Transitional justice

Legal assistance paper

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Date produced: 01/05/2013

How could models and approaches developed for transitional justice (e.g. the South African Truth and Reconciliation Commission but not necessarily institutionalised) be used to inform the UNFCCC process so that historical responsibility and injustice can be acknowledged and ways found to orient the discussion on the 2015 agreement towards achieving an ambitious and equitable outcome that delivers justice?

Developing states, such as India and China, are reluctant to depart from their hard-lined stance on the Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). They want to ensure that the historic responsibility of the developed world is addressed and require firm commitments from the developed world concerning financing and mitigation. The developed world is reluctant to acknowledge their historical responsibility. They further argue that it is vital that particularly advanced developing states accept mitigation commitments and contribute to the global combat against climate change. At the core of this deadlock seems to be a lack of trust amongst parties, which is clearly needed for the conclusion of an inclusive post-2020 agreement. Hence, the question arises whether Transitional justice (TJ) mechanisms may create an atmosphere towards a conducive to an equitable and ambitious outcome.

Transitional justice (TJ) may be defined as “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 ensure accountability, serve justice and achieve reconciliation”. The relationship between TJ and human rights constitutes an important conceptual link for the query. Current discourse on human rights and climate change indicates that climate change has severe effects on the observation of a range of human rights. It would, however, be difficult to proof large scale human rights violations in the instance of climate change. The fact that generally speaking states do not have extraterritorial human rights obligations, may bar vulnerable people in developing states to claim on the basis of human rights violations from developed states for having contributed to climate change through the emission of greenhouse gas emissions.

A holistic and comprehensive approach is required in order to achieve a transition to stability and human rights protection. Various complementary mechanisms, both judicial and non-judicial, exist in order to promote TJ. TJ mechanisms must be designed to meet the needs of a specific case. These mechanisms include prosecutions, truth commissions, reparation, institutional reform and vetting and dismissals. It is important to take note of the fact that TJ mechanisms face several critical challenges and difficulty exists in the assessment of its impact. This implies that TJ mechanisms may not always produce required results.

Hence, it is important to consider which TJ mechanisms may be appropriate in the climate change setting. The choice for a relevant TJ mechanism should be guided by the specific nature and context of the deadlock in relation to climate change negotiations. Cognisance should be taken of the complexity of the issue. TJ mechanisms are suitable for complex settings, which affect not only individuals but societies at large. TJ mechanisms in relation to climate change should therefore focus on vulnerable societies. The issue in relation to climate change is complex since several actors (states, companies etc.) may be viewed as “perpetrators” and an array of other entities (states, indigenous people, individuals) may constitute victims. Hence, it is important to determine whether the TJ mechanisms will be directed against states or other entities. For instance, developing states could represent societies, which are encumbered by the consequences of climate change against developed states.

It is evident that prosecutions and vetting is not relevant for this current discussion and therefore this opinion will focus on truth commissions and reparations. It is the main task of a truth commission to conduct investigations about human rights violations in order to generate a report about its findings (which may include recommendations). One of the most well-known commissions was the Truth and Reconciliation Commission of South Africa (TRC). The TRC embodied three distinct committees, which were the Human Rights Violations Committee, Reparations Committee and the Committee on Amnesty. It was one of the primary aims of the TRC to achieve reconciliation through truth seeking.

The question arises whether an international climate change truth commission (ICCTC) may be suitable in relation to climate change negotiations. The establishment of a permanent international truth commission for criminal cases through a treaty has been suggested. It is therefore not unthinkable that a commission may be established via a treaty or resolution to facilitate a process of reconciliation. The establishing treaty or resolution will need to include detailed terms of reference for the commission. Issues, such as the period relevant for historic responsibility, need to be decided. It is not necessary for the commission to undertake expensive and comprehensive investigations concerning the historic emissions of greenhouse gases. The Preamble of the UNFCCC already notes “that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries”.

The UN may facilitate the establishment and functioning of the commission. It may be possible for the current UN climate change institutional structure to facilitate the process. However, it may be necessary to separate the deliberations of the commission from the cumbersome climate change negotiations in order to escape the existing limitations towards consensus. NGOs may also be accorded a particular role in the functioning and establishment of the commission. NGOs are very active in the field of climate change. NGOs may bolster the process of transitional justice through their participation. They may identify issues of relevance and serve as agenda setters, act as conscience keepers and mobilise pressure in order to respond where necessary. They can also provide advice concerning matters of relevance. Several international NGOs, such as the International Centre for Transitional Justice and the African Transitional Justice Research Network , may cooperate with international (environmental) NGOs in transnational networks in this regard.

The commission should not constitute a witch hunt against the developed states. This very controversial aspect may actually be a major obstacle to the creation of a truth commission. It may be therefore important to make it clear that developed states do not accept legal responsibility and/or liability through their participation. Developed states may merely accept and confirm their contribution to historical emissions. The issue of state responsibility and liability is a different issue, which may be resolved (but preferably not) via legal adjudication . It is my opinion that some form of reparations is also called for. Reparations can be compensatory, restitutionary, satisfactory and rehabilitative. The provision of compensation may be difficult in the instances where financial resources are scarce. It is therefore possible to make provision for symbolic reparations. The issue of reparations may be linked to the current discourse on loss and damage . This means that TJ may be an avenue to address this difficult issue. It may be possible to offer developed states some form of “amnesty” for historical responsibility. This may, however, prove to be as controversial and difficult as in the case of truth commissions and the legal validity of this may also be questioned. This may be attractive for developed states but may also be rejected by vulnerable states. Developed states may also utter an apology as a form of symbolic reparation.

This author opines that the creation of a truth commission may not necessarily yield the desired results. The establishment of such a structure may be time consuming and this may even derail climate change negotiations. It is of course not necessary to institutionalise TJ mechanisms. TJ approaches may be used in order to inform current negotiations. In this regard, the issue of reparations may seem to be relevant in relation to loss and damage. In theory, the reparations may be compensatory, rehabilitative (conducive to adaptation) and satisfactory (through an apology). Accordingly this approach warrants further investigation.