Eu’s transitional justice policy, programs and instruments

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Размещено на http://www.allbest.ru/

Eu's transitional justice policy, programs and instruments

Nataliia Koshel, student, Department of International Law and Comparative Jurisprudence Faculty of International Relations National Aviation University*

Summary

Nataliia Koshel. Eu's transitional justice policy, programs and instruments

The article examines the EU's policy framework, programs and tools on support to transitional justice, and evaluates their impact and challenges. Transitional justice refers to the various ways of addressing the past human rights violations and serious crimes that occurred in contexts of political transition, such as post-conflict or post-authoritarian situations. The EU has adopted a comprehensive policy framework on support to transitional justice in 2015, which defines its principles, objectives, and modalities of engagement with partner countries and international and regional organisations on transitional justice issues. The EU has also used various instruments and actions to support transitional justice initiatives worldwide, such as providing financial assistance, engaging in political dialogue, offering technical expertise, and advocating for transitional justice norms and standards. The article also illustrates how the EU has supported transitional justice processes in different contexts and regions, such as dealing with the legacy of World War II, the fall of communism in Central and Eastern Europe, the war in the former Yugoslavia, and the Arab Spring. The article concludes by identifying some of the achievements and shortcomings of the EU's involvement in transitional justice processes, such as contributing to accountability, recognition, trust, reconciliation, and non-recurrence; but also facing inconsistency, selectivity, conditionality, interference, cooptation, politicisation, fragmentation, duplication, etc. The article also suggests some ways to improve the EU's policy framework, programs and tools on support to transitional justice, such as enhancing consistency, coherence, coordination, complementarity, and adaptability. The article also explores how the EU's role and approaches in the field of transitional justice can affect its own identity and credibility as a global actor that promotes human rights, democracy, and the rule of law as core values of its external action.

The article aims to explore and explain the policy, programs and tools of the EU in the field of transitional justice, as well as to critically analyse their effectiveness and implications. Transitional justice is a term that encompasses a range of processes and mechanisms that aim to address the legacy of past human rights violations and serious crimes, in order to ensure accountability, serve justice, and achieve reconciliation. Transitional justice is often pursued in contexts of political transition, such as post-conflict or post-authoritarian situations, where the rule of law and democratic institutions may be weak or absent.

The problem of transitional justice is both important and complex, as it involves various legal, political, social, and cultural challenges and dilemmas. How can societies deal with the past in a way that promotes human rights, democracy, and the rule of law? How can victims be recognised and redressed for their suffering? How can trust and reconciliation be fostered among individuals and groups? How can future violence and violations be prevented? These are some of the questions that transitional justice seeks to answer.

The EU has been an active and influential actor in the field of transitional justice, both within and outside its borders. The EU has developed a comprehensive policy framework on support to transitional justice, which outlines its principles, objectives, and modalities of engagement with partner countries and international and regional organisations. The EU has also implemented various programs and tools to support transitional justice initiatives worldwide, such as financial assistance, political dialogue, technical expertise, and advocacy. The EU's involvement in transitional justice reflects its commitment to promote human rights, democracy, and the rule of law as core values of its external action.

However, the EU's policy framework on support to transitional justice is not without gaps and challenges. There is a need for more empirical research and evaluation on the impact and effectiveness of the EU's programs and tools on transitional justice. There is also a need for more consistency, coherence, coordination, complementarity, and adaptability in the EU's approach to transitional justice. Moreover, there is a need for more dialogue and cooperation with other actors and stakeholders on transitional justice issues, such as civil society organisations, victims' groups, international organisations, regional organisations, etc.

The objectives of the article are:

- To provide an overview of the EU's policy framework on support to transitional justice;

- To explore and explain the various ways through which the EU has exerted influence on transitional justice processes;

Core issues. Transitional justice refers to a comprehensive set of actions, both within and outside the realm of the judiciary, aimed at addressing the historical consequences of human rights violations, emerges as a crucial axis upon which societies navigate towards reconciliation, justice, and peace. Within this frame, the European Union has adopted and executed various policies, programs, and tools with the aim of fostering an environment where accountability and reparation for past injustices can be achieved [Parmentier, 2015, pp. 52-72]. Investigating these mechanisms reveals not only the multifaceted approach adopted by the EU but also unveils the dynamism and complexity inherent within transitional justice processes.

The European Union has played a significant and influential role in the realm of transitional justice, both within its member states and beyond its borders. It has formulated an extensive policy framework outlining its guiding principles, objectives, and methods of collaboration with partner nations as well as international and regional organizations in support of transitional justice. Furthermore, the EU has executed a variety of programs and tools to bolster transitional justice initiatives on a global scale, including financial support, diplomatic discussions, technical expertise, and advocacy efforts. The EU's active participation in transitional justice underscores its dedication to advancing human rights, democracy, and the rule of law as fundamental tenets of its external endeavors [European External Action Service, 2015, pp. 8-12].

The EU has embodied a steadfast commitment to transitional justice by formulating and implementing several pivotal policies, programs, and tools that encompass multifarious aspects of justice, reconciliation, and peacebuilding. The EU navigates through the complexities of transitional justice by combining judicial, socio-political, and economic approaches, aiming to weave them into the unique fabrics of societies transitioning from conflict or authoritarianism to democratic governance.

EU can operationalise its support to transitional justice through various instruments and actions.

The EU is one of the largest donors to transitional justice initiatives worldwide, providing funding through various instruments such as the European Instrument for Democracy and Human Rights (EIDHR), the Instrument contributing to Stability and Peace (IcSP), the Development Cooperation Instrument (DCI), the European Neighbourhood Instrument (ENI), and the Instrument for Pre-accession Assistance (IPA) [Wouters & Ovadek, 2021, p. 557]. The EU supports a wide range of actors and activities related to transitional justice, such as international tribunals and courts; national judicial systems; truth commissions; reparations programs; institutional reform; civil society organisations; victims' groups; human rights defenders; media; education; memorialisation.

The EU engages in political dialogue with partner countries on transitional justice issues at various levels and fora, such as bilateral meetings; human rights dialogues; sub-committees on human rights; joint committees; association councils. The EU uses these opportunities to raise awareness; express concerns; share experiences; offer advice; encourage cooperation; monitor progress.

The EU provides technical expertise to partner countries on transitional justice issues through various means, such as deploying experts; organising workshops; facilitating exchanges; providing training; conducting studies; developing guidelines. The EU draws on its own expertise as well as that of external actors such as international organisations; regional organisations; specialised agencies; academic institutions; think tanks.

The EU advocates for transitional justice issues in various platforms and contexts, such as the UN Human Rights Council; the UN General Assembly; the UN Security Council; the International Criminal Court; regional organisations; multilateral forums. The EU uses these platforms to promote its policy framework; support resolutions; make statements; co-sponsor initiatives.

EU Policy Framework on Support to Transitional Justice. This policy framework underscores the EU's dedication to aiding countries embroiled in a transitional justice process by concentrating on four main pillars: right to justice, right to reparations, guarantee of non-recurrence, and right to truth. The framework commits to offering political, financial, and technical support, specifically emphasizing the role of women and addressing sexual and gender-based violence within transitional justice processes. It advocates for a holistic and comprehensive approach, propelling mechanisms that integrate transitional justice into wider governance, development, and peacebuilding strategies.

The policy framework is based on the definition and elements of transitional justice provided by the UN Secretary-General's report on the rule of law and transitional justice in conflict and post-conflict societies (2004), which include criminal justice, truth-seeking, reparations, and guarantees of non-recurrence/institutional reform. The policy framework sets out how the EU can engage in situations where past violations and abuses have occurred, through supporting a context-specific combination of these measures.

The policy framework also emphasises the need for a locally and nationally owned approach to transitional justice, with the rights and participation of victims at its heart. The policy framework recognises that transitional justice is not a one-size-fits-all solution, but rather a flexible and adaptable process that should take into account the specific historical, political, social, and cultural circumstances of each country. The policy framework also stresses the importance of ensuring gender sensitivity, inclusiveness, coherence, coordination, complementarity, and sustainability in transitional justice processes.

The policy framework identifies four main objectives for the EU's support to transitional justice:

- To fight impunity for serious crimes by supporting accountability mechanisms that respect international standards of due process and fair trial;

- To provide recognition and redress to victims by supporting measures that acknowledge their suffering, restore their dignity, and provide them with adequate compensation;

- To foster trust among individuals and groups by supporting measures that facilitate dialogue, reconciliation, healing, and social cohesion;

- To contribute to reconciliation and non-recurrence by supporting measures that strengthen the rule of law, democratic institutions, human rights protection, and security sector reform [Council of the European Union, 2015, pp. ^2-6].

Instrument contributing to Stability and Peace (IcSP). The IcSP, operational from 2014 to 2020, was aimed at implementing the EU's external security policy. It was pivotal in providing swift crisis response, mitigating risks and threats, and nurturing the capacities of the security sector in partner countries. Specifically, in the context of transitional justice, the IcSP facilitated the EU's support for short- and mid-term initiatives aimed at restoring stability and security by reinforcing the rule of law, supporting justice reforms, and facilitating reconciliation processes in post-conflict scenarios [EUNPACK, 2016, pp. 20-21].

The European Instrument for Democracy and Human Rights (EIDHR). The EIDHR propels the EU's commitment towards promoting democracy and human rights in non-EU countries. Transitional justice emerges as a key thematic priority within the EIDHR, providing support to civil society organizations and facilitating projects which bolster democracy, ensure accountability, and support victims of human rights violations. By focusing on the promotion of a democratic and human rights-friendly environment, the EIDHR provides an essential link between transitional justice processes and the establishment of resilient democratic institutions [Dobreva, 2015, pp. 2-3].

The European Development Fund (EDF). While not exclusively tailored for transitional justice, the EDF has played a vital role in ensuring that transitional justice processes are rooted in socio-economic realities. By supporting economic, social, and institutional reforms, the EDF contributes to creating environments wherein transitional justice mechanisms can be more effectively implemented and sustained [D'Alfonso, 2014, pp. 8-19].

Special Representatives and EU Delegations. The EU Delegations and Special Representatives in various regions play a crucial role in diplomatically steering the EU's transitional justice initiatives. They often act as the nexus between the EU's policies and the on-the-ground realities, ensuring that the EU's support for transitional justice is both informed and responsive to the specific needs and contexts of the concerned countries.

Each of these policies, instruments, and delegations imbues the EU's transitional justice approach with a distinct character, enabling it to intervene in varied contexts with bespoke strategies. By intertwining its policies and instruments with the socio-political and economic realities of post-conflict societies, the EU endeavors to craft transitional justice processes that are both contextually relevant and consistent with international standards of human rights and accountability. Consequently, the EU not only shapes but also learns from the diverse nature of transitional justice processes across different global contexts.

Transitional justice demands more than a universal approach due to the unique socio-political landscapes embedded within each conflict-ridden or post-conflict state. The EU has illustrated an ability to navigate these nuanced scenarios, integrating policy with practicality through varied programs and strategic alignments.

The EU's policy, programs and tools on transitional justice have been applied in various contexts and regions, reflecting the diversity and complexity of transitional justice processes. Some of the illustrative examples are:

The legacy of World War II: The EU's origins can be traced back to the aftermath of World War II, which left a legacy of massive human rights violations and atrocities in Europe. The EU was founded on the principles of peace, reconciliation, and integration among former enemies, and has supported various measures to address the past, such as the establishment of the European Court of Human Rights (ECHR) [Brems, 2011, pp. 282-303]; the adoption of the European Convention on Human Rights; the recognition and compensation of victims of persecution; the prosecution of war criminals; the preservation and education of the Holocaust memory. The EU has also supported transitional justice efforts in other regions affected by World War II, such as Asia and Africa, through financial assistance, political dialogue, technical expertise, and advocacy.

The fall of communism in Central and Eastern Europe: The EU has supported the transition from communism to democracy in Central and Eastern Europe since the late 1980s and early 1990s, which involved various transitional justice challenges, such as dealing with the legacy of repression, violence, corruption, and human rights violations under the former regimes. The EU has supported various measures to address these challenges, such as the accession process; the Copenhagen criteria; the Stabilisation and Association Process (SAP); the enlargement strategy; the European Neighbourhood Policy (ENP). The EU has also supported specific transitional justice initiatives, such as lustration policies; restitution and compensation programs; truth commissions; opening of archives; memorialisation projects.

The war in the former Yugoslavia: The EU has been involved in the peacebuilding and reconciliation process in the former Yugoslavia since the early 1990s, which entailed addressing the legacy of ethnic cleansing, genocide, war crimes, crimes against humanity, and human rights violations committed during the conflict. The EU has supported various measures to address this legacy, such as the Dayton Peace Agreement; the Stability Pact for South Eastern Europe; the International Criminal Tribunal for the former Yugoslavia (ICTY); the Regional Cooperation Council (RCC). The EU has also supported specific transitional justice initiatives, such as reparations programs; missing persons projects; victims' associations; civil society networks; reconciliation dialogues.

The Arab Spring: The EU has supported the democratic transition and reform process in the Arab region since 2011, which involved addressing the legacy of authoritarianism, repression, corruption, and human rights violations under the former regimes. The EU has supported various measures to support this process, such as the Partnership for Democracy and Shared Prosperity with the Southern Mediterranean; the European Neighbourhood Policy (ENP); the Union for the Mediterranean (UfM). The EU has also supported specific transitional justice initiatives, such as truth commissions; constitutional reforms; security sector reforms; civil society empowerment; human rights monitoring [European Commission, 2011, pp. 3-5].

The EU's involvement in transitional justice processes has had both positive and negative effects and implications. Some of the achievements and shortcomings are:

Achievements: The EU has contributed to advancing transitional justice norms and standards at both global and regional levels, through its policy framework, financial assistance, political dialogue, technical expertise, and advocacy. The EU has also contributed to supporting transitional justice processes in various contexts and regions, through its instruments and actions. The EU has helped to ensure accountability for serious crimes; provide recognition and redress to victims; foster trust among individuals and groups; contribute to reconciliation and non-recurrence; strengthen the rule of law and democratic institutions; promote human rights protection and security sector reform.

Shortcomings: The EU's involvement in transitional justice processes has also faced some challenges and limitations, such as inconsistency, selectivity, conditionality, interference, co-optation, politicisation, fragmentation, duplication. The EU's policy framework on support to transitional justice is not always applied consistently or coherently across different contexts and regions. For instance, the EU has been criticised for applying double standards and imposing its own agenda on transitional justice issues, such as in the cases of Kosovo. The EU has also been accused of neglecting or undermining some aspects or dimensions of transitional justice, such as reparations, guarantees of non-recurrence, and gender justice.

The EU's programs and tools on support to transitional justice are not always tailored or adapted to the specific needs and realities of each situation. For example, the EU has faced difficulties in coordinating and harmonising its various instruments and actions on transitional justice, such as between its political and financial support, or between its bilateral and multilateral engagement. The EU has also encountered challenges in ensuring the local and national ownership and participation of transitional justice processes, such as by respecting the diversity and complexity of each context, or by involving the relevant stakeholders and beneficiaries.

The EU's financial assistance on support to transitional justice is not always sufficient or sustainable. For instance, the EU has been confronted with budgetary constraints and competing priorities that limit its funding capacity and flexibility on transitional justice issues. The EU has also struggled to ensure the long-term impact and viability of its financial support to transitional justice initiatives, such as by providing adequate monitoring and evaluation mechanisms, or by fostering synergies and complementarities with other donors and actors.

The EU's political dialogue on support to transitional justice is not always constructive or effective. For example, the EU has encountered resistance and opposition from some partner countries that reject or resist its involvement or influence on transitional justice issues, such as due to sovereignty concerns, political sensitivities, or diverging interests. The EU has also faced dilemmas and trade-offs between its principles and interests on transitional justice issues, such as between promoting human rights and democracy, or maintaining stability and security.

The EU's technical expertise on support to transitional justice is not always relevant or appropriate. For instance, the EU has lacked sufficient knowledge and capacity on some aspects or dimensions of transitional justice, such as cultural, historical, or religious factors that affect transitional justice processes. The EU has also failed to adapt its technical assistance to the changing dynamics and needs of transitional justice processes, such as by providing timely and flexible responses, or by incorporating lessons learned and best practices.

The EU's advocacy on support to transitional justice is not always persuasive or influential. For example, the EU has had limited leverage and impact on some partner countries that do not share its values or interests on transitional justice issues, such as due to geopolitical constraints, power asymmetries, or competing agendas. The EU has also lacked coherence and consistency in its advocacy on transitional justice issues, such as between its internal and external policies, or between its words and deeds.

Conclusion

Therefore, the EU's policy framework on support to transitional justice is a comprehensive and ambitious goal that reflects the EU's commitment and potential to play a positive and significant role in the field of transitional justice. However, the policy framework also faces some challenges and limitations that hinder its implementation and effectiveness. The EU needs to address these challenges and limitations by improving its consistency, coherence, coordination, complementarity, and adaptability in its policy, programs and tools on support to transitional justice. The EU must additionally improve its dialogue and collaboration with partner nations, international and regional bodies, civil society organizations, and victims' associations regarding matters related to transitional justice. The EU should also aim for equilibrium between its principles and interests, as well as its domestic and foreign policies, in relation to transitional justice concerns. By doing so, the EU can make a more effective and constructive contribution to the advancement of norms and standards in transitional justice, as well as to the support of transitional justice processes in various contexts and geographical areas. The EU's role and strategies in the arena of transitional justice can also influence its own identity and credibility as a global actor that upholds human rights, democracy, and the rule of law as fundamental principles in its external endeavors.

Navigating through the manifold dimensions of the EU's involvement in transitional justice processes, the dual narratives of successes and shortcomings emerge prominently. The EU's financial and technical assistances, in many instances, have indeed been pivotal in fortifying transitional justice mechanisms in post-conflict societies. However, criticisms often pivot around the potential over-emphasis on institutional and judicial responses, sometimes arguably at the expense of socio-political and cultural initiatives. The challenge often resides in navigating the nuanced balance between enforcing international standards of justice and accommodating the cultural, historical, and social peculiarities of the respective societies. This raises critical questions about the adaptability, inclusivity, and sensitivity of the EU's interventions to the diverse contexts within which transitional justice processes unfold.

The complex diversity of the EU's engagements in transitional justice elucidates a narrative that is both commendable and critiquable. While its policies, programs, and tools have undeniably carved spaces for accountability and reconciliation in post-conflict contexts, the nuanced intricacies of each societal setting demand an ever-evolving and reflexive approach. Looking ahead, the EU, enriched by its varied experiences and critical analyses thereof, is positioned to recalibrate its strategies, potentially engendering more contextually attuned, culturally sensitive, and holistically effective transitional justice initiatives.

Sources

transitional justice political

1 Parmentier, S. (2015). Transitional justice. In The Cambridge Companion to International Criminal Law (pp. 52-72). Cambridge University Press. https://doi.org/10.1017/cbo9781107280540.004

2 European External Action Service. (2015). The EU's Policy Framework on support to transitional justice. (EU documents)