Rethinking amnesty.

• Author: Sterio, Milena

1. INTRODUCTION

   "Impunity for international crimes and for systematic and widespread violations of fundamental human rights is a betrayal of our human solidarity with the victims of conflicts to whom we owe a duty of justice, remembrance, and compensation." (1)

   Numerous political changes have occurred in the past twenty years. Repressive dictatorships have been replaced by democratic governments in many countries. A significant component of these transitions has been acknowledging and reconciling the human rights abuses committed by the previous regime. In an attempt to achieve closure to the past conflict, several of these countries have passed amnesty laws covering members of the former regimes. In some cases, the amnesty provision was even endorsed by the United Nations as an effort to restore peace and ensure a successful democratic transition. (2) However, the attainment of peace does not in each single instance correspond to the pursuit of justice. Ideals of peace should remain subject to the international norms relating to threshold human rights standards. Thus, scholars have suggested that granting amnesty to those who commit serious violations of international humanitarian or human rights law is incompatible with the purposes and objectives of world order. (3) Prosecuting the alleged offenders has become an affirmative duty and a necessary step toward the achievement of justice. Accordingly, states have an international obligation to provide for individual accountability mechanisms in order to hold human rights violators responsible for the atrocities committed. (4)

   This Article will focus on the issue of accountability under the existing international law and will address the following question: Is there a duty to prosecute perpetrators of human rights abuses? Furthermore, if there is such a duty, what are its precise contours, its reach and its limits? Can amnesty laws and truth commissions ever be legal despite the evolving body of human rights law that seems to dictate the absolute assurance of those rights? Part I of this Article will examine the existing accountability mechanisms, while evaluating their respective strengths and weaknesses. Part II will focus on the existing state practice regarding amnesty laws in the context of two different political and geographic paradigms, Latin America and South Africa. Part III will study the international documents and customs imposing legal obligations on states to provide for effective accountability measures. Finally, Part IV will seek to define particular circumstances under which amnesty provisions and truth commissions do or do not fulfill the global mandates of justice as it relates to individual responsibility. Do amnesty laws provide for de facto impunity, or do they represent effective methods of achieving a legitimate form of accountability while preserving internal peace and stability?

2. EXISTING ACCOUNTABILITY MECHANISMS

   The theoretical conclusion that a particular individual should be held accountable for his or her violations of threshold human rights norms is merely the first step in the entire process of bringing about justice. Once we reach the conclusion that justice can only be served by imposing individual responsibility on the alleged offender, the question of "how?" immediately springs to mind. Under the current international regime, three different accountability mechanisms exist. (5) First, national courts provide a forum for the prosecution of such offenders in cases where the offender or the crimes committed are somehow linked to the particular country. (6) National courts also provide a forum when a country has implemented domestic legislation incorporating the principle of universal jurisdiction. (7) Second, international tribunals represent another type of forum for the prosecution of human rights violations. These include the ad hoc bodies, such as the International Tribunals for the former Yugoslavia and for Rwanda, the Special Court for Sierra Leone, as well as the International Criminal Court and similar regional fora, namely the European Court of Human Rights and the Inter-American Court. (8) Third, non-legal sanctions, most often in the form of truth commissions and amnesties, seek to redress past crimes by shifting the focus of accountability from its penal function toward reconciliation and an all-encompassing "coming to terms with the past" solution. The three mechanisms are not mutually exclusive; in fact, a successful interplay of the different fora could represent the most desirable solution in some cases. The following sections evaluate the strengths and the weaknesses of each particular accountability measure as the necessary procedural framework in the pursuit of justice.

   1. National Courts

      Prosecution of human rights offenders before domestic tribunals can serve important political, legal, and societal functions. First, such trials can foster the political legitimacy of the new regime from both international and national perspectives. (9) That is, the successor government projects to the outside world its willingness to abide by the existing human rights standards and reassures the global community that there will be no further violations. (10) Thus, the new leaders establish themselves as the "good guys" by choosing to redress past offenses. Furthermore, the successor regime proves to its own citizens the restored respect of human rights that had been lacking in that particular country. The new government thereby detaches itself from the previous "offending" regime and enhances its own credibility and trustworthiness in the eyes of its subjects. (11) Second, national prosecutions of human rights violators serve to rebuild the local judiciary and criminal justice system, thereby accomplishing a significant legal function. These prosecutions establish local courts as credible and fair fora and enhance the respect for the entire transition process of the particular country. (12) Third, domestic prosecutions serve a societal goal by bridging the gap between the violent, precarious past and the hopeful future. National courts can render verdicts of more "symbolic force." (13) These verdicts signify not only the culpability of an individual offender, but furthermore inculpate the entire previous regime: its practices, standards, and procedures. The new government accomplishes an enormous task through a national prosecution: it acknowledges the wrong from the past; it establishes respect for the present; and it promises hope for the future.

      From a pragmatic point of view, national prosecution may represent the best solution in a particular case. However, where the transition process had been tenuous and where the current situation is still unstable, an international proceeding insensitive to the "nuances of local culture" could result in more direct harm to the country. (14) International tribunals may not be willing or capable to prosecute all of the accountable individuals, thereby failing to produce "complete" justice from both the moral and the legal point of view. (15) Lastly, an international judicial organ may not even exist which is available to prosecute particular offenders. (16) Thus, domestic tribunals represent not only a valuable resource in the pursuit of international justice, but often the only legal mechanism providing for accountability.

      However, prosecutions before domestic tribunals can fall short of fulfilling the goals of justice. Irregularity of procedure, political pressures, and societal strife too often color the contours of domestic criminal proceedings, consequently undermining the attempt to define individual accountability. (17) First, domestic trials may fail to meet international fairness standards, including the right to counsel, the introduction and examination of evidence and witnesses, and the transparency of procedures. Witnesses may be unavailable due to the precarious political situation in the region; judges may be biased because of political influences or corruption, and lawyers may be uninterested and incompetent. Second, national courts may be severely limited in their jurisdictional reach. In most cases, domestic legislation only provides for accountability for persons somehow linked to the country. Statutes implementing universal jurisdiction are rare, as most states are hesitant to implement them due to concerns of comity and state sovereignty. (18) Third, the political situation of the country may dictate certain results. The current regime, fearful of being incriminated itself, could prevent access to documents and relevant evidence. Conversely, the regime in power could seek to benefit from the trial by demonstrating to the people its own willingness to be different from the past rulers. Such a government could impose the desired outcome of guilt and severe punishment on the alleged offender while ignoring standards of fair trials and due process rights. (19) Finally, a domestic prosecution could deepen an already existing ethnic or societal gap by allocating the blame for previous offenses on a particular group. The entire process could thus be viewed "as a collective mea culpa of sorts, a potent acknowledgment and repudiation of such sordid crime committed by one's compatriots." (20) The prosecutions in such a scenario become a means of prolonging the conflict rather than a mechanism of justice and reconciliation. Therefore, criminal proceedings in domestic fora can, in certain situations, worsen the political situation of the country and further obscure the pursuit of justice.

   2. International Tribunals

      The advantage of international prosecutions for violations of human rights lies in the obvious fact that such processes are international. A global forum can therefore "convey a clear message that the international community will not tolerate such atrocities, hopefully deterring future carnage of that sort both in the country in question and...