The fundamental human right to prosecution and compensation.

• Author: Van Dyke, Jon M.
• Position: Human rights abuses

1. INTRODUCTION

   The right to obtain financial compensation for a human rights abuse and to have the perpetrator of such an abuse prosecuted and punished is itself a fundamental human right that cannot be taken from a victim or waived by a government. Although it is sometimes tempting to enact a general amnesty in order to heal a nation's wounds, promote harmony, and "let bygones be bygones," such efforts rarely achieve their goals because the wounds fester and the victims need a just resolution to their suffering. The only way to bring true healing to a divided society is to face up to the wrongs that were committed, to prosecute those who violated the fundamental human rights of others, and to provide compensation to the victims.

2. THE SIERRA LEONE CIVIL WAR

   Time and time again, the United Nations' experience has shown that peace accords built on impunity are shaky and do not hold. In Angola, for example, six amnesties have been granted as part of the peace process, and each has served as little more than an invitation to further bloodshed and atrocities. (1) The West African country of Sierra Leone has experienced an eight-year civil war led by rebels of the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC). (2) Although the fighting began as a struggle among competing factions, in recent years it has been focused against the country's first President elected in a multi-party election, Ahmad Tejan Kabbah. (3) President Kabbah took office in March 1996, was forced from office 14 months later on May 25, 1997 by the AFRC/RUF rebel alliance, and then was reinstated in early 1998 as President by the Nigerian-led peacekeeping force formally called the Economic Community of West African States Monitoring Group (ECOMOG). (4)

   The AFRC/RUF-led campaigns of terror, called "Operation No Living Thing" and "Operation Pay Yourself," have been designed to kill, destroy, and loot anything in their paths. (5) Civilians have been subjected to systematic and gross violations of human rights such as amputations by machete of one or both hands, arms, feet, legs, ears, or buttocks and one or more fingers; lacerations to the head, neck, arms, feet, and torso; gouging out of one or both eyes; gunshot wounds to the head, torso, and limbs; burns from explosives and other devices; injections with acid; rape and sexual slavery of girls and women including sexual mutilation where breasts and genitalia were cut off. (6) Often child soldiers too weak to hack off the entire foot have carried out the mutilations. (7) The victims would have to finish the amputation, or would be forced to participate in their own mutilation by selecting which body part they wanted amputated. Political messages were slashed into backs and chests, and amputees were told to take their limbs to President Kabbah. (8)

   Children have often been the targets of brutal acts of violence -- murdered, beaten, mutilated, tortured, raped, sexually enslaved, or forced forced to become soldiers for the AFRC/RUF. (9) Parents have been killed in front of their children. (10) Women and girls have been targets of systematic brutal gang rapes at gunpoint or knifepoint, or of rape by foreign objects such as sticks or flaming logs. (11) Rapes have occurred in front of family members, or, in some cases, rebels have forced a family member to rape a sister, mother, or daughter. (12) Witnesses have reported seeing the mutilated bodies of pregnant women whose fetuses have been cut out of their wombs or shot to death in their abdomen. (13)

   The AFRC/RUF forced many civilians into slavery, to serve the rebel forces' cause. (14) Women and girls have been required to become "wives" or sexual slaves and forced to cook for the soldiers. (15) Young men and boys have been forcefully recruited as soldiers, and required to commit armed attacks against Sierra Leone civilians, Civilian Defense Forces, and the ECOMOG. (16)

   Members of the Civilian Defense Forces (CDF) supporting President Kabbah have also committed atrocities. The soldiers in the most powerful of these groups, the Kamajors, have carried out murders, mutilations, and obstructions of humanitarian aid, and they have demanded compensation at roadblocks for "liberating Sierra Leone from the AFRC/RUF forces." (17) Although the CDF apparently tried to limit their killings to soldiers and in some cases direct supporters of the AFRC/RUF, many witnesses tell horrific stories of the grotesque nature of their killings. In some instances victims were disemboweled, followed by the consumption of vital organs such as the liver or heart, apparently to transfer the strength of the enemy to those involved in the consumption. (18)

   In January 1999, the RUF captured Freetown, the capital of Sierra Leone, from government troops and the ECOMOG, after three weeks characterized by the most atrocious and concentrated human rights violations committed against civilians in the eight-year civil war. (19) Then, on May 24, 1999, a cease-fire agreement was reached and in July 1999, a peace agreement was signed that contained a plan to develop a government consisting of members of all the fighting factions and a general amnesty to protect all groups from prosecution for war crimes and crimes against humanity. (20) The founder of the rebel movement, Foday Sankoh, instead of being prosecuted for unspeakable atrocities, was put in charge of a commission to oversee the country's rich mineral resources, and his commanders occupied four top cabinet positions. (21)

   Was it realistic to expect this new government to function in a fair and orderly fashion without any accounting for the extraordinarily gross crimes that occurred? This deal appears to have been put into place because Sierra Leone was only marginally significant to the international community, because the new civilian government in Nigeria was eager to withdraw its troops, because the Kabbah government was outgunned and totally dependent on foreign aid, and because the people of Sierra Leone were so sick of the fighting that they were willing to pay almost any price to obtain peace and try to get on with their lives. (22) But the amnesty served as an invitation for further atrocities. (23) Finally, in the spring of 2000 Foday Sankoh was arrested and the United Nations commenced negotiations to establish a war crimes tribunal to bring him and his confederates to trial. (24)

3. THE RIGHT TO BRING A CLAIM IS A FUNDAMENTAL HUMAN RIGHT UNDER INTERNATIONAL LAW

   In the civil law system, upon which the procedures used in international tribunals are primarily based, the distinction between a criminal prosecution and a civil claim for damages is not as clear as it is in the common-law system used in the United Kingdom and the United States. In the civil law system, victims participate actively in criminal proceedings and help to prosecute them. For that reason, the treaties and decisions that have addressed the rights of victims to redress have not always made a clear distinction between the right to ensure that a human-rights abuser is criminally prosecuted and the right to bring a claim for monetary compensation. Both these rights exist, and both are crucial fundamental human right elements to obtain redress for violations of substantive human rights norms.

   The right to bring a claim for a violation of internationally-recognized human rights is well established under international law. Article 8 of the Universal Declaration of Human Rights (25) says that "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law" (emphasis added). Similarly, Article 2(3)(a) of the International Covenant on Civil and Political Rights, (26) which has been ratified by more than 140 countries, says that "Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity....". (27)

   Regional human rights treaties also emphasize the right to redress for human rights violations. Article 6(1) of the European Convention on Human Rights (28) says "In the determination of his civil rights ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." (29) The European Court of Human Rights ruled in the Golder Case (30) that the right to bring a civil claim to an independent judge "ranks as one of the universally `recognized' fundamental principles of law." (31) More recently, in Mentes v. Turkey, (32) the European Court of Human Rights ruled that Turkey violated the rights of citizens who were prevented from bringing a claim for the deliberate destruction of their houses and possession, noting that "the notion of an `effective remedy' entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigative procedure." (33)

   Similarly, Article 25(1) of the American Convention on Human Rights (34) says that:

   Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (35) Decisions in the Inter-American system confirm that the right to an effective remedy is a continuing one that cannot be waived. The seminal case of the Inter-American Court of Human Rights is The Velasquez Rodriguez Case, (36) which holds that the American...