Abstract
This chapter provides a legal framework for countries in transition after mass atrocities and widespread human rights violations. It depicts the obligations under international law of the Rwandan state in the aftermath of the genocide relevant under the point of view of transitional justice . I firstly stress the constitutional implications of transitional justice processes. Then the scope of the individual right to reparation for victims of international crimes, the principle of duty to prosecute gross human rights violations and the emerging right to the truth under international law are analysed. The legal framework provided is used to highlight what are the rights of the victims of the Rwandan genocide and to what extent Rwandan prosecution policies were in harmony with international standards.
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Notes
- 1.
On this point, see Clark 2008, pp. 191–205.
- 2.
Even if not as much debated as the ad personam conditional amnesties granted by the Amnesty Committee of the Truth and Reconciliation Commission, two amnesties were passed before the TRC was created, respectively through the Indemnity Act 35/1990 and the Further Indemnity Act 151/1992. While the first, which fell within the ‘removal of obstacles phase’ and was aimed at allowing the repatriation of many exiled political anti-apartheid leaders, was granted under strict conditions (public investigations, full confession by the applicant, publication of the applicants’ names and description of the offences committed), the second was granted secretly and without any investigation and consequently amounted to a blanket amnesty. Lollini 2005, pp. 82–83.
- 3.
See Biscaretti di Ruffia 1988, p. 638.
- 4.
On this point see Romano 1990, pp. 133–201.
- 5.
I translate the Italian term ‘agiuridici’ with the English word ‘non-juridical’ due to the lack in English of a corresponding term.
- 6.
I translate the Italian term ‘antigiuridico’ into English by way of ‘anti-juridical’.
- 7.
See De Vergottini 2007.
- 8.
See Lollini 2005, pp. 1–66.
- 9.
For a detailed account of the constitutional transitions in the aftermath of the decolonization, see De Vergottini 1998.
- 10.
Mortati 1940.
- 11.
The South African constitution-making process in fact was marked by a fragmentation and co-sharing of the constitutional power among a plurality of subjects at several stages. In this regard scholars have underscored the crucial role that constitutional facts formally occurring outside of the strictly juridical sphere play in the constitution-making process. On this point Lollini 2005, introduction by Roberto Toniatti, who defines the material constitution as ‘extra-juridical factor of substantial validity of the primary legal source’, translation by the author from Italian ‘fattore extragiuridico di validitá sostanziale della fonte normativa suprema’.
- 12.
The Postamble of the 1993 South African Interim Constitution states: ‘The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 Oct 1990 and before 6 Dec 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. With this Constitution and these commitments, we, the people of South Africa, open a new chapter in the history of our country’.
- 13.
See Lollini 2005.
- 14.
These conditions were: (1) Political nature of the crime committed; (2) Applicant’s full disclosure of all relevant facts.
- 15.
Lollini 2005.
- 16.
Article 20 of the German constitution in fact states that: (1) Die Bundesrepublik Deutschland ist ein demokratischer und sozialer Bundesstaat. (2) Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahlen und Abstimmungen und durch besondere Organe der Gesetzgebung, der vollziehenden Gewalt und der Rechtsprechung ausgeübt. (3) Die Gesetzgebung ist an die verfassungsmäßige Ordnung, die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden. (4) Gegen jeden, der es unternimmt, diese Ordnung zu beseitigen, haben alle Deutschen das Recht zum Widerstand, wenn andere Abhilfe nicht möglich ist.
- 17.
It affirms that the re-establishment of the Italian fascist party is forbidden (‘E’ vietata la ricostituzione, sotto qualsiasi forma, del disciolto partito fascista)’.
- 18.
Teitel 2011, p. 57.
- 19.
Sajó 1999, p. 3.
- 20.
Halmai 2017, p. 7.
- 21.
See Lollini 2005.
- 22.
See Sullo 2016.
- 23.
Cody et al. 2015.
- 24.
Universal Declaration of Human Rights, proclaimed by United Nations General Assembly in Paris, on 10 December 1948.
- 25.
International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A of 16 December 1966.
- 26.
Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 44/25 of 20 November 1989.
- 27.
African Charter on Human and Peoples’ Rights, adopted 27 June 1981.
- 28.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984.
- 29.
Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, adopted at the International Meeting on Women’s and Girls’ Right to a Remedy and Reparation, held in Nairobi from 19 to 21 March 2007.
- 30.
On this point, see RIGHT TO REPARATION FOR SURVIVORS RECOMMENDATIONS FOR REPARATION FOR SURVIVORS OF THE 1994 GENOCIDE AGAINST TUTSI DISCUSSION PAPER submitted to the Rwandan Government by the organisations IBUKA, AVEGA, AERG, GAERG, AOCM, Duhozanye, Duharanire Kubaho, Barakabaho, the Survivors Fund (SURF) and REDRESS, October 2012.
- 31.
See Sullo 2014.
- 32.
See Sullo 2017.
- 33.
See Bornkamm 2012, pp. 119–125.
- 34.
See Judgment of 13 September 1928, Chorzow Factory Case (Merits), P.C.I.J. Reports, Series A, N 17, p. 47.
- 35.
See Shelton 2002, pp. 833 and ff., at p. 836.
- 36.
Judgment of 13 September 1928, Chorzow Factory Case (Merits), P.C.I.J. Reports, Series A, N 17, p. 29.
- 37.
Judgment of 13 September 1928, Chorzow Factory Case (Merits), P.C.I.J. Reports, Series A, N 17, p. 47.
- 38.
See Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001).
- 39.
See Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, adopted in The Hague, 18 October 1907, Article 3: ‘A belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces’.
- 40.
See Additional Protocol I to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, Article 91. Responsibility: ‘A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces’.
- 41.
See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, para 594.
- 42.
See Article 8 UDHR: ‘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’.
- 43.
See para 3, Article 2 ICCPR: ‘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; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted’.
- 44.
International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification by United Nations General Assembly resolution 2106 of 21 December 1965, Article 6: ‘States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination’.
- 45.
Article 14 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment affirms: 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law’.
- 46.
Article 39 CRC states that ‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child’.
- 47.
Geneva Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 68.
- 48.
ICRC, Customary IHL Database, Chapter 42, rule 50, at www.icrc.org. On this point Redress, Justice for Victims: the ICC’s Reparations Mandate, London, 2011, p. 8: ‘An array of State practice is indicative of the emerging norm status. For instance, the Conference on Jewish Material Claims Against Germany led to the compensation by Germany for injuries inflicted upon Jewish victims of the Holocaust, including serious violations of international humanitarian law. These include the establishment of a number of Funds such as the Hardship Fund and the German Foundation “Remembrance, Responsibility and Future”. Practice identified by the ICRC includes UN General Assembly resolutions on the former Yugoslavia , wherein the Assembly affirmed “the right of victims of ‘ethnic cleansing’ to receive just reparation for their losses” urging parties to the conflict “to fulfil their agreements to this end”.
- 49.
Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Adopted on 29 March 2004 (2187th meeting), para 16.
- 50.
Bornkamm 2012, p. 121. See also Tomuschat 2002, p. 168: ‘The appropriateness of this approach is rather doubtful. In English, the word “remedy” has a twofold meaning. On the one hand it connotes a legal action which can be brought before a judicial or other body entitled to settle the dispute concerned; or it could mean a measure designed to make good for damages caused. Since in the French version of the Covenant the word recours is used, and in the Spanish version the word recurso, one is inclined to conclude that the former is the correct meaning’.
- 51.
See Bornkamm 2012, p. 120: ‘In fact, a provision that expressly lays down a comprehensive right to reparation for the violation of individual rights is nowhere to be found in international human rights law’.
- 52.
See Article 41 ECHR (‘If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party’) and Article 63(1)of the Inter-American Convention (If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied, and that fair compensation be paid to the injured party).
- 53.
See Rubio-Marín and Sandoval 2011.
- 54.
See Union interafricaine des droits de l’Homme et. A. v. Angola, Decision of 11 November 1997 (no 159/96) and Malawi Africa Association et al. v. Mauritania, Decision of 111 May 200 (nos. 54/91-61/91-96/93-98/93-164/97_196/97-210/98). On this point, see also Conor McCarthy, op. cit., p. 257.
- 55.
See Altwicker-Hàmori et al. 2015.
- 56.
See Dwertmann 2010, p 19. and ff.
- 57.
See Tomuschat 2005, at p. 582 referring to BGH, Decision of 26 June 2003, I1 ZR 245/98, printed in 42 International Legal Materials (2003) 1030–1055, at 1037.
- 58.
Ibid., p. 585. Interestingly, Tomuschat finds in the drafting history of the Basic Principles evidence that ‘states are reluctant to acknowledge a fully-fledged right of individual victims to obtain compensation for the harmed suffered: ‘although in that Part the Bassiouni text reads “a State shall provide reparation to victims for its acts or omissions constituting violations of international human rights and humanitarian law norms”, the current text contains the following formulation: ‘In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation’ (emphasis added).
- 59.
See Bornkamm 2012, pp. 124–125.
- 60.
See Bornkamm 2012, p. 124, footnote 33.
- 61.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by United nations general Assembly resolution 40/34 of 29 November 1985.
- 62.
In the words of the drafters of the Basic Principles ‘Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property’.
- 63.
According to the Bassiouni-Van Boven Principles ‘Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services’.
- 64.
See for instance Inter-American Court of Human Rights, Case of Tibi v. Ecuador, Judgment of September 07, 2004; Case of Maritza Urrutia v. Guatemala, Judgement of 27 November 2003; Case of Mirna Mack Chang v. Guatemala, Judgement of 25 November 2003.
- 65.
See Article 39 of the CRC: ‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child’.
- 66.
See Article 14 CAT.
- 67.
Inter-American Court of Human Rights, Case of the Plan de Sánchez Massacre v. Guatemala, Judgement of 9 November 2004, (Reparations) para 110.
- 68.
See Basic Principles, Principle 22.
- 69.
See Redress, Justice for Victims: the ICC’s Reparations Mandate, London, 2011, p. 13.
- 70.
As to these measures, the issue arises whether a tribunal imposing guarantees of non-repetition on a state is respecting the principles of separation of powers or is de facto holder of legislative power.
- 71.
It is worth nothing that the older international criminal tribunals, Nuremberg and Tokyo, did not provide for any procedural rights for victims either. On this point, see van Boven 1999, pp. 77–89.
- 72.
Even though victims are not allowed to participate in the proceedings before the two UN ad hoc Tribunals Anne-Marie de Brouwer and Marc Groenhuijsen identifiy, ‘three situations of ‘victim participation’ before the Tribunals deserve to be mentioned: (1) victims ‘participating’ in the trial proceedings through victim impact statements submitted by the Prosecutor to the Chamber; victims ‘participating’ in the trial proceedings through amicus curiae intervention; and (3) victim ‘participation’ by addressing the Prosecutor directly through, for instance, letter writing. These forms of ‘victim participation’ are, however, very much dependent on the goodwill of others; the victims themselves have no enforceable right to victim participation’. See de Brouwer and Groenhuijsen 2011. See further de Brouwer 2005, pp. 284–301.
- 73.
See Article 24(3) of the ICTY Statute and Article 23(3) ICTR statute: ‘In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners’.
- 74.
On the Lubanga Case, see Sullo 2014.
- 75.
The ICC Trial Chamber in Lubanga has established that ‘Reparations proceedings, and reparations orders and programmes in favour of child soldiers, should guarantee the development of the victims’ personalities, talents and abilities to the fullest possible extent and, more broadly, they should ensure the development of respect for human rights and fundamental freedoms. For each child, the measures should aim at developing respect for their parents, cultural identity and language. Former child soldiers should be helped to live responsibly in a free society, recognising the need for a spirit of understanding, peace and tolerance, showing respect for equality between the sexes and valuing friendship between all peoples and groups’ (Reparation decision, § 213).
- 76.
Vienna Convention on the Law of Treaties, adopted on 22 May 1969 and opened for signature on 23 May 1969 by the United Nations Conference on the Law of Treaties.
- 77.
See Kritz 1995, p. 346, quoting Tina Rosenberg, in Boraine et al. 1994, p. 66: ‘Many governments and some individuals have made the call that to leave the past alone is the best way to avoid upsetting a delicate process of transition or to avoid the return to past dictatorship and reopening the victims’ old wounds. The attitude is that there is a dragon living on the patio and we had better not provoke it’. On the current scope and implications of the duty to prosecute in international law see Olson 2006, pp. 275–294; Orentlicher 1991; Orentlicher D., ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, The International Journal of Transitional Justice, Vol. 1, 2007, pp. 10–22; A. Cassese, International Criminal Law, Oxford University Press, Oxford, UK, 2003, pp. 312–316.
- 78.
See Olson 2006, pp. 275–294.
- 79.
On this point, see Ignatieff 1997, p. 184: ‘If trials assist the process of uncovering the truth, it is doubtful if they assist the process of reconciliation. The purgative function of justice tends to operate on the victims’ side only. While the victims may feel justice has been done, the community from which the perpetrators come may feel that they have been made scapegoats’.
- 80.
On this point, see Azanian People’s Organization (AZAPO) and Others v. President of the Republic of South Africa, 1996 (4) SA 671, pp. 684–686.
- 81.
See Alessi 2002, introduction.
- 82.
On this point, see Article 112 of the Italian Constitution: ‘Il pubblico ministero ha l’obbligo di esercitare l’azione penale’.
- 83.
According to the Preamble of the Rome Statute the states parties ‘affirm that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’, and consequently are ‘determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.
- 84.
Article 53 of the Rome Statute affirms: 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under Article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
- 85.
On amnesties in international law see Della Morte 2011.
- 86.
On this point, see OHCHR, Rule-of-Law Tools for Post-Conflict States, Amnesties, HR/PUB/09/1 (2009), p. 41.
- 87.
In a broad study on amnesties Louise Mallinder concluded that ‘Perhaps the most significant period in the relationship between international crimes and amnesties is after the UN changed its approach to amnesty laws with the signing of the Lomé Accord on 7 July 1999. Between this date and December 2007, 34 amnesty laws have excluded some form of international crimes, which has inspired human rights activists to point to a growing trend to prohibit impunity for these crimes. This research has found, however, that during the same period, 28 amnesty laws have granted immunity to perpetrators of international crimes, and that consequently, it is too early to suggest that an international custom is developing’. On this point, see Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, Hart Publishing, Oxford, UK, 2008. For a contrary opinion affirming that a customary norm establishing the duty to prosecute human rights violation has emerged before 1990 see Bornkamm, op cit., p. 96.
- 88.
On this point, see Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, Yale Journal of International Law, 1991, in particular p. 2541, footnote N. 8: ‘Key sources of a duty to prosecute human rights crimes include conventions that do not explicitly require States Parties to punish violations, but which have authoritatively been interpreted to do so. Looking only at the text of the conventions, many have assumed that the treaties have no bearing on the question of punishment’.
- 89.
Ibid., pp. 2551–2552.
- 90.
Ibid., 2552.
- 91.
Ibid., 2551.
- 92.
Ibid.: ‘International human rights law traditionally has allowed governments substantial discretion to determine the means they will use to ensure protected rights, while international penal law has often focused on the power—not duty—of governments to punish violations committed outside their territorial jurisdiction. When the law has required states to punish offenses committed in their territory, the duty traditionally has applied principally to crimes committed against foreign nationals’.
- 93.
The adherents’ duty to punish individuals for crimes committed on their territory is also included in the 1930 Convention concerning Forced Labour, while the 1999 International Convention for the Suppression of the Financing of Terrorism demands states parties to punish or extradite individuals for crimes committed on their territory or by their nationals. The 1979 International Convention against the Taking of Hostages and the 1994 Inter-American Convention on the Forced Disappearance of Persons impose on states a duty aut dedere aut judicare without regard for the locus commissi delicti. The 1956 Slavery Convention and the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid require the prosecution of the offenders for crimes committed anywhere excluding the possibility to extradite. On this point see Olson 2006, p. 281, footnote N. 33.
- 94.
Orentlicher 1991, pp. 2562–2563.
- 95.
See International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951.
- 96.
See Restatement (Third) of Foreign Relations Law of the United States: ‘A state violates customary law if it practices or encourages genocide, fails to make genocide a crime or to punish persons guilty of it, or otherwise condones genocide. Parties to the Genocide Convention are bound also by the provisions requiring states to punish persons guilty of conspiracy, direct and public incitement, or attempt to commit genocide, or complicity in genocide, and to extradite persons accused of genocide’.
- 97.
According to Article 1 of the CAT, torture is defined as: ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’.
- 98.
See Orentlicher 1991, p. 2567.
- 99.
On this point, see Article 6 of the International Convention on Enforced Disappearances.
- 100.
According to Buergenthal the duty to ensure rights included in the International Covenant ‘implies an affirmative obligation by the state to take whatever measures are necessary to enable individuals to enjoy or exercise the rights guaranteed in the Covenant, including the removal of governmental and possibly also some private obstacles to the enjoyment of these rights’. See Buergenthal 1981.
- 101.
See Article 25 of the American Convention on Human Rights.
- 102.
See Article 13 of the European Convention for the protection of Human Rights and Fundamental Freedoms.
- 103.
See Article 1 of the Banjul Charter.
- 104.
See Articles 2 and 7(1)(a) of the Banjul Charter.
- 105.
The Delegates’ concerns are explained by Orentlicher 1991, p. 2570: ‘First, the Commission sought to ensure the broadest possible range of remedies for violations of human rights, and eschewed language implying that judicial remedies were the exclusive form contemplated by the Covenant. Second, delegates sought to avoid language that would give rise to the same consequences regardless of the seriousness of a state’s infraction. More generally, Article 2(3) was designed principally to ensure that states provided non-criminal remedies, such as restitution or an order to desist wrongful conduct, and delegates may have viewed the Philippine proposal to be out of place in such an article’.
- 106.
Ibid., p. 2571. The author adds also that ‘The text could, moreover, reasonably be interpreted to require States Parties to ensure at least some rights through use of criminal sanctions’.
- 107.
See UN Human Rights Committee General Comment No. 20, Prohibition of torture or other cruel, inhuman or degrading treatment or punishment (Article 7) adopted by the Human Rights Committee at the Forty-fourth Session, A/44/40, 10 March 1992 available at: http://www.refworld.org/docid/453883fb0.html. Last accessed 23 October 2016.
- 108.
Ibid., p. 10. Article 10 of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment establishes that criminal proceedings should be set up against individuals suspected of committing torture, and that, ‘if an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings’.
- 109.
Ibid., p. 10.
- 110.
On this point, see Velasquez Rodriguez Case, Inter-American Court of Human Rights (ser. C) No. 4, para 174 (1988) (judgment).
- 111.
See Velasquez Rodriguez v. Honduras, Judgment of July 29, 1988, Inter American Court of Human Rights (Ser. C) No. 4 (1988) (judgement), para 166.
- 112.
See speech by Ambassador Oliver H. Jackman before the First Committee of the XIX Regular Meeting of the General Assembly to Present the Annual Report of the IACHR, Nov. 1989.
- 113.
On this point, see Protocol I, Articles 11(4), 85(3), and 85(4).
- 114.
See Articles 50, 51, of the Geneva Convention I and II and 130 and 147 respectively of the four Geneva Conventions.
- 115.
On this point, see Olson 2006, p. 280.
- 116.
These include: The 1954 Hague Convention for the Protection of Cultural Property; the 1972 Biological Weapons Convention; the 1976 Environmental Modification Techniques Convention; the Amended Protocol II to the 1980 Conventional Weapons Convention; the 1993 Chemical Weapons Convention; the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. See Olson 2006, p. 280, in particular footnote N. 26.
- 117.
On this point, see Articles 49(3), 50(3), 129(3) and 146(3) of the four Geneva Conventions stating that ‘Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article’.
- 118.
See Orentlicher 1991, p. 2576.
- 119.
See Orentlicher 1991, pp. 2582–2583
- 120.
On this point, see Commission on Human Rights. Res. 1988/51 and Commission on Human Rights. Res. 1988/50.
- 121.
See Orentlicher 1991, p. 2584. See also for instance Report prepared by the Special Rapporteur on the situation of human rights in Chile in accordance with para 11 of the Commission on Human Rights resolution 1983/38 of 8 March 1983, U.N. Doc. A/38/385, para 341 (1983) (impunity enjoyed by Chilean security organs ‘is the cause, and an undoubted encouragement in the commission, of multiple violations of fundamental rights’); Final report on the situation of human rights in El Salvador submitted to the Commission on Human Rights by Mr. Jose Antonio Pastor Ridruejo in fulfilment of the mandate conferred under Commission resolution 1986/39, 43 U.N. ESCOR Comm’n on Hum. Rts. at 13, para 60, U.N. Doc. E/CN.4/1987/21 (failure of Salvadoran courts to render convictions that bear reasonable relationship to number of violations of right to life creates ‘climate of impunity’); Report of the Working Group on Enforced or Involuntary Disappearances, 45 U.N. ESCOR Comm’n on Hum. Rts. at 85, para 312, U.N. Doc. E/CN.4/1989/18 (impunity in the face of repeated disappearances ‘creates conditions conducive to the persistence of such practices’); Report of the Working Group on Enforced or Involuntary Disappearances, 47 U.N. ESCOR Comm’n on Hum. Rts. at 86, para 406 (‘impunity is perhaps the single most important factor contributing to the phenomenon of disappearance. Perpetrators of human rights violations … become all the more irresponsible if they are not held to account before a court of law’).
- 122.
Ibid., p. 2585.
- 123.
Ibid., p. 2600.
- 124.
Ibid., p. 2599.
- 125.
See the Velasquez Rodriguez vs. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, para 177, (1988) (judgment).
- 126.
Ibid.: ‘In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective’.
- 127.
See 1978 2 Y.B. INT’L L. COMM’N (pt. 1), at 75, para 33, U.N. Doc. A/CN.4/315 (1977): in the words of the Commission treaty duties ‘are likely to be interpreted in a manner which circumscribes them so as to exclude situations of both absolute and relative impossibility from the very scope of such duties’.
- 128.
Ibid., p. 133.
- 129.
On this point, see Orentlicher 1991, pp. 2601–2602.
- 130.
Ibid.
- 131.
On this point, see Orentlicher 1991, p. 2601: ‘While limitations on prosecutions may be compatible with states’ international obligations, a policy that exonerates large numbers of persons who committed atrocious crimes offends common standards of justice and diminishes respect for the law. The best means of accommodating competing values might be to combine a finite program of prosecutions with legislation establishing a statute of limitations governing further prosecutions. Such legislation would minimize the destabilizing effects of trials while affirming the rule of law’.
- 132.
On this point, see Della Morte 2014, pp. 427–440.
- 133.
On this point, see Orentlicher 1991, p. 2606. The Italian jurist Cesare Beccaria has underscored the danger underlying an abuse of pardon power in this way: ‘To show mankind, that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the flattering hope of impunity’. Jeremy Bentham highlights the link between pardon and lawfulness: ‘From pardon power unrestricted, comes impunity to delinquency in all shapes: from impunity to delinquency in all shapes, impunity to maleficence in all shapes: from impunity to maleficence in all shapes, dissolution of government: from dissolution of government, dissolution of political society. The harmful effects of pardons are compounded when they are granted in response to military demands, thereby undermining the authority of civilian institutions re-established by prosecutions’.
- 134.
Ibid., p. 2607.
- 135.
Ibid., p. 2611.
- 136.
Orentlicher 1991, p. 2612.
- 137.
Schabas, The Rwanda Case: Sometimes It’s Impossible, in M. Scherif Bassiouni (ed.) Post-Conflict Justice, Ardsley, NY, 2002, p. 518: ‘The Rwandan situation seems to crystallize one of the vexing dilemmas of post-conflict justice. Faced with international criminality on a massive scale, Rwanda appeared to be the sincerest in its commitment to the international law principles concerning punishment and impunity. Given the devastation of its justice systems following the conflict, however, as well as the underlying problems of poverty and underdevelopment, it was doomed to failure. This was like Yossarian’s famous “Catch 22”, transposed to the context of post-conflict justice (…) The major difference between the situation of Rwanda and that in other countries facing post-conflict justice issues, such as Sierra Leone, Cambodia, East Timor, and Kosovo, is in Rwanda’s professed determination to process all cases by judicial means. These are all countries that probably fit the mould of Article 17 of the Statute of the International Criminal Court, in that they are “unable genuinely” to bring all perpetrators to justice. In theory, at least, they are candidates for the attention of the Prosecutor of the International Criminal Court. The Rome Statute makes this conditional on “a total or substantial collapse or unavailability of its national judicial system” (an early draft used the word “partial” in place of “substantial”, as less demanding standard). Some may contend that the Rwanda’s noble but incomplete and imperfect efforts at criminal prosecution, coupled with the detention of tens of thousands under conditions incompatible with human rights norms, would not shelter Rwanda from the Rome Statute’s “unable genuinely” criterion. Nor would a promising alternative, the gacaca, which emerged half a dozen years after the events, and born of frustration with criminal prosecutions, satisfy them. Others will take the view that a future Prosecutor of the International Criminal Court would consider these measures in deciding that it would not be “in the interest of justice, taking into account all the circumstances” to proceed with prosecution, although the text of Article 53 of the Rome Statute suggests this provision is to be applied on a case by case basis, rather than with respect to a situation. Where the Prosecutor insists on proceeding, of course, the judges may still declare a case inadmissible where, despite genuine ability, it is not “of sufficient gravity to justify further action by the Court”. But as with the case of prosecutorial discretion under Article 53, it is anyone’s guess as to how the judges might rule on a case like Rwanda’s’.
- 138.
- 139.
- 140.
See Naqvi 2006, p. 256.
- 141.
See Naqvi 2006, p. 249: ‘These bodies progressively drew upon this right in order to uphold and vindicate other fundamental human rights, such as the right of access to justice and to an effective remedy and reparation. They also expanded the right to the truth beyond information about events related to missing or disappeared persons to include details of other serious violations of human rights and the context in which they occurred. Broadly speaking, the right to the truth, therefore, is closely linked at its inception to the notion of a victim of a serious human rights violation. Like procedural rights, it arises after the violation of another human right has taken place and would appear to be violated when particular information relating to the initial violation is not provided by the authorities, be it by the official disclosure of information, the emergence of such information from a trial or by other truth-seeking mechanisms’.
- 142.
See Naqvi 2006, p. 255.
- 143.
See Lyashkevich v. Belarus Communication No. 887/1999 * 3 April 2003 CCPR/C/77/D/887/1999, para 9.2. See also Naqvi 2006, pp. 256–7: ‘The HRC also found that in order to fulfil its obligation to provide an effective remedy, states party to the ICCPR should provide information about the violation or, in cases of death of a missing person, the location of the burial site. The right to know the truth has also been invoked in relation to protection of the family guaranteed in Article 23 of the ICCPR, as well as the right of the child to preserve his or her identity, including nationality, name and family relations, as contained in Article 8 of the Convention on the Rights of the Child of 1989 (CRC), the right of the child not to be separated from its parents as laid down in Article 9 thereof, and other provisions of that convention’.
- 144.
See Naqvi 2006, p. 257; see also Judgement of 25 May 1998, Kurt v. Turkey, Application No. 24276/94; Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94; and Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94.
- 145.
See Naqvi 2006, p. 257.
- 146.
On this point, see ‘Question of the impunity of perpetrators of human rights violations (civil and political)’, revised final report prepared by Mr. Joinet pursuant to subcommission decision 1996/119, See UN Sub-Commission on the Promotion and Protection of Human Rights 1997.
- 147.
On this point, see the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (UN Commission on Human Rights 2005).
- 148.
See the Joinet report, para 17.
- 149.
On this point, see Naqvi 2006, p. 273.
- 150.
General Comment on the Right to the Truth in Relation to Enforced Disappearances issued by the Working Group on Enforced or Involuntary Disappearances, 2010, p. 1, available at http://www.ohchr.org/EN/Issues/Disappearances/Pages/GeneralComments.aspx. Last accessed 2 February 2018.
- 151.
Ibid., p. 2.
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Sullo, P. (2018). A Framework for Post-Genocide Rwanda: Legal Imperatives Concerning Transitional Justice. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_3
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