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Redressing Impunity for Human Rights Violations: the Universtal Declaration and the Search for Accountability

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Redressing Impunity for Human Rights Violations: the Universtal Declaration and the Search for Accountability Denver Journal of International Law & Policy Volume 26 Number 4 Summer Article 4 May 2020 Redressing Impunity for Human Rights Violations: The Universtal Declaration and the Search for Accountability Christopher C. Joyner Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Christopher C. Joyner, Redressing Impunity for Human Rights Violations: The Universtal Declaration and the Search for Accountability, 26 Denv. J. Int'l L. & Pol'y 591 (1998). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability CHRISTOPHER C. JOYNER I. INTRODUCTION This year celebrates the fiftieth anniversary of the Universal Dec- laration of Human Rights,' a document that is regarded both as the wellspring and cornerstone of modern international human rights law. The Universal Declaration, though not intended to be legally binding, aims to set "a common standard of achievement for all peoples and na- tions."2 And that it surely does. Its thirty articles cover a raft of human rights and fundamental freedoms, ranging from the liberty and security of the person, equality before the law, due process, prohibitions against torture and arbitrary interference with privacy, to civil and political rights that protect freedom of movement, asylum, expression, con- science and religion, and assembly. There are in addition economic and social rights, such as the rights to work and equal pay and to social se- curity and education. The Universal Declaration clearly is not an enforceable interna- tional instrument. Yet, the fact remains that its contents have subse- quently become regarded as binding customary international law,3 or as embodying general principles of law, 4 or as conventional law by virtue of being codified through specific provisions in specific international treaty instruments.5 Nevertheless, underpinning the proclaimed rights in the Universal Declaration is a critical provision that tends to be passed over in most treatments of human rights law. This provision is Article 8, which in 1. Universal Declaration of Human Rights, G.A. Res. 217 (III 1948), Dec. 10, 1948. 2. Id. preamble. 3. See RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY AND PRACTICE 86-163 (1991). 4. Hurst Hannum, Human Rights, in THE UNITED NATIONS AND INTERNATIONAL LAW 138 (Christopher C. Joyner ed., 1997). 5. See OPPENHEIM'S INTERNATIONAL LAW 1002 (R.Y. Jennings & A.D. Watts eds., 9th ed. 1992); MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 248-49 (1993). DENV. J. INT'L L. & POL'Y VOL. 26:4 full emphatically asserts the following: "Everyone has the right to an effective remedy by the competent national tribunal for acts violating 6 the fundamental rights granted him by the constitution or by law." This is the effective remedies provision that explicitly intends to protect the rights of the victim. Each person therefore possesses and can exer- cise the right to obtain redress for harm done by public or private agents to him or her. The premise here is that no person is above the law. Every person should have recourse to protection under the law, to equal protection against discrimination of his or her fundamental hu- man rights, and to justice in seeking juridical remedies under the law. Furthermore, in the event that the fundamental human rights of a per- son are violated, there remains the overarching right to justice. States are obligated to investigate those violations, take appropriate measures against the perpetrators, ensure that they are prosecuted, and furnish the victims with effective remedies. Such remedies for victims have not, in fact, often been attained. Human rights have been grossly violated, on massive scales, usually leaving as stark legacies the scars of profound suffering for victims and scabs of impunity for perpetrators. This realization points up the main purpose of this paper, namely, to examine the notion of allowing impu- nity for serious violators of fundamental human rights as opposed to the obligation of obtaining effective remedies for victims as affirmed under Article 8 of the Universal Declaration. To address this theme, Part II section briefly treats the scope of impunity, as it appraises the contemporary system of international criminal law that prohibits im- punity for human rights violations and supplies the legal basis for gov- ernments to comply with and enforce the obligation for juridical redress in Article 8 of the Universal Declaration. Part III deals with the nature of impunity, specifically by exploring the rationales concerning why governments do so little in prosecuting and punishing persons who have committed the most horrendous of crimes. The availability under na- tional and international law of various accountability mechanisms for bringing alleged perpetrators to justice is treated in Part IV, as is how the need for justice squares with the need for national reconciliation. Part V appraises the prospects for obtaining Article 8 effective remedies through competent tribunals (inclusive of international courts), as guided by principles designed to ensure restitution, compensation and rehabilitation for victims of gross violations of human rights and fun- damental freedoms, and the final section proffers some conclusions for reflective consideration. 6. Universal Declaration of Human Rights, supra note 1, art. 8. 1998 REDRESSING IMPUNITY II. THE SCOPE OF IMPUNITY In the last half century, violent internal conflicts and tyrannical re- gimes have victimized millions of people throughout the world. 7 One authoritative report estimates that from World War II through 1996, at least 220 non-international conflicts involving civil war or oppressive regimes may have killed as many as 86 million people.8 That victimiza- tion has included the most serious violations of fundamental human rights - genocide, crimes against humanity, non-juridical executions, torture, arbitrary arrests and unlawful detentions. The scope of these high crimes is monstrous indeed. Yet, there have been relatively few prosecutions and only scarce accountability, either nationally or internationally for these grave violations of human rights and the resultant pervasive suffering. In fact, only a handful of remedies for these massive human rights violations have been at- tempted, and these have come as piecemeal and ad hoc offerings mainly during the past decade. 9 Two international investigatory commissions o 7. Rudolph Rummel has recently calculated that during the present century, civil wars, internal conflicts and tyrannical regimes have caused some 170 million deaths, as compared to 33 million persons killed in international military conflicts. RUDOLPH J. RUMMEL, DEATH BY GOVERNMENT 9 (1994). 8. Jennifer Balint, An Empirical Study of Conflict, Conflict Victimization, and Legal Redress, REINING IN IMPUNITY FOR INTERNATIONAL CRIMES AND SERIOUS VIOLATIONS OF FUNDAMENTAL HUMAN RIGHTS, 14 NOUVELLES ETUDES PENALES 1998 101, 107 (Christo- pher C. Joyner ed. 1998) [hereinafter REIGNING IN IMPUNITY]. See also M. Cherif Bas- siouni, Considerationson Peace and Justice and the Imperative of Accountability for In- ternational Crimes and Consistent and Widespread Violations of Fundamental Human Rights, 59 LAW & CONTEMP. PROBS. 9, at 10 (Autumn 1996) [hereinafter Bassiouni], re- printed in REINING IN IMPUNITY, at 45, 46. 9. See Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a PermanentInternational Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997). 10. For Bosnia, see Report of the Special Rapporteur to the Commission on Human Rights of 28 August 1992, U.N. Doc. EICN.4/1992/S-1/9; Report of the Special Rapporteur to the Commission on Human Rights of 27 October 1992, U.N. Doc. ECN.411992/S-10; Re- port of the Special Rapporteur to the Commission of Human Rights to the Forty Seventh Session of the GeneralAssembly of 17 November 1992, U.N. Doc. A147/666-S/24809; Report of the Special Rapporteur to the Commission on Human Rights to the Economic and Social Council of 10 February 1993, U.N. Doc. E/CN.4/1993/50. See The Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. S/1994/674 (1994) [hereinafter Final Report of the Commission of Experts]; Final Report, U.N. SCOR, 49th Sess., Annexes, U.N. Doc. S/1994/674/Add.2 (1994). See also M. Cherif Bassiouni, The United Nations Commission of Experts EstablishedPursuant to Security Council Resolution 780 (1992), 88 AM. J. INT'L L. 784-805 (1994); M. Cherif Bassiouni, The Commission of Experts EstablishedPursuant to Security Council Resolution 780: Investigating Violations of InternationalHumanitar- ian Law in the Former Yugoslavia, 5 CRIM. L. F. 279-340 (1994). For Rwanda, see Letter Dated 1 October 1994 from the Secretary-GeneralAddressed to the President of the Secu- rity Council, S/1994/1125, transmitting the Commission of Experts' Preliminary Report (Oct. 1, 1994); Report on the Situation of Human Rights in Rwanda, UN Doc. DENV. J. INT'L L. & POL'Y VOL. 26:4 and two special tribunals were respectively established for the former Yugoslavia 1 and Rwanda. 12 An international truth commission was held
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