Making History or Making Peace: When Prosecutions Should Give Way to Truth Commissions and Peace Negotiations
2008; Taylor & Francis; Volume: 7; Issue: 2 Linguagem: Inglês
10.1080/14754830802073295
ISSN1475-4843
Autores Tópico(s)Historical and Contemporary Political Dynamics
ResumoAbstract This essay identifies a set of choices for national leaders and human rights advocates following mass atrocities, including whether to pursue a truth commission, how to coordinate its relationship with potential criminal prosecutions, whether to "name names," as well as trade-offs between pursuit of human rights vindication and pursuit of peace. The strengths and limitations of criminal and civil trials for legal enforcement of human rights, no less than the promise and constraints of truth commissions, require careful assessment of particular political contexts and prospects for success. Public and scholarly debates over whether and when to pursue a truth commission, as well as the work of such commissions, can advance the development of and commitment to human rights ideals in communities emerging from periods of mass atrocity. The choice between trials and truth commissions resembles but also differs from the choice between accountability and peace; both choices expose potential contrasts between vindicating and enacting human rights. Even as many nations use both trials and truth commissions—simultaneously or in a series—the distinctive contribution of each to advancing human rights remains more contingent than inherent. Each institutional response warrants close consideration. Martha Minow, Harvard Law School. Thanks to Taki Flevaris and Matt Perault for research assistance. This draws in part on Martha Minow, (2002) Instituting universal human rights law: The Invention of Tradition in the Twentieth Century, in Looking Back at Law's Century (Austin Sarat, Bryant Garth and Robert A. Kagan, eds.) (Ithaca: Cornell University Press). Notes 1. The grant of blanket amnesty to alleged perpetrators is an extreme measure, sometimes pursued in the name of peace, but at times reflecting the political power of the perpetrators and their supporters. If granted with conditions, such as participation in a truth commission, amnesties may play a role in social reconstruction. 2. Remarks of Luis Moreno-Ocampo, Pursuing Human Dignity, Facing History and Ourselves/Harvard Law School Facing History Conference, Nov. 4, 2005. The audience was evenly and vigorously divided over the question. The Office of the Prosecutor released a statement on July 12, 2006 noting that the "Ugandan Minister for Security, Mr. Amana Mbabazi, was here as part of a regular exchange between the Office of the Prosecutor and the Government of Uganda. The Office of the Prosecutor was updated on the peace talks currently underway in Southern Sudan. The Government of Uganda did not ask for any withdrawal of the warrants of arrest." ICC-OTP-20061712-149-En. The Global Policy Forum explains: "In 1987, Joseph Kony formed the Lord's Resistance Army (LRA), claiming to seek the establishment of a Ugandan national government based on Christian principles and the Ten Commandments. Over the course of its existence, the LRA has killed thousands of civilians, and abducted an estimated 20,000 children, forcing them to be sex slaves and child soldiers. In January 2004, Ugandan President Yoweri Museveni became the first head of state to refer a case in his country to the ICC. While this was a historic moment for the Court, the continuation of LRA violence has complicated the case in Uganda. ICC investigators have been slowed by ongoing debates over the merits of seeking justice in a society where peace still does not exist, and whether or not Ugandans should rely on methods of traditional justice, rather than international criminal trials. In October 2005, the ICC reignited these debates when it issued indictments for five of the top LRA officers. The articles and documents below track these and other issues facing the ICC investigations in Uganda." http://www.globalpolicy.org/intljustice/icc/ugandaindex.htm. 3. Remarks of Rory Brady, former Attorney General of Ireland, Harvard Law School, July 11, 2007. 4. Discussing simultaneous use of truth commissions and trials in Sierra Leone and East Timor, and sequential uses of each in the former Yugoslavia. 5. As of summer 2007, the Prosecutor was pursuing an investigation of alleged mass killings and rapes in the Central African Republic between 2002 and 2003, arising during the armed conflict between the government and rebel forces. The Court's Pre-Trial Chamber issued arrest warrants upon finding reasonable grounds to believe Ahmad Harun, State Minister of the Interior for the Government of the Sudan and head of the "Darfur Security desk," and militia/Janjaweed lea Ali Kushayb were responsible for murder, rape, torture, the forced displacement of entire villages, and other war crimes and crimes against humanity in Darfur between 2003 and 2004, and an arrest warrant for Joseph Kony, the leader of Lord's Resistance Army in Uganda, and four LRA lieutenants based on charges that they orchestrated the killing of thousands of civilians and the enslavement of thousands more children over two decades of conflict with Ugandan President Yoweri Museveni's government; and also confirmed charges against Lubanga Dyilo for individual criminal responsibility under Article 25 (3) (a) of the Rome Statute, for war crimes in the Democratic Republic of the Congo with the war crime of enlisting children under the age of 15; the war crime of conscription of children under the age of 15; and the war crime of using children under the age of 15 to participate actively in hostilities. See International Criminal Court website, http://www.icc-cpi.int/cases.html. 6. The use of hybrid tribunals, combining international presence with domestic participants, will be one variant pursued as an alternative to ICC action—but also spurred by the ICC's presence as an impending alternative should the domestic legal system fail to act. See Suzanne Katzenstein. 7. The first such effort was Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In 2007, the American Civil Liberties Union (ACLU) and British human rights charity Reprieve filed suit in California on May 31 against logistics consulting company Jeppesen Dataplan Inc. with claims the company aided the Central Intelligence Agency in transporting terrorism suspects to settings outside the United States where they faced torture or degrading and inhumane interrogation in violation of international human rights. 8. A constitutional challenge to that effect failed before the South African Constitutional Court. Azapo v. President of the Republic of South Africa, CCT 17/96, Constitutional Court, July 25, 1996. 9. A commission may explicitly pursue restorative justice while the criminal trials stress retributive justice—and a postconflict society may need both. 10. Identifying external influence, balance of forces among former opponents, and scope of abuses as key factors in the selection of mechanisms to respond to human rights abuses, based on a study of El Salvador, Honduras, Argentina, South Africa, and Sri Lanka. 11. Drafters of the Rome Statute, authorizing the International Criminal Court, provided that the interests of victims may justify presentation of facts even where the defendant pleads guilty. Rome Statute of the International Criminal Court, art. 65, sect. 4, (U.N. Doc. A/CONF.183/9∗), http://www.un.org/law/icc/statute/romefra.htm. 12. See "Sudan: Peace Deal Must Tackle Past Abuses, Human Rights News," Nov. 18, 2004, http://hrw.org/english/docs/2004/11/18/sudan9684.htm
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