Combating impunity: transitional justice in the aftermath of mass atrocities.

Sadly, recent history has given us many examples of large-scale human rights abuses. The lessons of history have also shown that, in a necessary attempt at reconciliation with the past, different societies needed to create diverse formulas to overcome the extraordinary devastation they endured in the aftermath of mass atrocities.

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Since the Second World War, the fight against impunity has become a universal cause, especially after major violations of human rights have taken place. Despite calls for justice and accountability, government officials often choose to grant amnesty to individuals responsible for appalling human rights violations, on the grounds that only this would help their society secure a stable transition from conflict to peace.

These difficult lessons from the past were also the subject of a panel discussion, "Truth, Justice and Accountability: Principles and Practice for Combating Impunity", held at United Nations Headquarters in New York in June 2004. Organized by the Office of the High Commissioner for Human Rights (OHCHR) in cooperation with the International Centre for Transitional Justice (ICTJ), the panel discussion, moderated by Deputy Director Craig Mokhiber of the OHCHR New York Office, included Juan Mendez, Director of ICTJ, and Diane Orentlicher, Professor of International Law at American University. The participants stated that while some countries would be able to effectively account for large-scale abuses, some needed assistance from the international community to conduct prosecutions and establish truth-finding mechanisms. They emphasized that policies of justice needed to be based upon widespread consultations with civil society groups. Within this framework, the different approaches to combat impunity, such as the commissions of inquiry, criminal prosecutions or reparations to the victims, were certainly valuable in leading towards dialogue, healing and reconciliation within a society affected by mass human rights violations.

"In recent years, one of the most striking developments [in international law] has been the abrogation of amnesties and the lifting of other restrictions, including official immunities, that were designed to block prosecutions of certain crimes", said Ms. Orentlicher, the author of an independent study commissioned by Secretary-General Kofi Annan titled "Best Practices to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity". The study aims to provide guidance to States facing the daunting challenges bound up in their efforts to combat impunity. To this end, the study distils lessons learned from recent experiences and gives an overview of recent developments in international law that have shaped the legal framework governing national as well as international efforts to combat impunity.

The United Nations is the principal forum for creating international law and principles. Apart from the elaboration of treaties, the systematic work of UN human rights bodies over the last decades has crystallized into declarations, resolutions, guidelines, principles and opinions, collectively named "soft" law. These norms are especially relevant in the promotion of human rights and in the prosecution of severe crimes. One such relevant human rights document includes Commission on Human Rights resolution 2003 of 1972, which requested the Secretary-General to order an independent study on best practices, that resulted in Prof. Orentlicher's report. As Mr. Mendez elaborated, "States, explicitly or implicitly, guide themselves by these emerging principles, which also constitute a sound base to be used by judges in courts anywhere in the world dealing with issues of past abuses".

Furthermore, new legal instruments had been developed in the fight against impunity. Ms. Orentlicher said that a permanent International Criminal Court was already available, at least in circumstances defined in its statute, to provide a backstop when national courts were unable or unwilling to take legal action against the chief architects of mass atrocity. Another recent trend, she said, "has been for the international community to join national authorities in prosecuting those most responsible for serious crimes under international law". In her opinion, the leading example of this model was the Special Court for Sierra Leone, set up jointly by the Government of Sierra Leone and the United Nations.

"International law has something to say about what choices are available to a society confronting the dilemmas of transitional justice", Prof. Orentlicher said, adding that "this apparent conflict is not as large as we may sometimes suppose, and in practice the tension between international legal expectations and domestic constraints have often been constructive". Mr. Mokhiber of OHCHR concurred: "What we have learned from practical experience is that it is not necessary to choose between peace and justice, but that they could be united, in order to redress all atrocities committed and to develop mechanisms of transitional justice. An important conclusion that the international community has drawn is that there is a need to work in solidarity with these societies so they can articulate what they think is the best solution."

Prof. Orentlicher acknowledged that obviously there was no easy solution to transitional justice and that no "one-size-fits-all" approach could be taken for unique historical experiences, stating: "An effective programme for combating impunity requires a comprehensive strategy, with each component--truth commissions, trials, reparations, vetting and other measures--playing a necessary but only partial role. It also requires that each one of those steps is designed with a view toward complementing and reinforcing other measures." As Mr. Mokhiber explained: "It is not a question of whether justice is to be pursued, but rather a matter of when and how. Sequencing activities that do not jeopardize each other can bring forward the peace and accountability process."

Arguments against the interference of foreign countries have been put forward on the grounds that prosecutions by outsiders would have a destabilizing effect or that they do not respect the choices of the societies that have experienced mass atrocities. However, Prof. Orentlicher stressed that the exercise of foreign jurisdiction, under universal jurisdiction or through international courts, may also have a "catalytic and energizing effect" on the society and encourage the creation of a broader public space for coming to terms with the past. In some instances, she said, when abuses of the severest forms have taken place, societies have overturned amnesty laws that were regarded as inconsistent with international law. After the failed extradition of General Augusto Pinochet, Chilean society engaged in an extensive dialogue and held individual prosecutions, which have enlarged the public space within the country for confronting past crimes, she said.

The international community has long agreed that it is paramount to ensure that those who bear the greatest responsibility for gross violations of human rights should be prosecuted in accordance with established standards of fair process. "There are national laws that have principles at the very least unsympathetic with international law, like in the case of the death penalty", argued Mr. Mendez of ICTJ. The inclusion of capital punishment in the local courts in Rwanda after the genocide and in the recently constituted Iraqi Tribunal has met with a great deal of opposition within the international community.

Since trials alone cannot provide an adequate compensation or a true guarantee of non-repetition of human rights abuses, combating impunity generally requires a multi-faceted approach that includes a need to honour the victims by restoring their sense of participation in society. As Prof. Orentlicher maintained, "the particular needs and historical circumstances of each country have had a significant bearing on the sequencing of trials, truth commissions and other dimensions of justice".

Mr. Mendez argued that in "the best possible world, a society should have a truth commission, which opens the possibility for victims to be heard, as well as prosecutions, reparations and disqualification of perpetrators from the judicial, military and law enforcement bodies; yet, not all countries have the luxury of doing it in those neat stages". In some instances, the truth commissions may operate before or simultaneously with trials, providing a more comprehensive and victim-centred process of reckoning than is possible in criminal prosecutions, and giving a chance to the prosecutions to benefit from the commissions' investigations. "Since victims in general reject money without formal apologies and wish to first see justice being done", Mr. Mendez said, "full reparations should come afterwards, unless there is a need for emergency assistance".

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