reading it." (Louis Joinet). Transitional justice does not aim to recreate a common memory as if the national story could be reduced to a single narrative. On the contrary, it seeks to accommodate and enable coexistence of differing memories, showing that they are in no way mutually exclusive. National reconciliation certainly does not impose an official collective memory.

Remembrance policies come in various forms, including memorials, local and national museums, real and virtual monuments, and access to archives. They rely on questioning dominant narratives, opening archives to historians and giving a voice to survivors, their loved ones and their descendants.
In the fight against impunity, transitional justice and international justice are complementary in various ways:

* the status of *ad hoc* tribunals (International Criminal Tribunal for the former Yugoslavia – ICTY – or International Criminal Tribunal for Rwanda – ICTR) established the principle of concurrent competence between international and national jurisdictions;

* the Rome Statute of the International Criminal Court (ICC) established the principle of complementarity. The role of the ICC is to judge the perpetrators of the most serious crimes, leaving national courts the competence to handle the majority of post-conflict prosecutions.

The work of the ICC goes above and beyond the mere enforcement aspect. The Court can carry out a preventive preliminary examination to collect information in the field, after which it can decide whether to open an inquiry. Inquiries may be conducted in parallel with the Office of the High Commissioner for Human Rights (OHCHR) and other United Nations experts, by regional organizations, or by international NGOs in collaboration with national NGOs;

* the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also have an important and sometimes decisive role in combating impunity.

### 1.3.3 For a holistic approach to diplomacy

As transitional justice processes are multifaceted, it is important to develop an integrated, contextualized approach to assistance provided on the ground:

* **at institutional level.** Transitional justice does not take place in isolation. It needs to be tied into the different forms of mediation at local, national and international levels;

* **at stakeholder level.** It is important to consider all civil society stakeholders (particularly women), as well as the authorities and religious movements, trade unions, etc., without whose support transitional justice cannot be established successfully at local level.

Specific situations require tailored responses. In order to reconfigure the political sphere in a context of fragility for the stakeholders of the transition and competing legitimacies ("grassroots"

## Transitional justice in Cambodia

In the mid-2000s, the creation of Extraordinary Chambers in the Courts of Cambodia (ECCC) helped build bridges and synergies between bilateral cooperation projects aimed at strengthening the national judicial system and establishing an international justice system.

That coordination was manifest in the texts themselves, as the UN had established that the Chambers should function based on the usual procedure for international criminal justice. The efforts of French NGOs such as Avocats sans frontières (Lawyers without Borders) made it possible for individuals to join proceedings as civil parties in accordance with local procedure that draws on civil law. Coordination with the national level was enhanced by the presence within the ECCC of a magistrate trained at the Cambodian Royal Academy for Judicial Professions (RAJP).

legitimacy versus "elected" legitimacy), a receptive, neutral posture is needed.

### 1.3.4 Rule of law and development

The United Nations has taken care to underline that strengthening the rule of law is meaningless unless attention is paid to transitional justice in post-conflict situations. In point B-5 of the Guidance Note of the Secretary-General on the UN Approach to Rule of Law Assistance of April 2008, the benefits of transitional justice mechanisms are highlighted to ensure a rule of law compliant with international norms and standards.

Transitional justice often proves necessary to lay the foundations for the rule of law and democratic governance, but these factors also have an impact on the process of transition.

For that impact to be significant, development assistance needs to draw on the principles of the Paris Declaration (2005) and the Busan Declaration (2011) on aid effectiveness.
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## Chapter 2

### PRINCIPLES AND APPROACHES ADOPTED BY FRANCE

Transitional justice processes aim to restore the rule of law as a priority of the post-crisis and reconstruction phase. France intends to make a specific contribution by implementing bridges between its political diplomacy, legal diplomacy and development cooperation instruments.

The French approach to transitional justice is closely tied into its approach to human rights. It is considered in the spirit of public freedoms rather than as strictly private rights which the government has no obligation to protect.

In the French vision, human rights are not in opposition to the state, but rather draw on its support to ensure their effective exercise. This approach highlights the need for state reconstruction in the national reconciliation process. The possibility of coexistence and dialogue remains the primary objective for populations that have suffered, committed or witnessed large-scale atrocities, but dialogue cannot be sustained without a stable, sound institutional foundation. Without that, victims' rights are purely formal.

Such an approach is in no way exclusive of a fieldwork approach to understand and identify fears and needs, whether they are tangible or an intangible demand for dignity and respect. On the contrary, it aims to support local and international NGOs and the various society stakeholders to best meet those aspirations, respond to an emergency situation and support the emergence of a comprehensive, realistic and sustainable agreement.

In emphasizing the state's role as the guardian of fundamental freedoms and as a means of restoring national unity, the French approach to transitional justice is central to handling the political violence that results from the state's collapse. Crimes against humanity do not just go beyond the level of ordinary law crimes because of their massive, systematic nature; they are of a different nature and are born of the failings of the law, its suspension or its perversion by the incumbent authorities. Drawing on its own rule of law, France does not aim to act as a template, but wants to make its expertise available to other countries to

assist them in their transitional justice experiences at their request. France's specific action endeavours to ensure that the perpetrators of mass crimes are apprehended and judged, that their victims are acknowledged and supported and that guarantees of non-recurrence are put in place.

The French vision is in line with Romano-Germanic (civil) law traditions in the framework of its support to the institutions of states undertaking transitional justice processes. In those traditions, justice is seen as a public service, guaranteeing victims' rights. It also works to ensure that the perpetrators of crimes enjoy basic rights (rights of the defence, decent conditions of detention).

#### 2.1 Drawing on and strengthening existing assets

Transitional justice is a long, complex process. A realistic approach to the issues involved and response capacities means setting priorities in the support France can provide. Those priorities may vary depending on the geographical and political context. On the one hand, they have to take into account the specific needs of each country and the expectations expressed by both national authorities and civil society stakeholders. On the other hand, they need to consider the sectors where the added value would be greatest, depending on France's diplomatic, institutional and civil society representation in the country concerned.

##### 2.1.1 Supporting victims' rights

The issue of victims' rights is central to transitional justice. It is important to support associations defending these rights. We have forged partnerships with the International Federation for Human Rights (FIDH), Action by Christians for the Abolition of Torture (ACAT) and the Euro-Mediterranean Federation against Enforced Disappearances (FEMED), in order to support the holding of weeks of action, advocacy, awareness-raising and networking for national organizations, including in Algeria,
Bosnia, the Central African Republic, Côte d'Ivoire, Guinea, Iraq, Kosovo and Lebanon.

## Victims and the ICC

Since 1998, the International Criminal Court (ICC) has enabled victims to participate in all stages of proceedings in the framework established by the Court. They can submit observations to the Court's Chambers during preliminary examinations, trials and appeals.

France is committed to victims' participation in proceedings before the Court to allow them to ensure that their rights and interests – which sometimes differ from those of the prosecution – are taken into account. In January 2006, the International Federation for Human Rights (FIDH) thus contributed to a historic ICC decision strengthening the rights of victims and NGOs in submission of requests to participate at the investigation stage.

Article 79 of the Rome Statute also provides for the creation of a "Trust Fund [...] for the benefit of victims of crimes within the jurisdiction of the Court". In 2002, France initiated a resolution formally creating that Trust Fund, chaired first by Simone Veil (2003-2009).

### 2.1.2 Strengthening democratic governance

It is extremely important to strengthen the governance of institutions at local level to foster more democratic means of operation, in order to prevent the emergence of new conflicts and effectively support the handling of past crimes. Deconcentration and decentralization processes may take place, aimed at ensuring the effectiveness of the rule of law across the territory, thus avoiding any pockets of exclusion.

Land issues play an essential role in the reconciliation process at local level, especially in Africa. Good management of scarce resources, restitution of land and ensuring legitimacy of property rights can help support that process.

## Examples of local justice

It is important to work closely with local people and demonstrate the work of justice tangibly in order to strengthen its legitimacy in the eyes of citizens.

In Senegal, France is supporting projects for local courthouses in the framework of the ten-year (2004-2014) plan to modernize justice in the country. That support aims to foster the emergence of local justice, assisting the creation of 11 courthouses and 11 more lightweight structures to provide legal information. The goal is to promote the development of mediation and reconciliation, better inform populations of their rights and reduce the workload of the courts. Bringing justice as close as possible to local people in this way is a response to the new strategies for legal empowerment of the poor developed by the United Nations and the World Bank since 2008-2009, making populations key stakeholders of governance policies. This support for local justice also draws on longstanding traditional alternative means of settling conflicts.

In Laos, France is supporting the national authorities in their work to reconfigure the links between local and national justice, in partnership with the United Nations Development Programme (UNDP). The enhancement of village mediation mechanisms is carried out in accordance with international human rights standards including the introduction of adversarial proceedings in village trials and systematic recourse to the court appeals channels of national justice.

Democratic governance also needs to be effective in economic and financial terms (transparency of accounts, accountability of public stakeholders, harmonious management of taxation, combating corruption and economic predation, etc.). There is a real difficulty in prosecuting the perpetrators and accomplices of corruption, economic predation, seizure of property and theft. Production of evidence is essential in order to challenge senior officials but is difficult.

France contributes to promoting law and the rule thereof through the provision of technical expertise, organization of
regional legal seminars for legal stakeholders, and support for
legal cooperation bodies.

Action is based in particular on training of the judiciary (French National School for the Judiciary, ENM) and supporting networking of stakeholders. It also relies on cooperation efforts, such as support for those working in the areas of human rights, combating organized crime, fighting human trafficking and eliminating corruption. These actions aim to create a legal framework for the fight against major forms of trafficking and all types of violence, especially in situations of fragility.

2.1.3 Expanding the civic space

It is essential that transitional justice processes can develop
in a sufficiently open democratic context that allows free
expression and the participation of all stakeholders who wish
to take part.

With that in mind, France has set up a programme to sup-
port institutions and civil society in Burundi, in parallel to
the TRC that is about to open there. This programme has
two aspects. The first covers the development of forums for
consultation: capacity-building for the Ombudsman institu-
tion, support for the work of parliament and collaboration
with the Independent National Human Rights Commission
(CNIDH) of Burundi to raise awareness of political pluralism
and citizen representation, etc.

The second aspect of the project aims to encourage the work of civil society on subjects linked to reconciliation and promotion of human rights. That means helping civil society stakeholders put forward proposals to public authorities, supporting the creation of a TRC by fostering public debate on remembrance issues, building the capacities of media outlets and journalists to cover governance issues, etc.

Similar efforts to enlarge the civic space would help facilitate the
work of TRCs in each of the countries concerned.

2.1.4 The media and peacebuilding

It is important not to neglect the role of the media in peace-
building. Unlike Radio-télévision libre des mille collines in
Rwanda, which was condemned by the ICTR for incitement
to commit genocide, the media can also play a key role in

supporting the peace process and TRCs. Good examples
include the broadcasting on radio and television of the South
African TRC's sessions, and Radio Okapi in the Democratic
Republic of the Congo. Radio Okapi's creation coincided with
the Sun City Agreement (2002) that marked the beginning of
Inter-Congolese Dialogue. Its aim is to provide access to reli-
able information in a country divided by the Second Congo
War. It was set up at the initiative of the UN and with its sup-
port, through the United Nations Organization Mission in the
Democratic Republic of the Congo, or MONUC (now the
United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo, or MONUSCO) and
Fondation Hirondelle, a Swiss NGO active in supporting media
in crisis situations.

Training for journalists can help promote the participation of wider sectors of civil society in the transitional justice process by raising awareness of its activities, facilitating understanding and giving citizens tangible means of participating fully. Journalists are an important bridge, capable of helping to build civil society capacities, particularly in isolated regions of the country.

In Tunisia, the OHCHR and the UNDP, in partnership with the
International Center for Transitional Justice and the
Al-Kawakibi Democratic Transition Center (KADEM), have
organized a series of transitional justice training courses for
journalists from across the country. That training contributed
to the truth-seeking process in Tunisia by disseminating pre-
cise, balanced information on the work of the Truth and
Dignity Commission and stimulating debate about it.

2.1.5 Strengthening international
legal institutions

To ensure its values are audible and effective, France needs to
be a leading presence in the institutions where law is practised
at global level. That means:

* maintaining France's policy of involvement in international jurisdictions. France is the third-largest contributor to the ICC's budget. In addition to its budget support, France also provides considerable political, legal, institutional and logistical support to the ICC;

* strengthening the role of judicial diplomacy in political diplomacy. France supported Security Council referrals to the ICC
Prosecutor of the situations in Sudan (resolution 1593, 2005) and Libya (resolution 1970, 2011). It remains vigilant, both in Syria and elsewhere, to ensure that mass crimes are duly handled in the appropriate forums. It encourages countries to cooperate with the ICC and supports wider ratification of the Rome Statute and the transposition of definitions of crimes into national legislations;

* affirming the importance of the Responsibility to Protect (R2P) within the United Nations to prevent and combat mass crimes;

* continuing to support the implementation of the ICC Rome Statute, as well as the widest possible ratification and application of the international texts and treaties protecting human rights. France also continues to promote regional human rights protection mechanisms.

## 2.2 Inventing new tools and partnerships

### 2.2.1 Mobilizing France's research institutions and operators

France has forged close relationships with academic players and practitioners of transitional justice. It holds regular seminars to reflect on past and current experiences.

In the area of support for transitional justice, France can draw on a considerable pool of legal experts, present notably within the network of Ministry of Foreign Affairs and International Development (MAEDI) international technical experts (ITE). These experts can be mobilized with the support of the major public operators in this field, such as Expertise France (French agency for international technical expertise), in existence from 1 January 2015, which aims to incorporate all public expertise agencies.

Above and beyond French agencies, it is important to mobilize human resources from throughout the French-speaking world with experience in the field of transitional justice (officials, judges and police, etc.).

### 2.2.2 Forging partnerships with local stakeholders

Many NGOs work in the field of transitional justice and reconciliation. It is vital to involve them in the preparation and proceedings of commission work. They can also receive French support, including via its financing instruments (AFD – the

French development agency – NGO funding instruments, the FSP – Priority Solidarity Fund – and the PISCCA – Innovative Projects of Civil Societies and Coalitions of Actors) or through facilitation of their activities, such as networking, training courses and sharing of experiences.

Religious authorities play a key role in the transition process. In Sierra Leone for example, purification rituals have allowed former child soldiers to be reintegrated into their community. In Lebanon, ceremonies have taken place to facilitate reconciliation between Druze and Christians. It is however important not to idealize or overly legitimize such mechanisms, to enable other players to also play their role.

In accordance with UN Security Council resolution 1325 on Women, Peace and Security, it is essential to ensure women are taken into account in transitional justice processes. Women are often the first victims of conflicts, but they are also spearheads of reconstruction (women's associations are amongst the most recognized and respected in many countries).

### 2.2.3 Tying transitional justice into security processes (DDR and SSR)

For more than twenty years, DDR programmes have been a central component of post-crisis and post-conflict reconstruction strategies. They aim to disarm and demobilize combatants originating from either government forces or various armed groups. They work to facilitate the social, economic and symbolic reintegration of combatants by reemploying them in uniformed service or returning them to civilian status.

In the complex phase of post-conflict reconstruction, transitional justice and DDR programmes appear closely linked for several reasons:

* there is a legal tension that is often difficult to overcome, as certain former combatants have to answer for their actions before victims whereas political agreements sometimes provide for amnesty. Vetting policies aim to check the service records of former combatants during their demobilization;

* combatants covered by DDR programmes are often symbols of massive human rights violations committed during a conflict. In such cases, they cannot be reintegrated into their communities of origin without a reconciliation process, which may or may not be judicial;
* one of the major difficulties of DDR programmes is long-term reintegration of former combatants. If this long, difficult phase is to succeed, the root causes of the conflict, which transitional justice mechanisms strive to handle, have to be taken into account;

* the links that need to be constructed between DDR programmes and transitional justice seem essential, as the failure of DDR programmes – often resulting in recurrence of abuses or even armed conflict – is in many cases caused by very strong dissension in society, the feeling of impunity of former combatants, the lack of confidence amongst populations (or certain groups) towards the security forces, or the absence of reconciliation processes. More generally, DDR programmes need to take on board the fundamental issue of populations being prepared to live together, which is particularly acute during post-conflict periods;

* it has often been observed that DDR programmes can be poorly viewed by populations, as they sometimes appear to give a “bonus” to combatants, who are seen as priority beneficiaries of international aid. Ex-combatants receive an allowance for reintegration and enjoy training in income-generating activities, from which the civilian victims of conflict are in principle excluded. Making victims central to transitional justice should lead to that process being tied in with DDR programmes.

Interaction between the two processes symbolizes the requirement for peace, security and respect for human rights that needs to prevail in post-conflict reconstruction.

SSR processes supplement DDR programmes. They are required to ensure democratic control of the armed forces, as well as for the reconstruction of the security forces and judicial institutions, allowing the latter to better prevent crimes in future and not be involved. The Geneva Centre for Democratic Control of Armed Forces (DCAF) is France's leading partner in this area.

## 2.3 Encouraging coherent international action

Numerous international partnerships can be utilized to support transitional justice processes. The implementation of transitional justice should in no case threaten the restoration of stability in a context where security is often very fragile (the abrupt and massive dismissal of the security forces is a factor that increases

tensions). France has already forged special ties that need to be deepened and extended.

### 2.3.1 Expanding cooperation with institutions and countries of the French-speaking world

From 2006 to 2013, France worked with Switzerland, the ICTR, and the OHCHR to organize a series of seminars in Yaoundé (Cameroon) to raise awareness of transitional justice amongst practitioners (multilateral agencies, NGOs, governments, foundations, universities, etc.). These seminars helped measure the progress made in six countries (Burundi, the Central African Republic, Chad, Côte d'Ivoire, Democratic Republic of the Congo and Guinea) in the area of transitional justice and reconciliation. They were an opportunity for them to consider their difficulties and together explore the role of transitional justice within credible, effective post-crisis mechanisms. Their reflection helped other countries in transition, such as Mali.

France is working with those same partners to establish an interactive digital platform for the French-speaking world.

### 2.3.2 Drawing on the expertise of the International Organisation of La Francophonie (IOF)

The IOF has long worked in various ways to help its member states concerned to take the steps required to conduct a pluralist democratic transition and re-establish rights and freedoms in the long term. These efforts have gradually been structured and rationalized. They are now centred around a dynamic multilateral approach that emphasizes combating impunity as well as promoting the expertise and diversity of legal cultures in the French-speaking world.

As a basis for its reflections, the IOF has strived to incorporate all 29 transition, justice, truth and reconciliation processes carried out or envisaged in the French-speaking world into a practical guide.

Its approach is now organized around tangible institutional support initiatives (Togo, Tunisia) and the establishment of national mechanisms through support in the form of expertise and exchange of information and experiences (Egypt, Mali, Madagascar), while respecting the diversity of national systems and contexts. Lastly, this work is often carried out in
collaboration with other international partners such as France, Switzerland and the OHCHR.

Along with the IOF, the MAEDI has organized several training and awareness-raising seminars with national law stakeholders, held in Dakar (2009), Yaoundé (2010) and Tunis (2011).

### 2.3.3 Fuelling debate in consultation and decision-making forums

France is an active presence in many international forums where the major guidelines of transitional justice are drawn up.

Within the Development and Cooperation Directorate-General (DevCo/EuropeAid) at the European Commission there is a specialized unit for justice and security system reform (SSR). The Directorate-General produced guidelines in 2013 in a publication entitled *Support to Justice and the Rule of Law*. That publication may be referred to as a supplement to this document.

The United Nations is another major player, through both its Office of the High Commissioner for Human Rights (OHCHR) and its missions in areas affected by transitional justice issues (peacekeeping operations and special political missions in particular). France is involved in two ways: at the Security Council, where it advocates clearer recognition of the different aspects of the fight against impunity and transitional justice, and with field missions, in permanent liaison with the UN Secretary-General's special representatives in the countries concerned.

The OECD's New Deal for Engagement in Fragile States promotes five Peacebuilding and Statebuilding Objectives, including one on justice: "Address injustices and increase people's access to justice". This objective highlights that "addressing grievances and deeply-felt injustice is essential. Formal justice mechanisms must be accessible, affordable and seen as fair by citizens." The International Network on Conflict and Fragility (INCAF) is an OECD forum focused on decision-making. INCAF supports development partners, international organizations and partner countries in responding to conflicts and situations of fragility. It develops cutting-edge policies and programmes and facilitates dialogue between development partners and partner countries. On the strength of these experiences, the MAEDI will be enhancing its participation in discussions led by the World Bank on this subject.
## 10 principles for effective engagement

1. Incorporate into our efforts the four Joinet pillars: right to truth, right to justice, right to reparation, guarantee of non-recurrence.

2. Take into account the different levels of transitional justice, complementarity between judicial and non-judicial justice, and the parameters of each situation in terms of time-scale, institutions and security.

3. Fight against impunity, foster reconciliation and support reconstruction of the social contract.

4. Reinforce the foundations of the state and foster its transition towards the rule of law and democratic governance.

5. Strengthen ties between transitional justice processes and DDR and SSR programmes.

6. Adjust our diplomatic action to the requirements of transitional justice, by adopting a holistic approach that takes into account institutional diversity, the different sources of law and the variety of civil society stakeholders.

7. Support civil society participation in transitional justice issues and enable local media to play an active, peacebuilding role in the national reconciliation process.

8. Consider transitional justice issues and the plurality of narratives in reconciliation and political transition processes.

9. Identify focal points within each international partner and promote liaison work to improve cooperation.

10. Encourage the universal adoption of human rights protection instruments.

## Transitional justice around the world (1983-2014)

<figure><img src="image_7.png" /></figure>
<figure><img src="image_8.png" /></figure>

Ministry of Foreign Affairs and International Development (MAEDI), Archives Directorate (Geographical Unit) © 17 November 2014
Useful websites

Report by the Institute of Higher Justice Studies (IHEJ), French only:
http://www.ihej.org/une-justice-reconstitutive-pour-surmonter-les-crimes-de-masse/

Joint report by the French Ministry of Foreign Affairs and International Development (MAEDI), the Swiss Federal Department of Foreign Affairs (FDFA) and the United Nations Centre for Human Rights and Democracy in Central Africa, French only:
http://www.cnudhd.org/rapportjustice.pdf

DevCo/EuropeAid Guidelines:
http://eeas.europa.eu/cfsp/conflict_prevention/docs/2013_eeas_mediation_support_factsheet_transient justice_en.pdf

Practical guide by the International Organisation of La Francophonie (IOF) *Les processus de transition, justice, vérité et réconciliation dans l'espace francophone* (transition, justice, truth and reconciliation processes in the French-speaking world), French only:
http://www.francophonie.org/IMG/pdf/guide-oif-tjvrbat-web1003.pdf

New Deal for Engagement in Fragile States:
http://www.pbsdialogue.org/documentupload/49151944.pdf
Acronyms and abbreviations

<table><tr><td>ACAT</td><td>Action by Christians for the Abolition of Torture</td></tr><tr><td>AFD</td><td>Agence française de développement (French development agency)</td></tr><tr><td>CNIDH</td><td>Independent National Human Rights Commission of Burundi</td></tr><tr><td>DCAF</td><td>Geneva Centre for Democratic Control of Armed Forces</td></tr><tr><td>DDR</td><td>Disarmament, demobilization and reintegration</td></tr><tr><td>DevCo/ EuropeAid</td><td>European Commission Directorate-General for Development and Cooperation</td></tr><tr><td>ECCC</td><td>Extraordinary Chambers in the Courts of Cambodia</td></tr><tr><td>FDFA</td><td>Swiss Federal Department of Foreign Affairs</td></tr><tr><td>FEI</td><td>France expertise internationale</td></tr><tr><td>FEMED</td><td>Euro-Mediterranean Federation against Enforced Disappearances</td></tr><tr><td>FIDH</td><td>International Federation for Human Rights</td></tr><tr><td>FSP</td><td>Fonds de solidarité prioritaire (Priority Solidarity Fund)</td></tr><tr><td>ICC</td><td>International Criminal Court</td></tr><tr><td>ICCPED</td><td>International Convention for the Protection of All Persons from Enforced Disappearance</td></tr><tr><td>ICTJ</td><td>International Center for Transitional Justice</td></tr><tr><td>ICTR</td><td>International Criminal Tribunal for Rwanda</td></tr></table>

<table><tr><td>ICTY</td><td>International Criminal Tribunal for the former Yugoslavia</td></tr><tr><td>IHEJ</td><td>Institute of Higher Justice Studies</td></tr><tr><td>INCAF</td><td>International Network on Conflict and Fragility</td></tr><tr><td>IOF</td><td>International Organisation of La Francophonie</td></tr><tr><td>ITE</td><td>International technical expert</td></tr><tr><td>KADEM</td><td>Al-Kawakibi Democracy Transition Center</td></tr><tr><td>MAEDI</td><td>Ministry of Foreign Affairs and International Development</td></tr><tr><td>MDG</td><td>Millennium Development Goals</td></tr><tr><td>NGO</td><td>Non-Governmental Organization</td></tr><tr><td>OHCHR</td><td>Office of the High Commissioner for Human Rights</td></tr><tr><td>PISCCA</td><td>Innovative Projects of Civil Societies and Coalitions of Actors</td></tr><tr><td>RAJP</td><td>Cambodian Royal Academy for Judicial Professions</td></tr><tr><td>R2P</td><td>Responsibility to Protect</td></tr><tr><td>SDG</td><td>Sustainable Development Goals</td></tr><tr><td>SSR</td><td>Security system reform</td></tr><tr><td>TRC</td><td>Truth and reconciliation commission</td></tr><tr><td>UN</td><td>United Nations</td></tr><tr><td>UNDP</td><td>United Nations Development Programme</td></tr></table>
<figure><img src="image_9.png" /></figure>

NEW HORIZONS FOR TRANSITIONAL JUSTICE,
A FRENCH APPROACH

Experience of transitional justice shows the extent to which national reconciliation processes are essential during post-crisis and restructuring phases. France intends to contribute its full support in order to restore the confidence of populations in their institutions. In countries deeply affected by mass crimes, transitional justice helps lay the foundations for long-term social and economic development. Several emerging countries are a demonstration of that.

Working alone or in multilateral frameworks, France is constantly engaged in numerous peacekeeping, reconstruction and transition support processes. In the diplomatic field, France's action is conducted through the many projects and channels of development assistance. When required by the situation, it takes military action to protect civilian populations, which are the first victims of conflict. France responds to complex situations where security issues are accompanied the demands of justice and where addressing the challenges of the future is bound to the suffering of the past.

Its support is thus increasingly requested to strengthen mechanisms for transitional justice and help fight impunity at national, regional and interregional levels. Given its longstanding involvement in state-building to ensure the rule of law, in promoting international criminal justice and in all forms of mediation and reconciliation, France would like to address such requests on the basis of their legitimacy and its capacities.

These guidelines do not aim to resolve every transitional justice scenario, instead establishing principles through analysis of the stakes, parameters and stakeholders that should be taken into account in the framework of a French approach to such reconciliation processes.