International guidelines against impunity: Facilitating accountability

Law and Contemporary Problems

Volumn 59, Issue 4, 1996, Pages 29-39

  Morris, Madeline H ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 3142753044     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: 10.2307/1192188     Document Type: Review

References (30)

1. The other two purposes for punishment generally cited in the context of domestic penal law - incapacitation and rehabilitation - presumably have a much lesser role in the goals of accountability for crimes of such enormity as genocide or crimes against humanity.
2. I mean here to distinguish the "actual crimes committed" (e.g., genocide or crimes against humanity) from lesser offenses (e.g., murder, torture, rape) that are sometimes charged in place of the actual crimes. Such prosecution for lesser offenses is done for various reasons including the failure of the prosecuting state to have adopted domestic legislation under which to prosecute the greater offenses. See supra part II.C.
3. See Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put Into Context: The Case of Argentina, 100 YALE L.J. 2619, 2622-30 (1991).
4. See Promotion of National Unity and Reconciliation Act 34 of 1995, §§ 18-22 (as amended 1995 & thereafter).
5. See Madeline H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 DUKE J. COMP. & INT'L L. 349, 357 (1997).
6. See id. at 353 and sources cited therein.
7. The point is almost too obvious to state: repressive regimes rarely acknowledge their own guilt.
8. See Tom Warrick, Money Troubles, 7 TRIBUNAL 8 (1997).
9. See Walter Gary Sharp, Sr., International Obligations to Search for and Arrest War Criminals: Government Failure in the former Yugoslavia?, 7 DUKE J. COMP. & INT'L L. 411 (1997).
10. To qualify for amnesty under the South African Promotion of National Unity and Reconciliation Act, the crimes must have been politically motivated and have been committed during the period March 1, 1960 through May 10, 1994. See PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT 34 of 1995, Ch. 4 (as amended).
11. See id.
12. The most culpable category is defined as including the leaders and organizers of the genocide and perpetrators of particularly heinous murders or sexual torture. See Organic Law No. 08/96 of 30 August 1996 on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity Committed Since 1 October 1990, Art. 2, published in OFFICIAL JOURNAL OF THE REPUBLIC OF RWANDA (Sept. 1, 1996) (hereinafter "Organic Law").
13. See id. arts. 15-16.
14. See id. art. 14.
15. More than 90,000 genocide suspects are currently imprisoned in Rwanda. Conversation with Simeon Rwagasore, Procureur General Before the Supreme Court of Rwanda, in Cape Town, South Africa (Jan. 22, 1997).
16. Rwanda has taken a novel approach in this regard. By way of response to the lack of implementing legislation in Rwandan law for the relevant international conventions, Rwanda's specialized legislation for the handling of the genocide-related cases provides that [t]he purpose of this organic law is the organization of criminal proceedings against persons who are accused of having, since 1 October 1990, committed acts set out and sanctioned under the Penal Code and which constitute: a) either the crime of genocide or crimes against humanity...; or b) offenses set out in the Penal Code which the Public Prosecution Department alleges or the defendant admits were committed in connection with the events surrounding the genocide and crimes against humanity. ORGANIC LAW, supra note 12, art. 1. By taking this approach, Rwanda identifies the crimes in question as other than "ordinary" murders, rapes, and so on by virtue of their comprising or being connected with the genocide. At the same time, the principle of non-retroactivity of penal law is honored, as defendants are prosecuted only for pre-existing offenses - such as murder or rape - in accordance with the Rwandan Penal Code.
17. See, e.g., United States v. Demjanjuk, 518 F. Supp. 1362 (N.D. Ohio 1981), aff'd. per curiam, 680 F.2d 32 (6th Cir.), cert. denied, 459 U.S. 1036 (1982).
18. 28 U.S.C. § 1350 (1994).
19. See BETH STEPHENS & MICHAEL RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS 168, 218 (1996).
20. See Ellen L. Lutz, After the Elections: Compensating Victims of Human Rights Abuses, in NEW DIRECTIONS IN HUMAN RIGHTS 195, 204-07 (Ellen L. Lutz, Hurst Hannum & Kathryn J. Burke eds., 1989).
21. International sanctions might also be viewed as a mechanism that is not inherently second-best but becomes so if used in lieu of other mechanisms for accountability. However, because sanctions are used to create pressure for change (and are removed when change is achieved) rather than to attain accountability for wrongs committed, I will not discuss sanctions in this essay.
22. See Herman Schwartz, Lustration in Eastern Europe, in 1 PARKER SCH. J. E. EUR. L. 141, 141 (1994). Variations on the theme of lustration include such other administrative measures as demotion in rank, job transfer, and the like.
23. See id. at 162-66.
24. The production of "official truth" has its own pitfalls, of course, which must be taken into account when a truth commission is being considered.
25. See Priscilla B. Hayner, Fifteen Truth Commissions - 1974-1994: A Comparative Study, in 16 HUM. RTS. Q. 597, 604 (1994).
26. See Draft Statute for an International Criminal Court, in Report of the International Law Commission on the Work of Its Forty-Sixth Session, arts. 20-24, U.N. Doc. A/49/355 (1994).
27. See id art. 47 (3)(c), at 23.
28. I use the term "judicial system" in the broadest sense to include not only judges and court staff but also prosecutors, defense counsel, investigators, and the like.
29. See generally Yves Sandoz, Penal Aspects of International Humanitarian Law, in 1 INTERNATIONAL CRIMINAL LAW 209, 230 (M. Cherif Bassiouni ed., 1986).
30. The design of such international proceedings would have to be carefully tailored to interface smoothly with whatever proceedings were to be undertaken at the national level. See Morris, supra note 5, at 362-73 (discussing the interaction of national and international criminal tribunals).