GJIA: In your own words, how would you describe your role and responsibilities as the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence at the UN Human Rights Council?
FS: Transitional justice processes and human rights were not exactly conjoined in the same place in the past. My main challenge is to focus all transitional justice processes inside the international human rights framework—a common standard that started with the United Nation’s 1948 adoption of the Universal Declaration of Human Rights. This framework further established itself with nine more core international human rights instruments on civil, political, economic, social, and cultural rights: including protections against torture, forced disappearances, and discrimination against groups based on race, gender, age, migrant status, and disability. That is my main purpose as the Special Rapporteur. If you see my reports, they are all focused on international duties, not the political wilderness of the state. They address all stakeholders about principles of justice, reparations, memorialization processes, and guarantees of the non-recurrence of human rights violations in the future. It is a challenge to uphold the traditional doctrine of transitional justice, but I believe it is the right way to approach victims’ rights.
GJIA: What is the story behind the reports you submitted to the UN General Assembly (report A/76/180 and communication GBR 5/2021) and the Government of Kenya (KEN 3/2021) arguing that the U.K. government must provide a reparative response to the demands of Kipsigis and Talai members who survived British-enforced evictions from their lands?
FS: The history behind this sin is impunity: there is no reparation, a lack of justice, and a lack of truth from the British government in this process of decolonization and transitional justice. I wrote my report on the idea that transitional justice could give interesting tools for governments to attempt an honest way to deal with the past. The legacy of colonialism in general does not address the past in a proper way. One month ago, I participated in the Belgian Parliament’s discussion of dealing with its colonial history in the present-day Democratic Republic of the Congo, which first faced brutal colonial exploitation as Belgian King Leopold II’s private property at the turn of the 20th century. If you do not deal with the past in a proper manner, it will remain present. When preparing the UN communications that were sent to the British and Kenyan governments, we received complaints from teams representing the groups of victims. If those concerns fit inside the framework of the UN mandate for transitional justice, I prepare and send a communication for the concerned government. The three documents have the same fundamental root: the lack of justice for people who suffer from colonialism.
GJIA: In 2013 and 2019, there were two notable litigation cases surrounding compensation for the torture of Kikuyus during the Mau Mau Uprising (1952-1960) by British and Kenyan colonial forces. The former case (Mutua and Others v Foreign & Commonwealth Office) resulted in a successful settlement of around £20 million while the latter (Kimathi and Others v Foreign & Commonwealth Office) failed due to a procedural time limitation arguing that the events took place too long ago for the Crown to collect enough evidence as a defense. What influence—if any—have these cases had on the decision to involve the United Nations in seeking justice for Kenyans under British colonization? Was there any other precedent for the United Nations taking these claims against the United Kingdom or any other European country for actions committed during colonization? And is there any direction you anticipate these claims going toward in the future?
FS: The UN transitional justice mandate should act with or without the precedence of that domestic court case. I have sent UN communications to multiple other countries. This includes Canada, for the investigation of mass graves at reservation schools; Japan, for the violation of comfort women during the colonization of Korea and World War II; and South Korea, for various human rights violations under Japanese occupation and later post-war governance of authoritarian strongmen. Europe as a society should decide if it wants to be the Europe of human rights or the Europe of colonialism. You cannot be both at the same time. Unfortunately, current discrimination has clear connections with discrimination in the past, so this reparations case remains a problem of the present. The mandate should help victims who were absent in the majority of these processes. The participation of victims within the transitional justice processes, from the mandates’ design until its implementation, is fundamental. If this participation is not present, the process fails.
GJIA: GJIA: What do you think that other groups seeking redress for colonization could learn from these experiences of the Kipsigis and Talai indigenous peoples?
FS: This issue will be on the international agenda in the near future, especially because civil society is presenting claims and acting upon them. Therefore, different mandate holders from different areas of the United Nations will continue to work on this issue. In other countries like Niger, activists are producing films like African Apocalypse—which narratives the destructive 19th-century mission of French colonizer Paul Voulet in West Africa. As mentioned earlier, there is also the problem of the residencies in Canada for the indigenous peoples. In summary, my report for Kenya is a tool for seeking the truth and establishing a good program of reparations for the victim participation and the memorialization process. I assume that the nongovernmental organizations and civil society and lawyers specialized in international human rights law will progress these transnational causes by using treaty bodies and search committees to present more individual communications for reparations claims. Perhaps this one strategic litigation in regional human rights bodies and international human rights bodies could be another way to seek justice for inhuman and degrading violations of human rights.
MS: Do you have any concluding thoughts before we end?
FS: My feelings are with the victims. When you talk with the victims that suffered or their sons and grandsons, you feel the suffering and discover how it is not a problem of of the past. I do my best to help those victims, which is the purpose of the mandate, even if it’s not nice for Western governments. Transitional justice is not just for undeveloped countries; transitional justice could be could be a tool for any situation. It is clear that we have massive violations of human rights and international humanitarian law, impunity, lack of justice, and no redress, except very modest apologies in some cases. I think we are making something of benefit for those victims. I will be happy if I am just a tool for that.
. . .
Fabian Salvioli is the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence at the UN Human Rights Council. He is a professor of International Law and Human Rights at the University of La Plata’s School of Law as well as the Director of the university’s Human Rights Master Program and Director of the Institute of Human Rights.
Image Credit: Georgina Smith/CIAT, CC 2.0