Law in Quebec

Duhaime, appointed last April by the United Nations as Special Rapporteur on the promotion of truth, justice, reparation, memorialization and guarantees of non-repetition, will be dealing with highly complex legal issues and politically fraught matters while trying to encourage the implementation of the international legal standards underpinning the five pillars of transitional justice in societies trying to move forward.

Transitional justice, a concept that emerged in the late 1980s and early 1990s following political changes in Eastern Europe and Latin America, is not a special form of justice. Rather it entails a series of holistic approaches involving tailored judicial and non-judicial measures to address past human rights abuses in a way that helps bare the truth about what happened, promotes accountability for past violations usually through criminal prosecutions or truth commissions, ensures redress and reparations for victims, fosters efforts to preserve historical memory, and seeks to prevent the repetition of gross human rights abuses and violations by tackling the root of the abuses.

“The rapporteur’s role is to assiduously monitor the way governments adopt these measures to prevent this kind of thing from happening again,” says Duhaime, Ad.E., a former Fulbright Scholar, a Trudeau Foundation Fellow, and member of McGill University’s Center for Human Rights and Legal Pluralism. “This can take time, and so it’s important for the international community, through the Special Rapporteurs, to follow up.”

He will have his work cut out for him. The world is rife with tension. Nearly 100 countries are now engaged in a conflict beyond their borders, the most since 2008, reveals the 2024 Global Peace Index report. That will likely complicate negotiations for lasting peace and prolong conflicts, adds the think-tank Institute for Economics & Peace. The surge of hard-right populists, who have a profound skepticism of multilateral organizations such as the U.N. and a brazen penchant for historical revisionism, will make Duhaime’s work even more challenging. A growing number of states are denying or minimizing the role they played in committing state violence. Argentina, for one, is denying that more than 30,000 citizens disappeared between 1976 and 1983, pegging the figure to some 7,000 while politicians from Bosnia refute that massacres of Muslims took place at Srebrenica. Other states are trying to justify past human rights abuses by maintaining that it was driven by national security reasons. And yet others are backtracking and calling into question transitional justice measures that were adopted as is the case in some regions in Spain who are questioning efforts of truth, remembrance and reparation for the victims of the Civil War and Franco’s 36-year authoritarian regime.

“This is completely unacceptable and extremely dangerous,” says Duhaime. “That’s why this type of procedure was designed — to ensure that atrocities are not forgotten, and that all transitional measures are adopted for the benefit of the victims of these atrocities. We can’t, today in 2024, rewrite part of recent history to try and win the sympathy of certain sections of the population.”

Duhaime’s predecessor, Fabián Salvioli, an Argentinian human rights lawyer and professor, painted last year a dismal portrait of the current state of transitional justice. Many transitional justices processes, wrote Salvioli, are “wrecked” by political decisions that have led to the “delegitimization” of truth-seeking actions. He also lamented the lack of impunity, comprehensive reparations for victims, “maintenance of institutional frameworks” that favour violations, exculpation of past violations, and the absence or boycotting of memory initiatives. In another scathing report also issued last year, Salvioli bemoans that few States have heeded recommendations by truth commissions regarding reparations, with only about 15 per cent of transitional societies implementing reparations for victims.

That’s what Geoffrey Dancy, a University of Toronto expert on transitional justice efforts, describes as the paradox of satisfaction. The more that you pursue these accountability mechanisms, the more they are provided and supplied, the more dissatisfied people are that have been victimized and lived through the trauma of war. “They’re able to voice their dissatisfaction more which is a positive thing,” says Dancy, who specializes in the empirical study of human rights. “Before there was no outlet. Now there’s an outlet, and with that outlet comes the full spectrum of responses. We shouldn’t expect there to be a uniformly positive response to these kinds of mechanisms.”

Duhaime does not disagree with Salvioli’s disconcerting assessments, albeit with some nuances. The 51-year old Montrealer acknowledges that in many countries traditional and transitional justice are facing problems that are still “very acute.” In Asian nations such as Indonesia, Nepal or the Philippines progress for transitional justice remains slow while in Africa there are a slew of countries still recovering from conflict or dictatorships. But Duhaime maintains that it is rare for a state to invite a Special Rapporteur only to completely “short-circuit” the process. If they have no intention of participating in the exercise, Duhaime says they simply would not invite the independent expert. States that do take the step to invite a Special Rapporteur to visit the country to investigate, assess, advise and make recommendations often are governments that “genuinely” intend to find solutions to complex social problems and want to be accompanied by the international community and “show that they are doing the right thing,” says Duhaime.

States that meet with Special Rapporteurs also, reminds Duhaime, have an obligation to deal in good faith. Besides customary international law, there are 13 key international legal instruments, plus three that deal with children, two with gender and one over reparations that guide the Special Rapporteur. “When a Special Rapporteur mentions that a State is violating or needs to improve its compliance with an obligatory norm, the State in principle has a good-faith obligation to implement recommendations by the Special Rapporteurs because States are obliged to comply with the rules of international law invoked by the Rapporteurs,” says Duhaime. Denouncing violations, recommending measures that need to be put in place, and keeping up the pressure on the State “inevitably” leads to change, adds Duhaime, the former head of the U.N.’s Working Group on Enforced or Involuntary Disappearances.

He is also convinced that in spite of the hiccups and challenges, transitional justice has made strides over the past two decades. Concerns about victims were on the periphery of transitional justice measures in the 1990s. Today the “preferred approach” puts victims at the heart of the process and their interests at the heart of negotiations. Among the functional transitional justice measures that ensure victims’ right to justice are criminal investigations and trials of perpetrators, and international institutions such as the International Criminal Court are now far more active than they were some decades ago, says Duhaime. “The actors who are at the heart of these transitions, be they warring parties in an armed conflict or authorities of a dictatorial regime, are very much aware that their actions can now be investigated and sanctioned by the international community, among other things by the International Criminal Court or by the exercise of other measures undertaken by national courts in other countries,” says Duhaime.

There are questions over whether Special Rapporteurs ultimately bring about change, says Dancy. They identify important problems but what is done with those problems that are identified remains unanswered, he adds. “They probably have influence but I don’t have evidence to back it up,” says Dancy. But he believes that it is helpful to have international attention focused on states in the midst of transition. “We see that when there are other types of investigations and monitoring bodies that are present, reformers are able to get more things done,” says Dancy.

Duhaime is now in the midst of contemplating which countries he would like to approach to scrutinize. As Special Rapporteur, he is expected to issue thematic reports and annually visit two countries in flux, at their invitation. In the meantime, there is a backlog of invitations made to countries such as Brazil, Cambodia, Democratic Republic of Congo and Ivory Coast that have been issued by previous Special Rapporteurs that are still pertinent and for which Duhaime is waiting for permission to visit.

“I’m lucky enough to have one foot in academia and one foot in action,” says Duhaime. “When you take an interest in human rights and international law, and are active in defending people’s rights, you find yourself sucked into some impressive political and historical contexts.”

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This story was originally published in the CBA National.