Searching for peace and achieving justice: The need for accountability

Law and Contemporary Problems

Volumn 59, Issue 4, 1996, Pages

  Cherif Bassiouni, M ^a,b,c,d  

^a Department of Law ^*

^b DEPAUL UNIVERSITY   (United States)

^c International Association of Penal Law

^d International Institute of Higher Studies in Criminal Sciences

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042930484     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (137)

1. Celebration of the World Day of Peace, January 1, 1972, in WAYS OF PEACE: PAPAL MESSAGES FOR THE WORLD DAYS OF PEACE (1968-1986), Vatican City.
2. See DANIEL CHIROT, MODERN TYRANTS: THE POWER AND PREVALENCE OF EVIL IN OUR AGE (1994);
3. PIERRE HASSNER, VIOLENCE AND PEACE: FROM THE ATOMIC BOMB TO ETHNIC CLEANSING (1995);
4. RUDOLPH J. RUMMEL, DEATH BY GOVERNMENT (1994);
5. see also ERIK HOBSBAWM, THE AGE OF EXTREMES: A HISTORY OF THE WORLD, 1914-1991 (1995). The figure used by Mr. Hobsbawm is 187 million "people killed or allowed to die by human decision" for the "short century" that he examines. Hobsbawm notes that this accounts for about 10% of the global population at the year 1900. The category "by human decision" includes non-wartime politically-caused deaths such as those in the Soviet Union (1930s Ukranian starvation and the "Gulag") and in China between 1949 and 1975 (the massive starvation of the "Great Leap Forward" and various "repression campaigns"). However, likely deaths in those two countries for political government-decided reasons are on the order of 35 million and 45 million respectively, or 80 million, for a total of around 205 million, rather than Hobsbawm's figure of 187 million.
6. For the applicable norms, see THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW (1989).
7. See also, e.g., HENRY J. STEINER, INTERNATIONAL HUMAN RIGHTS LAW IN CONTEXT: LAW, POLITICS, MORALS: TEXT AND MATERIALS (1996);
8. RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY AND PRACTICE (1991);
9. FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS (1990).
10. See RUMMEL, supra note 2, at 3, 9 (reports a total of 72.521 million casualties).
11. See id.
12. See SIPRI YEARBOOKS 1975-1996.
13. There were two reported studies in the PIOOM newsletter and progress report in 1994 and 1995: A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High- and Lower Intensity Conflicts and Serious Disputes, 7 PIOOM NEWSLETTER AND PROGRESS REPORT 14 (Winter 1995) (Interdisciplinary Research Program on Causes of Human Rights Violations, Leiden, Netherlands),
14. and Study, 6 PIOOM NEWSLETTER 17 (1994); see also supra note 3;
15. Alex P. Schmid, Early Warning of Violent Conflicts: Causal Approaches, in VIOLENT CRIME & CONFLICTS 47 (ISPAC 1997);
16. PIOOM World Conflict Map 1994-1995, 7 PIOOM NEWSLETTER, supra. The following are some illustrations of situations producing a high level of victimization (estimated conflict deaths), including genocide, crimes against humanity, and war crimes for which there has been no accountability: (a) Conflicts of an international character. Afghanistan (1979-89) 1.5 m; Vietnam (1945-87) 3.7 m. (b) Conflicts of a non-international character. Angola (1975-94) 1.5 m; Bangladesh (1971-73) .5 m; Burundi (1972) 250,000; Cambodia(1975-85) 1.5 m; Ethiopia (1961-91) 300,000; Mozambique (1978-92) 1 m; Rwanda (1994) 500,000; Somalia (1991-93) 400,000; Yemen (1962-65) 100,000. (c) Purely internal conflicts: Argentina (1976-83) 25,000; Chile (1973-90) 30,000; El Salvador (1979-92) 70,000; Guatemala (1965-96) 60,000; Indonesia (1965) 450,000, (1980-95) 150,000; Lebanon (1975-90) 150,000; Liberia (1989-96) 150,000; Peru (1980-96) 50,000; Philippines (1968-86) 50,000. (d) Tyrannical regime victimization: China (1945-75) 35 m; Iraq (1980-96) 300,000; North Korea (1948-87) 1.6 m; ; Uganda (1971-86) 600,000; USSR (1917-89) 30 m; Yugoslavia (1943-45) 500,000, (1991-95) 250,000.
17. M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11, 13 (1997).
18. See FROM MADNESS TO HOPE: THE 12-YEAR WAR IN EL SALVADOR, REPORT OF THE UNITED NATIONS COMMISSION ON THE TRUTH FOR EL SALVADOR, U.N. Doc. S/25500 (1993).
19. See NUNCA MÁS, INFORME DE LA COMISION SOBRE LA DESAPARICION DE PERSONAS (1985);
20. CARLOS SANTIAGO NINO, RADICAL EVIL ON TRIAL (1996).
21. SEE REPORT OF THE CHILEAN NATIONAL COMMISSION ON TRUTH AND RECONCILIATION (Philip E. Berryman trans., 1993);
22. Edward C. Snyder, The Dirty Legal War: Human Rights and the Rule of Law in Chile, 2 TULSA J. COMP. & INT'L L. 253, 279 (1995).
23. See Lynn Berat & Yossi Shain, Retribution or Truth-telling in South Africa? Legacies of the Transitional Phase, 20 L. & SOC. INQUIRY 1, 163 (1995);
24. Ziyad Motala, The Promotion of National Unity and Reconciliation Act, the Constitution and International Law, 28 COMP. & INT. L. J. S. AFRICA 338 (1995).
25. See generally III TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 1995);
26. Maria Loñ, Lustration and Truth Claims: Unfinished Revolutions in Central Europe, 20 L. & SOC. INQUIRY 1, 117 (1995);
27. Adrienne M. Quill, To Prosecute or Not to Prosecute: Problems Encountered in the Prosecution of Former Communist Officials in Germany, Czechoslovakia, and the Czech Republic, 7 IND. INT'L & COMP. L. REV. 1, 165, 188-91 (1996).
28. See Progress Report on the Question of Impunity of Perpetrators of Human Rights Violations, prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-Commission Resolution 1992/23, Sub-Commission on Prevention and Protection of all Minorities, 45th Sess., Item 10(a) (July 19, 1993) E/CN.4/Sub.2/1993/6, at 29;
29. Progress Report on the Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), prepared by Mr. Joinet, pursuant to Sub-Commission Resolution 1994/34, Sub-Commission on Prevention and Protection of all Minorities, 47th Sess., Item 10 (June 28, 1995) E/CN.4/Sub.2/1995/18;
30. Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights): Final Report prepared by Mr. Joinet, pursuant to Sub-Commission Resolution 1995/35, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 48th Sess., Item 10 (June 29, 1996) E/CN.4/Sub.2/1996/18, at 5;
31. NAOMI ROHT-ARRIAZA, IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 14 (1995);
32. Stephen P. Marks, Forgetting the Policies and Practices of the Past: Impunity in Cambodia, FLETCHER F. 17 (1994);
33. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991);
34. Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1 (1996);
35. Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 ST. MARY'S L.J. 857, 867 (1995).
36. For a critical appraisal of that practice, see Luc Huyse, Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past, 20 L. & SOC. INQUIRY 1, 51, 77-78 (1995).
37. See the Four Geneva Conventions of Aug. 12, 1949: Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31;
38. Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85;
39. Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
40. Convention Relative to the Protection of Civilian Persons in Times of War (Geneva Convention No. IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 28. For "grave breaches," see articles 49 (I), 129 (III), 146 (IV), and for conflicts of a non-international character, see common article 3.
41. Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 4, 1125 U.N.T.S. 3, reprinted in 16 I.L.M. 1391 [hereinafter Protocol I]. See especially arts. 11, 85, 86.
42. Protocol II Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 609, reprinted in 16 I.L.M. 1442 [hereinafter Protocol II].
43. See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, signed at Paris, 13 January 1993, S. TREATY DOC. NO. 103-21, 32 I.L.M. 800, entered into force 29 April 1997;
44. Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, concluded at Geneva, 10 October 1980, U.N. Doc. A/CONF.95/15, 1342 U.N.T.S. 7, 19 I.L.M. 1523, entered into force 2 December 1983,
45. including Protocol on Non-Detectable Fragments to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons [Protocol I], adopted at Geneva, 10 October 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1529, entered into force 2 December 1983,
46. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, Appendix C, [Protocol II], adopted at Geneva, 10 October 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1529, entered into force 2 December 1983,
47. and Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons [Protocol III], adopted at Geneva, 10 October 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1534, entered into force 2 December 1983 with provisions;
48. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, signed at Washington, London and Moscow, 10 April 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163, 11 I.L.M. 309, entered into force 26 March 1975;
49. the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and certain weapons conventions such as: Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, 17 June 1925, 26 U.S.T. 571, 94 L.N.T.S. 65, 14 I.L.M. 49;
50. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907 [hereinafter 1907 Hague Convention].
51. See Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR Int'l Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), July 15, 1996, revised by U.N. Doc. A/CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr.3;
52. Statute of the International Tribunal for Rwanda, adopted at New York, Nov. 8, 1994, S.C.Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602;
53. Statute of the International Tribunal for the Former Yugoslavia, adopted at New York, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1-2, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192;
54. European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes (Inter-European), signed at Strasbourg, Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540, not yet entered into force;
55. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature at New York, Nov. 26, 1968, G.A. Res. 2391, U.N. GAOR, 23d Sess., Supp. No. 18, at 40, U.N. Doc. A/RES/2391 (1968), 754 U.N.T.S. 73, 8 I.L.M. 68, entered into force Nov. 1970;
56. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted at Geneva, July 29, 1950, 5 U.N. GAOR Supp. (No. 12), at 11, U.N. Doc. A/1316 (1950), 44 AM. J. INT'L L. 126 (1950);
57. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (United Nations General Assembly Resolution), adopted at New York, Dec. 11, 1946, U.N. G.A. Res. 95(1), U.N. Doc.A/64/Add.1 (1946);
58. International Military Tribunal for the Far East, proclaimed at Tokyo, 19 Jan. 19, 1946 and amended Apr. 26, 1946, T.I.A.S. No. 1589, 4 Bevans 20;
59. Control Council Law No. 10 (Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity), adopted at Berlin, Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, Jan. 31, 1946,
60. reprinted in BENJAMIN B. FERENCZ, 1 AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE 488 (1980);
61. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis [London Charter], signed at London, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, 3 Bevans 1238, entered into force Aug. 8, 1945.
62. See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 1 U.N. GAOR Res. 96 (Dec. 11, 1946) 78 U.N.T.S. 277;
63. see also Statute of the International Tribunal for Rwanda, adopted at New York, Nov. 8, 1994, S.C.Res. 955, U.N.SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598;
64. Statute of the International Tribunal for the Former Yugoslavia, adopted at New York, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1-2, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159.
65. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46, opened for signature at New York, Feb. 4, 1985, entered into force June 26/1987, reprinted in 23 I.L.M. 1027;
66. see also Treaty or European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Inter-European), opened for signature at Strasbourg, Nov. 26, 1987, Europ. T.S. No. 126, 27 I.L.M. 1152, entered into force Feb. 1, 1989;
67. Inter-American Convention to Prevent and Punish Torture, done at Cartagena de Indias, Dec. 9, 1985, AG/Res. 783 (XV-0/85), O.A.S. General Assembly, 15th Sess. IEA/Ser.P. AG/Doc. 22023/85 rev. 1 at 46-54 (1986), O.A.S. Treaty Series, No. 67, entered into force Feb. 28, 1987, reprinted in 25 I.L.M. 519;
68. United State Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Resolution), adopted at Geneva, 1955, ECOSOC Res. 663C (LXIV), July 31, 1957,
69. and United State Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Resolution), 2076 (XXII), May 13, 1977, U.N. Doc. A/CONF.6/1, Annex I.A.
70. The 1945 International Military Tribunal to Prosecute the Major War Criminals of the European Theatre [hereinafter IMT].
71. See M. Cherif Bassiouni, Modalities of Inter-State Cooperation in Penal Matters, in INTERNATIONAL CRIMINAL LAW (M. Cherif Bassiouni ed., forthcoming 2d rev. ed. 1997);
72. see also EUROPEAN INTER-STATE CO-OPERATION IN CRIMINAL MATTERS (Ekkehart Mühller-Rappard & M. Cherif Bassiouni eds., 1993).
73. Supra note 20.
74. Supra note 15.
75. Supra note 16.
76. See M. Cherif Bassiouni, "Crimes against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457 (1994).
77. See supra note 17.
78. G.A. Res. 2840 (XXVI) 26 U.N. GAOR Supp. (No. 29), at 88, U.N. Doc. A/8429 (1971).
79. See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 499-527 (1992).
80. G.A. Res. 3074 (XXVIII), 28 U.N. GAOR Supp. (No. 30) at 78, U.N. Doc. A/9030 (1973).
81. See M. CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE, AUT JUDICARE (1995).
82. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature at New York, Nov. 26, 1968, G.A. Res. 2391, U.N. GAOR, 23d Sess., Supp. No. 18, at 40, U.N. Doc. A/RES/2391 (1968), 754 U.N.T.S. 73, 8 I.L.M. 68, entered into force Nov. 1970.
83. See European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes (Inter-European), opened for signature at Strasbourg, Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540, not yet entered into force.
84. See M. CHERIF BASSIOUNI, INTERNATIONAL CRIMINAL LAW CONVENTION AND THEIR PENAL PROVISIONS 451-54 (in print 1997).
85. EUROPEAN INTER-STATE CO-OPERATION IN CRIMINAL MATTERS, supra note 23.
86. M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 356-66 (3d ed. 1996).
87. See Kenneth Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 834 (1988);
88. Luc Reydams, Universal Jurisdiction over Atrocities in Rwanda: Theory and Practice, 1 EUR. J. CRIME. CRIM. L. & CRIM. JUST. 18 (1996).
89. In such cases, however, national legal systems would have to adopt substantive national legislation to prosecute persons accused of genocide, crimes against humanity, and war crimes, as well as torture.
90. Germany and Italy have included genocide as part of their, criminal codes. France, Canada, the United Kingdom, and Australia have developed specialized legislation which includes retrospective application to World War II events, although Australia has not been successful in any prosecutions. (There have been three cases, all of which resulted in acquittal before trial: DPP v. Polyukhovich; Malone v. Berezowsky; Heinrich Wagner. See THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES 130-34 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997). The United Kingdom is in the process of prosecuting one case (Szymon Serafinowicz) under the United Kingdom War Crimes Act 1991, France has prosecuted three with one pending, and one case (R. v. Finta) has been prosecuted in Canada under the Canadian Criminal Law Amendment Act 1985 S.C., 1985, c.19 which amends the Canadian criminal code.
91. See THE LAW OF WAR CRIMES, supra, at 29;
92. DICK DE MILDT, IN THE NAME OF THE PEOPLE: PERPETRATORS OF GENOCIDE IN THE REFLECTION OF THEIR POST-WAR PROSECUTION IN WEST GERMANY (1996)
93. ; Leila Sadat-Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 COLUM. J. TRANSNAT'L L. 289 (1994).
94. See BASSIOUNI & WISE, supra note 32; see also BASSIOUNI, supra note 30, at 489-99; LAURI HANNIKAINEN, PEREMPTORY NORMS (Jus COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 713-18 (1988);
95. Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 VA. J. INT'L L. 585 (1988);
96. Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 HASTINGS INT'L & COMP. L. REV. 411, 429-35 (1989).
97. See ANDRE DE HOOGH, OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES 45-46 (1996).
98. For different perspectives on government obligations, see Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Human Rights Violations in International Law, 78 CAL. L. REV. 449 (1990),
99. which strongly supports such a duty, and José Zalaquett, Confronting Human Rights Violations Committed by Previous Covenants, 13 HAMLINE L. REV. 623 (1990), which is more flexible with respect to such a duty.
100. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, U.N. GAOR, 51st Sess., Supp. No.22, U.N. Doc. A/51/22 (1996) [hereinafter Preparatory Committee Report];
101. M. Cherif Bassiouni, Draft Statute International Criminal Tribunal, 9 Nouvelles Itudes Pinales (1993).
102. Whether such cases should be prosecuted before an international or national body is essentially relevant to the issue of primacy of competence and to the issue of effectiveness and fairness of national prosecution. Another relevant question arises as to the prosecution of decision-makers, senior executors and perpetrators of particularly heinous crimes and other violators. A policy could be established to prosecute the former before an international criminal court as a first priority, leaving lesser violators to be prosecuted by national bodies. In addition, the question arises as to the possibility of lesser sentences or alternatives to traditional criminal sentences for lesser offenders and for national bodies to resort to various forms of conditional release, pardons, or amnesties after conviction of lesser offenders. These measures would not be contrary to the principle of non-derogation to the duty to prosecute.
103. For a survey of various accountability measures from a criminological perspective, see Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past, 20 L. & SOC. INQUIRY 7 (1995).
104. "Forgiveness, Forgetfulness, or Intentional Overlooking," THE NEW SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 67 (Lesley Brown ed. 1993).
105. Forgiveness, Forgetfulness, or Intentional Overlooking, The New Shorter Oxford English Dictionary on Historical Principles 67 1993. Id.
106. For example, a short term statute of limitation can preclude prosecution.
107. For example, in the situation involving rape in the former Yugoslavia, prosecutions are in the Netherlands while victims may be refugees in different countries. If the victims are required to travel to the Netherlands without speaking the language, without proper support (familial, social, psychological, medical, emotional), and are to be cross-examined there, then they may elect not to testify, the result being impunity for the crimes committed. M. Cherif Bassiouni & Marcia McCormick, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper # 1, 1996, International Human Rights Law Institute, DePaul University). This is the case in the Tadic case before the ICTY, where the defendant was acquitted of charges of rape because the victims were fearful of testifying, Prosecutor v. Tadic, Case No. IT-94-1-T (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, May 7, 1997) (McDonald, J., dissenting).
108. These issues include: Need redress always be found through traditional monetary or prosecutorial mechanisms? What level of compensation should be given, and to whom? Can it not, particularly in financially poorer countries, be achieved in a non-monetary form? Many of the crimes involve the potential accountability of many people, maybe large sectors of a society. How many people do you prosecute to attain justice? How can the interest and support of the general population be maintained?
109. It may be important to prosecute lower level actors in order to generate information regarding the actions and identities of higher level officials.
110. Victims should also be allowed to participate as partie civile, which is provided for in civilist legal systems in order to have the right to claim compensatory damages. See infra note 59 and accompanying text.
111. Such as The Commission of Experts for the former Yugoslavia. See The Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. S/1994/674 (1994);
112. Annexes to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/674/Add.2 (1994);
113. see also M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 AM. J. INT'L L. 784-805 (1994);
114. M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 CRIM. L. F. 279-340 (1994). The Commission on Human Rights and the Sub-Committee on the Prevention of Discrimination and Protection of Minorities established respectively Rapporteurs and Special Rapporteurs whose work and contribution over the years has proven invaluable.
115. See Priscilla B. Hayner, Fifteen Truth Commissions - 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597, 607 (1994).
116. GIDEON HAUSNER, JUSTICE IN JERUSALEM 3-4 (1966) (commenting on the Eichmann case).
117. See, e.g., Berat & Shane, supra note 11, at 186.
118. See supra note 40 regarding national legislation.
119. See supra note 13.
120. See e.g., U.S. Alien Tort Claims Act, 28 U.S.C.A. § 1350 (1988); see also Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S.Ct. 2524 (1996); Flartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
121. U.K. Doc. A/RES/40/34, Dec. 11, 1985, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
122. For a discussion of this, see International Protection of Victims, 7 NOUVELLES ITUDES PINALES (M. Cherif Bassiouni ed., 1988).
123. See also Security Council Resolution 808 establishing the ICTY: S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., at 1, U.N. Doc. S/RES/808 (Feb. 22, 1993). Resolution 808 stated that the Security Council "[d]ecides that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991."
124. Preparatory Committee Report, ILC Draft, Art. 43 (c) ("The judgement of the Court shall also include a determination of the scope and extent of the victimization in order to allow victims to rely on that judgment for the pursuit of civil remedies, including compensation, either in national courts or through their Governments, in accordance with international law.").
125. See HANNAH ARENDT, EICHMANN IN JERUSALEM; A REPORT ON THE BANALITY OF EVIL 14-15 (1963).
126. See Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. PA. L. REV. 493 (1995).
127. See JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 33-34, 162-86 (1988).
128. See id. at 33.
129. See KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY, AND THE PUBLIC INTEREST 181-97 (1989); see especially id. at 193.
130. Historical denial is characterized by claims of "nothing happened" or "whatever happened is exaggerated," the subtext of justification is characterized by the claim "it was justified" or "there was no other choice." See Israel Charny, The Psychology of Denial of Known Genocide, in 2 GENOCIDE (Israel Charny ed., 1988);
131. Roger W. Smith, Denial of the Armenian Genocide, in 2 GENOCIDE (Israel Charny ed., 1988).
132. See, e.g., GEOFFREY BEST, WAR AND LAW SINCE 1945 (1994);
133. JOHN KEEGAN, A HISTORY OF WARFARE (1993).
134. See RAUL HILBERG, THE DESTRUCTION OF THE EUROPEAN JEWS (3 Vols. 1985).
135. W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 DUKE J. COMP. & INT. L. 175 (1995). Reisman notes that "[t]here is no general institution that can be applied as a paradigm for all circumstances. In each context, an institution appropriate to the protection and re-establishment of public order in the unique circumstances that prevail must be fashioned such that it provides the greatest return on all the relevant goals of public order." Id. at 185. The question is to what extent accountability mechanisms are deemed a part of "public order"? Where do such mechanisms rank; what is their value?
136. To paraphrase George Orwell: He who controls the past, controls the future; who controls the present, controls the past. By recording the truth, educating the public, preserving memory, and trying the accused it is possible to prevent abuses in the future. See Cohen, supra note 45, at 49.
137. Devotions upon Emergent Occasions XVII (1624).