Transitional Justice: Justice and Peace in Situations of Transition

June 4, 2009 - nr.65
Summary

Summary and recommendations


1    S
ummary

General
While there has been greater focus on the notion of transitional justice in recent decades, the principle that states with a violent past must come to terms with it if they are to enjoy a stable, peaceful future is by no means new. To quote Sir Winston Churchill, ‘we cannot say “the past is the past” without surrendering the future.’ However, what may be new about present-day approaches to the principle is the conscious effort to find a combination of mechanisms that offers the greatest likelihood – in a specific context – of a successful transition to a situation of justice and lasting peace.

The definition of transitional justice on which this advisory report is based covers the entire range of processes and mechanisms associated with a society’s attempts to deal with the past and live with a legacy of major abuses in order to achieve accountability, justice and reconciliation. This includes both legal and non-legal mechanisms such as individual prosecutions, truth and reconciliation commissions, amnesty, local mechanisms, reparations and institutional reform. The notion of transitional justice implies the co-existence of the various mechanisms and processes, which may sometimes serve different and even seemingly contradictory purposes during the transitional period. An integrated approach is essential here. The point is not to select a particular process or mechanism but to decide how all of them should be shaped and coordinated within the relevant legal framework so that together they serve their purposes as well as possible and so ease the transition to lasting peace.

It may take some time for a period of transitional justice to be considered at an end, and for the demands of justice to be met by the normal rules of the rule of law. At that point the state enters a period of what may be termed post-transitional justice. However, even if the actual transitional period is considered over, transitional justice mechanisms – or their absence – may still have an influence during this ensuing period.

It should be remembered that the notion of transitional justice first emerged in the 1980s and 1990s, when South Africa and states in Latin America and Central and Eastern Europe went through transitional periods. In many of these countries there was peace, a degree of economic and political stability, full state control of the national territory and the political will to face up to the past – conditions that made transitional justice possible in the countries concerned. Today, however, the term is increasingly used with reference to fragile states, many of which have been or continue to be the scene of armed conflict. In states such as these the aforementioned conditions do not exist. It is not easy to get transitional justice processes started there, and a different approach is needed. It should be borne in mind here that international criminal trials can promote transitional justice at national level but cannot entirely replace it.

This report looks in turn at the legal framework for transitional justice, the question of how transitional justice mechanisms work in practice (their effectiveness and legitimacy) and Dutch policy in this area.

Legal framework
The first element in the legal framework within which transitional justice takes shape is human rights. These must be respected at all times: not only in peacetime, but also during armed conflict and in transitional situations following large-scale human rights violations. Another element is that of ‘responsibility to protect’, as adopted by the UN General Assembly in 2005: the responsibility of states – and the international community – to protect the population against genocide, war crimes, ethnic cleansing and crimes against humanity. This applies equally during the prevention, conflict and reconstruction phases.

In the specific case of international criminal law, the legal framework is increasingly binding. The Rome Statute is a clear statement by the international community that persons who have committed serious international crimes must not go unpunished. The preamble states ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.’ Although international law is clearly evolving towards a general obligation to prosecute all persons who have committed international crimes, this stage has not yet been reached.

As regards states’ responsibility to prosecute persons who have committed international crimes, a distinction should be made between the territorial state and third states. The primary obligation to prosecute persons suspected of committing international crimes lies with the state where the crimes were committed.

If the state where the crimes were committed proves unable or unwilling to prosecute suspects, the next option is prosecution by international or hybrid tribunals. If this likewise proves impossible, the question of whether other states have an obligation or the power to prosecute the suspects may arise.

Various specific treaties (such as the Geneva conventions and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) establish an obligation to prosecute or extradite persons suspected of committing the offences specified therein. However, no treaty establishes an obligation to prosecute persons suspected of committing crimes against humanity as such. In such cases other states may, on the other hand, be competent to exercise jurisdiction over persons suspected of international crimes.

In certain circumstances the Netherlands has an obligation under international law to exercise jurisdiction over those responsible for committing international crimes. Under the International Crimes Act, the Netherlands is competent to prosecute or extradite individuals who are on Dutch soil and are suspected of committing international crimes.

The question often arises of whether a state involved in a transitional justice process may grant amnesty to persons suspected of committing international crimes. It is unlawful to grant a ‘blanket’ or ‘sham’ amnesty, especially to those who bear primary responsibility for the said crimes, and such an amnesty need not therefore be respected by third states.

The rights of victims of large-scale offences to remedy and reparation are set out in international instruments. What matters most is that victims can see their rights upheld. In such cases, collective reparation programmes and mass claim proceedings are often more effective and less time-consuming than individual proceedings. In connection with such mass claims it is important that sufficient attention be paid to the position of women and other groups such as children, ethnic or sexual minorities and victims who have become mentally and/or physically disabled.

Transitional justice in practice: effectiveness and legitimacy
A number of reservations should be expressed about how transitional justice works in practice. Transitional justice involves complex, lengthy societal processes whose immediate effect is impossible to measure. Attempts to identify causal links remain subject to caution. Moreover, transitional justice processes may serve a number of different purposes: punishing suspects does not automatically lead to reconciliation, recording the truth does not automatically lead to lasting peace, and so on. Furthermore, it is often the local context that determines which mechanisms and processes will prove the most successful. We should not exaggerate the extent to which transitional justice processes can be controlled. For example, if the power structures from the period when the large-scale human rights violations occurred are still in place during the transitional phase, this will of course adversely affect the operation of transitional justice processes.

Empirical evidence indicates that a number of general factors may contribute to the success of transitional justice processes, which in turn can contribute to justice and lasting peace. The following may be said about these general factors.

  • Transitional justice is an integral part of peacebuilding. Unless action is taken against persons suspected of committing serious war crimes, it will be difficult to start the process of redress and reparation and to create or restore public faith in the rule of law. The relationship between arrest warrants and peace processes is currently highly topical. However, the much-quoted dilemma of ‘peace versus justice’ may be a red herring. Although some have said that arrest warrants are an obstacle to peace processes, this seems an essentially political line of reasoning. The most serious obstacles to peace often lie elsewhere.
  • Women, children, the elderly and disabled, and ethnic or religious minorities are still too often overlooked, not only in peace negotiations but also when designing transitional justice mechanisms. Greater focus on the specific experiences of women and vulnerable groups will make transitional justice processes not only more just but also more effective.
  • Greater focus on the societal processes involved in coping with trauma and breaking the cycle of violence is not only important in order to tackle the consequences of grave and large-scale human rights violations, but can also have a preventive effect in the future.
  • Ideally, transitional justice should restore faith in the rule of law and foster the emergence of a culture of human rights. In this connection it is important that the mechanisms and processes involved do not exist in a vacuum, but are an integral part of reconstruction of the legal system.
  • In a broader sense, the potential impact of such mechanisms and processes greatly depends on the country’s socioeconomic reconstruction. What is crucial here is that economic, social and cultural rights should be an integral part of the mechanisms; reparation can be based on the right to education, health care or housing.
  • Transitional justice mechanisms and processes can only work if there is sufficient political and social consensus, as well as institutional capacity, for their ultimate success. In some cases this may mean that it is inappropriate to prosecute immediately. In order for transitional justice processes to be successful, attention should be paid to the sequencing of the various mechanisms.
  • A crucial condition for the success of the mechanisms is their legitimacy. If they enjoy the broad-based support of the various population groups, there will be a feeling that the past has been put into perspective, and this will help end the culture of impunity and bring lasting peace closer. Legitimacy cannot be taken for granted, but needs to be built up by effective consultative processes, trust and communication.
  • The international community can play a constructive part in transitional justice processes, provided that it acts in a coordinated manner and takes due account of political realities, the demand for transitional justice in the country in question and the underlying causes of conflict (the arms trade, exploitation of economic interests, activities of foreign businesses, etc.).

The main goals of transitional justice – justice, reconciliation, establishing the truth, reparation, peace, and action to prevent recurrence and curb impunity – can only be attained by a combination of mechanisms. In the light of empirical findings, the following can be said about the various mechanisms.

Criminal justice
With all forms of criminal justice, the legitimacy of the trials, and hence their contribution to lasting peace, would appear to depend on the number of parties involved in setting up the institutions, the extent to which they succeed in remaining impartial, their ability to ensure that justice is dispensed in an accessible, timely and affordable way, and whether goals and results are communicated clearly. Prosecution in the territorial state is usually preferable; victims can then see for themselves that justice is being done. This in turn makes reconciliation easier, and is also desirable for the purposes of evidence. An important factor here is national legislation to implement the Rome Statute – an area in which much remains to be done.

Truth and reconciliation commissions
Extensive experience with truth and/or reconciliation commissions shows that broad-based societal involvement in their design, as well as support from all political players, especially the authorities, are key conditions for their success. It is also important that not only politicians but also churches, the judiciary, public officials and other relevant societal players can be held up to scrutiny. Another crucial factor is the commissions’ mandate. Do they have a broad mandate with quasi-legal powers? Are they allowed to look at the underlying causes of conflict? Do they have enough resources? Are their proceedings transparent? Due consideration should be given to the protection of witnesses and victims, and to the membership of the commissions: integrity, experience and independence are essential. Here again, legitimacy is important, but cannot be taken for granted: it is achieved by clear communication and visible results.

Amnesty
Amnesty processes often play a part in peace negotiations. They are the price paid for lasting peace, or at least stability. The question is to what extent such mechanisms can be considered a form of justice and meet victims’ need for retribution. In general, an amnesty may sometimes be deemed necessary at national level in order to guarantee stability, but its contribution to justice and hence lasting peace greatly depends on how it is designed.

Local mechanisms
The main benefits of traditional justice are the ability to hold to account suspects who bore relatively little responsibility, and the potential contribution to reconciliation and social reconstruction at local level. However, it is important to realise here that ‘traditional’ does not imply reliance on existing power structures. In this form of justice it is particularly important that experienced women and members of minority groups should also be involved. This may allow traditional justice to evolve into transformative justice.

Reparation
Those most closely involved feel that there is often too little focus on this form of transitional justice. Victims often consider the return of property and other material and symbolic acknowledgements of their suffering more important than accountability. The kind of reparation they prefer can vary. All this argues in favour of context-based choices, and for inclusion of the specific needs of groups that are often forgotten, such as women, children, the elderly and disabled, and ethnic and religious minorities. Donors are well advised – again given the reasoning behind transitional justice – to contribute to reconstruction and collective development programmes.

Institutional reform
The purpose of institutional reform is to use specially designed legislation, programmes and/or commissions at national or local level to screen the state apparatus, call officials to account and restore local people’s faith in the organs of the state, thereby creating conditions that will prevent recurrence of the injustice suffered. Experience has shown that, although institutional reform is important, it should not be applied with equal rigour in all cases, for example where vetting is concerned.

Main elements of Dutch policy
The Netherlands is involved in transitional justice mechanisms and processes in a number of ways. The notion of transitional justice is very much in line with the main priorities of Dutch foreign and development cooperation policy. The Netherlands has supported local mechanisms, various truth and reconciliation commissions and tribunals at both bilateral and multilateral level. At diplomatic level, the subject of transitional justice has been raised in negotiations with countries including Serbia and Sudan. In addition, The Hague increasingly presents itself as the ‘legal capital of the world’: the seat of the ICJ, the ICC and the ICTR and the venue for the trial of Charles Taylor (before a chamber of the Special Court for Sierra Leone) and the trial of those responsible for the murder of Rafik Hariri. Since international crimes are involved here, issues relating to transitional justice in countries such as Rwanda and Liberia are also of relevance to the Netherlands. Finally, the Netherlands often seeks for the most appropriate ways to deal with its own past, be it in Srebrenica, Suriname or Indonesia.

Dutch activities in the field of transitional justice are not always referred to as such. Better coordination, for example between foreign and development cooperation policy or specific policy themes, could make these efforts more effective.

In the field of development cooperation policy it is important to bear in mind both the legality and the legitimacy of transitional justice. Legitimate mechanisms are ones that are set up in consultation with all those involved and that operate independently and effectively. They should also be in keeping with the specific phase that the country is in. This calls for a context-based approach. Key elements include the involvement of women, the often forgotten role of national courts, and the importance of the rule of law, reparation and institutional reform. It is these that may enhance the legitimacy of the mechanisms and hence their contribution to lasting peace.

Negotiations with persons who are suspected of international crimes and human rights violations are a fact of life, and often the only way to achieve lasting peace. Although active Dutch diplomacy during peace negotiations can in some cases make a positive contribution to lasting peace, it goes without saying that no undertakings can be made to the people concerned that they will not be prosecuted for the crimes they are suspected of committing.

The question of whether those suspected of international crimes should be prosecuted does not only arise in the territorial state or in international tribunals. Dutch or non-Dutch nationals suspected of committing such offences may sometimes be on Dutch soil. The course followed in such cases should be in line with Dutch policy as propagated abroad.

Under international law the Netherlands is obliged, and under the International Crimes Act it is competent, to exercise jurisdiction over persons who are on Dutch soil and are suspected of committing international crimes. In some cases the Netherlands will have an obligation to prosecute and/or extradite the person concerned. The judicial apparatus must be suitably equipped for this task. In cases where the Netherlands has more latitude, considerations of transitional justice may arise, and then it may often be more appropriate to aim for prosecution in and by the relevant state.

Finally, in the field of justice and home affairs policy, it is also important for the Netherlands to deal appropriately with victims’ rights and reparation in cases in which the State of the Netherlands bears some responsibility.


2    Recommendations

The recommendations are grouped under the individual questions in the request for advice. A number of general recommendations are given at the end.

  1. Are there certain general patterns that should be followed in making the choices that will guide the transitional justice process?
  • Rather than ‘general patterns’, the AIV and the CAVV prefer the term ‘legal framework’. International obligations are among the factors that may affect political choices regarding transitional justice. In order to decide which transitional justice processes are most desirable or appropriate, it is essential to have a clear picture of the obligations of the relevant states and the international community with regard to transitional processes.
     
  • Transitional justice mechanisms and processes should be designed in the context of universal human rights, and should take account of the indivisibility of those rights. For example, reparation should offer a remedy for violations of both civil and political rights and social and economic rights.
     
  • The concept of ‘responsibility to protect’, as adopted by the UN General Assembly in 2005, applies, among other things, to the prevention and reconstruction phases. ‘Responsibility to rebuild’ is of particular relevance to transitional justice processes. This may imply a responsibility on the part of the international community to assist and support reparation, reconstruction and reconciliation in cases where states are not sufficiently able or willing to embark on reconstruction in the wake of conflicts, armed or otherwise.
     
  • The international community has made it clear that persons who commit serious international crimes must not go unpunished. Although international law is clearly evolving towards a general obligation to prosecute persons who commit international crimes, this stage has not yet been reached. Constant efforts are needed to achieve this end, and the Netherlands should continue to press for them.
     
  • As regards prosecution proceedings, the guiding principle should be that the state concerned must shoulder as much of the responsibility as it can. During and immediately after a conflict, national courts will have little or no opportunity to ensure fair trials. Such gaps can be bridged by the ICC, but the bulk of the responsibility should eventually shift towards the state concerned.
     
  • If the state in which the offences were committed and which is involved in a transitional justice process has itself been unable to prosecute persons suspected of committing international crimes and if they have not been prosecuted by international or mixed tribunals either, third states may in some cases have an obligation to prosecute (for example, if the Geneva conventions and/or the UN Convention against Torture are applicable); in other cases, third states may not have an obligation to prosecute, but may be competent to do so.
     
  • Under international law, the Netherlands has an obligation in certain circumstances to exercise jurisdiction over persons responsible for international crimes. Under the International Crimes Act, the Netherlands can prosecute or extradite persons who are on Dutch soil and are suspected of committing international crimes. For recommendations on such exercise of jurisdiction and the question of amnesty, we refer to question 5 in the request for advice.
     
  • Parties to human rights instruments have an obligation to investigate violations of human rights at national level and prosecute the perpetrators, and to offer the victims effective redress. The Netherlands must take every opportunity to press for the establishment of national and international mechanisms that will enable victims to assert their right to remedy.
  1. What empirical material is available for assessing what forms of transitional justice contribute to lasting peace and justice and for describing how this occurs? What recommendations could be made on that basis?
  • For a detailed review of what can be said in the light of empirical research into factors that contribute to the success of transitional justice processes, as well as the individual mechanisms, we refer to the summary above (see Transitional justice in practice: effectiveness and legitimacy).
     
  • To sum up, it is important during transitional justice processes to pay attention to social and economic justice, consolidation of the rule of law and the establishment of a culture of human rights. Women can make a particularly crucial contribution here. Attention should also be paid to vulnerable groups, as well as a locally based approach: if the processes are broadly considered legitimate, there will be a feeling that the past has been put into perspective, and this will bring lasting peace closer. The international community can play a constructive part here, provided that it acts in a coordinated manner and also takes account of the underlying causes of conflict.
     
  • The main goals of transitional justice – coming to terms with the past, justice, peace, reconciliation, establishing the truth, reparation, peace, and action to prevent recurrence – can often only be attained by a combination of mechanisms. An integrated approach is important: prosecutions, truth and reconciliation commissions, amnesty schemes, local mechanisms, reparation and institutional reform are often complementary, and a given mechanism will often prove less than effective unless others are also applied.
     
  • As regards the relationship with peace negotiations, the AIV and the CAVV call for the strict division of tasks between the ICC and the Security Council to be maintained, as envisaged by the drafters of the Rome Statute. It is the task of the Prosecutor and the ICC to prosecute when there are legal grounds for doing so. Under Article 16 of the Statute, it is the task of the Security Council to defer prosecution where necessary in the interests of peace. Since the pursuit of justice and the pursuit of peace are complementary, and since peace negotiations are often hampered by other considerations, the AIV and the CAVV take the view that the Security Council should make use of this power only in exceptional cases.
  1. What transitional justice initiatives should the Netherlands support as part of its development cooperation efforts?
  • The challenge for Dutch policy on transitional justice is not so much the need to focus more closely on tribunals, truth and reconciliation commissions and other mechanisms, as the need to do so in such a way that the complex of mechanisms and processes will make the best possible contribution to justice, reconciliation and lasting peace.
     
  • If the Netherlands’ approach is to be coherent and integrated, its efforts need to be well coordinated. This will require a degree of harmonisation between the departments of the Ministry of Foreign Affairs dealing with the various aspects of transitional justice, as well as clear communication between the Ministry and Dutch diplomatic missions.
     
  • In the search for mechanisms and processes that can make the best possible contribution to lasting peace, it is important – and this is reflected in Dutch policy – to consider the issue in a specific social, political and economic context. The AIV and the CAVV therefore emphasise the need for a proper knowledge of the context and for extensive consultations with all the players involved in Dutch development policy.
     
  • Stability, security and reconstruction are necessary conditions for the implementation of transitional justice processes. The current treatment of transitional justice as part of a broader approach to SSR and DDR in fragile states appears to be effective. However, more attention should be paid to consolidating the rule of law, and in particular independent, proficient courts.
     
  • Greater focus on the specific experience of women and vulnerable groups will make transitional justice processes not only more just but also more effective. Where this is not already the case, this should be given priority in Dutch development policy relating to transitional justice. This should also be reflected in resource allocation.
     
  • The AIV and the CAVV call for development policy to pay more attention to the societal processes involved in coping with trauma and breaking the cycle of violence, especially as this can also have a preventive effect.
     
  • As regards criminal justice, hybrid tribunals such as those in Sierra Leone, Cambodia and East Timor theoretically lend themselves to capacity building and knowledge transfer. However, the international community will need to take specific additional action to strengthen local capacity. The Netherlands should clearly play a part in this.
     
  • Reparation is often a forgotten element in transitional justice processes. Dutch development policy should also focus more closely on victims’ rights and the need for reparation. In appropriate situations the Netherlands should press for collective reparation programmes and mass claim proceedings. Such mechanisms can ensure reparation for very large numbers of war victims and others relatively quickly, without lengthy, complicated legal proceedings. However, special provision should be made for specific groups as such as women, children, ethnic and sexual minorities and the disabled.
     
  • In view of the need for greater cooperation and coordination, the Netherlands could usefully seek strategic partners in the field of transitional justice, such as Canada, Switzerland and Norway, whose foreign and domestic policies pay a great deal of attention to transitional justice. Belgium, the United Kingdom and Germany are also active in this area, although they do not always have a comprehensive transitional justice policy.
  1. Can negotiations with the main perpetrators of large-scale human rights violations bring peace closer? If so, what conditions should be met before the Netherlands (possibly in concert with the EU and the UN) can support such negotiations?
  • In many cases, lasting peace cannot be achieved without talking to those who committed humans rights violations during an armed conflict. In principle, therefore, the AIV and the CAVV are in favour of Dutch support for such negotiations. However, it goes without saying that no undertakings can be made to the people concerned that they will not be prosecuted for the offences they are suspected of committing. Any such undertakings to persons who bear primary responsibility for international crimes would, moreover, be highly questionable in law.
  1. On the basis of its powers and obligations under national and international law, how should the Netherlands treat persons suspected of committing international crimes who have been granted amnesty through a process of transitional justice?
  •  In general, the AIV and the CAVV do not see any legal reason to be circumspect in exercising the universal jurisdiction enshrined in the International Crimes Act. However, if the Netherlands has no obligation to prosecute but does have the power to do so, it should always consider whether prosecution in the Netherlands will make a meaningful contribution to a transitional justice process in the territorial state. If impunity persists in a country and one of the main suspects is in the Netherlands, prosecution before a Dutch court can send an important signal.
     
  • The way in which the Netherlands treats persons suspected of committing large-scale offences in their own country – including Dutch nationals – should be in line with Dutch foreign and development policy.
     
  • ‘Blanket’ or ‘sham’ amnesties are prohibited under international law, and need not therefore be respected by third states.
     
  • As regards individual amnesty granted to persons who bear primary responsibility for serious international crimes, the AIV and the CAVV believe that the Netherlands should support the position taken by former UN Secretary-General Kofi Annan – who condemned such amnesties – and that Dutch foreign and criminal justice policy need not take account of them.
     
  • Other situations will need to be assessed case by case. Relevant factors here will include relations with the country in transition, the importance of the amnesty to the domestic situation there, the seriousness of the offences and whether prosecution in the Netherlands is expedient. Even if the amnesty is unlawful by international legal standards, this does not compel the Netherlands to take legal action in all cases.
  1. General recommendations
  • The Hague’s presentation of itself as the ‘legal capital of the world’ imposes a responsibility on the Dutch government to provide evidence in support of this description. The Netherlands should continue, on its own account and as a member of the EU, to press for universal acceptance of the Rome Statute.
     
  • On the assumption that the purpose of transitional justice is to create more just societies, the international community should focus not simply on crimes that stem from a conflict, but also on the underlying factors. Where the Dutch government or Dutch business plays a part in the outbreak or continuation of conflict (for example by supplying arms or exploiting economic interests), the Netherlands should accept responsibility.
     
  • In the light of the foregoing, the AIV and the CAVV recommend that the Netherlands itself set a good example in the treatment of war victims and the provision of reparation in cases where Dutch officials bear or share responsibility. This would increase the credibility of Dutch transitional justice efforts elsewhere.
Advice request

Professor M. Kamminga
Chairman of the Advisory Committee
on Issues of Public International Law

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
Postbus 20061
2500 EB  Den Haag

 

Date    April 2008
Re       Request for advice on transitional justice


Dear Professor Kamminga and Mr Korthals Altes,

The international community is becoming increasingly aware of the importance of the various issues that fall under the heading ‘transitional justice’. In essence, the term refers to the way in which countries emerging from major conflicts, dictatorships or other oppressive regimes choose to deal with a legacy of large-scale human rights violations. Transitional justice can thus encompass any or all of the following: criminal prosecutions, establishing the truth, compensation for victims, institutional purges and reconciliation. In an international context transitional justice often takes the form of international tribunals, like the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court. In some countries the transitional justice process is conducted in internationalised domestic tribunals, as for instance in Sierra Leone, East Timor and Cambodia, or in specially equipped national courts, local courts (e.g. the Rwandan gacaca) and truth and reconciliation commissions. In other countries legal proceedings are sometimes conducted on the basis of universal jurisdiction, which raises the question of the international community’s role with respect to human rights violations.

Transitional justice revolves around the dilemma of whether to give priority to peace and stability, or to the prosecution of widespread and systematic human rights violations. Fundamentally, this can be seen as a choice between peace and justice. An extreme position would be that the criminal justice system is itself a form of injustice because it divorces the crimes from their broader social context. The preamble of the Rome Statute of the International Criminal Court takes the opposite view, ‘affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’.

In the meantime a certain degree of consensus has been reached that an enduring solution must comprise both peace and justice. The Secretary-General of the United Nations argues for a holistic approach in his report ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’ (UN Doc. S/2004/616, 23 August 2004): ‘The international community must see transitional justice in a way that extends well beyond courts and tribunals. The challenges of post-conflict environments necessitate an approach that balances a variety of goals, including the pursuit of accountability, truth and reparation, the preservation of peace and the building of democracy and the rule of law.’ Our own human rights strategy for foreign policy (‘Human Dignity for All’) argues that the goals of peace and justice are not mutually exclusive, but rather two sides of the same coin: ‘Without justice there cannot be lasting peace, but peace takes more than justice alone.’

One question that is particularly relevant to this issue is what forms of transitional justice genuinely contribute to lasting peace and justice. A related question concerns local perceptions of the various forms and processes of transitional justice.

The relationship between peace and justice is entwined with the question of how the Netherlands can best support the development of processes of transitional justice, financially or otherwise. This relationship also figures in the connection between, on the one hand, individual criminal liability and, on the other, obligations arising from international law to prosecute criminal offences. The problems inherent in this relationship manifest themselves largely in situations where amnesty has been granted for international offences.

We would appreciate receiving policy recommendations about these matters from the AIV and the CAVV on the basis of a survey of knowledge and empirical material.

In this connection we would ask the AIV and the CAVV to consider the following questions:

  1. Are there certain general patterns that should be followed in making the choices that will guide the transitional justice process?
  2. What empirical material is available for assessing what forms of transitional justice contribute to lasting peace and justice and for describing how this occurs? What recommendations could be made on that basis?
  3. What transitional justice initiatives should the Netherlands support as part of its development cooperation efforts?
  4. Can negotiations with the main perpetrators of large-scale human rights violations bring peace closer? If so, what conditions should be met before the Netherlands (possibly in concert with the EU and the UN) can support such negotiations?
  5. On the basis of its powers and obligations under national and international law, how should the Netherlands treat persons suspected of committing international offences who have been granted amnesty through a process of transitional justice?

 

Yours sincerely,
 

Maxime Verhagen
Minister of Foreign Affairs
Bert Koenders
Minister for Development Cooperation

 

Government reactions

To the President of the
House of Representatives of the States General
Binnenhof 4
The Hague

 

Date  15 December 2009
Re       Government response to AIV advisory report ‘Transitional Justice: Justice and Peace in Situations of Transition’

 

Dear Madam President,

We hereby present the government’s policy response to the advisory report ‘Transitional Justice: Justice and Peace in Situations of Transition’ issued by the Advisory Council on International Affairs (AIV) and the Advisory Committee on Issues of Public International Law (CAVV) in May 2009 at the government’s request. The conclusions of the seminar on transitional justice, organised by the Ministry of Foreign Affairs in cooperation with the International Centre for Transitional Justice (ICTJ) on 16 and 17 September 2009, have been incorporated in this letter.

Introduction
The government asked the AIV and the CAVV to draft an advisory report on transitional justice against the backdrop of growing interest in this issue in recent years, and in particular in the role that the law plays in a region after a period of serious human rights violations. In its request for advice, the government emphasised the dilemmas of transitional justice and the potential contributions that its processes and mechanisms could make to justice and lasting peace, and accordingly formulated five main questions. In their report, the AIV’s and CAVV’s specific recommendations are linked to the question to which they pertain. The report concludes with a number of general recommendations. Before addressing the recommendations one by one, the government will begin by giving a brief summary of the results of the recent Transitional Justice Conference and describing the Netherlands’ vision of transitional justice.

Outcome of the Transitional Justice Conference
On 16-17 September the Ministry of Foreign Affairs and the International Centre for Transitional Justice (ICTJ) hosted an international conference entitled ‘Fighting Impunity in Peacebuilding Contexts’. The conference, inspired by the Dutch government’s Human Rights Strategy and Fragile States Strategy, was aimed at facilitating discussion on the dilemmas and implementation of transitional justice in peacebuilding processes. The 150 invitees included representatives of foreign governments, NGOs and universities as well as Dutch parliamentarians and experts on transitional justice.

The participants and speakers agreed unanimously that in peacebuilding situations it is necessary to recall and investigate past violence and subject it to judicial scrutiny. They also unanimously rejected the notion that transitional justice and peacebuilding are separate initiatives. Ending impunity is vital to ensure lasting peace. Nevertheless there are still major obstacles (e.g. political will, ownership and time) to be overcome in the fight against impunity at national, regional and international level. Transitional justice is a long-term process and part of a comprehensive approach to peacebuilding. The challenge is to strike the right balance between national and international measures aimed at bringing wrongdoers to justice. Furthermore, the administration of justice needs to be given more attention internationally in peace processes and peace missions.

During the conference, the general consensus was that national ‘ownership’ of transitional justice is the point of departure to ensure the sustainability of peace processes. At the same time, international and regional measures are needed when local actors cannot act or refuse to act. International justice and tribunals can serve as stimuli for national processes.

In addition to restoring national legal systems and institutions, transitional justice involves adopting temporary measures, such as the establishment of international tribunals. Building public confidence in legal institutions is a time-consuming process, but necessary to ensure their acceptance.

Another relevant outcome of the conference was the acknowledgement that victims have a right to recognition through reparation (programmes) in whatever form. This issue has until now been overshadowed by the Disarmament, Demobilisation and Reintegration (DDR) programmes for ex-combatants.

The Netherlands received a great deal of praise for organising the conference. The Netherlands and ICTJ will continue to disseminate the recommendations and lessons learned wherever possible.

Dutch vision
The main points of the Netherlands’ position on transitional justice are set out below. The primary objective in the first phase of reconstruction following armed conflict is to consolidate peace and security. As the government set out in its human rights strategy policy document ‘Human dignity for all’, the Netherlands takes as its starting point that justice is essential to lasting peace. It is necessary to put individuals who have committed crimes against humanity on trial. Ending impunity is a vital part of reconstruction. Various transitional justice mechanisms can have a positive effect, as long as the measures chosen are implemented in a way that helps the population come to terms with the past and does not rekindle tensions. Transitional justice has clear connections with the policy areas of human rights, good governance, DDR, security sector reform (SSR) and gender.

Dutch policy on transitional justice is geared towards an integrated five-phase approach: establishing the truth, criminal prosecution, reparation, institutional reform and reconciliation. These phases need not occur in the order indicated or with equal intensity. The measures that are adopted will necessarily differ from country to country, so that they fully respond to the local situation. It is essential to develop an approach to transitional justice that corresponds to the specific needs of the country in question.

The role the Netherlands plays can have many different dimensions. It can encourage, promote, organise or even initiate the process, but ultimately everything depends on the country itself and its people. In cases where domestic political will is lacking, the Netherlands can work with other donors to generate and foster a support base. If the political will is there, the Netherlands can make a financial contribution to aid in the implementation of specific measures. It can also participate in a policy dialogue with or about the country concerned, preferably in a multilateral setting.

While the international community can provide assistance in the development of mechanisms to establish the truth, the country in question must play the lead role in establishing a truth commission. The Netherlands supports initiatives aimed at uncovering the truth.

With respect to criminal prosecution, the international community plays a much more prominent role. The Netherlands, home of the ‘legal capital of the world’, the city of The Hague, has a human rights policy in which ending impunity is a key priority. At national and international level, it makes a contribution towards efforts to prosecute perpetrators of war crimes, genocide and other crimes against humanity. In addition, the Netherlands is dedicated to helping countries strengthen their legal infrastructure. It also has the requisite expertise to organise prosecution itself and contributes to these efforts as and when it can.

In the reparation phase, the Netherlands brings expertise to the policy dialogue to facilitate the development of efficient reparation programmes. The international community has a secondary task to fulfil when it comes to institutional reform: encouraging the political elite of a country to implement vetting programmes to remove or block individuals from government office. However, the country has to orchestrate the actual process of reform itself.

By contrast, security sector reform is an important component of Dutch reconstruction policy. As stated above, SSR policy must be consistent with transitional justice policy, as the two processes influence each other. Reorganising and building up the justice system is a vital part of transitional justice, because without a properly functioning judiciary, prison system and other institutions, the transitional justice process will not be effective.

Finally, the international community can play a galvanising role during the reconciliation phase. Reconciliation is a long process that must be supported and sustained domestically. When countries adopt amnesty legislation, the Netherlands urges them to ensure that it reflects international human rights standards. Encouraging reconciliation by educating the population about what took place in the past is the first step in the right direction.

Each recommendation in the advisory report is discussed below.
 

  1. The general patterns that should be followed in making the choices that will guide the transitional justice process.

Rather than ‘general patterns’, the AIV and the CAVV prefer to use the term ‘legal framework’ to describe the principles that guide decision-making in the transitional justice process. International obligations are among the factors that determine political choices regarding transitional justice. In order to decide which transitional justice processes are most desirable or appropriate, it is essential to have a clear picture of the obligations of the relevant states and the international community with regard to transitional processes.

In the government’s view, this is an accurate observation. It is true that the legal framework must be clear when decisions are being made in the transitional justice process.

The government believes that the AIV and CAVV rightly observe that transitional justice mechanisms and processes should be designed in the context of universal human rights (civil, political, social and economic rights), and should take account of the indivisibility of those rights. However, this vision can be stated more broadly: in the government’s opinion the mechanisms and processes should be designed within the framework of international law as a whole, which includes but is not limited to human rights law and humanitarian law of war.

The AIV and CAVV refer to the concept of Responsibility to Protect, as adopted by the UN General Assembly in 2005, which applies among other things to the prevention and reconstruction phases. Responsibility to Rebuild is of particular relevance to transitional justice processes. The government agrees that the international community has a responsibility to act in cases where states themselves are not sufficiently able or willing to act. However, the government would note that the AIV and CAVV present Responsibility to Protect under the heading ‘legal framework’ while this responsibility is a political and moral best-efforts obligation that does not entail a legal obligation to achieve a result.

The AIV and CAVV state that the international community has made it clear that persons who commit serious international crimes must not go unpunished. Although international law is clearly evolving towards a universal obligation to prosecute persons who commit international crimes, this stage has not yet been reached. The Netherlands should continue to press for this. The government would note that the Netherlands is actively engaged in the fight against impunity. The Rome Statute of the International Criminal Court is a key instrument in that endeavour. The Netherlands’ recent efforts include support for the inclusion of terrorism on the list of crimes in the Statute. Unfortunately, the proposal has garnered little support thus far, but the Netherlands will continue its efforts to persuade other states of the importance of this addition. During the recent Assembly of States Parties to the Rome Statute, the Netherlands succeeded in putting the proposal on the agenda of a working group for the next Assembly of States Parties.

As the preamble of the Rome Statute states, ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. The Rome Statute is based on the principle of complementarity, or as expressed in the preamble and article 1: the International Criminal Court (ICC) established under the Statute is ‘complementary to national criminal jurisdictions’. This means that the ICC has jurisdiction only if no state is willing or able to undertake a genuine investigation or prosecution. Although it is not stated explicitly in the Rome Statute, most states – including the Kingdom of the Netherlands – have consistently assumed that this complementarity principle implies that the States Parties have a duty to make acts that come within the jurisdiction of the ICC offences under their national law and to establish extraterritorial, universal jurisdiction to enable their national criminal courts to try those offences, even when committed abroad by non-nationals.

The International Crimes Act (Wet internationale misdrijven), which entered into force in October 2003, primarily serves to comply substantively with the obligations ensuing from the principle of complementarity on which the Rome Statute is based. The Act establishes universal jurisdiction, i.e. jurisdiction that is based solely on the nature and gravity of the offence, regardless of whether there is a direct link to the legal order of the state claiming jurisdiction, with respect to genocide, crimes against humanity, war crimes and torture. It is generally assumed that states can establish jurisdiction over these universal crimes. The International Crimes Act subjects the exercise of that jurisdiction to the condition that the defendant is in the Netherlands (‘limited universal jurisdiction’).

The statement that there is still no general obligation to prosecute is correct. The most far-reaching duty that states have under international law is to decide either to prosecute or extradite persons who have committed certain international crimes (the principle of aut dedere aut judicare). The AIV and CAVV also state, ‘In certain circumstances the Netherlands has an obligation under international law to exercise jurisdiction over those responsible for committing international crimes’. The phrase ‘in certain circumstances’ is correct, in the government’s opinion, if it means that in the case of some (i.e. not all) international crimes, the Netherlands is subject to the duty to extradite or prosecute.

The AIV and CAVV state that with respect to criminal prosecution, the guiding principle should be that the state concerned must shoulder as much of the responsibility as it can.

During and immediately after a conflict, national courts will have little or no opportunity to ensure fair trials. Such gaps can be bridged by the ICC, but the bulk of the responsibility should eventually shift towards the state concerned. The government would note in this respect that the ICC is complementary to national jurisdictions, which bear primary responsibility for prosecution in so far as they are willing and able to execute it. This is the cornerstone of the Rome Statute (see the description of the complementarity principle above).

The AIV and CAVV write that if the state in which the offences were committed is involved in a transitional justice process and has itself been unable to prosecute persons suspected of committing international crimes, and those persons have not been prosecuted by international or mixed tribunals either, third states in some cases have an obligation to prosecute (for example, if the Geneva Conventions and/or the UN Convention against Torture are applicable). In other cases, third states may not have an obligation to prosecute, but may be competent to do so. The government would note again that the farthest-reaching obligation that states have in this respect under international law is the duty to prosecute or extradite (aut dedere aut judicare), as laid down in the aforementioned conventions. Regarding the AIV/CAVV’s statement that under the International Crimes Act, the Netherlands can prosecute (see ‘limited universal jurisdiction’ above) or extradite persons who are on Dutch soil and are suspected of committing international crimes, the government would point out that this statement is correct in so far as it refers to the competence of the Dutch courts, but that this Act does not refer to extradition.

The government endorses the AIV’s and CAVV’s statement that parties to human rights instruments have an obligation to investigate violations of human rights at national level and prosecute the perpetrators, and to offer the victims effective redress. The Netherlands must take every opportunity to press for the establishment of national and international mechanisms that will enable victims to assert their right to remedy. The AIV and CAVV correctly prioritise redress at national level. That is the level at which human rights violations should – properly – be redressed. In last instence an independent judicial process must be guaranteed. International courts are only a means to this end, and are primarily intended for cases in where states fail to meet their obligations. Nevertheless, the Netherlands will continue to press for acceptance of the international complaints procedures as needed.
 

  1. The empirical material available for assessing what forms of transitional justice contribute to lasting peace and justice and for describing how this occurs.

The government concurs with the AIV’s and CAVV’s observation that it is important for transitional justice processes to have regard to social and economic justice, the consolidation of the rule of law and the establishment of a culture of human rights, and to recognise the crucial contribution that women can make. The government already acts in line with the advisory report on these issues. For example, a percentage of the contribution to the multi-year partnership that the Netherlands has entered into with the International Centre for Transitional Justice is allocated to the issue of women and transitional justice. The ICTJ promotes gender mainstreaming in legal systems by implementing interventions and strategies in the areas of technical support, training and capacity building, research and analysis, development of information materials and promotion of global information sharing.

In addition the European think tank Fundación para las Relaciones Internationales y el Diálogo Exterior (FRIDE) is working with the Overseas Development Institute (ODI), with Dutch support, to study the contribution that women make to reconstruction processes, including restoration of the rule of law. Finally, the government would note that human rights are at the heart of the Netherlands’ efforts in fragile states, and that elements of UN Security Council Resolution 1325 on women, peace and security are being actively implemented in Afghanistan, Burundi, the DRC, Sudan and other countries. The AIV’s and CAVV’s recommendation to take account of the underlying causes of conflict is already articulated in the government’s policy, specifically its fragile states strategy.

The government shares the AIV’s and CAVV’s opinion that the main goals of transitional justice – justice, peace, reconciliation, establishing the truth, reparation, preventing recurrence and coming to terms with the past – can only be attained by a combination of mechanisms and that it is important to take an integrated approach.

The government also agrees that there should be a strict division of tasks between the ICC and the Security Council with respect to peace negotiations. The Prosecutor and the ICC have a legal mandate to prosecute and, under article 16 of the Rome Statute, the Security Council can defer prosecution where necessary in the interests of peace. The government also realises that the Security Council should exercise this power only in exceptional circumstances because justice and peace are complementary pursuits, and peace negotiations are often arduous for other reasons.
 

  1. The transitional justice initiatives that the Netherlands should support as part of its development cooperation efforts.

Like the AIV and CAVV, the government is of the opinion that the challenge for Dutch policy on transitional justice is not so much the need to focus more closely on tribunals, truth and reconciliation commissions and other mechanisms, as the need to focus on shaping a complex of mechanisms and processes, both legal and non-legal, that will make the best possible contribution to justice, reconciliation and lasting peace.

The government concurs with the AIV’s and CAVV’s suggestion that to ensure that the Netherlands’ approach is coherent and integrated there needs to be coordination between the different departments of the Ministry of Foreign Affairs and between the Ministry and the diplomatic missions. The government would add: and any line ministries that are involved. The government admits that activity in this area tends to be somewhat fragmented and, as a result, not terribly clear.

In the search for mechanisms and processes that can make the best possible contribution to lasting peace, the AIV and CAVV state that it is important to respond to demand in a specific social, political and economic context. This is reflected in Dutch policy. The government shares their opinion that transitional justice processes need to be tailored to the specific situation in each case. To this end the intervention should be based on in-depth knowledge of the local and regional context. The Netherlands already has a set of instruments for acquiring that knowledge, including the Civil Assessment, the Stability Assessment Framework (SAF) and the Strategic Governance and Corruption Analysis (SGACA).

The government agrees that stability, security and reconstruction are necessary conditions for the implementation of transitional justice processes. Like the AIV and CAVV, the government has observed that the current treatment of transitional justice as part of SSR and DDR in fragile states is effective when SSR and DDR efforts are coordinated. With respect to the AIV’s and CAVV’s recommendation that more attention be paid to consolidating the rule of law, and in particular independent, proficient courts, the government would note that the Netherlands already contributes to this objective by providing funding and expertise for EU crisis management missions.

The government shares the AIV’s and CAVV’s opinion that sharpening its focus on the specific experience of women and vulnerable groups will make transitional justice processes more just and more effective. It would also note that the Netherlands is working towards this objective in its development policy by supporting the ICTJ’s gender programme. Protecting the rights of women and other vulnerable groups, including children and religious minorities, is a priority in Dutch human rights policy. The government would add that this is reflected in resource allocation, as recommended in the advisory report. In addition the government has incorporated elements of UNSC Resolution 1325 into the assessment criteria for the Stability Fund.

The AIV and CAVV call for development policy to pay more attention to the social processes involved in coping with trauma and breaking the cycle of violence, in part because this can have a preventive effect. Although the government recognises the importance of working through trauma, this has to date not been made a specific (bilateral) priority. A number of UN agencies and NGOs that receive funding from the Netherlands are doing work in this area.

The government shares the AIV’s and CAVV’s view that hybrid tribunals, such as those for Sierra Leone, Cambodia and East Timor, theoretically lend themselves to capacity building and knowledge transfer, but the international community needs to take specific additional action to strengthen local capacity.

The government recognises the importance of victims’ rights and the need for reparation, which is why it gave this subject a prominent place on the agenda of the international conference on transitional justice, Fighting Impunity in Peacebuilding Contexts, held in The Hague on 16 and 17 September 2009. The government has some reservations about the desirability of collective reparation programmes and mass claim proceedings, which the AIV and CAVV strongly endorse. It is conceivable that large-scale programmes and procedures of this kind are the best solutions in certain situations, but small-scale solutions are preferable wherever possible. The AIV and CAVV indicate that special provision should be made for specific groups, and in most cases it is precisely those groups that have been victimised.

The government embraces the AIV and CAVV’s recommendation to seek out strategic partners in the field of transitional justice in order to meet the need for greater cooperation and coordination. It was for this very reason that the government entered into a strategic four-year partnership with the ICTJ in April 2009. With its integrated approach and focus on local context, the ICTJ is an internationally renowned organisation that occupies a unique position. The government would note that the partnership is expected to lead to direct and indirect cooperation in this area with other ICTJ donors, such as Britain, Canada and Norway. In 2008 the Netherlands helped the Institute for Historical Justice and Reconciliation (IHJR) set up its office here; the Institute is expected to make a positive contribution to transitional justice processes.
 

  1. Can the Netherlands provide support for negotiations with war criminals with a view to achieving lasting peace?

The AIV and CAVV observe that peace is often contingent on negotiating with persons suspected of human rights violations. The government concurs with this observation, which is reflected in the fact that the Netherlands has played a role in negotiation processes of this kind. Nevertheless, the government emphasises the importance of bringing to trial persons suspected of perpetrating serious international crimes and stresses the need to keep non-essential contact with such persons to a minimum, with due respect for the principle of presumption of innocence. In line with the advisory report, the government would underline that no non-prosecution agreements can be made with the people concerned.
 

  1. How should the Netherlands treat persons suspected of committing international crimes who have been granted amnesty through a process of transitional justice?

In general the AIV and CAVV see no legal reason to be circumspect in exercising the universal jurisdiction enshrined in the International Crimes Act. The advisory bodies state that if the Netherlands has no obligation to prosecute but does have the power to do so, it should always consider whether prosecution in the Netherlands will make a meaningful contribution to a transitional justice process in the territorial state. If impunity persists in a country and one of the main suspects is in the Netherlands, prosecution here can send an important signal.

The government would make the following observations. In this matter, the ‘discretionary principle’ – which entails that the Public Prosecution Service decides, as an independent body, whether to prosecute or not – takes precedence. The decision is based on many factors, including whether the Netherlands has jurisdiction, to what extent the Netherlands has a duty under international law to prosecute persons who are on Dutch territory and suspected of international crimes, and whether it is practically and technically possible to try a case. However, the prosecutor does not take into account whether prosecution in the Netherlands would aid the transitional justice process in the territorial state when applying the discretionary principle. If the Public Prosecution Service decides not to proceed, an interested party may submit a complaint to the Court of Appeal. The court may base its decision on the factors considered by the Public Prosecution Service in exercising its discretionary powers, but like the latter will not take transitional justice into account. It is possible for the Minister of Justice to issue a directive regarding prosecution of the case.

The AIV and CAVV state that the Netherlands’ treatment of persons suspected of committing large-scale offences in their own country – including Dutch nationals – should be consistent with Dutch foreign and development policy. The government would note that in view of the discussion of the discretionary principle above, such considerations are in principle not relevant.

The advisory report states that ‘blanket’ or ‘sham’ amnesties are prohibited under international law, and therefore need not be respected by third states. The government would note that amnesty is incompatible with the duty to prosecute or extradite (aut dedere aut judicare). The request for advice asked whether the Netherlands should take account of amnesties granted in other countries. Under international law, they have no effect on Netherland’s authority to exercise jurisdiction.

As the AIV and CAVV advises, with reference to the position taken by former UN Secretary-General Kofi Annan, amnesty granted individually to persons who bear the main responsibility for serious international crimes has no effect on the Netherlands’ right to exercise jurisdiction over them. The Netherlands is of the opinion that individuals who are indicted by the ICC or one of the tribunals may not under any circumstances be indemnified.

The AIV and CAVV suggest that other amnesty situations need to be assessed case by case. Relevant factors here will include relations with the country in transition, the importance of the amnesty to the domestic situation there, the seriousness of the offences, and the expediency of prosecution in the Netherlands. According to the AIV and CAVV, the Netherlands is not obliged to take legal action in all cases, even if the amnesty is unlawful by international legal standards. The government would refer to what is stated above about the Netherlands’ international legal obligations with respect to the prosecution of international crimes, about the discretionary principle and about amnesty. The government would reiterate that the Netherlands will continue to press countries that adopt amnesty schemes following a conflict to ensure that the legislation is compatible with international human rights standards.
 

  1. General recommendations

In the government’s view, the responsibility that rests on the Netherlands as the home of the legal capital of the world (The Hague) is in keeping with article 90 of the Constitution, which imposes an obligation to promote the development of the international legal order. The government would add that working to achieve universal acceptance of the Rome Statute, as urged by the AIV and CAVV, has been the policy and practice of the Netherlands for years. This is expressed in the government’s human rights strategy ‘Human dignity for all’.

Government agencies have been engaged in a debate for some time with European and Southern NGOs concerning the legal aspects of corporate social responsibility. The government is presently examining whether, under current national and international law, internationally operating companies can be held to account for labour, environmental, human and other rights violations. In addition the government subsidises International Alert, an international NGO that helps the international business community improve its conflict sensitivity. International Alert studies the links between business and conflict and presses multinationals, public authorities and multilateral organisations to adopt policy, principles and guidelines that contribute to a better understanding of peacebuilding.

The AIV and CAVV recommend that the Netherlands should set a good example in the treatment of war victims and the provision of reparation in cases where Dutch officials bear or share responsibility. The government would note that the Netherlands has a duty to treat victims of international crimes in accordance with its obligations under international law. The government would stress that in this respect Dutch officials do in fact set a good example in their treatment of victims. The Netherlands focuses much of its effort on the reconstruction of war-torn areas, in keeping with the 3D approach. These situations must be distinguished from cases in which Dutch action – military or otherwise – causes damage. Generally speaking, there will be no victims of war because the Netherlands usually participates in peace missions and does not wage war. Nonetheless, there are procedures in place for dealing with damage of this kind. In the case of peace missions, in principle the status-of-forces agreements made with the host country set out the procedures for compensating damage for which the operation is liable.

The Permanent Parliamentary Committees on Foreign Affairs and Justice asked the Minister of Foreign Affairs to address in this letter the issue of transitional justice as it relates to Rawagede and Srebrenica. The government’s response to that request is as follows.

The government is of the opinion that what happened in Rawagede was one of the most disturbing episodes in the painful and violent process of separating the Netherlands and Indonesia. The Dutch government has expressed to Indonesia its deep regret for the horrific events of 1947 on numerous occasions, for example in 2005 through former Minister of Foreign Affairs Bernard Bot. The Dutch government’s expressions of regret expressly include the suffering endured by the survivors of Rawagede. The government takes the position that any civil-law claims with respect to the events in Rawagede are time-barred. In 1995, the Public Prosecution Service conducted an exploratory study of the events that took place in Rawagede in December 1947, and established that criminal prosecution was no longer possible.

Multiple lawsuits have been filed against the Netherlands due to the role that Dutch military personnel played in the fall of Srebrenica. Those cases are currently pending before the courts and the government does not comment on ongoing cases; the state advocate articulates the Netherlands’ position. The government would, however, point out that the Netherlands Institute for War Documentation (NIOD) conducted a large-scale investigation of the events before, during and after the fall of Srebrenica. The NIOD concluded that the Netherlands did in fact bear a certain degree of political responsibility. As a result, the government in office at the time resigned. At the same time, the NIOD report makes it perfectly clear that the Bosnian Serbs, and in particular General Ratko Mladic, are to blame for the fall of Srebrenica and the subsequent genocide. The Netherlands continues in its efforts to find Mladic and others so that they can be tried by the International Criminal Tribunal for the former Yugoslavia (ICTY). The Netherlands is firm in its standpoint that before Serbia can be allowed to take further steps towards joining the EU it must cooperate fully with the ICTY. Full cooperation has also been demanded of Croatia and Bosnia-Herzegovina. Mladic must be tried by the ICTY, for which his presence is required in The Hague, in order to achieve justice for the survivors of Srebrenica.
 

Maxime Verhagen
Minister of Foreign Affairs
Bert Koenders
Minister for Development Cooperation

 

Press releases

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