The Impact of Transitional Justice after Non-International Armed Conflicts

The idea of transitional justice is a contemporary concept that has emerged in the context of societal transitions towards democratic governance. Transitional justice enco mpasses issues pertaining to violations and grave infringements of international human rights law and international humanitarian law, with the objective of establishing the facts and providing redress to victims of violence for the atrocities perpetrated against them. The assessment of the efficacy of transitional justice is a crucial concern, as it is considered as a metric for gauging the progression of democratic transitions .

The fundamental principles of transitional justice are consistent across all historical and cultural contexts .

However, it should be noted that while these systems may share certain formal similarities, each experience possesses unique characteristics in terms of its content .

The present study will address the following research question :

To what extent has transitional justice affected the application of the provisions of international humanitarian law in non-international armed conflicts ?

The present study will address the aforementioned question by dividing the research into two axes. The first axis will address the concept of transitional justice and its objectives, while the second will focus on the legal basis of transitional justice and some field applications of the latter .

The initial section: Transitional Justice. The idea of transitional justice has become firmly established in the majority of nations emerging from internal armed conflicts, political turbulence and periods of repression and persecution. In recent decades, there has been a proliferation of mechanisms and standards that address and differentiate grave violations of human rights and international humanitarian law during the various stages of democratic transition in numerous countries.

In order to elucidate the concept of transition al justice and its objectives, this section will proceed as follows. First Requirement The concept of transitional justice emerged as an alternative to the idea of revolutionary courts in certain countries. It is employed in societies that have experienced revolutions and wars in which crimes and violations of human rights and international humanitarian law were committed.

Transitional justice is defined as “the full range of processes and mechanisms associated with a society’s attempts to understand its legacy of widespread past abuses, to ensure accountability, justice and reconciliation” (Smith, 2013, p. 123). It may include both judicial and non-judicial mechanisms with varying levels of international participation or none at all, individual courts, compensation, truthtelling, constitutional reform, vetting of person-

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al records to uncover abuses, and separation or combination thereof (al-Hafiz, 2015, p.393).

Transitional justice is distinguished from traditional justice in that it pertains to periods of transition from internal armed conflict to a state of peace, or from authoritarian political rule to democratic rule, or liberation from foreign occupation by restoring or establishing local government. These transitions are typically accompanied by reform measures deemed necessary for the prevailing circumstances.

Additionally, transitional justice is defined as a set of methods and mechanisms employed by a society to achieve justice during a transitional period in its history. These periods frequently arise in the aftermath of a revolution or the cessation of a war, marking the conclusion of an era of authoritarian rule within the country and the initiation of a transitional phase towards democratization .

During this period of transition, society is confronted with a significant challenge in addressing cases of violations of physical, political and social human rights (al-Hafiz, 2015, p.393) . This period, or stage, occurs in the aftermath of crises and revolutions, and refers to the process by which society’s transition from a state of conflict to one of consensus and peace. The objective of this transition is to establish a democratic system that will prevent the recurrence of conflicts in the future.

The United Nations Secretary-General's report on the rule of law and transitional justice in conflict and post-conflict societies, presented to the UN Security Council, offers a comprehensive definition. The report states that transi-ЕЛ- tional justice is the range of processes and mechanisms associated with attempts by society to understand its legacy of widespread past abuses, with a view to ensuring accountability, justice and reconciliation. It may include both judicial and non-judicial mechanisms, with varying levels of international participation or lack thereof, trials of individuals, reparation, truthtelling, constitutional reform, and personal records checks to uncover abuses, dismissal (Shugban, 2008, p.20).

The UN Secretary-General's definition of transitional justice explicitly recognizes its existence and history (رشوان) The theory under discussion was initiated in the 1980s through an examination of international experiences, and the subsequent development of a new theory in the field of democratic transition. This new theory was based on the following principles:

• - The revelation of the truth about gross violations of human rights

• - The determination of responsibilities for these violations

• - The rectification of the damage caused by these violations and the establishment of guarantees to prevent their reoccurrence

• - The promotion of civil peace and national reconciliation

Second Requirement: The primary objective of transitional justice is to ascertain the truth and understand the nature of the crimes and violations committed.

Objectives of transitional justice.

The initial objective of transitional justice is to ascertain the truth and understand the nature of the crimes and human rights viola-

The Impact of Transitional Justice after Non-International Armed Conflicts Kamel Rahim, Saadoudi Youcef

tions that occurred during the period of tyranny or repression, while identifying those responsible for them.

Accountability, including the prosecution of individuals and officials responsible for committing serious violations of human rights and international humanitarian law, whether before national criminal courts or international criminal courts, in accordance with the principle of non-impunity.

The provision of reparations and the promotion of reconciliation represent a fundamental component of the transitional justice concept. The establishment of reparations programmers, whether individual or collective in nature, is a critical aspect of transitional justice in affected nations, as outlined in “8.

The two experts Mark Freeman and Breslin Hays of the International Center for Justice (ICJ) defined the goal of establishing transitional justice bodies as bodies that often operate for one or two years, officially recognized, mandated by the state, with a degree of legal independence, deriving their authority from it, sometimes from the armed opposition, in addition to the state or provided for in a peace agreement, or judicial bodies with a degree of legal independence.

The focus of these bodies is on the past, investigating patterns of violations committed over a period of time rather than a single event. They conclude their work by submitting a final report containing their conclusions and recommendations, based on violations of human rights and humanitarian standards.

The investigation is concluded with the submission of a final report that encapsulates the conclusions and recommendations of the investigation (al-Muttahida, 2004, p.20).

The aforementioned experts further elucidated that the primary benefits and interests of reconciliation are as follows:

The establishment of the truth about the past, the holding of perpetrators of human rights violations accountable, the provision of an important platform for victims, the recommendation of reparations for victims, the proposal of necessary legal and institutional reforms, and the promotion of social interest and help for democratization .

The second section: The basis of transitional justice and some field applications of transitional justice

Transitional justice is a legal approach to enforcing justice in periods of transition from conflict or authoritarian rule, achieving accountability, reparation and truth-seeking.

The realization of this objective is predicated on the establishment of legal foundations that facilitate the examination of transitional frameworks.

The present study will address the field work conducted in certain countries and the legal basis on which it is based, with a view to achieving this objective .

First Requirement: The Basis of Transitional Justice Transitional justice has gained an important foundation in international law. The legal basis for transitional justice is represented by the decision issued by the American Court of Justice in the case of Velasquez Rodriguez v. Honduras in 1988, in which the Court concluded that all states have four basic human rights obligations, namely to take reasonable steps to

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prevent human rights violations, to conduct serious investigations of violations when they occur, to impose appropriate sanctions on those responsible for violations, and to ensure compensation to victims of violations .

The establishment of the International Criminal Court (ICC) represents a significant development in this field, as the Statute of the ICC enshrines fundamental obligations on States, mandating the elimination of impunity for perpetrators and the enhancement of the rights of victims. The Rome Statute of the ICC incorporates the establishment of the Victims Trust Fund, which is conceived to provide adequate forms of compensation and support to victims of crimes perpetrated within the jurisdiction of the ICC .

In addition to the above, we see the legal basis for transitional justice in what was emphasized by the UN Secretary-General, who referred to the need for international assistance rather than intervention, and the involvement of all groups, including minorities, women, civil society and victim.

Second Requirement: International Experiences of Transitional Justice:A Study of International Experiences Regarding Transitional Justice Remaining a useful and necessary matter, the study of international experiences of transitional justice enables the drawing of lessons and the consideration of practical models with their advantages and disadvantages. It is vital to be aware of each experience's advantages and to follow them, and to be aware of each experience's disadvantages and to avoid them, as each experience has its own character- istics and circumstances. In this context, the Sierra Leone model of transitional justice is the most common in the African continent. 1- International Experience of Transitional Justice in Sierra Leone: Sierra Leone's model of transitional justice is the most prevalent in Africa (Busmahe, 2013, p.25) .

A distinguishing feature of post-conflict justice in Sierra Leone is the presence of inter national criminal justice as a parallel mech anism, as represented by the International Criminal Court for Sierra Leone (ICC). Previously, transitional justice was regarded as an alternative.

The fundamental objective of transitional justice is to restore the dignity of victims and to revive trust between the conflicting parties. A notable aspect of transitional justice that stands in contrast to the principles of criminal justice is the provision of comprehensive amnesty for perpetrators of violations and abuses.

The TRC came up with the final report in great detail, particularly the history of the colonial period, addressing the long-standing division between the area around the capital known as the 'colony of Sierra Leone' and the areas described as the 'protectorate.' The report also attempted to analyze the post-colonial regimes, characterized by authoritarianism and corruption, and their role in the emergence of this conflict (as-Saud, 2013, p.06) .

The TRC Act made several references to victims and perpetrators, focusing its attention on the category of children, including child perpetrators, as well as victims of sexual abuse. The TRC was also assigned a role in determin-

The Impact of Transitional Justice after Non-International Armed Conflicts Kamel Rahim, Saadoudi Youcef

ing responsibilities, as well as identifying the causes and parties responsible for the conflict in reference to a government, group, or individual with responsibilities that may extend even to transnational corporations. In this regard, the TRC provided a list of those who bear responsibility in this conflict .

It is important to note that the Commission's work was not confined to the conventional violations of physical integrity, such as murder, rape and other violent crimes, and crimes of destruction of property or looting. Instead, the Commission determined that the comprehensive human rights found in international instruments, including the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights, should be given due consideration. Consequently, the Commission determined that it would not only address civil and political rights, but also economic, social and cultural rights. This directive was issued to the Commission members who were selected to conduct interviews with victims (Hastm, 2018, p.78)

Conclusion:

Transitional justice is concerned with answering several questions related to the pursuit of the whole truth, i.e. what happened, why it