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LLD Consolidated 2004 8 PART I RESEARCH QUESTION, TERMINOLOGY AND HISTORICAL ANALYSIS CHAPTER ONE RESEARCH QUESTION, NATURE AND SCOPE OF THE PROBLEM 1. Introduction The respected Colombian writer, Gabriel Màrquez, in his work, One Hundred Years of Solitude,1 tells the story of a mythic village in Northern Colombia in which the inhabitants suffer from endemic dementia. The plague causes people to forget everything, even the most basic things of life. A young man tries to limit the damage by printing labels on everything: “This is a window”, "The name of our village is Macondo.” Unlike the inhabitants of Macondo, history has not been kind enough to let us forget. This is because the history of humanity is characterised by human-made tragedies resulting in the massive suffering of fellow human beings. Millions have died as a result of wars, slavery, the Holocaust and apartheid. The level of these atrocities is such that they cannot be forgotten. The lessons of history continue to haunt us. The exposure by the media of the sufferings of detainees in concentration camps in Bosnia in 1991, and the 1994 genocide in Rwanda, not only shocked the world but raised afresh memories of the Holocaust. Like the young man of Macondo, humanity has been trying for several decades, without success, to establish institutional mechanisms to limit the damage and to avoid the repetition of past evils. In the words of George Santayana, “those who disregard the past are bound to repeat it.”2 1 Gabriel Gàrcia Màrquez, One Hundred Years of Solitude (trans. Gregory Rabassa) (1967) 1 et seq. 2 Quoted by Roy Gutman, A Witness to Genocide: The First Inside Account of the Horrors of ‘Ethnic 1 1. 2. The Nature and Scope of the Problem Amnesty originated as a prerogative of divine and sovereign rulers, as direct representatives of God, and it has, through the ages, been subjected to little critical scholarly or scientific analysis. This long-standing acknowledgement of the supernatural eleme nt in amnesty contributed enormously to this lack of research and critical evaluation. With the emergence of democratic government, amnesty became a touchy political subject of some peculiarity with penal, criminal and constitutional law ramifications. The advent and proliferation of international tribunals, and truth and reconciliation mechanisms, with amnesty-granting powers, has drawn in an overwhelming amount of criticism of amnesty laws on the basis that they are an affront to peace and justice in post-conflict societies. Despite this criticism, post-conflict societies continue to find amnesty a catalyst for peace and national reconciliation, and a way to deal with the legacy of past human rights violations. Moreover, this criticism ignores the history, genesis and use of amnesty under international law. An intractable problem common to societies in transition is how to deal with the legacy of the past and pave the way for a new era. Addressing past human rights violations is indeed a daunting and challenging exercise for any nascent democracy. This challenge is characterised by conflicting interests and considerations. Should perpetrators of gross human rights violations be subjected to prosecution, or, should they be granted amnesty? What is the optimal way of achieving justice for victims of human rights violations, and due process for perpetrators? How do we balance reconciliation with the reconstruction of society? How will this impact on stability and peace? The challenges involve making hard choices between blanket amnesty and conditional amnesty, and between prosecution and reparation; choices which must recognise the need to create a culture of Cleansing’ in Bosnia (1993) 180. 2 human rights and accountability as opposed to a culture of impunity. Choices must be made between vengeance and peaceful co-existence, between retribution and restorative justice, between fears and legitimate expectations. Often, these decisions have a direct impact on competing needs, especially as the resources available are often limited. Factors such as these play a major role in societies in political transition. In the wake of contemporary conflicts, two seemingly contradictory but complementary trends have emerged. One trend is a general acknowledgement that the current momentum towards a comprehensive international criminal justice system is, in itself, inadequate to deal with complex political emergencies. The other is that non-punitive mechanisms, such as truth commissions, are necessary to bring about lasting peace and reconciliation amongst the local population. The reason for this is, as Heyner correctly puts it, “partly due to the limited reach of the courts, and partly out of recognition that even successful prosecutions do not resolve the conflict and pain associated with past abuses.”3 In this sense, national reconciliation is needed to complement the weaknesses of the international criminal justice system. The role of the current ad hoc international criminal tribunals for the former Yugoslavia and Rwanda in bringing about justice is limited. These tribunals are unable to try all the perpetrators of violations of international humanitarian law, but usually only reach those who bear the greatest responsibility for such atrocities. Furthermore, international criminal tribunals generally fail to address reparations for the actual harm suffered by victims of war, or to engage in a pedagogical exercise capable of reconstructing national identity as a lesson for future generations. To educate, to make formally public institutional memory, to address the collective guilt of various parts of the population, and to set the historical record straight about what really happened in the past, all come within the purview of such non- 3 Priscilla Heyner, Unspeakable Truths: Confronting State Terror (2001) 14. 3 punitive measures as a truth and reconciliation exercise.4 However, both international criminal tribunals and truth commissions have distinct, but complementary, roles and functions. 5 There are at least two methods commonly adopted by societies in transition. The first approach is based on retributive justice,6 that is, the prosecution of those responsible for past human rights violations. Such an option could take the form of a domestic prosecution or an ad hoc international criminal tribunal. 7 During the period 1919 to 1994, there have been five ad hoc international investigation commissions8; four ad hoc international criminal tribunals9; three ad hoc tribunals for Sierra Leone10, Cambodia 11 and East Timor12; and three internationally mandated national prosecutions after the 4 Karl Jaspers, The Question of German Guilt (1948) 62. Jaspers argues that atrocities are not committed in a vacuum, but go beyond individual criminal responsibility. Hence, a society which has been a victim of widespread and systematic violations of human rights must reckon with the legacy of the past in order to deal with the “commission of countless little acts of negligence, of convenient adaptation, of cheap vindication, and the imperceptible promotion of wrong; the participation in the creation of a public atmosphere that spreads confusion and thus makes evil possible.” 5 Claude Jorda, “The International Criminal Tribunal for the Former Yugoslavia and the Truth and Reconciliation Commission in Bosnia and Herzegovina” ICTY Press Release JL/P.I.S/592-e, The Hague, 22 May 2001. 6 Howard Zehr, “Restorative Justice” in Luc Reychler & Thania Paffenholz (eds.), Peace-building: A Field Guide (2001) 330. 7 Examples of international criminal tribunals include the International Military Tribunals of Nuremberg and Tokyo, and more recently the two UN ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). 8 For an historical survey see MC Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court” 10 Harvard Human Rights Journal (1997) 11. 9 Ibid. 10 UN SC Res. 1315 (2000). 11 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 2 January 2001. 12 The UN Transitional Administration in East Timor (UNTAET) passed Regulation 15 of 2000 which established a Panel with Exclusive Jurisdiction over Serious Criminal Offences Committed during the Conflict in East Timor. 4 First and Second World Wars.13 The main function of such tribunals is to prosecute those alleged to have committed gross human rights violations. It is important to distinguish modern criminal tribunals and truth commissions from some of the highly abusive post-transition tribunals whose purpose was to terrorise, purge and execute the representatives of old regimes, through processes such as ad hoc military tribunals.14 The second approach is based on restorative justice,15 that is, reconciliation and amnesty through a truth-telling process, which often takes the form of an official mechanism sanctioned by the state in the guise of a truth commission. 16 The main purpose of a truth commission is to investigate the truth about past human rights violations within a limited time, and to issue a comprehensive official report of its findings and recommendations.17 Since 1974, there have been some twenty-one truth commissions, and the number continues to grow. 18 The goals of truth commissions are many and vary from one country to another. In general, their goals include the 13 Hakan Friman, “The International Criminal Court: Negotiations and Key Issues” 8 African Security Review (1999) 3. 14 For example, the 1995 Civil Disturbances Special Tribunal, a military tribunal set up by the former Nigerian dictator, the late General Sani Abacha, to prosecute the human rights activist, leader of the Ogoni people and writer, Ken Saro-Wiwa and nine others for allegedly “procuring and inciting” murder. These were trumped-up charges intended to eliminate Ken Saro-Wiwa. The accused were denied the right to appeal against the decision of the special court. Clearly, the creation of the special court undermined the ordinary courts in Nigeria. See Michael Birnbaum, Fundamental Rights Denied: Report of the Trial of Ken Saro-Wiwa and Others published by Article 19, on 8 June 1995.
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