In vindication of justiciable victims' rights to truth and justice for state-sponsored crimes.

AuthorAldana-Pindell, Raquel

ABSTRACT

In this Article, Professor Aldana-Pindell explores the norms establishing a state's responsibility to grant victims of human rights violations adequate rights in the criminal prosecution process as a remedy for their victimization. She argues that victim-focused prosecution norms comport and provide more effective means of promoting respect for human rights, in certain nations in democratic transition from mass atrocities. Moreover, she suggests that, as part of other justice reforms, states plagued with impunity should adopt criminal procedures granting surviving human rights victims greater standing in the prosecution process. Professor Aldana-Pindell then uses Guatemala to examine the factors that compel the need for reformed victim's rights in a country whose criminal justice system is wrought with incompetence and corruption.

TABLE OF CONTENTS I. INTRODUCTION II. DEVELOPMENTS IN INTERNATIONAL LAW ON VICTIMS' RIGHTS IN THE CRIMINAL PROCESS A. Prosecutions as an Effective Remedy For Victims of Violent Crimes 1. Caselaw Interpreting Comprehensive Human Rights Treaties a. The Human Rights Committee b. The Inter-American Court on Human Rights c. The European Court on Human Rights 2. Specialized Treaties or Declarations a. The Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims of Violations of international Human Rights and Humanitarian Law b. Other U.N. Human Rights Instruments B. Victims' Participatory Rights in the Criminal Process 1. The United Nations a. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power b. The Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court c. Other U.N. Human Rights Instruments 2. European Nations a. The Council of Europe and the Committee of Ministers b. The European Court on Human Rights c. The European Union III. WHY SURVIVING HUMAN RIGHTS VICTIMS' DEMAND PROSECUTIONS AS A REMEDY FOR STATE-SPONSORED CRIMES A. The Right to Truth 1. The Substantive Right to Truth 2. The Procedural Right to Truth B. The Right to Justice 1. Criminal Punishment for Accountability 2. Criminal Punishment for Retribution 3. Criminal Punishment for Equal Treatment IV. THE CASE FOR VICTIM-FOCUSED PROSECUTIONS A. Criminal Punishment to Purge the State of Human Rights Violators B. Criminal Punishment to Legitimate the State C. The Expressive Functions of Punishment 1. Criminal Punishment as Moral Educator 2. Criminal Punishment as Tamer of Anger V. GUATEMALA'S STORY OF IMPUNITY A. Guatemala's Cycle of Violence B. Impunity's Contribution to Guatemala's Violence 1. State Corruption 2. Toleration for Human Rights Violations 3. Vigilante Justice VI. CONCLUSION I. INTRODUCTION

The prominence of international human rights law emerged as nations encountered, at the end of World War II, one of the worst examples of what Kant deemed "radical evil." (1) Never before World War II had humanity confronted an authoritarian leader who espoused an explicit doctrine of racial superiority to enslave and exterminate millions of Jews, homosexuals, gypsies, and other religious and ethnic minorities. The advent of the Holocaust drove most nations to reconsider state sovereignty claims over the individual rights of its citizens. As more stories and pictures emerged of the horror of the Holocaust, it became morally impossible for the Allied nations to ignore what had transpired. The Allied nations responded by establishing the Nuremberg Tribunals to prosecute some of the individuals responsible for the atrocities in the hope that similar acts would not be repeated. As Justice Robert Jackson stated in his opening remarks for the prosecutions of Nuremberg,

The privilege of opening the first trial of history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate this being ignored, because it cannot survive their being repeated. (2) The Nuremberg Principles establishing the tribunals imposed individual criminal liability for grave international crimes and were later construed to require states to prosecute these crimes. (3) Since then, as a matter of general principle, the international human rights norm that states have a duty to prosecute certain grave crimes has progressively become settled law. The majority of specialized human rights treaties impose a state duty to prosecute such acts, whether or not the crime was committed in the state's territory. (4) Similarly, international case law interpreting comprehensive human rights treaties have read a similar duty to prosecute crimes against an individual's right to life and personal integrity, whether the crime was committed by a state agent or a private actor. (5) This duty to prosecute norm also applies to governments in transition from civil war or authoritarian regimes during which mass atrocities were conducted. (6)

In practice, however, the state response to state-sponsored mass atrocities post-World War II has not been faithful to the duty to prosecute norm. Instead, a glance back at Southern Europe's transition from dictatorships in the 1970s, Eastern Europe's transition from communism in the 1980s and 1990s, the severe human rights violations in Asia, the violent civil wars in emerging democracies in Africa, and the violent democratization process in Latin America has shown that prosecutions are rare and that inaction, amnesties, and pardons are the norm. (7) In some countries, the state's lack of political will to admit responsibility and impose accountability for its past human rights abuses has led to the adoption of general amnesty laws and dismissal of the findings of truth commissions. (8) In the instances where there has been some political will to admit institutional responsibility, some countries have nonetheless opted for non-prosecution alternatives, such as truth commissions or disciplinary sanctions, expressing concern that prosecutions could provoke further violence (9) or frustrate other goals of democratic and economic development. (10) When states have attempted prosecutions, these efforts have been halted or limited by other state factions (11) or have been hindered substantially by the weaknesses and corruption of the institutions charged with administering justice. (12) When states have adopted a strong rhetoric of prosecutions, the significant procedural irregularities that have characterized the process have significantly compromised their legitimacy and purpose. (13) Even in the two instances where the United Nations has stepped in to prosecute--Rwanda and Former Yugoslavia--prosecutions have necessarily been few and slow, and have not escaped criticism over bias, due process violations, and shortcomings in bringing reconciliation to the region or addressing victims' needs. (14)

The numerous failures to prosecute in countries where state-sponsored mass atrocities have occurred have led many to reconsider the viability of the duty to prosecute norm in these contexts and even some to challenge its validity. Those who have reassessed its viability have conceded that non-prosecution alternatives represent a legitimate compromise to prosecutions when establishing individual responsibility is impractical, when prosecutions cannot be conducted without violating defendants' fundamental rights, or when prosecutions would substantially impede transition to peace or to a democratic government. (15) Many in this group, however, still affirm the superiority of prosecutions and propose that at least the prosecution of certain particularly grave offenses against those in high command should remain an alternative, even if prosecutions must take place at a later time or be conducted by international tribunals or other nations. (16)

Those who question the validity of prosecutions, however, challenge the core reasons why international human rights law universally adopted the duty to prosecute norm as the most effective response to mass atrocities. The case for prosecutions in democracies in transition has largely turned on punishment as the new regimes' most powerful guarantor of non-repetition of similar human rights violations. (17) Prosecutions, for example, would advance the nation's democratic consolidation by increasing the legitimacy of the new regime and promoting respect for the rule of law. (18) Subsequently, the case for prosecution also focused on punishment as a tool for reconciliation. This argument, for example, emphasizes the importance of retributive justice as a form of healing for the victims' and the public's anger for the wrongs committed against them. (19)

Critics of the validity of these claims challenge the assumption that prosecutions can guarantee non-repetition or promote reconciliation. (20) For example, some have argued that prosecutions may indeed spark more hatred and lead to further fragmentation and violence, even when those in power favor prosecutions. (21) Others have questioned that prosecutions can restore the rule of law in society when these must be selective or conducted in violation of defendants' fundamental rights. (22) Others have emphasized that the adversarial nature of prosecutions, in contrast to truth commissions, necessarily compromises the comprehensive truth about the past (23) and provides little opportunity for victims to tell their stories or for perpetrators to seek forgiveness. (24) These factors, they argue, impede rather than aid the process of reconciliation. (25) These critics, therefore, conclude that non-prosecution alternatives are better suited to promote peace and reconciliation in nations in democratic transition from mass atrocities. (26)

Despite these criticisms, states have responded collectively or individually to states' domestic failure to prosecute by solidifying their commitment to the duty to prosecute norm. For...

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