RECOMMENDATIONS FOR THE EUROPEAN UNION S POLICY ON TRANSITIONAL JUSTICE Submitted By Freedom House March 7, 2014

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1 DELIVERING JUSTICE IN PRE/NON-TRANSITIONAL SOCIETIES: RECOMMENDATIONS The following recommendations are based on the conclusions from the first in a series of Freedom House-led Global Practitioners Dialogues on transitional justice (TJ), published in a report entitled Delivering Justice Before and After Transitions We encourage the European Union (EU) to design a policy framework for TJ that addresses the needs of: (a) pre-transitional societies, (b) EU accession countries, (c) countries in transition and (d) the EU s own member states. 2. As part of a comprehensive TJ policy, we urge the EU to promote goals of TJ accountability, truth, reparations and institutional reform in societies where transitions are forthcoming. In some contexts, a pre-transition stage culminates quickly with mass social protests resulting in a transition within weeks, whereas other mass human rights abuses are protracted. An EU policy should recognize and support local civil society organizations (CSOs) efforts to deal with mass human rights violations which seek truth, accountability, reform, and reparations during a pre-transition phase, so that these efforts contribute to bringing about a transition resolving the human rights situation or otherwise prepare for effective formal post-transition processes. Given that the goals of TJ including truth, justice and victims rights, can be achieved in countries before political transitions occur or where they have stalled, we call on the EU to develop a TJ framework to strengthen local measures such as: (a) documentation, investigation and reporting on mass human rights violations; (b) pursuing domestic legal strategies, including habeas petitions on behalf of those disappeared or detained, or initiating legal cases against police, military or others responsible for atrocities or individual harms; (c) pursuing legal cases in foreign countries or international tribunals; d) trial monitoring to raise awareness and provide protection for victims; and (d) support civil society-led investigative commissions or tribunals in third countries (Iran). These measures create a record of the violations, suspected perpetrators, and the judges who protect them contrary to law; they preserve evidence and testimony and give voice to victims. They tell an alternative narrative or truth that the state may not present. At a minimum, these and other measures constitute a preparatory phase of the larger TJ process. Yet they may well build the momentum for a change that brings an end to impunity and one respectful of human rights. 3. In developing a TJ policy framework for a particular country, the EU should seek local input to build domestic support for the TJ process. National consultations and dialogue particularly with vulnerable people of all sides are precursors to successful TJ efforts. 1 The event, which was co-hosted with No Peace Without Justice, gathered some 20 TJ experts, human rights lawyers, members of truth commissions, commissions of inquiry, and national human rights commissions, non-governmental activists, United Nations, African Union and USAID representatives, judges, etc. from Afghanistan, Bahrain, Burma, Cote d Ivoire, Iran, Kenya, Kyrgyzstan, Libya, Mexico, Uganda, South Africa, Sudan and South Sudan, Syria, the United States, the former Yugoslavia, and Zimbabwe in Istanbul, Turkey in June 2013 to jointly identify TJ strategies that could be used in pre- or non-transitional societies to advance some form of accountability, truth-seeking, and repair including: (1) legal strategies, (2) human rights documentation, (3) truth-seeking mechanisms, and (4) reparations for victims. 1

2 4. Additionally, we encourage the EU to develop TJ policies to address societies where transitions have long passed but where accountability and truth for gross violations of human rights has not occurred (Spain). EU accession provides an important opportunity to encourage more complete or holistic transitional justice processes that might accelerate or assure truth or repair, such as nudging Serbia in implementing its commitment to support the Regional Commission for Establishing Facts About All Victims of Wars on the Territory of the Former Yugoslavia (RECOM). 5. Given that CSOs in closed societies do not have sufficient awareness about the multiple EU and United Nations (UN) structures and venues as well as relevant TJ norms and standards, we urge the EU to conduct outreach and raise awareness of local TJ advocates about the multiple subsets with various programs and strategies within these bodies. The EU TJ policy should enable its partners in closed societies to more easily work with the Special Procedures within the Human Rights Council, who can raise public awareness through general allegations, urgent actions, joint statements among Special Rapporteurs (SRs), country visits, etc., and the UN SR on the promotion of truth, justice, reparation, and guarantees of non-recurrence. 6. Given that national governments often lack political will to work toward TJ, we urge the EU to affirm the importance of bodies like commissions of inquiry and/or national human rights commissions or institutions to counter the denials or silence by state officials regarding atrocities taking place. Such bodies must be supported by local populations including vulnerable people from all sides of a conflict or political and ethnic backgrounds and women and should have wide mandates and sufficient time frame to carry out their work; they should be inclusive of victims of types of violations (to person, property, socio-economic status) who are an integral part of the truth-finding and reparations process. The missed opportunities and lessons-learned from Bahrain, Uganda, Syria, Kyrgyzstan, Myanmar, and Cote d Ivoire will inform new efforts. 7. Recognizing the important role that regional bodies play in promoting or obstructing TJ goals, the EU should collaborate and coordinate more closely with multi-lateral and regional bodies, such as the UN and the African Union (AU). Given that many TJ mechanisms are coming from peace agreements and accords, and often the guarantors are the UN and the AU, these bodies are strategic venues to push for accountability and TJ, by supporting local civil society to jointly plan and participate, journalists to cover the issues in these forums, and lawyers to pursue cases. Also, regional bodies can be at the forefront in accepting, examining, and preserving evidence of human rights violations to intervene, or seek accountability, remedy, and other action. In addition, these bodies are producing their similar TJ policy frameworks, regional judicial precedent, and resolutions. 8. Considering that reparations can be provided before conflict ends, we call on the EU to support civil society-led efforts to provide repair to victims through creation of new legislation, as was the case in Colombia (2011 Victims Law) and Mexico (2013 Victims Law). When it is not possible to pass a law, existing legislation can potentially be amended and the capacity of institutions mandated to provide services to victims can be built, such as the aid provided by the Kyrgyz State Directorate of Reconciliation and Reconstruction to almost all of the victims of violence following ethnic conflict in Southern Kyrgyzstan in 2010; or the recovery and development assistance programs established in Northern Uganda during protracted conflict. 2

3 LINKING ANTI-CORRUPTION AND TRANSITIONAL JUSTICE: RECOMMENDATIONS The following recommendations are based on the conclusions from the second in a series of Global Practitioners Dialogues on TJ published in the Freedom House report entitled Combating Impunity: Transitional Justice and Anti-Corruption Join Forces We call on the EU to address socioeconomic concerns within the scope of its TJ policy framework. Holding political leaders and their cronies accountable for grand corruption during transitions responds to the new demands made by populations across the MENA region, builds the constituency larger than just victims of violence, establishes a more comprehensive accountability and closes the impunity gap between TJ and anti-corruption efforts which may stall the transition and may impair the country s chances to achieve accountability, truth, repair, reconciliation and non-repetition, which are shared aims of both anti-corruption and TJ fields. 10. We invite the EU to support the establishment of a UN Special Rapporteur on financial crime, corruption and human rights to look at actual country situations and encourage the EU member states to ratify the UNCAC convention and call on the EU to encourage joint civil society-led and governmental TJ and anti-corruption activities post 2015 Millennium Development Goals. 11. Recognizing that the issue of stolen assets arises in developed countries, we urge the EU to encourage its members to raise awareness about the importance of Western countries being facilitators in the process of corruption. We call on the EU to strengthen mechanisms to monitor the flow of stolen/misappropriated assets by perpetrators of human rights violations and facilitate the recovery of these assets. The EU TJ framework could help connect asset recovery and large-scale corruption with accountability for mass human rights abuses and assist the World Bank and the United Nations Office for Drugs and Crime s Stolen Asset Recovery Initiative which explicitly connects asset recovery efforts with accountability for large-scale corruption and the level of a victim country s development 3 in closing the loop. 12. The EU should link anti-corruption policies, as in European Parliament Resolution (2013/2074(INI)) to this TJ policy. Specifically, we encourage the EU to make offshore and discretionary trusts, tax evasion/avoidance, and banking secrecy part of the conversation about accountability for mass 2 In recent years, there have been efforts within the field of TJ to include within its scope socio-economic rights abuses, while the anticorruption movement has begun focusing not only on preventing future abuses but also on sanctioning those who are responsible for the already committed crimes. Building on achievements to date in identifying synergies between the anti-corruption and TJ strategies, Freedom House and Transparency International, convened a two-day Dialogue in Berlin, Germany, last October that gathered approximately 20 human rights lawyers and activists, investigative journalists, anti-corruption and financial experts, a barrister, economists, members of Truth Commissions (TCs), academics, a member of Rwandan Parliament and representative of the GOPAC, donors, and a representative of the ICC s TFV. Practitioners from Algeria, Azerbaijan, Chile, Egypt, Germany, Indonesia, Jordan, Kenya, Macedonia, Mexico, Serbia, Rwanda, Timor-Leste, Tunisia, the United Kingdom and the United States. 3 Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes? in the International Journal of Transitional Justice (IJTJ), Vol. 2 (2008): p

4 crimes. Considering that asset recovery requires mutual assistance, we call on the EU to demand from its own members and other developed countries where tax havens are located such as Switzerland, the US, Hong Kong, Singapore, Macau, and the UK (including a network of British jurisdictions in overseas territories like the Cayman Islands) to increase international cooperation on asset recovery, especially by making use of the UNCAC which took effect in 2005 and which explicitly made asset recovery a fundamental principle Considering that TJ processes in specific contexts may not have the capacity to directly address large-scale corruption and economic crime, we urge the EU to strengthen the collaboration and coordination between TJ mechanisms and traditional anti-corruption agencies and institutions. We stress the importance of drafting the mandates of anti-corruption bodies in collaboration with those responsible for TJ and human rights, ensuring that prosecution for corruption is linked to a more comprehensive accountability, institutional reform, and reparation programs in both anti-corruption and TJ fields. There remains a need for swift identification and freezing of funds. 14. Given that large-scale corruption and economic crimes have been taken up in Chad, Sierra Leone, and to some degree in Liberia, Peru, Kenya and Timor-Leste TJ processes, we encourage the EU to consider lessons-learned from these cases as it develops its TJ policy framework. 15. We urge the EU to strengthen truth commissions (TCs) capacity to directly address large-scale corruption and economic crimes. These bodies can be designed to effectively respond to the new demands to address socio-economic rights violations. The EU TJ policy framework should recognize that every TC already has a mandate to look at background causes of conflict, so they can investigate corruption and economic crimes, which could be included in the pre-operational period of a TC when the strategy is being developed. Once the commissioners are appointed, staff with financial forensic skills should be hired or trained. We urge the EU to bolster the capacity of these institutions to conduct background research and collect documentation from national and international NGOs, foreign governments and other sources that can be consulted to include corruption cases and economic crimes. 16. As part of its comprehensive TJ strategy, we call on the EU to support large-scale corruption and economic crimes prosecutions in cases where mass atrocities are committed. Some acts such as appropriation of property, pillage including resource extraction and massive embezzlement of state funds, etc. are judiciable as war crimes or crimes against humanity. Also, laws against corruption can be used to remove the corrupt leaders from public office, when they might otherwise have immunity or are protected by amnesty laws. In these cases, the EU should aim to develop mechanisms to prevent corrupt leaders and their cronies and families from accessing their illegally amassed wealth. In cases of Peru s Alberto Fujimori and Liberia s Charles Taylor, trials proved insufficient to block perpetrators from their ill-gotten assets, which were used to stifle investigation, delay trials, fight extradition and even block unfavorable laws as was the case with Liberian 4 See 4

5 legislation that would have frozen some of Taylor s assets. 5 Finally, other forms of large-scale corruption can be pursued under civil law, where the goal is not punitive but reparative. 17. We stress the importance of conducting research into the gendered dimensions of corruption focused on whether the promotion of women in public life can be an effective anti-corruption strategy and examine the impact of corruption on women as a group, building on the growing evidence that corruption has a disproportionate impact on vulnerable groups in society. We urge the EU to consider measurements of corruption with an expanded analysis including sexual exploitation, which can link to gender justice and accountability measures that the International Criminal Court and other courts are able to investigate and try. 18. We encourage the EU to support efforts to use stolen assets to fund reparations as additional but not primary or in any way conditional funds to provide individual/group compensation, build monuments, cover health-care costs, etc. For Further Information, please contact: Lisa Davis, Senior Advisor for Rights and Justice Initiatives Freedom House 1301 Connecticut Avenue, Suite 400 Washington, DC U.S.A Carranza, p

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