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Conceptual Framework for a Holistic Approach to Dealing with the Past

Elisabeth Baumgartner
University of Basel
Elisabeth Baumgartner
University of Basel
Open Panel

Abstract

Only few theories exist with a holistic approach regarding the issue of how societies deal with a stained past. In contrast to the more narrowly defined concepts of TJ which are closely associated with juridical mechanisms, the framework to be presented in this paper conceptualizes dealing with the past (DwP) as a long-term social and political transformative process including also a wide range of non-juridical instruments. It is based on the Principles against Impunity formulated by Louis Joinet in 1997, later revised by Diane Orentlicher. This normative conceptual framework identifies mechanisms, modalities, and procedures for the implementation of existing legal obligations under international law, based on the rules of state responsibility and the inherent right of redress for victims of grave human rights violations. The concept provides a comprehensive scheme for DwP in four key areas: (1) the right to know (the right of victims to know the truth; the duty of the State to preserve memory); (2) the right to justice (the right of victims to an effective remedy; the duty of the State to prosecute human rights violations); (3) the right to reparation; and (4) the guarantee of non-recurrence (the right of victims and the society to protection from further violations; the duty of the State to ensure good governance and the rule of law). As a holistic approach it stipulates that reconciliation, rule of law and conflict transformation can only be achieved by focusing on the linkages between the different mechanisms and addressing comprehensively all four key areas (e.g. the importance of adequate preservation of archives for the right to know and the right to justice). The focus on rights and duties allows for the identity transformation of victims and perpetrators into citizens with the rights and duties of citizenship in a democratic state.