The evolution of transitional justice and expectations of its transformative impact have forged an understanding among scholars and practitioners that the field should not be separated from processes of constitution-building in relevant societies. While transitional justice remedies have long been seen to encompass institutions and measures deputed to address gross violations of human rights, and electoral processes and constitution drafting or revision to represent mechanisms for the establishment of a new political system, the inherent connections between the two have begun to receive more attention. What are the factors that progressively highlight how constitutions remain the most important response to a fractured social contract in contexts of massive violations of human rights? What has contributed to the emerging understanding that any process of redress and reform should form the basis for negotiation and agreement of the fundamental charter of the new State?
A comparison of case studies of the experiences of older, established democracies, like Spain and Italy, where transitional justice considerations were not included in the process of transformation to democracy, with more recent transitional societies, like Tunisia and Nepal, where transitional justice was supposed to be a critical element of the process of change but has ultimately failed to inform the development of new Constitutions. What are the factors that explain the different experiences of these societies? What do these differences tell us about the ways in which efforts meant to address the past should be integrated with those meant to build future constitutional frameworks?
(University of Milano-Bicocca, Italy)
The increased prevalence of political transitions following internal conflict has seen heightened attention given to both transitional justice and constitution-building as fields of study and intervention. However, little attention has been paid to understanding how the interaction between the two fields can better serve their respective and mutual objectives. Better understanding of synergies between transitional justice and constitution-building can encourage decision-makers and experts in the field to consider options for maximizing the comparative advantages of transitional justice and constitution-building respectively, to pursue the overall goal of sustainable peace and development. There is great transformative potential in combining transitional justice and constitution-building, but also challenges inherent in conflating the two processes as some experiences show (among them, Colombia, Guatemala, Nepal, Rwanda, South Africa, and Tunisia).
(IDEA, Myanmar )
Traditionally, transitional justice (TJ) has been applied when a country shifts from an authoritarian regime to a democracy or from a state of civil war to one of peace. However, in the case of Mexico, TJ is being attempted in a context with no clear transition, where serious human rights violations still afflict the country, many of them gender-based violations against women. Within this context, a public policy of TJ nevertheless seeks to clarify the factors that caused the violence, identify those responsible, reduce impunity, repair the victims for the damage suffered, rebuild the social fabric, and help to prevent the repetition of abuse. Although important advances have been made in constitutional and regulatory terms, a greater inclusion of a gender perspective in this policy will be fundamental in recognizing the diversity and intersectionality of women’s experiences of violence, their specific needs and efforts to seek truth, justice, reparation, construction of lasting peace.
Both transitional justice and constitution-building require a simultaneous retrospective and prospective approach: looking forward with a vision of a sustainable political peace, while acknowledging and seeking to address past causes of conflict and repression. Given this observation, we can see the emergence at the global level of a “right to truth,” mainly (but not exclusively) in cases of gross violations of fundamental rights. As part of this trend, to what extent have the Inter-American Court of Human Rights and, more recently, the European Court of Human Rights acknowledged a right to the truth? To what extent have these courts defined its scope as a fundamental right? From a constitutional perspective, does a positive obligation lie with the State to guarantee such a right to truth? How can constitution-building further or hinder the realization of this right?
(Unversity of Insubria, Italy)