Civil and political sanctions as an accountability mechanism for massive violations of human rights.

• Author: Nanda, Ved P.

1. INTRODUCTION

   Civil and political sanctions applied on an individual basis and with due process for the defendant serve an important function as one of the accountability mechanisms available to redress massive violations of human rights. I start from the premise that, as a matter of policy, there must be accountability and no political tradeoffs which result in the sacrifice of justice at the altar of perceived but illusory peace, for the dichotomy is false, as justice is a prerequisite for obtaining a peace that is to endure.

   The existing legal framework, notwithstanding several gaps and weaknesses, suffices to reach the jus cogens violations--war crimes, crimes against humanity, genocide and torture and other egregious and heinous human rights violations as well.(2) However, both national and international implementation and enforcement mechanisms are inadequate and ineffective, and several recommendations have been offered to remedy the situation.(3)

   Any discussion on the goals of the sanctioning process has to address the four pertinent perspectives--those of the victim, the defendant, the society which has gone through the trauma in question, and the world order. Based upon several perspectives, including those of the New Haven School,(4) Professor Michael Reisman has recently synthesized the "fundamental sanctioning goals for the protection, restoration, and improvement of public order" into seven specific goal programs--1) prevention of public order violations, 2) suspension of the occurring public order violations, 3) deterrence of potential public order violations, 4) a restoration of public order, 5) correction of the behavior that generates public order violations, 6) rehabilitation of victims and 7) reconstruction to remove conditions likely to generate public order violations.(5)

   The criminal sanctioning process, both national and international, the inquiry and truth commissions, and the mechanisms to provide compensation and reparation to the victims advance these goals of prevention, deterrence and restoration, among others, of public order. These processes also provide redress to victims and contribute toward their rehabilitation, healing and reconciliation, and the creation of a climate and culture which actively discourage such violations in the future.

2. HISTORICAL CONTEXT

   It is worth noting that the role of civil and political sanctions, that is, non-criminal sanctions, is not a new one for addressing war crimes and other egregious violations of human rights. After World War II, several European countries extensively used civil and political sanctions, in addition to criminal sanctions, against those who had collaborated with the Nazis and the fascists. To illustrate, in France, more than 11,000 alleged collaborators with the Vichy regime received some form of sanction for their wartime activities and nearly 1,000 politicians, 6,000 teachers and 500 diplomats were removed from office.(6) Judges in the occupied territories who had executed the Nazi plans enthusiastically were also purged from their positions both in the public and private sectors.(7) All 569 members of the National Parliament who had voted in favor of delegating constituent power to Marshal Petain on July 10, 1940, were purged from serving in any political office.(8)

   Italian authorities similarly dismissed nearly 2,000 government employees for their wartime activities.(9) However, these were temporary dismissals:

   Judicial applications of the purge decrees and a final amnesty adopted in February 1948 resulted in the fact that most of the 1,879 civil servants who had been dismissed ... and the 671 who had been compulsorily retired were reinstated. Similarly, the whole process of confiscating the illicit gains of fascist profiteers and of purging compromised business leaders came close to naught.(10) In Holland, several Dutch who had joined German-sponsored military and police organizations were deprived of their Dutch citizenship.(11) In Denmark several alleged collaborators lost political and civil rights in a separate proceeding following criminal prosecution.(12) And in Belgium, all those who, without being guilty, cannot be called innocent, will, on a simple notification of the public prosecutor, lose their vote, their right to engage in certain professions, and so on. Those who feel they have been unjustly penalized can appeal to the tribunals unless their cases have already been examined by the commissions. Those who are thus penalized will be able to request their rehabilitation and the recovery of their rights in ten years' time.(13)

   In Germany, attempts at denazification were made under Allied control by prosecution not only of leading war criminals but also of those who had enthusiastically supported the Nazi ideology. But these were only short-term purges and there was no long term ineligibility attached, as it has been observed that "most of the collaborationist elite, in administration, justice, education, the economy, remained in or reentered positions held under the Nazi...