Coming to terms with atrocities: A review of accountability mechanisms for mass violations of human rights

Law and Contemporary Problems

Volumn 59, Issue 4, 1996, Pages 125-152

  Kritz, Neil J ^a  

^a UNITED STATES INSTITUTE OF PEACE   (United States)

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[No Author keywords available]

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EID: 33751406563     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: 10.2307/1192195     Document Type: Review

References (34)

1. The present essay deals only with mechanisms of accountability. By definition, these are focused on the perpetrators of abuse and their allies. Although not examined in the essay, a comprehensive and wholistic approach to dealing with a legacy of past atrocities should also include a range of victim-focused efforts, such as programs for compensation and rehabilitation, the establishment of memorials, and the organization of appropriate commemorations.
2. UN Security Council Resolution 955 (November 8, 1994)
3. See Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 VAND. J. TRANSNAT'L L. 498, 499-504 (1994).
4. Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935 (1994) (29 September 1994), p. 31.
5. With a total of 434 people (including secondees and interns), the Yugoslavia tribunal has less than a quarter the number of staff. Bulletin of the International Criminal Tribunal for the former Yugoslavia, No. 18 (1997).
6. See, e.g., Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537-615 (1991).
7. See William A. Schabas, Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems, 7 CRIM. L.F. 523 (1996) (describing the development and substance of the Organic Law on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes against Humanity).
8. The Office of the High Representative is the primary institution responsible for implementing the civilian aspects of the Dayton accords.
9. The jurisprudence of the European Court and Commission of Human Rights, which should inform practice in Bosnia and Herzegovina, prohibits such limitations on choice of counsel.
10. The Roundtable, convened from July 2-4 in Strasbourg, was jointly sponsored by the United States Institute of Peace, the OSCE Office for Democratic Institutions and Human Rights, and the Secretary-General of the Council of Europe. The Bosnian participants included the Minister of Justice of Republika Srpska, judges of the Supreme Courts of the Federation of Bosnia and Herzegovina and of Republika Srpska, chief prosecutors, cantonal ministers of interior, and leaders of the three respective war crimes commissions. Other participants included senior officials from the International Criminal Tribunal for the Former Yugoslavia, the Office of the High Representative and the International Police Task Force, experts with relevant experience from other countries that have grappled with this difficult question (e.g., a member of South Africa's Truth and Reconciliation Commission), and those engaged in legal institution-building in Bosnia. For further information on the Strasbourg meeting and its conclusions, see UNITED STATES INST. OF PEACE, SPECIAL REPORT: JUSTICE AND RECONCILIATION IN BOSNIA AND HERZEGOVINA (forthcoming 1997).
11. At the Strasbourg roundtable referred to above, some Bosnian participants went further and suggested that regulation of, or pressure on, those who control local media may be required to supplement such training.
12. General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Annex 7, art. I, para. 3(e), reprinted in 35 I.L.M. 75, 137.
13. The Administration of Justice and the Human Rights of Detainees: Question of the impunity of perpetrators of violations of human rights (civil and political rights): final report prepared by Mr. L. Joinet pursuant to Subcommission resolution 1995/35, U.K. Doc. E/CN.4/Sub. 2/1996/18 (June 29, 1996), Principles 48-50.
14. The United States Institute of Peace plans to undertake a comprehensive comparative analysis, beginning in 1998, of the use of non-criminal sanctions in transitional societies.
15. This approach was utilized, for example, in Chile, where one's identification in the report of the Commission on Truth and Reconciliation was automatic proof of one's eligibility for the compensation program. This prevented victims from having to go through a new and potentially painful process of proving their victimization to administrators of this assistance.
16. This information is based on interviews conducted in Uganda by Priscilla Hayner in late 1996.
17. See Agreement on the Establishment of the Commission for the Historical Clarification of Human Rights Violations and Incidents of Violence that have Caused Suffering to the Guatemalan Population (June 23, 1994)[hereinafter Guatemala Agreement].
18. See Larry Rohter, Guatemalans Formally End 36-Year Civil War, Central America's Longest and Deadliest, N.Y. TIMES, Dec. 30, 1996, at A8.
19. Guatemala Agreement, supra note 17.
20. See id.
21. See id.
22. See Promotion of National Unity and Reconciliation Act, Act 34 of 1995 (July 26, 1995), Chapter 4.
23. By late August 1997, approximately 7,000 amnesty applications had been submitted. Of those applications that had been processed, only 3% were granted amnesty. See Statement by Dr. Alex Boraine on Winding Up of Commission, Truth and Reconciliation Commission press release, Aug. 20, 1997.
24. By late 1997, a large number of key government, religious, and civic leaders had endorsed the proposed establishment of the joint commission.
25. Argentina's National Commission on Missing Persons, arguably the first truth commission of note, was established in late 1983.
26. See Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, art. 9, reprinted in 32 I.L.M. 1159 (1993); Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December, art. 8, reprinted in 33 I.L.M. 1600 (1994) 1994 [hereinafter Statute of the International Criminal Tribunal for Rwanda].
27. Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 44, U.N. Doc. A/49/10 (1994).
28. Statute of the International Criminal Tribunal for Rwanda, supra note 26.
29. The tribunal was established by the U.N. Security Council, in Resolution 827, on May 25, 1993. It issued its first indictment, against Dragan Nikolic, on November 8, 1994.
30. In his final report to the Secretary of the Army on the Nuremberg proceedings, chief prosecutor Telford Taylor noted that after the initial IMT trial, the need to organize new structures, administration, and staffing for the twelve trials to follow delayed the war crimes program by almost a year. The delay had its cost. "If the trials ... had started and been finished a year earlier," observed Taylor, "it might well have been possible to bring their lessons home to the public at large far more effectively." Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No. 10 at 105 (August 15, 1949). These words ring at least as true half a century later.
31. See Guatemala Agreement, supra note 17.
32. These include the Constitution Court of Bosnia and Herzegovina and the Commission on Human Rights. It should be noted that these institutions deal primarily with current abuses rather than wartime atrocities.
33. See Buergenthal, supra note 3, at 522.
34. The English version of the report was published as TORTURE IN BRAZIL: A REPORT BY THE ARCHDIOCESE OF SAO PAULO (Joan Dassin ed. & Jaime Wright trans., 1986).