Handbook on Peace Agreement Draft Language

Transitional Justice (TJ)

Chapter [11]: Transitional Justice

Introductory Notes

The term "transitional justice" refers to the wide variety of mechanisms that are typically implemented in a post-conflict environment to transition a country from violence to peace. To counteract the lingering effects of conflict and violence, many states establish a full range of transitional justice mechanisms and processes aimed at discovering the truth of the conflict, promoting reconciliation, preventing the recurrence of violence, and holding perpetrators accountable.

In peace processes there is often tension between ensuring that combatants have the right incentive to lay down weapons and engage in a political settlement, and holding them accountable for human rights abuses - the so-called peace versus justice dilemma. In practice, peace agreements frequently find creative ways to deliver both justice and peace by combining judicial and non-judicial mechanisms at different stages of the peace process and balancing the need to move on with avoiding large-scale impunity.

Most often, in peace agreements, parties do not explicitly mention the commitment to a transitional justice process but rather focus on the implementation of specific mechanisms, which are commonly understood as components of transitional justice. This Chapter provides generic language on transitional justice with a focus on transitional justice mechanisms such as amnesty, lustration, vetting and prisoner release or exchange.

Definition

Transitional Justice: A framework for addressing past human rights violations and injustices through legal and social measures to promote accountability, reconciliation, stability and peace in post-conflict societies.

Goals of Transitional Justice

The goal of transitional justice in a peace process is to address past injustices and human rights violations, fostering accountability and healing within society to build a foundation for lasting peace. Transitional justice may serve to:

  • Promote accountability: Transitional justice mechanisms hold perpetrators responsible for human rights violations, helping to end cycles of impunity.
  • Support reconciliation: By acknowledging and addressing grievances, transitional justice contributes to healing divided communities and fostering societal trust.
  • Truth-telling: Truth commissions and similar mechanisms work to uncover the full extent of past abuses, document human rights violations, and ensure an accurate historical record is created and preserved.
  • Provide redress for victims: Reparations, public apologies, and memorialization efforts recognize victims' suffering and provide avenues for justice and acknowledgment.
  • Prevent future abuses: Addressing past abuses helps societies identify and address the root causes of conflict, reducing the likelihood of recurrence.
  • Fulfil international obligations: Transitional justice initiatives align with international commitments to uphold human rights, justice, and peace in post-conflict societies.

Why Include This Chapter

The inclusion of a Transitional Justice Chapter in a peace agreement may serve to:

  • Define transitional justice in the context of the broader peace process and peace agreement;
  • Determine the role and purpose of the transitional justice process in the broader peace process;
  • Express the intention of the parties to commit and contribute to peace and reconciliation through one or more transitional justice measures;
  • Outline the priorities of the parties in the implementation of the transitional justice process;
  • Identify the main mechanisms that will be implemented as part of the transitional justice process;
  • Designate the actors or institutions responsible for implementing each component of the transitional justice process.

Choosing the right combination of mechanisms is important, because they will lay the foundation for the rule of law, signifying a fundamental change from the old order. Often, more than one mechanism is necessary to balance the multiple needs of a post-conflict society.

Core Issues Addressed

Most peace agreements address the following core issues in a Chapter on Transitional Justice Framework:

  • The Transitional Justice Process: This section outlines the primary goals of transitional justice and the underlying principles that would guide the mechanisms established.
  • Definition of the Term "Transitional Justice": Sets out the definition for transitional justice as envisioned in the peace agreement in light of goals and priorities.
  • Timeline for the Transitional Justice Process: Presents the timeline for launching the transitional justice processes and deadline for implementation.
  • Expression of Commitment: This section focuses on the parties' commitment to implementing the transitional justice process and the mechanisms that will be established.
  • Intention of the Parties: Presents the transitional justice objective that would guide the parties should there be disputes about how the transitional justice is to be implemented.
  • Mechanisms: Sets out the mechanisms that the parties will develop as part of the transitional justice process.
  • Civil Society: Proposes ways in which civil society can support the objectives of transitional justice, including recognizing victims and promoting the rule of law.
Draft Language:

Definition of the Term "Transitional Justice"

Note to Drafters: Most often parties do not include a specific definition of transitional justice in a peace agreement, they rather refer to specific transitional justice processes and mechanisms they agree to implement. If they do so, they often refer to what they intend to achieve through transitional justice mechanisms or to the overarching principles governing such a process. However, parties may want to promote a consistent interpretation of transitional justice to avoid misinterpretation and conflict by including a well-formulated definition in the relevant Chapter of the peace agreement.

Option 1: A Range of Mechanisms
In this [Agreement], the Parties understand the term "transitional justice" as referring to the range of mechanisms and processes used to address legacies of human rights violations and bring peace and stability in [state].
Option 2: Key Principles Governing the Process
The Parties shall implement its commitment to transitional justice according to the following guiding principles:

- Prosecuting perpetrators of international crimes is necessary to rebuild the rule of law and end the culture of impunity;

- Justice, accountability, and reconciliation are critical for ensuring durable peace and security;

- Victims of human rights abuses have a right to know the truth about the circumstances surrounding their abuse;

- Participation in transitional justice mechanisms should be based on the principles of inclusion, equality, and transparency;

- Transitional justice mechanisms should reflect the needs and interests of those affected directly and indirectly by all dimensions of the conflict, including victims of human rights abuses from all sides of the conflict, women, ethnic and religious minorities, former combatants, children, refugees, and internally displaced persons;

- Transitional justice mechanisms should complement broader rule of law initiatives and institutional reforms;

- Transitional justice mechanisms should identify the root causes of the conflict.
Option 3: Holistic Approach
The Parties recognize transitional justice as a crucial component of the broader peace process which, with its focus on justice, accountability, and reconciliation, can greatly contribute to the success of the peace process as a whole.
Option 4: Complementary Effort
The Parties agree that transitional justice shall be implemented as a complementary effort, working in tandem with other post-conflict interventions, with the overall goal of restoring the rule of law, fostering societal healing, and rebuilding trust among communities by recognizing and addressing the harm caused during the conflict.
Draft Language:

Timeline for the Transitional Justice Process

Note to Drafters: Parties often establish a timeline for the transitional justice process — or the implementation of the selected transitional justice mechanisms and processes — as part of peace agreements. Setting a timeline helps ensure that the process is structured, organized, and measurable, providing clear expectations for implementation. These timelines can outline when key aspects of transitional justice—such as truth commissions, reparations programs, trials, or institutional reforms—should begin and be completed.

Timeline for the Transitional Justice Process
The Parties agree to initiate the transitional justice process within [timeline] of the signing of this Agreement. A framework for [accountability / reparations] shall be developed and implemented within [timeline], and mechanisms for [reparations, judicial accountability, truth-seeking] shall be initiated no later than [timeline] after the signing of this Agreement. The entire transitional justice process shall be reviewed after [timeline] to assess progress and make necessary adjustments.
Draft Language:

Expression of Commitment to the Implementation of a Successful Transitional Justice Process

Intention of the Parties

Note to Drafters: Transitional justice is a complex undertaking that can easily trigger tension and conflict between and within the parties to a peace process. The inclusion of mechanisms such as the establishment of courts to investigate and prosecute certain atrocities and perpetrators can be a divisive factor. Following the signing of the agreement, these tensions may escalate due to disagreements between the parties about the interpretation of the most divisive components of the peace agreement, including transitional justice.

Option 1: Commitment to Specific Goals
In light of the atrocities and other massive violations of human rights perpetrated in [state / region], and with a view toward putting an end to impunity, fostering national reconciliation, and promoting the goals of transitional justice, the Parties commit to:

- Ensuring that perpetrators are held to account for committing crimes against humanity, war crimes, crimes of genocide, and other serious violations of human rights and fundamental freedoms;

- Establishing truth seeking and reconciliation initiatives, with the aim of generating a climate of tolerance, forgiveness, and accountability;

- Developing a comprehensive system to provide victims of the conflict reparations in the form of compensation, property restitution, rehabilitation programs, memorialization, or other initiatives;

- Vetting the public institutions of [state] to enhance public trust in the state and prevent the recurrence of atrocities.
Option 2: Commitment to A Transitional Justice Plan
The Parties commit to a comprehensive plan for Truth, Justice, Reparation, and Non-Repetition. This plan aims to satisfy the rights of victims and is composed of judicial and non-judicial mechanisms, including truth-seeking, accountability, and measures of comprehensive reparation for victims. Transitional justice seeks to ensure accountability, establish the truth about what happened, and lay the foundations for coexistence and reconciliation.
Option 3: Commitment to Respect People's Expectations
The [population] people believe that there is concurrence among them that political and administrative structures must be rebuilt in [state] to provide the people with an opportunity to participate in shaping the future of the [state]. With respect to this, the Parties agree that the establishment of transitional mechanisms, which prepare the state for a stable and democratic future, is absolutely essential to meet the expectations of the [population] people.
Option 4: Commitment to Adopt and Implement Transitional Justice Laws
Upon inception, the [transitional authority] shall initiate legislation for the establishment of the following transitional justice institutions:

- [The commission for truth, reconciliation and healing];

- [an independent judicial body to be known as [name]].

- [reparations commission].

The adopted legislation shall define the mandate and jurisdiction of each institution as well as their funding, actors and defined processes.

Mechanisms

Note to Drafters: At the time of negotiating or signing the peace agreement, the parties may already have a clear understanding of the activities and mechanisms that will be implemented as part of the transitional justice process. In these instances, parties can include such mechanisms and activities in the peace agreement, highlighting their respective goals and the actors and entities involved. In other cases, parties may have divergent views on mechanisms and activities that shall be implemented, as this often requires the assessment of financial resources and intervention by the international community. Parties may want to adopt more general language to refer to transitional justice mechanisms and activities without specifying details.

Option 1: Comprehensive Plan
During the transitional period, which will last for [time] effective from the date of signature to the agreement, the emphasis will be on the provision of essential services, complete disarmament, restoration of peace and domestic tranquility and on the attainment of reconciliation of the [population] people. Emphasis will also be put on the rehabilitation and reconstruction of basic infrastructure and on the building of democratic institutions. All of this will prepare the state to enter a constitutional phase in which the institutions of democratic governance, rule of law, decentralization of power, protection of human rights and individual liberties, and the safeguarding of the integrity of the [state] are all in place.
Option 2: Truth, Justice, Reparation and Guarantees of Non-Repetition
The cornerstones of the transitional justice process will be Truth, Justice, Reparation, and Guarantees of Non-Repetition. This plan shall address the rights of victims through judicial mechanisms, including tribunals and courts, as well as non-judicial mechanisms such as vetting, truth-seeking, and reconciliation commissions. Additionally, it shall provide for comprehensive reparation measures to support and restore the dignity of victims.
Option 3: Vetting
The Parties commit to adopting legislation on vetting, which will ensure that no individual responsible for committing [gross] human rights violations during the conflict is eligible to hold public office [for [x] years].

The legislation shall ensure that the process includes transparent criteria and respects individuals' right to due process.
Option 4: Lustration
Individuals associated with and credibly accused of serious human rights violations and corruption shall be dismissed.
Option 5: Amnesty Consistent with International Law
The [Transitional Authority] may pass a law or laws providing a framework for granting an amnesty consistent with international law for such political crimes as appropriate.
Option 6: Amnesty With the Exclusion of Serious Crimes
Amnesty shall be granted to all combatants of the political parties and movements for crimes committed as a result of their involvement in the conflict, but not for acts of genocide, crimes against humanity, war crimes, or other gross human rights violations.
Option 7: Prisoners Release
By [time], the Parties shall release and transfer, in accordance with international humanitarian standards, all persons held in connection with the conflict (hereinafter "prisoners"). In addition, the Parties shall cooperate fully with the International Committee of the Red Cross (ICRC) to facilitate its work, in accordance with its mandate, to implement and monitor a plan for the release and transfer of prisoners in accordance with the above deadline.
Option 8: Commission for Prisoners Release
The [transitional authority] shall within [time] of the commencement of the transition establish a Commission under the chairmanship of a judge to investigate and make recommendations on the conditions in jails, the treatment of prisoners, and the training and conditions of service of warders.

In addition, the following matters shall be investigated with urgency: the release of prisoners awaiting trial in respect of whom there has been an undue delay in the prosecution of their cases and the existence of and release of any political prisoners.
Draft Language:

Civil Society

Note to Drafters: Civil society can help transitional justice processes in several ways, including by identifying victims, documenting abuses, fostering dialogue, and advocating for the rule of law.

Civil Society Participation
Civil society shall participate in designing and implementing transitional justice mechanisms, ensuring they are inclusive and victim-centered.

Civil society organizations shall assist in identifying and documenting cases of human rights abuses and supporting victims in accessing justice and reparations.

Civil society shall facilitate public education campaigns on the objectives and processes of transitional justice to build awareness and societal support.

The transitional justice mechanisms shall establish formal channels for civil society input and participation in decision-making processes.

Further Readings

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