The mid 1980’s saw a period of replacements – by democratic governments – of dictatorial regimes that had been responsible for committing gross human rights and international humanitarian law (IHL) violations. These transitions generated a growing interest in post-conflict justice. By the mid-1990s, a broad international consensus had developed regarding the need to link justice and reconciliation with the end of conflict and support for democratic transitions.

Post-conflict justice is about building a responsive and democratic society in the wake of atrocity and should be based on strong commitment to fundamental human rights and long-term objectives. While it requires an open engagement with the demands of victims of the atrocities, with respect for their rights to remedies and reparations and a commitment to truth, justice, and reconciliation, at the same time it also demands a sensitive and flexible engagement with local conditions such as the practical and political limitations that characterize transitional contexts.In this balancing act, multiple actors including the United Nations bodies, governments, regional bodies, and non-governmental organizations are involved. However, their divergent post-conflict justice strategies, and policies have often been reactive, improvised during or after a specific conflict.  Lack of coordination and shortage of funding resulted in poorly integrated post-conflict justice strategies that inadequately addressed the specific demands of local culture and context. The International Human Rights Law Institute (IHRLI) and the Chicago Council on Foreign Relations, in consultation with over 180 experts, formulated the Chicago Principles on Post-Conflict Justice in order to encourage improved coordination, and a more coherent and comprehensive approach to devising strategies for addressing past atrocities.

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Chicago Principles

The non-binding Chicago Principles contain guidelines for designing and implementing policies to address past atrocities, taking into account that effectuating accountability in the aftermath of conflict is dependent on various aspects, ranging from political will to sensitivity to cultural and social contexts. They focus on seven key areas of post-conflict justice: prosecutions of alleged perpetrators of gross violations of human rights and humanitarian law; truth-telling and truth finding; remedies and reparations; vetting; memorialization and education; traditional, indigenous and religious approaches to past violations; and institutional reform. Each principle is followed by a review of concrete recommendations regarding the design and implementation of specific strategies, policies and programs but lacks legal underpinning through referral to specific provisions of applicable international law.
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Principles 2 and 3 are highlighted below, for they touch on the Nuhanovic Foundation’s core interest – access to justice and the right to reparations, of which a truthful accounting is part.

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Principle 2 on the right to the truth and investigations

Principle 2 declares that ‘[s]tates shall respect the right to truth and encourages formal investigations into past violations by truth commissions or other bodies’. The commentary on Principle 2 states that victims, their relatives, and society in general have the right to know the truth about violations of human rights and humanitarian law, and that adequate and impartial investigations should establish exactly what happened and who was responsible. A Truth commission can function as an official forum where victims’ stories can be heard and acknowledged, and can facilitate social and national reconciliation. Additionally, truth commissions should be enabled to make recommendations in the field of reparations, respect for human rights and the rule of law and policies that promote social and economic change.

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Principle 2 on the victim’s special status, access to justice and right to remedies and reparations

While defining victims as every person who has directly or indirectly suffered (physical, mental, emotional, economic or legal) harm from violations of human rights and IHL, Principle 3 sets out that they should be treated respectfully and compassionately, with due sensitivity to their needs, safety and privacy. The principle furthermore outlines that victims have the right to effective access to justice, truth and reparations, the implementation of which is to be facilitated by states.

Reparations

The Principles stipulates that reparations may take the form of, but are not limited to, restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, commemorations, tributes and apologies. Also, states remain responsible for reparations even where the government that committed past violations no longer exists and should enforce domestic judgments for reparations against responsible parties and enforce valid foreign judgments.

Of particular interest for our purposes is Commentary point 3.3 (p.46) which reads as follows:

“Non-state actors who are responsible for human rights and/or IHL violations are held to provide reparations to victims. Where these actors are unable or unwilling to meet their obligations, states should assume this responsibility, especially where a state was either partially complicit or failed to take adequate action.”

This is an idea that, justifiably, is increasingly attracting the attention of lawyers and scholars in the field of IHL. In contemporary wars, non-state actors play an enormous role. To date, international law regulates the conduct of states and their organs only, being almost entirely silent as to the responsibilities of non-state  actors in armed conflicts.

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[1] In the aftermath of conflict and elimination of authoritarian regimes, nations often face collapsed infrastructure, continued insecurity, the presence of armed groups, a traumatized population, a devastated economy, large scale poverty, and a transitional government with limited resources.