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Atrocities and International Accountability: Beyond Transitional Justice

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United Nations University Press is the publishing arm of the United Nations University. UNU Press publishes scholarly and policy-oriented books and periodicals on the issues facing the United Nations and its peoples and member states, with particular emphasis upon international, regional and trans-boundary policies. The United Nations University was established as a subsidiary organ of the United Nations by General Assembly resolution 2951 (XXVII) of 11 December 1972. It functions as an international community of scholars engaged in research, postgraduate training and the dissemination of knowledge to address the pressing global problems of human survival, development and welfare that are the concern of the United Nations and its agencies. Its activities are devoted to advancing knowledge for human security and development and are focused on issues of peace and governance and environment and sustainable development. The Univer- sity operates through a worldwide network of research and training centres and programmes, and its planning and coordinating centre in Tokyo. Atrocities and international accountability Atrocities and international accountability: Beyond transitional justice Edited by Edel Hughes, William A. Schabas and Ramesh Thakur United Nations a University Press TOKYO u NEW YORK u PARIS 6 United Nations University, 2007 The views expressed in this publication are those of the authors and do not nec- essarily reflect the views of the United Nations University. United Nations University Press United Nations University, 53-70, Jingumae 5-chome, Shibuya-ku, Tokyo 150-8925, Japan Tel: þ81-3-3499-2811 Fax: þ81-3-3406-7345 E-mail: [email protected] general enquiries: [email protected] http://www.unu.edu United Nations University Office at the United Nations, New York 2 United Nations Plaza, Room DC2-2062, New York, NY 10017, USA Tel: þ1-212-963-6387 Fax: þ1-212-371-9454 E-mail: [email protected] United Nations University Press is the publishing division of the United Nations University. Cover design by Sese-Paul Design Cover photograph: UN Photo by Mathew Elavanalthoduka UN peacekeepers effect the arrest of former Liberian President Charles Taylor at Monrovia’s Roberts International Airport on his arrival from Nigeria. (29 March 2006) PrintedinIndia ISBN 978-92-808-1141-4 Library of Congress Cataloging-in-Publication Data Atrocities and international accountability : beyond transitional justice / edited by Edel Hughes, William A. Schabas and Ramesh Thakur. p. cm. Includes bibliographical references and index. ISBN 978-9280811414 (pbk.) 1. Crimes against humanity. 2. Criminal liability. 3. Atrocities. 4. Truth commissions. 5. Reconciliation—Political aspects. I. Hughes, Edel. II. Schabas, William, 1950– III. Thakur, Ramesh Chandra, 1948– K5301.A978 2007 345 0.0235—dc22 2007025786 Contents Tablesandfigures..................................................... vii Contributors........................................................... viii Acronyms.............................................................. xi 1 Introduction . ............................. 1 Edel Hughes, William A. Schabas and Ramesh Thakur 2 Howtocometotermswiththepast ............................. 6 Peter R. Baehr 3 Does power trump morality? Reconciliation or transitional justice? ............................................................. 23 Rama Mani 4 Transitional justice and conflict termination: Mozambique, Rwanda and South Africa assessed . ............................. 42 Helena Cobban 5 All the truth but only some justice? Dilemmas of dealing with thepastinnewdemocracies ...................................... 65 Jorge Heine vi CONTENTS 6 EastTimor’ssearchforjustice,reconciliationanddignity...... 81 Jeff Kingston 7 No substitute for sovereignty: Why international criminal justicehasa bleakfuture– anddeservesit...................... 98 Jeremy Rabkin 8 Dancing with the devil: Prosecuting West Africa’s warlords – currentlessonslearnedandchallenges .......................... 133 David M. Crane 9 The development of prosecutorial discretion in international criminalcourts .................................................... 142 Matthew Brubacher 10 Alternativestoprosecution:ThecaseofRwanda............... 159 Gerald Gahima 11 Independence and impartiality of the international judiciary: Somelessonslearned,andsomeignored ........................ 182 William A. Schabas 12 Impartialitydeficitandinternationalcriminaljudging .......... 208 Diane Marie Amann 13 The effect of amnesties before domestic and international tribunals: Morality, law and politics . ............................. 225 Leila Nadya Sadat 14 Trading justice for peace: The contemporary law and policy debate ............................................................. 246 Michael P. Scharf 15 Concludingremarks:Thequestionsthatstillremain............ 275 William A. Schabas and Ramesh Thakur Index .................................................................. 286 Tables and figures Tables 4.1 Basic country data at time of conflict termination, 1992– 1994 .............................................................. 45 4.2 Contentofthepeace ............................................ 48 4.3 Broad socio-political outcomes, as of 2004/05 . ........... 54 4.4 Per-casecostofdifferentpolicies............................... 60 Figure 11.1 Le Monde editorialcartoon ................................... 184 vii Contributors Diane Marie Amann: Professor of He is a member of the Committee Law at University of California, on Human Rights of the Davis. Professor Amann’s Netherlands Advisory Council on scholarship examines the interaction International Affairs. of national, regional and Matthew Brubacher: Associate international legal regimes in efforts Analyst with the Jurisdiction, to combat atrocity and cross-border Complementarity and Cooperation crime. Her recent works have Division with the Office of the focused on legal responses to US Prosecutor, International Criminal policies respecting executive Court. detention at Guanta´namo and elsewhere, on the use of foreign Helena Cobban: Writer and and international law in US internationally syndicated columnist constitutional decision-making and on global affairs. Ms. Cobban has on trials of deposed leaders in Iraq, contributed a regular column to the Serbia and West Africa. Christian Science Monitor since 1990 and is a Contributing Editor of Peter R. Baehr: Emeritus Professor of Boston Review, where her recent Human Rights at Utrecht University articles have included analysis on and Leiden University and former Lebanon’s Hezbollah, on Hamas in Professor of International Relations Palestine and on the July 2006 war at the University of Amsterdam. between Israel and Hezbollah. Professor Baehr is a former director of the Netherlands Institute of David M. Crane: Distinguished Human Rights and the Netherlands Professor of Practice at Syracuse School of Human Rights Research. University College of Law and a viii CONTRIBUTORS ix member of the faculty of the Jeff Kingston: Director of Asian Institute for National Security and Studies at Temple University Japan. Counterterrorism. Professor Crane A former Fulbright Fellow, Mr. was formerly Chief Prosecutor at Kingston’s areas of specialty include the Special Criminal Court for Indonesia, South-East Asian politics Sierra Leone and served over 30 and contemporary Japanese history. years in the federal government of He is the author of Japan’s Quiet the United States. Revolution: Politics, Economics and Society and Japan in Gerald Gahima: Judge at the War Transformation, 1952–2000,andalso Crimes Chamber of the Court of writes a regular column for the Bosnia-Herzegovina and Deputy Japan Times. Chief Justice of the Supreme Court of Rwanda. Mr. Gahima is a former Rama Mani: Executive Director of the Procurator General of Rwanda. International Centre for Ethnic As Procurator General he was Studies (ICES) in Colombo, Sri responsible for, among other things, Lanka. Dr Mani previously served the prosecution of genocide and as a faculty member at the Geneva other violations of international Centre for Security Policy. She humanitarian law arising from the is an established international 1994 genocide. Mr. Gahima is a practitioner and scholar, teaching member of the International and publishing on the areas of Association of Genocide Scholars justice and human rights, conflict and has written abundantly on the and peacebuilding, rule of law and crime. the security sector and the United Nations and terrorism. From Jorge Heine: CIGI Professor of JanuarytoDecember2002shewas Global Governance at Wilfrid the Senior Strategy Adviser to the Laurier University, and Centre for Humanitarian Dialogue Distinguished Fellow at the Centre in Geneva, addressing issues of for International Governance humanitarian policy and conflict Innovation in Waterloo, Ontario. A mediation. Vice-President of the International Jeremy Rabkin: Professor of Political Science Association Government at Cornell University. (IPSA), Professor Heine served Professor Rabkin is a member of previously as Ambassador of Chile the board of academic advisors to to India (2003–2007) and to South the Harvard Journal of Law and Africa (1994–1999) and as a Cabinet Public Policy and publishes widely Minister and Deputy Minister in the on areas of international law and Chilean government. sovereignty. His recent publications include Law without Nations? and Edel Hughes: Junior Lecturer in Law The Case for Sovereignty. at the University of Limerick, Ireland and PhD Candidate
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