Redressing impunity for human rights violations: the Universal Declaration and the search for accountability.

• Author: Joyner, Christopher C.

1. INTRODUCTION

   This year celebrates the fiftieth anniversary of the Universal Declaration of Human Rights,(1) a document that is regarded both as the wellspring and cornerstone of modern international human rights law. The Universal Declaration, though not intended to be legally binding, aims to set "a common standard of achievement for all peoples and nations."(2) And that it surely does. Its thirty articles cover a raft of human rights and fundamental freedoms, ranging from the liberty and security of the person, equality before the law, due process, prohibitions against torture and arbitrary interference with privacy, to civil and political rights that protect freedom of movement, asylum, expression, conscience and religion, and assembly. There are in addition economic and social rights, such as the rights to work and equal pay and to social security and education.

   The Universal Declaration clearly is not an enforceable international instrument. Yet, the fact remains that its contents have subsequently become regarded as binding customary international law,(3) or as embodying general principles of law,(4) or as conventional law by virtue of being codified through specific provisions in specific international treaty instruments.(5)

   Nevertheless, underpinning the proclaimed rights in the Universal Declaration is a critical provision that tends to be passed over in most treatments of human rights law. This provision is Article 8, which in full emphatically asserts the following: "Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law."(6) This is the effective remedies provision that explicitly intends to protect the rights of the victim. Each person therefore possesses and can exercise the right to obtain redress for harm done by public or private agents to him or her. The premise here is that no person is above the law. Every person should have recourse to protection under the law, to equal protection against discrimination of his or her fundamental human rights, and to justice in seeking juridical remedies under the law. Furthermore, in the event that the fundamental human rights of a person are violated, there remains the overarching right to justice. States are obligated to investigate those violations, take appropriate measures against the perpetrators, ensure that they are prosecuted, and furnish the victims with effective remedies.

   Such remedies for victims have not, in fact, often been attained. Human rights have been grossly violated, on massive scales, usually leaving as stark legacies the scars of profound suffering for victims and scabs of impunity for perpetrators. This realization points up the main purpose of this paper, namely, to examine the notion of allowing impunity for serious violators of fundamental human rights as opposed to the obligation of obtaining effective remedies for victims as affirmed under Article 8 of the Universal Declaration. To address this theme, Part II section briefly treats the scope of impunity, as it appraises the contemporary system of international criminal law that prohibits impunity for human rights violations and supplies the legal basis for governments to comply with and enforce the obligation for juridical redress in Article 8 of the Universal Declaration. Part III deals with the nature of impunity, specifically by exploring the rationales concerning why governments do so little in prosecuting and punishing persons who have committed the most horrendous of crimes. The availability under national and international law of various accountability mechanisms for bringing alleged perpetrators to justice is treated in Part IV, as is how the need for justice squares with the need for national reconciliation. Part V appraises the prospects for obtaining Article 8 effective remedies through competent tribunals (inclusive of international courts), as guided by principles designed to ensure restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, and the final section proffers some conclusions for reflective consideration.

2. THE SCOPE OF IMPUNITY

   In the last half century, violent internal conflicts and tyrannical regimes have victimized millions of people throughout the world.(7) One authoritative report estimates that from World War II through 1996, at least 220 non-international conflicts involving civil war or oppressive regimes may have killed as many as 86 million people.(8) That victimization has included the most serious violations of fundamental human rights -- genocide, crimes against humanity, non-juridical executions, torture, arbitrary arrests and unlawful detentions.

   The scope of these high crimes is monstrous indeed. Yet, there have been relatively few prosecutions and only scarce accountability, either nationally or internationally for these grave violations of human rights and the resultant pervasive suffering. In fact, only a handful of remedies for these massive human rights violations have been attempted, and these have come as piecemeal and ad hoc offerings mainly during the past decade.(9) Two international investigatory commissions(10) and two special tribunals were respectively established for the former Yugoslavia(11) and Rwanda.(12) An international truth commission was held for El Salvador, although it failed to produce any prosecutions.(13) Two national prosecution programs were undertaken following the civil conflicts in Ethiopia(14) and Rwanda.(15) Certain national prosecutions were undertaken in Argentina,(16) and a national inquiry commission was set up in Chile.(17) In South Africa, a special body known as the Truth and Reconciliation Commission was established, which may yet produce some prosecutions.(18) Finally, some East and Central European countries adopted special "lustration" laws to preclude select people in the former communist regimes from holding public office, or participating in politics.(19) Ideally, impunity for these most heinous of acts -- war crimes, genocide and crimes against humanity -- should not be tolerated under any circumstances. In an ideal world, governments would adopt international agreements in which they pledge not to use impunity from prosecution by international tribunals as a bargaining chip in negotiations to facilitate a transfer of power from one government to a successor regime. But, we do not live in an ideal world. Political considerations are inevitable -- indeed, they are inescapable -- and will affect the international response to high crimes involving human rights violations.

   The rather modest efforts at fact-finding, prosecution and punishment hardly measure up to the massive human rights victimization that has occurred since World War II. Indeed, the vast extent of human rights deprivations that has taken so many millions of lives profoundly violates the inherent dignity and the equal and inalienable rights of persons affirmed for protection in the Universal Declaration of Human Rights.(20) No less egregious, though, is that nearly all the persons who perpetrated these gross violations of human rights have gone unpunished. This situation personifies the pervasive practice of impunity, of letting the guilty get away with murder, literally, scot-free.

3. THE NATURE OF IMPUNITY

   One authoritative United Nations rapporteur has defined impunity as "the impossibility, de jure or de facto, of bringing the perpetrators of human rights violations to account -- whether in criminal, civil, administrative or disciplinary proceedings -- since they are not subject to any inquiry that might lead to them being accused, arrested, tried and if found guilty, convicted."(21) Impunity, then, means exemption or freedom from punishment and connotes the lack of effective remedies for victims of crimes. Within the context of human rights law, impunity implies the lack of or failure to apply remedies for victims of human rights violations.(22)

   In the grand scheme of things, one might be tempted to ask, "So what? Why should the international community care about impunity and its relevance for the human rights situation in a particular state? Why should that situation involving the internal affairs of a some state be a grave concern of other peoples, in other states?" The answers to these queries are bound up in the kinds of crimes and the degree of violations that escape prosecution. Usually these acts are the vilest of human rights deprivations. They include violations of the right to life, i.e., extralegal executions, "disappearances," and massacres; violations of personal integrity, including torture and other physical injuries; and, unlawful restrictions on personal liberty, such as arbitrary detention, illicit search and seizure, and unwarranted arrest.

   In short, these are acts that violate the principles and protections most sacred to the Universal Declaration of Human Rights. No less repugnant is that the perpetrators of these depredations often go unpunished. If contemporary international society is to be governed by the rule of law, rather than by the savagery of men, those who perpetrate these gross violations of human rights must be held personally accountable for their unlawful acts. Article 8 of the Universal Declaration mandates this action, and subsequent international instruments of modern human rights law have codified the demand alleged offenders be prosecuted.

4. THE LEGAL FRAMEWORK FOR ACCOUNTABILITY

   The corpus of international law that has evolved since 1945 clearly imposes obligations upon government parties to investigate and prosecute suspected violators of humanitarian law (i.e., the laws of war) and other high human rights crimes (including genocide, torture, and crimes against humanity). In this way, these international treaty instruments establish a legal framework designed to combat impunity, as they...