National Reconciliation, Transnational Justice, and the International Criminal Court

Ethics and International Affairs

Volumn 15, Issue 1, 2001, Pages 25-44

  Méndez, Juan E ^a  

^a NONE

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EID: 85008178045     PISSN: 08926794     EISSN: 17477093     Source Type: Journal    
DOI: 10.1111/j.1747-7093.2001.tb00341.x     Document Type: Article

References (41)

1. Security Council Resolution 827 (1993), creating the International Criminal Tribunal for the former Yugoslavia (ICTY)
2. Resolution 955 (1994), creating the International Criminal Tribunal for Rwanda (ICTR)
3. Rome Statute for an International Criminal Court, approved on July 17, 1998. See the debates leading up to this historic new treaty in M. Cherif Bassiouni, ed., The Statute of the International Criminal Court: A Documentary History (Ardsley, N.Y.: Transnational, 1998).
4. Christine Chinkin et al., “In Re Pinochet,” American Journal of International Law 93 (1999), p. 703.
5. Diane F. Orentlicher, “Addressing Gross Human Rights Abuses: Punishment and Victim Compensation,” in Louis Henkin and John L. Hargrove, eds., Human Rights: An Agenda for the Next Century, Studies in Transnational Legal Policy, vol. 26 (Washington, D.C.: American Society of International Law, 1994).
6. See also: Naomi Roht-Arriaza, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995)
7. Theo Van Boven, UN Special Rapporteur on Restitution, Compensation, and Reparations for Gross and Consistent Violations of Human Rights, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN Doc. E/CN.4/Sub.2/1993/8 (1993)
8. Louis Joinet, UN Special Rapporteur on Impunity, Revised Final Report on the Impunity of Perpetrators of Human Rights Violations (Civil and Political Rights), E/CN.4/Sub.2/1997/20/Rev.1 (1997)
9. UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, UN Doc. CCPR/C/79/Add.46 (1995)
10. CCPR [Covenant on Civil and Political Rights] General Comment 20
11. Inter-American Court on Human Rights, Velásquez Rodríguez, Judgment on the Merits, July 29, 1988
12. Inter-American Commission on Human Rights on Argentina and Uruguay, Annual Report of the Inter-American Commission on Human Rights, Reports 28/92 and 29/92 (1992)
13. European Court on Human Rights, Ibrahim Aksoy v. Turkey, Judgment on the Merits (October 10, 2000).
14. José Zalaquett, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in State Crimes: Punishment or Pardon (Queenstown, Md.: Aspen Institute, 1989).
15. Juan E. Méndez, “Accountability for Past Abuses,” Human Rights Quarterly 19 (May 1997), p. 271.
16. Cited in Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), p. 50.
17. Between Vengeance and Forgiveness.
18. A persuasive case to this effect, with regard to successive amnesties in Haiti, is made by Kenneth Roth, “Human Rights in the Haitian Transition to Democracy,” in Carla Hesse and Robert Post, eds., Human Rights and Political Transitions: Gettysburg to Bosnia (Cambridge, Mass.: Zone Books, 1999), pp. 93–131.
19. See Margaret Popkin and Nehal Bhuta, “Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?” in Ethics & International Affairs 13 (1999), pp. 99–122.
20. Aryeh Neier, “Prosecutions: Who and for What? Four Views,” in Alex Boraine et al., eds., Dealing with the Past: Truth and Reconciliation in South Africa (Cape Town: Institute for Democratic Alternatives in South Africa, 1994), p. 99.
21. Marcelo Sancinetti, Los Derechos Humanos en la Argentina Post Dictatorial (Buenos Aires: Lerner, 1988).
22. Phillippe Schmitter and Terry Karl, “What Democracy Is … and Is Not,” Journal of Democracy 2, No. 3 (1991)
23. Guillermo O'Donnell, “Further Thoughts on Horizontal Accountability” (Notre Dame, Ind.: Kellogg Institute, 2000; mimeograph).
24. Richard Goldstone, cited by Lawrence Wechsler in “Inventing Peace,” The New Yorker (November 20, 1995), p. 64.
25. Zalaquett, “Confronting Human Rights Violations Committed by Former Governments,” pp. 42–3.
26. Exchange between José Zalaquett and Kenneth Roth at Seminar on Transitional Justice organized by the Aspen Institute, Wye River Center, Md. (November 10–12, 2000).
27. Mark Osiel, “Legal Remembrance of Administrative Massacre,” University of Pennsylvania Law Review 144 (1995), pp. 463–680.
28. Art. 6(5), Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 7, 1977.
29. Letter from Toni Pfanner, head of the Legal Division, International Committee of the Red Cross Headquarters, Geneva, to Douglass Cassel, April 15, 1997, cited in Douglass Cassel, “Lessons from the Americas: Guidelines to International Response to Amnesties for Atrocities,” in M. Cherif Bassiouni and Madeline H. Morris, eds., “Accountability for International Crimes and Serious Violations of Fundamental Human Rights,” Duke University Review of Law and Contemporary Problems 59 (Autumn 1996), p. 218.
30. An interesting legal issue arises from this amnesty. Undoubtedly, Foday Sankoh and his accomplices will invoke it as a defense against future prosecutions, either in Sierra Leone or abroad. A strong case can be made that it is invalid both as a matter of domestic and of international law, not only because it is contrary to the emerging principles discussed in this essay, but also because it was conditional on the rebels' abiding by the obligations they assumed in the peace agreement and then promptly ignored. In October 2000, the UN settled this question with regard to the hybrid court that is being set up and will have jurisdiction both for international crimes and for some domestic law offenses. The amnesty will apply only to the latter. See Michael Scharf, “The Special Court for Sierra Leone,” ASIL Insight, October 2000; available on American Society of International Law Web page at www.asil.org/insigh53.htm.
31. In Sierra Leone the hybrid option is to set up a court of domestic jurisdiction with international support and some UN participation. Michael Scharf, “The Special Court for Sierra Leone.” It appears that something similar is being negotiated for Cambodia.
32. Rome Statute for an International Criminal Court, UN Doc. A/CONF.183/9, Rome, July 17, 1998. The statute has been signed by 135 countries and ratified (as of February 2001) by 28 countries. Sixty ratifications are needed for the statute to enter into force.
33. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS [United Nations Treaty Series], p. 277, entered into force January 12, 1951
34. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1465 UNTS, p. 85, entered into force June 26, 1987
35. Inter-American Convention on Forced Disappearance of Persons, adopted in Belem do Pará, June 9, 1994, entered into force March 28, 1996, reprinted in 32 ILM [International Legal Materials] (1994), p. 1529.
36. Not surprisingly, in countries like Chile, Argentina, and Uruguay, courts have begun to interpret these laws narrowly, so as to give effect to principles of international law. For example, judges will continue inquiries and investigations until the facts establish clearly whether the amnesty applies. Disappearances are considered “continuing crimes” whose effects outlive the amnesty, at least until the death of the victim and its circumstances are reliably established. Courts also institute procedures of investigation into the facts in order to give effect to the “right to truth” as one of those emerging obligations of the state, even if in the end no punishment is possible. See Felipe Michelini, “El largo camino de la verdad,” Revista IIDH 24 (July/December 1996), pp. 157–172
37. Martín Abregú, “La tutela judicial del derecho a la verdad en la Argentina,” Revista IIDH 24 (July/December 1996), pp. 11–47
38. Juan Méndez, “Derecho a la verdad frente a las graves violaciones a los derechos humanos,” in Martín Abregú and C. Courtis, eds., La aplicación de los tratados sobre derechos humanos por los tribunales locales (Buenos Aires: Del Puerto-CELS, 1997)
39. Méndez, “Accountability for Past Abuses.”
40. John Dugard, “Reconciliation and Justice: The South African Experience,” Transnational & Contemporary Problems 8 (1998), p. 277.
41. Garth Meintjes and Juan E. Méndez, “Reconciling Amnesties with Universal Jurisdiction,” International Law Forum 2 (2000), pp. 76–97.