Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Transitional Justice and International Law:

What Role is Played by the UN in Post-conflict Peacebuilding?1
Tetsuo SATO
Professor, Hitotsubashi University
Ⅰ

IntroductionⅡ

UN Post-conflict Peacebuilding as a Process of Transitional Justice1

From “Peacekeeping” to “Peacebuilding”

2

Exceptionally to “Territorial Administration”

3

Political Constraints on Peacebuilding and Transitional JusticeTransitional Justice in the UN Post-conflict PeacebuildingⅢ
1

Processes and Mechanisms of Transitional Justice2

UN Policy of Transitional Justice as Indicated by the Secretary-General’s Report

3

Reality of Transitional Justice as Indicated by State and UN Practice
UN Activities in Transitional Justice and the International Legal Order

Ⅳ
1

2
Ⅳ

Impacts on the International Legal Order(1)

From “Transitional Justice”(2)

To “Peacebuilding”(3)

Ultimately to the “Structure of the International Legal Order”

Impacts on the UN Security Council
Conclusions

Ⅰ

Introduction

The objective of this paper is twofold: to analyze the mechanisms and trends oftransitional justice in the UN post-conflict peacebuilding processes, and to clarify someof their possible impacts on the international legal order.
United Nations peacekeeping has evolved into a complex multi-dimensional
operations which are called upon to facilitate the political process through thepromotion of national dialogue and reconciliation, protect civilians, assist in thedisarmament, demobilization and reintegration of combatants, support the organizationof elections, protect and promote human rights, and assist in restoring the rule of law.
Most of these mandates belong to the category called “peacebuilding” which involves aThis paper is for the presentation by the author at the Autumn Bi-Annual Meeting of
the Japanese Society of International Law. It is a provisional version and, because of theshortage of time, many of the necessary reference footnotes have not been attached yet.
11Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

range of measures aimed to reduce the risk of lapsing or relapsing into conflict, bystrengthening national capacities for conflict management, and laying the foundations
for sustainable peace.
In this process of peacebuilding, problems of transitional justice are
increasingly becoming important as crucial elements deciding the success or failure of apeacebuilding mission. The notion of “transitional justice” is generally used ascomprising the full range of processes and mechanisms associated with a society’s
attempts to come to terms with a legacy of large-scale past abuses, in order to ensureaccountability, serve justice and achieve reconciliation.
The phenomena of transitional justice, to which the UN has been related invarious ways, could have the potential to bring about some major impacts on bothindividual norms and the structure of the international legal order. In fact, on the one
hand, the international and hybrid criminal tribunals which are primary actors intransitional justice have brought about the development of individual criminal
responsibility and international criminal law.
Central to the practice of post-conflict peacebuilding, on the other hand, has
become the concept of democratic governance, due to the particular context andexigencies of societies emerging from violent conflict, usually accompanied by
dysfunctional or unrepresentative government and a history of political repression.
Here, a UN peacekeeping or peacebuilding mission is typically the most important
single outside actor as it is involved on an ongoing and daily basis in the process ofestablishing democratic governance in a country recovering from conflict. Peacebuilding
missions have become State-building missions promoting democratic governancebecause fragile States are seen as a risk to international security as well as their own
people’s security. Peacebuilding aims to transform all aspects of the State within a shorttime, expecting war-torn societies to achieve a level of development that took WesternStates decades or even centuries. These activities of intensive commitment in domestic
governance of a State by international actors would inevitably contradict some of the
traditional principles of international law based upon the order of international society
made up of sovereign States.
We will first (Chapter II) look at the practice of post-conflict peacebuilding by
UN peacekeeping or peacebuilding missions in order to grasp some of the political andpractical constraints under which problems of transitional justice must be understood.
We will then (Chapter III) examine problems of transitional justice in the UN
post-conflict peacebuilding, and finally (Chapter IV) attempt to clarify some of the
impacts of UN Activities in transitional justice on the international legal order.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

A caveat is in order here: because the objective of this paper is such a huge one,we will inevitably aim to draw only a broad but rough sketch, and point out problems
and challenges rather than solve or tackle them.

Ⅱ

UN Post-conflict Peacebuilding as a Process of Transitional Justice1

From “Peacekeeping” to “Peacebuilding”2●Peacebuilding as an Extension of Peacekeeping
Since the end of the Cold War, the UN expanded its peace mission from security
by monitoring and demilitarization activities in the aftermath of ceasefires or peaceagreements to a broad range of measures aimed at the sustainable peacefultransformation of societies emerging from violent conflict.
Contemporary peacekeeping has changed in terms of its objectives andstructure. Structure: a twofold composition of missions emerged, so-called “integrated
missions” which comprise military and civilian components. Objectives: peace-keeping
missionsnow

pursueamulti-dimensional

approach

which

also

integrates

peace-building. The latter covers to a lesser extent military options, but rather aims tofoster socio-economic and political structures which, in turn, are presumed tostrengthen peace and to avoid a relapse onto conflict3.
● Peacebuilding as the Core Mandate of Multi-dimensional United Nations
Peacekeeping Operations
Multi-dimensional United Nations peacekeeping operations deployed in theaftermath of an internal conflict face a particularly challenging environment. The
State’s capacity to provide security to its population and maintain public order is often
weak, and violence may still be ongoing in various parts of the country. Basic
infrastructure is likely to have been destroyed and large sections of the population may
have been displaced. Society may be divided along ethnic, religious and regional linesand grave human rights abuses may have been committed during the conflict, further
complicating efforts to achieve national reconciliation.
This section relies on, among others, the following: United Nations, United Nations
Peacekeeping Operations: Principles and Guidelines (2008); International Association
2

for Humanitarian Policy and Conflict Research (aisbl), “Introduction to Peacebuilding:
History,” “Introduction to Peacebuilding: Operationalizing Peacebuilding,”“Introduction to Peacebuilding: Debates,” “Introduction to Peacebuilding: Actors,”
available at http://www.peacebuildinginitiative.org/index.cfm;
3 Leininger, “Democracy and the UN Peace-Keeping — Conflict Resolution throughState-Building and Democracy Promotion in Haiti,” in Max Planck Yearbook of United
Nations Law, Vol. 10 (2006), pp. 465, 470.
3

Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University【Figure: The Core Business of Multi-dimensional United Nations Peacekeeping Operations】(United Nations, United Nations Peacekeeping Operations: Principles and Guidelines, p. 23.)

Multi-dimensional United Nations peacekeeping operations are deployed as
one part of a much broader international effort to help countries emerging from conflictmake the transition to a sustainable peace. As shown in the above【Figure】, this effort
consists of several phases and may involve an array of actors with separate, albeit
overlapping, mandates and areas of expertise4.
●Ratio of Peacebuilding Mandates in Peacekeeping and Ratio of Transitional Justice inPeacebuilding Mandates
In contrast to peacekeeping, peacebuilding5 targets the reform of society as awhole and of all social institutions in the broadest sense, especially in so-called weak,
failing or failed States.
According to a research6 in 2009 for an inventory of UN peace missions since
the end of the Cold War, we can get a rough idea of how prevalent the current
peacebuilding missions are. During these about 20 years, the UN Security Council has
mandated a total of 69 peace missions, including 50 missions with peacebuilding
mandates as well as 19 missions with peacekeeping mandates. These 50 peacebuilding
missions could be classified into the following categories:(a) Peacebuilding consultation (17 missions): Small deployment/offices usuallyproviding assistance and consultation to local governments and other actors.
(b) Specialized peacebuilding (5 missions): Small deployments, focused on a single
issue area/task (e.g. the observation of elections, the return of refugees,
security sector reform) only carrying out monitoring or implementing tasks.
United Nations, United Nations Peacekeeping Operations: Principles and Guidelines,
supra note 2, at 22-23.
5 For the concept of “peacebuilding” defined by the UN Secretariat, see ibid., at 18.
6 V. C. Franke and A. Warnecke, “Building Peace: An Inventory of UN Peace Missions
since the End of the Cold War,” in International Peacekeeping, Vol.16, No.3 (2009), pp.
407-436.
4

4Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University(c) Multidimensional peacebuilding (24 missions): Most civil—military peace
operations with comprehensive tasks in one or more of the below-mentioned
peacebuilding sectors. Despite the far-reaching mandates of these missions,the sovereignty of the local government is usually retained.
(d) International transitory government (4 missions): The local government is
temporarily replaced by external actors.
A variety of peacebuilding mandates could be classified into the following 4
sectors in accordance with the “UN 2006 Peacebuilding Capacity Inventory7,” and, outof the above-mentioned 50 peacebuilding missions, 39 missions have “(b) Justice andReconciliation” including various problems of Transitional Justice.
(a) Security and Public Order: Security System Governance, Law Enforcement
Agencies, Defense Reform, DDR, Mine Action(b) Justice and Reconciliation: Transitional Justice, Judicial and Legal Reform,
Corrections, Human Rights(c) Governance and Participation: Good Offices and Mediation,
Constitution-Making, Public Administration and Government Strengthening,
Local Governance, Financial Transparency and Accountability, Elections,Electoral Systems and Processes / Political Parties, Public Information andMedia Development(d) Socio-Economic Well-Being: Protection of Vulnerable Groups, Basic Needs,
Gender, Physical Infrastructure, Employment Generation, Economic
Foundations for Growth and Development
These figures demonstrate that the predominant majority of peace missions
are now peacebuilding missions, and most of them have transitional justice mandates.
●Peacebuilding as a Requisite of Sustainable Peace
While the deployment of a multi-dimensional United Nations peacekeeping
operation may help to stem violence in the short-term, it is unlikely to result in asustainable peace unless accompanied by programs designed to prevent the recurrenceof conflict. Every situation invariably presents its own specific set of challenges.
However, experience has shown that the achievement of a sustainable peace requires
progress in at least four critical areas8:a) Restoring the State’s ability to provide security and maintain public order;
United Nations Executive Office of the Secretary-General, “Inventory: United Nations
Capacity in Peacebuilding,” 2006 (available at
http://www.undp.org/cpr/iasc/content/docs/Oct_Links/doc_4.pdf).
8 United Nations, United Nations Peacekeeping Operations: Principles and Guidelines,
supra note 2, at 25.
75

Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi Universityb) Strengthening the rule of law and respect for human rights;c) Supporting the emergence of legitimate political institutions and participatory
processes;d) Promoting social and economic recovery and development, including the safe
return or resettlement of internally displaced persons and refugees uprooted byconflict.
●A New International Actor: The UN Peacebuilding Commission
The United Nations Peacebuilding Commission (PBC), which became
operational in 2006, is a new intergovernmental advisory body of the United Nations
specifically dedicated to helping countries make the transition from war to lasting peace.
It has been created to marshal resources at the disposal of the international community
to advise and propose integrated strategies for post-conflict recovery, focusing attention
on reconstruction, institution-building and sustainable development, in countries
emerging from conflict9.
Until its creation, no part of the UN system had responsibility for helping
countries make the transition from war to lasting peace. The Peacebuilding Commission
is designed to help fill this gap by facilitating an institutional and systematic connection
between peacekeeping and post-conflict operation, and bringing together all the
relevant peacebuilding actors.
2

Exceptionally to “Territorial Administration”10
In exceptional circumstances, the Security Council has also authorized

multi-dimensional United Nations peacekeeping operations to temporarily assume thelegislative and administrate functions of the State, in order to support the transfer ofauthority from one sovereign entity to another, or until sovereignty questions are fully
resolved, or to help the State to establish administrative structures that may not haveexisted previously11.
9

See “2005 World Summit Outcome,” UN Doc. A/RES/60/1 of 24 October 2005, p. 24,

para. 98.
10 This section relies on the following. C Stahn, “The United Nations Transitional
Administration in Kosovo and East Timor: A First Analysis,” in Max Planck Yearbook of
United Nations Law, Vol. 5 (2001), pp. 105-183; J. Friedrich, “UNMIK in Kosovo:
Struggling with Uncertainty”, in Max Planck Yearbook of United Nations Law, Vol. 9(2005), pp. 225-293; M. Bothe and T. Marauhn, “UN Administration of Kosovo and East
Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship
Administration,” in C. Tomuschat ed., Kosovo and the International Community(Kluwer Law International, 2002), pp. 217-242.
11 United Nations, United Nations Peacekeeping Operations: Principles and Guidelines,
supra note 2, at 22.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

The Security Council has entered new ground by placing Kosovo and East
Timor under temporary UN administration 12 . Both the United Nations Interim
Administration Mission in Kosovo (UNMIK) and the United Nations Transitional
Administration in East Timor (UNTAET) were created on the basis of Chapter VII of
the UN Charter.
The mandate of UNMIK was established by the Security Council Resolution
1244 (1999). In Regulation 1999/1 of 25 July 1999, the Special Representative of theSecretary-General (SRSG) outlines that the authority vested in UNMIK comprises all
legislative and executive power, as well as the authority to administer the judiciary. The
wide scope of powers claimed by the SRSG is reflected in the hierarchy of the legal
norms. UNMIK Regulations as the primary legal instruments of the SRSG takeprecedence over the second source of law, which is the law that was in force in Kosovo
before the withdrawal of autonomy on 22 of March 198913. Military responsibilities were
given to Member States as authorized to establish a security presence (KFOR) under
the NATO leadership.
These powers and responsibilities of UNMIK reach unprecedented levels, but
are not entirely new. Many similarities exist with the United Nations Transitional
Authority in Cambodia (UNTAC) which was established by Security Council Resolution
745 in 1992. The scope of responsibilities as outlined in the Paris Agreements(Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, signed
in Paris on 23 October 1991), encompassed, inter alia, administration, law and order,
security, reconstruction, humanitarian aid, human rights promotion and theorganization of free elections. It was envisaged that UNTAC, according to the legal
framework, would take over crucial administrative tasks for each of the different areas
as well as judicial and legislative functions. Although comparable in original concept
and approach as well as in the enormous scope of the mission, UNTAC’s role was inpractice more akin to one of supervision and monitoring. Kosovo in turn has served as amodel for UNTAET.
In 1999, the United Nations Security Council established UNTAET as anintegrated, multi-dimensional peacekeeping operation fully responsible for theadministration of East Timor during its transition to independence. Resolution 1272
(1999) empowered UNTAET to exercise all legislative and executive authority, including
C Stahn, “The United Nations Transitional Administration in Kosovo and East
Timor: A First Analysis,” supra note 10, at 106.
13 R. Wolfrum, “International Administration in Post-Conflict Situations by the United
Nations and Other International Actors,” in Max Planck Yearbook of United Nations
Law, Vol. 9 (2005), pp. 649, 691, n. 151.
12

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

the administration of justice, and gave it a whole series of tasks similar to the UNTAC’s.
UNTAET consisted of a governance and public administration component, acivilian police component of civilian police and an armed United Nations peacekeeping
force, of equivalent size to the United Nations-mandated Australian-led multinational
force INTERFET (International Force East Timor) which preceded UNTAET. In
addition, humanitarian assistance and rehabilitation components were incorporated
within the structures of the Transitional Administration.
3

Political Constraints of Peacebuilding and Transitional Justice14●Problematique of Peacebuilding as an Extension of Peacekeeping
While peacebuilding has largely become an extension of peacekeeping, itremains unclear whether UN peacekeeping operations are an appropriate tool forpeacebuilding activities. This has raised questions about the ability of peacekeepers to
conduct peacebuilding activities. Hazen points out15:
The UN has faced growing pains in responding to peacebuilding needs. The UN has
yet to develop a framework for peacebuilding…. [W]hile peacekeepers are prime
actors in post-conflict situations, they are poorly prepared for peacebuilding tasks
and have a poor record on this score…. Peacekeeping missions are not designed forpeacebuilding. Peacebuilding has been a secondary task of peacekeepers subsumed
by peacekeeping missions because of their large presence on the ground, not as aresult of their capacity to carry out peacebuilding tasks. Peacekeepers are nottrained in peacebuilding, and often lack the necessary skills, local knowledge, andlocal languages to conduct peacebuilding activities.
This is a harsh criticism, but is, to some extent, conceded by the UN Secretariat
as follows:
Multi-dimensional United Nations peacekeeping operations generally lack the
programme funding and technical expertise required to comprehensively
implement effective peacebuilding programmes. Nevertheless, they are often
mandated by the Security Council to play a catalytic role in the following criticalpeacebuilding activities: Disarmament, demobilization and reintegration (DDR) of
combatants; Mine action; Security Sector Reform (SSR) and other rule oflaw-related activities; Protection and promotion of human rights; Electoral
This section relies on the following: J. M. Hazen, “Can Peacekeepers Be
Peacebuilders?”, in International Peacekeeping, Vol.14, No.3 (2007), pp. 323-338; E.
Newman, “Transitional Justice’: The Impact of Transnational Norms and the UN,” inInternational Peacekeeping, Vol.9, No.2 (2002), pp. 31-50.
15 J. M. Hazen, “Can Peacekeepers Be Peacebuilders?” supra note 14, at 327, 329.
14

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

assistance; Support to the restoration and extension of State authority16.
Another concern is pointed out in regard to the approach taken bypeacekeeping operations17. Peacekeeping missions are based on the premise of assisting
war-torn countries to establish, or re-establish, democratic institutions. To this end, afirst benchmark is the holding of democratic elections. Successful elections were once
seen as a sign of a return to stability and therefore an exit point for peacekeepers.
However, that is no longer the case, as there is widespread agreement that elections are
insufficient for long-term stability. It is aptly pointed out as follows18:
One of the most important lessons of UN electoral experience over the past decadeis the evolution of a more realistic view of the role that elections can play in thecreation of democracy. In the early 1990s many in the international community
believed that the successful conduct of an election would establish the basis for thegrowth of a viable democracy. Experience demonstrated, however, that althoughelections contribute substantially to democratization, elections alone are notenough. Without effective democratic institutions and processes, such as fair andeffective legal systems, a free press, and transparency in government, the impact of
one round of elections may be short-term and negligible. In the most unfortunate
cases, elections may be used to validate and maintain an undemocratic status quo.
More attention is now paid to the need for functioning government institutions,an independent and accessible judiciary and economic development. Furthermore, there
is growing recognition of the need to address the attitudes and behaviors that underlie
conflict, not just the institutions that exacerbate it.
●Transitional Justice in the UN Post-conflict Peacebuilding
Peacebuildinginpost-conflictsituationsisconditionedbypolitical

compromises and practical constraints not present in normal societal situations.
Accordingly, modalities of dealing with a past of human rights abuse and achieving
justice and accountability are conditioned by the terms of peace settlements andpolitical transitions within a society19.
Justice is frequently a key issue in post-conflict situations, but often neglected
United Nations, United Nations Peacekeeping Operations: Principles and Guidelines,
supra note 2, at 25-26.
17 J. M. Hazen, “Can Peacekeepers Be Peacebuilders?” supra note 14, at 328-329.
16

R. Ludwig, The UN’s electoral assistance: Challenges, accomplishments, prospects,”
in E. Newman and R. Rich eds., The UN Role in Promoting Democracy: Between Ideals
and Reality (United Nations U. P., 2004), pp. 169, 179-180.
19 E. Newman, “Transitional Justice’: The Impact of Transnational Norms and the UN,”in International Peacekeeping, supra note 14, at 31.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

in the interests of peace and stability. However, increasingly in recent years,
international norms are influencing this process and there is a growing consensus thatsome form of justice and accountability is necessary for peace and stability. Some saythat there has been a ‘paradigm shift’ in attitudes: it is increasingly accepted that
accountability and justice are an essential part of peace in post-conflict societies20.
The emergence of international regimes, tribunals and mixed courts is clearly
having a significant impact upon transitional peacebuilding. It is pointed out, however,that the question of when and where international norms of accountability and justice
are applied is still a function of essentially political, rather than legal or moral, factors.
The presence of international processes and standards in transitional peacebuilding
processes is not altering a well-established fact of social life: in terms of dealing withpast human rights abuse, the question of who is held accountable remains largely apolitical issue. Justice is a variable among a balance of values that a particular society
must come to terms with21.
For the United Nations, ‘justice’ is an ideal of accountability and fairness in theprotection and vindication of rights and the prevention and punishment of wrongs22. It
is to be noted, however, that, in post-conflict countries, the vast majority of perpetratorsof serious violations of human rights and international humanitarian law will never be
tried, whether internationally or domestically. Therefore, other transitional justicemechanisms need to be put in place in order to overcome the inherent limitations ofcriminal justice processes ― to do the things that courts do not do or do not do well ― inparticular to help satisfy the natural need of victim’s relatives to trace their loved ones
and clarify their fate; to ensure that victims and their relatives are able to obtainredress for the harm they have suffered; to meet the need for a full, comprehensive
historical record of what happened during the period of conflict and why; to promotenational reconciliation and encourage the emergence of moderate forces; and to ensure
the removal from the justice and security sectors of those who may have connived in theviolation of human rights or aided and abetted repression23.
Not to realize these constraints and other problems will result in
unrealistically high expectations and undermine the credibility of international norms
View of N. J. Kritz cited at Ibid.
E. Newman, “Transitional Justice’: The Impact of Transnational Norms and the UN,”in International Peacekeeping, supra note 19, at 47.
22 Report of the Secretary-General, “The Rule of Law and Transitional Justice inConflict and Post-Conflict Societies” (UN Doc. S/2004/616, 23 August 2004), p. 4, para.
7.
23 Ibid., pp. 15-16, paras. 46-47.
20
21

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi Universityof justice and accountability24.

Ⅲ
1

Transitional Justice in the UN Post-conflict Peacebuilding

Processes and Mechanisms of Transitional Justice25●Functions and Mechanisms
The notion of “transitional justice,” as we referred to earlier, is generally used
as comprising the full range of processes and mechanisms associated with a society’s
attempts to come to terms with a legacy of large-scale past abuses, in order to ensureaccountability, serve justice and achieve reconciliation. These may include both judicial
and non-judicial mechanisms, with different levels of international involvement (ornone at all) and individual prosecutions, reparations, truth-seeking, institutional
reform, vetting and dismissals, or a combination thereof.
Transitional justice is generally thought to help prevent recurrence of violent
conflict and foster sustainable peace by establishing a historical record and countering
denial, ensuring accountability and ending impunity, and fostering reconciliation andsocio-political reconstruction.
●A Brief History of Transitional Justice
The modern origin of transitional justice can be traced back to the post-WorldWar II Europe, and especially International Military Tribunal at Nuremberg(1946-1949) and the de-nazification programs in Germany. The central feature of thisfirst wave of transitional justice was the articulation and application of internationallaw. Although the military tribunals were criticized by some as being an example of"victor's justice," they significantly influenced the development of international law and
set a precedent for international justice efforts decades later.
E. Newman, “Transitional Justice’: The Impact of Transnational Norms and the UN,”in International Peacekeeping, supra note 19, at 48.
25 This section, which is to explain some commonly shared knowledge of the basic
concepts, history, approaches of transitional justice, is based upon the followings: Reportof the Secretary-General, “The Rule of Law and Transitional Justice in Conflict andPost-Conflict Societies” supra note 22; International Association for Humanitarian
Policy and Conflict Research (aisbl), “Transitional Justice: Definitions & Conceptual
Issues,” “Transitional Justice: Transitional Justice & Peacebuilding Processes,”“Transitional Justice: Actors & Activities,” “Transitional Justice: Key Debates &Implementation Challenges,” available at
http://www.peacebuildinginitiative.org/index.cfm; M. C. Bassiouni, “Accountability for
Violations of International Humanitarian Law and Other Serious Violations of Human
Rights,” in M. C. Bassiouni, ed., Post-Conflict Justice (Transnational Publishers, Inc.,
2002), pp. 3-54.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

The growth of transitional justice as a field of inquiry and practice (and its
articulation as such) occurred in the 1980s and 1990s, primarily due to the growing
number of democratizing States as well as States in post-conflict contexts around theworld, and the resulting question of how, and whether, to address the human rights
violations committed by previous regimes or fighting warlords in the civil wars. Other
contributory factors would include the increasing prominence of human rights andhuman rights organizations as well as the end of the Cold War.
The central feature of this second wave of transitional justice was the truth
commission. Truth commissions emerged within the particular context of negotiatedtransitions from authoritarianism to democracy in South America. In these settings,
criminal prosecutions were either impossible or extremely dangerous because theoutgoing regime still retained considerable power and had the ability to derail the
democratization process. The truth about the previous regimes’ abuses would beestablished and acknowledged at the expense of prosecuting suspected perpetrators. As
a result, people started referring to the so-called "truth versus justice" debate26.
Parallel to these developments, the brutal wars in the former Yugoslavia andthe genocide in Rwanda led to the creation of two ad hoc international tribunals: theInternational Criminal Tribunal for the former Yugoslavia (ICTY), based in The Hague,
Netherlands, and the International Criminal Tribunal for Rwanda (ICTR), based inArusha, Tanzania. International justice was further institutionalized by theestablishment of the International Criminal Court (ICC) in 2002 as well as a series of"hybrid" and internationalized courts, such as the Special Court for Sierra Leone or the
Extraordinary Chambers of the Cambodian Criminal Court, whose benches include
both national and international judges.
●Approaches of Transitional Justice
It would be useful at the beginning to make some brief explanations on each ofa set of approaches: (1) criminal prosecutions, (2) truth commissions, (3) reparations, (4)institutional reform, especially vetting, and (5) amnesties.
(1) Criminal Prosecutions: Criminal prosecutions usually target what are
called the "big fish", i.e., suspects considered most responsible for massive or systematic
human rights violations. This has led to significant advances in international justiceefforts, such as the creation of ad hoc international criminal tribunals, various hybrid
courts, and the International Criminal Court (ICC). They are considered to advance a
In 1995, South Africa established a Truth and Reconciliation Commission (TRC) as acentral component of its negotiated transition from apartheid to democracy. The South
African TRC is perhaps the most written-about single transitional justice endeavor.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

number of objectives, among which are bringing to justice those responsible for serious
violations of human rights and humanitarian law, putting an end to such violations andpreventing their recurrence, securing justice and dignity for victims, establishing arecord of past events, promoting national reconciliation, re-establishing the rule of law
and contributing to the restoration of peace.
(2) Truth Commissions: Truth commissions are official, temporary, non-judicial
fact-finding bodies that investigate a pattern of abuses of human rights orhumanitarian law committed over a number of years. These bodies take a
victim-centred approach and conclude their work with a final report of findings of fact
and recommendations. Truth commissions have the potential to be of great benefit in
helping post-conflict societies establish the facts about past human rights violations,foster accountability, preserve evidence, identify perpetrators and recommend
reparations and institutional reforms.
(3) Reparations: Reparation programs usually distribute a combination ofmaterial and symbolic benefits to victims, including financial compensation and official
acknowledgement of and apology for the wrongs committed against the victims as wellas memorialization initiatives. No single form of reparation is likely to be satisfactory to
victims. Instead, appropriately conceived combinations of reparation measures willusually be required, as a complement to the proceedings of criminal tribunals and truth
commissions.
(4) Institutional Reform, especially Vetting: Vetting, for which the assistanceof the United Nations has frequently been sought, refers to processes for screening
public employees or candidates for public employment to determine if their priorconduct (especially their lack of respect for human rights standards) warrants their
exclusion from public institutions. The vetting of security agencies and judicial systems
is particularly important from a transitional justice perspective as it aims to make thoseinstitutions more trustworthy in the eyes of the general population.
(5) Amnesties: Amnesty can be defined as immunity in law, from either
criminal or civil legal consequences, or from both, for wrongs committed in the past in apolitical context. Immunity may derive either from an amnesty law or an exercise of
power founded in law. More generally, it refers to a State policy of or a societal
preference for overlooking or forgetting the violent past. Although the very idea thatamnesties are transitional justice mechanisms can be highly contentious as they may
appear as "do nothing" approaches, amnesties have been part of many peaceagreements and remain widely applied internationally.

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University●Choices of Institutional Design27
The search for appropriate institutional designs to deal with mass atrocities isstill very much ‘a work in progress’. Experience has shown that there is noone-size-fits-all formula, but a need for individual and country-specific solutions.
Transitional justice requires a plurality of approaches. As different symptoms
require distinct treatments, different scenarios of transition need individual
institutional designs. Solutions applied in one country will not necessarily work in adifferent country. The choices depend on a variety of factors, including the nature of theconflict, the political environment in the country, the capacity of the domestic judiciary,
the security situation and the involvement of international actors. These factors
influence the design of both judicial and quasi- or non-judicial mechanisms of justice.
Some of the factors could be explained as follows.
(1) Truth and Reconciliation Commissions: While some commissions wereinternational in the sense that they were established on the basis of a UN-sponsoredpeace accord or international agreements, other commissions were domestic in thesense that they were established by domestic laws. Experience shows that domestic
approaches may produce beneficial results in situations in which there is a clear break
between the old and the new regime and where both the new government and the local
judiciary enjoy the trust of the population. On the other hand, international approaches
appear to be better suited to address scenarios of transition in which ethnic conflicts orgroup-oriented oppression continue to divide a society, where there is no clear break inregime and where the justice system lacks capacity, legitimacy or independence.
(2) International Judicial Institutions: We have witnessed several models ofinternational judicial institutions as follows. Fully international justice: the ICTY, theICTR, and the ICC. Hybrid court: the Special Court for Sierra Leone (established as atreaty-based court). Internationalized domestic courts: Kosovo – the use of international
judges and prosecutors in the courts of Kosovo, pursuant to regulations of UNMIK; East
Timor – a Panel with Exclusive Jurisdiction over Serious Criminal Offences inTimor-Leste; Cambodia – Extraordinary Court Chambers for the prosecution of serious
crimes. The choice of the specific design appears to be determined by a number ofgeneral factors such as domestic capacity (in situations where domestic authorities areunable to try perpetrators, and where domestic institutions are not sufficiently
legitimate and independent to conduct trials and prosecutions), stage of transition (fullThis portion relies on C. Stahn, “The Geometry of Transitional Justice: Choices ofInstitutional Design,” in Leiden Journal of International Law, Vol. 18 (2005), pp.
425-466.
27

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

internationalization of domestic judicial systems may be required in the immediate
aftermath of conflicts in order to fill a rule-of-law vacuum, such as in the early phase of
the UNMIK presence in Kosovo, where no domestic institutions existed), type of conflict(in the context of ethnic violence and systematic oppression, domestic institutions
encounter legitimacy problems, because they have often been used by one group or
party to the conflict for the purpose of oppression of the other side).
●Functional Problems in Operation【Figure of Transitional Justice】

Transitional justice now exhibits an increasingly complex set of linkages
between the local, national and international levels, with different mechanisms
functioning simultaneously. The coexistence of multiple mechanisms results insynergies and tensions, duplications and gaps. The relationships between different
institutions necessarily become complicated, as they must navigate issues of evidenceand witness-sharing, division of labors, sequencing, and the similarities and differencesin the narratives they produce28.

a and ○b
【Figure of Transitional Justice】 indicates several points. First, ○International Association for Humanitarian Policy and Conflict Research (aisbl),“Transitional Justice: Definitions & Conceptual Issues, supra note 25.
28

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

show the trend from ICTY and ICTR (International Ad hoc Judicial Organs) toHybrid (Mixed) or Internationalized Domestic Ad hoc Judicial Organs and to ICC(International Permanent Judicial Organ). This is not only a chronologicalphenomenon but also based upon some substantial reasons 29 . ICTY and ICTR
certainly played a crucial role in advancing the cause of justice and developed a richjurisprudence in the area of international criminal law. These gains, however, camewith significant costs, and the stark differential between cost and number of cases
processed was noted. Furthermore, their locations outside the countries where thecrimes were committed were noted to have sacrificed a number of important
benefits, such as easier interaction with the local population, closer proximity to theevidence and witnesses and being more accessible to victims. Locating tribunals
inside the countries concerned would allow victims and their families to witness theprocesses in which their former tormentors are brought to account, enhance thenational capacity-building contribution of the ad hoc tribunals, by allowing them tobequeath their physical infrastructure (including buildings, equipment andfurniture) to national justice systems and to build the skills of national justicepersonnel.
Secondly, as is well known, the relationship between jurisdictions ofinternational criminal courts and those of national courts are regulated by particularprinciples. In the case of ICTY and ICTR (①), it is the principle of “primacy” of ICTY
and ICTR, and in the case of ICC (②), it is the principle of “complementarity” of ICC.
Thirdly, one of the problems in the relationship between national andinternational courts on the one hand and truth and reconciliation commissions on theother (⑤) would be “information sharing” between them. To what extent, for example,
the material in the possession of the TRC including evidence given in confidence should
be available to the Prosecutor, the Defense Council, or the Judges of the Court would
bring about various consequences on the effective functioning of the TRC as well as
judgments of the Court30.
2

UN Policy of Transitional Justice as Indicated by the Secretary-General’s Report
The Security Council met at the ministerial level in 2003 to discuss the United

Report of the Secretary-General, “The Rule of Law and Transitional Justice inConflict and Post-Conflict Societies,” supra note 22, pp. 14-15, paras. 41-44.
30 See, for example, W. A. Schabas, “Internationalized Courts and their Relationshipwith Alternative Accountability Mechanisms: The Case of Sierra Leone,” in C. P. R.
Romano et al., eds., Internationalized Criminal Courts and Tribunals: Sierra Leone,
East Timor, Kosovo, and Cambodia (Oxford U. P., 2004), pp. 157, 170-171.
29

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Nations role in establishing justice and the rule of law in post-conflict societies. In thelight of the wealth of relevant expertise and experience within the United Nations
system, the Security Council, in its meeting on “Post-conflict national reconciliation: therole of the United Nations”, requested the Secretary-General to submit a report on thisquestion. This is the Report of the Secretary-General, “The Rule of Law andTransitional Justice in Conflict and Post-Conflict Societies.”31 We will briefly examine
the content of this report which could be considered as the current UN policy oftransitional justice. (Paragraph numbers are indicated in parentheses.)●Essentiality of Transitional Justice for Peace
The Report, at the beginning (2), emphasizes the essentiality of transitional
justice for peace both in the immediate post-conflict period as well as in the long term bystating that the consolidation and maintenance of peace cannot be achieved unless the
population is confident that redress for grievances can be obtained through legitimate
structures for the peaceful settlement of disputes and the fair administration of justice.
●Normative Foundation of United Nations Activities for Justice and the Rule of Law
The Report, also at the beginning (9), confirms its position that the UN muststand on international legal ground. It says:
The normative foundation for our work in advancing the rule of law is the Charterof the United Nations itself, together with the four pillars of the modern
international legal system: international human rights law; international
humanitarian law; international criminal law; and international refugee law….
These represent universally applicable standards adopted under the auspices of theUnited Nations and must therefore serve as the normative basis for all United
Nations activities in support of justice and the rule of law.
It is noted (10) that these standards bring about certain consequences, such as,that United Nations tribunals can never allow for capital punishment, that United
Nations-endorsed peace agreements can never promise amnesties for genocide, war
crimes, crimes against humanity or gross violations of human rights, and, that where
we are mandated to undertake executive or judicial functions, United Nations-operated
facilities must scrupulously comply with international standards for human rights inthe administration of justice.
●Host-Country-Centered Perspective: Needs and Capacities
The Report, then (14), adopts a host-country-centered perspective by statingthat it is imperative that both the Security Council and the United Nations system
31

UN Doc. S/2004/616, 23 August 2004.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

carefully consider the particular rule of law and justice needs in each host country.
Accordingly, myriad factors must be assessed, such as the nature of theunderlying conflict, the will of the parties, any history of widespread abuse, theidentification of vulnerable groups, such as minorities and displaced persons, thesituation and role of women, the situation of children, rule of law implications of peaceagreements and the condition and nature of the country’s legal system, traditions andinstitutions.
Unfortunately (15), the international community has not always provided ruleof law assistance that is appropriate to the country context. Too often, the emphasis has
been on foreign experts, foreign models and foreign-conceived solutions to the detrimentof durable improvements and sustainable capacity.
●Host-Country-Centered Perspective: Local Ownership
The Report, thus (17), refers to the importance of local ownership, local
leadership and a local constituency for reform.
Ultimately, no rule of law reform, justice reconstruction, or transitional justiceinitiative imposed from the outside can hope to be successful or sustainable. Countless
pre-designed or imported projects, however meticulously well-reasoned and elegantly
packaged, have failed the test of justice sector reform.
The role of the United Nations and the international community should be
solidarity, not substitution. The most important role the UN can play is to facilitate theprocesses through which various stakeholders debate and outline the elements of theircountry’s plan to address the injustices of the past and to secure sustainable justice forthe future, in accordance with international standards, domestic legal traditions andnational aspirations.
●Due Attention to Political Context
Due attention (19), however, must be paid to the political context and politicalelements as well, because, in some cases, State authorities have been more concernedwith consolidation of power than with strengthening the rule of law, with the latteroften perceived as a threat to the former.
Equally important (21) is the fact that rule of law reforms and transitional
justice activities often occur simultaneously with post-conflict elections, as well as withthe unfolding of fragile peace processes. Careful sequencing of such processes is vital totheir success and legitimacy.
Justice and peace are not contradictory forces. Rather, properly pursued, they
promote and sustain one another. The question, then, can never be whether to pursue
justice and accountability, but rather when and how. This means recognizing that18

Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

United Nations peace operations, with some notable exceptions, are planned as
short-term interventions, while accounting for the past, building the rule of law andfostering democracy are long-term processes.
●Integrated and Complementary Approaches
The Report, ultimately (23), adopts integrated and complementary approaches
by stating that a piecemeal approach to the rule of law and transitional justice will notbring satisfactory results in a war-torn or atrocity-scarred nation.
Effective rule of law and justice strategies must be comprehensive, engaging all
institutions of the justice sector, both official and non-governmental, in the development
and implementation of a single nationally owned and led strategic plan for the sector.
The Report refers to hard-learned lessons (24) drawn from decades of United
Nations experience on the ground. For example (25), the international community mustsee transitional justice in a way that extends well beyond courts and tribunals; thechallenges of post-conflict environments necessitate an approach that balances avariety of goals, including the pursuit of accountability, truth and reparation, thepreservation of peace and the building of democracy and the rule of law.
Accordingly (26), strategies must be holistic, incorporating integrated attention
to individual prosecutions, reparations, truth-seeking, institutional reform, vetting anddismissals, or an appropriately conceived combination thereof.
The United Nations must consider through advance planning and consultation
how different transitional justice mechanisms will interact to ensure that they do notconflict with one another.
●Some Warnings
Some more additional warnings are to be kept in mind.
In

post-conflictsettings(27),

legislative

frameworks

often

containdiscriminatory elements and, in some cases (28), there are no functioning criminal
justice mechanisms at all.
In some situations (29), civilian police in peace missions have been mandated
to undertake executive functions, including powers of arrest and detention. In the longterm, however, no ad hoc, temporary or external measures can ever replace afunctioning national justice system.
●Secretary-General’s Report as the UN Policy of Transitional Justice“Guidance Note of the Secretary-General: United Nations Approach toTransitional Justice 32 ” was made in 2010. This Note, which provides the guiding
32

Available at http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

principles and framework for United Nations approach to transitional justice processes
and mechanisms, basically reiterates the above Report. Also made from the perspectiveof this Report is the “Analytical study on human rights and transitional justice33”
submitted in 2009 pursuant to a resolution of the Human Rights Council, whichcontains an overview of activities undertaken by the Office of the United Nations HighCommissioner for Human Rights (OHCHR) field presences and human rights
components of United Nations peacekeeping and political missions.
These instruments would confirm that the current position of the UN on
transitional justice in the post-conflict period is summarized in the perspective of thisReport.
3

Reality of Transitional Justice as Indicated by State and UN Practice34●A Conundrum of Transitional Justice
A conundrum of transitional justice in peace building could be explained asfollows35: If you exclude those responsible for war crimes, then you are unlikely tosecure a negotiated peace. If you include them in the process, you legitimize them as
individuals as well as their agenda, and likely increase the possibility of continued
atrocities or of a fundamentally flawed peace agreement which encourage additional
ethnic aggression.
●Prevalent was the Claim that Peace Comes FirstIn the short-term, it is easy to understand the temptation to forego justice in aneffort to end a war. They argue that leaders facing the possibility of trial and likely
conviction have little incentive to lay down their arms. Instead, they contend, theseleaders will cling all the more tenaciously to power. The prospect of arrest may evenspur them to continue to fight a war in an effort to maintain their position. Others
express the fear that delicate peace negotiations will be upset by insistence on
accountability36.
●One Possible Solution: Overwhelming Engagement by the International Community
One possible solution to this conundrum is to more readily employ the use of

UN Doc. A/HRC/12/18, 6 August 2009.
This section, which refers to various cases in the past 20years, significantly benefits
from the research done by the Human Rights Watch in Selling Justice Short: Why
Accountability Matters for Peace in 2009 (available at
http://www.hrw.org/reports/2009/07/07/selling-justice-short-0).
35 P. R. Williams, “The Role of Justice in Peace Negotiations,” in M. C. Bassiouni, ed.,Post-Conflict Justice (Transnational Publishers, Inc., 2002), pp. 115, 117.
36 Human Rights Watch, Selling Justice Short, supra note 34, at 18.
33
34

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

force against those responsible for war crimes and to limit contact with these
individuals to the extent necessary to secure the implementation of dictated terms ofpeace37.
This is indeed demonstrated by several examples 38 . When democraticallyelected President Aristide was removed from office by a military coup d’état in Haiti, theSecurity Council imposed a mandatory economic embargo by Resolution 841 (1993), andauthorized Member States to form a multinational force and use all necessary measures
to facilitate the prompt return of the elected President by Resolution940 (1994). It is tobe noted that Resolution940 also referred to the reform of the Haitian armed forces andthe creation of a separate police force as well as the organization of free and fairlegislative elections (to be monitored by the United Nations).
The NATO-led military campaign in accordance with Security Council
Resolutions 824 (1993), 836 (1993), and 844 (1993) against Bosnian Serb forces in
Bosnia Herzegovina played an important role in bringing about the signing of the
Dayton Agreement, Dayton Peace Accords in 1995. These Accords decided the detailed
structure of Bosnia Herzegovina as a State as well as specified that no one indicted for
war crimes, such as Radovan Karadžić, could participate in the elections scheduled for
1996.
The Security Council Resolution 1244 (1999) adopted after NATO’s bombing on
Serbia, as was explained earlier, authorized the Secretary-General to establish UNMIK
in Kosovo in order to provide an interim administration for Kosovo.
However, this solution depends on the political will of the international
community, particularly those major powers capable of sending their armies. In fact,
those three cases demonstrate that all of them belong to the scope of western powers’
national interests and that no case in Africa will belong to it.
●Peace Agreement, Amnesty and Vetting
If mediators do decide to include in the negotiation process individuals
suspected of responsibility for war crimes, the next question becomes whether thoseindividuals might be offered immunity from prosecution as part of a strategy ofaccommodation designed to induce them into signing and implementing the agreement.
Indeed, to get parties to the table, blanket amnesties have often in the past
been offered to those responsible for horrific human rights abuses. Supporters ofamnesties argue that those bearing the greatest responsibility for atrocities have no
P. R. Williams, “The Role of Justice in Peace Negotiations,” supra note 35, at 117.
H. Shinoda, Heiwa-Kochiku to Ho-no-Shihai (Peacebuilding and the Rule of Law)
(Sobunsha, 2003), pp. 67-68.
37
38

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

interest in laying down their arms unless they believe that they will not face criminal
charges.
In fact, in Sierra Leone, for example, a blanket amnesty provision was inserted
in each of the three different peace accords respectively in 1996, 1997 and 1999. Also in
Angola, several amnesties were successively given in 1991, 1994, 1996, 2000 and 2002.
Furthermore, negotiators feel, in some situations, that turning a blind eye tocrimes is not enough and that alleged war criminals must be granted official positions
in order to persuade them to lay down their arms.
In Sierra Leone, for example, when Kabbah’s government and the
Revolutionary United Front (RUF) rebels signed a peace agreement in Lomé, Togo, in
1999, the accord, brokered by the UN, the Organization of African Unity, and theEconomic Community of West African States (ECOWAS), committed the RUF/AFRC(Armed Forces Revolutionary Council) to lay down its arms in exchange forrepresentation in a new government. Rather than being held to account for abuses, RUF
leader Foday Sankoh was rewarded with the chairmanship of the board of theCommission for the Management of Strategic Resources, National Reconstruction andDevelopment (which gave him access to the country’s extremely lucrative diamondmines) and the status of vice-president. AFRC leader Johnny Paul Koroma was madethe chairman of the Commission for the Consolidation of Peace provided for underarticle 6 of the peace agreement39.
●Trend Not to Apply Amnesty to Core Crimes
On the other hand, it is asserted that international law and practice has
evolved over the last 15 years to the point where both peace and justice should be theobjectives of negotiations aimed to end a conflict where the most serious crimes underinternational law have been committed. At the very least, peace agreements should notforeclose the possibility of justice at a later date40.
United Nations’ bodies have, in fact, repeatedly stood on this position against
amnesties regarding the most serious crimes. For example, regarding the 1999 Lomé
Peace Accord, despite the opposition of Sierra Leone President Kabbah, the UN special
representative attached a reservation to the agreement stating, “The United Nations
holds the understanding that the amnesty provisions of the Agreement shall not apply
to international crimes of genocide, crimes against humanity, war crimes and otherserious violations of international humanitarian law.”41
Human Rights Watch, Selling Justice Short, supra note 34, at 59.
Ibid., at 8.
41 Ibid., at 16. The same is a case in Angola (Ibid., at 67-68.).
39
40

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University●Making Peace and Justice Compatible: MarginalizationIn

practice,theanticipatednegative

consequencesofpressingforaccountability often do not happen. Insisting on justice, for example, does notnecessarily mean an end to peace talks or result in renewed instability as some predict.
Peace agreements and ceasefires in the Democratic Republic of Congo (DRC) did notinclude amnesty provisions for war crimes, crimes against humanity, and genocide,despite the fear of many that not granting total amnesty would mean the collapse ofnegotiations. In each of the peace talks (1999, 2002, 2006, and 2008), rebels put forward
proposals for broad amnesties covering the worst crimes, but the government
successfully resisted these demands without ending the talks. The inclusion ofprovisions for justice in negotiations with the Lord's Resistance Army (LRA) in Uganda
that resulted from the ICC’s pursuit of LRA leaders likewise did not scuttle those peacetalks, despite the concerns of many who advocated an amnesty42.
The potential value of justice has generally been underestimated. Rather thanscuttle peace talks or undermine a transition to democracy, an indictment may facilitate
them by altering the power dynamics. Indicting a leader for atrocities makes it harderfor him to deny that the crimes have occurred. It may also make it more difficult for theleader to travel or obtain international or national support—his associates may seek todistance themselves from him in an effort to avoid a similar fate. Criminal indictment ofabusive leaders and the resulting stigmatization can, therefore, lead to marginalizing asuspected war criminal and may ultimately facilitate peace and stability43.
Some examples can be presented as follows. In Bosnia and Herzegovina theindictment of Radovan Karadzic by the ICTY marginalized him and prevented his
participation in the peace talks leading to the success of the Dayton negotiations to end
the Bosnian war. Similarly, the unsealing of the arrest warrant for Liberian President
Charles Taylor at the opening of talks to end the Liberian civil war was ultimately
viewed as helpful in moving negotiations forward. By delegitimizing Taylor both
domestically and internationally, the indictment helped make clear that he would haveto leave office, an issue that had been a potential sticking point in negotiations. He left
Liberia’s capital, Monrovia, a few months later44.
●Peace Without Justice Cannot be Sustainable
Carla Del Ponte, former International Criminal Tribunal for the former

Ibid., at 3.
Ibid., at 19-20.
44 Ibid., at 20-34.
42
43

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Yugoslavia prosecutor, stated as follows45.
Peace without justice cannot be sustainable. It is a terrible mistake to believe thatpeople will simply forget. Even after a hundred years, sometimes even after several
hundred years, unpunished crimes continue to represent huge stumbling blocks inestablishing peaceful, normal relations between some States.
Foregoing accountability often does not result in the hoped-for benefits. Insteadof putting a conflict to rest, an explicit de jure amnesty that grants immunity for war
crimes, crimes against humanity, or genocide may effectively approve the commission ofgrave crimes to the international community without resulting in the desired objectiveof peace. All too often a peace that is conditioned on providing impunity for these mostserious crimes is not sustainable. Even worse, it sets a precedent of impunity foratrocities that encourages future abuses. Peace premised on a blanket amnesty may be
a short-lived respite before the resumption of further armed conflict and its attendantcrimes. In Sierra Leone, for example, three blanket amnesty provisions in different
accords failed to consolidate the hoped-for peace, and in Angola six successive amnesties
did not lead to the peace either. In both places, war and war crimes resumed within ashort period after peace agreements had been reached. The precedent of impunity
meant that would-be criminals had no reason to curtail their unlawful tactics going
forward46.
Furthermore, inclusion of alleged perpetrators in government has not proved tobe the panacea that it was thought to be. While efforts to bring human rights abusers tojustice undoubtedly present challenges, making deals with criminal suspects in order toachieve peace can have far-reaching negative consequences. Rather than achieving thehoped-for end of violence in post-conflict situations, incorporating leaders with recordsof past abuse into the military or government has resulted in further abuses and has
allowed lawlessness to persist or return. In Afghanistan, the result of incorporating
many of the worst perpetrators from its recent past into the Hamid Karzai governmenthas been continuing violence and abuse of power by some of the warlords who now wield
governmental authority. Inclusion of those with blood on their hands in the new ordereroded the legitimacy of the government for many Afghans and has been used by
opponents of the government to discredit it. In the Democratic Republic of Congo, in aneffort to buy compliance with the transition process, dozens of people suspected ofcommitting human rights violations were given posts of national or local responsibility,
including in the army. Rather than end the conflict, this has resulted in a proliferation
45
46

Cited at Ibid., at 75.
Ibid., at 4-5, 57.
24

Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi Universityof rebel groups who see no downside to taking up arms47.
Rewarding alleged war criminals with government positions might actuallyencourage others to engage in criminal activity in the hope of receiving similar
treatment. Furthermore, inclusion of criminal suspects in government erodes publicconfidence in the new order by sending a message to the population about theacceptance of such abuses and by further entrenching impunity48.
●Realistic Warning
In spite of some of the progressive perspectives49 mentioned above, we must
pay much attention to the warning that, in Post-conflict Peacebuilding: A Lexicon in
2009, Chetail, editor and a core member of the authors, concluded as follows50:
The existence of legal norms should not hide the fundamentally political essence ofpeacebuilding processes. The means of achieving a sustainable peace are wellknown. They demand an unfailing determination from the international community,
the mobilization of resources over the long term, and a better understanding of thetrue needs of the population involved. One cannot, however, help but notice that theconcept of post-conflict peacebuilding is still struggling to move from rhetoric toreality.
While this conclusion is on post-conflict peacebuilding, we should keep in mind
that a similar conclusion would probably apply to post-conflict transitional justice as
crucial elements in the process of peacebuilding.

Ⅳ

UN Activities in Transitional Justice and the International Legal Order
1

Impacts on the International Legal Order(1) From “Transitional Justice”●From Impunity to Accountability and towards International Rule of Law.
The establishment and operation of the international and hybrid criminal
tribunals of the last decade represent historic achievements in establishing
47
48

Ibid., at 5.
Ibid., at 35.

Although it argues that justice should not be shortchanged in peace negotiations andthat the cost of overlooking impunity is high, Human Rights Watch acknowledges that
there is not one formula that is suitable to all situations, and that well-known
counter-examples do exist. On the whole, however, Human Rights Watch asserts that,rather than solidify peace, successive amnesties had the opposite effect in Sierra Leone.
Ibid., at 7. 61.
50 V. Chetail, “Introduction: Post-conflict Peacebuilding — Ambiguity and Identity,” in V.
Chetail ed., Post-conflict Peacebuilding: A Lexicon (Oxford U.P., 2009), pp. 1, 25.
49

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

accountability for serious violations of international human rights and humanitarian
law by civilian and military leaders.
Criminal trials can play an important role in transitional contexts. For example,
they express public denunciation of criminal behavior; they can provide a direct form ofaccountability for perpetrators and ensure a measure of justice for victims by giving
them the chance to see their former tormentors made to answer for their crimes; insofar
as relevant procedural rules enable them to present their views and concerns at trial,
they can also help victims to reclaim their dignity; criminal trials can also contribute to
greater public confidence in the State’s ability and willingness to enforce the law; they
can also help societies to emerge from periods of conflict by establishing detailed andwell-substantiated records of particular incidents and events; they can help tode-legitimize extremist elements, ensure their removal from the national politicalprocess and contribute to the restoration of civility and peace and to deterrence51.
They have also made a global contribution by developing a rich jurisprudence inthe area of international criminal law: greater clarity on questions of rape as a war
crime and a crime against humanity, the elements of genocide, the definition of torture,
the nature of individual criminal responsibility, the doctrine of command responsibility
and appropriate sentencing52.
With the functioning of international criminal courts, national tribunals, and,increasingly, trials abroad, the context of amnesty discussions is said to be already very
different from a decade ago; it is now generally recognized that international law
obligates countries to prosecute genocide, crimes against humanity, and war crimes;
international tribunals and national courts applying universal jurisdiction are likely toreject de jure amnesties for the most serious human rights abuses53.
The 2005 World Summit Outcome states that “[e]ach individual State has the
responsibility to protect its populations from genocide, war crimes, ethnic cleansing andcrimes against humanity”54. Thus, “[i]t is now well established in international law andpractice that sovereignty does not bestow impunity on those who organize, incite orcommit”55 one of the core crimes.

Report of the Secretary-General, “The Rule of Law and Transitional Justice inConflict and Post-Conflict Societies” supra note 22, p. 13, para. 39.
52 Ibid., p. 14, para. 41.
53 Human Rights Watch in Selling Justice Short: Why Accountability Matters for Peace,supra note 34, at 1.
54 “2005 World Summit Outcome,” supra note 9, p. 30, para. 138.
55 Report of the Secretary-General, “Implementing the Responsibility to Protect,”
UN Doc. A/63/677, 12 January 2009, p. 23, para. 54.
51

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

This is also confirmed by the fact that the Sierra Leone Special Court held as
follows:
The grant of amnesty or pardon is undoubtedly an exercise of sovereign power
which, essentially, is closely linked, as far as crime is concerned, to the criminal
jurisdiction of the State exercising such sovereign power. Where jurisdiction isuniversal, a State cannot deprive another State of its jurisdiction to prosecute theoffender by the grant of amnesty. It is for this reason unrealistic to regard asuniversally effective the grant of amnesty by a State in regard to graveinternational crimes in which there exists universal jurisdiction. A State cannot
bring into oblivion and forgetfulness a crime, such as a crime against internationallaw, which other States are entitled to keep alive and remember56.
The Court also stated that “the amnesty granted by Sierra Leone cannot covercrimes under international law that are the subject of universal jurisdiction” because “itstands to reason that a State cannot sweep such crimes into oblivion and forgetfulness
which other States have jurisdiction to prosecute by reason of the fact that the
obligation to protect human dignity is a peremptory norm and has assumed the natureof obligation erga omnes.”57
Thus, it is pointed out that they reflect a growing shift in the international
community, away from a tolerance for impunity and amnesty, and towards the creationof an international rule of law; despite their limitations and imperfections,international and hybrid criminal tribunals have changed the character of international
justice and enhanced the global character of the rule of law58.
●Development of Individual Criminal Responsibility and Its Relationship with State
responsibility“Crimes against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can the provisions ofinternational law be enforced.”
This is the famous statement by the Nuremberg Tribunal which reversed thelogic of the traditional rules of the law on international responsibility of States. Under
Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Special Court for Sierra
Leone, Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), Decision on
Challenge to Jurisdiction: Lomé Accord Amnesty, March 13, 2004, para. 67.
57 Ibid., para. 71. The ICTY has also indicated that amnesties for internationallyrecognized crimes would not be accorded international legal recognition. Prosecutor v.
Anto Furundzija, ICTY, Case No. IT-95-17/1-T, Judgment, December 10, 1998, para.
155.
58 Report of the Secretary-General, “The Rule of Law and Transitional Justice inConflict and Post-Conflict Societies,” supra note 22, p. 14, para. 40.
56

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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

the law of State responsibility, responsibility attaches only to States by ignoring
individuals who actually acted on their behalf. Individuals do not exist independently of
the States to which they serve as their organs. The international individual
responsibility of natural persons who have committed crimes in international law has
increasingly been clarified by the statutes and the case law of the international criminal
courts and tribunals.
The autonomy of individual criminal responsibility vis-à-vis the State’s
responsibility for the commission of the same crimes is indicated by the system of
removal of immunity from accused persons who could, in principle, shelter from
criminal prosecution because of the public nature of the positions they occupied such as
Heads of State or government59. As the ICTY stated in the Blaskic case60 after referringto the ordinary system of immunities, it is the essence of international criminal law thatthese immunities be set aside in relation to war crimes, crimes against humanity andgenocide, even if those responsible for those crimes carry them out in connection with
their official functions.
Once the autonomy of individual criminal responsibility is recognized, the nextquestion is how the respective systems of responsibility of the individual and the Statefor international crimes could be differentiated. On this question of differentiation
between two systems of responsibility, Dupuy, for example, contends61 that intention isessentially individual and the primary foundation of the responsibility of the individual,
while intention is a subsidiary element in State responsibility to be found in only alimited number of wrongful acts; the individual’s responsibility is fundamentally penal
while the State’s responsibility is essentially reparational.
We are thus seeing an evolution towards the individualization of penal
responsibility in the international order that closely parallels the one that municipal
legal systems underwent long ago. The same type of wrongful acts, like aggression or
genocide, can give rise to two distinct types of responsibility coming under mutuallyautonomous legal regimes, the first constituting the individual responsibility of physicalpersons who are the culprits or the givers of the orders, the second that of the State in

P.-M. Dupuy, “International Criminal Responsibility of the Individual andInternational Responsibility of the State,” in A. Cassese et al. eds., The Rome Statute of
the International Criminal Court: A Commentary, Volume II (Oxford, U.P., 2002), pp.
1085, 1093-1094.
60 Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia
for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14, 29
October 1997, at para. 41.
61 P.-M. Dupuy, supra note 59, at 1095-1096.
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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

the name of which these same acts were committed62.
Another question is what the relationship between two systems of
responsibility will be. In the judgment of the Case concerning the Application of theConvention on the Prevention and Punishment of the Crime of Genocide (Bosnia andHerzegovina v. Serbia and Montenegro) in 2007, the ICJ reached the conclusion thatContracting Parties are bound not to commit genocide themselves63 although such an
obligation is not expressly imposed by the actual terms of the Convention. Thus, theCourt faced the situation that the commission of some international crimes can involve
both individual criminal responsibility of the perpetrators and the responsibility of aState for the violation of its treaty obligations, i.e., overlapping between two systems of
responsibility. International criminal courts and tribunals are to apply the same
substantive rules as the ICJ. However, because the proceedings are quite different
between the ICJ and criminal courts, there is no guarantee that they will reach thesame conclusion. A series of difficult problems and dilemmas could occur from this andother similar situations64.
●“The Individual” as a “Subject” of International Law
It could also be pointed out that “the individual” as a “subject” of internationallaw has greatly developed into a balanced entity having both rights and obligations.
International human rights law developed under the activities of the UN, thus leading
to the flourishing rights of individuals under international law on the one hand.
International humanitarian law and international criminal law, particularly since theend of the Cold War, developed under the establishment and operation of international
criminal courts and tribunals, thus leading to the consolidation of certain obligations ofindividuals.
The futility of dichotomy between “subjects” and “objects” has been pointed out
by some scholars65, who suggest instead “participants” or “stakeholders.” Furthermore,
it is claimed that the functions and roles that individuals play in the whole process ofinternational law norms from formation to implementation are to be analyzed in a62

Ibid., at 1098.

Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
2007, page 63, para. 166.
64 V.-D. Degan, “Genocide and other International Crimes,” in I. Buffard et al., eds.,
63

International Law between Universalism and Fragmentation: Festschrift in Honour ofGerhard Hafner (Martinus Nijhoff Publishers, 2008), pp. 511, 528-534.
65 R. Higgins, Problems and Process: International Law and How We Use It (Oxford U.
P., 1994), p. 50; Y. Onuma, International Law (Toshindo Publishing Co., Ltd., 2005), p.
129.

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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

systematic manner. These criticisms on the concept of “subjects” are appropriate withregard to individuals in the sense that it does not reflect the importance of individuals
in the contemporary international society.
On the other hand, the nature of an open system of international law waspointed out by the International Court of Justice in the Reparation case when it notedthat:
The subjects of law in any legal system are not necessarily identical in their nature
or in the extent of their rights, and their nature depends upon the needs of thecommunity. Throughout its history, the development of international law has been
influenced by the requirements of international life, and the progressive increase in
the collective activities of States has already given rise to instances of action upon
the international plane by certain entities which are not States66.
The Court made this important statement with regard to international organizations ingeneral and the United Nations in particular. However, it also applies to individuals as
developing subjects of international law. Thus, it would indicate a gradualtransformation of international law in the sense that the system is getting lessState-centric and the individuals have a more prominent role to play. In order to hold abalanced perspective as a whole, however, it is to be noted that, even today, States still
have a dominant role in the international legal system, as autonomous and independent
subjects of international law, while individuals, although also subjects, have much more
limited capacities to engage in the international legal system, and that States are notabout to wither away67.
●Obligation to Cooperate with International Criminal Courts and Tribunals68
The ICTY and ICTR as well as the ICC have jurisdiction directly overindividuals who commit crimes falling within their competence, and, in this sense, their
Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, I. C. J. Reports 1949, pp. 174, 178. See also J. Crawford, “International Law as
an Open System,” in J. Crawford, International Law as an Open System (Cameron May
Ltd, 2002), pp. 17, 20.
67 K. Parlett, The Individual in the International Legal System: Continuity and Change
in International Law (Cambridge U. P., 2011), pp. 365-372.
68 This section relies on the following. V. Gowlland-Debbas, “Implementing Sanctions
Resolutions in Domestic Law,” in V. Gowlland-Debbas ed., National Implementation ofUnited Nations sanctions : A Comparative Study (Martinus Nijhoff Publishers, 2004),
pp. 33, 65-68; S. Furuya, “Legal Effect of Rules of the International Criminal Tribunals
and Court upon Individuals: Emerging International Law of Direct Effect,” Netherlands
International Law Review, Vol. 47 (2000), pp. 111-145; A. Ciampi, “The Obligation to
Cooperate,” in A. Cassese et al. eds., The Rome Statute of the International Criminal
Court: A Commentary, Volume II (Oxford, U.P., 2002), pp. 1607-1638.
66

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

statutes do not require domestic law in order to apply directly to such persons. The rulesof these courts also apply directly to individuals other than the accused, such as therules relating to the summoning of witnesses or the production of evidence.
For the ICTY and ICTR, SC Resolution 827 (1993) and Resolution 955 (1994)
imposed specific obligations on Member States in the field of cooperation and judicial
assistance. States have the obligation to take any measures necessary under theirdomestic law to comply with requests for assistance or orders issued by the trial
Chambers, such as identification and location of persons, the taking of testimony, theproduction of evidence, the arrest or detention of persons and their surrender ortransfer to the International Tribunals, but also the recognition of judgments passed by
the Tribunals, and if necessary, cooperation in their execution. Domestic authorities
must establish procedures for dealing with requests emanating from either of the
Tribunals and render executory their arrest warrants69.
For the ICC, the general obligation to cooperate fully with the Court isexpressly stated in the opening article of Part 9 of the Rome Statute. Article 86 provides
that “States Parties shall … cooperate fully with the Court in its investigation andprosecution of crimes within the jurisdiction of the Court.”
The relationship between jurisdictions of international criminal courts andthat of national courts are regulated by the principle of “primacy” (ICTY and ICTR) orthat of “complementarity” (ICC). These principles, however, merely deal with thecoordination of their jurisdiction over the accused, and, in practice, these courts address
their rules directly to other individuals ranging from witnesses to evidence-holders andoccupants of victim’s property70.
As a matter of policy, these courts would rely on the national authority for theircooperation. However, if a State refuses to cooperate with the courts for the purposes of
preventing them from fulfilling their functions, rules of direct effect will have suchpractical significance as to be executed vis-à-vis an individual directly by the courts71.
The Appeals Chamber of the ICTY, in Blaskic Appeals Judgment, held that the Tribunal
may enter directly into contact with a private individual without any specific consent of
the State concerned when the latter, having been requested to comply with an order,
prevent the ICTY from fulfilling its functions72. For the ICC, article 57 (3) (d) of theV. Gowlland-Debbas, “Implementing Sanctions Resolutions in Domestic Law,” supranote 68, at 66-67.
70 S. Furuya, “Legal Effect of Rules of the International Criminal Tribunals and Court
upon Individuals: Emerging International Law of Direct Effect,” supra note 68, at 144.
71 Ibid., at 138.
72 Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia
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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Statute allows the Prosecutor to take “specific investigative steps” on the territory of aState Party without having secured its cooperation under certain circumstances. This
provision was described as probably the first treaty provision in the history ofinternational law that explicitly allows an international organization to act directly inthe territory of a so-called “failed State73.”
We could note, in our context, that such cooperation requested or imposed byinternational criminal courts and tribunals are rather intrusive into domestic legal
order and directly influence domestic judicial organs74.
(2) To “Peacebuilding”●From Peacebuilding to Democracy Promotion and the Right of Political Participation
Until the end of the Cold War, ‘democracy75’ was a word rarely found in thewritings of international lawyers. Most legal scholars, and certainly most States,
accepted the position that ‘international law does not generally address domestic
constitutional issues, such as how a national government is formed’. In fact, it once
seemed incontrovertible that, given the range of ideologies and institutional structuresof member States, the international system was, by its very nature, neutral on thesubject of the internal character, let alone legitimacy, of domestic regimes76.
The end of the Cold War, however, brought about a challenging new role forinternational organizations as architects for the rebuilding of shattered States in thedeveloping world. In many countries of Africa, Asia, Central America and Eastern
Europe, it has become almost a given that international organizations will culminate
their efforts at national reconciliation with the holding of democratic elections.
for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14, 29
October 1997, para. 55.
73 S. Furuya, “Legal Effect of Rules of the International Criminal Tribunals and Court
upon Individuals: Emerging International Law of Direct Effect,” supra note 68, at 142.
74 M. Delmas-Marty, “The ICC and the Interaction of International and National Legal
Systems, in A. Cassese et al. eds., The Rome Statute of the International Criminal
Court: A Commentary, Volume II (Oxford, U.P., 2002), pp. 1915-1929.
75 What is meant by democracy? Cassese summarizes the current situation as follows(A. Cassese, International Law (Oxford U. P., Second ed., 2005), p. 395, n. 19.): Many
non-Western States have opposed the Western model. This opposition leads one tobelieve that only some features of that model are now widely accepted: representative
governance based on regular, free, and fair elections, and accountable to the electorate;
respect for human rights; rule of law. It would seem that instead the notion of amultiparty political system is not yet agreeable to many States and therefore has not
become part of the emerging international notion of democracy.
76 G. H. Fox and B. R. Roth, “Democracy and international law,” in Review ofInternational Studies, Vol. 27 (2001), pp. 327, 330.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

The UN in particular has been instrumental in promoting the spread of
democracy in the world. By providing electoral advice, assistance, and monitoring ofelectoral consultations, it has assisted people in many countries to participate in free
and fair elections. External efforts to support State-building often cannot be
distinguished from democracy promotion due to the interdependence between bothprocesses. However, the United Nation frequently “label” their civilian measures as“State-building77”, although these also include aspects of democracy promotion78.
As it is now clear that international law and international organizations are nolonger indifferent to the internal character of governments exercising effective control
within sovereign States, legal scholars have begun to assess these developments and to
ask whether there can meaningfully be said to be, in Thomas Franck’s pioneering words,
a “democratic entitlement” in international law 79 . Franck defines the democratic
entitlement by referring to the proposition: governments, instituted to secure the“unalienable rights” of their citizens, derive “their just powers from the consent of thegoverned 80 .” This assertion of a ‘democratic entitlement’ in international law isgrounded in the right to political participation as established in Article 21 of the
Universal Declaration of Human Rights (UDHR), Article 25 of the International
Covenant on Civil and Political Rights (ICCPR), and the counterpart articles of regional
human rights instruments.
What is to be noted in our context is the fact that these phenomena are closely
related to peacebuilding activities including the UN’s.
In fact, although human rights instruments such as the ICCPR had longprovided for a right to political participation, it is only after the end of the Cold War andagainst the backdrop of an overwhelming number of peacebuilding missions, that thestatus and determinacy of the right to political participation have been enhanced by aseries of progressive pronouncements by such organs as the ICCPR Human Rights
77

M. Daoudy, “State-building,” in V. Chetail ed., Post-conflict Peacebuilding: A Lexicon,

supra note 50, at 350-358.

This is considered to derive from two circumstances (Leininger, “Democracy and the
UN Peace-Keeping — Conflict Resolution through State-Building and Democracy
Promotion in Haiti,” supra note 3, at 475.). First, democracy is often perceived as “theWestern model” of government to be imposed upon developing countries, and opposed bytheir political elites and populations. Secondly, in the light of the right ofself-determination, States tend to be reluctant to democracy promotion which mightlead to interference in internal matters of States as the form of government is at thecore of the internal matters of each State.
79 G. H. Fox and B. R. Roth, “Democracy and international law,” supra note 76, at 328.
80 T. M. Franck, “The Emerging Right to Democratic Governance,” in American Journalof International Law, Vol. 86 (1992), No. 1, p. 46.
78

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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Committee, the UN Human Rights Commission (now the Human Rights Council), theEuropean and Inter-American Commissions on Human Rights, the Organization ofAmerican States (OAS), the Organization for Security and Cooperation in Europe(OSCE), and the UN General Assembly 81 . The UN and other intergovernmentalorganizations have, in parallel, invested heavily in the crafting and monitoring ofelectoral processes in many nations across the globe. Indeed as Fox notes82, while thelegitimacy of the right of political participation suffered from its lack of determinacy
during the Cold War period, this indeterminacy no longer exists by drawing clarity fromsuch above-mentioned sources including over forty years of UN election monitoring
reports.
●Implications of the Right of Political Participation
There can be little doubt that this unprecedented international attention to theinternal governing structures of States has significant implications for the current
content and future direction of international law, although there remains substantial
disagreement as to what those implications are83.
Franck contends84 that we are witnessing a sea change in international law, asa result of which the legitimacy of each government will one day be measured
definitively by international rules and processes; We are not quite there yet, but theoutlines are emerging of such a new world, in which the citizens of each State will look
to international law and organization to guarantee them fair access to political power
and participation in societal decisions.
Certainly, the right to political participation, at least as interpreted throughthe lens of the democratic entitlement, is unlike other human rights, because its
individual

enjoymentisinseparable

from

its

collective

effect.

From

theliberal-democratic perspective, to have the individual right to political participation is
to have the collective right to oust a political leadership that fails to garner the support
Human Rights Committee, General Comment 25, UN Doc. CPR/C/21/Rev.1/Add.7(1996) (elaborating the nature of the right to political participation in ICCPR, Article25); Promotion of the Right to Democracy, Commission on Human Rights Resolution
1999/57 (27 April 1999). See, for other examples, G. H. Fox and B. R. Roth, “Democracy
and international law,” supra note 76, at 328-329. See also G. H. Fox, “The right topolitical participation in international law,” in G. H. Fox and B. R. Roth eds.,
Democratic Governance and International Law (Cambridge U. P., 2000), pp. 48, 53-69,
70-89.
82 G. H. Fox, “The right to political participation in international law,” in G. H. Fox and
B. R. Roth eds., Democratic Governance and International Law, supra note 81, at 89-90.
83 G. H. Fox and B. R. Roth, “Democracy and international law,” supra note 76, at 329.
84 T. M. Franck, “Legitimacy and the democratic entitlement,” in G. H. Fox and B. R.
Roth eds., Democratic Governance and International Law, supra note 81, at 25, 29.
8134

Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi Universityof at least a plurality of one’s fellows85. Article 21 of the UDHR speaks not merely of theindividual right to take part in government, but also of the principle that ‘[t]he will of
the people shall be the basis of the authority of government’86.
However, such an emergent right to democratic governance, if established, is so
thoroughly at odds with traditional conceptions of State sovereignty as to bring about amajor transformation of the ground rules of the international system.
Some scholars have expressed doubts about it. The case against the democratic
entitlement rests in part on a more conservative juridical assessment of the
instruments, practices, and pronouncements associated with democratization, withmore emphasis accorded to the foundational presumption against derogations of thepolitical independence of sovereign States87. Although the international community has,through UN electoral assistance projects and General Assembly pronouncements,
manifested support for liberal democratic electoral processes around the world, theassistance has been rendered only in cases where host States have requested it or whereextraordinary measures such as those by the Security Council under Chapter VII havealready been taken on independent grounds.
As Franck concedes that we are not quite there yet, the current situation would
be more or less in the process of gradual transformation of relevant basic norms ofinternational law.
●From Democracy Promotion to Legitimacy and Accountability
Since the end of the Cold War, democracy and human rights have come to takeon the aspect of global values. While there has been a sharp increase in the operational
activities of electoral assistance by the UN for States that have experienced civil wars,
it seems natural that this trend of valuing democracy has also been applied to universal
international organizations centering on the United Nations system which play
important roles in global governance, and that this has resulted in discussion on the
democracy deficit and legitimacy deficit.
A typical example is UNMIK and UNTAET. Just as they are planning toestablish democratic structures, both UNMIK and UNTAET are expected to havemechanisms and procedures ensuring their accountability and legitimacy. Here, onemust distinguish between accountability vis-à-vis the institution having mandated therespective takeover of administrative functions (for example the Security Council) and
G. H. Fox and B. R. Roth, “Democracy and international law,” supra note 76, at 335.
A. Rosas, “Article 21,” in A. Eide et al., eds., The Universal Declaration of Human
Rights: A Commentary (Scandinavian U. P., 1992), pp. 299.
87 G. H. Fox and B. R. Roth, “Democracy and international law,” supra note 76, at 344.
85
86

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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

the accountability towards the respective populations88. Both have a different basis,
whereas the former derives from the mandate, the latter derives from the right ofself-determination of the population concerned. For that reason accountability towards
the Security Council or any other institution having mandated the establishment ofthat international administration (internal accountability), cannot supplement
democratic accountability. It is pointed out that accountability is the area whereinternational administration is deficient in the sense that internal accountability isineffective and democratic accountability is missing totally89.
(3) Ultimately to the “Structure of the International Legal Order”
Any analysis of the current structure of the international legal order must
more or less take into consideration the rapidly growing reality of globalization as aprocess of societal integration of the world, which is transforming international society
qua society. Judge Owada aptly pointed out 90 that the new reality of societal
integration of the world known as “globalization” must be distinguished from thetraditional process of growing interstate interdependence called “internationalization.”Internationalization is a widening process of contacts and interaction between Statesagainst the background of growing degree of interdependence of States in internationalsociety qua society of State activities. Globalization, by contrast, is a deepening processof activities of human individuals against the background of transformation of worldsociety qua society of human individuals, who move freely beyond the national borders
and operate on a global scale, thus defying the existing system of governance based on a
network of respective national regulatory frameworks. In this situation, these activities
of individuals would have some new significant impacts on whatever problems closely
related to the structure of the international legal order.
Development of individual criminal responsibility and obligation to cooperatewith international criminal courts and tribunals, as noted in the previous section, arerather intrusive into domestic legal order and directly influence domestic judicial
R. Wolfrum, “International Administration in Post-Conflict Situations by the United
Nations and Other International Actors,” supra note 13, at 685.
89 In both cases of Kosovo and East Timor, the office of ombudsperson was establishedalthough their functions were not enough in the sense that their findings were mere
recommendations and their jurisdictions were restricted. See C. Stahn, The Law and88

Practice of International Territorial Administration: Versailles to Iraq and Beyond(Cambridge U. P., 2008), pp. 621-625.
90 H. Owada, “Some Reflections on the Problem of International Public Order,” inKokusaiho Gaiko Zassi (The Journal of International Law and Diplomacy), Vol. 102, No.
3 (2003), pp. 1, 17.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

organs. Interpenetration between international law and domestic laws would be
deepened under the general impacts of globalization, and could promote other possible
changes, leading to the fundamental transformation of the structure of theinternational legal order.
As is well known, the principle of sovereign independence and the principle ofnon-intervention in the internal or external affairs of a State are the twin pillars of the
traditional international system based on the Westphalian legal order, essentially aninter-State system in accordance with the principle of voluntarism based on the consent
of States.
With regard to the principle of sovereign independence, much has been
discussed in relation to the concept of “Responsibility to Protect,” as stimulated by thereport of the International Commission on Intervention and State Sovereignty in 2001.
While this concept still remains ambiguous in its application to concrete cases91, theprinciple of sovereignty has clearly been transformed from State-oriented tohuman-oriented principle. 2005 World Summit Outcome stated as follows92:
Each individual State has the responsibility to protect its populations fromgenocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement,
through appropriate and necessary means. We accept that responsibility and will
act in accordance with it. The international community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.
●Principle of Non-intervention in the Domestic Jurisdiction of Other States
With regard to the principle of non-intervention in the internal or externalaffairs of a State, the UN activities of promoting democracy as discussed in the previous
section will have a strong impact on its transformation against the background of
globalization as a process of societal integration of the world.
This principle, more generally called as principle (or duty) of non-intervention
in the domestic jurisdiction of other States, is a fundamental principle of generalinternational law, and consists of two elements: non-intervention and the domestic
jurisdiction of States. The domestic jurisdiction of States is generally considered as thedomain of State activities where the jurisdiction of the State is not bound by
H. Owada, “The United Nations and the Maintenance of International Peace andSecurity — The Current Debate in the Light of Reform Proposals —,” in The JapaneseAnnual of International Law, No. 48 (2005), pp. 1, 10.
92 “2005 World Summit Outcome,” supra note 9, p. 30, para. 138.
91

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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

international law. Thus, the extent of this domain depends on international law, andvaries according to its development. It is essentially a relative concept. Since thecooperation and interdependence among States increasingly developed in the latter halfof the 20th century, this “reserved domain” kept shrinking.
We should also note, however, that the core area of “reserved domain” hasspecifically been protected by the international community. For example, theDeclaration on Principles of International Law concerning Friendly Relations andCo-operation among States in Accordance with the Charter of the United Nations, in its
section of the duty not to intervene in matters within the domestic jurisdiction of any
State, refers to “the personality of the State [and] its political, economic and culturalelements,” and specifically provides that “[e]very State has an inalienable right tochoose its political, economic, social and cultural systems, without interference in any
form by another State.”
However, this core area of “reserved domain” is exactly the area directly
touched upon by the UN activities of promoting democracy. Furthermore, this trend of
democracy promotion has been strongly supported by a series of organs based upon
human rights treaties particularly since the end of the Cold War as noted above.
Of course we must note that both of the UN activities of promoting democracy
and human rights organs progressively evolving their own treaties presuppose theacceptance and consent of the relevant States, and, to that extent, do not constituteprohibited interventions. Theoretically, these might not bring about any legal problem.
Practically, however, the concept of “reserved domain” might be finally losing its lastremained core. The following comment by Franck93 is well taken:
It thus appears that there is increasing support (even, or perhaps especially, among
former totalitarian States) for the proposition that the democratic entitlement,
abetted by links with other basic human rights and the accompanying international
monitoring of compliance, has trumped the principle of non-interference. Whatvalidly remains of past inhibitions against interference in national sovereignty is aconcern that such intervention be, and be seen to be, bona fide aid to democratic
self-governance. Thus, actions to reinforce or reinstate democratic rule taken on
behalf of the international system and in accordance with its legitimate collective
decision-making procedures are likely to be generally welcomed, whereas unilateralacts by a State, unauthorized by its global (or regional) peers, will be treated withdeserved suspicion and alarm.
93

T. M. Franck, “Legitimacy and the democratic entitlement,” supra note 84, at 46.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University●Other State Practice94
The infiltration of concerns for democratic legitimacy could be noticed invarious areas of international law such as:• Recognition of New States or Governments: The factual conditions many Statesrequire for recognition have changed from effective control over a humancommunity and the territory where such community lives. Following the break-up
of the Soviet Union and the former Yugoslavia, the European Community and its
Member States adopted a Declaration on the “Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union95.” In this Declaration, they,among other things, required for the formal recognition of new States in Eastern
Europe, respect for the Charter, the Helsinki Final Act, and the Charter of Paris,“especially with regard to the rule of law, democracy and human rights.
• Membership of International Organizations: The NATO, the Council of Europe,
the EU, the OAS and MERCOSUR now condition full membership on themaintenance of political democracy.
2

Impacts on the UN Security Council
The Security Council may not successfully restore peace and security if theexigencies of justice during and after the termination of armed conflict are not met. The
objective of peace restoration can only be attained by enforcement actions under
Chapter VII if the war terminating measures do not contradict basic requirements ofjustice96. Demands of justice after war would demand that the Security Council, when
taking enforcement actions under Chapter VII, should also respect basic requirementsof humanitarian law and human rights law, thus bridging the gap regarding theapplicable law for transitional international administration.
Applicable law to international organizations in general and applicability ofhuman rights law to Security Council activities in particular have increasingly been atissue97. This could be seen against the background of the increasing importance ofG. H. Fox and B. R. Roth, “Democracy and international law,” supra note 76, at
331-333; J. Wouters et al., “Democracy and International Law,” in Netherlands
Yearbook of International Law, Vol. 34 (2003), pp. 137, 156-177.
95 European Journal of International Law, Vol. 4 (1993), No. 1, p. 72. See also A.
Cassese, International Law, supra note 75, at 75.
96 W. Weiß, “Security Council Powers and the Exigencies of Justice after War,” in Max
Planck Yearbook of United Nations Law, Vol. 12 (2008), pp. 45, 94.
97 T. Sato, “Legitimacy of International Organizations and their Decisions – Challenges
that International Organizations Face in the 21st Century,” in Hitotsubashi Journal of
Law and Politics, Vol. 37 (2009), pp. 11-30.
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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

legitimacy for international organizations.
●Legitimacy of International Organizations at Issue
The fact that the activities and decisions of international organizations have
had more direct influence on private persons and companies seems to be noteworthy as
a distinct reason why legitimacy has become a controversial issue, although this trend
can be considered as an aspect of the overall increase in the influence of internationalorganizations. For example, we may recall that it was not the ruling class but the people
in Iraq who suffered from a lack of food and medicine as a result of the economic
sanctions imposed on Iraq by the UN Security Council in 1990's; sanctions which werecriticized by many as a violation of human rights by the UN. These and other cases
indicate that the influence of decisions of the Security Council on domestic society has
increasingly become substantial.
Thus, the main focus of the substantial decision-making powers on policies isshifting from the domestic to the international level, while the decisions of internationalorganizations are also having more influence on private persons and companies whichhave traditionally been regulated by domestic law. Moreover, while member States are
represented by their governments (executive bodies) in international organizations,domestic legislative bodies generally lack enough influence on domestic executive bodies
in these matters, and, as a result, executive bodies are in a position to exert more
influence over the decisions of international organizations. Thus, from the viewpoint of
the people, being subject to the unilateral impact of decisions made at an international
level over which they are allowed no significant input, it is pertinent to question not
only the legitimacy of the decisions made by international organizations, but even thelegitimacy of the organizations themselves.
●Applicability of Human Rights Law to Security Council Activities
If a private individual suffered damage as a result of Security Council activities,
especially if there was a violation of human rights, it is desirable that a legal
responsibility be assumed and that some kind of relief be given to the victim. To apply asystem of legal responsibility, however, it is necessary that international organizations
be bound by related international law, especially by the norms of human rights, and thispoint has not necessarily been made clear.
For example, as to the question whether international humanitarian law
applies to UN military activities, the UN took a negative attitude by saying, among
other things, that the 1949 Geneva Conventions, which comprise the core regulations ofinternational humanitarian law, are formulated as treaties among States to which the
UN cannot be a party and that the UN does not have a system of criminal punishment
40Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

for violations committed by its forces. The International Committee of the Red Crossdisagreed with the UN on these and other points. In 1999, the UN Secretary-Generalissued a Bulletin entitled ‘Observance by United Nations forces of international
humanitarian law’, in which he set out fundamental principles and rules ofinternational humanitarian law applicable to United Nations forces conducting
operations under United Nations command and control.
With regard to the economic sanctions imposed on Iraq by the UN Security
Council in 1990's, the Committee on Economic, Social and Cultural Rights stated in its
General Comment No. 8 (1997), a report which can be regarded as an interpretationalguideline by the Committee of the International Covenant on Economic, Social andCultural Rights, that insufficient attention was being paid to the impact of sanctions onsome of the core content of the economic, social and cultural rights of the people in Iraq,
particularly the poor vulnerable groups, in the sense that they lacked basic
humanitarian supplies such as drinking water, food and pharmaceuticals as a result of
the economic sanctions by the Security Council.
The issue of applicability of human rights law has been involved in recent casesin different forms, such as the Behrami and Saramati cases (2007) of the European
Court of Human Rights in relation to KFOR and UNMIK, the Kadi and Al Barakaatcases (2008) of the European Court of Justice regarding the Security Council targeted
sanctions.
Thus, there is an increase in the perception that international organizations
are subjects of international law, and in principle regulated by customary internationallaw, which is the general international law that binds all subjects of international law,and that human rights norms will be applied to the activities of internationalorganizations to the extent that they have become customary international law98. On
the other hand, when it comes to specific relief for victims, which is one of the ultimate
objectives of the system of legal responsibility, there are almost no mechanisms orprocedures at present.
●Applicability of Human Rights Law in Peacebuilding and Territorial Administration
With regard to the applicable law in the sense of being applicable not to the
Security Council but to the people under the UN administration, Report of the Panel on
United Nations Peace Operations (so-called Brahimi Report) in 2000 already pointed
out the issue of “applicable law.” While both UNMIK and UNTAET had law enforcement

See, e.g., Philip Alston, Non-State Actors and Human Rights (Oxford, Oxford U.P.,
2005); Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford,
Oxford U.P., 2006).
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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

responsibility, local judicial and legal capacity was found to be non-existent, out ofpractice or subject to intimidation by armed elements. Moreover, in both places, the law
and legal systems prevailing prior to the conflict were questioned or rejected by keygroups considered to be the victims of the conflicts. In fact, these cases show that it isoften difficult to simply rely on existing domestic law which is frequently inappropriate
because it is discriminatory.
The Panel suggested creating a common United Nations justice package thatwould allow a mission’s justice team to apply an interim legal code while the final
answer to the “applicable law” question was being worked out. This would be a code that
contains the basics of both law and procedure to enable an operation to apply due
process using international jurists and internationally agreed standards in the case ofsuch crimes as murder, rape, arson, kidnapping and aggravated assault. Thus, one
might say that the core problem is the lack of a coherent international legal framework
for the organization of justice in post-conflict societies99. It is only noted here that aconcept of jus post bellum, as distinct from jus ad bellum and jus in bello, has
increasingly been discussed as a framework to deal with the challenges ofState-building and transformation when the international community engages in a
post-conflict society100.
●A Possible Transformation of Opinio Juris on Applicability of Human Rights Law?
With regard to UNMIK and KFOR, a generic question is whether UNMIK and
KFOR, in exercising their functions, have to respect international human rights
standards101. Several arguments could be put forward. Human Rights Committee, in
the General Comment No. 26 (1997), noted that human rights obligations under theCovenant are attached to the people rather than the State and remain in force in a
specific territory despite a change in government of the State party, as the case of
Kosovo in relation to the former Yugoslavia. Another argument is that international
human rights instruments apply to the extra-territorial acts of organs of its States
parties, and the national contingents, while integrated in KFOR, remain under theauthority of the sending States and thus are bound by the obligations theirgovernments are committed to, although this reasoning might not be consonant with
C. Stahn, “Justice under Transitional Administration: Contours and Critique of a
Paradigm,” in Houston Journal of International Law, Vol. 27 (2005), pp. 311, 318.
100 C. Stahn, “‘Jus ad bellum’, ‘jus in bello’ … ‘jus post bellum’? —Rethinking theConception of the Law of Armed Force—,” in European Journal of International Law, Vol.
17 (2006), No. 5, pp. 921-943.
101 Wolfrum, “International Administration in Post-Conflict Situations by the United
Nations and Other International Actors,” supra note 13, at 649, 689.
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Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

the position that the European Court of Human Rights took in the Behrami andSaramati cases.
Based upon these and other arguments, Wolfrum contended 102 that, since
UNMIK and KFOR act as public authorities in place of the State government, theexercise of their functions faces the same human rights restraints as the latter. What isnoteworthy in our context is the following statement Wolfrum made in a somewhat
broad perspective:
If the United Nations performs the functions of a state it should act within thesame legal framework as democratic states committed to human rights and the ruleof law.”
This is not an isolated view. Cassese, from a broader perspective, pointed out asfollows103:
The UN, by strongly and unflinchingly promoting human rights, has introduced a
new ethos in the international community. It has gradually brought about a sort ofCopernican revolution: while previously, the whole international system hinged on
State sovereignty, at present individuals make up the linchpin of that community.
To be sure, States still play a crucial role in international dealings. However, now
they are no longer looked upon as perfect and self-centred entities. They are now
viewed as structures primarily geared to the furtherance of interests and concernsof individuals.
As international organizations and international law frequently function in thesame manner as domestic governing bodies and domestic law in terms of their influenceon private persons and companies, international organizations and their decisions are
increasingly demanded to satisfy the same requirements for legitimacy, such astransparency and accountability, that the latter are subject to. This logic would apply tohuman rights law, and promote the applicability of human rights law to Security
Council activities. Thus, we might be witnessing a Copernican revolution ofinternational law as indicated by the changing basis of legally binding human rights
law: moving from “based upon traditional sources of international law” to simply“applicable to any exercise of governmental powers and functions by whatever entity
influencing private persons.”

Ibid., at 690, 696. Similarly, Stahn states (C. Stahn, The Law and Practice ofInternational Territorial Administration, supra note 89, at 510-511.) that it is102

increasingly acknowledged that international entities are subject to basic forms ofaccountability and responsibility vis-à-vis domestic stakeholders the more they exercise
direct control over local politics in the era of globalization.
103 A. Cassese, International Law, supra note 75, at 333.
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Autumn Bi-Annual Meeting of the Japanese Society of International Law
Kwansei Gakuin University: October 8, 2011
Transitional Justice and International Law
Tetsuo SATO: Professor, Hitotsubashi University

Ⅴ

Conclusions

Many of the peace missions deployed by the UN since the end of the Cold War,are multi-dimensional, and include a variety of peacebuilding mandates. These
peacebuilding mandates are quite important in the sense that the achievement of asustainable peace requires progress in at least some of their core areas. In this processof peacebuilding, transitional justice is increasing its importance with international andhybrid criminal tribunals, although due attention must be paid to political and practicalconstraints.
The growth of transitional justice and its articulation as such occurred in the
1980s and 1990s, and now exhibits an increasingly complex set of different mechanisms
functioning simultaneously. The coexistence of multiple mechanisms results in various
problems to be solved in order for these organs to function effectively, including, interalia, delicate relationships among them.
The UN, after many trials and errors, seems to have finally set a coherent
policy to post-conflict national reconciliation as indicated by the Secretary-General’sReport, which basically adopts a host-country-centered perspective symbolized by theimportance of local ownership, although confirming its position to advance the rule oflaw and not to apply amnesty to core crimes. The reality of transitional justice as
indicated by State and UN practice is variegated in the sense that peacebuilding andtransitional justice are fundamentally political process. However, steadfastly pushed by
the operation of international and hybrid criminal tribunals, it seems that we arewitnessing a historic process, away from a tolerance for impunity and amnesty, andtowards the creation of an international rule of law.
Under these circumstances, the international legal order is being affected on
various levels including individual norms and the structure itself. A trend from
impunity to accountability is accompanied by the development of individual criminal
responsibility as well as the interpenetration between international law and domestic
laws. The activities of intensive commitment in domestic governance of a State by the
UN and other international actors in peacebuilding and transitional justice processes
have brought about, against the background of globalization, a situation where thelegitimacy of a government is increasingly being discussed in terms of internationalrules and processes. We might be witnessing a Copernican revolution of theinternational legal order as exemplified by the deteriorating concept of domestic
jurisdiction and the prevailing concept of human rights as such.
【Thank you for your patience.】
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