Prosecuting serious human rights violations 9780199569328, 0199569320

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P RO S E CUT IN G S ERIOUS H UMAN RI GHTS V IO L AT I O NS

Prosecuting Serious Human Rights Violations AN JA S EIB ERT- F OHR

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Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Anja Seibert-Fohr, 2009 The moral rights of the author have been asserted Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) First published 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Seibert-Fohr, Anja. Prosecuting serious human rights violations / Anja Seibert-Fohr. p. cm. ISBN 978–0–19–956932–8 1. International offenses. 2. Human rights. 3. Prosecution. 4. Criminal procedure (International law) I. Title. K5301.S45 2009 345'.0235—dc22 2009020662 Typeset by Cepha Imaging Private Ltd., Bangalore, India Printed by the MPG Books Group in the UK ISBN 978–0–19–956932–8 1 3 5 7 9 10 8 6 4 2

To my parents

Foreword Some book titles overstate their content, others understate it. The modest title— Prosecuting Serious Human Rights Violations—of Anja Seibert-Fohr’s fine monograph falls into the latter category. Let me therefore hasten to say that this book provides a comprehensive description and insightful scholarly analysis of the applicable conventional and customary international legal obligations of States to prosecute the perpetrators of serious human rights violations. This valuable study addresses the full range of issues which bear on that important subject. In the first part of her book, Dr. Seibert-Fohr reviews the relevant rules and practice of the three major international and regional human rights systems, covering the International Covenant on Civil and Political Rights, the American Convention of Human Rights and the European Convention on Human Rights. The author’s analysis of the case law of the institutions established to supervise the implementation of the rights these treaties guarantee demonstrates a thorough understanding of the complex issues at play within these institutions and of the different constituencies within which they operate. There follow two further chapters related to the overall theme of the book. One deals with a mix of other important universal human rights treaties, including the Genocide Convention and the Torture Convention. The other chapter considers the relevance of customary international law to the subject of the present study. Here Dr. Seibert-Fohr addresses a number of discrete subjects, among them universal jurisdiction and the principle of aut dedere aut judicare. A particularly interesting and indispensable comparative analysis, entitled ‘Conceptualizing the Duty to Prosecute under Human Rights Treaties,’ is provided in Chapter 6 of this book. Here the author focuses very effectively on the common themes and differences reflected in the various human rights systems and treaties addressed by her. I wonder, though, whether this chapter should not have dealt also with the relevant aspects of customary international law rather than treating this subject separately. Logically it probably makes sense to separate the discussion in this book of these two principal sources of international law, but conceptually that may not be the case. In addition to providing the reader with a thorough overview of contemporary international human rights law and practice, this study also addresses specific questions relating to the relationship between international criminal law and human rights law, impunity, amnesties, the rights of victims, the right to truth, and many other issues bearing on the duty to investigate and prosecute under contemporary international human rights law. The author deserves particular praise for her impressive analysis of the many complex legal and political issues posed by the

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grant and denial of amnesties and the balanced manner in which she deals with this difficult subject. Dr. Anja Seibert-Fohr has produced an outstanding study of a subject that has heretofore not received the scholarly attention it deserves. Her book should therefore prove of special value to national judges and prosecutors dealing with cases involving serious violations of human rights. Human rights experts and NGOs, as well as international judges struggling with related problems, will find much in this book to assist them in their work. Judge Thomas Buergenthal International Court of Justice 23 May 2009

Preface This book explores the role criminal law plays in the protection of international human rights. It is based on parts of my doctoral dissertation, which was submitted to and accepted by the George Washington University in Washington D.C. The original work focused on the evaluation of amnesties under international law. My review of the relevant international and regional jurisprudence revealed that the question was part of a more comprehensive issue, namely the relationship of human rights and criminal law. While the early human rights cases primarily had been concerned with amnesties the scope of application broadened over time. The regional human rights courts recently have identified several standards that are highly relevant for criminal legislation and criminal procedure. In order to elaborate these standards and to explore their rationale I decided to take a broader perspective in this book, which is not limited to amnesties but deals instead with the duty to investigate and prosecute serious human rights violations more comprehensively. With this focus on human rights law I have not included the chapters evaluating amnesties under international humanitarian law and under the Rome Statute from my dissertation. Since there have been a wealth of relevant human rights cases since my dissertation was accepted I completely revised and updated the relevant parts. But I am fully aware that there are more to come. If I can only draw the attention of the legal community to this new body of human rights law and initiate a more profound discussion on the underlying rationales, then I will be content. This book could not have been written without the encouragement, the very helpful suggestions, and the valuable counsel of Judge Thomas Buergenthal who initiated this project when he was still Professor at the George Washington University Law School. As my advisor and mentor he continuously encouraged, challenged, and assisted me until the completion of the dissertation. Most important to me was his vast expertise, perspective scholarship, and personal kindness. His insights and teaching shaped my legal thinking and analysis in profound ways, as did the conversations with his mentor Professor Louis B. Sohn for whom I had the privilege of working as a research assistant in his later years. In expressing my sincere gratitude and esteem to them I should note that I am solely responsible for all shortcomings of this book. I also thank Professor Ralph Steinhardt and Associate Dean Susan Karamanian who together with Judge Buergenthal made up the committee that reviewed my dissertation and heard the oral defence at Oxford in 2004. And I am grateful to the International Rule of Law Center of the George Washington University Law School and the German Academic Exchange Service (DAAD) for the financial aid that supported my research in Washington.

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This book is dedicated to my parents as an expression of my sincere appreciation for their support, which went well beyond my law studies. They encouraged me to pursue my research despite obstacles and helped to make this work. I am deeply indebted to many others who have assisted and supported me over the years. In particular Professor Rüdiger Wolfrum, who is Director of the Max Planck Institute for Comparative Public Law and International Law, where I have had the privilege to work since 2000. Professor Wolfrum has never lost faith in me and has continuously supported my academic career. He has enriched my entire research through his encouragement, his dedicated scholarship, and various challenging projects. The resources of the Max Planck Institute in Heidelberg, especially the library and its staff are as invaluable as the exchange with its present academic scholars and former directors. Dominik Zimmermann, Ina Gätzschmann, Katharina Regele, Jenny Laube, and David Roth-Isigkeit deserve my special thanks for helping me in the final stages of publication with their dedication to rules of citation and proofreading. The entire project took longer than anticipated before the birth of my three beloved children. But that gives me the chance to hope now that they will grow up in a peaceful world dedicated to an effective and sustainable protection of human rights. Anja Seibert-Fohr Max Planck Institute for Comparative Public Law and International Law May 2009

Table of Cases HUMAN RIGHTS COMMITTEE Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/717/1996 (1999) . . . . . . . . . .17, 18, 19, 39, 45 Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/1995 (1997) . . . . . . . .23, 24, 28, 192, 193 Baboeram et al. v. Suriname, Communications Nos. 146/1983, 148 to 154/1983, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/24/D/146/1983 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Barbato v. Uruguay, Communication No. 84/1981, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/38/40 (1983) . . . . . . . . . . . . . . . . . 12, 34, 36 Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993 (1995) . . . . . . . . . . . . . . . . . . . . 15, 23, 24, 28, 192, 193 Blanco v. Nicaragua, Communication No. 328/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/328/1988 (1994) . . . . . . . . . . . . . . . 21, 34, 35 Bleier v. Uruguay, Communication No. R. 7/30, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/37/40 (1982) . . . . . . . . . . . . . .13, 34, 36, 176 Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003 (2006) . . . . . . . . . . . . . . 14, 18, 24, 25, 45, 48 Bozize v. Central African Republic, Communication No. 428/1990, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/50/D/428/1990 (1994) . . . . . . . . . . 13 Coronel v. Colombia, Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/76/D/778/1997 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 24, 28, 47 Daniel Monguya Mbenge v. Zaïre. Communication No. 16/1977, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/18/D/16/1977 (1983) . . . . . . . . . . . . . . . . . . . . . . 20 H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 270 (1989) . . . . . . .17, 18, 21, 66 Humberto Menanteau Aceituno et José Carasco Vasquez v. Chile, Communication No. 746/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/746/1997 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Hylton v. Jamaica, Communication No. 407/1990, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/407/1990 (1994) . . . . . . . . . . . . . . . . . . . . . 13 Isidore Kanana Tshiongo a Minanga v. Zaire, Communication No. 366/1989, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/49/D/366/1989 (1993) . . . . . . . . . . 12 Joaquin Herrera Rubio et al. v. Colombia, Communication No. 161/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40 (1988) . . . . . . . . . 13, 14, 35, 204 Kulomin v. Hungary, Communication No. 521/1992, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/521/1992 (1996) . . . . . . . . . . . . . . . . . . . . . 24 Laureano Atachahua v. Peru, Communication No. 540/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/540/1993 (1996) . . . . . . . . . . . . . . . 34, 36, 40

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María Otilia Vargas Vargas v. Chile, Communication No. 718/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/718/1996/Rev.1 (1999) . . . . . . . . . . . . . . . . 45 Miango Muiyo v. Zaire, Communication No. 194/1985, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40 (1988) . . . . . . . . . . . . . . . . . . . . . . . 12 Njaru v. Cameroon, Communication No. 1353/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/89/D/1353/2005 (2007) . . . . . . . . . . . . . . 14, 24, 25 Nqalula Mpandanjila et al. v. Zaire, Communication No. 138/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/41/40 (1986) . . . . . . . . . 14, 15 Quinteros v. Uruguay, Communication No. 107/1981, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/OP/2, in Selected Decisions under the Optional Protocol, Vol. 2 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 34, 36, 70 Raththinde Katupollande Gedara Dingiri Banda v. Sri Lanka, Communication No. 1426/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/91/D/1426/2005 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988 (1994) . . . . . . . . . . . . 16, 18, 21, 35, 37, 38, 41, 42, 48, 66 S.E. v. Argentina, Communication No. 275/1988, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/45/40, annex X.J (1990). . . . . . . . . . . . . . . . . . . . . 18, 21, 66 Saker v. Algeria, Communication No 992/2001, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/992/2001 (2006). . . . . . . . . . . . . . . . . . . . . .14, 18, 24, 25 Sundara A. L. Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/87/D/1250/2004 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 193 Thomas v. Jamaica, Communication No. 321/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/49/D/321/1988 (1993) . . . . . . . . . . . . . . . . . . 13, 36 Tshitenge Muteba v. Zaire, Communication No. 124/1982, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/39/40 (1984) . . . . . . . . . . . . . . . . . . . . . . . 13 Zheikov v. Russian Federation, Communication No. 889/1999, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/889/1999 (2006) . . . . . . . . . . . . . . . . . . 24, 25 INTER-AMERICAN COURT OF HUMAN RIGHTS/ INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Alfonso René Chanfeau Orayce et al. v. Chile, Cases 11.505 et al., Inter-Am. C.H.R., Report No. 25/98, OEA/Ser.L/V/II.95 Doc. 7 rev. (7 April 1998) . . . . . . . . . . . . . . . 92 Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 (2 October 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 88, 89 Almonacid Arellano et al v. Chile, Preliminary Objections, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154 (26 September 2006) . . . . . . . . . 102, 103, 104, 252, 290, 291 Arges Sequeira Mangas v. Nicaragua, Case 11.218, Inter-Am. Ct.H.R., Report No. 52/97, OEA/Ser.L/V/II.98 doc. 6 rev. (18 February 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54, 58, 76, 93 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70 (25 November 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 68, 69, 71, 83, 85, 132, 241 Bámaca Velásquez v. Guatemala, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 91 (22 February 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 73 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75 (14 March 2001) . . . . . . 63, 70, 80, 99, 100–101, 102, 103, 104, 107, 108, 143

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Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Interpretation of the Judgment on the Merits, 2001 Inter-Am. Ct. H.R. (ser. C) No. 83 (3 September 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Blake Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 36 (24 January 1998) . . . . . . . . . . . . . . . . . . . 62 Bueno Alves v. Argentina, Merits, Reparations and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163 (11 May 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Caballero Delgado and Santana Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 22 (8 December 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 83 Cantoral Benavides Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 69 (18 August 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Carmelo Soría Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. (19 November 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 55, 60, 65, 66, 67, 87, 92, 93, 95, 96, 291 Castillo Páez Case, 1997 Inter-Am. Ct. H.R. (ser. C) No. 34 (3 November 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 70, 97–100 Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43 (27 November 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 83, 84, 98, 99, 103, 240, 244 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68 (16 August 2000) . . . . . . . . . . . . . . . . . . . . . . . . 23, 55, 56, 63, 66, 67, 73, 74, 75, 83, 105, 106 El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95 (29 August 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 72, 74, 80, 85, 240, 244 Estiles Ruíz Dávila v. Peru, Case 10.491, Inter-Am. C.H.R., Report No. 41/97, OEA/Ser.L/V/II.95 doc. 7 rev. (19 February 1998) . . . . . . . . .94, 96, 97, 291 Gangaram Panday Case, 1994 Inter-Am. Ct. H.R. (ser. C) No. 16 (21 January 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/Ser.L/V/II.95 doc. 7 rev. (15 October 1996) . . . . . . .60, 61, 71, 92, 93 Godínez Cruz Case, 1989 Inter-Am. Ct. H. R. (ser. C) No. 5 (20 January 1989) . . . . . . . . . . . . . 54 Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153 (22 September 2006) . . . . . . . . . 52, 56, 59, 67, 71, 81, 85, 104, 105, 108, 252 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. (22 December 1999) . . . . . . . . . 60, 65, 67, 68, 69, 73, 78, 90, 93, 94, 95, 96, 97, 102 La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162 (29 November 2006) . . . . . . . . . . . . . . . . . . . . . 52, 58, 67, 71, 75, 76, 78, 79, 81, 85, 102, 103, 104, 105, 106, 202 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90 (6 December 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 58, 67, 71, 73, 75, 76, 79, 205 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96 (26 November 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72, 73, 74, 80, 84 Loayza Tamayo Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42 (27 November 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99, 244 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. (27 January 1999) . . . . . . . . . . . . . . 61, 65, 67, 68, 69, 72, 92, 93, 96, 97, 101, 104, 143 Masacre de Mapiripán v. Colombia, Merits, Reparations and Costs, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134 (15 September 2005) . . . . . . . . . . . . . . . . . . . . . 103 Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/Ser.L/V/II.83, doc. 14 (1993) . . . . . . . . . . . . . . . . . . . .55, 87, 89, 101 Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 (2 October 1992) . . . . . . . . . . . . . . . . . . . . . 59, 60, 87, 88, 89, 122

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Meneses Reyes et al. v. Chile, Case 11.228, 11.229, 11.231 and 11.182, Inter-Am. C.H.R., Report No. 34/96, OEA/Ser.L/V/II.95, doc. 7 rev. (15 October 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. (13 April 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 95, 96, 97, 106, 108 Myrna Mack Chang Case, 2003 Inter-Am. Ct. H.R. (ser. C) No. 101 (25 November 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 223, 291 Neira Alegria et al. Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 20 (19 January 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Nogueira de Carvalho et al. v. Brazil, Preliminary Objections and Merits, 2006 Inter-Am. Ct. H.R. (ser. C) No. 161 (28 November 2006) . . . . . . . . . . . . . . . . . . . . . . . 82, 284 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37 (8 March 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52, 61, 76, 83, 241 Pastor Juscamaita Laura v. Peru, Case 10.542, Inter-Am. C.H.R., Report No. 19/99, OEA/Ser.L/V/II.95 doc. 7 rev. (23 February 1999) . . . . . . . . . . . . 54, 57, 94 The Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163 (11 May 2007) . . . . . . . . . . . . . . . 52, 67, 72, 74, 75, 77, 79, 80, 81 Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92 (27 February 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 72, 80, 81, 292 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (29 July 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 53, 54, 55, 56, 57, 58, 59, 73, 82, 86–87, 89, 91, 105, 106, 129, 161, 176, 191, 194, 205, 282 Velásquez Rodríguez Case, Reparations, 1989 Inter-Am. Ct. H.R. (ser. C) No. 7 (21 July 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Villagrán Morales et al. v. Guatemala (‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63 (19 November 1999) . . . . . . . . . . . . . . . . . 7, 51, 56, 61, 62, 66, 71, 72, 76, 77, 83, 106, 241 EUROPEAN COURT OF HUMAN RIGHTS/ EUROPEAN COMMISSION OF HUMAN RIGHTS A. v. United Kingdom, App. Nos. 100/1997/884/1096, Eur. Ct. H.R.; Judgment of 23 September 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 119, 147 Abdülsamet Yaman v. Turkey, App. No. 32446/96, Eur. Ct. H.R., Judgment of 2 November 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126, 132, 136, 137, 139 Aksoy v. Turkey, App. No. 21987/93, Eur. Ct. H.R , Judgment of 18 December 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Amuur v. France, 1996-III Eur. Ct. H.R. 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 115, 119, 133, 134, 138 Assanidze v. Georgia, App. No. 71503/01, Eur. Ct. H.R., Judgment of 8 April 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 Ayder et al. v. Turkey, App. No. 23656/94, Eur. Ct. H.R., Judgment of 8 January 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 125 Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115, 134, 135, 136, 138

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Beitiyeva and X v. Russia, App. Nos. 57953/00 and 37392/03, Eur. Ct. H.R., Judgment of 21 June 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114, 125, 126, 139 Bottazzi v. Italy, App. No. 34884/97, Eur. Ct. H.R, Judgment of 28 July 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Broniowski v. Poland, App. No. 31443/96, Eur. Ct. H.R., Judgment of 22 June 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 112, 113, 114, 136, 148, 149, 201 Caraher v. United Kingdom, App. No. 24520/94, 2000-I Eur. Ct. H.R., Judgment of 11 January 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Cesim Yildirim et al. v. Turkey, App. No. 29109/03, Eur. Ct. H.R., Judgment of 17 June 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 134, 138 Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R., Judgment of 10 May 2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 132 Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121, 123, 125, 126, 192 Dubowska v. Poland, App. No. 34055/96, Eur. Comm’n H.R. Decision of 18 April 1997, Judgment of 15 May 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Dubowska v. Poland, App. No. 34055/96, Eur. Ct. H.R., Judgment of 18 April 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (244) (2 September 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 121, 141, 142, 143, 144, 148, 194–195, 206 E.V. v. Ireland, App. No. 9373/81, Eur. Comm’n H.R., Decision of 14 December 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Ergi v. Turkey, App. Nos. 66/1997/850/1057, 1998- IV Eur. Ct. H.R., Judgment of 28 July 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 131, 133 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999 . . . . . . . . . . . . . . . . . 121, 123, 125, 126, 129, 139, 148, 192 Goncharuk v. Russia, App. No. 58643/00, Eur. Ct. H.R., Judgment of 4 October 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 130 Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124, 131, 134, 145 Gülec v Turkey, Judgment of 27 July 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Ireland v. United Kingdom, App. No. 5310/71, Eur. Ct. H.R., Judgment of 18 January 1978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 241 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998. . . . . . . . . . . . . . . . . . . . . . . 114, 125, 127, 129, 130, 131, 133, 139, 145, 218 Kaya v. Turkey, App. No. 22729/93, Eur. Ct. H.R., Judgment of 19 February 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Keenan v. United Kingdom, App. No. 27229/95, 33 E.H.R.R. 913, Eur. Ct. H.R., Judgment of 3 April 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Khan v. United Kingdom, App. No. 35394/97, 34 E.H.R.R. 45, Eur. Ct. H.R., Judgment of 12 May 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 112, 117, 118 Kiss v. United Kingdom, App. No. 6224/73, 7 Eur. Comm’n H.R. Dec. & Rep. 55, (16 December 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 122 Krastanov v. Bulgaria, App. No. 50222/99, Eur. Ct. H.R., Judgment of 30 September 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 118, 119

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Kurt v. Turkey, App. No. 24276/94, 27 E.H.R.R. 373, Eur. Ct. H.R., Judgment of 25 May 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 L.C.B. v. United Kingdom, 1998-IIII Eur. Ct. H.R. 1403, Judgment of 9 June 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 M.C. v. Bulgaria, App. No. 39272/98, Eur. Ct. H.R., Judgment of 4 December 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123–124 Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000 . . . . . . . . . . . . . . . . . . . . . . . . 111, 112, 116, 117, 118, 120, 121, 128, 133, 140, 143, 195, 218, 291 Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118, 119, 139, 140, 142 McCann and Others v. United Kingdom, App. No. 18984/91, Eur. Ct. H.R. (ser. A) No. 324, Judgment of 27 September 1995 . . . . . . . . . . . . . . . . . 147, 250 McCourt v. United Kingdom, App. No. 20433/92, 15 E.H.H.R. 110; Eur. Comm’n on H.R., Decision of 2 December 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 139 McKerr v. United Kingdom, App. No. 28883/95, 2001-III Eur. Ct. H.R., Judgment of 4 May 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 136, 139 Menson et al. v. United Kingdom, App. No. 47916/99, 2003-V Eur. Ct. H.R . . . . . . . . . . . . . . 114 Mentes et al. v. Turkey, App. Nos. 58/1996/677/867, Eur. Ct. H.R, Judgment of 28 November 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 115 Nachova et al. v. Bulgaria, App. Nos. 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005 (Grand Chamber) . . . . . . . . . . 114, 117, 133, 133, 134, 135, 141 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 127, 134, 135, 136, 137, 138, 139, 151 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007 . . . . . . . . . . . . . . . . . . . . . . . . . 116, 119, 130, 131, 136, 137, 138, 139, 141, 150, 151 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114, 130, 144, 145, 149 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004 (Grand Chamber) . . . . . . . . . . . . . . . 113, 114, 115, 116, 117, 118, 119, 121, 123, 124, 125, 126, 137–138, 139, 141, 151, 291 Osman v. United Kingdom, 1998-VII Eur. Ct. H.R. 3159 . . . . . . . . . . . . . . . . .116, 118, 119, 203 Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002 . . . . . . . . . . . . . . . . . . . . . .115, 125, 131, 136, 138 Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 121, 122, 123, 124, 148, 151, 196 Powell v. United Kingdom, App. No. 45305/99, 2000-V Eur. Ct. H.R., Decision on Admissibility of 4 May 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 115, 116, 117, 119, 122, 123, 126, 127, 131, 133, 134, 135, 136, 137, 138, 139, 141 Salman v. Turkey, App. No. 21986/93, 2000-VII Eur. Ct. H.R., Judgment of 26 June 2000 (Grand Chamber). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Selmouni v. France, App. No. 25803/94, Eur. Ct. H.R., Judgment of 28 July 1999 . . . . . . . . . . 136 Somogyi v. Italy, App. No. 67972/01, Eur. Ct. H.R, Judgment of 18 May 2004. . . . . . . . . . . . . 119 Tahsin Acar v. Turkey, App. No. 26307/95, Eur. Ct. H.R., Judgment of 8 April 2004 (Grand Chamber) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Tanrikulu v. Turkey, App. No. 23763/94, 1999-IV Eur. Ct. H.R., Judgment of 8 July 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

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V. v. United Kingdom, App. No. 24888/94, Eur. Ct. H.R, Judgment of 16 December 1999, 1999-IX Eur. Ct. H.R. 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 207 VO v. France, App. No. 53924/00, 2004-VIII, Eur. Ct. H.R., Judgment of 8 July 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 111, 148, 149, 191, 192, 193, 200 X. v. Germany, App. No. 2942/66, 23 Eur. Comm’n H.R. Dec. & Rep. 64 . . . . . . . . . . . . . 66, 122 X. v. Ireland, App. No. 6040/73, 16 Y.B. Eur. Conv. on H.R. 388, 392, Decision on Admissibility of 20 July 1973 (Eur. Comm’n on H.R.) . . . . . . . . . . . . . . . . . . . 117 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985 . . . . . . . . . . . . . . . . . . . . 112, 117, 118, 123, 125, 127, 128, 131, 146, 148, 194, 200, 201 Zelilof v. Greece, App. No. 17060/03, Eur. Ct. H.R., Judgment of 24 May 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 135, 136 Zwierzynski v. Poland, App. No. 34049/96, Eur. Ct. H.R, Judgment of 19 June 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 COMMITTEE AGAINST TORTURE Blanco Abad v. Spain, Communication No. 59/1996, Committee against Torture, U.N. Doc. CAT/C/20/D/59/1996 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Kepa Urra Guridi v. Spain, Communication No. 212/2002, Committee against Torture, U.N. Doc. CAT/C/34/D/212/2002 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 206 M’Barek v. Tunisia, Communication No. 60/1996, Committee against Torture, U.N. Doc. CAT/C/23/D/60/1996 (24 January 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 O.R., M.M. and M.S. v. Argentina, Communications Nos. 1/1988, 2/1988 and 3/1988, Committee against Torture, in Report of the Committee against Torture, U.N. Doc. A/45/44, Annex V, p. 108 (1990) . . . . . . . . . . . . . . . . . . . . 165, 213 COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION Ahmad Najaati Sadic v. Denmark, Communication No. 25/2002, U.N. Doc. CERD/C/62/D/25/2002 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 175 Ahmad v. Denmark, Communication No. 16/1999, U.N. Doc. CERD/C/56/D/1999 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 174, 175 B.J. v. Denmark, Communication No. 17/1999, U.N. Doc. CERD/C/56/D/17/1999 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Habassi v. Denmark, Communication No. 10/1997, U.N. Doc. CERD/C/54/D/10/1997 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 192 L.K. v. The Netherlands, Communication No. 4/1991, U.N Doc. CERD/C/42/D/4/1991 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173–174 Yilmaz Dogan v. The Netherlands, Communication No. 1 /1984, U.N. Doc. CERD/C/36/D/1/1984 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 192 COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice v. Austria, U.N. Doc. CEDAW/C/39/D/6/2005 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204–205

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J., Judgment of 26 February 2007, at http://www.icj-cij.org/docket/files/91/13685.pdf (last visited 5 December 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154, 156, 239, 247, 262 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 256 Barcelona Traction, Light and Power Co., Ltd., (Belgium v. Spain), 1970 I.C.J. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Corfu Channel, Merits, 1949 I.C.J. 4 (9 April 1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 North Sea Continental Shelf Case (Federal Republic of Germany/Denmark; Federal Republic of Germany/ The Netherlands), 1969 I.C.J. 41 . . . . . . . . . . . . . . . . . 264, 266 Nottebohm Case (Liechtenstein v. Guatemala), 1955 I.C.J. 21–23 . . . . . . . . . . . . . . . . . . . . . . 264 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (28 May 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS International Military Tribunal for the Trial of the Major War Criminals, Judgment of 1 October 1946, reprinted in 41 Am. J. Int’l L. 172, 221 (1947) . . . . . . . . . . . . 262 Prosecutor v. Kallon and Kamara, Case Nos. SCSL-2004-15-AR 72 (E), SCSL-2004-16-AR 72 (E), Special Court for Sierra Leone (Appeals Chamber), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 272 The Prosecutor v. Blaškic, ´ Subpoena duces tecum, Case No. IT-95-14-AR 108, I.C.T.Y, Decision of 29 July 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 The Prosecutor v. Dragan Obrenovi´c, Case No. IT-02-60/2-S, ICTY Sentencing Judgment of 10 December 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 The Prosecutor v. Dusko Tadi´c, Case No. IT-94-1-A, ICTY, Decision of 2 October 1995, at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm (last visited 5 December 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 The Prosecutor v. Erdemovi´c, Case No. IT-96-22-T, ICTY, Sentencing Judgment of 26 November 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 The Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ICTY, Judgment of 10 December 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 253, 254 The Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, ICTR, Judgment and Sentence of 4 September 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 The Prosecutor v. Muci´c et al., Case No. IT-96-21, ICTY, Judgment of 16 November 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prosecutor v. Tihomir Blaški´c, Case No. IT-95-14, ICTY, Judgment of 3 March 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARBITRATION CASES Chase Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 19, 4 R. Int’l Arb. Awards 339 (1928) . . . . . . . . . . . . . . . . . . . . . 233 Cornelia J. Pringle et al. (U.S.A.) v. The United Mexican States (Santa Isabel Claims), Mexico-United States Special Claims Commission, 5 G. Hackworth, Digest of International Law 547 (1943), 26 April 1926 . . . . . . . . . . . . . . . . . . . . . . . . . 233

Table of Cases

xxv

Cotesworth and Powell Case, British-Colombia Mixed Commission, 5 November 1875. 2 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 2050 (1898) . . . . . . . . . . . 232 Devine Case, 3 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 2980 (1898) . . . . . . . . . . . 232 F. R. West (U.S.A.) v. The United Mexican States, United States and Mexico General Claims Commission, Opinions 404, 4 R. Int’l Arb. Awards 270 (1927), 21 July 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Gust Adams (The United States) v. Panama, 6 R. Int’l Arb. Awards 321 (1955), 21 June 1933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 237–238 Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82 (1927) . . . . . . . 230–231, 237, 261 L. F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States, United States and Mexico General Claims Commission, Opinions 71, 4 R. Int’l Arb. Awards 60, 15 October 1926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 237 Rainbow Warrior (New Zealand v. France), Conciliation Pertaining to the Differences between France and New Zealand Arising from the Rainbow Warrior Affair, 1986, Ruling by the U.N. Secretary General Perez de Cuellar, 26 I.L.M. 1346 (1987), 5 July 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Rainbow Warrior (New Zealand v. France), France-New Zealand Arbitration Tribunal, 82 I.L.R. 499 (1990), 30 April 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Salome Lerma de Galván (The United Mexican States) v. The United States of America, United States and Mexico General Claims Commission, Opinions 408, 4 R. Int’l Arb. Awards 273 (1927), 21 July 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Santa Isabel Claims (United States v. Mexico), Opinions 1, 4 R. Int’l Arb. Awards 783 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 The Buena Tierra Mining Co. (Great Britain) v. The United Mexican States, British- Mexican Claims Commission, 5 R. Int’l Arb. Awards 252, 3 August 1931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 The Montijo (US v. Colombia), 26 July 1875, 2 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 1421 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 DOMESTIC CASES Audiencia Nacional [Highest Court of Ordinary Jurisdiction], Appeal 173/98 Order of the Criminal Chamber, (1998) (Spain) . . . . . . . . . . . . . . . . . . . . . . 274 AZAPO v. President of the Republic of South Africa 1996 (4) SA 672 (S. Afr.) . . . . . . . . . . . . . 283 Bundesverfassungsgericht [Federal Constitutional Court]: 39 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 1 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 211 51 BVerfGE 324 (F.R.G.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 66 BVerfGE 203 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 88 BVerfGE 203 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 200 90 BVerfGE 145 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 1993 Neue Juristische Wochenschrift 915 Nr.2, 3 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 BVerfG, File No. 2 BvR 1492/96, Decision of 10 February 1997 (F.R.G.) . . . . . . . . . . . . . . . . . 211 BVerfG, File No. 2 BvR 1314/97, Decision of 4 May 1998 (F.R.G.) . . . . . . . . . . . . . . . . . . . . . 211 BVerfG, File No. 2 BvR 1551/01, Decision of 5 November 2001 (F.R.G.) . . . . . . . . . . . . . 211, 212 BVerfG, File No. 2 BvR 2104/01, Decision of 28 March 2002 (F.R.G.) . . . . . . . . . . . . . . . 211, 212 Corte Suprema de Chile, ‘Juan Contreras Sepúlveda y otros,’ 517/2004, Resolución 22267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

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Table of Cases

Corte Suprema de Justicia [CSJN], 14/6/2005, ‘Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,’ Case No. 17.768, S.1767.XXXVIII (Arg.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cour de cassation, Cass. crim. [Highest Court of Ordinary Jurisdiction, Criminal Chamber], Affaire Ely Ould Dah, No. de pourvoi : 02-85379, 23 October 2002, Bull. crim. No. 195, p. 725 (Fr.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cour de cassation, Cass. crim. [Highest Court of Ordinary Jurisdiction, Criminal Chamber], Bosnian victims v. Serbs, 26 March 1995, (Fr.) . . . . . . . . . . . . . . . . . . . French Conseil Constitutionnel, Decision of 22 January 1999, No. 98-408 DC, 1999 J.O. 1317, at http://www.conseil-constitutionnel.fr/conseilconstitutionnel/francais/les-decisions/depuis-1958/decisions-par-date/1999/98-408-dc/ decision-n-98-408-dc-du-22-janvier-1999.11823.html (last visited 5 December 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H.R. and Mohamed Momani v. The Federation of Bosnia and Herzegovina, Case No. CH/98/946, Human Rights Chamber for Bosnia and Herzegovina, Decision on Admissibility and Merits of 5 November 1999 . . . . . . . . . . . . . . . . . . . . . . . . . R. v. H [2002] UKHL, [2001] EWCA Crim 1024, [2002] 1 Cr.App.R. 7(Eng.) . . . . . . . . . . . . R. (Armani de Silva) v. Director of Public Prosecutions, [2006] EWHC (Admin) 3204 (Eng.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.A.V v. City of St. Paul, 505 U.S. 377 (1992) (U.S.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Srebrenica Cases (Selimovic and Others), Case Nos. CH/01/8365 et al., Human Rights Chamber for Bosnia and Herzegovina, Decision on Admissibility and Merits of 3 March 2003115

107

274 260

270

115 147 147 201

List of Documents HUMAN RIGHTS COMMITTEE

Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46 (1995). Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/ CO/70/ARG (2000). Concluding Observations of the Human Rights Committee: Brazil, U.N. Doc. CCPR/ C/79/Add.66 (1996). Concluding Observations of the Human Rights Committee: Bulgaria, U.N. Doc. CCPR/ C/79/Add.24 (1993). Concluding Observations of the Human Rights Committee: Burundi, U.N. Doc. CCPR/ C/79/Add.41 (1994). Concluding Observations of the Human Rights Committee: Cambodia, U.N. Doc. CCPR/C/79/Add.108 (1999). Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/ C/79/Add.104 (1999). Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add.76 (1997). Concluding Observations of the Human Rights Committee: Congo, U.N. Doc. CCPR/ C/79/Add.118 (2000). Concluding Observations of the Human Rights Committee: Croatia, U.N. Doc. CCPR/ CO/71/HRV (2001). Concluding Observations of the Human Rights Committee: Dominican Republic, U.N. Doc. CCPR/C/79/Add.18 (1993). Concluding Observations of the Human Rights Committee: El Salvador, U.N. Doc. CCPR/C/79/Add.34 (1994). Concluding Observations of the Human Rights Committee: Ecuador, Report of the 53rd Sess., Suppl. No. 40, U.N. Doc. A/53/40, Vol. I (1998). Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/Add.63 (1996). Concluding Observations of the Human Rights Committee: Haiti, U.N. Doc. CCPR/ C/79/Add.49 (1995).

xxviii

List of Documents

Concluding Observations of the Human Rights Committee: Mali, U.N. Doc. CCPR/ CO/77/MLI (2003). Concluding Observations of the Human Rights Committee: Mexico, U.N. Doc. CCPR/ C/79/Add.109 (1999). Concluding Observations of the Human Rights Committee: Morocco, U.N. Doc. CCPR/ C/79/Add.44, D. (1994). Concluding Observations of the Human Rights Committee: Nepal, U.N. Doc. CCPR/ C/79/Add.42 (1994). Concluding Observations of the Human Rights Committee: Niger, U.N. Doc. CCPR/ C/79/Add.17 (1993). Concluding Observations of the Human Rights Committee: Nigeria, U.N. Doc. CCPR/ C/79/Add.65 (1996). Concluding Observations of the Human Rights Committee: Paraguay, U.N. Doc. CCPR/ C/79/Add.48 (1995). Concluding Observations of the Human Rights Committee: Peru, U.N. Doc. CCPR/ C/79/Add.67 (1996). Concluding Observations by the Human Rights Committee: Peru, U.N. Doc. CCPR/ CO/70/PER (2000). Concluding Comments of the Human Rights Committee: Romania, U.N. Doc. CCPR/ C/79/Add.30 (1993). Concluding Observations of the Human Rights Committee: Senegal, U.N. Doc. CCPR/ C/79/Add.10 (1992). Concluding Observations of the Human Rights Committee: Slovenia, U.N. Doc. CCPR/ CO/84/SVN (2005). Concluding Observations of the Human Rights Committee: Sri Lanka, U.N. Doc. CCPR/ C/79/Add.56 (1995). Concluding Observations of the Human Rights Committee: Tunisia, U.N. Doc. CCPR/ C/79/Add.43 (1994). Concluding Observations of the Human Rights Committee: Uganda, U.N. Doc. CCPR/ CO/80/UGA (2004). Concluding Observations of the Human Rights Committee: Uruguay, U.N. Doc. CCPR/ C/79/Add.19 (1993). Concluding Observations of the Human Rights Committee: Yemen, U.N. Doc. CCPR/ C/79/Add.51 (1995). General Comment No. 6: The Right to Life (Art. 6), U.N. Doc. HRI/GEN/1/Rev.1 (27 July 1982).

List of Documents

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General Comment No. 7: Torture or cruel, inhuman or degrading treatment or punishment (Art. 7), U.N. Doc. HRI/GEN/1/Rev.1 (30 May 1982). General Comment No. 11: Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred (Art. 20), U.N. Doc. HRI/GEN/1/Rev.1 (29 July 1983). General Comment No. 20: Replaces General Comment No. 7 concerning prohibition of torture and cruel treatment or punishment (Article 7), U.N. Doc. HRI/GEN/1/Rev.1, 32 (3 April 1992). General Comment No. 29: States of Emergency (Art. 4), U.N. Doc. CCPR/C/21/Rev.1/ Add.11 (31 August 2001). General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004). Summary record of the 1365th meeting: Morocco, U.N. Doc. CCPR/C/SR.1365 (1994). Summary record of the 1397th meeting: Haiti, U.N. Doc. CCPR/C/SR.1397/Add.1 (1994). Summary record of the 1398th meeting: Haiti, U.N. Doc. CCPR/C/SR.1398 (1995). Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/SR.1519 (1997). Summary record of the 1520th meeting: Peru, U.N. Doc. CCPR/C/SR.1520 (1996). Summary record of the 1940th meeting: Guatemala, U.N. Doc. CCPR/C/SR.1940 (2001). COMMITTEE AGAINST TORTURE

Committee against Torture, Report of the Committee against Torture, GAOR, 55th Sess., Supp. No. 44, U.N. Doc. A/55/44 (2000). Concluding Observations on Argentina, U.N. Doc. A/48/44 (1993). Concluding Observations on Azerbaijan, in: Report of the Committee against Torture, GAOR, 55th Sess., Supp. No. 44, U.N. Doc. A/55/44 (2000). Concluding Observations on Bolivia, in: Report of the Committee against Torture, GAOR, 56th Sess., Supp. No. 44, U.N. Doc. A/56/44 (2001). Concluding Observations on Colombia, in: Report of the Committee against Torture, GAOR, 51st Sess., Supp. No. 44, U.N. Doc. A/51/44 (1996). General Comment No. 2, U.N. Doc. CAT/C/GC/2 (24 January 2008).

xxx

List of Documents COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

Concluding Observations on the Russian Federation, U.N. Doc. CERD/C/304/Add.43 (1998). Concluding Observations on Rwanda, U.N. Doc. CERD/C/56/Misc.38/Rev.3 (2000). Decision 1 (52) on the Democratic Republic of the Congo, U.N. Doc. CERD/C/52/Misc. 32 (1998). General Recommendation No. 26, 24 March 2000, 56th Session, in U.N. Doc. HRI/ GEN/1/Rev.6 (2003). COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN

General Recommendation No. 19, Violence against Women (11th Sess., 1992), U.N. Doc. A/47/38 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/ Rev.6 at 243 (2003). UNITED NATIONS COMMISSION ON HUMAN RIGHTS

Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights), U.N. Doc. E/CN.4/ Sub.2/1997/8 (27 June 1997). Commission on Human Rights, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1 (2 October 1997). Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, U.N. Doc. E/CN.4/2004/88 (27 February 2004). Commission on Human Rights, Impunity, U.N. Doc. E/CN.4/RES/2005/81 (2005). Commission on Human Rights, Res. 2003/72, Impunity, in U.N. Doc. E/CN.4/2003/L.11/ Add.7 (2003). Commission on Human Rights, Res. 2004/72, Impunity, in U.N. Doc. E/CN.4/2004/L.11/ Add.6 (2004). Commission on Human Rights, Res. 2005/66, Right to the Truth, in U.N. Doc. E/CN.4/ RES/2005/66 (2005). Commission on Human Rights, Report on the Thirty-Seventh Session, ESCOR, 37th Sess., Supp. No. 5, p. 50, U.N. Doc. E/1981/25 (1981), U.N. Doc. E/CN.4/1475 (1981).

List of Documents

xxxi

Commission on Human Rights Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/Add.1 (8 February 2005) (prepared by Diane Orentlicher). Diane Orentlicher, Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat All Aspects of Impunity, U.N. Doc. E/CN.4/2004/88 (2004). Louis Joinet, Special Rapporteur, Study on amnesty laws and their role in the safeguard and promotion of human rights, U.N. Commission on Human Rights, U.N. Doc. E/CN.4/ Sub.2/1985/16 (1985). Louis Joinet, Revised Final Report pursuant to Sub-Commission decision 1996/119, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), SubCommission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/ CN.4/Sub.2/1997/20/Rev.1 (1997). Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/ CN.4/2006/56 (2005). Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, U.N. Doc. E/CN.4/2004/59 (23 February 2004). Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, U.N. Doc. E/CN.4/2006/57 (2 February 2006). Report of the Special Rapporteur on the Question of Torture to the Commission on Human Rights, U.N. Doc. E/CN.4/1995/34 (1995). Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6 (2 July 1985). Commission on Human Rights, 5th Sess., Supp. No. 5, U.N. Doc. E/CN.4/SR.90 (1949). Commission on Human Rights, 6th Sess., Supp. No. 5, U.N. Doc. E/CN.4/SR.195 (1950). Commission on Human Rights, Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Additional Articles, U.N. Docs E/CN.4/365 (Philippines), A/C.3/L.1166 (Japan) (1950). Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Session, Final report submitted by Theo van Boven, Special Rapporteur, U.N. Doc. E/ CN.4/Sub.2/1993/8. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 49th Session, U.N. General Assembly, U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1. Sub-Commission Resolution on the Question of the impunity of perpetrators of violations of human rights (economic, social and cultural rights), 1996/24.

xxxii

List of Documents HUMAN RIGHTS COUNCIL

Human Rights Council, Note Verbale dated 20 June 2006 from the Permanent Mission of the United States of America to the United Nations Office at Geneva addressed to the Secretariat of the Human Rights Council, U.N. Doc. A/HRC/ 1/G/1 (27 June 2006). Human Rights Council, Resolution 7/29, Rights of the Child, H.R.C. Res. 7/29, U.N. GAOR, 63rd Sess., Supp. No. 53, U.N. Doc. A/HRC/Res/7/29 (28 March 2008). UNITED NATIONS SECURITY COUNCIL

S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993). S.C. Res. 955, U.N. Doc. S/RES/955 (8 November 1994). S.C. Res. 1315, U.N. Doc. S/RES/1315 (14 August 2000). S.C. Res. 1529, U.N. Doc. S/RES/1529 (29 February 2004). S.C. Res. 1820, U.N. Doc. S/RES/1820 (2008). UNITED NATIONS GENERAL ASSEMBLY

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/Res/60/147 (16 December 2005). Declaration on the Protection of All Persons from Enforced Disappearance, G.A. Res. 47/133, U.N. GAOR, 47th Sess., Supp. No. 49, vol. I, U.N. Doc. A/Res/47/133 (18 December 1992). International Convention for the Protection of All Persons from Enforced Disappearance, G.A. Res. 61/177, U.N. GAOR, 61st Sess., Supp. No. 49, vol. I, U.N. Doc. A/Res/61/177/ Annex (20 December 2006). G.A. Res. 57/228, U.N. GAOR, 57th Sess., Supp. No. 49, vol. I, U.N. Doc. A/Res/57/228 (18 December 2002). Convention on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, G.A. Res. 317 (IV), U.N. GAOR, 4th Sess., U.N. Doc. A/1251 (2 December 1949). International Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, vol. I, U.N. Doc. A/9030 (30 November 1973). Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes against Humanity, G.A. Res. 3074 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, vol. I, U.N. Doc. A/9030/Add.1 (3 December 1973).

List of Documents

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Convention on the Non-Applicability of Statutory Limitations to War Crimes against Humanity, G.A. Res. 2391 (XXIII), U.N. GAOR, 23rd Sess., Supp. No. 18, U.N. Doc. A/7218 (26 November 1968). U.N. General Assembly, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council, Report of the 6th Committee, U.N. Doc. A/760 (3 December 1948). U.N. General Assembly, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council, revised text adopted by the Sixth Committee for article VI, U.N. Doc. A/C.6/254/Rev.1 (9 November 1948). U.N. General Assembly, Sixth Committee, Summary Record of the 134th Session of the 6th Committee of the General Assembly, U.N. GAOR, 3rd Sess., 1st part, U.N. Doc. A/C.6/ SR.134 (2 December 1948). UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Econ. & Soc. Council [ECOSOC] Res. 1989/65, Annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989). ECOSOC, Report of the Committee and Draft Convention drawn up by the Committee, U.N. Doc. E/794 (24 May 1948). ECOSOC, Resolution 1989/65 (24 May 1989). ECOSOC, Sub-Commission Prevention of Discrimination and Protection of Minorities, The Administration of Justice and the Human Rights of Detainees—Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political). Revised Final Report Prepared by Mr. Joinet pursuant to Sub-Commission Decision 1996/119, Annex II, U.N. Doc. E/CN/ Sub.2/1997/20/Rev.1 (2 October 1997). UNITED NATIONS: MISCELLANEOUS

Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (4 October 2000). U.N. Truth Commission, The Commission on the Truth for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N. Doc. S/25500, Annex (1993). United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc. E/ST/CSDHA/.12 (1991).

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Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the work of its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (28 September 2001). Draft Code of Crimes Against the Peace and Security of Mankind, in 1996 YB. I.L.C, vol. II, part 2, Chapter II, U.N. Doc. A/CN.4/SER.A/1996/Add.l (Part 2) (1996). Commentary on Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, 53rd Session (23 April–1 June and 2 July– 10 August 2001), U.N. GAOR, 56th Sess., Suppl. No. 10, U.N. Doc. A/56/10 (2001). Fifth Report on State Responsibility, U.N. Doc. A/CN.4/453, Add.2 (8 June 1993). Report of the I.L.C. to the U.N. General Assembly, U.N. GAOR, Supp. Nos. 12, 13–14, U.N. Doc. A/1316 (1950). Report of the International Law Commission on the work of its Forty-eighth Session, U.N. G.A.O.R., 51st Sess., Supp. no. 10, U.N. Doc. A/51/10, Chapter II (1996). INTER-AMERICAN COURT OF HUMAN RIGHTS

Inter-American Court of Human Rights, Advisory Opinion No. 9/87, 1987 Inter-Am. Ct. H.R. (ser. A) No. 9 (1987). Inter-American Court of Human Rights, Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (ser. A) No. 13 (16 July 1993). INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Annual Report of 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V (1986). Annual Report of 1989–90, OEA/Ser.L/V/II.77, rev. 1 doc. 7 (17 May 1990). Annual Report of 1993, OEA/Ser.L/V/II.85, doc. 9, rev., Ch. IV (1994). Enactment of the Amnesty Law and El Salvador’s International Commitments, Inter-Am. C. H.R., Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.85, doc. 28 rev. (11 February 1994). Report on the Situation of Human Rights in the Republic of Guatemala, OEA/Ser.L/V/ II.61, doc. 47 rev. (1983). Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity (2001). Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. (2000).

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Special Report on the Human Rights Situation in the so-called ‘Communities of Peoples in Resistance’ in Guatemala, OEA/Ser.L/V/II.86, doc. 5 rev. 1 (June 1994). COUNCIL OF EUROPE

Committee of Ministers, Resolution of 12 May 2004, DH Res. (2004). Committee of Ministers, Recommendation No. R (83) 7 on Participation of the Public in Crime Policy (23 June 1983) (last accessed 4 December 2008). Committee of Ministers, Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (28 June 1985) reprinted in [1991] 28 Y.B.E.C.H.R. 232. Committee of Ministers, Recommendation No. R (87) 21 on Assistance to Victims and the Prevention of Victimisation (17 September 1987) reprinted in [1992] 30 Y.B.E.C.H.R. 231. COUNCIL OF THE EUROPEAN UNION

Council of the European Union Framework Decision of 15 March 2001 on the Standing of Victims in criminal proceedings 2001/220/JHA, O.J. (L 82/1).

1 Introduction 1. The growing relevance of prosecution in international law Confronting serious human abuses by means of prosecution has been an issue of international law throughout the last century. Starting with the Nuremberg Trials and those for the Far East, individuals have been held accountable for the most serious atrocities including crimes against humanity committed in the Second World War by multilateral bodies.1 The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 provided for criminal prosecution at both the international and domestic level.2 However, in the following decades the international community failed to establish an international criminal tribunal. Since the 1990s there has been a renaissance of the idea of international prosecution: the ad hoc Criminal Tribunals for the Former Yugoslavia and Rwanda,3 as well as the Rome Statute of the International Criminal Court,4 are prominent examples of this trend. They are based on the conviction that those responsible for the most serious crimes, including crimes against humanity and genocide, should not go unpunished. The growing institutional framework together with the developing body of international criminal law illustrates the increasing relevance of criminal

1 United States, France, Great Britain, Soviet Union, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, Am. J. Int’l L. 1945, Suppl., 257. For the historical development of international criminal law, see Gary Jonathan Bass, Stay the Hand of Vengeance—The Politics of War Crimes Tribunals (2000). 2 Article VI of the Genocide Convention provides that perpetrators ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 227 [hereinafter Genocide Convention]. 3 The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 was established by S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993) on the basis of Chapter VII of the UN Charter, and the International Criminal Tribunal for Rwanda was established by S.C. Res. 955, U.N. Doc. S/RES/955 (8 November 1994). 4 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, 15 June–17 July 1998, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (17 July 1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter Rome Statute].

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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Introduction

accountability in international law. It has even been described as the emerging concept of global justice.5 When considering this development it is important to note that the laws of armed conflict served as the precursor to the prosecution of serious human rights violations. The idea of criminal punishment for grave violations of international law originally developed in the area of international humanitarian law.6 At the beginning of the twentieth century the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 19067 and the Tenth Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 19078 already required punishment for specific offences. This was followed, in the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 1929, by a comprehensive duty on the High Contracting Parties to criminalize violations of the Convention.9 The crimes prosecuted by the Allies in Nuremberg, i.e. crimes against peace, crimes against humanity, and war crimes, were all linked to the Second World War. In the post-war period the concept of criminal punishment most prominently entered the four Geneva Conventions of 1949. The Conventions set up the grave breaches regime for the protection of particularly vulnerable persons in international armed conflicts:10 they provide for a comprehensive duty 5 Andreas O’Shea, Amnesty for Crime in International Law and Practice 320 (2002). 6 For the historical development which goes back to the trial of Peter von Hagenbach see Edoardo Greppi, The Evolution of Individual Criminal Responsibility under International Law, 835 International Review of the Red Cross 531–553 (1999). 7 Article 28 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 6 July 1906, 11 L.N.T.S. 440: ‘In the event of their military penal laws being insufficient, the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of robbery and ill treatment of the sick and wounded of the armies, as well as to punish, as usurpations of military insignia, the wrongful use of the flag and brassard of the Red Cross by military persons or private individuals not protected by the present convention. They will communicate to each other through the Swiss Federal Council the measures taken with a view to such repression, not later than five years from the ratification of the present convention.’ 8 Article 21 Hague Convention X—Adaptation to Maritime War of the Principles of the Geneva Convention, 18 October 1907, 15 L.N.T.S. 340: ‘The Signatory Powers likewise undertake to enact or to propose to their legislatures, if their criminal laws are inadequate, the measures necessary for checking in time of war individual acts of pillage and ill-treatment in respect to the sick and wounded in the fleet, as well as for punishing, as an unjustifiable adoption of naval or military marks, the unauthorized use of the distinctive marks mentioned in Article 5 by vessels not protected by the present Convention.’ 9 Article 29 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 27 July 1929, 118 L.N.T.S. 303 provides: ‘The Governments of the High Contracting Parties shall also propose to their legislatures should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the present Convention. They shall communicate to one another, through the Swiss Federal Council, the provisions relative to such repression not later than five years from the ratification of the present Convention.’ However, no such obligation existed under the Convention relative to the treatment of prisoners of war. 10 Article 50 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Art. 51 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Art. 130 Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Art. 147 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287. For a definition of these offences

The growing relevance of prosecution

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to criminalize and punish particularly serious violations identified in the Conventions.11 While international criminal law originated primarily in the realm of the law of armed conflict, human rights law nowadays plays an increasing role. This is due to numerous crimes being committed outside the context of armed conflict and therefore beyond the reach of international humanitarian law. As a consequence a nexus between armed conflict and the crime of genocide and crimes against humanity is no longer required. Since the current field of international criminal law is still fragmented and covers only a limited number of crimes, human rights law has recently attracted growing attention.12 Efforts have been made to refer to this body of law in order not only to interpret existing crimes but also to extend the catalogue of international crimes.13 The international protection of human rights is occasionally viewed as a legal basis for filling the gaps which still exist in international criminal law and also to complement international criminal law.14 This not only encompasses torture and genocide—for which the respective conventions already provide criminal sanctions—but serious human rights violations in general. Human rights law is now also used to enhance the enforcement of international criminal law at the domestic level.15 Since international criminal tribunals see Rüdiger Wolfrum, Enforcement of International Humanitarian Law, in The Handbook of Humanitarian Law in Armed Conflicts 517, 532–540 (Dieter Fleck ed., 1995). See also the case law of the Yugoslavia Tribunal; e.g. Prosecutor v. Mucic´ et al., Case No. IT-96-21, Judgment (16 November 1998), paras 419–583, Prosecutor v. Tihomir Blaškic´, Case No. IT-95-14, Judgment (3 March 2000), paras 151–158. 11 Similarly, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 provides for the prosecution of breaches of the Convention. Art. 28 of the Convention reads: ‘The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention’ Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U.N.T.S. 240. 12 Pursuant to art. 5 para. 1 of the Rome Statute ‘[t]he jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’. The crime of genocide, crimes against humanity, war crimes, and the crime of aggression as defined by the Statute are crimes within the jurisdiction of the Court. The jurisdiction of the ICTY is limited to grave breaches of the Geneva Conventions of 1949 (Art. 2 ‘Statute of the International Tribunal for the Former Yugoslavia’ S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993)), violations of the laws or customs of war (art. 3), genocide (art. 4) and crimes against humanity (art. 5). 13 The ICTY has regularly referred to the Torture Convention in elaborating its jurisprudence on torture. An example for extending the scope of international criminal law by way of reference to human rights law is the incorporation of enforced disappearances into the Rome Statute (art. 7(1)(i)). 14 See e.g. M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 24 (1995); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 499 (1st edn, 1992); Mirko Bagaric & John Morss, In Search of Coherent Jurisprudence for International Criminal law: Correlating Universal Human Responsibilities with Universal Human Rights, 29 Suffolk Transnat’l L. Rev. 157–206 (2005–2006). 15 See e.g. Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92, para. 106 (27 February 2002); Human Rights Committee, General Comment No. 31: The Nature of the

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Introduction

can only supplement and not replace national prosecution, domestic criminal proceedings remain pivotal for the effective implementation of international criminal law.16 The question whether there is a comprehensive duty on States to criminalize serious human rights violations has therefore become particularly relevant. In view of this development and of the broad spectrum of academic writing on international criminal law,17 it is currently time to consider criminal prosecution from a human rights angle and to evaluate whether international human rights law provides an adequate basis for the extension of criminal obligations. International and regional human rights treaties are therefore the focus of this research.18 This text engages the interface between international criminal law and international human rights through a consideration of international standards relevant for the prosecution of serious violations of civil and political rights. By illustrating recent judicial developments in international human rights, the text is intended to supplement and bring together the study of these bodies of international law.19

General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/ Rev.1/Add.13, para. 18 (26 May 2004). 16 Rüdiger Wolfrum, The Decentralized Prosecution of International Offences Through National Courts, in War Crimes in International Law 233, 235 et seq. (Yoram Dinstein & Mala Tabory eds, 1996). International prosecution by the International Criminal Court is meant only to complement domestic procedures. Art. 17 of the Rome Statute. For the relationship between the ICC and domestic procedures see Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity, 7 Max Planck UNYB 591 (2003). 17 See e.g. The Oxford Companion to International Criminal Justice (Antonio Cassese et al. eds, forthcoming 2009); Antonio Cassese, International Criminal Law (2nd edn, 2008); Kriangsak Kittichaisaree, International Criminal Law (2001); Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law (2nd edn, 2001); Gerhard Werle, Principles of International Criminal Law (2005); R. Cryer, H. Friman, D. Robinson, & E. Wilmshurst, An Introduction to International Criminal Law and Procedure (2007); Ilias Bantekas & Susan Nash, International Criminal Law (3rd edn, 2007); Claire de Than & Edwin Shorts, International Criminal Law and Human Rights (2003); From Human Rights to International Criminal Law (Emmanuel Decaux et al. eds, 2007); William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2006); William A. Schabas, An introduction to the International Criminal Court (3rd edn, 2007); Geert-Jan Alexander Knoops, An Introduction to the Law of International Criminal Tribunals: A Comparative Study (2003); Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Cesare P.R. Romano, André Nollkaemper, & Jann K. Kleffner eds, 2004); Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (2003). 18 This is why the conventions penalizing terrorist acts which provide for the concept of aut dedere aut judicare are not the subject here of analysis. For this issue see M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 18 (1995). 19 See e.g. Christian Tomuschat, Human Rights (2nd edn, 2008); Henry J. Steiner, Philip Alston, & Ryan Goodman, International Human Rights in Context (3rd edn, 2008); Dinah Shelton, Remedies in International Human Rights Law (2nd edn, 2005); Access to Justice (Francesco Francioni ed., 2007). For literature on international criminal law see note 20. For some cutting crossissues see Judges, Transition, and Human Rights (John Morison, Kieran McEvoy, & Gordon Anthony eds, 2007); Christine Bell, Peace Agreements and Human Rights (2000).

Impunity, amnesties, and flawed criminal proceedings

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While there is a wealth of literature on the right to a fair trial for the accused,20 the focus of this text is on the opposing question—whether there is a duty to prosecute serious human rights violations. The objective is to present a concise overview of the present scope of obligations regarding accountability for human rights violations and to evaluate critically the role that prosecution plays under human rights law in general. The text ultimately seeks to clarify to what extent international human rights law is able to complement international criminal law. It not only concerns the potential but also the necessary limits of this process. Among the questions addressed are: which human rights violations require criminal prosecution? What are the standards set by human rights law for the criminalization, investigation, prosecution, and punishment of human rights abuses? Why are these standards essential for the protection of human rights? Under what circumstances could they be compromised? By elaborating on the essential elements for confronting serious human rights abuses, the text also seeks to influence the future of post-conflict justice. In such situations it is often argued that criminal punishment of the crimes committed during a conflict threatens future peace and reconciliation. This issue, though it has been on the international agenda for several decades, is far from being settled. The question how to deal with post-conflict justice under international law is a continuing theme throughout the text. Not only is it intended to give guidance to States but also to the international community as a whole. This is of practical importance for the peacekeeping efforts of the United Nations which need to accommodate international human rights standards. What is advocated is the development of a strategic framework to take due account of the current international legal standards concerning the prosecution of serious human rights violations.

2. Impunity, amnesties, and flawed criminal proceedings Whether human rights law provides for a duty to prosecute serious human rights violations is relevant in practice when considering the large-scale impunity which can be found throughout the world. Such impunity has many faces; from disorganized de facto incidents to the systematic granting of immunity.21 It is 20 Stefan Trechsel, Human Rights in Criminal Proceedings (2005); Sarah J. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (2007); Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002); Salvatore Zappalà, Human Rights in International Criminal Proceedings (2003); Ben Emmerson, Andrew Ashworth, & Alison Macdonald, Human Rights and Criminal Justice (2nd edn, 2007); Stephen Livingstone & Jonathan Doak, Human Rights Standards and Criminal Justice (2000); The Criminal Process and Human Rights: Toward a European Consciousness (Mireille Delmas-Marty & Mark A. Summers eds, 1995). 21 For a definition of this term, see U.N. Commission on Human Rights Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, 6, U.N. Doc.

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Introduction

also relevant with respect to centrally proscribed amnesties. The purpose of this text is not to give a comprehensive overview of these different forms of impunity but to clarify the legal parameters set by human rights law. It is possible here only to give a cursory sketch of the factual problems and for more detailed consideration the reader is referred to the wealth of literature given elsewhere on amnesties and truth commissions.22 The last decades of the twentieth century witnessed a broad range of amnesties around the world. Starting in the late 1970s, several governments in the Americas granted amnesties to the military, police, and security forces. The reasons for granting amnesty are manifold: for example, authoritarian regimes are inclined to provide for self-amnesties in order to escape future punishment. In such instances amnesty is used to conceal past crimes. Sometimes an amnesty is proclaimed for offences committed by political opponents in order to neutralize the opposition.23 In other cases amnesties are considered to be a valuable method of transition from a situation of civil war to one of democracy. The renunciation of criminal prosecution has therefore occasionally been used as a bargaining chip for peace and security.24 The UN-brokered peace agreement for Haiti of 1993, for example, provided for an amnesty in order to end the Cedras regime.25 There are also conditional forms of amnesty where an individual amnesty is granted in return for complete disclosure of crimes committed. An example of this is the South African Truth and Reconciliation Commission.26 The purpose of E/CN.4/2005/102/Add.1 (8 February 2005) (prepared by Diane Orentlicher). For a comprehensive account of different amnesties Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (2008). For the role of amnesties in Europe see La Clémence Saisie par le Droit: Amnistie, Prescription et Grace en Droit International et Comparé (Hélène Ruiz Fabri, Gabriele Della Morte, Elisabeth Lambert Abdelgawad, & Kathia Martin Chenut eds, 2007). 22 For a detailed analysis of different amnesty regimes see e.g. Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice, 73–280 (1995); Frank Achim Hammel, Innerstaatliche Amnestien: Grundlagen und Grenzen aufgrund des internationalen Rechts (1993); Angelika Schlunck, Amnesty versus Accountability: Third Party Intervention Dealing With Gross Human Rights Violations in Internal and International Conflicts (2000); Andreas O’Shea, Amnesty for Crime in International Law and Practice 172–176 (2002); Transitional Justice in the Twenty-First Century; Beyond Truth versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds, 2006); Mark Freeman, Truth Commissions and Procedural Fairness (2006). 23 Louis Joinet, Special Rapporteur, Study on amnesty laws and their role in the safeguard and promotion of human rights, U.N. Commission on Human Rights, paras 33–37, U.N. Doc. E/CN.4/ Sub.2/1985/16 (1985). Provides detailed analysis of the various rationals for providing an amnesty. 24 For this issue see Anon., Human Rights in Peace Negotiations, 18 Hum. Rts. Q. 249 (1996). 25 Governors Island Agreement, see The Secretary-General, Report of the Secretary-General on the Situation of Democracy and Human Rights in Haiti, U.N. Doc. A/47/975-S/26063 (12 July 1993). For a comprehensive analysis of different peace agreements see Christine Bell, Peace Agreements and Human Rights (2000). 26 The Promotion of National Unity and Reconciliation required that the crimes must be proportional to the ends sought and deemed to be political acts. Promotion of National Unity and Reconciliation Act 34 of 1995. See also The Provocations of Amnesty, Memory, Justice and

Impunity, amnesties, and flawed criminal proceedings

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such mechanisms is to enable a society which has been torn apart during a prolonged period of civil unrest to come to terms with its past and to enable a smooth transition to peace and democracy. Investigation and disclosure of past abuses are used as an alternative to prosecution in order to satisfy the victims’ interests and the quest for some form of accountability while, at the same time, attempting to achieve peace in society by the decision not to prosecute. Not only is it necessary to question whether these reasons make sense—an issue which has been extensively dealt with in the literature27—but also whether such models comply with international human rights standards. The answer to this depends to a large extent on whether prosecution of serious human rights violations is an indispensable element of human rights protection; a matter which this text seeks to evaluate. Aside from post-conflict situations, the question of mandatory prosecution of serious human rights violations increasingly occurs outside the area of armed conflict where there is no centrally prescribed impunity. There are a growing number of cases before the international and regional human rights institutions concerned with insufficient criminal proceedings at the national level. Victims of serious human rights violations complain of deficiencies in the prosecution of serious human rights violations, such as murder, torture, and serious bodily harm. The ‘Street Children’ Case before the Inter-American Court of Human Rights is a prominent but sad example of such cases in Latin-America.28 The European Court of Human Rights since the late 1990s has also had to deal with similar cases from Turkey, Bulgaria, and Russia (Chechnyan cases).29 More recently deficiencies have also been claimed with respect to criminal proceedings in west European States.30 Criminal law and criminal procedure at the national level are increasingly scrutinized in order to determine whether they provide for an effective protection in cases of serious human rights abuses. It is no longer an issue exclusively of the InterAmerican Human Rights system but one which requires the attention of every international human rights institution and all domestic jurisdictions. Impunity (Charles Villa-Vicencio & Erik Doxtader eds, 2003); Kader Asmal, Truth, Reconciliation and Justice: The South African Experience in Perspective, 63 Mod. L. Rev. 1 (2000); Gerhard Werle, Without Truth, No Reconciliation, The South African Rechtsstaat and the Apartheid Past, 29 Verfassung und Recht in Übersee 58 (1996) (F.R.G.). For further reflections on Truth Commissions, see e.g. Stephan Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions, 59 Law & Contemp. Probs. 81 (Autumn 1996); Jonathan D. Tepperman, Truth and Consequences, 81 Foreign Aff. 128 (March/April 2002); Antje Pedain, Was Amnesty a Lottery? An Empirical Study of the Decisions of the Truth and Reconciliation Commission’s Committee on Amnesty, 121 S. African L.J. 785 (2004); James L. Gibson, Truth, Reconciliation, and the Creation of a Human Rights Culture in South Africa, 38 Law & Society Rev. 5 (2004). 27 See e.g. Atrocities and International Accountability: Beyond Transitional Justice (Edel Hughes, William A. Schabas, & Ramesh Thakur eds, 2007); Transitional Justice in the Twenty-First Century; BeyondTruth versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds, 2006); Christine Bell, Peace Agreements and Human Rights (2000). 28 Villagran Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63 (19 November 1999). 29 See below Chapter 4, section 3. 30 VO v. France, 2004-VIII Eur. Ct. H.R. 67; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007.

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Introduction

Current cases not only concern the lack of punishment but also the lack of criminalization, enforcement mechanisms, and the deficits of criminal proceedings. While initially the human rights institutions were concerned with large-scale impunity there is a growing body of cases, especially under the European Human Rights system, dealing with inadequacies in criminal legislation and in the conduct of criminal proceedings in individual cases. Criminal law and criminal procedure at the national level are increasingly scrutinized in order to determine whether they provide effective protection in case of human rights abuses. New case law is specifying standards having far-reaching implications for the domestic criminal order. While human rights law, with the right to a fair trial, has traditionally been considered to have a restrictive impact on State power with respect to criminal law and procedure, it is progressively used now to extend the reach of criminal law in order to ensure that perpetrators are held accountable. This brings a radical new dimension to human rights law.

3. Methodology and course of analysis With the growing body of international decisions on these matters there is a need for an integrated analysis. This text reviews international human rights jurisprudence and presents a systematic treatment of current doctrine. The purpose is not to advocate criminalization generally but to take stock of existing standards and to consider whether and to what extent mandatory prosecution is a means of human rights protection. Accordingly, the text does not start from a normative approach but from a de lege lata analysis. The first part (Chapters 2–4) considers prosecution as an unwritten obligation of human rights protection. After examining the International Covenant on Civil and Political Rights as a universal instrument, the analysis turns to the InterAmerican system which early on considered a duty to punish serious human rights violations. Thirdly, the most recent judicial developments under the European Convention of Human Rights are elaborated. The main purpose of this part is to explain how the competent courts and treaty bodies have developed their respective doctrine. In order to show differences and similarities it is necessary to consider them individually, even though some arguments are recurring. We will consider whether and why there is a treaty obligation to prosecute and punish serious human rights violations in general even though such a duty is explicitly provided for only in conventions dealing with specific violations (Chapter 5). A detailed representation of the relevant provisions and the applicable jurisprudence are provided in order to guide the reader through the wealth of cases. As a comprehensive tool of reference, this will be of interest for those working in this field of law who are confronted with a large number of cases currently pending before international and regional institutions. The systematic overview of the decisions will seek to give guidance and to ensure coherence in

Methodology and course of analysis

9

future adjudication. The structure of the chapters on the International Covenant on Civil and Political Rights, the American and the European Convention of Human Rights are designed to allow comparison of universal and regional human rights jurisprudence. Some readers may find the concluding remarks of those chapters to be of assistance in giving a general outline rather than a detailed analysis of those subject areas. Throughout the text the focus will be on why prosecution is considered a necessary element of human rights protection. The detailed analysis of relevant decisions seeks to examine and elaborate on the underlying rationale for the claimed duty to prosecute serious human rights violations. This reveals that different rationales have been applied at different times by the relevant human rights institutions. These differences in legal reasoning are not of purely academic concern. It will be demonstrated that the outcome of controversial cases depends largely on the applied rationale. The chronological presentation of the case law in each chapter helps to illustrate this point and shows that over the years amnesties have been evaluated differently, largely due to the fact that prosecution and punishment have been sought for different reasons. Unfortunately, jurisprudence varies and so far does not provide for a consistent approach. The search for an adequate legal doctrine therefore continues. In order to determine the future role of international human rights law in the administration of justice it is necessary to take care in framing the duty to prosecute in legal terms. To guide this undertaking, the text—following the survey of the relevant jurisprudence—departs from its descriptive orientation and seeks to develop a solid conceptual framework on the basis of the relevant provisions. Chapter 6, therefore, compares and evaluates the different legal rationales for the obligation to prosecute serious human rights violations and makes suggestions for further judicial development. It seeks to guide future conceptualization by focusing on the specific role prosecution can play under human rights law. Differing from those writings concerned with the purposes of punishment from a criminal point of view, it asks which of those purposes is relevant for the protection of human rights. The chapter concludes with a summary intended for those readers interested in an overview of the subject area. Chapter 7 turns to the question whether customary international law provides for a State duty to prosecute serious human rights violations. Reference is made to international criminal law as well as to the emerging concept of State responsibility for human rights violations. Recent developments are highlighted. Since the entire study is evidence of a growing convergence of human rights and international criminal law the concluding remarks are devoted to this rising trend in international law. Chapter 8 evaluates this development by considering the role human rights law should play in the emerging concept of global justice. The book concludes with a caveat, not to assume readily an outright obligation to punish human rights violations and also to be aware of the reasons given for the call for punishment. Human rights law is not about retribution and it should not be used

10

Introduction

to extend the scope of international criminal law without a firm legal basis. What may at first sight seem to be a lacuna in human rights law, namely the absence of an explicit obligation to prosecute all serious human rights violations, in a careful analysis proves to be necessary in order to deal adequately with situations requiring specific answers.

2 Prosecution under the International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights is of particular interest when it comes to the question how to fight serious human rights violations around the world. The Covenant is a universal human rights treaty covering a broad range of civil and political rights.1 With over 160 States parties, the Covenant is an instrument that is very broad, not only with respect to its substantive, but also with respect to its territorial, scope.2 It primarily obliges States parties to prevent State officials from interfering with individual rights. But the Covenant is not limited to obligations of non-interference. As evidenced by art. 2(1), States parties are obliged to respect and ensure the Covenant rights. This also includes affirmative duties.3 While the Covenant as an international human rights instrument primarily provides for a preventive, protective regime, it also deals with State obligations after a violation has occurred. Pursuant to art. 2(3), any person whose Covenant rights are violated shall have an effective remedy. But what does this say about the treatment of the individual violator? Is there a duty on States parties to prosecute violations of the Covenant rights? Does it even provide for an individual right for the victim to see offenders prosecuted under the Covenant? There is no explicit provision in the Covenant on how perpetrators of human rights violations should be dealt with. However, the meaning of the Covenant has been elaborated on by the Human Rights Committee (HRC) in the reporting system, in individual communications, and in a number of General Comments. The Human Rights Committee is the treaty body assigned with the supervision of the State parties’ compliance with the Covenant and its implementation.4

1 International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967) [hereinafter ICCPR or Covenant]. 2 According to the Office of the UN High Commissioner for Human Rights there were 164 States parties to the ICCPR and 111 States parties to its First Optional Protocol as of 26 March 2009. 3 For a detailed analysis of the requirements for domestic implementation see Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its article 2 para 2, 5 Max Planck UNYB 399 (2001). 4 See Thomas Buergenthal, The U.N. Human Rights Committee, 5 Max Planck UNYB 341 (2001).

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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Prosecution under the ICCPR

The Committee’s General Comment on art. 7 of 19925 has been occasionally cited as favouring an outright duty to hold offenders responsible. But there is extensive jurisprudence from the Committee regarding punishment of human rights violations which illustrates a more nuanced approach. To show the precise scope of criminal obligations it is necessary to analyse the broad range of pronouncements from the Committee and to understand the underlying rationale. The Committee has repeatedly called upon States parties to hold accountable perpetrators of serious human rights violations. What is meant by accountability will be elaborated in the following chapter. Is it necessary to prosecute and punish perpetrators by imprisonment or are there other feasible sanctions? Another question to be asked is whether the obligation to punish applies only to crimes committed by public officials or extends to private perpetrators too. The duty to investigate and to provide victims with compensation also specifies how States parties should deal with human rights violations. In the last part of this chapter, the validity of amnesties for human rights violations will be addressed and an outline given of the obligations under the Covenant affected by the proclamation of an amnesty. This will be followed by elaborating on how the Human Rights Committee deals with the potential conflict between, on the one hand, the duty to hold human rights offenders responsible and, on the other hand, the need to restore peace after civil war.

1. The duty to bring perpetrators of human rights violations to justice From the beginning, the Human Rights Committee has held repeatedly that States parties are under an obligation to bring perpetrators of human rights violations to justice.6 For example, in Minanga v. Zaire it held that the State party should investigate the events complained of and bring to justice those held responsible for the author’s treatment.7 The case was concerned with arbitrary detention, torture, and 5 Human Rights Committee, General Comment 20: Replaces General Comment 7 concerning prohibition of torture and cruel treatment or punishment (Article 7), U.N. Doc. HRI/GEN/1/Rev.1, 32, para. 13 (3 April 1992). 6 See Barbato v. Uruguay, Communication No. 84/1981, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/38/40, at 124, para. 11 (1983); Quinteros v. Uruguay, Communication No. 107/1981, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/OP/2, in Selected Decisions under the Optional Protocol, Vol. 2, p. 138, at 143, para. 15 (1983); Baboeram et al. v. Suriname, Communications Nos 146/1983, 148 to 154/1983, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/24/D/146/1983, p. 172, at 176, para. 16 (1985); Miango Muiyo v. Zaire, Communication No. 194/1985, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40, at 218, para. 11 (1988); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 7 Isidore Kanana Tshiongo a Minanga v. Zaire, Communication No. 366/1989, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/49/D/366/1989, para. 7 (1993).

The duty to bring perpetrators to justice

13

inhuman treatment. Similarly, in an early enforced disappearance case the Committee urged the Uruguayan Government ‘to bring to justice any persons found to be responsible’ for the victim’s death, disappearance, or ill-treatment.8 Members of the army, security, or other forces responsible for summary and arbitrary executions, enforced or involuntary disappearances, torture, and arbitrary or unlawful detention should be brought before the courts.9 The Committee wishes to see that perpetrators are held personally responsible.10 While these cases concerned the protection of the right to life (art. 6), the prohibition of torture (art. 7), and the protection of liberty and security (art. 9), similar views were given in the case of violations of the right of detainees to be treated with humanity and dignity (art. 10) and of the right to be tried without undue delay (art. 14(3)(c) of the Covenant).11 More generally, the Committee has requested that States parties bring persons accused of human rights violations to justice.12 The term ‘bring to justice’ is rather vague and raises the question whether this requires criminal prosecution and imprisonment. In some instances the Committee has allowed a degree of latitude as to how a perpetrator should be brought to justice and in so doing has left the choice of means to the State party. In Thomas v. Jamaica the Committee was concerned with violations of arts 7 and 10(1). It concluded that the State party was under an obligation to investigate the allegations made by the author ‘with a view to instituting as appropriate criminal or other procedures against those found responsible’ (emphasis added).13 Similarly, in Joaquin Herrera Rubio et al. v. Colombia the Committee required the State party ‘to take effective measures to remedy the violations that Herrera Rubino has suffered and further to investigate said violations, to take action thereon as appropriate and to take steps to

8 Bleier v. Uruguay, Communication No. R. 7/30, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/37/40, at 130, para. 15 (1982). In Tshitenge Muteba v. Zaire the Committee was of the view that the State party was under an obligation ‘to punish those found guilty of torture’, Communication No. 124/1982, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/39/40, at 182, para. 13 (1984). 9 Human Rights Committee, Concluding Observations of the Human Rights Committee: Nepal, U.N. Doc. CCPR/C/79/Add.42, para. 16 (1994). See also Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 10 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 11 Bozize v. Central African Republic, Communication No. 428/1990, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/50/D/428/1990, para. 7 (1994); Hylton v. Jamaica, Communication No. 407/1990, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/407/1990, para. 11.1 (1994). 12 Human Rights Committee, Concluding Observations of the Human Rights Committee: Mexico, U.N. Doc. CCPR/C/79/Add.109, para. 9 (1999). 13 Thomas v. Jamaica, Communication No. 321/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/49/D/321/1988, para. 11 (1993).

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Prosecution under the ICCPR

ensure that similar violations do not occur in the future’ (emphasis added).14 In its General Comment on art. 20 it considered the prohibition of propaganda for war and of advocacy of national, racial, or religious hatred. For this purpose the Committee requested a law providing for an appropriate sanction.15 By referring to appropriate procedures or sanctions and leaving the choice between criminal and other procedures to the State party, the Committee in these cases allowed an element of discretion. Which procedures, other than criminal ones, may be appropriate, was—unfortunately—not specified by the Committee. However, in a number of cases the Human Rights Committee has explicitly requested criminal punishment for specific human rights violations. In its General Comment on the right to life the Committee considered that States parties should take measures to punish deprivation of life by criminal act.16 Further, in its General Comment on torture the Committee called on States parties to indicate in their reports the provisions of their criminal law that penalize torture and cruel, inhuman, and degrading treatment or punishment.17 In more recent pronouncements the Committee has specified that a ‘State party is under an obligation to take effective measures to ensure that . . . criminal proceedings are initiated seeking the prompt prosecution and conviction of the persons responsible’ for the illtreatment.18 States parties to the Covenant are primarily obliged to confront human rights violations that have been committed on their territory. The Human Rights Committee recently extended the territorial scope of this obligation.19 It asked States parties in its General Comment on art. 2 to assist each other in bringing to justice perpetrators of serious human rights violations that are punishable under 14 Joaquin Herrera Rubio et al. v. Colombia, Communication No. 161/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40, at 190, para. 12 (1988). See also Nqalula Mpandanjila et al. v. Zaire, Communication No. 138/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/41/40, at 121, para. 10 (1986). In its Comments on Argentina the Committee urged the State party to fully investigate and ‘to take action on the findings’. Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/ Add.46, para. 16 (1995). 15 See Human Rights Committee, General Comment No. 11: Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred (Art. 20), at p. 12, para. 2, U.N. Doc. HRI/GEN/1/Rev.1 (29 July 1983). 16 Human Rights Committee, General Comment No. 6: The Right to Life (Art. 6), at p. 6, para. 3, U.N. Doc. HRI/GEN/1/Rev.1 (27 July 1982). 17 Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 32, para. 13, U.N. Doc. HRI/ GEN/1/Rev.1 (3 April 1992). 18 Njaru v. Cameroon, Communication No. 1353/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/89/D/1353/2005, para. 8 (2007). In Saker v. Algeria the Committee held that the ‘State party is . . . under a duty to prosecute criminally, try and punish those held responsible’. Communication No. 992/2001, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/ 992/2001, para. 11 (2006). See also Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 11 (2006). 19 This interpretation is similar to the aut dedere aut judicare principle of some anti-terrorism conventions.

Justifying the duty to bring to justice

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domestic or international law.20 The specific sanctions required in order to hold offenders accountable will be evaluated below.21 But it is relevant at this point to consider the reason for requiring punishment since that informs the content and scope of the necessary sanctions.

2. Justifying the duty to bring to justice Since there is no explicit provision in the Covenant providing for a duty to prosecute human rights offenders, different reasons have been put forward to explain this obligation. The explanations given by the Committee have shown a gradual shift in recent years.

1. Procedural protection: punishment as general protection and implementation The traditional concept of the Committee is to consider punishment as a general measure to protect and implement human rights. In several cases the Committee linked the duty to punish on art. 2 in conjunction with the substantive rights which had been affected by the offence. For example, in its first Comment on art. 7 (since replaced by Comment No. 20) the Committee linked the duty to hold responsible those found guilty with the prohibition of torture read together with art. 2.22 In cases where States parties were obliged by the Committee to investigate and to take action, the Committee also referred to art. 2 of the Covenant.23 Therefore, the failure to punish those responsible for offences was criticized as being contrary to art. 2 of the Covenant.24 Most prominently, the first two paragraphs of art. 2 have been cited as the legal basis for the duty to punish perpetrators of human rights violations.25 Paragraph 1 obliges each State party ‘to respect and to ensure’ the rights recognized

20 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 21 See below section 3. 22 Human Rights Committee, General Comment No. 7: Torture or cruel, inhuman or degrading treatment or punishment (Art. 7), at pp. 7–8, para. 1, U.N. Doc. HRI/GEN/1/Rev.1 (30 May 1982). 23 Nqalula Mpandanjila et al. v. Zaire, Communication No. 138/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/41/40, at 121, para. 10 (1986). 24 Human Rights Committee, Concluding Observations by the Human Rights Committee: Peru, U.N. Doc. CCPR/CO/70/PER, para. 9 (2000). 25 An alternative ground could be seen in art. 2(3). See Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/ 563/1993, paras 8.2, 10 (1995).

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Prosecution under the ICCPR

in the Covenant.26 The reference to this provision is based on the premise that impunity undermines respect for human rights.27 As the Committee—in its Comments on Argentina’s second periodic report—elaborated, ‘respect for human rights may be weakened by impunity for perpetrators of human rights violations’.28 A state of impunity, according to the Committee, encourages further violations of Covenant rights.29 Here, punishment of offenders is required due to its deterrent effect; with the purpose of preventing future human rights violations.30 It also seeks to re-establish peace in society which is a precondition for the enjoyment of human rights. This becomes relevant in post-conflict situations. Therefore, the Committee frequently criticizes de facto impunity as an obstacle to the restoration of lasting peace.31 Apart from the obligation to respect and ensure the rights in the Covenant (art. 2(1)) the Committee has also referred to the duty to implement the Covenant as a legal basis for its call for punishment.32 Pursuant to art. 2(2), States parties are required to take the necessary measures to ‘give effect’ to the Covenant rights. For example, the Committee made reference to this obligation in its Comments on Colombia and urged the government to adopt punitive measures against acts of 26 Article 2 provides: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 27 Human Rights Committee, Concluding Observations of the Human Rights Committee: Sri Lanka, U.N. Doc. CCPR/C/79/Add.56, para. 15 (1995); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 28 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46, para. 10 (1995). The cited laws were repealed in 1998. 29 Human Rights Committee, Concluding Observations of the Human Rights Committee: Nigeria, U.N. Doc. CCPR/C/79/Add.65, para. 32 (1996). In Rodríguez v. Uruguay the Committee noted with concern that impunity may give rise to further grave human rights violations. Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/ 322/1988, para. 2.4 (1994). In its General Comment on art. 2 the Committee acknowledged that impunity ‘may well be an important contributing element in the recurrence’ of human rights violations. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 30 Human Rights Committee, Summary record of the 1365th meeting: Morocco, U.N. Doc. CCPR/C/SR.1365, para. 54 (1994). 31 Human Rights Committee, Concluding Observations of the Human Rights Committee: Burundi, U.N. Doc. CCPR/C/79/Add.41, para. 4 (1994). 32 E.g., the Committee recommended Yemen to endeavour to bring perpetrators of human rights abuses to justice in accordance with art. 2(2) of the Covenant. Human Rights Committee, Concluding Observations of the Human Rights Committee: Yemen, U.N. Doc. CCPR/C/79/Add.51, para. 19 (1995).

Justifying the duty to bring to justice

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child murder to ensure full implementation of child rights.33 All efforts to bring to justice perpetrators of past human rights abuses are welcomed by the Committee as measures in accordance with art. 2(2) of the Covenant.34

2. Punishment and its relevance for substantive rights The failure to take criminal measures may even amount to a violation of a substantive individual right. As the Committee explained in its General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, [t]here may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities [emphasis added].35

What the Committee presumably had in mind are situations in which a general atmosphere of impunity gives rise to further crimes. In such cases the failure to prosecute earlier crimes can be viewed as a contributing factor to the commission of additional crimes. But this does not mean that each failure to prosecute a crime in itself constitutes a violation of the affected right. The phrase is limited to specific circumstances and therefore suggests that it does not apply to single instances.

3. Victims’ rights There have been efforts to persuade the Committee that each victim has a right to justice. Authors of communications have argued that they are entitled under the Covenant to insist on the prosecution of their offenders.36 Various substantive rights have been cited in the communication system as providing a legal basis against impunity. The most prominent provisions are the right to a fair trial (art. 14(1)), the exception to the prohibition of retroactive criminal laws for crimes under customary international law (art. 15(2)), and the right to an effective remedy (art. 2(3)). The following survey of the relevant cases shows that the Human

33 Human Rights Committee, Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add.76, para. 42 (1997). 34 Human Rights Committee, Concluding Observations of the Human Rights Committee: Paraguay, U.N. Doc. CCPR/C/79/Add.48, para. 25 (1995). 35 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 16 (26 May 2004), para. 8. 36 H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 270, para. 9.3 (1989); Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/ 717/1996, paras 3.2, 3.4 (1999).

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Prosecution under the ICCPR

Rights Committee did not accept any of these provisions as providing for an individual right to have perpetrators of human rights violations punished.

A. The right to a fair trial In H.C.M.A. v. The Netherlands the author of the communication alleged a violation of art. 14(1) of the Covenant, because he had been unable to prosecute a police officer who allegedly had assaulted him.37 The relevant passage of the provision reads: In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The complainant asserted that he as a victim of maltreatment had the right to have the decision on abstention from prosecution reviewed by a competent court.38 The right to a fair trial in art. 14 was interpreted as providing for the right of a victim to seek the prosecution of their perpetrator.39 Similarly the authors in Acuña Inostroza ascertained that the application of the Chilean amnesty law No. 2.191 of 1978 violated art. 14 of the Covenant because victims and their families were neither afforded access on equal terms to the courts nor afforded the right to a fair and impartial hearing.40 This line of argument followed on from the interpretation of judicial guarantees by the Inter-American human rights institutions.41 However, the Human Rights Committee rejected this position without elaborating on the meaning of art. 14.42 It is submitted that there are valid reasons for following the Human Rights Committee’s decision. Article 14 provides only for independent review once criminal charges have been brought. If the prosecutor does not bring charges, then art. 14(1) is inapplicable. This is evidenced by the text of the provision which states 37 H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 270, para. 5.3 (1989). 38 Id. at 270, para. 5.3. 39 Id. at 272, para. 9.3. 40 Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/717/1996, para. 3.3 (1999). 41 See below Chapter 3, section 2.2.B.a. and D. 42 The Committee held ‘that the Covenant does not provide for the right to see another person criminally prosecuted’. H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 273, para. 11.6 (1989). See also Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 6.4 (1994); S.E. v. Argentina, Communication No. 275/1988, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/45/40, annex X.J, para. 5.5 (1990). The Committee regularly refuses to analyse the failure to punish under art. 14 for insufficient substantiation. Saker v. Algeria, Communication No. 992/2001, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/992/2001, para. 8.4 (2006); Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 8.3 (2006).

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that it applies merely to the ‘determination of any criminal charge’. It does not apply to the determination of whether such charges should be brought. The only person entitled to a hearing is the one against whom the charge has been brought. This becomes evident in the reference in art. 14(1) to ‘charge against him’ (emphasis added). Thus, the provision is concerned only with the right of the accused in criminal proceedings. Every accused is entitled to an independent review of the charges brought against him; but art. 14 does not provide the victim with a right of review. Neither is it possible to derive such a right from the alternative fair trial guarantee of art. 14 which provides for court hearings in the determination of ‘rights and obligations in a suit at law’. This provision is primarily concerned with civil proceedings and, arguably, also applies to administrative proceedings. The person entitled to a judicial hearing is the one whose rights and obligations are determined in the law suit. But this provision does not apply to the decision of a prosecutor on whether criminal charges are to be brought. Since neither the rights nor the obligations of the victims are determined in such a decision, art. 14 does not guarantee a right of victims to challenge it in court.43

B. The prohibition of retroactive criminal laws Art. 15(2) does not provide for protection against impunity. It reads: Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

The provision was cited by the authors in Acuña Inostroza, who maintained that the refusal of Chile to bring those responsible for the executions in the ‘Baños de Chihuio’ incident to criminal justice violated the provision because criminal acts had been pardoned.44 They had apparently interpreted art. 15(2) as obliging States parties to try all acts which are criminal under general principles of international law irrespective of whether these acts constitute a criminal offence under domestic law. However, this provision states only that the prohibition of retroactive criminal laws does not prejudice the trial and punishment for criminal acts according to general principles of law. It simply clarifies that the prohibition of retroactive statutes does not rule out trials based on general principles. Thus, a State may try a perpetrator for crimes against humanity even in the absence of criminal legislation 43 Even if punishment has the effect of furnishing satisfaction to the victim, there is no corresponding right. The right to redress is an issue to be determined in civil litigation. 44 They further ascertained that the failure to investigate the victims’ deaths amounted to a violation of art. 16, i.e. a failure to recognize the victims as persons before the law. Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/ 717/1996, paras 3.2, 3.4 (1999).

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without violating the principle of legality pursuant to art. 15. But it does not mandate such trials. Instead it is purely permissive. It leaves the door open for prosecution of such criminal acts without creating a legal obligation to do so.

C. Remedial rights The remaining provision from which an individual right to claim prosecution could be derived is the right to an effective remedy. Art. 2(3) provides: 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.

Considering the drafting history, it is doubtful whether this provision guarantees criminal proceedings. The Philippines and Japan had suggested that criminal prosecution of State organs that commit human rights violations be expressly recognized as an example for an effective remedy. But this proposal did not meet the necessary majority during the drafting of art. 2(3) and was therefore not included in art. 2.45 This argues against the application of the provision to criminal measures. For the textual interpretation it is necessary to consider the term ‘remedy’. It ordinarily means enforcement of a right or redress of an injury.46 The Human Rights Committee requires for an effective remedy that the adverse effects of the violation have ceased.47 The emphasis is on rehabilitation of the victim as the following statement from the Human Rights Committee, in its General Comment on art. 7, shows: ‘States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible’ (emphasis added). But is it necessary to punish an offender and deprive him of his personal liberty in order to rehabilitate the victim? If the past wrong cannot be 45 U.N. ESCOR Commission on Human Rights, Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Additional Articles, U.N. Docs E/CN.4/365 (Philippines), A/C.3/L.1166 (Japan) (1950). 46 Black’s Law Dictionary 536 (pocket edn, 1996). For a detailed analysis of the term in international law see Dinah Shelton, Remedies in International Human Rights Law (2nd edn, 2005). 47 In Daniel Monguya Mbenge v. Zaïre the Committee criticized that the adverse effects of the death sentences which had violated arts 6(2) and 14(3) of the Covenant could not be deemed to have ceased. The Committee therefore held that the victim had not been provided with an effective remedy in accordance with art. 2(3) of the Covenant. Communication No. 16/1977, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/18/D/16/1977, para. 18 (1983).

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rectified—as in the case of summary executions—the finding of a violation and the grant of compensation is, arguably, all that can be done to remedy the past wrong.48 Admittedly, the sentencing of offenders recognizes that the victim has suffered from an illegal act. This recognition indirectly re-establishes the validity of the right affected. However, the finding of a violation may also do this. Sometimes it is not possible wholly to rectify a wrong. The payment of compensation—aside from public apologies, public memorials, guarantees of non-repetition as well as changes in relevant laws and practices—is sometimes the most that can be done to provide redress for the injury. Whether the punishment of an offender provides for better redress is doubtful.49 The Human Rights Committee in a number of views on individual communications held ‘that the Covenant does not provide for the right to see another person criminally prosecuted’.50 In Blanco v. Nicaragua the Committee considered that the examination of the author’s allegations could itself be seen as a remedy under art. 2(3) of the Covenant.51 Hence, it may be sufficient under this provision to investigate human rights violations without punishing the perpetrators. Accordingly, in Rodríguez v. Uruguay the Committee held that the victim was entitled, under art. 2(3)(a), to an effective remedy and therefore urged the State party to carry out an official investigation into the author’s allegations, in order to identify the persons responsible and to enable the author to seek civil redress.52 The Committee also demanded appropriate compensation and measures to ensure that similar violations did not occur in the future.53 But criminal punishment was not required. Occasionally it has been argued that in order to obtain compensation victims are entitled to an investigation by the criminal authorities. Cecilia Medina Quiroga, a member of the Committee, pointed out that in Chile, for example, criminal prosecution had proved effective only because without it there would have been no 48 Further feasible measures, according to the Human Rights Committee, are public apologies, public memorials, guarantees of non-repetition, and changes in relevant laws and practices. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 16 (26 May 2004). 49 The fact that the drafters refused to include criminal punishment as a remedy underlines this understanding. See also Oscar Schachter, The Obligation to Implement the Covenant in Domestic Law, in International Bill of Rights 312, 326 (Louis Henkin ed., 1981). 50 H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 270, p. 273, para. 11.6 (1989). See also Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/ C/51/D/322/1988, para. 6.4 (1994); S.E. v. Argentina, Communication No. 275/1988, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/45/40, annex X.J, para. 5.5 (1990). 51 Blanco v. Nicaragua, Communication No. 328/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/328/1988, para. 9.2 (1994). 52 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 14 (1994). 53 Id.

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hope of initiating successful civil proceedings.54 Nevertheless, this important consideration does not mean that criminal prosecution is a compulsory precondition for an effective remedy. Although effective investigations are necessary in order to enable victims to obtain compensation, there are alternative forms of investigation which could also serve this purpose. Only if criminal investigations are the only available means of investigating human rights abuses are they indispensable for the compensation of victims. The essential measures to be taken in order to satisfy the exigencies of art. 2(3), therefore, are as follows: an aggrieved individual must at least have the opportunity to present the reasons which make him believe that the act complained of violates his human right. Further, there needs to be an official investigation, an identification of those responsible, compensation for victims, and the prevention of future violations.55

D. Punishment as retrospective protection Thomas Buergenthal during his membership on the Committee introduced another aspect of why punishment may be necessary.56 In considering Peru’s third periodic report, he warned that impunity by the authorities constituted a ‘retroactive ratification of the offences committed’.57 A similar argument was put forward by the Committee’s Chairman. He argued that the Peruvian authorities had made themselves accomplices of the crimes by promulgating amnesty laws.58 In this respect punishment is not sought in order to deter further crimes but to avoid retroactive complicity. The underlying idea is that State authorities need to sanction human rights violations otherwise their inactivity could be considered a form of retroactively aiding and abetting the perpetrators.

4. New developments Whereas the Committee in its early pronouncements considered punishment primarily as a measure of prevention, there is now a new trend in the Committee’s interpretation of the Covenant. Recent pronouncements suggest that criminal punishment is increasingly regarded also as a remedy for serious human rights violations. Even though the Committee, so far, still denies an individual right to demand 54 Human Rights Committee, Summary record of the 1398th meeting: Haiti, U.N. Doc. CCPR/C/ SR.1398 (1995). 55 Related duties are discussed in detail below, section 5. 56 The idea originated in the Inter-American Court of Human Rights in the Velásquez Rodríguez Case. See below Chapter 3, section 1. At that time Thomas Buergenthal had been Judge at the InterAmerican Court. 57 Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/ SR.1519, para. 44 (1997). 58 Human Rights Committee, Summary record of the 1520th meeting: Peru, U.N. Doc. CCPR/C/ SR.1520, para. 31 (1996).

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punishment, it seems to follow to a certain extent a trend which was initiated by the Inter-American human rights institutions.59 In Bautista de Arellana v. Colombia the Human Rights Committee held that ‘purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of art. 2(3), of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life’.60 In this case, the victim’s family had already been granted compensation by an administrative tribunal. The fact that the Committee was not satisfied with this non-criminal procedure is noteworthy. After all, art. 2(3)(lit. b) refers to judicial or administrative authorities as competent to decide complaints and therefore allows for non-judicial remedies. Nonetheless, the Committee urged the State party to expedite the criminal proceedings leading to the prompt prosecution and conviction of the persons responsible.61 In Banda v. Sri Lanka the Committee held that the unduly prolonged and ineffective proceedings against the perpetrators of serious physical assault were in violation of art. 2(3), read together with art. 7 of the Covenant.62 Similarly, in Coronel v. Colombia the Committee found that in cases of particularly serious violations ‘as in the case with violations of basic human rights’ remedies of a ‘purely disciplinary and administrative nature could not be considered sufficient or effective’.63 Therefore, the State party was urged to expedite the criminal proceedings against the perpetrators.64 The Committee in this case even went as far as asking for trial by ordinary criminal courts.65 The authors had asserted that the military courts seized with the case did not offer an effective remedy pursuant to art. 2(3).66 The Committee seemed to accept that argument. It asked for

59 The Inter-American Court of Human Rights even accepts a right of each victim to have offenders tried by a criminal court. See Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 125 (16 August 2000); Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 53 (6 December 2001). 60 Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993, para. 8.2 (1995). See also Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/ 612/1995, para. 8.2 (1997). 61 Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993, para. 10. 62 Raththinde Katupollande Gedara Dingiri Banda v. Sri Lanka, Communication No. 1426/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/91/D/1426/2005, para. 7.4 (2007). In this case Sri Lanka had relied on criminal proceedings as a remedy. These were considered ineffective by the Committee and thus in violation of the right to an effective remedy. However, it does not automatically mean that a victim is entitled to criminal punishment. A State party may also opt for other remedial measures. 63 Coronel v. Colombia, Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/76/D/778/1997, para. 6.2 (2002). 64 Id. at para. 10. 65 Id. 66 Id. at para. 3.6.

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proceedings in criminal courts without, however, accepting an individual right to demand such proceedings.67 Even where the Committtee considers criminal proceedings a necessary remedy pursuant to art. 2(3) it nevertheless retains its traditional interpretation that victims do not have a right to demand prosecution.68 This question came up in several cases after the Committee had asked for more than merely disciplinary measures in individual communications. Authors of several complaints referred to this new jurisprudence and concluded that there was a corresponding right to call for criminal prosecution.69 But the Committee confirmed its earlier interpretation that the Covenant does not provide for such an individual right.70 In none of the cases where States parties were urged to expedite criminal proceedings was a corresponding individual right for the victims acknowledged. In Vicente v. Colombia the Committee explained that there was a duty to investigate and prosecute those responsible for violations of the right to life and enforced disappearances despite the absence of a corresponding individual right.71 Similarly, in Bautista de Arellana v. Colombia the Committee stressed that, though there was no right for individuals to require that the State prosecute the crimes of another person, the State party was under a duty to prosecute, try, and punish those held responsible for violations of the right to life.72 In those cases in which the Committee criticized States parties for insufficient criminal proceedings, it was usually due to the failure to investigate adequately not the lack of punishment which was considered detrimental to victims’ rights.73 67 However, the Committee did not conclude that the victims and their relatives had been violated in their right to an effective remedy because of the lack of criminal punishment. It found only a violation of the substantive rights affected by the crime at issue (arts 6, 7, 9, and 17 of the Covenant). 68 Sundara A. L. Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/87/D/1250/2004, para. 9.3 (2006). 69 Coronel v. Colombia, Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/76/D/778/1997, para. 3.5 (2002). 70 In Coronel v. Colombia the Committee found only violations of the substantive rights that had been affected by the crime, but found no violation of the right to an effective remedy. Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/76/D/778/1997, para. 6.2 (2002). See also Kulomin v. Hungary, Communication No. 521/1992, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/521/1992, para. 6.3 (1996); Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/ 1995, para. 8.8 (1997). 71 Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/1995, para. 8.8 (1997). 72 Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993, para. 8.6 (1995). The punishment of extra-judicial executions was requested by the Human Rights Committee in its Comments on Niger. Human Rights Committee, Concluding Observations of the Human Rights Committee: Niger, U.N. Doc. CCPR/ C/79/Add.17, para. 7 (1993). 73 See e.g. Zheikov v. Russian Federation, Communication No. 889/1999, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/889/1999, para. 7 (2006); Saker v. Algeria, Communication No 992/2001, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/992/2001, para. 9.12 (2006); Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 9.9 (2006); Njaru v. Cameroon, Communication No.

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But there is no single case in which a failure to punish was held to be in violation of the rights of the victims.74 In individual communications the Committee regularly distinguishes between the right to an effective remedy pursuant to art. 2(3), including an investigation and compensation, and the general State party obligation to prosecute the crimes and prevent similar violations in the future.75 Those cases in which civil remedies depend on criminal proceedings should not be misunderstood as affirming a right to criminal justice. In Rajapakse v. Sri Lanka, for example, the author’s fundamental rights application in the domestic court had been adjourned pending criminal proceedings.76 The delay in criminal proceedings therefore led to a delay in obtaining an effective remedy in violation of art. 2(3).77 But it was the delay in obtaining relief in the civil courts, not the failure to prosecute in the criminal courts which was considered to be in violation of the right to an effective remedy.78

5. Inconsistencies and the need for a solid conceptualization The assumption of an objective duty to prosecute and punish which is not matched by a corresponding individual right seems awkward. After all, State obligations under the Covenant are usually matched by corresponding individual rights and vice versa. This particularity requires explanation which is only possible with respect to the Committee’s conventional jurisprudence. Current pronouncements are difficult to rationalize.79 At some point the Committee will therefore need to decide whether it retains or gives up its traditional rationalization of criminal punishment. As long as prosecution is considered only as an element of general human rights protection it is consistent to deny an individual right. The Covenant, apart from individual rights, also creates obligations to take general measures of implementation. 1353/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/89/D/1353/2005, para. 6.1 (2007). 74 In none of the cases where States parties were urged to expedite criminal proceedings was a corresponding individual right by the victims acknowledged. 75 Zheikov v. Russian Federation, Communication No. 889/1999, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/889/1999, para. 9 (2006); Saker v. Algeria, Communication No 992/2001, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/992/2001, para. 11 (2006); Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 11 (2006); Njaru v. Cameroon, Communication No. 1353/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/89/D/1353/2005, para. 8 (2007). 76 Sundara A. L. Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/87/D/1250/2004, para. 9.3 (2006). 77 Id. at para. 9.5. 78 The Committee therefore found a violation of art. 2(3) in connection with art. 7. Sundara A. L. Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/87/D/1250/2004, para. 9.5 (2006). 79 See e.g. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (May 26, 2004).

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For example, States parties are obliged to submit periodic reports to the Human Rights Committee but there is no individual right to demand such a report. Article 2(1) and (2) with the obligation to respect, ensure, and implement the Covenant, goes beyond individual rights. It also requires acts of general human rights protection which are not related to a specific individual but to society as a whole.80 The Committee regularly includes in its views the call for measures which go beyond victimspecific remedies. The purpose of this is to call upon the respective State party to prevent recurrence of similar violations.81 In this sense, the call for criminal measures is intended to prevent future violations through deterrence and re-establishment of peace in society.82 This is in the interest of the population at large and not victimspecific. From this perspective it is not surprising that the victim is not granted a right to demand prosecution. After all, the victim usually has the same rights as everyone else in the prevention of further crimes. While this was the original approach, the Committee currently mixes this rationale with remedial rights. Apart from the cases cited above, this is best illustrated by the General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant.83 Reiterating that those responsible for certain violations must be brought to justice,84 the Committee considers punishment as a measure of prevention and as a form of reparation.85 Reference is made to positive obligations imposed under art. 2(1) and to the need to provide effective

80 See Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its article 2 para 2, 5 Max Planck UNYB 399 (2001). 81 See Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 17 (26 May 2004). 82 This rationalization is not in conflict with the drafting history. The drafters merely rejected the proposal that criminal prosecution be expressly recognized as an example of an effective remedy pursuant to art. 2(3). U.N. ESCOR Commission on Human Rights, 6th Sess., Supp. No. 5, U.N. Doc. E/ CN.4/SR.195 (1950). They did not thereby rule out that punishment was necessary to ensure respect for human rights pursuant to art. 2(1)–(2). But see Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 26 (1996). For a detailed analysis of the drafting history see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2569–2571 (1991). 83 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). See also Raththinde Katupollande Gedara Dingiri Banda v. Sri Lanka in which the Committee found a violation of art. 2(3) because the criminal proceedings on which the State party had relied had been unduly prolonged and ineffective. Communication No. 1426/2005, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/91/D/1426/2005, para. 7.4 (2007). 84 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 85 Id. at paras 8, 18. That punishment is considered a form of reparation is evidenced by the following phrase: ‘[W]here appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.’ Id. at para. 16.

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remedies under paragraph 3. These obligations according to the Committee are interrelated.86 But how is it possible to say that a remedy is necessary without acknowledging a corresponding individual right? Article 2(3) provides for a right to an effective remedy.87 Any person whose rights are violated shall have an effective remedy. The remedy is required in the interests of the victim of a violation. Hence, once a measure is considered to be a necessary remedy pursuant to art. 2(3) it is essential to acknowledge a corresponding right of the victim.88 If the Human Rights Committee requires punishment as a remedy it is inconsistent to deny a corresponding individual right. The fact that the Committee retains its traditional interpretation that there is no individual right to demand punishment is probably due to an ongoing discussion within the Committee which has not been settled. It is now time for the Committee to decide. Either it goes back to its original approach of considering punishment as a general measure of implementation without allowing for an individual right to demand criminal measures89—in this case it should avoid characterizing it as a remedy pursuant to art. 2(3) because the term is misleading in this context—or the Committee considers punishment also as a necessary remedy for the wrong suffered by the victim and hence acknowledges a corresponding individual right. 90 It will be explained below why the first alternative is preferable.91

3. The required sanctions In returning to the question what States are required to do in response to human rights violations, it is important to note that not every human rights violation requires criminal prosecution. The terms ‘hold responsible’ and ‘bring to justice’ allow for a variety of sanctions. Punishment does not necessarily mean criminal penalties.92 If the Committee requires that all human rights violations should be 86 Id. at para. 8. 87 See the wording of art. 2(3): ‘[P]erson whose rights or freedoms as herein recognized are violated shall have an effective remedy’. 88 But see Andreas O’Shea, Amnesty for Crime in International Law and Practice 172–176 (2002). He denies a right to require punishment but at the same time acknowledges its remedial function. 89 It seems that the Committee regards the duty to punish not as a victim-specific remedy but as a retrospective measure to re-establish the validity of the affected right in general. If this is the case, it is not the duty to provide the victim with a remedy under art. 2(3) which is the proper legal basis but the duty to secure the rights under art. 2(1). 90 As will be elaborated on below, it is submitted that punishment is not a remedial measure. But if one considers it a necessary remedy then there is no alternative but to assume a corresponding right for the victim. 91 See below Chapter 6, section 3.1. 92 See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2573, 2576 (1991); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 27 (1996).

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punished,93 punishment is understood in a broader sense. Which concrete form of punishment is required depends on the violation at issue. Punishment should be commensurate with the gravity of the crime committed.94 The graver a violation the more severe are the required sanctions. The gravity depends on the nature of the affected right and degree of a violation. If a fundamental human right is at stake, the Committee asks for more than purely administrative measures.95 Thus, in cases of summary and arbitrary killings, enforced disappearances, torture, and similar cruel, inhuman, and degrading treatments criminal punishment is envisaged.96 The State party is obliged to prosecute, try, and punish those held responsible for such crimes.97 Similarly the Committee recommends criminal rather than merely administrative sanctions in cases of police abuse.98 More recently the Committee has also called on States parties to adopt specific legislation prohibiting and punishing domestic violence, serious cases of female exploitation, and trafficking in women and children.99 In cases of less serious violations, such as interference with freedom of expression or freedom of movement, the finding of a violation may be sufficient. Admonition and perhaps even disciplinary measures are further means to deal with human rights violations.

93 Human Rights Committee, Concluding Observations of the Human Rights Committee: El Salvador, U.N. Doc. CCPR/C/79/Add.34, para. 13 (1994). 94 In its Comments on Romania the Committee criticized ‘that penalties prescribed by law are not commensurate with the gravity of the crimes committed’. Human Rights Committee, Concluding Comments of the Human Rights Committee: Romania, U.N. Doc. CCPR/C/79/Add.30, para. 10 (1993). 95 In Coronel v. Colombia the Committee held that in cases of particularly serious violations, as is the case with violations of basic human rights, purely disciplinary remedies were not sufficient. Coronel v. Colombia, Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/ C/76/D/778/1997, para. 6.2 (2002). 96 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004); Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/1995, para. 8.8 (1997); Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/ C/55/D/563/1993, para. 8.2 (1995); Human Rights Committee, Concluding Observations of the Human Rights Committee: Nigeria, U.N. Doc. CCPR/C/79/Add.65, para. 32 (1996); Human Rights Committee, Concluding Observations of the Human Rights Committee: Senegal, U.N. Doc. CCPR/C/79/Add.10, para. 5 (1992); Human Rights Committee, Concluding Observations of the Human Rights Committee: Yemen, U.N. Doc. CCPR/C/79/Add.51, para. 13 (1995). 97 Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993, para. 8.6 (1995). 98 Human Rights Committee, Concluding Comments of the Human Rights Committee: Romania, U.N. Doc. CCPR/C/79/Add.30, para. 15 (1993). 99 See e.g. Human Rights Committee, Concluding Observations of the Human Rights Committee: Mali, U.N. Doc. CCPR/CO/77/MLI, paras 12, 18 (2003); Human Rights Committee, Concluding Observations of the Human Rights Committee: Uganda, U.N. Doc. CCPR/CO/80/UGA, para. 11 (2004); Human Rights Committee, Concluding Observations of the Human Rights Committee: Slovenia, U.N. Doc. CCPR/CO/84/SVN, para. 11 (2005).

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Another aspect which informs the choice of sanction is the purpose for which punishment is sought. According to the Human Rights Committee, the sanction should be grave enough to effectively deter future violations. This is indicated when the Committee holds that: ‘[m]uch more severe sanctions are needed to effectively discourage torture and other abuses by prison and law enforcement officials’.100 Here again the preventive aspect of punishment comes into play. In cases of largescale violations more severe sanctions are necessary in order effectively to discourage future violations.101 In seeking adequate punishment the State party also needs to take into account the human rights of the offenders. Apart from the right to a fair trial (art. 14)102 the prohibition of retroactive criminal laws (art. 15) must be observed. If there was no criminal law in force to alert the offender at the time of the commission of the crime, the offender must not be prosecuted. If, however, an act or omission was criminal according to the general principles of law recognized by the community of nations at the time the offence was committed, the crime can be prosecuted pursuant to art. 15(2). This applies to those human rights violations constituting crimes against humanity or genocide. Prosecution of these crimes does not violate the principle of legality regardless of whether the crime was part of domestic criminal law. States parties to the Second Optional Protocol to the ICCPR are prevented absolutely from practising capital punishment.103 In determining the length of imprisonment, the perpetrator’s rights should be balanced against the need to punish in order to find an adequate sentence. This is only a guideline. The measure to be taken depends on the specific circumstances of each case. The finding of a violation may provide sufficient punishment in less serious cases but not in others. Since art. 2 provides for some leeway in the implementation of the Covenant, States parties should be granted a margin of appreciation in finding the correct sanction.104 Apart from criminal prosecution, offenders convicted of serious offences should be permanently removed from office.105 In its Comments on Argentina the 100 Human Rights Committee, Concluding Observations of the Human Rights Committee: Dominican Republic, U.N. Doc. CCPR/C/79/Add.18, para. 10 (1993). 101 This demand for more severe sanctions for large-scale crimes can only be based on the preventive aspect of punishment. For the individual victim the fact that crimes are committed on a large scale is not relevant. 102 For a detailed analysis of the different elements of art. 14, see Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary 302–357 (2nd edn, 2005). 103 Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, G.A. Res. 44/128, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/Res/44/128 (15 December 1989). 104 For the margin of appreciation in the implementation of the Covenant see Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights pursuant to its Article 2 para. 2, 5 Max Planck UNYB 399 (2001). 105 Human Rights Committee, Concluding Observations of the Human Rights Committee: Brazil, U.N. Doc. CCPR/C/79/Add.66, para. 20 (1996); Human Rights Committee, Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/Add.63,

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Committee recommended that persons involved in past gross human rights violations be removed from military or public service.106 Apart from other sanctions, this should be done ‘in order to guard against a culture of impunity’ as Rajsoomer Lallah, a member of the Committee, described it.107 To leave such perpetrators in office would run the risk of further violations by State authorities. Other feasible sanctions are the cancellation of government pensions, the requirement to pay damages through administrative fines, or civil proceedings.108 The names of the offenders should also be made public.109 Since States parties are obliged to hold perpetrators of human rights violations accountable they must not take any measure jeopardizing the establishment of the responsibility. The call for criminal punishment of serious human rights violations has led the Committee increasingly to criticize not only situations of de facto impunity but also legislative measures which are deemed to be an obstacle to the effective prosecution of such violations. This development arose from the evaluation of amnesties which will be further elaborated on later in this chapter. More recently, the Committee has generally criticized immunity in cases of particularly serious human rights violations.110 It also does not accept the defence of obedience to superior orders if particularly serious human rights violations have been committed,111 otherwise perpetrators in such instances would be immune from prosecution. Even unreasonably short periods of statutory limitations for torture, similar cruel, inhuman, and degrading treatment, summary and arbitrary killings, and enforced disappearances have been characterized as impediments to the establishment of legal responsibility.112 Statutes of limitation do not prevent criminal trials ab initio but only those conducted long after the commission of a crime. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and

para. 26 (1996); Human Rights Committee, Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add.76, para. 32 (1997). 106 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/CO/70/ARG, para. 9 (2000). 107 Human Rights Committee, Summary record of the 1397th meeting: Haiti, U.N. Doc. CCPR/C/SR.1397/Add.1 (1994). 108 Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 27 (1996). 109 Human Rights Committee, Concluding Observations of the Human Rights Committee: Morocco, U.N. Doc. CCPR/C/79/Add.44, D (1994). 110 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (May 26, 2004). For this issue see also Rosanne Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (2008). 111 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 112 Id.

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Crimes against Humanity113 rules out the application of such laws to war crimes and crimes against humanity. The Committee even goes further. It has called on the States parties to remove such legal impediments where any serious human rights violations are concerned.114 This includes torture, similar cruel, inhuman, and degrading treatment, summary and arbitrary killings, and enforced disappearances in general and thus is more comprehensive than the convention which applies only to violations constituting crimes against humanity and war crimes. But while the Convention prohibits all statutory limitations for crimes against humanity, the Committee criticizes only unreasonably short periods.

4. Who needs to be punished? A State party primarily must punish any of its officials and persons acting on its behalf who violate human rights while acting under State authority. Such acts by public officials can be attributed to the State and therefore constitute a violation of the Covenant.115 In order to ensure that similar violations by public officials do not occur in future a State party to the Covenant is obliged to hold the offender accountable. The question whether this also applies to abuses by private individuals is more complex because not every human rights abuse by a private person constitutes a human rights violation under the Covenant. For example, a private individual who kills someone does not, strictly speaking, violate the Covenant. The addressees of the Covenant are States parties, not private individuals. Accordingly, the obligation to respect the rights of the Covenant is on the States parties and does ‘not, as such, have direct horizontal effects’.116 States parties are primarily under an obligation not to violate human rights through their authorities.117 This is commonly referred to as the duty to refrain. However, this does not rule out State obligations to take protective measures. Certain rights have indirect 113 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted and opened for signature, ratification and accession by G.A. Res. 2391 (XXIII), 26 November 1968, 754 U.N.T.S. 73. For an analysis of the Convention see below Chapter 5, section 1.4. 114 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 115 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (28 September 2001). See also James Crawford, The International Law Commission’s Articles on State responsibility (2002). 116 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 8 (26 May 2004). 117 A State party is also responsible if its failure to prevent abuses by private parties is systematic and therefore amounts to complicity or is viewed as condoning the action.

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horizontal effects. They create a duty on the State party to protect individuals from abuses by other private persons. For example, art. 20 explicitly proscribes the prohibition of war propaganda by law and art. 8 prohibits slavery. In both cases it is irrelevant whether the prohibited acts are committed by public or private persons. State parties are generally called upon to prohibit war propaganda and slavery by law. Another example of indirect horizontal effect is the right to life. This right shall be protected by law pursuant to art. 6(1). The drafting history shows that this provision was intended to protect the individual against public and private interference.118 States parties are therefore also required to adopt legal measures to protect against life-threatening behaviour by private persons. Finally, art. 2(3)(a) also indicates that abuses by private individuals need to be addressed by State authorities.119 It provides for an effective remedy regardless of whether a person acted in a private or an official capacity. The German term ‘mittelbare Drittwirkung’ is sometimes used to describe these horizontal effects. It means that, though States are the immediate addressees of human rights conventions, the obligation to protect human rights requires that State authorities intervene even in private relationships if essential human rights are at stake. This has implications for private–private relations and finds expression in art. 2(1) of the Covenant which obliges States parties not only ‘to respect’, that is, to refrain from violations, but also ‘to ensure’ the Covenant rights.120 If, generally, there was, for example, no criminal prosecution for murder, the right to life would neither be respected sufficiently nor ensured. A State party in order to ensure this right may not remain passive in cases of serious private abuses.121 It is thus not sufficient to prohibit arbitrary killings by State officials. The threat from private individuals may be equally dangerous, especially nowadays when private parties often exercise considerable powers which sometimes, from a factual point of view, affect individuals even more so than State action. Therefore human rights are not only relevant in the immediate State–individual relationship. This is not to say that human rights are equally applicable between private individuals. But States

118 U.N. ESCOR Commission on Human Rights, 5th Sess., Supp. No. 5, at 8–10, 12, U.N. Doc. E/CN.4/SR.90 (1949). Other examples for the requirement to take positive measures to protect against private interference are arts17(2), 23, 24, 26, and 27. See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary 39 (2nd edn, 2005). 119 Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary 39–40 (2nd edn, 2005). 120 Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 121 This is why the Human Rights Committee requests the punishment of deprivation of life by criminal act regardless of whether committed by public officials or private individuals. See Human Rights Committee, General Comment No. 6: The Right to Life (Art. 6), p. 6, para 3, U.N. Doc. HRI/ GEN/1/Rev.1 (27 July 1982).

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have an obligation actively to protect human beings from threats affecting their existence.122 The Human Rights Committee in its General Comment on art. 2 recognized this and elaborated: The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.123

The Committee thereby accepted that punishment of private individual perpetrators may be required in order effectively to secure fundamental human rights. If a State refused entirely to intervene in cases of large-scale murder, for example, such inactivity could be characterized as acquiescence. The absence of intervening measures could even lead to the commission of further crimes. In order to avoid responsibility, States are obliged to combat such situations in order effectively to protect human rights from further crimes even if they are committed by private individuals.124 Thus, the obligation to hold offenders responsible is not limited to State officials.125 The Human Rights Committee has repeatedly requested States parties to punish offenders regardless of whether they are State officials or private individuals.126 Grave abuses, such as domestic violence, serious cases of female exploitation, and trafficking in women and children, which are typically committed by private perpetrators, also need to be punished.127 In its General Comment on art. 7 the 122 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004). 123 Id. at para. 8. 124 For the duty to prosecute terrorists in accordance with human rights law see Anja Seibert-Fohr, The Relevance of International Human Rights Standards for Prosecuting Terrorists, in Terrorism as a Challenge for National and International Law: Security versus Liberty? 125 (Christian Walter, Silja Vöneky, Volker Röben, & Frank Schorkopf eds, 2004). 125 Addressing private individual offenders and public officials may also be the result of equal treatment pursuant to arts 2 and 26 of the Covenant. 126 In the case of Yemen, for example, the Committee criticized that military personnel and civilians had been granted amnesty for human rights abuses. Human Rights Committee, Concluding Observations of the Human Rights Committee: Yemen, U.N. Doc. CCPR/C/79/Add.51, para. 11 (1995). 127 See e.g. Human Rights Committee, Concluding Observations of the Human Rights Committee: Mali, U.N. Doc. CCPR/CO/77/MLI, paras 12, 18 (2003); Human Rights Committee, Concluding Observations of the Human Rights Committee: Uganda, U.N. Doc. CCPR/CO/80/UGA, para. 11 (2004); Human Rights Committee, Concluding Observations of the Human Rights Committee: Slovenia, U.N. Doc. CCPR/CO/84/SVN, para. 11 (2005).

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committee calls on States parties to indicate in their reports ‘provisions of their criminal law which penalize torture . . . specifying the penalties applicable to such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons’ (emphasis added).128 Whether private individuals need to be punished depends on the scope of horizontal effects created by the respective Covenant right. Only if there is a duty to protect individuals against interference from individual parties, can a duty to punish private offenders be assumed. This depends on the gravity and scale of violations. The greater the number of people affected and the more grave the violation, the more the State party is required to intervene in private matters in order to combat an impression of impunity and to prevent future violations.

5. Related duties Apart from seeking out offenders and holding them accountable, States parties are also obliged to take additional measures to deal adequately with human rights violations. Regardless of whether there is a duty to prosecute, the Committee recognizes a duty to investigate and compensate victims.129 These measures, different from criminal punishment, have a distinctively remedial function. Accordingly, the Committee recognizes an individual right of the victim to an investigation and compensation.

1. Duty to investigate As already mentioned, the duty to investigate thoroughly any allegations of human rights violations has repeatedly been emphasized by the Human Rights Committee.130 The burden of inquiry is on the official authorities, not on the victims. State authorities must investigate human rights violations in every case, even if the victim is able to bring a civil suit against his or her offender. In Blanco v. Nicaragua the Committee explained: ‘Notwithstanding the possible viability of this avenue of redress, the Committee finds that the responsibility for investigations 128 Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 32, para. 13, U.N. Doc. HRI/ GEN/1/Rev.1 (3 April 1992). 129 An investigation is usually part of criminal proceedings but the duty to investigate exists independently. 130 See Bleier v. Uruguay, Communication No. R. 7/30, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/37/40, at 130, para. 15 (1982); Barbato v. Uruguay, Communication No. 84/1981, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/38/40, at 124, para. 11 (1983); Quinteros v. Uruguay, Communication No. 107/1981, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/OP/2, in Selected Decisions under the Optional Protocol, Vol. 2, p. 138, at 143, para. 15 (1983); Laureano Atachahua v. Peru, Communication No. 540/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/540/1993, para. 10 (1996).

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falls under the State party’s obligation to grant an effective remedy.’131 Failure to investigate allegations of human rights violations, according to the Human Rights Committee, can itself give rise to a separate breach of the Covenant.132 Investigation is sought in order to bring to light an abuse and to enable the victim to pursue other remedies. The latter aspect was referred to in Rodríguez v. Uruguay where the Committee stressed that the absence of an investigation and of a final report constituted ‘a considerable impediment to the pursuit of civil remedies, e.g. for compensation’.133 This duty, though overlapping with the duty to prosecute, is independent of the duty to fight impunity. Thus, even if there was no duty to prosecute and punish a violation134 there would still be a duty to investigate allegations of human rights violations. As to the legal basis for the duty to investigate, the Committee elaborated in its General Comment on Torture that it follows from art. 7 read together with art. 2(3), that complaints must be investigated promptly and impartially by competent authorities ‘so as to make the remedy effective’.135 In Joaquin Herrera Rubio et al. v. Colombia, the Committee held that the State party had violated art. 6, inter alia, because it had failed to investigate effectively the responsibility for the victim’s murder and concluded that the State party was under an obligation, in accordance with art. 2, to take effective measures to investigate the violations of arts 7 and 10(1).136 Hence, the obligation to conduct an official investigation derives from the substantive rights—such as those in arts 6 and 7—read together with art. 2(3).137 131 Blanco v. Nicaragua, Communication No. 328/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/328/1988, para. 10.6 (1994). See also Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, paras 12.3, 12.4 (1994). 132 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 15 (26 May 2004). 133 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 6.3 (1994). 134 E.g., if other sanctions are more adequate, see above section 3. 135 Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 32, para. 14, U.N. Doc. HRI/ GEN/1/Rev.1 (3 April 1992). 136 Joaquin Herrera Rubio et al. v. Colombia, Communication No. 161/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40, at 190, paras 11–12 (1988). 137 The duty to investigate cases of human rights violations is sometimes derived only from the substantive rights of the Covenant. In its Comments on Senegal, the Committee criticized that ‘[t]he passiveness of the Government in conducting timely investigations of reported cases of ill-treatment of detainees, of torture and of extra-judicial executions is not consistent with the provisions of arts. 7 and 9 of the Covenant’. Human Rights Committee, Concluding Observations of the Human Rights Committee: Senegal, U.N. Doc. CCPR/C/79/Add.10, para. 5 (1992). In its General Comment No. 6 concerning art. 6 the Committee held it to be mandatory to establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons. Human Rights Committee, General Comment No. 6: The Right to Life (Art. 6), at p. 6, U.N. Doc. HRI/GEN/1/Rev.1 (27 July 1982).

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Turning to the specific requirements of the duty to investigate, the investigation should be conducted by an independent institution examining allegations of human right violations sua sponte.138 Usually the prosecuting authorities are competent to conduct such investigations. In cases of police abuse it is necessary to ensure that the investigating authorities are structurally independent of the alleged perpetrators. In its Concluding Observations on Cambodia, for example, the Committee recommended an independent human rights monitoring body to receive and investigate allegations of torture or other abuses of power by public officials.139 An effective remedy can be provided through recourse to a competent judicial, administrative, legislative, or other authority.140 Each investigating report of human rights abuses should be transparent and the results should be made public.141

2. Compensation for victims Following the investigation, the victim has a right to appropriate compensation for injuries suffered.142 In cases of death the victim’s family is entitled to claim such compensation. The right to compensation is an element of the right to an effective remedy under art. 2(3)(a).143 Some provisions in the Covenant guarantee compensation for specific failures. In cases of unlawful arrest or detention, art. 9(5) provides for an enforceable right to compensation. Those punished as a result of a miscarriage of justice are entitled to compensation pursuant to art. 14(6). There are different means for compensating human rights violations. According to the Committee, reparation, where appropriate, can involve restitution, rehabilitation,

138 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 10 (1999). 139 Human Rights Committee, Concluding Observations of the Human Rights Committee: Cambodia, U.N. Doc. CCPR/C/79/Add.108, paras 6, 10 (1999). 140 Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, U.N. Doc. CCPR/C/79/Add.19, para. 7 (1993). 141 Human Rights Committee, Concluding Observations of the Human Rights Committee: Tunisia, U.N. Doc. CCPR/C/79/Add.43, para. 14 (1994). 142 See Bleier v. Uruguay, Communication No. R. 7/30, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/37/40, at 130, para. 15 (1982); Barbato v. Uruguay, Communication No. 84/1981, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/38/40, at 124, para. 11 (1983); Quinteros v. Uruguay, Communication No. 107/1981, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/OP/2, in Selected Decisions under the Optional Protocol, Vol. 2, p. 138, at 143, para. 15 (1983); Laureano Atachahua v. Peru, Communication No. 540/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/540/1993, para. 10 (1996). 143 Thomas v. Jamaica, Communication No. 321/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/49/D/321/1988, para. 11 (1993). See also Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46, para. 15 (1995).

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and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition, and changes in relevant laws and practices.144 Compensation needs to be complemented by other forms of redress. It is not enough to pay compensation without investigating and taking appropriate measures of sanction. As the Committee pointed out during the consideration of Morocco’s third periodic report, ‘[c]ompensation, however admirable in itself, would not be sufficient. . . . Only identification and punishment of those responsible would do so, since it would make plain that there was no impunity for such action and prevent any repetition’.145 The statement clarifies that compensation and accountability are two separate matters. While prosecution and punishment is sought in order to prevent repetition, compensation is a remedy for the victim.

6. Amnesties under the Covenant The issue whether under the International Covenant on Civil and Political Rights there may be an exception from the duty to prosecute human rights violations in the aftermath of civil war and dictatorship has been controversial.146 In Rodríguez v. Uruguay the State party argued ‘that notions of democracy and reconciliation ought to be taken into account when considering laws on amnesty and on the lapsing of prosecutions’.147 It elaborated that ‘to investigate past events . . . is tantamount to reviving the confrontation between persons and groups. This certainly will not contribute to reconciliation, pacification and the strengthening of democratic institutions.’148 Virtually none of the procedural obligations created by the Covenant are absolute. Duties may compete and therefore need to be balanced against each other. The main scope is the effective protection of human rights. If the prosecution of offenders would lead to a situation adverse to an outcome of peace and the enjoyment of human rights, an exception may be made. However, it is questionable whether an amnesty has the potential of restoring peace in society. This certainly

144 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 16 (26 May 2004). 145 Human Rights Committee, Summary record of the 1365th meeting: Morocco, U.N. Doc. CCPR/C/SR.1365, para. 54 (1994). 146 See e.g. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2599 (1991); Impunity and Human Rights in International Law and Practice 57 et seq. (Naomi Roht-Arriaza ed., 1995); Kai Ambos, Straflosikeit von Menschenrechtsverletzungen 209 et seq. (1997); Leila Nadya Sadat, Individual Progress in International Law: Considering Amnesty, in Progress in International Law 335–356 (Russel Miller & Rebecca Bratspies eds, 2008). 147 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 8.3 (1994). 148 Id. at para. 8.5.

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depends on the individual case, the scope of the amnesty, the particularities of the State concerned, its culture, the alternative remedies etc. As discussed in the first part of this chapter, two sets of obligations address human rights abuses. One concerns the obligation derived from the rights of the victim, namely the duty to investigate and to compensate in accordance with the victim’s right to an effective remedy. The other one is the duty to prosecute in order to regain respect and to protect the Covenant rights. The fact that both sets of obligations are usually affected by the proclamation of an amnesty led the Human Rights Committee to prefer a general prohibition of amnesties for human rights violations. In the case of Ecuador, for example, it generally welcomed constitutional provisions prohibiting the enactment of future amnesty legislation for human rights violations.149 The Committee in several pronouncements elaborated why and in which specific ways State party obligations under the Covenant are affected. To understand the Committee’s approach and to determine whether and under which circumstances an exception to the respective obligation can be made, the two sets of obligations need to be dealt with separately.

1. The right to an effective remedy including compensation In Rodríguez v. Uruguay the Committee examined Uruguayan Law No. 15,848 of 22 December 1986, the Limitations Act or Law of Expiry (Ley de Caducidad de la Pretensión Punitiva del Estado), which provided for the immediate end to judicial investigation into allegations of human rights violations and made impossible the pursuit of crimes committed during the years of military rule.150 It held that: [A]mnesties for gross violations of human rights and legislation such as Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado, are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses.151

Similarly, the Committee expressed its concern over Argentina’s former Act 23.521 (Law of Due Obedience) and Act 23.492 (Law of Punto Final ) for denying 149 In its observations on the fourth periodic report of Ecuador the Committee ‘welcomes the information that art. 23 of the Constitution prohibits the enacting of amnesty legislation or granting pardons for human rights violations; that torture, enforced disappearances and extrajudicial executions have no statute of limitations’. Human Rights Committee, Report of the Human Rights Committee, 53rd Sess., Suppl. No. 40, U.N. Doc. A/53/40, Vol. I, at para. 280 (1998). 150 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 2.2 (1994). 151 Id. at para. 12.4. In order to ensure that victims of past human rights violations have an effective remedy, the Committee recommended adopting legislation to correct the effects of Uruguay’s Expiry Law in its Comments on Uruguay’s third periodic report. See Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, U.N. Doc. CCPR/C/79/Add.19, para. 11 (1993).

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an effective remedy to victims of human rights violations during the period of authoritarian rule in violation of art. 2(2) and (3) and art. 9(5) of the Covenant.152 Its main concern was that ‘amnesties and pardons have impeded investigations into allegations of crimes’.153 With regard to the Chilean Amnesty Decree Law, it held that it ‘prevents the State party from complying with its obligation under art. 2(3), to ensure an effective remedy to anyone whose rights and freedoms under the Covenant have been violated’.154 Accordingly, in the case of El Salvador the Committee recommended amending or repealing the Amnesty Law in order to ensure that victims of past human rights violations have an effective remedy and that they may be compensated.155 The reason for the Committee’s critical assessment is as follows: amnesties often have as a consequence that—due to the end of prosecution and the lack of alternative routes of investigations—the right to seek an official investigation into human rights abuses pursuant to art. 2(3) is effectively denied. At the same time, the payment of compensation, also guaranteed by the provision, is hampered. The absence of an official investigation constitutes, at the least, a considerable impediment to the pursuit of civil remedies (e.g. compensation). Amnesties frequently interfere with art. 14 by excluding the possibility of the victim being able to claim compensation through civil litigation. Pursuant to this provision everyone is entitled to have his rights (i.e. the right to compensation) determined in a suit at law. Amnesties usually have the effect that civil claims cannot be brought to court. If no official investigation takes place victims are often unable to identify their offenders and to gather sufficient evidence to sustain a civil claim. This is, arguably, an obstacle to the enjoyment of the right to seek legal redress because States parties to the Covenant must ensure that victims are able to enforce their right to compensation through the courts.156 Finally, if an amnesty results in the denial of compensation for unlawful detention a State party violates art. 9(5). In cases of enforced disappearance the failure to investigate as a consequence of an amnesty may even amount to a violation of the right to recognition as a person before the law pursuant to art. 16.157

152 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46, para. 10 (1995). The laws cited were repealed in 1998. 153 Id. 154 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 7 (1999). 155 Human Rights Committee, Concluding Observations of the Human Rights Committee: El Salvador, U.N. Doc. CCPR/C/79/Add.34, paras 12 et seq. (1994). 156 But, again, this does not mean that a duty to prosecute can be derived from art. 14. It is the investigation which is relevant for compensation, not the criminal punishment of the offender. 157 Hipólito Solari Yrigoyen in his dissent, Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/717/1996. See also Christine Chanet, id.

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2. The duty to prosecute But what about amnesty legislation which at least provides for an official investigation? Even if there is an official investigation and provision is made for the compensation of victims, there is still the question whether the ‘respect and ensure’ provision of the Covenant is an obstacle to the proclamation of an amnesty. The crucial question in such cases is whether a State party to the Covenant is allowed to abstain from prosecuting in order to re-establish peace. The Human Rights Committee, apart from pointing to the right to an effective remedy, has frequently criticized amnesties due to the resulting failure to prosecute perpetrators of human rights violations. For example, in its Comments on Argentina the Committee recommended ‘that appropriate care be taken in the use of pardons and general amnesties so as not to foster an atmosphere of impunity’.158 In its Comments on Peru, the Committee expressed its concern that the Peruvian amnesty granted by Decree Law 26,479 of June 1995 absolved from criminal responsibility and prevented punishment of perpetrators of past human rights violations.159 Therefore, in Laureano Atachahua v. Peru the Committee once again urged the State party to bring to justice those responsible for the victim’s disappearance, ‘notwithstanding any domestic amnesty legislation to the contrary’.160 Accordingly, in its Concluding Observations on Colombia the Committee recommended that ‘in order to combat impunity, stringent measures be adopted to ensure that all allegations of human rights violations be promptly and impartially investigated, that the perpetrators be prosecuted, that appropriate punishment be imposed on those convicted’.161 The crucial point is that State officials who committed serious human rights violations are held responsible. As the Committee pointed out in its General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ‘States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties’.162

158 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46, para. 15 (1995). 159 Human Rights Committee, Concluding Observations of the Human Rights Committee: Peru, U.N. Doc. CCPR/C/79/Add.67, para. 9 (1996). 160 Laureano Atachahua v. Peru, Communication No. 540/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/56/D/540/1993, para. 10 (1996). 161 Human Rights Committee, Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add.75, para. 32 (1997). 162 Human Rights Committee, General Comment on Article 2 CCPR: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/74/CRP.4/Rev.3, para. 18 (5 May 2003).

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A. Prosecution versus reconciliation? The Human Rights Committee has not accepted the argument that an amnesty is necessary to restore respect for human rights. In its Concluding Observations on Chile of 1999, while appreciating the political background of the Chilean amnesty which facilitated the transition from military dictatorship to democracy, it criticized the constitutional arrangements made as part of the political agreement.163 It stressed ‘that internal political constraints cannot serve as a justification for non-compliance by the State party with its international obligations under the Covenant’.164 The reasons for retaining the duty to prosecute in the aftermath of armed conflict and dictatorship were explained with respect to the one-sided Peruvian amnesty. The Committee stated that the prevention of the perpetrator’s punishment for past human rights violations ‘undermines efforts to establish respect for human rights, contributes to an atmosphere of impunity . . . and constitutes a very serious impediment to efforts undertaken to consolidate democracy and promote respect for human rights and is thus in violation of article 2 of the Covenant’.165 That a State party by adopting an amnesty contributes to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations, was also emphasized in Rodríguez v. Uruguay.166 During the consideration of Haiti’s report in 1995, Rosalyn Higgins, then member of the Committee, noting that in many newly democratized countries amnesty had been viewed as the negotiating price for the restoration of democracy, stressed that ‘unless past crimes were addressed, the future would remain uncertain’.167 The effect of reconciliation has been repeatedly questioned by other members of the Committee.168 Christine Chanet explained during the deliberations on Guatemala’s second periodic report that ‘[i]f national reconciliation was to be made possible, the people of Guatemala needed to come to terms with 163 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 6 (1999). 164 Id. 165 Human Rights Committee, Concluding Observations of the Human Rights Committee: Peru, U.N. Doc. CCPR/C/79/Add.67, para. 9 (1996). See also Human Rights Committee, Concluding Observations of the Human Rights Committee: Yemen, U.N. Doc. CCPR/C/79/Add.51, para. 11 (1995); Human Rights Committee, Concluding Observations of the Human Rights Committee: Paraguay, U.N. Doc. CCPR/C/79/Add.48, para. 9 (1995). 166 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 12.4 (1994). See also Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, U.N. Doc. CCPR/C/79/ Add.19, para. 7 (1993); Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, U.N. Doc. CCPR/C/79/Add.49, para. 8 (1995). 167 Human Rights Committee, Summary record of the 1397th meeting: Haiti, U.N. Doc. CCPR/C/SR.1397/Add.1 (1994). 168 Mr El Shafei, Mr Bán, and Mr Bruni Celli in Human Rights Committee, Summary record of the 1520th meeting: Peru, U.N. Doc. CCPR/C/SR.1520, paras 9, 21, 54 (1996). Mr Bruni Celli ascertained that ‘impunity encouraged the continued commission of human rights abuses’.

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the past’.169 A general amnesty which prevents the examination of past crimes, cannot serve the process of reconciliation. Therefore, the Committee while urging governments, such as those of Colombia and Guatemala, to set up a process of national reconciliation also called upon them to combat impunity.170 In Rodríguez v. Uruguay it rejected the State party’s assertion that the Law of Expiry (Ley de Caducidad de la Pretensión Punitiva del Estado), which provided for the immediate end to judicial investigation into allegations of human rights violations, consolidated democracy and ensured the social peace which according to Uruguay was necessary for the establishment of a ‘solid foundation of respect of human rights’.171 Contrary to the view expressed by the State party, the Committee did not acknowledge that an amnesty ensures that situations which endanger respect for human rights will not re-occur in the future.172 Another argument against amnesties was put forward by Eckart Klein in consideration of Peru’s third periodic report. He pointed out that the Peruvian amnesty laws ‘did nothing to restore the rule of law but, on the contrary, encouraged the persistence of prehensible practices’.173 Similarly, the climate of impunity in Guatemala was criticized by the Committee as an obstacle to the rule of law.174 In sum, while the Human Rights Committee emphasizes that democracy, peace and, respect for human rights need to be re-established after a civil war and dictatorship,175 it does not usually see how that objective will be achieved by the proclamation of an amnesty.176 On the contrary, according to the Committee, impunity may weaken the re-establishment of peace, respect for human rights, democracy, and the rule of law. Whether the Committee is prepared to make exceptions remains to be seen. The first reporting session on South Africa, where this issue might arise, is awaited. It will presumably deal with South Africa’s Truth 169 Human Rights Committee, Summary record of the 1940th meeting: Guatemala, U.N. Doc. CCPR/C/SR.1940, para. 51 (2001). 170 Human Rights Committee, Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add.75, paras 30, 32 (1997); Human Rights Committee, Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/ Add.63, para. 25 (1996). 171 Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, paras 4.3, 12.4 (1994). 172 This argument had been made by the State party as a justification. Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 4.3 (1994). 173 Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/SR.1519, para. 73 (1997). 174 Human Rights Committee, Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/Add.63, para. 4 (1996). 175 Human Rights Committee, Concluding Observations of the Human Rights Committee: El Salvador, U.N. Doc. CCPR/C/79/Add.34, paras 7, 12 (1994). 176 Though the Committee acknowledged that the Bulgarian amnesty law ‘laid solid grounds for the development of a free and democratic society based on the rule of law’, it criticized that not all cases of torture that occurred under the former regime had been redressed. Human Rights Committee, Concluding Observations of the Human Rights Committee: Bulgaria, U.N. Doc. CCPR/C/79/ Add.24, paras 5, 7 (1993). The evaluation of an amnesty, therefore, seems to depend on the seriousness of the offences covered.

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and Reconciliation Commission and will hopefully give some insight into the issue whether a conditional amnesty combined with a national fact-finding procedure is able to satisfy the standards of the Covenant.

B. Human rights violations which cannot be amnestied The above-mentioned cases were concerned with comprehensive amnesties which did not distinguish between the crimes at issue. We will now turn to whether a State party in a post-conflict situation may single out particularly serious crimes for prosecution while proclaiming an amnesty for others. According to the Human Rights Committee there are several crimes which strictly require prosecution. Crimes against humanity and war crimes may not be amnestied.177 States parties, such as Burundi, have been urged to bring to trial and punish those responsible for gross violations of human rights.178 The term ‘gross violations of human rights’ was elaborated on in the Committee’s Comments on Argentina’s second periodic report. The Committee criticized the fact that amnesties and pardons had been applied even in cases where there existed significant evidence of gross human rights violations, such as unlawful disappearances and detention of persons, including children.179 According to the Committee, gross violations of civil and political rights should be prosecutable for ‘as long as necessary’.180 In the case of Croatia, it recommended that serious human rights violations should not be amnestied.181 177 In its Concluding Observations on Colombia of 2004, the Committee called upon the State party to ensure that the proposed legislation on alternative penalties to imprisonment which encouraged illegal troops to lay down their arms did not grant impunity to persons who had committed war crimes and crimes against humanity. U.N. Doc. CCPR/CO/80/COL, para. 8 (2004). In its Concluding Observations on Guatemala of 2001, the Committee recommended that the State party should ‘[s]trictly apply the National Reconciliation Act, which explicitly excludes crimes against humanity from amnesty’. U.N. Doc. CCPR/CO/72/GTM, para. 12 (2001). During the consideration of Peru’s third periodic report Fausto Pocar, a former member of the Committee, held it very disturbing if even those guilty of crimes against humanity could be granted amnesty. Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/SR.1519, para. 79 (1997). In its Concluding Observations on Cambodia the Committee recommended bringing the alleged perpetrators of crimes against humanity to trial. U.N. Doc. CCPR/C/79/Add.108, para. 6 (1999). 178 Human Rights Committee, Concluding Observations of the Human Rights Committee: Burundi, U.N. Doc. CCPR/C/79/Add.41, para. 12 (1994). 179 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/C/79/Add.46, para. 10 (1995). Accordingly, in its most recent Concluding Observations on Argentina the Committee welcomed that perpetrators of the most serious human rights violations were being brought to trial. Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/CO/70/ARG, para. 5 (2000). 180 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/CO/70/ARG, para. 9 (2000). 181 Human Rights Committee, Concluding Observations of the Human Rights Committee: Croatia, U.N. Doc. CCPR/CO/71/HRV, para. 11 (2001). The Committee criticized that the exception of the Croatian Amnesty Law for ‘war crimes’ was not defined leaving the danger that the law will be applied to grant impunity to persons accused of serious human rights violations.

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The Committee has specified in various pronouncements the particular crimes to which an amnesty should not be applied. The above-cited condemnation of amnesties in its General Comment on art. 7 was related to acts of torture.182 The Committee extended this to extra-judicial executions which should ‘in no case enjoy immunity, inter alia, through an amnesty law’.183 In addition, those responsible for summary executions, enforced disappearances, ill-treatment, arbitrary arrest, and detention should be prosecuted and punished despite the proclamation of an amnesty.184 In its General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant the Committee referred to violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman, and degrading treatment, summary and arbitrary killing, and enforced disappearance.185 The scope of these crimes is much broader than crimes against humanity. While most of the pronouncements focused on impunity for serious crimes, the Committee has sometimes extended its criticism to amnesties covering human rights violations in general.186 For example, in its Concluding Observations on Cambodia the Committee recommended that the State party should bring to trial perpetrators of gross human rights violations and crimes against humanity but expanded this obligation to all violations of Covenant rights.187 In its Comments on Senegal, it found that amnesty should not be used as a means of ensuring the impunity of State officials responsible for violations of human rights. Such violations, especially torture, extra-judicial executions, and ill-treatment of detainees should be investigated and those responsible for them brought to trial and punished.188 Amnesties covering any human rights violation were criticized as

182 Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 31, para. 15, U.N. Doc. HRI/ GEN/1/Rev.1 (3 April 1992). 183 Human Rights Committee, Concluding Observations of the Human Rights Committee: Niger, U.N. Doc. CCPR/C/79/Add.17, para. 7 (1993). 184 Human Rights Committee, Concluding Observations of the Human Rights Committee: Peru, U.N. Doc. CCPR/C/79/Add.67, para. 22 (1996); Human Rights Committee, Concluding Observations of the Human Rights Committee: Senegal, U.N. Doc. CCPR/C/79/Add.10, para. 5 (1992). 185 Human Rights Committee, General Comment on Article 2 CCPR: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/74/CRP.4/Rev.3, para. 17 (5 May 2003). 186 In its Comments on Haiti, the Committee urged the State party to exclude the perpetrators of past human rights violations from the scope of the amnesty. U.N. Doc. CCPR/C/79/Add.49, para. 13 (1995). 187 The Committee urged the State party ‘to bring those alleged to have violated Covenant rights to trial’. Human Rights Committee, Concluding Observations of the Human Rights Committee: Cambodia, U.N. Doc. CCPR/C/79/Add.108, paras 6, 11 (1999). 188 Human Rights Committee, Concluding Observations of the Human Rights Committee: Senegal, U.N. Doc. CCPR/C/79/Add.10, para. 5 (1992).

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incompatible with art. 2(1)–(3) in the Concluding Observations on Chile.189 Without distinguishing between the abuses, the Committee declared that ‘amnesty laws covering human rights violations are generally incompatible with the duty of the State party to investigate human rights violations, to guarantee freedom from such violations within its jurisdiction and to ensure that similar violations do not occur in the future’.190 In Boucherf v. Algeria the Committee indicated that it has the competence to review cases regardless of whether they are subject to an amnesty. The complaint concerned a forced disappearance and the absence of any thorough investigations and proceedings despite numerous requests. A draft amnesty law, which was submitted to a referendum, rejected allegations aimed at rendering the State responsible for disappearances. The author’s counsel feared that the amnesty law would put those still disappeared at risk, deprive victims of an effective remedy, and render the views of the Human Rights Committee ineffective.191 The Committee held that the failure to investigate the disappearance was in violation of the right to an effective remedy.192 It also recognized a State duty to prosecute, try, and punish those responsible for forced disappearances. The State party should not invoke the ‘draft amnesty law . . . against individuals who invoke the provisions of the Covenant or have submitted or may submit communications to the Committee’.193 The Committee thereby indicated that the right to an effective remedy is absolute and cannot be abrogated from by a State party. The right to claim a violation of the Covenant persists even in cases of an amnesty and the Committee assumes the competence to deal with such complaints even if the State party involved enacts an amnesty law. In other words, the Committee retains its competence to deal with complaints even if a democratic decision by the State party brings an end to the domestic proceedings.

189 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 7 (1999). 190 Id. See also Human Rights Committee, Concluding Observations on the second periodic report of the Congo: Congo, U.N. Doc. CCPR/C/79/Add.118, para. 12 (2000). However, under the individual complaint procedure the Committee has been reluctant expressly to condemn the Chilean amnesty law of 1978. It avoided issuing a statement on the compatibility of the amnesty law with the Covenant in the communication regarding the ‘Baños de Chihuio’ incident by holding it inadmissible ratione temporis. The State party had not explicitly challenged the admissibility of the communication. According to the dissent, the Committee should have declared the communication admissible ratione temporis. See Acuña Inostroza et al. v. Chile, Communication No. 717/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/717/1996, para. 7 and Appendix (1999); see also María Otilia Vargas Vargas v. Chile, Communication No. 718/1996, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/718/1996/Rev.1, para. 7 (1999); Humberto Menanteau Aceituno and José Carrasco Vasquez v. Chile, Communication No. 746/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/66/D/746/1997, para. 7 (1999). 191 Boucherf v. Algeria, Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 1.2 (2006). 192 Id. at para. 11. 193 Id.

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7. Conclusion and outlook 1. The scope of the obligation to prosecute Though the Human Rights Committee has repeatedly denied an individual right to demand prosecution of perpetrators of human rights violations, it derives from the Covenant a duty on States parties to bring to justice perpetrators of human rights violations. The Committee—especially in cases of extra-judicial executions, enforced disappearances, torture, ill-treatment, and arbitrary arrests—has called upon States parties to criminalize and punish offenders. While prosecution is mandatory for serious human rights violations, there are alternative sanctions for other violations. The requisite sanction depends on the particular violation and on its potential effectiveness. It is not simply State officials who commit human rights violations who need to be punished. Depending on the human right affected and the scope of its horizontal effects, a State party needs also to punish private individuals. This obligation is part of the general State party duty effectively to protect human rights. It also includes, to a certain degree, the protection against private interference. The State party is required to conduct an official investigation sua sponte pursuant to art. 2(3) to provide victims with an effective remedy.

2. The underlying rationale According to the traditional concept of the Human Rights Committee, impunity is an obstacle to the respect of human rights. And punishment is regarded as a general means of protection against future human rights violations. For the Committee, punishment is not only an effective option for human rights protection but it is essential and mandatory in order ‘to respect and to ensure’ the Covenant rights pursuant to art. 2(1). Otherwise a duty to punish could not be assumed. While the Committee usually gives some latitude to the choice of implementation measures, it is much stricter with regard to the question of how perpetrators of serious human rights abuses need to be dealt with. In assuming a duty to prosecute such violations, the Committee rules out any other option. Criminal punishment becomes the only effective means of protection. Today there is a trend in the Human Rights Committee to regard punishment not only as a measure of prevention but also as a remedial measure pursuant to art. 2(3). It is still unclear whether this will lead to the assumption of an individual right which would be consequential but a significant deviation from the Committee’s standing jurisprudence. There are better arguments for keeping the traditional approach. This will be explained in Chapter 6 which seeks to give guidance on the future conceptualization of prosecution in human rights law. Whatever the Committee decides, it should be aware of and definite in its future rationalization of criminal punishment. Before it elaborates further in its

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jurisprudence, the Committee needs to clarify why it asks for criminal measures. This has important implications for the scope of the obligation and how it can be implemented and enforced.194 If there is no individual right, a violation cannot be claimed by victims of serious human rights abuses in the individual communications procedure. This is why most pronouncements on the duty to punish have been made in the State reporting procedure.195 But with the assumption of an individual right, numerous cases will be brought before the Committee to challenge individual cases of miscarriage of justice. The underlying rationale also has implications for the question whether prosecution may be compromised in exceptional circumstances. If the focus is on deterrence in general and on prevention of future violations, there is at least some room to argue that in specific situations the overall protection of human rights is better served by the renunciation of punishment, combined with supplementing measures.196 But if there were to be an individual right of victims to see their abusers prosecuted, then there is virtually no allowance for such arguments.

3. Amnesties The Human Rights Committee leaves virtually no space for amnesties for human rights violations. Its pronouncements show a profound dislike of amnesties and a preference for a general prohibition of amnesties of human rights violations. The argument that an amnesty is necessary for reconciliation and the re-establishment of respect for human rights has been repeatedly rejected. The two main arguments raised against amnesties for human rights violations are based on the right of the victim to an effective remedy (art. 2(3)) and the duty to respect and ensure the Covenant rights (art. 2(1)). As the Committee in its General Comment on art. 7 pointed out: Amnesties are generally incompatible with the duty of States to investigate such acts [acts of torture]; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an

194 If the emphasis is on the deterrent effect of punishment, the choice of sanction depends on the question how much punishment is needed effectively to deter future violations. But if punishment is sought in order to remedy the wrong suffered by the victim, other factors will need to be considered. In this case it will be relevant to consider issues of satisfaction. 195 Sometimes, however, the Human Rights Committee even in its views on individual communications calls on states to expedite criminal proceedings against perpetrators of serious human rights violations as a non victim-related remedy. See Coronel v. Colombia, Communication No. 778/1997, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/76/D/778/1997, para. 10 (2002). 196 The answer to the question whether an amnesty is permissible under the Covenant ultimately depends on whether one thinks that respect for human rights can be re-established despite impunity for human rights violations. See below Chapter 6, section 3.2.

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effective remedy, including compensation and such full rehabilitation as may be possible.197

But it did not entirely rule out the possibility for an amnesty. The term ‘generally incompatible’ suggests that there may be an exception to this general rule. This is also indicated by the new General Comment on art. 2. Here the Committee rules out only those amnesties which relieved perpetrators of serious human rights violations from ‘personal responsibility’.198 It is not clear what personal responsibility means in this context. If it requires criminal punishment, then there are no options from amnesties. But, arguably, there are also alternative measures for holding offenders personally responsible without criminal punishment, for example an investigation combined with an individualized amnesty upon confession.199 Whether an amnesty accompanied by stringent alternative measures to deal with the past can be accepted will be seen in future. Such an exception ultimately depends on the particular situation and whether the Committee can be persuaded that respect for human rights can be re-established despite impunity for human rights violations. This requires a careful analysis and evaluation of each individual situation. It is necessary to weigh up the prospective positive effects of re-establishing peace through the granting of an amnesty (e.g. if an amnesty is made preconditional for the end of a civil war) against the disadvantages of impunity for the future protection of human rights due to its negative effect on deterrence and the consequences for the victims. The Committee has been extremely critical of such arguments especially in the Latin American context. So far, no amnesty legislation covering human rights violations has passed the test. Further considerations arise even if the Committee can be persuaded to consider an exception. Essential and indispensable requirements for dealing with past human rights abuses under the Covenant are an official investigation with a final report identifying the perpetrators,200 removal of the perpetrators of serious offences from office,201 compensation and rehabilitation of the victims, the 197 Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 31, para. 15, U.N. Doc. HRI/ GEN/1/Rev.1 (3 April 1992). 198 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004). 199 In Boucherf v. Algeria the Committee insisted on the duty to prosecute. Communication No. 1196/2003, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/86/D/1196/2003, para. 11 (2006). However, the draft amnesty at issue was not a sincere effort to re-establish peace in society. Its purpose was to render the government immune. Such amnesties are clearly impermissible under the Covenant. 200 In Rodríguez v. Uruguay the Committee held an investigation and a final report imperative for the pursuit of civil remedies. Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/D/322/1988, para. 6.3 (1994). 201 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/CO/70/ARG, para. 9 (2000); Human Rights Committee, Concluding Observations of the Human Rights Committee: Brazil, U.N. Doc. CCPR/C/79/Add.66, para. 20

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determination of individual responsibility,202 as well as efforts to establish respect for human rights, to ensure non-recurrence, and to consolidate democracy. Gross violations of human rights, such as summary executions, torture, and enforced disappearances should not be amnestied. According to the Committee, one-sided amnesties for State officials are entirely unacceptable under the Covenant.203 The decision to grant amnesty for certain acts should at least be based on a democratic process.204 In order not to weaken the transition to security and democracy, human rights violators should be excluded from service in the military, the police force, and the judiciary.205 Additional measures should be taken to promote national reconciliation, that is institutions and programmes to serve as a channel of redress for victims of past abuses, as well as financial and other compensation for the victims.206

(1996); Human Rights Committee, Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/Add.63, para. 26 (1996); Human Rights Committee, Concluding Observations by the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/ Add.75, para. 32 (1997). 202 The essential requirements in dealing with past human rights violations were pointed out in the Committee’s Comments on Haiti of 1995 where it emphasized ‘the importance of investigation of human rights violations, determination of individual responsibility and fair compensation for the victims’. Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, U.N. Doc. CCPR/C/79/Add.49, para. 9 (1995). 203 According to Buergenthal this constitutes a retroactive ratification of the offences committed. Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/ SR.1519, para. 44 (1997). 204 Mr Bán, in Human Rights Committee, Summary record of the 1520th meeting: Peru, U.N. Doc. CCPR/C/SR.1520, para. 21 (1996). 205 See Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, U.N. Doc. CCPR/C/79/Add.49, para. 10 (1995). In its Concluding Observations on Argentina the Committee recommended the removal from office of perpetrators of gross human rights violations. Doc. CCPR/CO/70/ARG, para. 9 (2000). 206 In its Concluding Observations on Argentina the Committee welcomed the Historical Reparation Programme, the National Commission on the Disappearance of Persons and the National Commission for the Right to an Identity, Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, U.N. Doc. CCPR/CO/70/ARG, para. 4 (2000).

3 Prosecution under the American Convention on Human Rights Under the Inter-American human rights system, there is a growing trend to require punishment for human rights violations. This is not only evidenced in the provisions of the Inter-American Convention to Prevent and Punish Torture, the InterAmerican Convention on Forced Disappearances of Persons, and the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence against Women but also in the interpretation of the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.1 The Inter-American institutions have developed a stringent doctrine as to how States parties to the American Convention need to react to serious human rights violations and which form of accountability is envisaged. Most of the jurisprudence has been developed with a view to large-scale impunity. Impunity, pursuant to the Inter-American Court of Human Rights, means ‘the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention’.2 The Inter-American Commission on Human Rights distinguishes between different forms of impunity: de jure impunity and de facto impunity. De jure impunity describes situations where an amnesty is proclaimed or perpetrators of human rights violations are pardoned.3 A large part of the Inter-American jurisprudence in the early years concerned the analysis of different amnesty laws. This was due to

1 See arts 1, 6, and 8 Inter-American Convention to Prevent and Punish Torture, adopted 9 December 1985. In the ‘Street Children’ Case, for example, the Court found a violation of these articles because the administrative and judicial authorities had not adopted a formal decision to initiate a criminal investigation into the alleged perpetration of the crime of torture. Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, paras 250, 253 (19 November 1999). See also arts I and III Inter-American Convention on Forced Disappearance of Persons, 9 June 1994, 33 I.L.M. 1529; art. 7 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ‘Convention of Belem do Para’, 9 June 1994, 33 I.L.M. 1534; American Convention on Human Rights, ‘Pact of San José’, adopted 21 November 1969, 9 I.L.M. 99. 2 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 173 (8 March 1998). 3 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. para. 207 (2000).

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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the number of amnesties enacted in Latin America during the 1970s and 80s.4 The issue of whether they are compatible with the American Human Rights Convention has been on the agenda of the Inter-American Commission and Court ever since. Both institutions have gradually developed their jurisprudence on amnesties but none of the amnesties enacted in Latin American countries has found the approval of these institutions. Today amnesties are only one aspect of the Court’s jurisprudence. Over time the role of criminal law in the protection of the Inter-American human rights has increased significantly. Criminal justice in general has become an important item on the Inter-American agenda. De facto impunity has gradually moved to become central to the Court’s attention. The term ‘de facto impunity’ describes situations in which authorities do not make any factually significant efforts to investigate, prosecute, and punish persons responsible.5 The reasons may be manifold. Among them are corruption, shielding perpetrators from responsibility, and absence of a culture of respect for the law.6 Such impunity has been a widespread phenomenon in Latin America and is of particular concern to the Commission and the Court.7 According to the Commission, it is a serious problem in the administration of justice in the Americas.8 The Court considers impunity as a violation of human rights per se.9 Therefore, each State is obliged ‘to use all the legal means at its disposal’ to combat such situations.10 This has led the Court to rely increasingly on criminal measures as a means of ensuring the enjoyment of human rights, not only in situations of large-scale impunity but also in individual cases. Current cases concern various shortcomings in criminal procedure and adjudication. The Court has developed detailed standards for the conduct of criminal proceedings. 4 In Argentina, Brazil, Chile, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Peru, Suriname, and Uruguay amnesties for serious human rights violations were decreed. See Robert E. Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: Una Respuesta Legal, 15 Revista Instituto Interamericano de Derechos Humanos 47 (1992); Naomi Roht-Arriaza & Lauren Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843, 846 et seq. (1998). 5 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 206 (2000). 6 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, para. 2 (2001). 7 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 205 (2000). Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 84, 131 (22 September 2006); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 88 (29 November 2006). 8 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, para. 2 (2001) with reference to Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. chapter II para. 205 (2000). 9 Myrna Mack Chang Case, Reasoned Opinion of Judge Cançado Trindade, 2003 Inter-Am. Ct. H.R. (ser. C) No. 101, para. 10 (25 November 2003). 10 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 173 (8 March 1998). See also Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 289 (11 May 2007).

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Over time, the Court has given different reasons for requiring States parties to prosecute serious human rights violations. This has important implications for the specific role prosecution and punishment play under the American Human Rights Convention. The interpretation of the American Convention with respect to punishment to a certain extent resembles the interpretation of the International Covenant on Civil and Political Rights (ICCPR) by the UN Human Rights Committee. This applies especially to the analysis of the ‘respect and ensure’ provisions. But the following chapter shows that Inter-American institutions have gone further by focusing on the individual rights of the victims. According to the InterAmerican Court of Human Rights and the Inter-American Commission on Human Rights, not only investigation but punishment of the perpetrators itself is owed to victims and their families.

1. The duty to punish The jurisprudence on punishment began with the interpretation of art. 1(1) of the American Convention on Human Rights. This provision stipulates: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

The meaning of this provision was elaborated on by the Inter-American Court in the influential Velásquez Rodríguez Case, in which the Court dealt with the practice of disappearance carried out or tolerated by Honduran officials during the 1980s. At issue was the unresolved disappearance of Manfredo Velásquez Rodríguez. It was not established clearly whether he had disappeared at the hands of or with the acquiescence of State officials,11 but it was acknowledged that it had, at the least, been carried out within the framework of the then usual State practice regarding disappearances.12 Due to evidentiary problems the Court stated that an active involvement by Honduran officials was a matter that could be left open because the State party was not only obliged to refrain from violations but also to take measures to respond to abuses.13 The Court relied on art. 1: The second obligation of the States Parties is to ‘ensure’ the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction.

11 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). 12 Id. 13 The Court was convinced that the disappearance of Manfredo Velásquez was carried out by agents who acted under public authority. Id. at para. 182. Nevertheless, it argued that the involvement could be left open due to the duty to ensure the right to life.

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. . . As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. (Emphasis added.)14

The Court went on to explain that the duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. (Emphasis added.)15

Consequently Honduras could be held liable in international law even if the crime itself could not be clearly attributed to the State.16 The cause of its responsibility was the failure to prevent and respond to the violation.17 In the words of the Court: ‘What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible’ (emphasis added).18 If the State party fails in any one of the three obligations—namely to refrain from violations, to prevent them, and to punish them—it is held responsible even if the human rights abuse itself was committed by a private individual. The duty to punish exists independently of the duty to prevent and investigate.19 If a violation goes unpunished and the victim’s full enjoyment of his rights is not restored then, according to the Court, the State fails to comply with its duty to ensure the free and full exercise of the conventional rights pursuant to art. 1.20 This approach was later followed by the Inter-American Commission. The Commission has repeatedly held that States are not only liable under international law for the failure to prevent human rights abuses, but also for allowing crimes to remain with impunity.21 14 Id. at para. 166. See also Gangaram Panday Case, 1994 Inter-Am. Ct. H.R. (ser. C) No. 16, para. 43 (21 January 1994); Neira Alegria et al. Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 20, para. 43 (19 January 1995); Caballero Delgado and Santana Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 22, para. 61 (8 December 1995). 15 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 175 (29 July 1988). 16 It is important to note that the Velásquez Rodríguez judgment is not about the attribution of private acts to the State. The Court recognized that apart from the duty to refrain from human rights violations, States are obliged to investigate and punish. This is a primary norm which State authorities must comply with regardless of whether they were involved in the crime at issue. Therefore, it was the failure to investigate and punish which was attributed to the State, not the commission itself. 17 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 172 (29 July 1988). 18 Id. at para. 173. 19 In the case of Velásquez Rodríguez the Court criticized the totality of the missing investigation, punishment, and compensation. But even if victims are compensated the State may not refrain from prosecution. See also Godínez Cruz Case, 1989 Inter-Am. Ct. H.R. (ser. C) No. 5, paras 182–189 (20 January 1989). 20 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 176 (29 July 1988). 21 Arges Sequeira Mangas v. Nicaragua, Case 11.218, Inter-Am. C.H.R., Report No. 52/97, OEA/ Ser.L/V/II.98 doc. 6 rev. para. 154 (18 February 1998); Pastor Juscamaita Laura v. Peru, Case 10.542,

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According to the Commission, adjudication and punishment are the single most effective means to enforce human rights.22 That the State is bound to prosecute perpetrators for their crimes, is also explained by the State’s monopoly on punitive action.23 Today the duty to prosecute and punish serious human rights violations is firmly established in the jurisprudence of the Court and Commission.

2. Justifying the duty to punish Different rationales have been applied to sustain the call for prosecution and punishment over the past two decades. The varying rationales had an impact on the actual design of this obligation.

1. Punishment as general human rights protection The reasoning of the Court in the Velásquez Rodríguez Case shows that investigation and punishment are considered as measures to ensure to all persons the rights of the Convention.24 The Court requires punishment to prevent the commission of further crimes.25 This is in the interests of all persons and is therefore a matter of general human rights protection.26 Such statements considering punishment as a means to ensure human rights pursuant to art. 1, resemble the Human Rights Committee’s interpretation of the equivalent ‘respect and ensure’ provision of the ICCPR. This rationale has led the Inter-American human rights institutions to criticize fiercely any large-scale impunity. According to the Commission, there is a correlation between impunity and the commission of serious human rights abuses. Its experience in the Latin-American region suggests that in those States in which massive and systematic human rights violations take place, there has been a tendency for such crimes to go unpunished.27 Impunity, according to the Commission, involves a vicious circle which tends to recur and is perpetuated, thereby increasing Inter-Am. C.H.R., Report No. 19/99, OEA/Ser.L/V/II.95 Doc. 7 rev. paras 32–33 (23 February 1999). 22 Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/ Ser.L/V/II.83, doc. 14 at 83 (1993); Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. para. 66 (19 November 1999). 23 Meneses Reyes et al. v. Chile, Case 11.228, 11.229, 11.231, and 11.182, Inter-Am. C.H.R., Report No. 34/96, OEA/Ser.L/V/II.95, doc. 7 rev. para. 63 (15 October 1996). 24 E.g., punishment is sought to ensure the right to life in general. 25 See Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 175 (29 July 1988). 26 In the Durand and Ugarte Case the Court referred to ‘the general obligations of art. 1(1)’ to explain the duty to prosecute. Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 146 (16 August 2000). 27 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. para. 206 (2000).

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the occurrence of those crimes.28 This is so because potential perpetrators are not deterred which results in people taking justice into their own hands and gives rise to further human rights violations.29 The duty to punish serious human rights violations in order to prevent further crimes becomes relevant in cases where State authorities fail to apply the criminal law. In numerous cases the Court has considered shortcomings in the prosecution of offenders to be a violation of art. 1.30 It therefore called upon States to ensure the protection of life by prosecution and punishment of offenders. Apart from the shortcomings in individual cases, the obligation to punish as a matter of prevention also has implications for criminal law in general. The preventive aspect not only becomes relevant in the conduct of criminal proceedings, but also in the enactment of legislation. As the Court in the ‘Street Children’ Case explained, art. 1(1) ‘assigns duties of protection to the States Parties through their domestic legislation’.31 In other words, there is a need to enact laws that protects individuals from human rights violations. This, according to the Court, also involves criminal legislation. In Goiburú v. Paraguay the Court elaborated that the duty to protect (art. 1) the right to life, humane treatment, and personal liberty also includes the duty to criminalize serious violations of those rights in order to prevent serious crimes.32 In that particular case it criticized the fact that there were no criminal offences of torture and forced disappearance under the State’s criminal law. Though other categories of crimes had been applied in order to deal with torture and forced disappearance, the Court noted with disapproval the disparity between international law and domestic criminal law.

2. Victims’ rights A. Punishment as retrospective protection Apart from the preventive rationale, the Inter-American Court also considers punishment as a measure to protect the individual victim.33 The Court in the Velásquez 28 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, para. 9 (2001). 29 Id. 30 See e.g. Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 146 (16 August 2000). 31 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 237 (19 November 1999). 32 Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 91–92 (22 September 2006). 33 What distinguishes the approach of the Inter-American Court from the Human Rights Committee is the idea that punishment can be claimed in individual cases. Although the Committee also assumes a duty to punish, it is an objective duty without a corresponding individual right of the victim. See above Chapter 2, section 2. The approach of the Inter-American Court is more victimcentred. If follows from the Court’s reasoning in the Velásquez Rodríguez Case that the victim has a right to have human rights abuses punished even though the Court did not explicitly mention such individual right.

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Rodríguez Case required Honduras to punish the offenders ‘to ensure Manfredo Velásquez the free and full exercise of his human rights’.34 In other words, a State party must investigate, punish, and compensate in cases of human rights abuse to ensure to victims the free and full exercise of their human rights.35 This was affirmed in the Bámaca Velásquez Case, where the Court explained: if a State party does not punish those responsible it violates the obligation to respect the victim’s rights under the Convention.36 Accordingly, in Pastor Juscamaita Laura v. Peru, the Inter-American Commission on Human Rights held that the Peruvian amnesty violated art. 1(1) because it had failed to secure the victim’s rights.37 According to the Court’s reasoning in Velásquez Rodríguez, investigation and punishment are measures aimed to secure the victim’s right to life and liberty. Punishment is considered a form of retrospective protection owed in each individual case.38 The retrospective aspect is evidenced by the following consideration: in the case of Velásquez Rodríguez it was not the failure to prosecute prior cases and thereby prevent his disappearance which led the Court to find a violation of his rights. At issue were the steps taken with regard to his disappearance, including the lack of investigation and failure to punish his abusers.39 By asking the State party to punish the offenders in the interest of the victim, the Court hoped to ensure the enjoyment of his right to life ex post facto. This idea that punishment is sought for the retrospective protection of the victim’s rights is not easy to understand. After all, at the time a perpetrator is punished at can no longer prevent the commission of the crime. It can prevent only potential 34 The Court in its conclusion explained that the State party had failed to fulfil ‘the duties it assumed under art. 1(1) of the Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights’ and thereby referred to the duty to investigate, punish and compensate. Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, paras 178–181 (29 July 1988). 35 Id. at para. 194. That this is an obligation vis-à-vis the victim again was clarified when the Court finally declared that Honduras violated ‘in the case of Angel Manfredo Velásquez Rodríguez’ its obligation to respect and to ensure the right to personal liberty, to humane treatment and to life read in conjunction with art. 1(1) thereof. 36 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 129 (25 November 2000). 37 Pastor Juscamaita Laura v. Peru, Case 10.542, Inter-Am. C.H.R., Report No. 19/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 40 (23 February 1999). 38 For a similar reasoning in the Human Rights Committee see above Chapter 2, section 2.2. The European Court more recently adopted a similar approach in Kaya v. Turkey where the Court found that there was an insufficient factual and evidentiary basis to conclude that the applicant’s brother was, beyond reasonable doubt, intentionally killed by the security forces. Nonetheless, the Court held that there had been a violation of art. 2 of the European Convention on account of the failure of the state authorities to conduct an effective investigation into the circumstances surrounding the death of the applicant’s brother. Kaya v. Turkey, App. No. 22729/93, Eur. Ct. H.R., para. 78, Judgment of 19 February 1998. There is, however, still a difference between the jurisprudence of the two Courts. The emphasis of the European Court, as will be elaborated on below, is on the investigatory duties. See below Chapter 4, section 2.3. The Inter-American Court in recent years has gone further by assuming a duty to punish which can be claimed in individual cases. 39 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 178 (29 July 1988).

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future crimes which threaten society as a whole. The reason for the Court’s broad interpretation of the ‘respect and ensure’ provision of art. 1 was indicated when it stressed: ‘Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.’40 The failure to investigate is regarded as a form of aiding and abetting, albeit not in the sense of criminal law. Though this failure is not the cause of the human rights abuse, it is regarded as a form of subsequent acquiescence. At the same time, prosecution and punishment are regarded as measures to restore the legal rights violated.41 They are measures to re-establish respect for the victim’s substantive rights. The duty to investigate and punish takes the form of a surrogate function, especially in cases where State participation in the crime cannot be established. From this perspective, the concept of ensuring human rights is not only limited to prevention; it has also retrospective aspects which are more akin to a remedy.42 While this specific rationale dominated the jurisprudence in the beginning, over time it has lost its influence. The shift became apparent in the Las Palmeras Case in which the Court took an approach different from that of the Commission. In that instance, again, the State’s involvement in the taking of the life of one of the victims could not be established. The Commission had argued that the State party had violated the right to life by failing to investigate the events.43 It explained that the duty to protect the right to life does not end upon a person’s death. This duty was wider than the obligation to respect because it required an ex post facto procedure to establish the facts of a murder.44 This line of reasoning followed the Velásquez Rodríguez rationale. However, the Inter-American Court did not adopt this general approach of ex post facto protection.45 It held that there was no generic rule that the failure to investigate was to be considered as an attempt to protect the author of a crime.46 Instead of finding a violation of the right to life, the Court considered the judicial rights of the victim.47 This concept will be elaborated on below. At present the 40 Id. at para. 177. In this sense see also Thomas Buergenthal during the deliberations of the Human Rights Committee with respect to Peru: Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/SR.1519, para. 44 (1997). 41 Arges Sequeira Mangas v. Nicaragua, Case 11.218, Inter-Am. C.H.R., Report No. 52/97, OEA/ Ser.L/V/II.98 doc. 6 rev. para. 169 (18 February 1998). 42 This becomes evident when the Court also lists compensation as an obligation under art. 1. Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, paras 174, 178, (29 July 1988). 43 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 42 (6 December 2001). 44 For a similar approach see Kaya v. Turkey, App. No. 22729/93, Eur. Ct. H.R., para. 78, Judgment of 19 February 1998. 45 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 42 (6 December 2001). 46 The Court acknowledged that the failure to investigate may under certain circumstances be construed as an attempt to protect the authors of a crime. Id. But in these cases it is not the right to life, but the rights under arts 8 and 25 which are found to be violated. See id. at note 1. 47 Id at para. 71. The Court currently considers the failure to investigate and prosecute murder only as an aggravating factor of the State’s responsibility under art. 4 (right to life). Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 116

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Court has replaced the retrospective protection rationale by reference to remedial rights. Thus, when the Court seeks criminal prosecution in the interest of the victim, it resorts to the judicial rights of the victims, not to the general respect and ensure provision. It usually refers only to art. 1 to explain punishment as a matter of general human rights protection. If it does so, it seeks prosecution and punishment for the purpose of prevention. Despite this shift in the concept of punishment, it is important to acknowledge that the Velásquez Rodríguez Case had far-reaching implications for subsequent case law. This concerns primarily the notion that punishment is required in the interest of the victim. The idea has influenced the entire concept of the InterAmerican human rights system with regard to punishment and eventually led to the assumption of a right to justice.48

B. The right to a fair trial The right to justice evolved gradually in the jurisprudence of the institutions of the Organization of American States (OAS). The Inter-American Commission introduced the idea that prosecution is a necessary element of the right to a fair trial (art. 8) and the right to judicial protection (art. 25) first. To understand this connotation it is necessary to consider those rights and the evolving line of reasoning, respectively. a. The interpretation by the Commission and the Court In the early 1990s the Commission first began to explain that under those jurisdictions where victims have the right to participate in criminal proceedings the denial of this right was contrary to the right to a fair trial. Art. 8(1) provides: Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

The decision in Mendoza v. Uruguay illustrates the Commission’s interpretation. In that case the victim had been denied the opportunity to participate in the criminal proceedings. The Commission criticized this failure and considered criminal procedures as ‘the appropriate means to investigate the commission of the crimes denounced, determine criminal liability and impose punishment on those responsible, their accomplices and accessories after the fact’.49 To sustain its call for victim (29 November 2006); Case of Goiburú et al. v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 86–94 (22 September 2006),. See also Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 94 (22 September 2006). 48 This concept will be explained below in section 2.2.D. 49 Mendoza et al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 40 (2 October 1992).

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participation in criminal proceedings it referred to the Uruguayan Code of Criminal Procedure. This statute gives victims a right to participate and to request all measures necessary to ascertain the crime.50 According to the Commission, the domestic right became subject to the protection of the American Convention by virtue of art. 8. Therefore, each victim in Uruguay, so the Commission stated, was guaranteed access to the courts in criminal proceedings.51 The Commission concluded that pursuant to art. 8 victims were entitled to a judicial investigation to clarify the facts, ascertain those responsible, and impose the appropriate criminal punishment.52 This right could not be nullified by a dismissal of the charges. While in the early cases the Commission considered the right to judicial guarantees as primarily one of instigating criminal proceedings,53 having a case investigated, and participating in criminal proceedings,54 its reach has gradually been extended. In more recent decisions, the Commission speaks specifically of the victim’s and his or her family’s ‘right to obtain justice’ through effective recourse against those responsible for violating his or her human rights.55 This right goes beyond mere participation. According to the Commission, it not only comprises the right to an investigation but also the prospect that those responsible for the crime are duly judged and punished.56 It is thus result-oriented. Hence, a failure to prosecute and punish is criticized as a denial of justice contrary to the victim’s right to a judicial guarantee under art. 8.57 In later decisions the Commission held that this right does not depend on the existence of a domestic law to provide victims with a right to file criminal charges.58 The Commission did not take issue with the public and official nature of criminal proceedings. Id. at para. 41. 50 Article 80 Ley No 15.032 Codigo Del Proceso Penal [Code of Criminal Procedure], Diario Oficial de la República Oriental del Uruguay, 18 August 1980 (Uru.). 51 Mendoza et al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 41 (2 October 1992). 52 Id. at para. 39. 53 In Garay Hermosilla et al v. Chile the Commission acknowledged a right to launch criminal action. Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 63 (15 October 1996). 54 In Mendoza v. Uruguay the Commission criticized that the victim was denied the opportunity to participate in criminal proceedings. Mendoza et al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 (2 October 1992). 55 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 81 (19 November 1999). 56 See id. at para. 90; Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 191 (22 December 1999). 57 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. paras 78 et seq. (19 November 1999). 58 In Hermosilla v. Chile the Commission explained: Even if this were not the case, since the crimes in question here are public crimes, that is to say they can be prosecuted ex officio, the State has the obligation to investigate them, an obligation that can be neither delegated nor renounced. Thus, in any case, the Chilean State is empowered to take punitive

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In Lucio Parada Cea et al. v. El Salvador, for example, the Commission could not refer to a domestic right of the victim to bring criminal charges. Nonetheless, in dealing with the question whether the amnesty violated the right to a fair trial, it held: Unlike what occurs in other Latin American countries, the 1974 Code of Criminal Procedure of El Salvador does not recognize the right of victims to participate in the criminal proceedings in the case of crimes against order. Nevertheless, for this type of crime, which is prosecuted by the State, and even for those which are dependent on private prosecution (penal matters), the State has the obligation to investigate and prosecute the crimes, i.e., to preserve public order and guarantee the right to justice. In its capacity as director of punitive action, the State, through the Public Prosecutor’s Office, has the obligation, which can neither be delegated nor renounced, to take action or prosecute and push the different procedural steps through to their conclusion.59

The Inter-American Court of Human Rights has also adopted this concept. It criticized ineffective criminal proceedings, for example, in the Paniagua Morales Case.60 At issue were illegal detentions, accompanied by ill-treatment, torture, and, in some cases, deprivation of life. Two victims had initiated criminal proceedings which had not been conducted efficiently. The Court criticized that the allegation ‘was not heard by an independent and impartial tribunal or within a reasonable time, and that the State did not provide the due guarantees to ensure the victims due process in determining their rights’.61 Guatemala had therefore violated its obligations under art. 8 of the Convention. In the ‘Street Children’ Case the Court detailed the requirements of art. 8 for the conduct of criminal proceedings. It explained: [It] is evident from article 8 of the Convention that the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation.62

action and is obliged to press forward with the various procedural stages, in fulfilment of its duty to guarantee the right to justice for the victim and his family. Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/Ser.L/V/ II.95 doc. 7 rev. para. 64 (15 October 1996). 59 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 119 (27 January 1999). 60 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 89 (8 March 1998). 61 Id. at para. 155. 62 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 227 (19 November 1999). It is, however, interesting to note that in this case the failure to punish was not criticized as a violation of art. 8, but of art. 1. The violation of art. 8 was found on the basis of the failure to carry out an effective and adequate investigation (including shortcomings in the evaluation of evidentiary material).

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The Court held that art. 8, paragraph 1 must be given a broad interpretation based on the letter and spirit of the provision.63 In the Blake Case the Court recognized that the victim had a substantial stake in the criminal proceedings as a whole. It elaborated: Article 8 (1) of the American Convention recognizes the right of Mr. Nicholas Blake’s relatives to have his disappearance and death effectively investigated by the Guatemalan authorities to have those responsible prosecuted for committing said unlawful acts; to have the relevant punishment, where appropriate, meted out; and to be compensated for the damages and injuries they sustained.64

b. Evaluation According to the above reading of art. 8, the right to be heard by a judge includes a right of the victim to have criminal proceedings instituted against perpetrators of serious human rights violations. This interpretation extends considerably the meaning of the right to a fair trial. Originally it was the right of the accused to have a fair criminal trial and the right of the victim to have civil and other rights, such as compensation, determined in a court of law. With the new interpretation which arrives from art. 8 an obligation to investigate and punish, the right to a fair trial provides the victim with a right to a criminal investigation before a criminal tribunal apart from civil proceedings. While most of the early jurisprudence on the right to a fair trial was concerned with the protection of an accused in a criminal trial,65 the perspective has been somewhat reversed by protecting the victims’ interests in the prosecution of their abusers. This is made possible by a broad reading of art. 8 as a general right of access to justice. Not only access, but also prosecution and punishment of those responsible for a crime are considered to be elements of this right to justice.66 In this sense, art. 8 goes beyond purely procedural due process. The right to a fair trial is regarded as a right of victims to various forms of substantive justice including criminal justice.67 Even if the Court considers it self-evident,68 the question remains why a victim has the right to be heard in a criminal trial against another person, as well as a right 63 Blake Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 36, para. 97 (24 January 1998). 64 Id. 65 Accordingly, most legal writing on human rights and criminal justice is concerned with the limitations posed by fair trial standards for the conduct of criminal proceedings. See e.g. Georges Abi-Saab, International Criminal Tribunals and the Development of International Humanitarian and Human Rights Law, in Liber Amicorum Judge Mohammed Bedjaoui 649–66458 (Emile Yakpo & Tahar Boumedra eds, 1999). 66 Understood this way, the obligation of conduct becomes result-oriented provided those responsible for an abuse can be identified. 67 The Commission itself speaks of a right to justice which obliges states to prosecute and punish persons responsible for human rights violations. Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 23 (2001). 68 See the above cited from the ‘Street Children’ Case. Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 227 (19 November 1999).

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to demand punishment. It is already questionable whether the drafters of the American Convention intended to include such a right for victims to bring criminal charges.69 In any event, the interpretation of art. 8 neither persuades textually nor teleologically. The legal reasoning appears to be based on a misconception.70 First, the right to participate should not be equated with a right to require a Court to impose criminal sanctions.71 If domestic law provides victims with procedural rights in the criminal proceedings, they thereby have access to the Court. But access is limited to participation only. It is primarily concerned with investigation and ascertaining evidence and does not include the interests of the victim as a decisive factor in the outcome of the proceedings. The determination of criminal punishment is purely for the criminal court.72 Therefore, the assertion that victims are entitled to proceedings imposing criminal punishment is not persuasive. The second misconception lies in the interpretation of art. 8. This provision provides only for access to courts with respect to the rights of a claimant.73 Criminal trials do not determine the rights of the victim; they concern only the criminal liability of the accused. Since their rights are not determined under criminal law, victims cannot rely on art. 8. There is, thus, no way to substantiate a right to criminal punishment on the basis of the due process rights of art. 8. This even applies to jurisdictions which provide for victim participation in criminal proceedings. Arguably, in such cases, victims have a legal right under domestic law to participate. But art. 8 guarantees only that this participatory right is determined in a court hearing. It does not create new substantive rights (such as a right to justice) but only ensures that existing rights are determined before a court. A victim may In the Durand and Ugarte Case the Court simply pointed out that the domestic court had lacked the required independence as stipulated in art. 8(1) to investigate and punish the liable parties. It did not explain which right of the victim was at issue in the criminal proceedings that had to be determined by a court. Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 125 (16 August 2000). See also Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 42–43 (14 March 2001). 69 Dinah Shelton, Remedies in International Human Rights Law 305 (1st edn, 1999). 70 According to Weiner a judicial remedy does not necessarily require a criminal investigation, trial and conviction. Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857, 870 (1995). 71 In many States in Latin America victims have the right to bring charges in a criminal action. But the right to initiate criminal proceedings does not mean that there is a right to have someone punished. 72 Though there are jurisdictions, especially in civil law countries which provide victims with certain procedural rights in criminal cases, criminal proceedings are nonetheless of an official nature and it is ultimately the judge who decides on the question of criminal sentences. In French law, for example, victims may pursue civil action in the criminal courts simultaneously with the prosecution (Art. 3(1) Code De Procedure Penale [French Penal Code] translated in The French Code of Criminal Procedure [Gerald L. Kock & Richard S. Frase trans., rev. Fred B. Rothman & Co., 1988]). Further examples are the criminal procedure laws of Spain, Belgium, Portugal, Germany, and Guatemala. For the legal status of victims in German law, see Chapter 6, section 3.1.B. 73 Article 8 guarantees only the right to a court hearing for the ‘determination of his rights’. It therefore applies only to the rights of the claimant. For the parallel provision of the ICCPR see above Chapter 2, section 2.3.A.

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therefore claim in court that he or she has been prevented from attending the proceedings or from giving testimony. But the actual prosecution and punishment is beyond the reach of this right. The suggestion by the Commission that domestic rights, such as the participation of injured parties in criminal proceedings, become subject to the protection of the American Convention by virtue of art. 8 is therefore not persuasive. The purpose of the right to a fair trial is not to guarantee the continued existence of domestic rights. The ‘right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal . . . for the determination of his rights and obligations’ seeks to set a minimum standard for judicial proceedings.74 It is for the States to decide whether they want to go beyond that. If that is the case, they do so on a voluntary basis without being permanently bound by art. 8. Therefore, if a State decides to allow victims to participate in criminal trials, then it is also free to reverse that decision at a later date and return to the provisions of international law. These evaluations show that the use of art. 8 as the basis for this reasoning is not a legally persuasive argument. This is presumably why the Court and the Commission also resort to the right to judicial protection (art. 25) to substantiate their calls for criminal prosecution.

C. Remedial rights Article 25 provides: 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.

While art. 8 is generally concerned with due process guarantees applying to all civil and criminal suits, art. 25 concerns the requisite remedies for violations of Convention rights and other fundamental rights. Similar provisions on the right to an effective remedy can be found in art. 2(3) ICCPR and art. 13 of the European Convention. As we will see below, the interpretation given to art. 25 of the American Convention by the Inter-American institutions, however, goes far

74 Article 8 American Convention on Human Rights.

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beyond the one given by both the Human Rights Committee and the European human rights institutions.75 According to the Inter-American Commission, remedies are not only limited to the investigation and verification of a violation. They also extend to criminal punishment.76 In cases where a State has failed to punish serious crimes, the Commission has held that the State has violated the rights of the victims and their relatives to judicial protection. This was the reasoning used in Carmelo Soría Espinoza v. Chile. The Commission was critical of the fact that due to the amnesty law in place in Chile at that time, the victim and his family were ‘without any judicial recourse that might have permitted those responsible for the human rights violations . . . to be duly judged and punished’.77 In other words, judicial recourse, pursuant to this interpretation of art. 25, is not limited only to civil proceedings for compensation. In cases of serious human rights violations, the Commission additionally requires that criminal proceedings are initiated with the intention that those responsible are punished. In this sense, it differs little from the interpretation of art. 8. The view of the Commission is that for a State party to provide for appropriate recourse for remedying serious human rights violations, such as torture and homicide, it must initiate procedures to identify, prosecute, and punish those responsible.78 This is the approach not only of the Commission but also of the Inter-American Court. Article 25, according to its reading, requires access to the courts in order that ‘those responsible for human rights violations may be tried and reparations obtained’.79 Therefore, the duty of the States parties to investigate human rights violations and prosecute those responsible, based on this interpretation, not only follows from art. 8 but also from art. 25.80 From this point of view, punishment clearly has a remedial aspect. Whether the concept of punishment as a remedial measure is legally persuasive will be examined in greater detail below.81 At this point it will suffice to make the following observation. Neither the UN Human Rights Committee nor the European Court of Human Rights have accepted the existence of the right to criminal justice. They have repeatedly held that a right for the victim to 75 See e.g. Dinah Shelton, Remedies in International Human Rights Law (2nd edn, 2005). 76 In Ignacio Ellacuría et al. v. El Salvador the Commission held that the State had a duty to undertake an effective investigation to identify all the authors of the crime, to prosecute them and apply to them the corresponding legal penalties, and to undertake and pursue criminal proceedings to their ultimate conclusion. Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 195 (22 December 1999). 77 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 90 (19 November 1999). 78 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 127 (27 January 1999). 79 Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 106 (27 November 1998). 80 Id. at para. 107. 81 See below Chapter 6, section 3.1.B.

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obtain sanctions at criminal law against the perpetrator cannot be derived from the right to a fair trial.82 This divergence in the interpretation of the corresponding provisions of the ICCPR and the European Convention on Human Rights indicates that there are sound reasons for having reservations about the concept used by the Inter-American Court of Human Rights.

D. The right to justice The right to prosecution is now firmly established within the OAS. The InterAmerican Court and Commission nowadays combine the right to a fair trial and the right to judicial protection.83 They read art. 8 in conjunction with art. 25 as providing for a uniform right to criminal prosecution.84 As the Court stated in the Durand and Ugarte Case, Article 8(1) of the American Convention, in connection with article 25(1) thereof, confers to victims’ relatives the right to investigate their disappearance and death by State authorities, to carry out a process against the liable parties of unlawful acts, to impose the corresponding sanctions, and to compensate damages suffered by their relatives.85

This has also been the approach taken in other cases. The obligation to prosecute and punish under criminal law those responsible for serious human right violations is the product of a newly created right. This right, according to the Court and the Commission, applies to all States parties to the American Human Rights 82 H.C.M.A. v. The Netherlands, Communication No. 213/1986, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/44/40, 267, 273, para. 11.6 (1989); Rodríguez v. Uruguay, Communication No. 322/1988, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/51/ D/322/1988, para. 6.4 (1994); S.E. v. Argentina, Communication No. 275/1988, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/45/40, annex X.J, para. 5.5 (1990). European Commission of Human Rights: Kiss v. the United Kingdom, 7 Decisions and Reports 55, 64, App. No. 6224/73, Eur. Ct. H.R., Judgment of 16 December 1976, with further reference to X. v. Germany, 23 Collection of Decisions 64, App. No. 2942/66, Eur. Ct. H.R., Judgment of 8 April 1967. See also Dubowska v. Poland, App. No. 34055/96, Eur. Ct. H.R., para. 4, Judgment of 18 April 1997. In Perez v. France the Court held that there is no right to have third parties prosecuted under the Convention. Only where criminal prosecution under domestic law was indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, art. 6 could be applied to criminal proceedings. Perez v. France, App. No. 47287/99, Eur. Ct. H.R., para. 70, Judgment of 12 February 2004. Though there are parallels to the early statements of the Inter-American Commission, there is a considerable difference. The European Court does not derive a right to justice from the right to a fair trial. It merely applies the standards of art. 6 to the criminal proceedings and requires a proper examination of submissions and evidence adduced by the parties. Perez v. France, App. No. 47287/99, Eur. Ct. H.R., para. 80, Judgment of 12 February 2004. 83 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 95 (19 November 1999). Sometimes the Commission dealing with the investigatory and punishing duties calls it a right of victims and their relatives to an ‘appropriate administration of justice’ under arts 8 and 25. 84 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, paras 199 et seq. (19 November 1999). 85 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 130 (16 August 2000).

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Convention regardless of their criminal procedure laws.86 If a State party fails to investigate and prosecute a serious human rights violation the Court concludes that the right to judicial guarantees and judicial protection embodied in arts 8 and 25 is violated to the detriment of the victim.87 On the basis of this right, the Court has developed far-reaching standards for the conduct of criminal proceedings.88 The Commission calls this the ‘right to justice’ but the Court has generally been hesitant to use this term.89 Regardless of the terminology,90 the content of the right is the same. The Court has even gone so far as to consider the duty to investigate and punish those responsible for serious human rights violations—such as forced disappearance—and the corresponding right of access to justice as jus cogens.91 As we have seen, what is envisaged are criminal proceedings conducted with the aim of punishing those responsible for a crime. The victims and their relatives have not only a right to an investigation but also a right to punishment of those responsible.92 The State, therefore, must instigate the relevant procedural processes and conduct the criminal prosecution through to its conclusion.93 If the accused is found to be responsible, he or she must be punished according to the criminal sanctions applicable under the domestic law of the State. Otherwise the rights of the victims and their relatives would be violated.94 This is illustrated by the Commission’s decision in Ignacio Ellacuría et al. v. El Salvador concerning the extra-judicial execution of six Jesuit priests.95 The Commission requested that an effective investigation be undertaken in good faith, and in a diligent, exhaustive, and 86 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 82 (19 November 1999). 87 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 146 (16 August 2000). 88 These standards will be described below. See section 4. 89 But in La Cantuta v. Peru the Court used this term. Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 149 (29 November 2006). 90 The Court has also referred to ‘the right to judicial recourse’. Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 193 11 May 2007). 91 Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras. 84, 131 (22 September 2006); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 157 (29 November 2006). 92 See Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 65 (6 December 2001); Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 130 (16 August 2000). In the Durand and Ugarte Case the Court criticized that the domestic court seized with the human right violation lacked the independence required by art. 8(1) ‘to efficiently and exhaustively investigate and punish the liable parties’. Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 130 (16 August 2000), para. 125. 93 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 195 (22 December 1999). 94 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 127 (27 January 1999). 95 This case had formed part of the report by the United Nations Truth Commission. U.N. Truth Commission, The Commission on the Truth for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N. Doc. S/25500, Annex, pp. 45 et seq. (1993).

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impartial manner. It further stated that it should be ‘designed to explore all possible investigative avenues that will allow the authors of the crime to be identified, and subsequently prosecuted and punished’.96 According to the Court, the State party had to ensure that domestic proceedings which were directed towards investigation and punishment of those responsible had ‘the desired effects’.97

3. Related duties 1. Investigation and the right to truth The right to justice necessarily entails a right to an investigation. Investigation is an indispensable precondition for punishing those held responsible. The right to an investigation is derived from art. 1(1) as well as from arts 8 and 25 and is accordingly considered primarily as a measure of reparation.98 In some cases the Commission has referred to art. 13 to sustain this right.99 That provision guarantees the right to freedom of thought and expression including the freedom to seek, receive, and impart information. The underlying rationale is that victims and/or their families have a right to receive information pertaining to the commission of a crime, its perpetrator, and the fate of a victim.100 While the right to truth was originally considered as an individual right of victims and their relatives, the Inter-American Commission also introduced a collective aspect to this concept. It recognized a collective right to know the truth.101 This right pertains to society as a whole.102 According to the Commission, 96 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 196 (22 December 1999). 97 El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 119 (29 August 2002). 98 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. paras 151, 155 (27 January 1999). Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 26 (2001). 99 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 148 (27 January 1999); Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 23 (2001) with further reference to Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 147 (27 January 1999). 100 This requires a very broad interpretation of art. 13. According to this concept the right to information does not only prevent interference but also comprises a positive right to ask for the active provision of information. 101 This right was already assumed by the Commission in its Annua l Report of 1985-86. Inter-Am. C.H.R., Annual Report of 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V. pp. 192 et seq. (1986). On this right in general Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255 (Christopher C. Joyner ed., 1998). 102 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 197 (25 November 2000).

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society is entitled to know about events which have occurred and the reasons and circumstances in which serious crimes have been committed.103 It correlates with the right to remember.104 As well as investigation, society has a right to see that justice has been done.105 The Commission explained: Regardless of the problem of eventual responsibilities, which in any case must always be individual and must be established by due process through a pre-existing tribunal imposing punishment consistent with the law existing at the time the crime was committed, every society has the inalienable right to know the truth about what has occurred, as well as the reasons and circumstances in which those crimes came to be committed, so as to avoid a repetition of such events in the future. In turn, no one can prevent the victims’ relatives from learning what has happened to their loved ones. Access to the truth pre-supposes that freedom of expression must be unrestricted.106

The purpose of the right to truth is to guarantee that society has ‘access to essential information for the development of democratic systems’.107 Since the purpose of the collective right to truth is to avoid the commision of further crimes,108 it has a distinctively preventative function. In this regard it differs from the corresponding individual right. The right of victims and their relatives to know the truth aims to remedy past wrongs rather than to prevent further crimes against other members of society.109 The assumption of a right to truth has led the Commission to request the creation of truth commissions in addition to criminal prosecution.110 This shows that the right to truth is not considered to be a de minimis substitute for the right to justice in post-conflict situations. They exist side by side. If criminal liability cannot be established, the right to truth remains. The Inter-American Court was initially reluctant to assume this collective right. In the Castillo Páez Case, the Commission had argued before the Court that there had been a violation of the right to truth since it was the State’s lack of interest in 103 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. paras 153, 155 (27 January 1999). 104 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, para. 23 (2001). 105 Id. at para. 26. 106 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 226 (22 December 1999). 107 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 197 (25 November 2000). See also Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 24 (2001). 108 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. paras 153, 155 (27 January 1999). 109 See id. at para. 155; Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 228 (22 December 1999). 110 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, paras. 33, 34, 44 (2001); Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. paras 153, 157 (27 January 1999).

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investigating the events that had given rise to the case.111 Though the Court pointed out that this right had been recognized by several international organizations, it specifically stated that the right to truth ‘does not exist in the American Convention’. Nevertheless, it pointed out that the collective right may ‘correspond to a concept that is being developed in doctrine and case law, which has already been disposed of in this Case through the Court’s decision to establish Peru’s obligation to investigate the events that produced the violations of the American Convention’.112 The Court therefore considered the collective right to be subsumed by the individual right of the victim and his or her relatives to know the facts relating to a violation and the State’s responsibility through investigation and prosecution under arts 8 and 25 (the right to judicial guarantees and judicial protection).113 Only five years later, however, in its judgment on reparations in Bámaca Velásquez v. Guatemala, the Court went one step further. It explained that the right of every person to know the truth had been developed in international human rights law, as evidenced by the statements of the UN Human Rights Committee, the report by Louis Joinet regarding impunity for human rights violations, and the Van Boven-Principles.114 It was no longer regarded as a purely individual right but also as one pertaining to society in general. The Court advised that, ‘[s]ociety has the right to know the truth regarding such crimes [disappearance, torture, taking of life], so as to be capable of preventing them in the future’.115 The State, therefore, was obliged to inform both the victim’s families and society as a whole about what happened to the victim and about the whereabouts of the victim.116 Since then it has been recognized by the Inter-American human rights institutions that there is a comprehensive right to the truth. This has an individual and a collective facet. As an individual right to investigation it pertains to the victim. As a collective right it pertains to society at large.

111 Castillo Páez Case, 1997 Inter-Am. Ct. H.R. (ser. C) No. 34, para. 85 (3 November 1997). 112 Id. at para. 86. 113 See also Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 201 (25 November 2000); Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 48–49 (14 March 2001). 114 Bámaca Velásquez v. Guatemala, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 91, para. 76 (22 February 2002). The Court refers to Quinteros v. Uruguay, Communication No. 107/1981, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/OP/2, in Selected Decisions under the Optional Protocol, Vol. 2, p. 138, at 143, para. 15 (1983); U.N. Econ. & Soc. Council [ECOSOC], Sub-Commission on Prevention of Discrimination and Protection of Minorities, 49th Session, U.N. General Assembly, U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1; U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Session, Final report submitted by Theo van Boven, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1993/8. 115 Bámaca Velásquez v. Guatemala, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 91, para. 77 (22 February 2002). 116 Id. at para. 76.

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2. Humane treatment The Court has introduced another aspect which is relevant to impunity, especially in cases of forced disappearance where, for a long period of time, the relatives have not known the fate of the victim. The families suffer much uncertainty while the public authorities remain inactive. The Court acknowledges this suffering. In the ‘Street Children’ Case it held that the failure to investigate and punish had caused anxiety and a feeling of powerlessness to the next of kin.117 In Bámaca Velásquez v. Guatemala the Court also argued along these lines. It held that the right to humane treatment (art. 5) had been violated because the victim’s relatives had not been immediately notified of the death of their loved ones and because public authorities had not investigated the crimes and punished those responsible.118 This does not necessarily mean that a failure to punish always constitutes a violation of the right to humane treatment of the victim’s relatives. However, according to the Inter-American Court, if there is a complete failure by the authorities to deal with cases of murder, the combination of several factors, such as the lack of information, investigation, and punishment, amounts to such a violation. Punishment in this respect is considered to be an element of humane treatment vis-à-vis the victims and their relatives.

4. Standards for the conduct of criminal proceedings As we have seen in the preceeding section, the Court increasingly analyses criminal proceedings from a victim’s perspective to ensure the right to truth and the right to justice. States parties need to ensure that those responsible are brought to justice.119 Over time, the scope and elements of this obligation have been elaborated on by the Court. The following section will explain which and how human rights violations need to be brought to justice according to the Inter-American jurisprudence.

117 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 173 (19 November 1999). 118 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 161 (25 November 2000); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 122–129 (9 November 2006); Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 95 (22 September 2006), with further references. 119 The relatives are usually the parties exercising this right in the domestic system. This was pointed out in the Las Palmeras Case. Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 58 (6 December 2001). See also Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/Ser.L/V/II.95 doc. 7 rev. para. 71 (15 October 1996).

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1. The crimes to be prosecuted There is a comprehensive duty to address all human rights violations. The Court has held repeatedly that ‘all human rights violations involve the duty of the State to conduct an effective investigation to identify the persons responsible of the violations, and if that were the case, to punish them’ (emphasis added).120 This does not mean that each human rights violation must be addressed using criminal measures.121 Punishment needs to be understood in a broader sense. Depending on the seriousness of a violation there are different means of sanction. This is why the Court calls on the States parties to ‘punish administratively and criminally as appropriate’.122 In cases of less serious violations, disciplinary measures may suffice. But the justice envisaged for serious violations is clearly of a criminal nature. The Court held that disciplinary procedures can complement but not be a substitute for criminal prosecution in cases of grave human rights violations.123 Criminal measures, therefore, are necessary in cases of enforced disappearances, extrajudicial, summary, or arbitrary execution, and torture. Above all, this applies to the principal perpetrators. The Court has indicated a willingness to extend its jurisprudence to the liability of accomplices and even to attempt.124 This will cover aiders, abettors, and other accessories.125 But the scope of their responsibility remains to be elaborated on by the Court.

2. Investigation As soon as State authorities become aware of a serious human rights violation they must investigate the facts and circumstances surrounding the human rights violation and the identity of the offenders.126 All circumstances of a violation need to

120 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, para. 66 (26 November 2002). See also Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92, para. 99 (27 February 2002); Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63 (19 November 1999). 121 According to Orentlicher the Court’s reasoning should be read to be confined to especially serious violations. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2578 (1991). 122 El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 118 (29 August 2002). 123 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 215 (11 May 2007), with further references. 124 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163 (11 May 2007), and Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, Concurring Opinion of Judge García-Ramírez, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, paras 7–9 (11 May 2007). 125 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, paras 67–68 (26 November 2002). 126 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 148 (27 January 1999).

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be clarified.127 The investigation must be undertaken ‘in a serious manner and not as a mere formality’.128 According to the Commission, ‘[t]he judicial investigation must be undertaken in good faith and must be diligent, exhaustive and impartial and geared to exploring all possible lines of investigation that make it possible to identify the perpetrators of the crime, so that they can be tried and punished’.129 But it is not an obligation of result. The mere fact that an investigation produces an unsatisfactory outcome does not itself constitute a violation.130 A State party is obliged only to use all available means to bring to light a violation. At the bare minimum, the relatives must be told the fate of the victim and the whereabouts of their remains.131 Even if internal disorder within the State prevents the identification of those responsible due to the nature of the offence, the right to know the fate of the victim should be observed by using all resources available to the State.132 The duty to investigate must be carried out in an effective way.133 At the very least, the State must announce the result of the investigation and its response to the accusation of human rights violations.134 In the absence of an individual complaint an investigation needs to be conducted by State authorities ex officio.135 A State cannot claim procedural inactivity by the interested parties as a reason for not fulfilling this obligation. The Commission has repeatedly referred to the ‘Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions’ recommended by the United Nations Economic and Social Council136 and the ‘Manual on the effective prevention and investigation of extra-legal, arbitrary and summary executions’ in order to specify the required measures for an investigation.137 127 Bámaca Velásquez v. Guatemala, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 91, para. 75 (22 February 2002). 128 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 177 (29 July 1988). 129 Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 80 (13 April 2000). 130 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 177 (29 July 1988). 131 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 143 (16 August 2000). 132 Id. 133 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, paras 67–68 (26 November 2002). 134 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 58 (6 December 2001). 135 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 17 (29 July 1988). Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, paras 67–68 (26 November 2002). 136 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Econ. & Soc. Council [ECOSOC] Res. 1989/65, Annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989). See Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. paras 82 et seq. (13 April 2000); Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. paras 173 et seq. (22 December 1999). 137 United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc. E/ST/CSDHA/.12 (1991).

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3. Criminal proceedings In the Case of the Rochela Massacre v. Colombia the Inter-American Court of Human Rights expanded on the parameters of the right to judicial recourse. It requested that States observe the principles of expeditious justice, adversarial defence, effective recourse, and proportionality of punishment.138 The result of the proceedings must be published in order that society knows the truth.139 These standards become relevant at different stages of the criminal proceedings which will be further elaborated on below. Throughout the criminal proceedings, the right of victims to truth and justice needs to be ensured. They must be able to be heard and allowed to participate in the proceedings.140 In particular, they must be given full access and the capacity to take part and present evidence at all stages and levels of investigations and proceedings.141 The evidence and concerns of the victims must be taken into full account by the authorities before they decide on the responsibility and punishment of the alleged perpetrators.142

A. Trial stage The exigencies of the right of a victim to be heard by a tribunal in criminal cases have been gradually extended. Among the relevant standards at the trial stage at present are: compulsory jurisdiction of regular courts, expediency, proper evaluation of evidence, and adequate sentencing. a. Trial before regular courts The judiciary must have the requisite independence and neutrality to arrive at an impartial decision.143 Following that, human rights violations must be investigated, tried, and punished by regular criminal courts.144 Accordingly, as the Court has pointed out, ‘military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human 138 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 193 (11 May 2007). 139 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, paras 67, 96 (26 November 2002). See also Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 287 (11 May 2007). 140 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 129 (16 August 2000). 141 El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 118 (29 August 2002); Bueno Alves v. Argentina, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 164, para. 211 (11 May 2007). 142 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 195 (11 May 2007) with further references. 143 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 58 (6 December 2001). 144 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 214 (2000).

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rights violations’.145 Trials by military courts have been criticized as one of the reasons for the problem of impunity.146 It is the view of the Commission that military jurisdiction, in general, cannot be considered a ‘real judicial system’.147 Both of the Inter-American institutions regularly consider such trials to be prejudicial to the right of victims to a remedy148 and to judicial guarantees.149 While the call for the use of ordinary criminal courts was originally motivated by the rights of the accused to due process,150 it is now also motivated by the need to satisfy the rights of the victim. In Las Palmas and in Durand and Ugarte the Court explained its position.151 In these cases the victims’ families had complained that those responsible for the crime had not been duly judged at law. The Court criticized that the military forces that had been engaged in fighting the insurgent groups were the same as those charged with prosecuting their peers for the execution of civilians.152 The officials of the military court therefore ‘lacked the required independence and impartiality as stipulated in art. 8(1) of the Convention to efficiently and exhaustively investigate and punish the liable parties’.153 Criminal proceedings must be conducted by judicial authorities that are not in any way linked to the command structure of the security forces.154 Otherwise the possibility of obtaining an objective and independent investigation will be jeopardized and a conviction may not be possible because it is unlikely that the required evidence will be collected in a timely and effective manner.155 Thus, the purpose of requiring criminal proceedings before ordinary courts is to ensure that the offenders are adequately sentenced.

145 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 200 (11 May 2007). 146 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 206 (2000). 147 Id. at para. 211. 148 Id. at paras 209, 211. 149 Id. at para. 214. The Commission explicitly pointed out that the problem of impunity in military criminal justice was ‘not linked exclusively to the absolution of the accused’ but also created a problem for the right to an effective remedy by the victims. Id. at para. 210. 150 Cantoral Benavides Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 69, para. 112 (18 August 2000). 151 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 52 (6 December 2001); Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 125 (16 August 2000). The Court also referred to the Cantoral Benavides Case where the victim had been denied the right to a fair trial because he had been tried by a military court. Cantoral Benavides Case, 2000 Inter-Am. Ct. H.R. (ser. C) No. 69 (18 August 2000). 152 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 53 (6 December 2001). 153 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 125 (16 August 2000). See also Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 142–143 (29 November 2006). 154 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 210 (2000). 155 Id.

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b. Expeditious trial The right to justice also encompasses the requirement of an expeditious trial. This was elaborated on in Paniagua Morales, where the Court criticized the delay in the criminal proceedings brought by two victims. It held that the proceedings had far exceeded the principle of reasonable time set out in the American Convention156 and concluded that the State party had violated art. 8(1) in relation to art. 1(1) to the detriment of the victims of the crimes at issue.157 The right of the victims to have an expeditious trial against those responsible was also acknowledged by the Commission in Arges Sequeira Mangas v. Nicaragua. The Commission stated: The inter-American system for the protection of human rights includes provisions on the reasonable time within which a human rights violation case should be solved. In effect, the American Convention stipulates a series of guarantees that should be observed in every judicial investigation, to ensure the charges are substantiated within a reasonable time.158

At issue was a delay of five years during which a murder remained unpunished. This was criticized as a denial of justice vis-à-vis the victim’s relatives.159 The definition of a reasonable term is determined on the basis of the complexity of the matter, the procedural activities of the parties, and the conduct of judicial authorities.160 c. Evaluation of evidence In the ‘Street Children’ Case the Court analysed the evaluation of evidence against the accused. Though the Commission had earlier stated that it was not the function of the Inter-American system to provide for judicial appeal, the Court criticized the overall evaluation of evidentiary material. At issue were serious shortcomings of the criminal investigation. The Court held that these constituted a violation of an effective and adequate investigation of the facts in violation of art. 1(1) in relation to art. 8.161 The criticisms included: incomplete and inadequate autopsies; the failure to take full-length photographs of the corpses; that no personal identification of an accused by a witness had been ordered; that neither alleged eye-witnesses had been summoned nor dental expert evidence requested;, and that searches of the defendants’ homes had not been conducted.162 Furthermore,

156 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 152 (8 March 1998). 157 Id. at para. 181. 158 Arges Sequeira Mangas v. Nicaragua, Case 11.218, Inter-Am. C.H.R., Report No. 52/97, OEA/Ser.L/V/II.98 doc. 6 rev. para. 118 (18 February 1998). 159 Id. para. 155. See also Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 63 (6 December 2001). 160 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 149 (29 November 2006) with further references. 161 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 233 (19 November 1999). 162 Id. at para. 231.

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the domestic court had rejected certain important testimonies163 and probative material had been fragmented so that the significance of evidence against the defendants had been weakened.164 The Inter-American Court held that these shortcomings were contrary to the principle of evaluating evidence as a whole.165 The relationship between different pieces of evidence had to be taken into account. These basic principles for the conduct of criminal trials entail a detailed examination of evidence in order to safeguard the victims’ interests. It does not mean that the Court will scrutinize all evaluation of evidence in criminal proceedings, but in cases of obvious shortcomings in that respect victims will be able to claim the violation of their right to a fair hearing. The right of the victim to be heard by a court thus not only includes that all relevant evidence needs to be determined but that it must also be evaluated correctly in the eyes of the Court. It is not only an investigatory right but also one of proper legal finding. The Court thereby assumes a supervisory function in the proper administration of justice with the aim that perpetrators of serious human rights violations are punished. It is not only access to justice which is at issue but a right that justice is effectively obtained by criminal prosecution and punishment for those held responsible. d. Sentence There is an indication that the Court is also willing to scrutinize the length and nature of the criminal punishment more closely in the future—which is the next step in analysing the proper administration of justice. Every element used to determine the severity of punishment should correspond with a clearly identifiable objective and be compatible with the Convention, according to the Court.166 Punishment must correspond with that ordinarily envisaged by domestic criminal law. Additionally, it must observe the principle of proportionality. The view of the Inter-American Court of Human Rights is that ‘the punishment which the State assigns to the perpetrator of illicit conduct should be proportional to the rights recognized by law and the culpability with which the perpetrator acted, which in turn should be established as a function of the nature and gravity of the events’.167 In other words, the punishment should reflect the seriousness of the violation. With respect to leniency in the law, the Court demands that criminal justice should not be illusory.

163 Id. at para. 232. 164 Id. at para. 233. 165 Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 233 (19 November 1999). 166 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 196 (11 May 2007). 167 Id. with further references.

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e. The rights of the accused Despite these strong demands, the right to criminal prosecution is not framed as a right to punishment at all costs. The rights of the accused under the Convention, namely the right to a fair trial and the principle of legality must also be respected. This includes the protection against laws made ex post facto.168 Criminal responsibility must be established individually through a pre-existing tribunal imposing punishment consistent with the law existing at the time the crime was committed.169 There must be good faith by the State party to punish those responsible for serious human rights violations. Every necessary step needs to be taken to punish those responsible.170 But, as indicated above with respect to the pre-trial stage, if the evidence is not sufficient for proof of a crime, despite a diligent and effective investigation, no sentence can be imposed at the trial stage. Nonetheless, there may be situations of conflict in which the call for material justice competes with procedural due process for the accused. The right to justice and the right of the accused are two opposing poles. Both are informed on the one hand by conflicting interests of victims and, on the other, their offenders. According to the Inter-American concept, criminal trials need to satisfy both interests. This may lead to a conflict of rights. For example, in criminal proceedings the accused must be given adequate time for his defence. This has an impact on the length of the proceedings, which in turn may conflict with the right of the victim to an expeditious trial. In the Case of La Cantuta v. Peru the Court indicated that in the case of such conflict the rights of the accused may need to be compromised. The Court held that ‘the State’s duty to wholly serve the purposes of justice prevails over the guarantee of reasonable time’.171 In this particular case the obstruction of the proceedings had led investigations and prosecutions to last for over 14 years after the forced disappearance of the victims. It is submitted that the Court could have argued that there was no conflict of rights in the first place due to the obstruction of proceedings. In any case, if rules in favour of the accused aim or have the effect of shielding perpetrators of serious human rights violations from criminal responsibility, the right to justice prevails. The same applies to the principles of res judicata and ne bis in idem. They provide only protection from a later judgment if the first judgment is reached with

168 According to the Commission the punishment must be imposed consistent with the law existing at the time the crime was committed. Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 44 (2001). 169 Inter-Am. C.H.R., Annual Report of 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V, pp. 192 et seq. (1986); Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 226 (22 December 1999). 170 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 149 (29 November 2006). 171 Id. See also Case of La Cantuta v. Peru, Merits, Reparations, and Costs, Separate Opinion of Judge García-Ramírez, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 15–16 (29 November 2006).

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‘due respect for the guarantees of due process’.172 There is no allowance for the application of these principles in cases of sham trials which do not serve the demands of justice.173 Even if there were no obstruction of justice, investigations can be re-opened in the view of the Inter-American Court of Human Rights. Once new facts or evidence come to light which make it possible to ascertain the identity of those responsible for grave human rights violations, new investigations are permissible.174 This applies even in those cases which ended in an acquittal with the authority of a final judgment and thus limits the ne bis in idem rule of art. 8(4).175 Here, again, what matters to the Court is the guarantee of material justice, sometimes at the expense of the guarantee of procedural due process.

B. Post-trial stage The right to justice also becomes relevant in the post-conviction stage. The conviction of an offender is simply one step to effectuate this right. Apart from prosecution, punishment is required. The judiciary must execute its decisions176 and implement the judgment.177 State authorities must ensure that the conviction is put into practice. The Court has repeatedly criticized situations where perpetrators of serious human rights violations are sentenced by the courts but do not serve the sentence.178

5. Statutes of limitation Procedural deficits in the prosecution of human rights offenders—such as obstruction of justice by State officials and delays and irregularities committed in the criminal proceedings—are not the only deficits to be criticized. The Court and the Commission in recent years have indicated their opposition to legislation which 172 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 197 (11 May 2007). See also Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 153 (29 November 2006). According to Judge García-Ramírez there is no allowance for the application of the ne bis in idem principle in such cases because there has not been a fair trial in the interest of the victim in the first place. Case of La Cantuta v. Peru, Merits, Reparations, and Costs, Separate Opinion of Judge GarcíaRamírez, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 11 (29 November 2006). 173 This approach resembles the one taken by art. 20(3)(a) of the Rome Statute which provides that the ICC is not prevented to try persons if they have been tried for the purpose of shielding them from criminal responsibility. 174 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 197 (11 May 2007). 175 Id. 176 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 58 (6 December 2001). 177 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 193 (11 May 2007). 178 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 1 (29 November 2006).

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bars prosecution and punishment, such as statutes of limitation.179 In Trujillo Oroza v. Bolivia the Court held that provisions regarding statutes of limitations and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance. (Emphasis added.)180

If the reluctance to investigate and prosecute and obstruction of justice lead to long delays so that the criminal case would be ultimately extinguished, the application of a statute of limitations is considered to be contrary to the American Convention.181 This also applies to the enactment of statutes of limitation with the purpose of shielding those responsible for serious human rights violations from criminal prosecution. This is also the position of the Inter-American Court. In Las Palmeras v. Colombia the Court held that penal actions may not be extinguished while a case is pending in the Inter-American human rights system.182 Otherwise those responsible would benefit from impunity; a consequence which according to the Court is contrary to the intention of the Convention to promote justice.183 In the same case the Court explained that the American Convention could not also be denied legal effect by applying a domestic statute of limitations.184 It held that the duty to investigate and punish subsists ‘until [it] has been fulfilled completely’.185 More recently, the Court indicated that statutes of limitation and any time-bar for the prosecution of grave human rights violations are generally incompatible with the American Convention regardless of their intent.186 This follows the lead of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity187 but extends the non-applicability to serious human rights violations below the level of international crimes, such as genocide, war crimes, and crimes against humanity. The Inter-American Court rules 179 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 41 (14 March 2001); El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 119 (29 August 2002). 180 Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92, para. 106 (27 February 2002). 181 This was the case in Trujillo Oroza v. Bolivia, id. 182 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, para. 69 (26 November 2002) with further references. 183 Id. 184 Id. 185 Id. at para. 70. 186 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 292 (11 May 2007). 187 See below Chapter 5, section 1.4.

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out provisions on prescription and any measure designed to eliminate responsibility for serious human rights violations, such as torture, extrajudicial, summary, or arbitrary execution, and forced disappearance.188 It explains this prohibition by the non-derogable nature of the affected rights.189

6. Extradition for serious human right violations Since the Inter-American Court of Human Rights increasingly insists on material justice it also mandates the region-wide prosecution of all those responsible for serious human rights violations. Selective justice is no longer acceptable, even if the alleged offender has left the country. For example, in the Case of La Cantuta v. Peru the Court criticized the absence of one of the main defendants, former President Alberto Fujimori.190 It derived from the duty to investigate an obligation to request and promote his extradition.191 The lack of an extradition treaty is no justification for the failure to request extradition.192 The duty to bring to justice not only applies to the State party in whose country the crime was committed but also extends to those countries where criminals seek refuge. In the Case of La Cantuta v. Peru the Court noted that Fujimori had been arrested in Chile. It referred to the erga omnes obligation of States to adopt measures necessary to prevent grave and systematic human rights violations from going unpunished.193 It thereby indicated that the guarantee of criminal justice is a duty of all States parties to the American Convention so that they are required to exercise extraterritorial jurisdiction or to extradite if perpetrators of grave human rights violations are found on their territory.194 In other words, the Court derives an unwritten obligation of aut dedere aut judicare from the right to judicial protection.

188 Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 163, para. 294 (11 May 2007). 189 Id. at para. 294; Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92, para. 106 (27 February 2002). 190 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 147 (29 November 2006). 191 Id. at para. 159. In the Case of Goiburú et al. v. Paraguay the duty to seek extradition was derived from international law on extradition. Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 123–132 (22 September 2006). 192 Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 130 (22 September 2006). 193 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 160 (29 November 2006). 194 Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 131–132 (22 September 2006).

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7. The role of the Inter-American Court in criminal cases 1. The supervisory function of the Court The Inter-American Court of Human Rights has developed detailed standards for the conduct of investigations and criminal trials. It thereby assumes a supervisory function over domestic criminal proceedings. On the other hand, it has recognized that its role in scrutinizing national criminal proceedings is limited. Domestic courts have the primary duty to ensure adequate criminal proceedings. In Nogueira de Carvalho et al. v. Brazil the Inter-American Court elaborated: [C]ourts of the State are expected to examine the facts and evidence submitted in particular cases. It is not the responsibility of this Court to replace the domestic jurisdiction by ordering concrete methods or forms for investigating and judging a specific case in order to obtain a better or more effective outcome; instead, its role is to find whether or not, in the steps actually taken domestically, the State’s international obligations embodied in Articles 8 and 25 of the American Convention have been violated.195

The assertion that its role is not to provide for appeals is sometimes difficult to reconcile with the Court’s far-reaching analysis of the taking and evaluation of evidence by domestic courts. It remains to be seen whether the insight into its limited capabilities to review criminal cases will lead to more self-restraint in future. This depends on the interpretation of arts 8 and 25. If they are considered only as basic standards to avoid gross miscarriages of justice there is less scope for the Court to interfere in criminal proceedings. The Court would become involved only in cases in which criminal procedure is misused to shield criminals from prosecution. However, an extensive interpretation of arts 8 and 25 will inevitably lead to standards of proper administration of justice and substantive notions of justice. This would lead to a comprehensive supervision of domestic criminal law and procedure. Such a task would certainly overburden the Inter-American human rights system.

2. The power of the Court to order investigation and punishment under article 63 The far-reaching practice of the Court to order reparations in criminal cases also demonstrates the Court’s perception of its role in general. There is an increasing trend to specify how States parties must remedy violations of the American Convention of Human Rights. In the early cases the Court limited itself to finding a violation and requesting compensation for the victims.196 But it did not order the 195 Case of Nogueira de Carvalho et al. v. Brazil, Preliminary Objections and Merits, 2006 Inter-Am. Ct. H.R. (ser. C) No. 161, para. 80 (28 November 2006). 196 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, paras 189, 194 (29 July 1988).

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investigation and punishment of the persons responsible for human rights violations.197 This was deemed to fall outside the scope of art. 63.198 In more recent judgments, however, the Court has ruled that States parties as a matter of reparation for the violation of the Convention must conduct ‘a genuine and effective investigation to determine the persons responsible for the human rights violations’ and to punish the liable parties.199 In the Paniagua Morales Case this obligation was based on art. 63(1)200 which provides: 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.

In the view of the Inter-American Court, reparation pursuant to art. 63 entails various ways a State can redress the international responsibility it has incurred, including restitutio in integrum, indemnization, satisfaction, assurances of guarantees that the violation will not be repeated, and so on.201 Reparation is intended to wipe out the effects of the violation.202 The form and amount of reparation depends upon the damage caused which includes material and moral damage.203 Where restitutio in integrum is impossible, insufficient, or inadequate then recourse to other forms of reparation is necessary.204 States parties which have violated the Convention are also obliged to refrain from further violations. Given the broader scope of art. 63 as compared with art. 41 of the European Human Rights Convention (which provides only for just satisfaction), the InterAmerican Court does not limit itself to ordering the payment of compensation. 197 Id. at para. 166. 198 Velásquez Rodríguez Case, Reparations, 1989 Inter-Am. Ct. H.R. (ser. C) No. 7, para. 33 (July 21, 1989). Nonetheless the Court referred to its judgment on the merits in order to remind Honduras of its obligation to prevent, investigate and punish perpetrators. 199 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 181 (8 March 1998); Caballero Delgado and Santana Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 22, para. 87 (8 December 1995); Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 253 (19 November 1999); Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, paras 227, 230 (25 November 2000). In the Durand and Ugarte Case the Court in the operative part decided that the State party was compelled to sanction the liable parties. Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, paras 143, 146 (16 August 2000). 200 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, paras 176–178 (8 March 1998). 201 Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 48 (27 November 1998). 202 Id. at para. 53. 203 Id. 204 Id. at para. 69.

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Investigation and punishment of those responsible for serious human rights violations are deemed to be a form of reparation owed to victims and their families.205 Under art. 63 these measures are considered a consequence of State responsibility.206 This broad reading of reparation obviously leads to an overlap with the right to judicial protection (as a matter of primary protection) and reparation (as a consequence of State responsibility) under art. 63.207 Punishment and investigation under both provisions are considered as a remedy for the victim. This is why the Court at times does not distinguish clearly between primary obligations, such as access to justice, and secondary obligations under art. 63.208 The Inter-American Court views art. 63(1) as the codification of a rule of customary law. But it is doubtful whether there is an international consensus in this respect. The European Court has so far abstained from such orders. In Ireland v. United Kingdom the Court held that it did not have the power to direct a State party who had violated the Convention to institute criminal or disciplinary proceedings against the officers who had committed the breaches.209 The European Court has now gone one step further in setting out standards for the conduct of criminal proceedings. But it does not order criminal prosecution as a matter of reparation. Regardless of whether there is a customary international rule to this effect, the Inter-American Court holds on to its theory that punishment is the most effective remedial measure. As such, it needs to be complemented by other means of reparation. The Court regularly awards moral damages to victims. This includes damages also to close family members for deficiencies in processing judicial proceedings. In the Las Palmeras Case Colombia had rejected this claim with the contention that the right to justice could not be redressed by means of a monetary award.210 But the Court presumed that human rights violations in connection with impunity caused suffering.211 It explained that the impossibility of punishing those responsible which created a feeling of ‘defenselessness and anguish among the next of

205 Id. at para. 70. 206 In the Las Palmeras Case the Court held that the State was obliged to ‘effectively complete the ongoing criminal proceedings’, to identify those principals and accessories and to punish them as a consequence of its prior failures. Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, para. 67 (26 November 2002). 207 In the Castillo Páez Case the Court based its call for investigation and punishment on art. 63 and on arts 8 and 25. Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, paras 70, 106–107 (27 November 1998). 208 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, paras 66–67 (26 November 2002). 209 Case of Ireland v. The United Kingdom, App. No. 5310/71, Eur. Ct. H.R., paras 187, 246, Judgment of 18 January 1978. 210 Las Palmeras v. Colombia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96, para. 52 (26 November 2002). 211 Id. at para. 55, with further references to earlier judgments in note 6.

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kin of the victim’ constituted damage.212 Such damage needed to be redressed. The underlying idea is the same as in those cases in which the failure to prosecute is considered inhuman treatment in violation of art. 5.213 Here again, art. 63 overlaps with substantive rights. Finally, the Court also regularly calls on the State party to take other measures, such as education and training of military forces to prevent recurrence and the adjustment of operational planning.214 Such action has a distinctive preventive purpose. This shows that the Court does not limit its power under art. 63 to order remedial measures, as the wording of the provision suggests, but also assumes the competence to order general measures of prevention.

8. Amnesties under the American Convention With respect to amnesties, the most relevant question is whether an exception can be made from the duty to prosecute in order to facilitate the transition to peace. The Commission’s position shows a significant development over the last two decades. To understand why its position on amnesties is nowadays so strict, it is necessary to expand on this gradual development which largely reflects the evolving jurisprudence on the duty to punish and its divergent legal rationales.

1. The developing interpretation by the Inter-American Commission A. The flexible approach The Inter-American institutions, similar to the Human Rights Committee, have a long history of dealing with amnesties. In 1983 the Inter-American Commission had already dealt with the amnesty law of Guatemala. Though it recommended investigation and punishment of those responsible for serious human rights violations, there was no outright condemnation of the amnesty.215 Instead, the Commission in its Annual Report of 1985–86 outlined its position.216 It showed 212 Id. at para. 53. 213 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 161 (25 November 2000); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 122–129 (29 November 2006); Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 95 (22 September 2006) with further references. 214 El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 143 (29 August 2002). 215 Inter-Am. C.H.R., Report on the Situation of Human Rights in the Republic of Guatemala, OEA/ Ser.L/V/II.61, doc. 47 rev. para. 133 (1983). See also Inter-Am. C.H.R., Annual Report of 1985-86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V, pp. 157–158 (1986). 216 Inter-Am. C.H.R., Annual Report of 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V, pp. 192 et seq. (1986).

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an understanding of the interest for national reconciliation and social pacification and recognized that addressing human rights violations under previous governments was a ‘sensitive and extremely delicate issue’.217 The contribution the Commission could make was considered to be minimal. The following guidelines were outlined in the report: as a bare minimum, the decision whether to enact an amnesty, according to the Commission, had to be made by the affected national sectors. It accorded the States parties a certain margin to proclaim amnesties, provided the decision was taken by the ‘appropriate democratic institutions—usually the legislature—with the participation of all the representative sectors’.218 As a second minimum requirement, apart from the democratic decision, the Commission required an investigation of the human rights violations committed prior to the establishment of the democratic government. This requirement was to bring together the need for reconciliation and pacification with the ‘ineluctable exigencies of an understanding of the truth and of justice’. By establishing an investigating committee whose members and authority needed to be determined in accordance with domestic law, a State party, according to the Commission, complied with the collective and individual right to know the truth. The investigation process needed to fulfil a double function: one was to clarify the motives and circumstances in which aberrant crimes were committed in order to prevent recurrence; the other function was to inform the victims’ relatives about what happened. In the Commission’s eyes democratically legitimized amnesties which provided for an investigation of past human rights violations would ‘bring about justice rather than vengeance’ without jeopardizing the need for reconciliation and democratic consolidation.219

B. The influence of the Velásquez Rodríguez Case Two years later the judgment of the Inter-American Court in the Velásquez Rodríguez Case initiated an important development in the evaluation of amnesties even though the Court did not have to deal with the amnesty issue.220 For the Inter-American Commission the judgment, with its focus on punishment, was the starting point of the fight against impunity in Latin America. But perhaps this development was based on a misinterpretation. It is unclear whether the Court actually wanted to take a firm stand against amnesties at that time. One passage in the judgment implies that there is no absolute duty to punish but that there is an allowance for compromise. It explains that there is a duty to investigate even if 217 Inter-Am. C.H.R., Annual Report of 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1 Chapter V, pp. 192 et seq. (1986). 218 Id. 219 Id. 220 An amnesty law was enacted only shortly before the final hearings and never referred to by Honduras as a defence. Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197, 210 (Autumn 1996).

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those responsible could not be legally punished under certain circumstances.221 This statement suggests that the Court acknowledges situations in which an obstacle to prosecution may be acceptable provided that an investigation is carried out. However, this passage was not referred to by the Commission in any of its later statements. Instead, it has focused on the duty to investigate and punish which had been proclaimed by the Court in Velásquez Rodríguez. This obligation has influenced all later pronouncements by the Commission on amnesty laws increasingly limiting the scope for amnesties. The statement of the Court that State responsibility exists even after the change of government pursuant to the principle of continuity of the State, led the Commission to an increasingly critical position on amnesties.222

C. Limiting the scope for amnesties The idea of limiting the scope for amnesties is illustrated by three important decisions of 1992 regarding amnesties for serious human rights violations and similar legislation. The Commission in these cases referred to the Velásquez Rodríguez Case and applied the duty to punish without allowing for derivations for the amnesties at issue.223 These concerned Uruguay, Argentina, and El Salvador. Though the Commission weighed the political and ethical dimensions of amnesties, the governments’ argument, that the amnesty law served the defence and promotion of human rights, was denied in these cases.224 The Commission found a violation of the general obligation to secure human rights under art. 1 because the amnesty laws had eliminated the possibility of an effective investigation and the prosecution of those responsible. It also referred to the victims’ rights. This position developed simultaneously with the broadening interpretation of the right to due process and judicial protection. The Commission held that, at least where victims were granted rights in the criminal proceedings under domestic law, this right could not be denied by amnesty laws.225 A judicial investigation was 221 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 181 (29 July 1988). 222 Id. at para. 184. See e.g. Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. para. 62 (19 November 1999). 223 Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/ Ser.L/V/II.83, doc. 14 at 83 (1993); Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 para. 50 (2 October 1992); Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 40 (2 October 1992). A detailed analysis was given by Juliane Kokott, No Impunity for Human Rights Violations in the Americas, 14 Hum. Rts. L.J. 153 (1993). 224 Mendoza et al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 54 (2 October 1992). 225 Id. paras. 39-41; Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 paras 34–35 (2 October 1992).

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required in a criminal court to determine those responsible and punish them accordingly.226 This requirement was not satisfied by the establishment of a truth commission. According to the Commission, victims and their families had been ‘denied their right to legal redress, to an impartial and exhaustive judicial investigation that clarifies the facts, ascertains those responsible and imposes the corresponding criminal punishment’.227 It was, therefore, not only the failure to investigate and the factual impediments to obtain damages228 but also the lack of opportunity to participate in the criminal proceedings which were criticized as being a violation of the Convention. The Commission indicated its preference for criminal measures by describing criminal proceedings as the ‘appropriate means to . . . determine criminal liability and impose punishment’.229 It is unclear whether these decisions ruled out amnesties entirely. The amnesty laws at issue in these cases differed considerably, ranging from blanket amnesty barring criminal and civil proceedings such as the one in El Salvador, to the one in Argentina which made provision for at least some alternative measures of inquiry and redress.230 Nonetheless, the Commission found all three models to be incompatible with the American Convention. Some factors which had been addressed in the 1985–86 guidelines no longer seemed to matter. For example, the Commission did not defer to the Uruguayan referendum. Differing from its earlier guidelines, democratic approval of an amnesty was no longer considered to determine its admissibility.231 Neither did the Commission accept the Argentine amnesty which had been conducted in parallel with an investigatory and compensatory mechanism. Argentina had established an official national commission (CONADEP) to investigate and document the disappearances during the ‘dirty war’.232 Furthermore, laws had been enacted granting compensation as well as pensions to the next of kin of the 226 Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 para. 50 (2 October 1992). 227 Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 39 (2 October 1992). 228 The Commission held that though the law did not preclude civil suits for damages, the ability to establish the crime in such suits had been considerably curtailed because vital testimony could not be adduced. Id. at para. 53. 229 Id. at para. 40. 230 For the issues in El Salvador see John J. Moore, Jr., Problems with Forgiveness: Granting Amnesty under the Arias Plan in Nicaragua and El Salvador, 43 Stan. L. Rev. 733 (1991). 231 Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 359 (David J. Harris & Stephen Livingston eds, 1998). 232 Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 paras 42–47 (2 October 1992).. See also Emilio Fermin Mignone, Cynthia L. Estlund & Samuel Issacharoff, Dictatorship on Trial: Prosecution of Human Rights Violations in Argentina, 10 Yale J. Int’l L. 118 (1984).

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disappeared and to persons arrested illegally. Some top military officials had been tried. Though the Commission welcomed these measures, they could not satisfy the requirements of the Convention.233 The Commission insisted on the right of victims ‘to obtain a judicial investigation in a court of criminal law to determine those responsible for the crimes committed and punish them accordingly’ (emphasis added) at least where a victim had a domestic right to be the party bringing charges in criminal proceedings.234 Compensation, according to the Commission, could not make up for the denial of justice.235 The Commission thereby clarified that all three obligations proclaimed by the Court in the Velásquez Rodríguez Case, that is the duty to investigate, punish, and compensate, demanded equal validity and could not be substituted by another. In none of the three cases did the Commission demand the revocation of the amnesty laws. But it declared the laws to be incompatible with the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.236 In Mendoza v. Uruguay and Consuelo Herrera et al. v. Argentina the Commission limited its recommendations to the award of just compensation and an investigation to identify those responsible for human rights violations during the time of dictatorship without asking for criminal punishment.237 But in Masacre Las Hojas v. El Salvador the Commission went one step further.238 It recommended the investigation of the events complained of ‘in order to identify all the victims and those responsible, and submit the latter to justice in order to establish their responsibility so that they receive the sanctions demanded by such serious actions’.239 It thereby clarified that, at least where domestic law provided victims

233 Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 paras 49–51 (2 October 1992). 234 Id. at para. 50. 235 Id. at para. 51. 236 Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/ Ser.L/V/II.83, doc. 14 at 83 (1993); Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 para. 51 (2 October 1992).; Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/ II.83, doc. 14 para. 54 (2 October 1992). 237 Alicia Consuelo Herrera et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83, doc. 14 para. 51 (2 October 1992); Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 54 (2 October 1992). Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 359 (David J. Harris & Stephen Livingston eds, 1998). 238 This case was also investigated by the U.N. Truth Commission. U.N. Truth Commission, The Commission on the Truth for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N. Doc. S/25500, Annex, pp. 79 et seq. (1993). 239 Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/ Ser.L/V/II.83, doc. 14 at 83 (1993).

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with procedural rights in criminal proceedings, not only an investigation and compensation was required but also criminal punishment. None of these cases was brought before the Inter-American Court. Argentina and Uruguay, however, requested an advisory opinion on the issue whether the Commission had jurisdiction regarding the legality of domestic legislation. They thereby avoided a pronouncement on the issue of amnesties, but attempted to bring the decisions of the Commission indirectly into question.240 The Court in its advisory opinion rebuffed this tactic by holding that the Commission in examining communications could and should analyse domestic law for its compatibility with the Convention.241 The Commission further elaborated its views on amnesties in its Report on El Salvador of 1994. It recommended repealing the amnesty law in order to investigate and punish those responsible for violating the basic rights of persons and to compensate the victims.242 It later repeated its call for compensation and investigation.243 According to the Commission, the amnesty of El Salvador disregarded the rights of the victim’s relatives by extinguishing criminal and civil liability.244 Such a sweeping amnesty was deemed not to be in the interests of reconciliation. The Commission ruled out any amnesty for crimes against humanity, for perjury and other obstruction of justice, as well as any ‘reciprocal amnesty’ without there first being an acknowledgement of responsibility.245 The requirement to exclude such crimes from the scope of an amnesty and to have an acknowledgment of responsibility, apart from an investigation and compensation, were deemed to be necessary ‘regardless of any necessity that the peace negotiations might pose’.

D. The struggle between justice and political considerations Despite this critical position towards the amnesties in Argentina, Uruguay, and El Salvador there were other pronouncements from this period which indicated 240 Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 361 (David J. Harris & Stephen Livingston eds, 1998). 241 Certain Atributes of the Inter-American Commission on Human Rights (Arts 41, 42, 44, 46, 47, 50, and 51 of the American Convention on Human Rights, Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (ser. A) No. 13, para. 30 (16 July 1993)). 242 Enactment of the Amnesty Law and El Salvador’s International Commitments, Inter-Am. C.H.R., Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.85, doc. 28 rev. para. 181 (11 February 1994). See also Inter-Am. C.H.R., Special Report on the Human Rights Situation in the so-called ‘Communities of Peoples in Resistance’ in Guatemala, OEA/Ser.L/V/II.86, doc. 5 rev. 1 (June 1994). 243 Enactment of the Amnesty Law and El Salvador’s International Commitments, Inter-Am. C.H.R., Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.85, doc. 28 rev. paras 69–79 (11 February 1994). 244 Id. at para. 71. 245 See also Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 216 (22 December 1999).

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more leeway. Thus, the question remained whether there was nevertheless an allowance for carefully drafted amnesties in other contexts which instead of prosecution provided for a truth commission and measures for obtaining compensation.246 On the one hand, the Commission regularly referred to the duty to punish in amnesty cases; on the other hand, it elaborated minimum requirements for post-conflict situations which suggested that prosecution could be compromised as long as these requirements were met. For example, in its Report on Nicaragua of 1993 the Commission followed the approach of the 1985–86 guidelines. It held that only the appropriate democratic institutions, with the participation of all representative sectors, are charged to determine whether to declare an amnesty, provided an investigation is conducted.247 Investigation was considered to be necessary to satisfy the rights of victims and their families and to prevent repetition. The Commission considered ‘that the observance of these principles cited above will bring about justice rather than vengeance, and thus neither the urgent need for national reconciliation nor the consolidation of democratic government will be jeopardized’.248 This indicated some leeway for compromise. Nevertheless, the Commission stated that Nicaragua had the legal duty to investigate human rights violations ‘in order to identify those responsible, to impose on them the pertinent penalties and to ensure adequate redress for the victim’.249 The insistence on penalties put amnesties generally into question. This uncertainty, not to say inconsistency, has been described as being the result of political and institutional considerations.250 At this time the OAS’s political organs were involved in peacemaking processes in Central America and Haiti in which amnesty provisions were accepted in the interest of transition to peace and democracy.251 It was therefore not surprising that the Commission stopped short of outlawing amnesties in general.

E. The right to justice as the decisive factor in the evaluation of amnesties The trend towards outlawing amnesties was reinforced then by the assumption of a comprehensive duty to prosecute under criminal law and punish perpetrators of 246 According to Cassel there were still options for amnesties at this time. Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197, 214 et seq. (Autumn 1996). 247 Inter-Am. C.H.R., Annual Report of the Inter-American Commission on Human Rights 1993, OEA/Ser.L/V/II.85, doc.9, rev., Ch. IV, pp. 442, 454 (1994). 248 Id. The Commission refers to it Inter-Am. C.H.R., Annual Report of 1985–86, OEA/Ser.L/V/ II.68, doc. 8 rev. 1 Chapter V, pp. 192–193 (1986). 249 Inter-Am. C.H.R., Annual Report of the Inter-American Commission on Human Rights 1993, OEA/Ser.L/V/II.85, doc.9, rev., Ch. IV, p. 442, 455 (1994). The Commission cites the Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 155 (29 July 1988). 250 Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 361 (David J. Harris & Stephen Livingston eds, 1998). 251 Id.

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serious human rights violations deriving from arts 8 and 25, independent of whether victims were granted participatory rights under the domestic law of criminal procedure. An important step was made by the Commission in 1996 in Garay Hermosilla v. Chile where the self-amnesty of the previous military regime covering disappearances, summary and extrajudicial executions, and torture was at issue.252 The Commission went further than in the 1992 cases where the right to a fair trial was deemed to be violated because the amnesty laws had precluded victims from their domestic right to initiate criminal proceedings. The Commission held that irrespective of this domestic right, the State party was obliged to press ahead with the various stages of criminal proceedings in order to guarantee the right to justice of the victim and his family.253 The assumption of the right to justice wholly ruled out amnesties for serious human rights violations.254 According to the Commission, the amnesty law rendered the crimes without judicial effect and ‘deprived the victims and their families of any legal recourse through which they might identify those responsible for violating their human rights during the military dictatorship, and bring them to justice’.255 This was considered to be contrary to arts 8(1) and 25. The Commission therefore held that the dismissal of criminal charges was in clear violation of the right to justice pertaining to the families of the victims in seeking to identify the authors of those acts, in establishing the corresponding responsibilities and penalties, and in obtaining legal satisfaction from them.256 Though emphasis was put on the duty to investigate and to ensure adequate compensation for victims, the Commission clarified the fact that punishment was an additional element required under the American Convention.257 The establishment of a truth commission, the 252 For the Chilean practice see Jorge S. Correa, Dealing with Past Human Rights Violations: The Chilean Case after Dictatorship, 67 Notre Dame L. Rev. 1455 (1992). See Robert J. Quinn, Will the Rule of Law End? Challenging Grants of Amnesty for the Human Rights Violations of a Prior Regime: Chile’s New Model, 62 Fordham L. Rev. 905, 913 (1994). 253 The Commission called upon Chile to amend its legislation so that violations of human rights could be investigated with a view to identifying and prosecuting the guilty parties in order to guarantee the right to justice. Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/Ser.L/V/II.95 doc. 7 rev. para. 64 (15 October 1996). See alsoLucio Parada Cea et al. v. El Salvador. El Salvador did not recognize the right of victims to participate in criminal proceedings. Nevertheless the Commission held that the State had the oblgiation to investigate and prosecute the crimes in order to guarantee the right to justice. Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 119 (27 January 1999). 254 See also Alfonso René Chanfeau Orayce et al. v. Chile, Cases 11.505 et al., Inter-Am. C.H.R., Report No. 25/98, OEA/Ser.L/V/II.95 Doc. 7 rev. (7 April 1998). But see the earlier Inter-Am. C.H.R., Annual Report of the Inter-American Commission on Human Rights 1989–1990, OEA/Ser.L/V/ II.77 rev.1 doc.7, 133–140 (17 May 1990). 255 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 71 (15 October 1996). See also Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. para. 90 (19 November 1999). 256 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 107 (15 October 1996). 257 Id. at para. 77.

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enactment of laws to compensate victims, and the government’s recognition of responsibility alone were insufficient.258 As the Commission later explained, while the right to justice which required the punishment of those responsible remained unsatisfied, other measures did not suffice.259 A Truth Commission could not be regarded as a substitute for the judicial process required by the Convention because it was not a judicial body, did not publish the names of offenders, and could not impose any sanction.260 The establishment of a truth commission, according to the Commission, did not even satisfy the right to know the truth because that required a judicial investigation.261 The Commission also referred to the duty to secure human rights and held amnesties to be in violation of art. 1. In the Commission’s view, by preventing trials and punishment, amnesties eliminate the ‘most effective means for protection’ of human rights.262 This statement signals that the Commission was no longer willing to make an exception to the duty to prosecute. It did not believe that an amnesty could contribute to sustainable peace and human rights protection. The Commission concluded in Hermosilla v. Chile that the self-amnesty was incompatible with arts 1, 8, and 25.263 It recommended amending the legislation so that violations of human rights could be investigated ‘with a view to prosecuting them, thereby guaranteeing to the victims and their families the right to justice that pertains to them’.264 At this point it became clear that in the Commission’s eyes the American Convention required a judicial investigation designed to identify, name, and punish those responsible for serious human rights violations. This applied even in post-conflict situations in which a State is seeking mechanisms to restore peace and achieve national reconciliation.265 According to the Commission, 258 Id. at paras 41, 58; Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. para. 105 (19 November 1999). 259 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 75 (19 November 1999). 260 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 75 (15 October 1996). See also Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/Ser.L/V/II.106, doc. 3 rev. para. 103 (19 November 1999); Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 157 (27 January 1999); Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. paras 230–231 (22 December 1999). 261 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 229 (22 December 1999). 262 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 50 (15 October 1996). 263 Id. at paras 105, 108. 264 Garay Hermosilla et al. v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 111 (15 October 1996). 265 See id. at paras 49 et seq. See also Arges Sequeira Mangas v. Nicaragua where the Commission had to deal with Nicaragua’s amnesty law and where it described the fact that the crime of murder had remained unpunished for five years as a denial of justice. The Commission referred to the rights of the victims, namely the right to an independent judicial process, to punishment of those responsible, and to just reparation. Arges Sequeira Mangas v. Nicaragua, Case 11.218, Inter-Am. C.H.R.,

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there was no option for amnesties covering serious human rights violations despite the need for peace and reconciliation.266 The Commission in 1998 summarized its position in a Peruvian case: Amnesty laws frustrate and run contrary to a State’s obligation to investigate and punish those responsible for human rights violations whether those responsible be members of the military or civilians. The expectation of an eventual amnesty casts a blanket of impunity over the Armed Forces or any non-military perpetrator, enabling them to commit any atrocity in the name of their cause, and such a climate breeds inevitable excess and contempt for the rule of law. An amnesty in one country in the region which has ended its civil conflict breeds the expectation of an amnesty in a second, albeit the latter is still in a state of internal conflict. A state policy of impunity, enshrined in amnesty laws, eventually leads to a loss of prestige and professionalism of the military in the eyes of the rest of the population.267

F. Absolute prohibition of amnesties as the current position Nowadays, amnesties are increasingly equated to de facto impunity. No reference is made to the peacemaking aspect of an amnesty as a potential justification.268 There is no confidence that amnesties contribute to the re-establishment of respect for human rights. Human rights, according to the Commission, are best served if there is not only an investigation but also punishment of those responsible. This view has even been shared by national truth commissions in the region.269 The Chilean National Commission, for example, concluded in its final report that punishment was an indispensable element to obtaining national reconciliation

Report No. 52/97, OEA/Ser.L/V/II.98 doc. 6 rev. paras 135, 150 (18 February 1998). But see Ignacio Ellacuría et al. v. El Salvador where the Commission remarked that the right to know the truth afforded a form of compensation in cases where amnesty laws are adopted. This again gave rise to the question whether a truth commission process may be sufficient. Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 224 (22 December 1999). 266 William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467, 522 (2001). But see Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Law & Contemp. Probs. 41, 51 (Autumn 1996). 267 Estiles Ruíz Dávila v. Peru, Case 10.491, Inter-Am. C.H.R., Report No. 41/97, OEA/Ser.L/V/ II.95 doc. 7 rev. para. 34 (19 February 1998). See also Pastor Juscamaita Laura v. Peru, Case 10.542, Inter-Am. C.H.R., Report No. 19/99, OEA/Ser.L/V/II.95 doc. 7 rev. (23 February 1999). 268 This argument was put forward by Chile, but rejected by the Commission. Inter-American Commission on Human Rights Second Report on the Situation of Human Righs in Peru. Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. para. 230 (2000). 269 See the following note. But see the report of the U.N. Truth Commission for El Salvador which did not recommend the trial of those responsible because the judiciary of El Salvador was not capable of doing justice. U.N. Truth Commission, The Commission on the Truth for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N. Doc. S/25500, Annex, pp. 178–179 (1993).

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and avoiding repetition.270 According to the Inter-American Commission, amnesty laws, by preventing prosecution and punishment, remove the most effective measures for enforcing human rights.271 They undermine the rule of law and respect for the law.272 Instead of preventing human rights violations they are regarded as encouraging them. Punishment is sought as a measure to protect the population at large and to serve social peace.273 Peace, according to the Commission, must be built on the basis of justice, the investigation of human rights violations, and the punishment of those responsible.274 This view is certainly a result of the Latin American experience. By outlawing amnesties, the Commission attempts to counter the epidemic effects of amnesties. States parties are requested not to proclaim an amnesty in order to avoid abuses of power in other States of the region.275 At the same time, the Commission clarifies that the re-establishment of peace should not be achieved by compromising the individual rights of victims. This is illustrated by a case concerning the extrajudicial execution of San Salvador’s Archbishop Romero; a crime which had been investigated also by the UN Truth Commission.276 El Salvador had refrained from prosecuting those responsible and insisted on its amnesty. It had argued that the release of those responsible under the Law on General Amnesty for the Consolidation of Peace was the only way to ensure the new democratic State and to safeguard human rights.277 However, the Commission rejected this argument and held that the ‘considerations of a general nature on the situation of a given State may in no way be used to prevent a decision on an individual case’.278 If there had previously been any question whether there could be an alternative punishment to criminal prosecution,279 it was definitively answered in the 270 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 104 (19 November 1999) with reference to the Rettig Report, February 1991, Vol. 2, p. 868 (Chilean National Commission on Truth and Reconciliation, Report of the Chilean National Commission on Truth and Reconciliation (1991), available at ) (last accessed 5 December 2008). 271 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 200 (22 December 1999). 272 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 104 (19 November 1999). 273 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 230 (2000). 274 Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 162 (13 April 2000). 275 The fear is that perpetrators of grave abuses in other countries in the hope of benefiting from a similar amnesty would not be deterred. 276 U.N. Truth Commission, The Commission on the Truth for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N. Doc. S/25500, Annex, pp. 127 et seq. (1993). 277 Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 3 (13 April 2000). 278 Id. at para. 155. 279 Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Law & Contemp. Probs. 41, 51–51 (Autumn 1996).

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negative by the Commission in this case.280 The Commission recommended a serious, impartial, and effective investigation of the enforced disappearance by the competent authorities and punishment of those responsible ‘by means of appropriate criminal proceedings’.281 The penalties sought were those provided for by domestic criminal law.282

G. Summary The jurisprudential development shows that the Commission has increasingly limited the option for declaring an amnesty. In the beginning, it was the lack of investigation and the obstacles to compensation which were criticized as violations of the American Convention. In tandem with this, the Commission engaged in a balancing act. The balance between the need for reconciliation and pacification and the duty to bring about truth and justice was considered to be met by a democratic decision which provided for an investigating mechanism. With the assumption of an individual right to criminal justice, however, the balance has tipped. Truth and justice under the current understanding of the Commission require more than simply investigation. Perpetrators of serious human rights violations need to be tried and punished. The idea of individual rights in the criminal trial of human rights offenders precludes the choice of alternative mechanisms and the option for a balancing act. Pursuant to the Commission’s current doctrine, amnesties and comparative legal measures that preclude or terminate the investigation and prosecution of perpetrators of serious human rights abuses violate multiple provisions of the Convention.283 Amnesties, according to the Commission, render null and void the duty to respect human rights under art. 1.284 The dismissal of criminal proceedings is regarded as violating the victim’s right to justice.285 Amnesties due to

280 See also Ignacio Ellacuría et al. v. El Salvador where the Commission referred to a duty to investigate, prosecute, and punish under arts. 1(1), 8 and 25. Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. paras 220, 239 (22 December 1999). 281 Estiles Ruíz Dávila v. Peru, Case 10.491, Inter-Am. C.H.R., Report No. 41/97, OEA/Ser.L/V/ II.95 doc. 7 rev. para. 36 (19 February 1998). That criminal prosecution was necessary was also explained in Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 127 (27 January 1999). 282 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 186 (22 December 1999). 283 Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/ II.106, doc. 59 rev. para. 221 (2000); Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 129 (13 April 2000). 284 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. para. 107 (27 January 1999). 285 Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. C.H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 2 (19 November 1999); Lucio Parada Cea et al. v. El Salvador, Case

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lack of official investigation are also deemed to violate the right to the truth.286 They have the effect of eliminating civil liability contrary to the victim’s right to compensation under arts 25 and 1.287 The adoption of such legislative measures, so the Commission states, is contrary to art. 2 which requires States parties to refrain from enacting laws to eliminate, restrict, and nullify the rights under the Convention.288 The Commission has therefore called on Chile, Peru, and El Salvador to declare their amnesty laws to be without force.289

2. The jurisprudence of the Inter-American Court A. The Castillo Páez Case The Inter-American Court has only recently developed its jurisprudence on amnesties. It began after the Commission had already developed its position and after the jurisprudence on the right to prosecution had been solidified. In the Castillo Páez Case the Court in 1997 dealt with a crime which had been subject to the Peruvian amnesty. Though it did not rule on the admissibility of amnesties in general, the Court took a critical position and held that the Peruvian State is obliged to investigate the events that produced them. Moreover, on the assumption that internal difficulties might prevent the identification of the individuals responsible for crimes of this kind, the victim’s family still have the right to know what happened to him and, if appropriate, where his remains are located. It is therefore incumbent on the State to use all the means at its disposal to satisfy these reasonable expectations. In addition to this duty to investigate, there is also the duty to prevent the commission of forced disappearances and to sanction those responsible for them. These obligations on Peru shall remain in force until such time as they have been fully performed.290

The Court did not take into account the situation which had led to the amnesty. Regardless of the reasons for the amnesty, it maintained the obligation to punish human rights violations. This was clarified in its later judgment on reparations. 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 108 (27 January 1999). 286 Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/ Ser.L/V/II.95 doc. 7 rev. paras 148–158 (27 January 1999). 287 Id. at paras 121–122. 288 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. para. 210 (22 December 1999); Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/ II.106 doc. 3 rev. para. 158 (13 April 2000). 289 Estiles Ruíz Dávila v. Peru, Case 10.491, Inter-Am. C.H.R., Report No. 41/97, OEA/Ser.L/V/ II.95 doc. 7 rev. para. 36 (19 February 1998); Inter-Am. C.H.R., Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, doc. 59 rev. para. 230 (2000); Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 160 (27 January 1999); Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 159 (13 April 2000). 290 Castillo Páez Case, 1997 Inter-Am. Ct. H.R. (ser. C) No. 34, para. 90 (3 November 1997).

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The Commission and the victim’s next of kin as a matter of reparation had requested an investigation and the punishment of those responsible for the crimes. Peru, on the other hand, had pointed to amnesty laws Nos 26.479 and 26.492291 and explained it by reference to the difficult situation prevailing in the country at that time.292 However, the Court decided that the State party had to identify and punish those responsible.293 It reiterated the duty to sanction those responsible for human rights violations.294 It was not the situation leading to the adoption of the amnesty law that was regarded as the problem, but the amnesty law itself. The Court observed that this law ‘obstructs investigation and access to the courts and prevents the victim’s next of kin from learning the truth and receiving the reparations to which they are entitled’.295 The Court reiterated that victims, pursuant to arts 8(1) and 25, must have recourse to justice so that those responsible for human rights violations are tried and reparations obtained.296 The Court restated that States parties to the American Convention have the obligation to do everything possible to combat impunity, because it ‘fosters chronic recidivism’ and ‘total defenselessness of victims’.297 The Court equated amnesty with impunity in general. As it emphasized in a judgment against Peru on the same date, in the Loayza Tamayo Case, States parties may not invoke amnesty laws to avoid complying with these obligations.298 Peru’s argument that it could not comply with this duty was rejected.299 Does this mean that any amnesty is incompatible with the Convention or is there still an option for arguing for exceptions under particular circumstances? The judgment on first sight seems to give a clear-cut rule. But Judge GarcíaRamírez in his Concurring Opinion stressed that, to his mind, the judgment did not dismiss the advisability and need for an amnesty law which served to restore peace, under conditions of freedom and justice.300 The fact that his considerations were not included in the judgment is telling. But it is still noteworthy. To Judge

291 Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, paras 98, 101 (27 November 1998). 292 Id. at para. 102. 293 Id. at para. 118. 294 Id. at paras 13, 105. 295 Id. at para. 105. 296 Id. at para. 106. 297 Id. at para. 107. 298 Loayza Tamayo Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42, para. 168 (27 November 1998). 299 Id. Judges Cançado Trindade and Abreu Burelli in their Concurring Opinion pointed to the incompatibility of self-amnesties with the right to truth, justice, and reparation and to the incompatibility with the duty to respect and secure respect for the rights of the Convention (art. 1). Castillo Páez Case, Reparations, Concurring Opinion of Judges Cançado Trindade and Abreu-Burelli, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, paras 2–3 (27 November 1998). 300 Castillo Páez Case, Reparations, Concurring Vote of Judge García-Ramírez, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 6 (27 November 1998).

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García-Ramírez’s mind, reconciliation needed to be taken into account.301 He advocated a balance informed by several factors: an amnesty law is acceptable if it complies with the relevant principles of international and domestic law, if the sectors involved participate and if the law is enacted within the framework of the democratic institutions.302 No amnesty may be granted for ‘the most severe human rights violations’.303 The particular circumstances, the means applied, and their efficacy need to be taken into account.304 Amnesties resulting from a peace process are more acceptable than self-proclaimed amnesties.305 According to Judge GarcíaRamírez, impunity by amnesty laws should be limited as far as possible so that their legitimate objectives may be achieved without undermining respect for human rights.306 It is not difficult to see that this position corresponds to the previous doctrine of the Commission.307 Whether the judgment could be interpreted in this way is unclear. It is, however, important to consider that neither the duty to punish nor the right to justice and truth were referred to as international principles which need to be complied with even in post-conflict situations.308 While the judges agreed that punishment in the case of Peru was necessary for the future protection of human rights there was no agreement on whether this was a general rule. Contrary to the views expressed by Judge García-Ramírez, Judges Cançado Trindade and Abreu Burelli in their Joint Concurring Opinion ascertained that there was a pressing need for international case law on amnesties to reflect recent doctrinal advances.309 Both judges pointed to the general incompatibility of self-amnesties with the right to truth, justice, and reparation. Self-proclaimed amnesties were criticized as incompatible with the duty to respect and secure respect for the rights of the Convention under art. 1.310 301 Id. at para. 12. 302 Id. at para. 6. 303 Id. at paras 7, 9–10. 304 Id. at para. 9. 305 Id. 306 Id. 307 Judge García-Ramírez also refers to the Joinet report, U.N. Econ. & Soc. Council [ECOSOC], Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Administration of Justice and the Human Rights of Detainees—Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political). Revised Final Report Prepared by Mr. Joinet pursuant to Sub-Commission Decision 1996/119, Annex II, U.N. Doc. E/CN/Sub.2/1997/20/Rev.1 (2 October 1997). 308 The same approach was taken by Judge García-Ramírez in his Concurring Vote in the Barrios Altos Case. He referred to the opposition between self-amnesties and the general obligation under arts 1 and 2, but not to the incompatibility with the victim’s rights. Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Vote of Judge García-Ramírez, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 9–14 (14 March 2001). 309 Castillo Páez Case, Reparations, Joint Concurring Opinion of Judges Cançado Trindade and Abreu-Burelli, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 3 (27 November 1998). 310 Id. paras. 2-3. See also Loayza Tamayo Case, Reparations, Concurring Opinion of Judges Cançado Trindade and Abreu-Burelli, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42, paras 2–4 (27 November 1998).

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The reason for the disagreement was presumably that the idea of an indispensable right to justice had not been fully accepted. As long as punishment was a matter of general human rights protection there was still room to argue for exceptions. This is why Judge García-Ramírez was willing to compromise on the call for criminal punishment under certain circumstances. However, with the assumption of a right to justice the scope for amnesties was removed.

B. The Barrios Altos Case: prohibition of self-amnesties After the Castillo Páez Case Judge Cançado Trindade and Judge Abreu Burelli’s opposition to self-amnesties gained ground. It entered the jurisprudence of the Court in the Barrios Altos Case, the leading judgment on amnesties. From then on it was clear that self-amnesties are generally incompatible with the American Convention. The Court in this case had to deal with the Peruvian amnesty again. Though Peru accepted its responsibility for the extrajudicial executions and for the failure to investigate and punish,311 the Inter-American Court issued a comprehensive statement on the ‘incompatibility of Amnesty Laws with the Convention’.312 The fact that the government had accepted its responsibility with regard to the amnesty made it easier for the Court to issue the following statement: ‘This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible’.313 Later, the Court explained that the judgment not only applied to the specific case of the Barrios Altos massacre but that the amnesty law of Peru was per se a violation of the Convention because of a manifest incompatibility with the obligations undertaken under the Convention.314 The failure to prosecute in Peru was central to the criticism of its amnesty laws.315 According to the Court, amnesty laws perpetuated impunity.316 Here again, the Court did not engage in a balancing of interests. Instead it applied clear-cut guidelines: amnesty for serious human rights violations, such as torture, extrajudicial, summary, or arbitrary execution, and forced disappearance are inadmissible.317 A State may not invoke

311 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 35 (14 March 2001). 312 Id. at paras 41–44. 313 Id. at para. 41. 314 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Interpretation of the Judgment on the Merits, 2001 Inter-Am. Ct. H.R. (ser. C) No. 83, para. 18 (3 September 2001). 315 This is why the Court held that the Peruvian amnesty laws ‘lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible’. The Court, therefore, decided that Peru not only had to investigate the facts at issue but also to punish those responsible. Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 44, 51 (14 March 2001). 316 Id. at paras 42–43. 317 Id.

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domestic difficulties to waive the obligation to investigate and punish those responsible.318 It seems that the admissibility of amnesties no longer depends on the question whether it serves the restoration of peace. For the Court, there is an unconditional duty to punish violations of non-derogable rights.319 This is based on the idea that even in cases of public emergency neither the right to life nor the duty to punish must be compromised.320 The Court gave the following two reasons for the incompatibility of self-amnesties with the Convention: They are in violation of the general duty to respect and ensure human rights pursuant to art. 1(1) because they prevent the investigation, capture, prosecution, and conviction of those responsible.321 Furthermore, they prevent victims and their relatives from being heard by a judge (art. 8(1)) and they violate the right to judicial protection against human rights violations (art. 25).322 As the Court put it ‘[s]elf-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore they are manifestly incompatible with the aims and spirit of the Convention’.323 In particular, the Court criticized the fact that amnesty laws obstruct investigation and access to justice and prevent the victims and their relatives from knowing the truth and receiving reparations.324 To understand fully this reasoning, the decision needs to be considered in the context of prior decisions holding that access to justice in cases of serious human rights violations requires criminal justice.325 In Barrios Altos the Court took into account this earlier doctrinal development under arts 8 and 25 and applied it to amnesty laws. It was the idea that victims are entitled to criminal justice which ultimately led to the invalidation of the amnesty law.

318 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Vote of Judge GarcíaRamírez, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 12 (14 March 2001). 319 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 41 (14 March 2001). See also Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Opinion of Judge Cançado Trindade, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 10 (14 March 2001). He even speaks of jus cogens norms; Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 115 (27 January 1999). With this line of reasoning, the procedural duty to punish is accorded the same status as the substantive rights at issue. 320 See also Masacre Las Hojas v. El Salvador where the Inter-American Commission held that the application of the amnesty decree constituted a violation of art. 27 because it was applied to nonderogable rights. Masacre Las Hojas v. El Salvador, Case 10.287, Inter-Am. C.H.R., Report No. 26/92, OEA/Ser.L/V/II.83, doc. 14 at 83 (1993). 321 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 42 (14 March 2001). 322 Id. 323 Id. at para. 43. 324 Id. 325 It is in the part of the judgment which concerns the right to the truth, where the Court speaks of the responsibility of the State to investigate and prosecute estsablished in arts 8 and 25. Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 48 (14 March 2001).

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C. The role of truth commissions The strict call for criminal prosecution precludes the option for alternative measures where serious human rights violations, such as torture, extrajudicial, summary, or arbitrary execution, and forced disappearance, are concerned. The establishment of a truth commission alone is insufficient. This was affirmed in later cases. In Almonacid-Arellano v. Chile and La Cantuta v. Peru the Court held that the ‘historical truth . . . does not complete or substitute the State’s obligation to also establish the truth through court proceedings’.326 With the assumption of a duty to punish as a corollary to the victim’s rights to judicial guarantees and judicial protection, such commissions are no longer permissible alternatives to criminal prosecution.327 Nevertheless, they are important in the search for truth. As indicated above, the Inter-American Commission regularly calls on States to establish such institutions as a consequence of the collective and individual right to the truth.328 They are sought in addition to investigation and prosecution by the judiciary.329 Truth commissions are valuable, as the Commission explained, if they are not created with the presumption that there will be no trials, but as a preliminary step ‘towards knowing the truth and, ultimately, making justice prevail’.330 As indicated above, the right to justice and the right to truth are regarded not as mutual substitutes but as demanding equal viability.

D. The current position: absolute prohibition of amnesties? It is not entirely clear whether Barrios Altos applies only to self-proclaimed amnesties or to amnesties in general. The use of the wording ‘incompatibility of Amnesty Laws with the Convention’ and the reference to ‘all amnesty provisions’ in the above-cited paragraph seem to indicate that any amnesty for serious human rights violations is considered incompatible with the American Convention even if democratically approved.331 However, in a subsequent paragraph the Court refers only to self-amnesty laws.332 326 See also Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 224 (29 November 2006). Case of Almonacid Arellano et al v. Chile, Preliminary Objections,Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 150 (26 September 2006). 327 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 224 (29 November 2006). 328 Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/ II.110, doc. 52 Chapter III, Impunity, paras 33, 34, 44 (2001). 329 Ignacio Ellacuría et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 136/99, OEA/Ser.L/V/II.106 doc. 3 rev. paras 229 et seq. (22 December 1999). 330 Id. at para. 229. 331 Arguably, it makes no difference for a victim demanding investigation and punishment whether or not the amnesty was proclaimed by the former government. 332 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 43–44 (14 March 2001).

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Judge García-Ramírez limits the reading of the Court’s jurisprudence to the invalidation of self-amnesties.333 He is still of the opinion that encouraging civic harmony through amnesty laws which contribute to the restoration of peace and the beginning of a new phase for a nation is advisable, as long as they do not apply to the most severe human rights violations, such as forced disappearance, genocide, torture, and certain crimes against humanity.334 This would leave the option for democratically legitimized amnesties resulting from a peace process which apply to other human rights violations. On the other hand, Judge Cançado Trindade takes a stricter approach towards amnesties in general and thereby goes beyond his opposition to self-amnesties in the Castillo Páez Case.335 He questions the idea that national reconciliation can be achieved by amnesties. To his mind ‘forgiveness cannot be imposed by a decree law or otherwise; instead, it can only be granted spontaneously by the victims themselves. And, in order to do so, they have sought justice.’336 This rules out any amnesty for serious human rights violations, irrespective of the motives for and modes of its adoption.337 The democratic legislature is not considered to be competent to annul the right of victims. There is now at least a consensus in the Latin-American system about an absolute ban of self-amnesties and of amnesties for crimes against humanity. Selfamnesties are equated with blanket impunity and are ruled out because they are deemed to result in the erosion of the confidence of the population in public institutions.338 There is also no room for compromise where crimes against humanity are concerned. Criminal prosecution of these crimes is vital. The Court took this position in Masacre de Mapiripán v. Colombia, Almonacid-Arellano v. Chile, and La Cantuta v. Peru.339 These cases concerned the amnesty laws of Peru and Chile 333 Case of La Cantuta v. Peru, Merits, Reparations, and Costs, Separate Opinion of Judge GarcíaRamírez, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 1–4 (29 November 2006). 334 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Vote of Judge GarcíaRamírez, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, paras 11, 13 (14 March 2001). 335 Castillo Páez Case, Reparations, Joint Concurring Opinion of Judges Cançado Trindade and Abreu-Burelli, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, paras 2–3 (27 November 1998). 336 Case of Almonacid Arellano et al v. Chile, Preliminary Objections,Merits, Reparations, and Costs, Concurring Opinion of Judge A. A. Cançado Trindade, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 4 (26 September 2006). 337 As the quote indicates, it is the focus of Judge Cançado Trindade on the right to justice which leads him to a strict ban of amnesties. In other words, the detrimental effects of amnesties on the rights of victims lead to the invalidation of amnesty law. This argument can also be found in the Court’s reasoning. In La Cantuta v. Peru the Inter-American Court explained that the application of the amnesty law breached the obligation to adjust domestic law ‘to the detriment of victim’ relatives’. Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 189 (29 November 2006). 338 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Opinion of Judge Cançado Trindade, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 4 (14 March 2001). 339 Case of Masacre de Mapiripán v. Colombia, Merits, Reparations and Costs, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134, para. 304 (15 September 2005) with further references. Case of Almonacid Arellano et al v. Chile, Preliminary Objections,Merits, Reparations, and Costs, 2006 Inter-Am. Ct.

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(Decree Law No. 2.191). Since they prevented criminal punishment for crimes against humanity the Court considered them invalid.340 Neither the process of adoption nor the authority issuing the amnesty law were considered relevant. The failure to punish, in the Court’s opinion, violated arts 1 and 2.341 The InterAmerican Court therefore required the annulment of the law.342 The idea that crimes against humanity may not be amnestied reflects a growing universal conviction that the most heinous crimes should not go unpunished. This conviction found expression not only in the Genocide Convention, the Torture Conventions, and other international treaties providing explicitly for a duty to punish but also in the establishment of international criminal tribunals, such as the two ad hoc tribunals and the International Criminal Court. The Inter-American Court intends to follow this development.343 It increasingly looks to international criminal law (i.e. the concept of crimes against humanity) in its analysis and is led accordingly in its determination of how to confront human rights violations.344 This has culminated in the assumption of an absolute duty of States parties to the American Convention to punish crimes against humanity. The Court thereby seeks to catch up with the development of international criminal law. As Judge Cançado Trindade put it, the legal reasoning regarding amnesties is ‘a new and great qualitative step forward’ in the Court’s case law.345 It seeks to overcome impunity which, according to his view, the international human rights supervisory bodies have not yet succeeded in surpassing. While, thus far, the focus of the Court has been on self-amnesties and on amnesties for crimes against humanity, its ban on amnesties is gradually broadening and extending to other serious human rights violations. Though Judge García-Ramírez wants to allow some leeway for amnesties, he is opposed to any amnesty for forced disappearance, genocide, torture, and certain crimes against humanity.346 In this H.R. (ser. C) No. 154, para. 105 (26 September 2006); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 168 (29 November 2006). 340 Case of Almonacid Arellano et al v. Chile, Preliminary Objections,Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 120 (September 26, 2006). 341 Id. at paras 110, 118. 342 According to the Court it was insufficient that the amnesty laws had not been applied by the domestic courts. Id. at para. 121. See Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 165, 189 (29 November 2006). 343 See Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Vote of Judge GarcíaRamírez, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 13 (14 March 2001). This is also the reason for the Commission’s approach. See e.g. Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 113 (27 January 1999). 344 Case of Almonacid Arellano et al v. Chile, Preliminary Objections, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 105 (26 September 2006); Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 128 (22 September 2006). 345 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Concurring Opinion of Judge Cançado Trindade, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 4 (14 March 2001). 346 Id. at paras 11, 13.

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respect he agrees with Judge Cançado Trindade who would even go beyond that position and rule out amnesties for all serious human rights violations. It is likely that an absolute ban will eventually prevail. The Court recently characterized the right of access to justice as jus cogens.347 Considering that access to justice in cases of serious human rights violations according to prior case law means access to criminal justice, this statement suggests that the rights of victims to have all serious human rights violations prosecuted may not be compromised. This would leave virtually no allowance for amnesties of any serious human rights violation.

9. Conclusion and outlook Criminal prosecution has become a central element of human rights protection in the Inter-American human rights system. The jurisprudence on the proper administration of justice provides detailed standards for the implementation of the Convention into domestic law to ensure that perpetrators of human rights violations are brought to justice. There is a trend towards developing rather rigid rules for criminal law and criminal procedure.348 The Inter-American Court nowadays requires prosecution and punishment for two reasons. First, the duty to punish is the result of the general duty to respect the Convention rights and to adopt domestic legal remedies. Secondly, it is necessary to protect individual rights of victims and their families. With respect to victims’ rights, the jurisprudence of the Court indicates a shift in legal reasoning. While the failure to investigate and punish in the Velásquez Rodríguez Case was classified as a violation of the victim’s rights to life, liberty, and humane treatment349 the Court now considers it as a violation of the victim’s rights under arts 8(1) and 25. The duty to investigate and punish is described as a measure to secure judicial guarantees and judicial protection to victims of human rights violations. 350 Especially where the Court refers to art. 25, this duty is a remedial one.351 The above analysis tries to distinguish between these different rationales on the basis of the reasons given by the Court in its judgments.352 But the distinction 347 Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, paras 84, 131 (22 September 2006); Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 157 (29 November 2006). 348 The jurisprudence on military courts is one example; the jurisprudence on amnesties is another. 349 In this case the Court found a violation of these rights under arts 4, 5, and 7 read in conjunction with art. 1(1). Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (29 July 1988). 350 Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 146 (16 August 2000). Sometimes the two provisions are cited in connection with art. 1(1). 351 Also the Commission considers the establishment of the truth as a form of reparation. Inter-Am. C.H.R., Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, doc. 52 Chapter III, Impunity, para. 24 (2001). 352 Investigation and punishment of human rights violations are required for different reasons. One aspect is to secure the enjoyment of human rights in general (art. 1). Another aspect is the protection

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between punishment as a form of general prevention and punishment as a form of remedy for the victim is not always easy to discern. Often the different concepts are mixed.353 Thus, the failure to prosecute is regularly dealt with in three different parts of a judgment: in the analysis of the general duty to respect, in the analysis of the right to life or another right affected by a crime, and in the analysis of judicial protection.354 This duplicates the analysis, especially when remedial and preventive aspects of prosecution are mixed. In future the Court should be more precise in its analysis because there is a difference between requiring punishment as a form of prevention owed to society at large and requiring punishment in the interest of the victim which is necessarily a retrospective measure.355 The preventive aspect is described by art. 1(1), while the remedial aspect is referred to by arts 8 and 25.356 The distinction between these different rationales is advisable not only to avoid duplication of analysis. It will also help the Court in specifying the role prosecution plays for the protection of human rights. This also has important implications for the legality of amnesties. The survey of the evolving jurisprudence on amnesties shows that the assumption of individual rights in the investigation and punishment of serious human rights violations initiated a development then towards increasingly outlawing amnesties. With the right to justice, the position on amnesties was pre-programmed. While initially the Commission tried to identify certain aspects of amnesty laws which were in violation of the American Convention, thereby providing for minimum requirements, there has been a development towards outlawing almost all amnesties even if investigatory mechanisms and civil remedies exist. The duties to investigate, punish, and compensate demand equal validity. The Velásquez Rodríguez Case marked a starting point in this regard even if it was not intended to decide the issue of amnesties. It moved criminal punishment onto the of victims and their families, namely the guarantee of the substantive right to a fair trial (art. 8), to judicial protection (art. 25), and to reparation (art. 63). If punishment is sought under art. 1 it is the preventive aspect which takes precedence. Under the remaining provisions, it is the idea that victims and their families shall be provided with adequate redress. 353 For example in the Durand and Ugarte Case the Court held that art. 25 is closely related to the general obligation of art. 1(1). Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 121 (16 August 2000); Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 63, para. 237 (19 November 1999). 354 Additionally, the Court deals with the duty to prosecute and punish under art. 63 (1). Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, paras 116, 133 et seq., 165 et seq., 222 (29 November 2006). 355 Unclear in this respect Durand & Ugarte Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 68, para. 121 (August 16, 2000). 356 The Commission does not distinguish between these different aspects. It reads art. 1(1) together with arts 8 and 25 as providing for an obligation to investigate and punish violations of the rights protected under the Convention. Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. paras 73 et seq. (13 April 2000). There is, however, an indication that the Court may have realized the difference when it refers to the ‘general obligation of article 1(1)’ while in the context of arts 8 and 25 it refers only to the victim.

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human rights agenda. The more an individual right to have perpetrators of human rights violations prosecuted and punished crystallized, the more explicit the disapproval of amnesties became. Comparing the current approach with the Commission’s 1985–86 guidelines shows a dramatic development. There is nothing left of the Commission’s selfrestraint providing democratic governments with a margin of appreciation, as long as the amnesty was democratically legitimate and provision was made for an investigation. The need for national reconciliation and consolidation of democracy which was explicitly referred to in the early guidelines is no longer an argument for amnesties. If it had been merely for the sake of ensuring compliance with substantive human rights in the future, one could have argued that in post-conflict situations human rights are better served by promoting reconciliation through democratically legitimized amnesty. But with the assumption of individual rights regarding prosecution and punishment there was a clear contradiction between amnesties and individual rights. Now it is no longer only the right to the truth, but also the right to justice that needs to be observed in post-conflict situations. Since there is a requirement for criminal justice if serious human rights violations are at issue, it leaves little allowance for the proclamation of an amnesty which by its very nature eliminates criminal punishment. At least, no self-amnesties may be proclaimed because they are equated with impunity. Furthermore, amnesties covering serious human rights violations, such as torture, extrajudicial, summary, or arbitrary execution, and forced disappearance, are considered incompatible with the Convention. Such violations require investigation and criminal prosecution in order to prevent future violations and to preserve the rights of the victims and their families. There is no room for balance if such violations have been committed. Neither the Commission nor the Court has confidence in the concept that an amnesty is capable of leading to lasting protection of human rights if the most serious human rights violations are concerned. This is due to the specific experience gained in Latin America which recently also informed the position of governments in this region. Some of them have realized that previously enacted amnesty laws, especially those of the former governments, were wrong.357 This insight gained ground in the region and certainly facilitated jurisprudential development.358 The Inter-American Court, by

357 See e.g. Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75 (14 March 2001). 358 The Supreme Court of Argentina declared the two amnesty laws adopted in 1986 and 1987 unconsitutional in 2005, Corte Suprema de Justicia [CSJN], 14/6/2005, ‘Simón, Julio Héctor y otros s/ privación ilegítima de la libertad’, Case No. 17.768, S.1767.XXXVIII (Arg.). The Supreme Court of Chile declared the non-applicability of the amnesty law in cases of enforced disappearances, Corte Suprema de Chile, ‘Juan Contreras Sepúlveda y otros’, 517/2004, Resolución 22267. See Fannie Lafontaine, No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoval Case before the Supreme Court of Chile, 3 J. Int’l Crim. Justice 469 (2005). For the impact of the Inter-American Court of Human Rights’ jurisprudence on domestic courts see Brian D. Tittemore, Ending Impunity

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outlawing self-amnesties, attempted then also to persuade the judiciary to invalidate amnesty laws where they could not be revoked by the legislature.359 Various authors have pointed out that there has been a gap between the strict jurisprudential position regarding amnesties and the peacemaking practice in Latin America in which the UN and OAS had been involved.360 In Central America and in Haiti in 1994, amnesty for perpetrators of serious human rights violations was accepted to re-establish peace and build democracy.361 This led Douglass Cassel to claim that the requirements elaborated on by the Inter-American institutions should be applied as soft law or as guidelines instead of absolute rules.362 But the current standards are not intended to be mere guidelines. According to the Court, the prohibition of self-amnesties is a matter of hard law and is therefore binding. It is derived from the provisions of the American Convention without allowing for derivations.363 The difference between the Commission’s 1985–86 guidelines and the Court’s finding in the Barrios Altos Case provides ample evidence for this understanding. The Inter-American human rights institutions have been very ambitious and strict in their jurisprudence on prosecution and punishment. This not only concerns the right to justice but also the ban on amnesties. It is, however, doubtful whether these standards should also be adopted by other human rights bodies. It is submitted that they are context-specific and need to be recognized as a result of the particular regional situation. They evolved in the context of gross and systematic human rights violations.364 The Court and the Commission developed in the Americas: The Role of the Inter-American Human Rights System in Advancing Accountability for Serious Crimes under International Law, 12 Sw. J.L. & Trade Am. 429, 454–461 (2006). 359 An example of the conflict between the judiciary and the executive is the case of Chile where the President protested against the upholding of the amnesty-decree law by the Supreme Court. In the case of El Salvador the decision by the Supreme Court of Justice in favour of the amnesty was held by the Inter-American Commission on Human Rights to be in violation of art. 25. Monsenor Oscar Arnulfo Romero and Galdámez v. El Salvador, Case 11.481, Inter-Am. C.H.R., Report No. 37/00, OEA/Ser.L/V/II.106 doc. 3 rev. para. 140 (13 April 2000). Another example is the case of Peru. Peru’s amnesty laws were overturned as a result of the decision by the Inter-American Court of Human Rights. 360 Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197, 221 et seq. (Autumn 1996); Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345 (David J. Harris & Stephen Livingston eds, 1998). 361 Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 361–370 (David J. Harris & Stephen Livingston eds, 1998). 362 Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197, 228–230 (Autumn 1996). 363 For a critical evaluation of this uncompromised concept see Burke-White who argues that the Commission’s legal reasoning with respect to amnesties may have been self-limiting, rather than standard-setting. William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467, 522 (2001). 364 See Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 62 (22 September 2006).

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their doctrine on the basis of experience gained over decades in Latin America. Serious shortcomings of the criminal justice system in several Latin-American States had led to an escalation of crimes. There are still grave systemic deficits in the criminal justice system. Large-scale impunity prevails in several OAS Member States. Therefore, the Inter-American human rights mechanism is regarded as the only means of remedy. In this situation it comes as no surprise that the InterAmerican Court assumes a leading role in protecting the rule of law. Its uncompromised call for criminal prosecution seeks to combat a general situation which is detrimental to the enjoyment of human rights. Neither the Court nor the Commission is in favour of a margin of appreciation for the States parties. Otherwise their fight against the phenomenon of impunidad could be weakened. Their strictly negative position towards amnesties must also be explained on the basis of the particular circumstances in the States at issue. The Peruvian, Chilean, and other amnesties in the region had been adopted with the aim of covering up past crimes and of shielding their perpetrators from prosecution. The proclamation of amnesties, especially self-amnesties, was epidemic in Latin America. It neither led to restoration nor to reconciliation. There was no South African-styled conditional amnesty. In response to this, both institutions which regard themselves as promoters of human rights tried to counteract the situation. This resulted in the elaboration of strict rules regarding how States must react to human rights violations. But given this background the jurisprudence of the Inter-American Court should not be borrowed directly, in its uncompromising formula and legal reasoning, by other human rights bodies for situations which are structurally different.

4 Prosecution under the European Convention on Human Rights The European Court of Human Rights has developed several standards for the criminalization and prosecution of serious human rights violations. This is a relatively recent process which was accelerated by the Kurdish and Chechnian conflicts.1 Like its universal and Inter-American counterpart, it is based on the idea that the protection of human rights requires that perpetrators of serious human rights violations are brought to justice. This has a significant impact on the design of domestic criminal law systems. Enactment and enforcement of criminal law are increasingly seen as measures to ensure the effective enjoyment of human rights. This applies, for example, to violations of the right to life and of the prohibition of torture.2 The obligation to ensure these rights by having recourse to criminal law includes several aspects including the adoption of criminal law, the establishment of a criminal-law machinery, and the conduct of an effective criminal investigation. Furthermore, State agents involved in crimes involving ill-treatment should be suspended pending investigation and trial, and dismissed if convicted.3 Apart from the conduct of criminal proceedings, States parties are called upon to enforce criminal sentences. While there are several parallels with the Inter-American standards, the reasons explaining this concept differ because the European Court consistently refused to adopt the Inter-American ‘right to justice’ doctrine.4

1 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 51. See also VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, para. 90; Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62; and Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. 2 Case of Krastanov v. Bulgaria, App. No. 50222/99, Eur. Ct. H.R., Judgment of 30 September 2004, para. 60. 3 Abdülsamet Yaman v. Turkey, App. No. 32446/96, Eur. Ct. H.R., Judgment of 2 November 2004, para. 55. 4 See below section 2.3.B.

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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1. The duty to have recourse to criminal law 1. The duty to criminalize serious offences Several judgments from the European Court of Human Rights assume a duty of States parties to enact criminal legislation and to provide for criminal responsibility at law. The most prominent and influential case was X. and Y. v. The Netherlands.5 At issue was the denial by a public prosecutor to open criminal proceedings against an alleged rapist. The case was brought by the victim who was mentally handicapped. Since she had not been able to sign the complaint, her father had done so. Under Dutch law, however, he was not entitled to act on her behalf. The Court criticized this shortcoming in domestic criminal law. It held that the right to private life may involve the adoption of measures designed to secure respect for private life (art. 8), including sexual life even in the sphere of relations between private individuals.6 Although in principle the Court accorded States parties a margin of appreciation in the choice of means to secure compliance with art. 8, it held that where fundamental values and essential aspects of private life are at stake, for example in cases of rape, effective deterrence is vital.7 This required criminal law provisions. The idea that the protection of fundamental rights requires criminalization has also been expressed with respect to the right to life (art. 2).8 As the Court pointed out in Mahmut Kaya v. Turkey, art. 2(1) involves a ‘primary duty on the State to secure the right to life by putting in place effective criminal-law provisions’.9 Children and other vulnerable persons are in particular entitled to protection by the State against serious breaches of personal integrity. This was emphasized in A. v. United Kingdom.10 5 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 27. 6 Id. at paras 22–23. 7 Id. at para. 27. 8 According to the Court, the right to life requires an effective judicial system. Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 51; see also Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62; Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. 9 Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. See also Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62. 10 A. v. United Kingdom, App. Nos 100/1997/884/1096, Eur. Ct. H.R., Judgment of 23 September 1998, para. 22. In this case the applicant claimed that his stepfather’s acquittal from criminal charges for beating him was a violation of his right under art. 3. The Court criticized deficiencies in the English criminal law. But the decision cannot be interpreted as an affirmation of a general duty to punish abuses. No mention was made that criminal prosecution provided the only effective deterrent. Since the State adopted criminal measures these measures were under scrutiny. An alternative would have been to remove the child from the stepfather’s custody. If, however, a State party limits itself to criminal measures, these measures must not be deficient and must be effective.

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Whether recourse to criminal law is required depends on the gravity of the violation. The above-mentioned cases demonstrate that a duty to criminalize exists only with regard to fundamental values. And only where essential aspects of a fundamental right are at stake is there an obligation to criminalize. This is the case with murder, rape, and serious breaches of personal integrity. In respect of less serious abuses, States parties have a margin of appreciation in the choice of means of protection. The question whether criminalization is required also depends on the mens rea of the perpetrator. This was explained by the Court in the case of Calvelli and Ciglio. At issue was the death of a patient caused by the negligence of a doctor. The applicants were critical of the fact that in the criminal proceedings no criminal penalty had been imposed on the doctor who was liable for the death of their child. The European Court held that ‘if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by art. 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case’.11 With regard to non-intentional infringements of the right to life or personal integrity the Court elaborated: In the specific sphere of medical negligence the obligation [imposed by art. 2 to set up an effective judicial system] may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.12

This primarily concerns modest forms of negligence. However, in cases of gross negligence by State officials there is an obligation to criminalize and prosecute infringements of the right to life. This was elaborated on in Öneryildiz v. Turkey. At issue was a methane-gas explosion in a municipal landfill site which caused the death of 13 people. The applicants claimed that negligence on the part of the national authorities with regard to the hazards posed by the landfill site, made the State responsible for the deaths of their family members. The Court took into account the public activities, the number of authorities found to have breached their duties, the large number of individuals affected, and the tragic nature of the events.13 The Grand Chamber considered that the negligence of State officials went beyond mere error of judgement or carelessness.14 It held that in cases where State authorities do not act despite an obvious danger to life, and where this 11 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 51. 12 Id. 13 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 93. 14 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 93 (Grand Chamber).

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negligence then leads to serious consequences for a number of individuals, recourse to the criminal law is required even if death was unintentional.15 Therefore, whether the judicial system must criminalize certain conduct depends on the right at stake, the actual gravity of the offence, and the mens rea of the perpetrator. For the taking of life with intent and gross negligence and for intentional interference with fundamental aspects of private life, such as rape, there needs to be at least a workable criminal-law provision.

2. The duty to establish a criminal-law machinery and conduct criminal proceedings As the case of Öneryildiz v. Turkey demonstrates, there is not only a duty to criminalize but also an obligation to enforce the criminal law.16 States are expected to secure the effective implementation of domestic laws safeguarding the right to life and the accountability of offenders.17 The domestic legal system must demonstrate its capacity to enforce criminal law.18 The obligation to hold perpetrators of serious human rights violations accountable includes the duty to establish an effective independent judicial system so that the facts can be determined and those responsible can be held accountable.19 Administrative proceedings are insufficient in cases of serious human rights violations, such as murder.20 It is a requirement that an investigation capable of leading to the identification and punishment of those responsible is conducted.21 The same requirement was pointed out with regard to allegations of torture;22 in a case where State authorities had deliberately destroyed homes in violation of the right to a private life,23 and in a case of alleged 15 Id. para. 93. See also Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 109. 16 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 94 (Grand Chamber). See also Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 109. 17 Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 137; Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 110 (Grand Chamber). 18 Menson et al. v. United Kingdom, App. No. 47916/99, 2003-V Eur. Ct. H.R.; Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 160 (Grand Chamber). 19 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 49; Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 95 (Grand Chamber). 20 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 91–96, 111 (Grand Chamber). 21 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 107; Case of Beitiyeva and X v. Russia, App. Nos 57953/00 and 37392/03, Eur. Ct. H.R., Judgment of 21 June 2007, para. 156 with further references. 22 Aksoy v. Turkey, App. No. 21987/93, Eur. Ct. H.R, Judgment of 18 December 1996, para. 98. 23 Mentes et al. v. Turkey, App. Nos 58/1996/677/867, Eur. Ct. H.R, Judgment of 28 November 1997, para. 89; Ayder et al. v. Turkey, App. No. 23656/94, Eur. Ct. H.R., Judgment of 8 January 2004, para. 98.

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unlawful deprivation of liberty.24 Whether an investigation capable of leading to the identification and punishment of those responsible is required, again depends on the nature and gravity of the interference complained of.25 Some authors maintain that the jurisprudence of the European Court can be interpreted as an affirmation of a duty to punish.26 There are some pronouncements heading in this direction. In Öneryildiz v. Turkey the Court referred to a State duty to ensure that all breaches of the right to life be repressed and punished.27 Nonetheless, the Court still seems to be uneasy with the notion of a duty to punish. Instead it affirms an abstract duty to criminalize, to establish a lawenforcement machinery, and to have recourse to criminal law. It is extremely cautious in its choice of terminology. This is evidenced by a comparison with the Human Rights Chamber for Bosnia and Herzegovina which also applies the European Human Rights Convention. While the European Court of Human Rights refers to an investigation capable of leading to identification and punishment, the Human Rights Chamber for Bosnia and Herzegovina goes beyond this. It has repeatedly ordered the Federation of Bosnia and Herzegovina not only to conduct a criminal investigation but ‘to bring to justice’ perpetrators of serious human rights violations on the basis of the European Convention.28 The reason for the more cautious approach of the European Court is presumably that the obligation to conduct criminal proceedings is considered to be an obligation of means not of result.29 Though the Court does not use the term, a review of its jurisprudence reveals that it is more likely to refer to a duty to prosecute than to a duty to punish. Prosecution describes a procedure, while punishment describes the result thereof. The Court’s emphasis is clearly on the conduct 24 Kurt v. Turkey, App. No. 24276/94, 27 E.H.R.R. 373, Eur. Ct. H.R., Judgment of 25 May 1998, para. 140. 25 Mentes et al. v. Turkey, App. Nos 58/1996/677/867, Eur. Ct. H.R, Judgment of 28 November 1997, para. 89. This evaluation resembles the above analysis as to which human rights abuses need to be criminalized. The difference is that investigation here is required not as a measure of prevention which is owed to the general public, but as an individual right to address the grievances of the victims. 26 Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 478 (1990). 27 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 91 (Grand Chamber). 28 See e.g. H.R. and Mohamed Momani v. The Federation of Bosnia and Herzegovina, Case No. CH/98/946, Human Rights Chamber for Bosnia and Herzegovina, Decision on Admissibility and Merits of 5 November 1999, paras 121, 146–147; Srebrenica Cases (Selimovic and Others),Case Nos CH/01/8365 et al., Human Rights Chamber for Bosnia and Herzegovina, Decision on Admissibility and Merits of 3 March 2003, paras 206, 212. 29 See Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002, para. 71; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 324; Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 139; Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 118; Cesim Yildirim et al. v. Turkey, App. No. 29109/03, Eur. Ct. H.R., Judgment of 17 June 2008, para. 52; Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 38.

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of the investigation, not on the outcome.30 This will be explained below, together with the specific standards for the conduct of criminal proceedings.31 To understand fully it is necessary first to clarify the Court’s doctrine on the basis of its legal rationale.

2. Justifying the duty to criminalize, investigate, and prosecute Before considering the different legal rationales it is necessary to distinguish between different aspects of criminal law. Criminalization and enforcement of criminal law are usually considered by the Court to be matters of general human rights protection. When it comes to the protection of an individual victim, its focus is on the conduct of an investigation.

1. Procedural protection: criminalization and prosecution as general human rights protection The cases cited above show that enactment and enforcement of criminal law are currently seen as measures to ensure the right to life and the effective enjoyment of other human rights,32 with the majority of the doctrine developed under art. 2. This provision guarantees the protection of life by law. According to the Court, protection by law requires an effective judicial system which in grave cases includes recourse to criminal law. In Osman v.United Kingdom a Grand Chamber explained: The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction . . . It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.33

30 See e.g. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 93 (Grand Chamber); Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, paras 323 et seq. But see Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 57. 31 See below section 3. 32 Case of Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. 33 Osman v. United Kingdom, 1998-VII Eur. Ct. H.R. 3159–3160, para. 115.

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The fact that criminalization is required to protect the right to life was later confirmed in numerous cases34 and is based on the concept of procedural protection.35 The Court seeks prosecution and punishment in order to make effective in practice the prohibitions of killing and torture. Criminal prosecution is considered to be a matter of implementing the right to life which is required by art. 2 read in conjunction with the obligation to secure human rights under art. 1.36 The legal reasoning resembles the doctrine of the Human Rights Committee which derives a duty to punish from the ‘respect and ensure’ provision of the International Covenant on Civil and Political Rights (ICCPR).37 This interpretation of the Convention begins and further develops the concept of positive obligations which the Court derives from substantive rights.38 According to the Court, States parties are obliged to take effective measures to safeguard the rights of the Convention.39 This not only concerns human rights violations committed by State officials but also private abuses.40 Positive obligations usually do not lead to a comprehensive supervisory role by the Court for assessing whether measures taken by States parties are appropriate and effective.41 States parties are generally given a margin of appreciation in the choice of protective means. The Court is usually cautious not to extend unreasonably the protective obligations under art. 2.42 But there is a duty of the State to do what can be reasonably expected 34 Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62. See also Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85; Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002, para. 67. 35 The Court distinguishes between substantive and procedural aspects of art. 2 and accordingly applies a two-step analysis. First, it analyses whether conduct endangering life by State authorities violates the right to life. Secondly, it scrutinizes the judicial response by the States. See e.g. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 89; 91 et seq. (Grand Chamber); Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007. 36 Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 110 (Grand Chamber). In Cyprus v. Turkey the Court derived a duty to investigate from art. 2 read in conjunction with art. 1. Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R., Judgment of 10 May 2001, para. 131. 37 See above Chapter 2, section 2.1. 38 For this issue Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (2003); Peter Szczekalla, Die sogenannten grundrechtlichen Schutzpflichten im deutschen und europäischen Recht (2002). 39 L.C.B. v. United Kingdom, 1998-IIII Eur. Ct. H.R. 1403, Judgment of 9 June 1998, para. 36. 40 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 73 (Grand Chamber); X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 23; Ergi v. Turkey, App. Nos 66/1997/850/1057, 1998-IV Eur. Ct. H.R., Judgment of 28 July 1998, para. 82. For further details see Klugmann pp. 77–83. 41 X v. Ireland, App. No. 6040/73, 16 Y.B. Eur. Conv. on H.R. 388, 392, Decision on Admissibility of 20 July 1973 (Eur. Comm’n on H.R.). 42 In its Judgment in the case of Mahmut Kaya v. Turkey the Court stated: ‘Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities’.

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to avoid a real and immediate risk to life by the actions of a third party if State agents have or should have knowledge of the risk.43 In assuming a duty to criminalize serious human rights abuses, the Court has gone one step further. While protective measures against death threats were at issue in earlier cases, the new doctrine on criminalization now requires repressive measures. This form of protection— which has far-reaching consequences for the offender—has a different quality than, for example, removing children from abusive parents. The Court has specified in several judgments the reasons why criminal measures are necessary for the positive protection of human rights. In the above case of X. and Y. v.The Netherlands, the Court explained that deterrence is a primary reason for the duty to criminalize serious abuses.44 This was affirmed in Mahmut Kaya v. Turkey45 and Kilic v. Turkey.46 The preventive aspect of criminal law not only requires enactment of criminal legislation but also its enforcement. By prosecuting serious human rights violations States parties seek to prevent the commission of further crimes. By not holding perpetrators accountable, an atmosphere of impunity would emerge giving rise to further violations. In other words, if perpetrators are able to abuse rights with virtual impunity, legal protection of the right to life is rendered ineffective.47 The emphasis on prevention shows that the duty to have recourse to a criminallaw machinery is not the result of an individual right of the victim to have perpetrators criminally punished as a form of redress.48 It is to protect everyone from potential serious human rights abuses. Apart from general crime prevention, the Court also refers to the concept of special crime prevention by pointing out that ‘[o]ne of the essential functions of a prison sentence is to protect society for example by preventing a criminal from re-offending and thus causing further

Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 86. 43 Osman v. United Kingdom, 1998-VII Eur. Ct. H.R. 3159-60, § 116; Case of Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 86. 44 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 27; Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. 45 Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85. See also Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62. 46 Kiliç v. Turkey, App. No. 22492/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 62. See also Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85; Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002, para. 67. 47 Case of Krastanov v. Bulgaria, App. No. 50222/99, Eur. Ct. H.R., Judgment of 30 September 2004, para. 60. 48 The Court refers explicitly to the ‘deterrent effect of the judicial system’ and its role ‘in preventing violations of the right to life’. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber).

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harm’.49 Without criminal punishment it would be possible for offenders to again abuse the rights of those within their control, and the general prohibition of wilful taking of life, torture, and inhuman and degrading treatment would, in practice, be ineffective.50 The Court has introduced another reason for requiring criminal prosecution: the protection of the rule of law. A Grand Chamber in Öneryildiz v. Turkey held that: ‘the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts.’51 Apart from the rule of law, criminal prosecution also re-establishes public confidence in the State’s monopoly on the use of force.52 All these reasons (general and special prevention, rule of law, and credibility of the State) again emphasize that the obligation to prosecute is concerned with general human rights protection as a shared interest of society.53 Nevertheless, the Court has made these statements in the context of individual complaints. This is symptomatic of recent judicial developments. The Court increasingly uses individual complaints to test compliance with the Convention more generally.54 In recent cases the Court has repeatedly asked States parties to adopt not only measures concerning the specific victim, but also general measures of human rights protection.55 By pointing to systemic deficits the Court seeks to manage its increasing case load. It requires ever-increasing measures which go beyond individual 49 Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002, para. 72. The Court dealt with the obligation to afford protection to society against potential acts of one or of several persons serving a prison sentence for a violent crime. Id. at para. 69. 50 Krastanov v. Bulgaria, App. No. 50222/99, Eur. Ct. H.R., Judgment of 30 September 2004, para. 60; Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 55. 51 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber). See also Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 140; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 321. 52 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 325. 53 Accordingly, the Court in the operative part of the judgments only very generally concludes that there has been a violation of a State’s obligation under art. 2 to investigate the deprivation of life. The Court refers to a duty under the Convention to take ‘measures for the protection of the public’ from violent crimes. V. v. United Kingdom, App. No. 24888/94, Eur. Ct. H.R, Judgment of 16 December 1999, 1999-IX Eur. Ct. H.R. 171; A. v. United Kingdom, App. Nos 100/1997/884/1096, Eur. Ct. H.R.; Judgment of 23 September 1998, para. 22; Osman v. United Kingdom, 1998-VII Eur. Ct. H.R. 3159–3160, para. 115. 54 It is debatable whether it is appropriate in individual cases to make generalized statements about how states need to secure the rule of law by means of criminal law. Arguably it would be appropriate to deal only with the rights of the complainant in the case before the Court. But see Broniowski v. Poland, App. No. 31443/96), Eur. Ct. H.R, Judgment of 22 June 2004. 55 See e.g. Zwierzynski v. Poland, App. No. 34049/96, Eur. Ct. H.R, Judgment of 19 June 2001; Somogyi v. Italy, App. No. 67972/01, Eur. Ct. H.R, Judgment of 18 May 2004; Bottazzi v. Italy, App. No. 34884/97, Eur. Ct. H.R, Judgment of 28 July 1999.

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remedies by expecting States to review their legislation, rules and regulations, public procedures, and judicial practice in order to prevent future violations.56 A reading of these judgments should not, therefore, be misinterpreted as a general affirmation of a right to justice. Though the Court in individual cases calls upon States parties to criminalize and have recourse to criminal law, this is a matter of general human rights protection. Criminal punishment is not required as a remedy for the individual victim.

2. Prosecution and its relevance for individual rights Apart from general considerations, the rationale of deterrence may also determine the outcome of some rather specific individual cases. For example, if persistent failure to take criminal measures against murder gives rise to the commission of more crimes, the failure to act is comparable with participation. That the failure to enforce criminal law in order to prevent recurrence may amount to a violation of individual rights was acknowledged in the case of Mahmut Kaya v. Turkey. The Court criticized inadequacies in the implementation of domestic criminal law with regard to previous crimes. The persistent failure by Turkish authorities to investigate and bring to justice those responsible was held to be in violation of a State’s duty to prevent repetition. Authorities had repeatedly failed to investigate allegations of wrongdoing by the security forces.57 In this case the European Court of Human Rights scrutinized the criminal procedure applied in earlier cases. Since those procedures had not been conducted by independent institutions the Court found that these general defects undermined the effectiveness of the protection afforded by the criminal law in Turkey.58 It went on to point out that this permitted or fostered a lack of accountability of members of the security forces for their actions which was not compatible with the rule of law in a democratic society which respects the fundamental rights and freedoms guaranteed under the Convention.59 The Court concluded that the inadequate and ineffective criminal procedures against former perpetrators had removed the protection which the applicant should have received because it had led to an atmosphere of impunity giving rise to the crime committed against him.60 This is one of the rare cases in which a violation of individual rights was found due to the insufficient prosecution of previous crimes. An effective and independent procedure was required to hold the perpetrators responsible in order to prevent 56 The Council of Ministers in 2004 recommended the European Court of Human Rights to specify measures necessary to redress and prevent violations of the Convention. Committee of Ministers Resolution of 12 May 2004, D.H. Res. (2004). 57 Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 96. 58 Id. at para. 98. 59 Id. at paras 98–99. 60 Id. at para. 99.

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future crimes. This does not mean that everyone may claim that the failure to prosecute single crimes constitutes a violation of his individual rights.61 The Court was careful not to speak of a duty to punish. Instead it explained that there may not be deficiencies in the implementation of the criminal law which render the protection of life meaningless.62 Thus, where there is persistent ineffective implementation of criminal law, victims of abuses may claim a violation of the right to have their lives protected. But this is not a right of a victim to have his or her abuser prosecuted as a matter of redress. Prosecution in these cases is sought as a matter of prevention. It is also important to realize that not every shortcoming in criminal proceedings gives rise to such a violation. It becomes relevant only if a general atmosphere of impunity leads to the commission of further crimes. In such cases the failure to prosecute earlier crimes constitutes a contribution by the State authorities to the commission of later crimes with the result that a State party incurs responsibility for the commission of those later crimes.

3. Victims’ rights The European Court and earlier the European Commission of Human Rights— similar to the Human Rights Committee—have repeatedly denied an individual right of victims to have third parties prosecuted under criminal law.63

A. The right to a fair trial There have been repeated efforts to persuade the Court that there is a right to justice. Victims of assaults have complained that their cases have not been prosecuted and argued that this is in violation of their right to a judicial hearing. Article 6 provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’64 But this right of access to a court does not provide for a right of the victim to institute or have instituted criminal proceedings against another person.65 Here, the same

61 Only if the risk materializes is there a violation of the right to life. 62 This was the case in Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, paras 94–98. 63 Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996); Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999; Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004; Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber). 64 Article 6(1) sentence 1. 65 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (244) (2 September 1991).

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applies as for the parallel provisions of art. 14 ICCPR and art. 8 ACHR:66 with regard to criminal proceedings the provision protects only persons against whom criminal charges are brought, but not the victim who seeks to have his or her abuser prosecuted. This is indicated by the words ‘against him’, which show that only the person accused of a crime has the right to a fair trial.67 A right to have another person prosecuted cannot alternatively be derived from the right to have civil rights and obligations determined in a fair hearing. Criminal charges do not qualify as civil rights or obligations.68 In criminal proceedings it is not the right of the victim, such as with a civil claim for compensation, which is at issue, but the demand of the State for punishment. This has been repeatedly confirmed by the European Court and the European Commission.69 Only in such jurisdictions where civil remedies depend on criminal prosecution, can the right to a fair trial be asserted in criminal proceedings. This was the case in Perez v. France.70 Under French law, criminal proceedings joined by the victim as a civil party are decisive for the granting of his or her civil right.71 But this does not mean that there is a right of the victim to have his or her abuser prosecuted or sentenced under the Convention.72 Admittedly, the assertion that the right to a fair trial may become relevant in States where civil remedies are associated with criminal prosecution, is similar to the early statements of the Inter-American Commission that under those jurisdictions where victims have the right to participate in criminal proceedings the denial of such a right is contrary to the right to a fair trial.73 But the European Court does not assume a right of the victim to justice, let alone a right to secure criminal conviction. Even if a right to a fair trial exists in those jurisdictions where compensation depends on criminal prosecution, it is not the criminal conviction which must be secured, but the right to reparation.74 The right to a fair trial in such criminal 66 See above Chapter 2, section 2.3.A and Chapter 3, section 2.2.B.b. 67 For the fair trial standards see Sarah J. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (2007). 68 But see Stefan Trechsel, Human Rights in Criminal Proceedings 42 (2005). 69 Kiss v. United Kingdom, App. No. 6224/73, 7 Eur. Comm’n H.R. Dec. & Rep. 55, 64 (December 16, 1976), with further reference to X. v. Germany, App. No. 2942/66, 23 Eur. Comm’n H.R. Dec. & Rep. 64. See also Dubowska v. Poland, App. No. 34055/96, Eur. Comm’n H.R. Decision of 18 April 1997, para. 4; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, paras 359–360. 70 Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004. For critical appraisal see Stefan Trechsel, Human Rights in Criminal Proceedings 41–42 (2005). 71 Under French law victims may pursue a civil action separately from the prosecution in civil court (art. 4(1) Code of Criminal Procedure). They may also pursue it in the criminal courts simultaneously with the prosecution (art. 3(1) Code of Criminal Procedure). 72 Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 70. 73 Mendoza et al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83, doc. 14 para. 41 (2 October 1992). 74 The Court speaks of the ‘civil component’ of criminal proceedings. Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 67. It also explains that the role of the

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proceedings, therefore requires an investigation and ‘a proper examination of the submissions, arguments and evidence adduced by the parties’.75 It is thus the correct investigation which has to be guaranteed pursuant to art. 6, not the conviction of the accused.76 According to the European Courts when it comes to punitive purposes ‘the applicability of art. 6 has reached its limits’.77 There is no right to have third parties prosecuted or sentenced for a criminal offence under art. 6 which could be claimed independent of domestic law.78

B. The strict denial of a right to justice It was pointed out by the European institutions that a right to have someone prosecuted cannot be derived from other conventional rights either. This applies to the right to life (art. 2),79 the right to private life (art. 8),80 and the right to an effective remedy (art. 13).81 Throughout the last decade the Court has repeatedly reaffirmed that the Convention does not guarantee a right to secure a conviction in criminal proceedings.82 Though the European Court has further developed its jurisprudence on criminal matters, it has never ascertained an individual right of a victim to criminal punishment.83 Even in the case of M.C. v. Bulgaria the Court merely concluded that there had been a violation of the ‘respondent State’s positive obligations’ to protect life and to prevent inhuman or degrading treatment by not

civil party in criminal proceedings is not the same as the one of the government and is clearly distinct. Id. at para. 68. 75 Id. at para. 80. 76 Though the Court extended in Perez v. France its jurisprudence under art. 6, there is a right to fair proceedings only in respect of criminal proceedings if the victim’s right to compensation depends on those proceedings. If investigation and compensation can be achieved by other means, there is no right of the victim with respect to the criminal proceedings. 77 Id. The Grand Chamber recently again considered art. 6 not to be applicable in cases of ineffective criminal proceedings. Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 360. 78 Id. 79 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber). 80 E.V. v. Ireland, App. No. 9373/81, Eur. Comm’n H.R., Decision of 14 December 1987, para. 1. But see X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985. For an analysis of this judgment see text below accompanying note 103. 81 Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24, 31 para. 2 (14 October 1996). 82 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999, with further reference to Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996); Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber). 83 Raquel Aldana-Pindell lightly assumes a right to prosecution without careful analysis of the Court’s reasoning. Raquel Aldana-Pindell, An Emerging Universality of Justiciable Victim’s Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes, 26 Hum. Rts. Q. 605, 634 et seq. (2004).

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properly conducting a criminal investigation of rape.84 Neither did the Court take issue with the lack of punishment itself, nor refer to an individual right to punishment. Also in Perez v. France it noted ‘that the Convention does not confer any right . . . to “private revenge”’ and that there was not, as such, a right to have offenders prosecuted or sentenced under the Convention.85 In Öneryildiz v. Turkey a Grand Chamber again clarified that it should in no way be inferred from its jurisprudence that art. 2 entails the right for an applicant to have third parties prosecuted or sentenced for a criminal offence.86

C. Remedial rights: the right to an investigation Although there is no individual right to have an offender criminally punished under the European Convention there is a right of the victim to an investigation. Different rationales have been applied by the European Court of Human Rights to justify this right. Unfortunately, the Court does not distinguish clearly between the underlying principles of its analysis and therefore often includes considerations of general human rights protection even when dealing with victims’ rights. For this reason, some of the above-mentioned considerations are again considered here. The claim for an investigation has been justified by the right of the victim to an effective remedy. Article 13 provides: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ The Court will in general leave the States parties with a margin of appreciation regarding the choice of remedial measures, as long as they are effective in law and in practice.87 However, according to the jurisprudence of the Court the scope of this discretion depends on the nature and gravity of the alleged abuse.88 With regard to the taking of life the Court has stated that due to the fundamental importance of this right, art. 13 not only requires compensation but also an investigation capable of leading to the identification and punishment of those responsible including effective access for the complainant to the investigation

84 M.C. v. Bulgaria, App. No. 39272/98, Eur. Ct. H.R., Judgment of 4 December 2003, para. 201. 85 Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 70. 86 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96 (Grand Chamber). 87 Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000, para. 100; Keenan v. United Kingdom, App. No. 27229/95, 33 E.H.R.R. 913, Eur. Ct. H.R., Judgment of 3 April 2000, para. 122. For more detail on art. 13, Clare Ovey & Robin White, Jacobs and White, The European Convention on Human Rights 386 et seq. (3rd edn, 2002). 88 Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000; Keenan v. United Kingdom, App. No. 27229/95, 33 E.H.R.R. 913, Eur. Ct. H.R., Judgment of 3 April 2000.

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procedure.89 The terminology used is the same that is used in the context of general human rights protection. The difference is that art.13 deals with an individual right of the victim. The question arises whether there is a contradiction between the reference to an investigation capable of leading to punishment under art.13 and the constant denial of a right to demand prosecution. What is obviously envisaged by investigation capable of leading to the identification and punishment of those responsible is a criminal investigation. In X. and Y. v. The Netherlands the Court acknowledged a right to initiate criminal proceedings. But it still holds on to the assertion that the Convention does not guarantee a right to have a perpetrator convicted.90 Even in cases where the Court requests an investigation capable of leading to punishment it is cautious not to pronounce a duty to prosecute, let alone an individual right to prosecution. The wording suggests that rather than punishment, it is an investigation which seeks to establish the guilt of those implicated that is owed to the individual victim.91 This is emphasized again when the Court clarifies that the investigation capable of leading to the punishment of those responsible is not an obligation of result, but of means.92 In Öneryildiz v. Turkey the Grand Chamber again stressed that its case law could not be understood as deriving a duty to punish from art. 13. In prior cases the Court had found a violation of art. 13 in cases of authorities’ failure to carry out an investigation capable of leading to the identification and punishment of those responsible but only on the basis that no investigation had been conducted. The Court elaborated that it had criticized the absence of criminal investigation because such an investigation was necessary in order to obtain civil redress.93 In other words, it was the lack of opportunity to establish liability and the obstacle in seeking remedies which led the Court to find a violation of art. 13.94 This clarifies that 89 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 107; Case of Beitiyeva and X v. Russia, App. Nos 57953/00 and 37392/03, Eur. Ct. H.R., Judgment of 21 June 2007, para. 156 with further references. 90 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999, with further reference to Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996); Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 96, 147 (Grand Chamber). 91 In Ayder et al. v. Turkey the Court held that administrative proceedings which provided for compensation on the basis of the State’s strict liability without analysing the guilt of State agents were insufficient under art. 13. According to the Court the State is obliged not only to pay compensation but also to pursue those who are guilty. Ayder et al. v. Turkey, App. No. 23656/94, Eur. Ct. H.R., Judgment of 8 January 2004, para. 98. 92 Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002, para. 71. 93 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 148 (Grand Chamber). 94 See also McKerr v. United Kingdom, App. No. 28883/95, 2001-III Eur. Ct. H.R., Judgment of 4 May 2001, paras 172–175.

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the Court required criminal investigation as a precondition for civil and administrative remedies, but not in order for victims to ensure punishment.95 Central to art. 13 is the establishment only of the offender’s responsibility by official authorities and the compensation for victims.96 If criminal prosecution is the only means available for an independent and effective investigation the Court will analyse its effectiveness. This is not because punishment is required but because a State party has chosen to rely on criminal proceedings as a remedy. According to this line of reasoning, punishment is not a remedial element. Thus, it would be wrong to interpret the idea of an investigation capable of leading to punishment pursuant to art. 13 as an affirmation of a right to punishment. This is obviously not what is intended by the European Court. Unfortunately the Court’s terminology with its reference to punishment is misleading and should be reassessed. This will be explained below in more detail. As indicated above, the reason for the Court’s hesitance in assuming a subjective right to claim punishment is probably the conviction that the determination of criminal charges should be left to the State. Even if the Court assumes an individual right to initiate criminal proceedings it will not in all probability set up further conditions as to the particular sentence in order to satisfy the victim’s interests. This was indicated when the Court pointed out that the Convention does not guarantee a right to secure a conviction in criminal proceedings.97

D. Retrospective protection The duty to investigate and the right to initiate criminal proceedings are sometimes not derived from the right to an effective remedy but from the infringed substantive right itself.98 Indeed, recent judgments indicate a shift away from analysing criminal prosecution under art. 13 towards an analysis under the affected right.99 Investigation in these instances is seen as a primary measure of individual 95 See also Case of Beitiyeva and X v. Russia, App. Nos 57953/00 and 37392/03, Eur. Ct. H.R., Judgment of 21 June 2007, para. 158. 96 Goncharuk v. Russia, App. No. 58643/00, Eur. Ct. H.R., Judgment of 4 October 2007. In Akhiyadova v. Russia the Court explained that redress requires an independent investigation and the establishment of responsibility. Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, para. 52. 97 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999, with further reference to Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996). 98 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999. 99 In Öneryildiz v. Turkey the Grand Chamber indicated that the right to an investigation under art. 2 is more comprehensive than the one under art. 13 which is limited to the question whether the right to an effective civil or administrative remedy is frustrated by the way in which the criminal investigation was conducted. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 149 (Grand Chamber). In Ramsahai and Others v. The Netherlands the Grand Chamber considered that the complaint concerning the criminal proceedings which were dealt with

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protection. It emanates from the above-mentioned idea of procedural protection according to which a State is required to take positive measures effectively to ensure the enjoyment of rights. The Court then goes one step further by translating it into an individual right. The Court refers to this obligation as the ‘procedural limb’ of the right.100 Accordingly, every victim of serious abuses is entitled to a criminal investigation because a failure to do so would jeopardize the validity of his rights. The Court explained in Kaya v. Turkey, The obligation to protect the right to life under art. 2, read in conjunction with the State’s general duty under art. 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State.101

According to the Court, the procedural protection of the right to life inherent in article 2 of the Convention secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the force used was or was not justified in a particular set of circumstances.102

Although this statement largely resembles the idea of deriving objective duties from the duty to secure the Conventional rights (art. 1), the Court goes beyond this. It assumes an individual right of the victim to initiate such proceedings. That the procedural protection is required in the interest of the particular victim became apparent in X. and Y. v. The Netherlands mentioned above. There, the Court held that the claimant was a victim of a violation of the right to private life because under Dutch law she was unable to initiate criminal proceedings against the rapist.103 The lack of criminal proceedings was described as a failure of protection vis-à-vis the victim. Though persuasive on first sight, a thorough consideration of this line of reasoning raises certain questions. The discussion below, points to some puzzling aspects in the Court’s reasoning and attempts to explain the motivation behind the Court’s approach. This is followed by a consideration of how and to what extent the idea of retrospective protection can be substantiated. The assumption of an individual right to an investigation capable of leading to punishment initially appears to be a logical consequence of the procedural obligation. Arguably, if there is a duty to protect the right to life by putting into place an under art. 2 did not raise a separate issue under art. 13. Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 362. 100 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 46. 101 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 86. 102 Id. at para. 87. 103 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 30.

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effective criminal procedure, each victim of a violation should be entitled to insist on prosecution. However, a closer inspection reveals that the idea of procedural protection as a matter of general human rights protection is based on a different rationale than individual protection. The former is a measure of implementation which is owed to society at large. If prosecution is required as a matter of implementation, it is informed by the desire to prevent the commission of crimes. On the other hand, if prosecution is required to ensure the right of a victim, the preventive rationale alone is unable to sustain the call for punishment. After all, the criminal prosecution of an offender would not have prevented the crime.104 A criminal investigation is a retrospective measure that cannot make the crime non-existent. Instead, with regard to the victim, an investigation is remedial in nature. The reason that the Court nonetheless based its finding on the substantive provision of art. 8 is presumably because art. 13 was not applicable in the case of X. and Y. v. The Netherlands. The crime had been committed by a private individual and thus did not itself constitute a human rights violation by the State party. Since art. 13 requires an allegation that a State party has violated a Convention right, art. 13 could not be invoked.105 An individual right to initiate criminal proceedings can therefore only be based on the substantive provision, which not only obliges States parties to refrain from interfering with the right to private life but also includes a positive obligation to protect against interferences by third parties. The European Court explained that art. 8 involves the adoption of measures designed to secure respect for private life even in the sphere of the relation between private individuals.106 It derived the right of victims to initiate criminal proceedings from the protective element of this provision.107 The significance of this step has gone virtually unnoticed in the literature but should not be underestimated. It brings a new dimension to the notion of human rights protection by including retrospective measures in the measures of individual protection. The idea is that even after a violation there are obligations to protect the victim (ex post facto procedural obligation). Positive obligations in the context of general human rights protection were initially limited to measures of prevention. 104 This case should be distinguished from Mahmut Kaya v. Turkey in which the failure to prosecute a number of previous crimes was held to be a violation of the duty to protect against further crimes. Conversely, in X. and Y. v.The Netherlands, a criminal investigation was requested not as measure of protection against future crimes, but as a measure to protect the individual victim retrospectively. 105 The wording of art. 13 ‘whose rights and freedoms as set forth in this Convention are violated’ shows the ancillary nature of this right. Since the Convention concerns rights vis-à-vis States parties, there is no comprehensive right to a remedy for violations by private individuals under art. 13. Only if a State party had failed to prevent the abuse by private individuals by not complying with its protective obligations under the Convention (mittelbare Drittwirkung) is an effective remedy required. In the case of X. this failure to prevent was not alleged. 106 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, paras 22–23. 107 The Court itself calls this a procedural protection of the substantive right affected.

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By assuming a right to initiate criminal proceedings against a private individual as an ex post facto measure the Court goes well beyond the preventive aspect of protection in an individual case. Investigation is required to secure retrospectively the substantive right of the victim, which is more akin to a remedy.108 This is to highlight an abuse with the potential of holding the offender accountable.109 This legal reasoning exhibits parallels with the jurisprudence of the Inter-American Court of Human Rights in the Velásquez Rodríguez Case.110 In that particular case the InterAmerican Court found a violation of the right to life because of the lack of investigation and punishment after the victim’s disappearance. Investigation and punishment were regarded as measures to secure the victim’s substantive rights (the right to life and liberty). The extention of primary protection to remedial measures has the following implications: As indicated above, a right to have offences investigated that have been committed by private individuals cannot be based on the right to an effective remedy (art. 13) due to its ancillary nature. Therefore, deriving such a right as a procedural right from the substantive provisions considerably extends the protection offered by the European Convention. This is of particular importance for cases in which a violation by State authorities cannot be established. An example of this is the case of Kaya v. Turkey where the Court found that there was an insufficient factual and evidentiary basis to conclude beyond reasonable doubt that the applicant’s brother was intentionally killed by the security forces.111 Nonetheless, the Court held that there had been a violation of the right to life (art. 2) on account of the failure of the State authorities to conduct an effective investigation into the circumstances surrounding the death. Without the assumption of such a procedural obligation under art. 2, a violation could not have been found due to the killing by State authorities being unproven. Here again is a parallel with the Velásquez Rodríguez Case.112 Where responsibility cannot be established, the duty to investigate thus functions as a surrogate for the duty not to take life unlawfully. The alternative is that a State party by failing adequately to investigate cases of alleged misconduct by State officials could evade responsibility under the Convention. The assumption 108 Again, the idea of retrospective protection is not the same as the idea that measures are necessary in order to deter future abuses. Though both rationales are derived from the duty to secure human rights, there is an important difference. The idea that criminal measures are necessary in order to deter, serves the interest of society at large, while retrospective measures are sought in the interest of the particular victim. 109 In Erikson v. Italy the Court explained that an effective investigation was necessary which enabled the facts to become known to the public and to the relatives of any victims. Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999. 110 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). See above Chapter 3, sections 1 and 2.1. 111 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 78. 112 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). See above Chapter 3, section 2.2.A..

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of a procedural obligation implicit in art. 2 works in a similar way to a shift of the burden of proof. Though a State party cannot be held to be in violation of art. 2 because of unlawful taking of life (due to insufficient evidence or the private capacity of the perpetrator), it has a duty to investigate such allegations. The consequence of this legal construction is that the European Court of Human Rights is relieved of a complicated inquiry into the facts which, in any event, lies beyond the capabilities and functions of the Court.

E. Distinguishing retrospective protection from remedial rights Due to the broad reading of primary individual protection which includes retrospective measures, there is a considerable overlap between the procedural obligation envisaged by the Court to secure substantive rights derived from the affected right, read in conjunction with art. 1, and the duty to provide for an effective remedy under art. 13. Both obligations in large part resemble one another. Under art. 2 the Court assumes a procedural protection which ‘secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the force used was or was not justified in a particular set of circumstances’.113 Almost identical language is used to describe the right to an effective remedy pursuant to art. 13. The Court requires an investigation ‘capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure’.114 The Court often mingles the notions of procedural protection and remedial rights.115 In Nikolova and Velichkova v. Bulgaria the Court analysed excessively long criminal proceedings. In its analysis of art. 2 it criticized the delay as a violation of the procedural protection of the right to life and concluded that the victims 113 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 87. 114 Id. at para. 107. 115 In Goncharuk v. Russia the Court explained that civil action could not ‘be regarded as an effective remedy in the context of claims brought under art. 2 of the Convention’. Goncharuk v. Russia, App. No. 58643/00, Eur. Ct. H.R., Judgment of 4 October 2007, para. 53; Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 109. The Chamber held that a domestic remedy which could merely result in an award of compensation was not a proper avenue of redress or one capable of discharging from the respondent State its obligation to set up a criminal-law mechanism commensurate with the requirements of art. 2 of the Convention. Id. at para. 93. The Court held that the procedural obligation imposed on Contracting States under art. 2 of the Convention to set up an efficient judicial system which, under certain circumstances, must include recourse to the criminal law was ‘based on the—more general—obligation under art. 13, and requires an “adequate and effective” domestic remedy in respect of the violation alleged allowing the appropriate national authority both to deal with the substance of an “arguable complaint” and to grant appropriate relief for the said violation’, id. at para. 90.

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had not been provided with ‘appropriate redress’.116 It is unsurprising that this broad reading of art. 2 often leads the Court to the conclusion that it is unnecessary to evaluate the matter under art. 13.117 In other cases the Court has found a violation of both provisions, art. 2 and art. 13, if there was no effective investigation.118 The exact scope of the procedural and remedial obligations and their relationship still requires clarification.119 This is of practical importance for cases in which abuses by private individuals are at issue. In such cases a claim for criminal investigation can be based only on the protective aspect of a substantive right, not on the right to a remedy. In order to show the difference between the concepts (general human rights protection, protection of the victims’ substantive rights, and remedial rights), it would be advisable to distinguish between measures sought in the interests of society at large and those mandated in the interests of the victim. The first concept is broader. It seeks comprehensive criminalization and the enforcement of it for the purpose of prevention. 120 The second concept is more limited and embraces only the aspect necessary for the protection of the individual victim: the investigation. An investigation, if required as a matter of primary protection for victims under art. 2, is intended to re-establish and re-emphasize the validity of the substantive right. The absence of punishment of itself does not constitute a violation of the victim’s right to life. It is submitted that repression is not an element of primary protection with respect to the victim, nor is it a necessary remedy for the victim.121 Therefore, requiring an investigation which is capable of leading to the punishment of the offender in the interest of each individual victim does not persuade. It is submitted that it is only the aspect of investigation which can be substantiated under 116 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 64. 117 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, paras 362–363. 118 Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002; Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, paras 92, 108; Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000; Ergi v. Turkey, App. Nos 66/1997/850/1057, 1998-IV Eur. Ct. H.R., Judgment of 28 July 1998, 1751. But see X. and Y. v. The Netherlands where the Court, after finding a violation of art. 8, concluded that it did not have to examine ‘the same issue’ under art. 13. X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 36. 119 For the uncertainty in the jurisprudence of the European Court with regard to art. 13, see P. van Dijk & G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights 696 et seq. (3rd edn, 1998). 120 The European Court of Human Rights in its more recent judgments again deals with aspects of criminal procedure under art. 2 predominantly as a matter of general human rights protection. It asks for effective criminal procedures in order to prevent an atmosphere of impunity which could give rise to further crimes. However, there are also cases in which the Court still mixes the notion of remedy with that of general human rights protection. See Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 56. 121 See below Chapter 6, section 3.1.B.

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arts 2 and 13. Those aspects of criminal proceedings relating to sanctions are exclusively matters of general human rights protection.

F. Humane treatment The European Court of Human Rights introduced another aspect which may become relevant in impunity cases. It follows an approach adopted earlier by the Inter-American Court of Human Rights122 and was developed in disappearance cases. In some of those cases the European Court of Human Rights acknowledged that the failure to investigate could amount to inhuman treatment of the victim’s next of kin.123 To constitute inhuman treatment contrary to art. 3, the suffering by the next of kin must go beyond the emotional distress inevitably caused to relatives of a victim. 124 One example in which this was accepted was the case of Cyprus v. Turkey where Turkish authorities had failed to undertake any investigation into the circumstances surrounding the disappearance of missing persons.125 The Court acknowledged the prolonged state of acute anxiety suffered by the victims’ families. The silence of the authorities was categorized as inhuman treatment.126 In Akhiyadova v. Russia the Court took issue with the insufficient criminal investigation of a disappearance. Since the complainant was a close relative, had witnessed the abduction, had not received any news for over five years or any plausible information as to the fate of the victim, the Court found a violation of the prohibition of inhuman treatment.127 The essence of the violation lay in the inadequate reactions and attitudes of the authorities towards the situation.128 It was mainly the feeling of helplessness caused by the failure to conduct an official investigation which constituted the inhuman treatment. This line of reasoning resembles that of the Inter-American Court’s judgment in Bámaca Velásquez v. Guatemala.129

3. Standards for the conduct of criminal proceedings The European Court has gradually specified several standards for the conduct of criminal proceedings. Some have already been referred to in the outline and justification of criminal measures. The following section will categorize and specify those standards according to the different phases of criminal proceedings. 122 See above Chapter 3, section 3.2. 123 Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, para. 83. 124 Id. 125 Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R., Judgment of 10 May 2001, para. 157. 126 Id. 127 Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, paras 84–85. 128 Id. at para. 83. 129 Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, para. 161 (25 November 2000). See above Chapter 3, section 3.2.

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1. Independent and effective criminal investigation As a matter of procedural protection of the right to life and the prohibition of torture, the Court requires an independent and effective criminal investigation.130 Investigating authorities are expected to act of their own initiative once an allegation of ill-treatment by State officials is brought to their attention.131 The person responsible for the investigation must be independent of those implicated.132 The investigation must be carried out by a different unit than the one implicated in the use of force. It is not sufficient to have only independent supervision of the investigation.133 A lack of hierarchical or institutional connection as well as practical independence is required.134 In Mahmut Kaya v. Turkey the Court criticized that the competence to investigate certain crimes had been removed from the public prosecutor in favour of administrative councils.135 These administrative councils, according to the Court, did not provide an independent or effective procedure for investigating deaths involving members of the security forces because its members were hierarchically dependent on the governor who was also the head of the accused security forces. Similarly, the lack of independence of the National Security Council—the institution which had jurisdiction for the crimes at issue—was regarded as a deficiency.136 The European Court also criticized the former UK complaints system for police abuse as lacking the necessary independence.137 It did not sufficiently protect against the abuse of authority in the view of the Court. In response to this criticism, the Police Reform Act 2002 created an independent police complaints commission. The investigation must seek to establish the circumstances of each case and identify the person responsible. In order to be effective an investigation into the use of force by State authorities must be capable of leading to a determination of whether it was justified in the particular circumstances and, according to the Court, capable of leading to the punishment of those responsible.138 As indicated 130 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 107; Powell v. United Kingdom, App. No. 45305/99, 2000-V Eur. Ct. H.R., Decision on Admissibility of 4 May 2000; Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 102. 131 Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 111 (Grand Chamber). 132 Gülec v. Turkey, Judgment of 27 July 1998, paras 81–82. 133 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 337. 134 Ergi v. Turkey, App. Nos 66/1997/850/1057, 1998- IV Eur. Ct. H.R., Judgment of 28 July 1998 paras 83–84. 135 Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 95. 136 Id. at para. 97. 137 Khan v. United Kingdom, App. No. 35394/97, 34 E.H.R.R. 45, Eur. Ct. H.R., Judgment of 12 May 2000, para. 47. 138 Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 139; Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment

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above, this is not an obligation of result, but of means.139 Not every investigation will necessarily come to a conclusion which coincides with the claimant’s account of events.140 The adoption of all reasonable steps to establish responsibility is all that is owed by the States parties.141 The obligation to investigate killings as a result of the use of force exists irrespective of whether a violation of the right to life is later established.

2. Taking and evaluation of evidence As a matter of effectiveness the European Court requires the investigation into allegations of ill-treatment to be thorough.142 Reasonable steps available to the authorities must be taken in order to secure the evidence.143 There must be a ‘strict scrutiny of all the material circumstances’.144 Any deficiency in the investigation which undermines the ability to identify the perpetrator risks being insufficient.145 In cases of alleged police misconduct a prosecutor must look for corroborating evidence and avoid acting in a deferential manner towards the police.146 Similar to the Inter-American Court of Human Rights, the European Court now relies on specific standards for criminal investigations by elaborating that the ‘authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death . . . Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard.’147 Eye-witnesses need to be questioned personally by the prosecutor if

of 6 July 2005, para. 113 (Grand Chamber); Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 118, with further references; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 324. 139 Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 139; Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 118. 140 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 38. 141 Id. 142 Zelilof v. Greece, App. No. 17060/03, Eur. Ct. H.R., Judgment of 24 May 2007, para. 56. 143 Id. 144 Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 114 (Grand Chamber). 145 Tahsin Acar v. Turkey, App. No. 26307/95, Eur. Ct. H.R., Judgment of 8 April 2004, para. 56 (Grand Chamber). 146 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 44. 147 Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 118; Salman v. Turkey, App. No. 21986/93, 2000-VII Eur. Ct. H.R., Judgment of 26 June 2000, para. 106 (Grand Chamber); Tanrikulu v. Turkey, App. No. 23763/94, 1999-IV Eur. Ct. H.R., Judgment of 8 July 1999, para. 109 (Grand Chamber); Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000, para. 89. See also Cesim Yildirim et al. v. Turkey, App. No. 29109/03, Eur. Ct. H.R., Judgment of 17 June 2008, paras 54 and 57, with further references.

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police officers are alleged to have been involved in ill-treatment.148 The Court emphasizes the need for ‘objective evidence’ apart from interrogations.149 Thus, in cases of alleged ill-treatment of detainees there needs to be a proper medical examination by a forensic doctor who has specialist training and formal and de facto independence.150 This is all required in order to maintain the rule of law and to prevent any appearance of collusion with or tolerance of unlawful acts.151 That this leads the Court to a particularly detailed analysis of police investigations is evidenced by the case of Ramsahai and Others v. The Netherlands. There the Court criticized that the hands of two police officers had not been tested for gunshot residue, there was no report of an examination of their weapons, the autopsy report did not include any drawings or photographs showing entry and exit wounds, and there had been no reconstruction of the incident.152 The Court concluded that the investigation into the death of the victim had been inadequate and therefore in violation of art. 2.153 Not only the crime itself but also the underlying intention needs to be investigated: if there are allegations of racial motives for a crime the investigation needs to reflect society’s condemnation of racism and ethnic hatred.154 It is necessary in law to make a distinction between the excessive use of force and racist killings and also in the practice of official investigations.155 This duty is derived from the procedural obligation of the affected right (i.e. right to life) and from art. 14.156 State authorities have the duty to take all reasonable steps to unmask racist motives.157 They must collect and secure all relevant evidence, explore all practical means of discovering the truth, and deliver fully reasoned, impartial, and objective decisions, without omitting suspicious facts that may indicate racially induced violence.158 For example, if there are indications of a racial motive, it is necessary to establish whether the State agent accused of the misconduct has been involved in previous incidents of a similar nature or previously accused of displaying racist sentiments.159 The purpose of this is to maintain the confidence of minority 148 Zelilof v. Greece, App. No. 17060/03, Eur. Ct. H.R., Judgment of 24 May 2007, para. 62. 149 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 43. 150 Id. 151 Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 119. 152 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 326. 153 Id. at para. 332. 154 Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 160 (Grand Chamber). 155 Id. 156 Id. at para. 161. 157 Id. at para. 160. 158 Id. 159 Id. at para. 167.

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groups in the ability of the authorities to protect them from the threat of racial violence.160 The investigating authorities should avoid any selective or inconsistent approach to the assessment of evidence.161 In Zelilof v. Greece, for example, the Court criticized the incomplete gathering of evidence and disapproved of the assessment of the evidence.162 Differing standards had been applied by the investigating authorities for the testimonies of civilians and the testimonies of the police. The latter had been considered to be more credible despite the fact that both parties had been involved in the events. The Court asked for consistent standards for the evaluation of evidence including testimony.163

3. Expedience of investigation The European Court of Human Rights requires the criminal investigation to be prompt and reasonably expeditious.164 The judicial system must operate effectively in practice within a certain time span so that the courts can complete their examination of the merits of each individual case.165 A time span of seven years between the wilful ill-treatment of a victim by police officers and their conviction was held to be in violation of art. 2.166 The reason for this is to maintain public confidence in the rule of law and prevent any appearance of collusion.167 Witnesses and potential perpetrators should be separated and questioned immediately in order to reduce the risk of collusion.168 In the case of Ramsahai and Others v. The Netherlands the Court criticized that fifteen and a half hours had passed before the State Criminal Investigation Department became involved in the investigation of excessive police force.169

160 Id. 161 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 44. 162 Id. at para. 60. 163 Id. 164 Selmouni v. France, App. No. 25803/94, Eur. Ct. H.R., Judgment of 28 July 1999, paras 78–79 (Grand Chamber); Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002, para. 72; Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 119, with further references. Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, para. 77. 165 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 53. 166 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 59. 167 McKerr v. United Kingdom, App. No. 28883/95, 2001-III Eur. Ct. H.R., Judgment of 4 May 2001, paras 111–115; Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 119. 168 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 326. 169 Id. at paras 334, 339.

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4. Transparency There must be sufficient public scrutiny in respect of an investigation.170 This, too, is to ensure public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion with or tolerance of unlawful acts.171 The degree of public scrutiny may vary from case to case. What is necessary is a procedure which sufficiently obviates the danger of a cover-up by State authorities.172 In Ramsahai and Others v. The Netherlands the Court considered it sufficient that the victim’s next of kin had access to the investigation file and were able to participate in the proceedings in which the decision not to prosecute was challenged.173 It was neither necessary to open the proceedings to the public nor to make public the decision of the Court.174

5. Trial and punishment In Öneryildiz v. Turkey the Grand Chamber explained that in cases of unlawful taking of life not only the investigation but also the entire proceedings must satisfy the requirement of the positive obligation to protect lives by law.175 This also applies to the trial stage. This indicates that the Court is increasingly seeking that not only allegations of misconduct are investigated but also that justice is actually done. That the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives was also stressed by the Court in Nikolova and Velichkova v. Bulgaria.176 In order to ensure the rule of law, it called upon States not to allow life-endangering offences to go unpunished.177 The judicial system must ensure that criminal sanctions are imposed. Accordingly, State authorities must be resolute in sanctioning those responsible for serious human rights violations.178 The Court in recent cases has therefore begun to scrutinize the actual application of criminal law at the trial stage. In Öneryildiz v. Turkey the Grand Chamber criticized the choice of law by the domestic court. The conduct of the authorities 170 Id. at para. 353; Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, para. 78. 171 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 353. 172 Id. at para. 354. 173 Id. 174 Id. 175 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 95 (Grand Chamber). 176 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 57. 177 Id. 178 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 96, 115 (Grand Chamber); Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 40.

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had been evaluated only under a provision concerned with negligence in the performance of duty and not as a life-endangering act. The proceedings, according to the European Court of Human Rights, did not secure the ‘full accountability’ of the State officials and were held to be in violation of the right to life.179 In Nikolova and Velichkova v. Bulgaria the Court dealt with the length of sentence.180 It analysed whether sentences ‘were sufficient to discharge the authorities’ positive obligations under art. 2 of the Convention’ so that the deterrent effect of the judicial system was not undermined.181 In cases of manifest disproportion between the gravity of a crime and the punishment imposed the Court will intervene.182 With this recent development the prior assertion that the conduct of criminal proceedings is not an obligation of result,183 is losing ground. The Court is increasingly concerned with the proper administration of criminal justice. It seeks to ensure that those responsible for serious human rights violations serve an adequate sentence as a matter of general human rights protection. The Court explains this undertaking by its aim to ensure the practical and effective implementation of the Convention.184 According to this new jurisprudence, States parties are required to ensure that perpetrators of serious human rights violations receive a sentence which reflects the severity of the crime.

6. Involvement of victims in criminal proceedings Apart from the right to initiate criminal proceedings, victims and their families must be involved in the procedure to the extent necessary to safeguard their legitimate interests.185 Complainants must be heard in person186 and have effective

179 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 96, 117 (Grand Chamber). 180 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, paras 60–62. 181 Id. at para. 60. 182 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 116 (Grand Chamber); Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 62. 183 See Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002, para. 71; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 324; Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 139; Bazorkina v. Russia, App. No. 69481/01, Eur. Ct. H.R., Judgment of 27 July 2006, para. 118; Cesim Yildirim et al. v. Turkey, App. No. 29109/03, Eur. Ct. H.R., Judgment of 17 June 2008, para. 52; Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 38. 184 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 61. 185 Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Eur. Ct. H.R., Judgment of 14 March 2002, para. 73; Anguelova v. Bulgaria, App. No. 38361/97, Eur. Ct. H.R., Judgment of 13 June 2002, para. 140. 186 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 44.

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access to the investigation procedure.187 They must be informed of any significant development.188 The investigation of a killing needs to uncover the facts for the victim’s relatives.189 They must be informed of the decision not to prosecute and be given access to the investigation and court documents in order to participate effectively in proceedings aimed at challenging the decision not to prosecute.190 A Court needs to consider a complainant’s version of events,191 and this should be mentioned in the final decision to show that it has been considered. However, the Court recognizes that an investigation may involve sensitive issues with prejudicial effects for private individuals or other investigations.192 Thus, there is no right to have access to an ongoing investigation. Such access may be provided at other stages of the procedure.193 Neither is there an obligation by State authorities to satisfy every request by a victim for a particular investigative measure.194 The European Commission on Human Rights also rejected a right of a victim’s mother to make a witness statement in the sentencing phase.195

7. Enforcement of criminal sentences Not only must States parties criminalize and investigate serious human rights abuses. There are also duties with regard to the enforcement of criminal convictions. In recent cases the Court has criticized the suspension of criminal sentences as rendering the protection of the right to life ineffective.196 In Mastromatteo v. Italy two convicted criminals committed a murder while on leave from prison. The applicant claimed that the prison leave gave rise to a failure adequately to protect the victim’s life. The matters at issue were an obligation to afford general protection to society against the potential acts of a person serving a prison sentence for a violent crime and the determination of the scope of

187 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 107; Case of Beitiyeva and X v. Russia, App. Nos 57953/00 and 37392/03, Eur. Ct. H.R., Judgment of 21 June 2007, para. 156 with further references. 188 Akhiyadova v. Russia, App. No. 32059/02, Eur. Ct. H.R., Judgment of 3 July 2008, para. 58. 189 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999. 190 McKerr v. United Kingdom, App. No. 28883/95, 2001-III Eur. Ct. H.R., Judgment of 4 May 2001, paras 111–115; Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 349. 191 Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 44. 192 Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007, para. 347. 193 Id. 194 Id. at para. 348. 195 McCourt v. United Kingdom, App. No. 20433/92, 15 E.H.H.R. 110; Eur. Comm’n on H.R., Decision of 2 December 1992. 196 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 116 (Grand Chamber); Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 63.

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this protection.197 The Court explained that the protection of society was one of the essential functions of a prison sentence because it prevented criminals from re-offending and causing future harm.198 However, the Court also recognized the legitimate aim of the State to progressively reintegrate persons sentenced to imprisonment.199 Analysing the Italian detention system, the Court concluded that it provided sufficient protective measures for society.200 The authorities had to do ‘all that could reasonably be expected of them to avoid a real and immediate risk of life’.201 In the instant case the authorities had complied with this obligation and the Court concluded that the prison leave did not give rise to a State failure to protect the right to life of the victim.202 This case is similar to the above-mentioned case of Mahmut Kaya v. Turkey where the general deficits in the criminal system were criticized as a failure to deter abuses. In both cases the criminal system was assessed in order to determine whether it provided effective protection of the right to life against future crimes. In Mastromatteo v. Italy it was informed by the concept of preventing crimes by the same criminal. In Mahmut Kaya v. Turkey the prevention of crimes by the same and other potential perpetrators was at issue.

4. The role of the European Court of Human Rights The survey shows that the Court has developed detailed requirements for the conduct of criminal proceedings. Its main focus is still on the conduct of investigation but, gradually, it also develops standards for the trial and sentencing phase. The duty to conduct criminal proceedings, according to the current interpretation by the European Court of Human Rights, not only includes the taking of all necessary evidence, but also its proper evaluation. The European Court of Human Rights thus follows to some degree the route taken by the American Court of Human Rights. While early cases had been concerned with systematic failures of criminal justice, more recent cases are concerned with singular incidents. The Court seems to be motivated to ensure that justice is done in each particular instance of crime. This has far-reaching implications for the future role of the Court. Though the Court maintains that it is not its role either to address issues of domestic law concerning individual criminal responsibility or to determine the appropriate 197 Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002, para. 69. 198 The Court thereby acknowledges the preventive element of punishment and links it to the positive obligations arising under art. 2. Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002, para. 72. 199 Id. 200 Id. 201 Id. at para. 74. 202 Id. at paras 76–77.

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sentence of an offender,203 its jurisprudence points into another direction: it criticizes that offenders have been tried on the basis of lenient criminal laws204 and takes issue with the length of sentences imposed—albeit so far only in extreme cases.205 The Court has usually found violations in cases of serious shortcomings and bias in the criminal procedure.206 But the more sophisticated the standards for criminal proceedings, the more the Court will be concerned with the supervision of criminal proceedings with the aim of ensuring the proper administration of justice.207 Whether this is an adequate role for a human rights court which is already overwhelmed by the number of pending cases is extremely doubtful. Rather, the Court should limit itself to analysing serious deficits which are systemic in a criminal justice system. Only in such cases can the argument be made that the deficits in criminal proceedings render the protection against new abuses ineffective.208

5. Amnesties The European institutions, differing from the Human Rights Committee and the Inter-American institutions, did not have the opportunity to develop a detailed jurisprudence on amnesties. The call for criminal measures in ordinary cases should not be taken as evidence for an uncompromised formula which applies equally in exceptional circumstances. There is little case law in this respect. In Dujardin v. France the European Commission of Human Rights was called upon to deal with an amnesty which had been enacted by France in 1989 for New Caledonia in 203 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 96, 116 (Grand Chamber); Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005VII Eur. Ct. H.R., Judgment of 6 July 2005, para. 147 (Grand Chamber); Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 57. 204 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, paras 96, 117 (Grand Chamber). 205 Id. at para. 116; Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 62. 206 In Nikolova and Velichkova v. Bulgaria it was the seven-year delay in criminal proceedings together with the most lenient penalty, the later suspension of the sentence, and the absence of disciplinary measures which led the Court to find a violation of art. 2. Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, para. 63. In Nachova et al. v. Bulgaria the Court held that the offender had been effectively shielded from prosecution. Relevant matters had not been examined by the investigating authorities, a number of vital and obvious investigative steps had not been taken, and highly relevant facts had been ignored. Nachova et al. v. Bulgaria, App. Nos 43577/98 and 43579/98, 2005-VII Eur. Ct. H.R., Judgment of 6 July 2005, paras 114– 116 (Grand Chamber). 207 See e.g. Case of Ramsahai and Others v. The Netherlands, App. No. 52391/99, Eur. Ct. H.R., Judgment of 15 May 2007. 208 Singular incidents of insufficient criminal proceedings do not have the same impact on general human rights protection within a country as systemic deficits.

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preparation for the granting of self-determination.209 The amnesty covered several murders resulting in the discontinuation of criminal proceedings and a failure to reconstruct the facts. The complaint was brought by relatives of the victims who claimed that the amnesty ending the judicial investigation and trial had violated the right to protection of life.210 The Commission denied a violation of the Convention by the enactment of the amnesty law. The amnesty was considered in the light of the special circumstances in New Caledonia. The Commission stressed the exceptional character of the amnesty law and its aim of resolving conflicts between the various communities of the islands.211 It left the State party with a margin of appreciation to determine the measures taken to achieve this end and explained: The State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law.212

In the case of New Caledonia, the Commission considered such a balance to have been achieved.213 The underlying idea was that providing for reconciliation was a legitimate aim which justified certain restrictions regarding the punishment of offenders.214 The Commission thereby clarified that the procedural protection of the right to life does not require punishment in every case. Only if there is a general practice aimed at the systematic prevention of the prosecution of murderers is the right to life infringed. That punishment is not required at all costs was also acknowledged by the European Court of Human Rights in the above-mentioned case of Mastromatteo v. Italy.215 The case concerned not an amnesty but allegations of insufficient enforcement of criminal punishment. Nonetheless, there are interesting parallels. The Court, on the one hand, pointed out that a prison sentence is, among other things, for the protection of society. On the other hand, it also recognized the legitimate aim of the State in progressively reintegrating those who have been imprisoned.216 By permitting early measures of social reintegration during the sentence phase, 209 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (244) (2 September 1991). 210 Id. 211 Id. at pp. 243–244. 212 Id. at p. 244. 213 Id. 214 This may be the reason why the Commission in its official summary of the case ascertained that: ‘The obligation to protect the right to life is not limited for the High Contracting Parties to the duty to prosecute those who harm life but implies positive preventive measures, without requiring the prevention of every possibility of violence.’ In other words, the Commission derived a duty to prosecute arbitrary killing from the right to life. At the same time it indicated that this obligation is not absolute. 215 Mastromatteo v. Italy, App. No. 37703/97, Eur. Ct. H.R., Judgment of 24 October 2002. 216 Id. at para. 72.

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even in case of violent crime,217 the Court clarified that the preventive aspect of punishment is not considered to be absolute and needs to be balanced against other legitimate interests. The idea of the European institutions that the call for criminal prosecution may be compromised even when crimes which affect non-derogable rights are at issue is noteworthy. This differs from the strict concept of the Inter-American institutions.218 In Dujardin v. France the Commission acknowledged that its interpretation of art. 2—especially the determination of the question of what is meant by the requirement that the right to life shall be protected by law—had to be informed by the fact that it was one of the ‘most important rights in the Convention, from which no derogation is permissible, even in times of public emergency’.219 Nonetheless, the Commission did not find a violation of art. 2. It thereby clarified that there is a difference between the substantive right and its procedural protection. Even though the right to life cannot be derogated from in times of public emergency, a State may abstain from criminal prosecution in order to resolve internal conflicts according to this concept. The statement by the Commission that any amnesty law as a matter of policy may be adopted if a balance is struck between legitimate State interests and the protection of the right to life, demonstrates that the decision to adopt an amnesty is regarded as belonging in the political sphere.220 The decision would not be obstructed unless there was a clear imbalance with the protection of human rights. It represents the widely held belief that decisions regarding punishment are not solely judicial but may also be influenced by political considerations. There is, however, an unqualified barrier. Where an amnesty is intended to shield offenders from accountability and therefore creates an atmosphere of impunity giving rise to further violations, there is a failure by the State to protect the right to life which may be claimed by individuals.221 Though the Court did not have to deal with the issue of amnesty, this presumption can be derived from cases where criminal authorities have been criticized for being reluctant to examine cases of alleged life-endangering behaviour. The Court pointed out that this reluctance served merely to grant impunity to those responsible and therefore was in violation 217 Id. at para. 72. The Court asked whether the murder which resulted from the reintegration measures resulted from a failure on the part of the national authorities to ‘do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge’, id. at para. 74. 218 Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), 2001 Inter-Am. Ct. H.R. (ser. C) No. 75, para. 41 (14 March 2001); Lucio Parada Cea et al. v. El Salvador, Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95 doc. 7 rev. para. 115 (27 January 1999). 219 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (243) (2 September 1991). 220 Id. at p. 244. 221 Here the preventive rationale applied in Mahmut Kaya v. Turkey can also be applied. See Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, para. 85.

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of the Convention.222 That the shielding of criminals is illegitimate and could not justify the failure to prosecute was also indicated by the Commission. In Dujardin v. France it held that amnesty for murder ‘in itself does not contravene the Convention unless it can be seen to form part of a general practice aimed at the systematic prevention of prosecution of the perpetrators of such crimes’.223 In referring to the reconciliatory aspect of the amnesty, the Commission distinguished between the purpose and the result of an amnesty. Though an amnesty may result in lack of punishment, it may be justified if this is not its intended purpose. There is an interesting parallel here with the Rome Statute of the International Criminal Court. The Statute recognizes domestic proceedings which are not used for the ‘purpose of shielding’ the accused from criminal responsibility and therefore allows for alternative measures if the State is considered to have dealt responsibly with past events.224 The underlying idea is that the international community will intervene only if a State abuses its powers to shield criminals from justice. In sum, the Commission in Dujardin v. France clarified that the preclusion of criminal punishment by an amnesty was not per se in violation of the Convention. The procedural protection of substantive rights, according to the Commission, did not require punishment in each particular case. Individual rights of victims and their families were not regarded as obstacles to the proclamation of an amnesty. An amnesty was held to be in violation of the Convention only if it rendered the protection of human rights ineffective. It should be noted that the amnesty in Dujardin v. France was evaluated only under art. 2 of the European Convention. The right to judicial protection or the right to an effective remedy was not considered to be at issue. The doctrine on victims’ rights in criminal procedure developed only after the Commission had decided the case. At the time of the decision the fact that no criminal prosecution could be initiated by the victims’ families was not deemed to be a violation of the Convention. On the contrary, the Commission held that the right to access to a court pursuant to art. 6 did not include the right to initiate criminal prosecutions.225 What is striking is that the Commission, in the interest of conflict-resolution, did not require any form of alternative accountability. The amnesty was accepted despite the fact that no reconstruction of the facts had taken place. It could have been argued that a truth commission had been necessary to satisfy the need for 222 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 109. 223 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (243) (2 September 1991). 224 See art. 17 Rome Statute. For an examination of the Statute see Anja Seibert-Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, 7 Max Planck UNYB 553 (2003). 225 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (244) (2 September 1991).

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some form of accountability while nevertheless constituting an effective, perhaps even preferable, measure to resolve the conflict. That the Commission did not take this approach shows the broad deference given to the State party at this point in time. The evaluation and choice of measures in the resolution of conflicts were largely left to the State. It is, however, doubtful whether the same decision would currently be taken, now that the right to an official investigation appears to be firmly established. In Kaya v. Turkey the Court observed that the procedural protection of the right to life inherent in art. 2 of the Convention secures accountability by providing for some form of independent and public scrutiny.226 Though this case did not concern an amnesty but de facto impunity, it indicated that an investigation was at least regarded as a necessary requirement for the protection of the right to life. If an amnesty results in the discontinuation of any form of investigation, the right of the victim to have an investigation is affected. Though the Court has not proclaimed a comprehensive duty to prosecute, an amnesty which results in the discontinuation of criminal proceedings, without providing for alternative measures, is arguably not in line with the Court’s repeated calls for accountability.227 Whether a truth commission as an alternative to prosecution would satisfy the requirements under the Convention remains to be determined. While the Commission dealt with the question of general human rights protection justifying the call for punishment in the interest of reconciliation, there is currently more emphasis on victims’ rights. Taking into account that the Court now calls for an investigation capable of leading to the punishment of those responsible for serious human rights violations in the interest of the affected victims, it is doubtful whether an investigation by a truth commission satisfies this requirement. Such investigations are not intended to lead to criminal punishment of those responsible. Admittedly, a truth commission combined with a conditional amnesty may still lead to criminal prosecution in cases where alleged perpetrators fail to cooperate in the disclosure of the crimes committed as was the case in South Africa. But a truth commission is not conducted with the intention of punishing offenders at criminal law. Often the purpose of such a mechanism is to foster reconciliation by bringing to light the alleged offences in exchange for the granting of criminal immunity. Whether this form of accountability, which is limited to the publication of facts, is the one envisaged by the Court is unclear. It ultimately depends on the question whether the rights of the victim are satisfied by such forms of accountability and 226 Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 87. 227 In Öneryildiz the Court held that some form of accountability is necessary. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 109. In Gül the Court criticized the lack of accountability of the perpetrators as an additional shortcoming in the procedures which together with other shortcomings in the investigation led to a violation of art. 2. Gül v. Turkey, App. No. 22676/93, Eur. Ct. H.R., Judgment of 14 December 2000, para. 90.

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whether they can be compromised. The more the concepts of criminal accountability are read into the victim’s rights, the greater the prospect that the proclamation of an amnesty covering serious human rights violations will diminish. Though the Commission allowed for exceptions from criminal prosecution in the interest of general human rights protection it is unclear whether the Court is prepared to make similar concessions in the context of victims’ rights.228

6. Conclusion and outlook The jurisprudence of the Court has undergone remarkable development in the past few years towards the assumption of various criminal law obligations. Apart from the duty to investigate, States parties incur several other obligations to address human rights violations. There is undoubtedly a trend towards gradually assuming additional criminal law obligations under the European Convention. Though the Court usually allows States parties a margin of appreciation for the implementation of human rights, this is not the case with regard to particularly serious abuses. In these cases States are obliged to criminalize the offences and to set up an effective judicial system. This was affirmed by the Court with regard to the intentional taking of life, serious instances of negligent omission to protect life, and serious breaches of personal integrity (including torture and essential aspects of private life). Especially vulnerable persons, such as children and mentally handicapped persons, deserve protection by means of criminalization. The European Court of Human Rights asks for criminalization even of private conduct if such serious abuses are at issue. This is in order to guarantee the effective enjoyment of fundamental rights. Whether the judicial system must have recourse to criminal law depends on the seriousness of the offence, including the mens rea of the offender. In cases of less serious human rights violations, as for example in medical negligence cases, administrative or civil remedies may be sufficient. The emerging doctrine of protection through criminal law puts a new twist on criminal law. Traditionally the enactment of criminal law was considered to be at the discretion of the domestic government. It was for the government to decide whether it wanted to criminalize abusive behaviour. Human rights law was relevant only to ensure the rights of the accused. Now, with the idea that criminal law must protect the enjoyment of human rights, governments can be compelled to enact the requisite criminal law. So far, the Court has dealt with relatively clear-cut cases of murder and rape which are generally already criminal in domestic law. In X. and Y. v.The Netherlands, for example, the Court criticized only the lack of power of the victim to initiate criminal proceedings for a crime which was already enshrined in domestic criminal law. But future cases may challenge other deficits in domestic 228 If a right to justice was accepted under art. 2 it would be difficult to argue that this right can be compromised in the interests of society as a whole.

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criminal law, such as the absence of laws criminalizing the specific crime of torture (which is often only dealt with under general crimes) or of serious environmental misconduct. The Court will have to determine to what extent criminalization is required to protect human rights in different areas of society. The idea that criminal law must ensure, for example, the right to life, may also become relevant for defences. After all, it is not only criminalization but also the application of the defence which determines the responsibility of an offender. Arguably, a broad interpretation of the concept of self-defence, distress, or necessity leaves offenders immune from prosecution and renders the protection of life futile.229 To satisfy the Court, it might be necessary to assess the entirety of domestic criminal law—including the rules of participation, defences, etc.—to determine whether it provides for the effective enjoyment of the Convention rights. This shows how far-reaching the consequences of the new doctrine could turn out to be. Although the Court has not engaged in a comprehensive review of domestic criminal law, British courts on the basis of the Human Rights Act and the European Court’s jurisprudence in A. v. United Kingdom, have already begun this process. They have departed from the European Court’s mandate that criminal law must ensure that perpetrators of serious human rights abuses are held accountable and have applied this to UK criminal law. For example, in R. v. H the Court of Appeal relied on the duty to protect by means of criminal law and limited the ambit of the common law defence of reasonable chastisement.230 It thereby extended the scope of criminal responsibility. UK courts have even examined tests for the evaluation of evidence to determine whether they comply with the obligation to put in place effective criminal law under the European Convention.231 However, it is doubtful whether the European Court of Human Rights should engage in such a comprehensive review of criminal law. The duty to protect provides only for minimum standards;232 it does not set out a blueprint for criminal legislation. Regardless of the necessary standards for criminal legislation, the enactment of criminal law provisions alone will not suffice according to the European Court of Human Rights. Those provisions must be backed up by law-enforcement machinery 229 Ben Emmerson, Andrew Ashworth, & Alison Macdonald, Human Rights and Criminal Justice 751 (2nd edn, 2007). 230 R v. H [2001] EWCA Crim 1024, [2002] 1 Cr. App. R. 7 (Eng.) 231 R (Armani de Silva) v. Director of Public Prosecutions [2006] EWHC (Admin) 3204, para. 41 (Eng.). 232 The argument has been made that domestic criminal law should mirror the defence standards developed by the European Court of Human Rights. Ben Emmerson, Andrew Ashworth, & Alison Macdonald, Human Rights and Criminal Justice 750, 756 (2nd edn, 2007). But these standards were developed to determine State responsibility for the taking of life and do not mean that States parties must criminalize the acts accordingly. State responsibility should not be confused with individual criminal responsibility. See the Gibraltar Case where the European Court of Human Rights distinguished between State responsibility and individual criminal responsibility and held that the protective obligations under the Convention go beyond criminal responsibility. McCann and Others v. United Kingdom, App. No. 18984/91, Eur. Ct. H.R., Judgment of 27 September 1995, para. 173.

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to prevent, suppress, and punish breaches of criminal law. The following obligations are relevant for the implementation of criminal law: An effective independent judicial system is necessary in order that those who are responsible can be determined and held accountable. The European Court of Human Rights also analyses the criminal procedure for its efficiency. It scrutinizes the independence of the institutions involved in criminal proceedings in order to determine whether there are deficiencies which undermine protection against further abuses. In cases of intentional killing, torture, corporal punishment, rape, purposeful destruction of homes, and unlawful deprivation of liberty, a failure to conduct an effective investigation has led the Court to find a violation of the Convention. Especially in cases of unlawful killing, an investigation must take place regardless of whether the offence was caused by officials or private individuals.233 When the Court speaks of a duty to criminalize serious human rights violations in individual cases and when it refers to a duty to have recourse to criminal law, it is possible to mistake this as an assumption of an individual right of the victim to have his or her perpetrator convicted. But the Court still maintains its assertion that there is no such individual right. This can be explained only by reference to the different rationales applied by the Court for the assumption of criminal law obligations: criminalization and the establishment of a law-enforcement machinery are sought in order to prevent repetition.234 This is an obligation which serves to aid prevention and thus is in the interests of society as a whole. However, the rights of the individual victim in the prosecution are limited because they do not extend to criminal conviction. When the Court requests an investigation capable of leading to the punishment of those responsible it has been cautious not to proclaim an individual right of the victim for criminal punishment of the perpetrator.235 In those cases in which a lack or inadequacy of prosecution was criticized as contrary to the victim’s rights it was not because of the lack of punishment. Especially in the Turkish cases, it was generally the failure to conduct an independent official investigation which was held to be in violation of the victim’s rights. In X. and Y. v. The Netherlands it was not the failure to punish but the lack of initiation of criminal proceedings which was held to be a violation of the victim’s rights.236 It is thus the 233 With regard to the death of patients in the care of the medical profession, see Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility of 26 October 1999. The function of this judicial inquiry system is to make the facts known to the public and the relatives of the victims. See also Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 49. 234 Dissenting Opinion of Judge Ress, VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, paras 1–2. 235 Though the Commission in the above-cited decision in Dujardin v. France spoke of a duty to prosecute, it did not refer to a corresponding individual right. Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (2 September 1991); Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 90. 236 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985.

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aspect of bringing to light a violation rather than criminal accountability which leads the Court to assume a right of the victim to a criminal investigation. The emphasis is clearly on the duty to investigate allegations of misconduct. The Court has not accepted that punishment is required in the interest of a particular victim.237 The difference between the concept of prevention and that of remedy is sometimes not easy to discern. The Court frequently refers to the preventive aspects of criminal law at the same time as it analyses whether the victim’s rights have been infringed.238 The more the notions of criminal accountability are read into the victim’s rights, the more the difference between the concept of prevention and the concept of remedy is blurred. The most recent judgments of the European Court indicate that there may be a shift into this direction. The Court was confronted with the question whether the absence of criminal proceedings in cases of negligent killings violated the right to life in the cases of Calvelli and Ciglio as well as in VO v. France. Though the Court denied this, it used the term ‘criminal-law remedy’.239 This could be taken as an indication that the Court is willing to assume a right to have certain serious violations of the right to life prosecuted. It held that under art. 2 (right to life) it must, ‘examine, from the standpoint of the effectiveness of existing remedies, the protection which the applicant was afforded in seeking to establish the liability’ of the accused (emphasis added).240 The Court then went on to the question whether only a ‘criminal remedy’ would have been capable of satisfying the requirements of art. 2.241 While the majority opinion referred to the criminal proceedings as a remedy, Judge Ress disagreed. In his dissenting opinion he applied the deterrence rationale and left to the State the choice between strict disciplinary measures and protection of the criminal law against unintentional homicide.242 It seems that there is no unanimity within the Court as to whether there is an individual right to criminal justice.243 237 Even if the Court holds that a ‘criminal-law remedy’ may be required in cases of particularly serious human rights violations it has never assumed an individual right to punishment. See VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, paras 89–90. 238 In Öneryildiz v. Turkey the Court mixed the concepts. It assumed a procedural obligation under art. 2 of the Convention to set up an efficient judicial system which, under certain circumstances, must include recourse to the criminal law, based on the implementation of investigations. It explained that this obligation ‘is based on the—more general—obligation under art. 13, and requires an “adequate and effective” domestic remedy in respect of the violation alleged’. Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 18 June 2002, para. 90. 239 VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, para. 90. 240 Id. at para. 87. 241 Id. Since the Court in Calvelli and Ciglio and in VO v. France concluded that administrative measures satisfied art. 2 it did not elaborate on these questions. Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2000; VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, para. 94. 242 Dissenting Opinion of Judge Ress, VO v. France, App. No. 53924/00, Eur. Ct. H.R., Judgment of 8 July 2004, paras 1–2 and 9. 243 This is evidenced by the following statement: ‘Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently . . . the Court has stated on

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There is an urgent need to resolve these issues and to clarify the legal reasoning behind them. This became evident in Nikolova and Velichkova v. Bulgaria which showed that current pronouncements can barely be reconciled with the traditional denial of a right to justice. In that case Bulgaria had contested the competence of the victim to challenge the inadequacy of criminal proceedings against his perpetrators.244 Bulgaria had relied on the decision of the Court in Caraher v. United Kingdom245 that applicants who had received compensation for breach of their Convention rights could no longer claim to be victims of a violation. The Fifth Section of the Court rejected this argument by pointing out that art. 2 requires effective criminal proceedings in cases of wilful ill-treatment.246 According to the Court ‘in cases of wilful ill-treatment resulting in death the breach of Art. 2 cannot be remedied exclusively through an award of compensation’.247 The inadequacy of the proceedings against the police officers and the suspension of the sentences were considered to be in violation of the procedural obligations of the right to life. This led the Court to conclude, and this was a new development, that the victim of the crime had not been provided with appropriate ‘redress’.248 The failure in criminal proceedings rendered the applicants as victims of a violation under the European Convention. The difference with previous cases is as follows: while the Court had so far dealt with criminal prosecution as a matter of general human rights protection in Nikolova and Velichkova v. Bulgaria it was called upon to decide whether the failure to resort to criminal measures (not simply to investigation) affected the individual victim. By considering criminal proceedings and enforcement as remedial measures for the victim, the Court went beyond its earlier jurisprudence which required only investigation as a necessary remedy. Previously, accountability had been considered only as a matter of general human rights protection, not as a remedy for the victim. A closer inspection reveals an inconsistence in the Court’s legal reasoning. On the one hand it argued that criminal proceedings were necessary to deter future ill-treatment and to maintain public confidence in the rule of law.249 In other words, criminal proceedings were sought in the interest of general human rights protection. On the other hand, the Court concluded that insufficient prosecution and punishment of the police officers did not provide the victim with adequate a number of occasions that an effective judicial system, as required by art. 2, may, and under certain circumstances must, include recourse to criminal law’, id. at para. 90. 244 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007. 245 Caraher v. United Kingdom, App. No. 24520/94, 2000-I Eur. Ct. H.R., Judgment of 11 January 2000. 246 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, paras 55–56. 247 See id. at para. 55. 248 Id. at para. 64. 249 Id. at para. 57.

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redress.250 However, the use of deterrence as a rationale for criminal prosecution does not justify the conclusion that an injured party is entitled to seek redress through criminal prosecution. Furthermore, the assertion by the Fifth Section that the victim had not been provided with appropriate redress due to the suspension of imprisonment and the absence of disciplinary measures251 cannot be reconciled with the standing Grand Chamber jurisprudence that there is no right to have offenders prosecuted or sentenced under the Convention.252 As long as the Court held that a victim was entitled only to an official investigation there was no inconsistency. However, now that the Court has begun to read concepts of criminal punishment into the victim’s rights and considers sanctions to be a necessary measure of redress,253 there is no plausible reason why there is no right to have offenders sentenced. Either the Court has to renounce its traditional jurisprudence and assume such a right or it has to limit itself to the assumption of a right to an official investigation. The latter alternative is preferable. While there are good reasons for the assumption that an effective investigation is in the interest of a victim it is difficult to see why punishment should be necessary to protect the victim of a crime against his right to life. Criminal sanctions are not strictly necessary to ensure the victim’s right to life. This is a matter of general human rights protection. Only if the failure to punish leads to further crimes can it be challenged in individual cases.254 Turning to the issue of amnesties, the following observations can be made. Since amnesties for serious human rights violations have been rare in the Council of Europe there is minimal case law on the subject. This case law together with the legal reasoning in other cases indicate that although an amnesty is not per se in violation of the European Convention, there are definite limits. The European Commission of Human Rights was willing to take into account the situation in a country which had led to the proclamation of an amnesty. States parties were accorded a margin of appreciation in the choice of means to resolve domestic conflicts. An amnesty must, however, be exceptional in order not to foster a culture of impunity. The Commission engaged in a balancing act: it allowed for legitimate State interests in resolving internal conflicts. But impunity without proper justification is unacceptable. An amnesty enacted for the sole purpose of shielding criminals from punishment which thereby fosters an atmosphere of impunity cannot be reconciled with the European Convention on Human Rights. 250 Id. at paras 56, 64. 251 Id. at paras 63–64. 252 Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 9 (Grand Chamber). See also Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 70. 253 Nikolova and Velichkova v. Bulgaria, App. No. 7888/03, Eur. Ct. H.R., Judgment of 20 December 2007, paras 55–57. See also Nadrosov v. Russia where the Court considered criminal proceedings and then referred to civil proceedings as ‘other remedies’. Nadrosov v. Russia, App. No. 9297/02, Eur. Ct. H.R., Judgment of 31 July 2008, para. 41. 254 See below Chapter 6, section 3.1.A.b.

5 Universal Human Rights Conventions Explicitly Requiring Prosecution 1. The scope of criminal obligations There are several universal human rights conventions explicitly providing for the prosecution of specific human rights violations, such as the Genocide Convention, the Torture Convention, the Conventions on Disappearance, Racial Discrimination, Slavery, Traffic in Persons, Exploitation of Prostitution, and Apartheid. These conventions specify concrete obligations for States parties to criminalize, prosecute, punish, and extradite. However, the scope of these provisions varies. A closer inspection of the nature of the crimes, the necessary degree of public involvement, the modes of commission, and the particular steps to be taken by States including the required penalties show that these provisions are not based on a general homogenous concept which could also be applied to other serious human rights violations.

1. The Convention on the Prevention and Punishment of the Crime of Genocide The Convention on the Prevention and Punishment of the Crime of Genocide was the first universal treaty after the Second World War explicitly requiring its States Parties to punish a crime that was understood as an international crime.1 Pursuant to art. I, the Contracting Parties ‘undertake to prevent and punish’ genocide. The acts constituting genocide are listed under art. II which provides: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 1 Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948 by G.A. Res. 260 A (III) and entered into force 12 January 1951, 9 December 1948, 78 U.N.T.S. 227 [hereinafter Genocide Convention].

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

154 Universal Human Rights Conventions Explicitly Requiring Prosecution (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.2

Article III extends this obligation to conspiracy, incitement, attempt, and complicity which ‘shall be punishable’. The duty to punish is framed to be a comprehensive and indispensable one. Acts of genocide need to be punished whether committed in time of war or in time of peace pursuant to art. I. The obligations under the Convention are non-derogable.3 Not only rulers and public officials but also private individuals ‘shall be punished’ pursuant to art. IV. The meaning of the duty to punish is elaborated on in arts V and VI which require legislation providing for ‘effective penalties’ and trial before a tribunal. The territorial applicability of the duty to punish on first sight seems to be rather open. Article I does not limit the duty to punish to acts committed within the territory of the Contracting Party.4 But art. VI shows that the territorial scope of the duty to punish is limited. It specifies that perpetrators ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. Therefore, the Contracting Parties are not obliged to try in their domestic courts those persons who have committed acts of genocide outside their territory even if they are found in their territory. This was affirmed by the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).5 However, the Court found a violation of art. VI because Serbia and Montenegro had failed to cooperate with the International Criminal Tribunal for the Former Yugoslavia (ICTY).6 This was regardless of the fact that the crime had been committed outside the country. The obligation to cooperate with competent international tribunals is not limited to those States parties on whose territory the crime was committed but also extends to those perpetrators seeking refuge. Otherwise the effectiveness of international criminal prosecution could be undermined. In such cases, the state of refuge itself is not obliged to prosecute but must at least cooperate with the international criminal court. 2 For a detailed account of the convention see John Quigley, The Genocide Convention: An International Law Analysis (2006). 3 The Contracting Parties may denounce the Genocide Convention six months before the expiration of each period of five years pursuant to art. XXIV. 4 Article I generally provides: ‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’ 5 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Judgment of 26 February 2007, para. 442, (last accessed 5 December 2008). 6 Id. at para. 449.

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There is no explicit extradition obligation in the Genocide Convention. The obligation depends on the domestic law of the State party where the culprit is found and, if applicable, on the extradition treaty it has concluded with the requesting State party. However, in art. VII the Contracting Parties pledge not to consider acts of genocide as political crimes for the purpose of extradition and to grant extradition in accordance with their laws and treaties in force. Therefore, if a treaty provides for a duty to extradite, States parties to the Genocide Convention are prevented from declining to do so on the basis of a political offence clause in the treaty. But according to the drafters of the Convention, a State party may still deny extradition of its own citizens.7 The drafters, therefore, left a gap for cases in which a perpetrator commits acts of genocide in a foreign country but is found in his home country because the national State is neither obliged to prosecute nor to extradite.8 Since the duty to punish in art. VI is limited to the States parties in whose territory the acts of genocide were committed there is no obligation of aut dedere aut judicare under the Genocide Convention. But this does not exclude permissive jurisdiction. Courts of non-territorial States, such as those of the perpetrator’s home country, are not prevented from trying persons accountable for genocide.9 There are good reasons for universal jurisdiction for the crime of genocide affording jurisdiction to all States. It does not follow from the text of the Genocide Convention but is now commonly recognized as a rule of customary international law.10 Different from the concept of aut dedere aut judicare, the Genocide Convention establishes primary jurisdiction for domestic courts and requires prosecution by the State party in whose territory the acts of genocide have been committed. For those cases in which domestic punishment might fail, it provides for an 7 This was the answer given by the chairman of the Sixth Committee for cases in which domestic legislation does not provide for the extradition of nationals. U.N. General Assembly, Sixth Committee, U.N. Doc. A/C.6/SR.95, p. 2. See also Nehemiah Robinson, The Genocide Convention: A Commentary 88 (1960); U.N. General Assembly, Sixth Committee, U.N. Doc. A/C.6/SR.94, pp. 8–9 (Representatives of France and Belgium). 8 According to the Sixth Committee of the General Assembly, the non-extraditing State party may punish the perpetrator. Genocide: Draft Convention and Report of the Economic and Social Council in Report of the Sixth Committee, U.N. Doc. A/760, p. 8 (3 December 1948). 9 The drafters agreed to insert in the Committee’s report the following statement: ‘[art. VI] does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State. U.N. General Assembly, Sixth Committee, U.N. Doc. A/C.6/SR.134, p. 717 (2 December 1948). See also Thomas Buergenthal, Dinah Shelton, & David Stewart, International Human Rights 60 (3rd edn, 2002). 10 American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, § 404 (1987); Attorney General of Israel v. Eichmann, 36 Int’l L. Rep. 5 (1968); M. Cherif Bassiouni, Crimes against Humanity in International Law 519–520 (1992). However, the drafters of the Genocide Convention rejected the principle of universality. United Nations Economic and Social Council: Report of the Committee and Draft Convention drawn up by the Committee, U.N. Doc. E/794, pp. 29–33 (24 May 1948). The position after its ratification was that no domestic action could be taken with regard to crimes committed outside the territory of the Contracting Parties. This was left to an international tribunal out of sovereignty considerations. Nehemiah Robinson, The Genocide Convention: A Commentary 32 (1960).

156 Universal Human Rights Conventions Explicitly Requiring Prosecution alternative:11 an international penal tribunal competent to try acts of genocide (art. VI). This was put into practice with the establishment of the ad hoc Criminal Tribunals for Rwanda and the Former Yugoslavia and the International Criminal Court.12 The Genocide Convention allows for discretion with respect to the required penalty. Article V does not provide for specific penalties to be taken by States parties. The drafters envisaged criminal penalties but there is no specific standard for sentences.13 The domestic criminal systems vary, for example, as to the penalty for conspiracy, incitement, attempt, and complicity. Making reference to the respective Constitutions, the Convention leaves room for States parties to adapt the legislation and penalty to their legal system.14 It is primarily their choice to determine in detail the criminal penalty for acts of genocide.15 But the penalty must be ‘effective’ pursuant to art. V. Since one of the purposes of the Convention is the prevention of genocide,16 the term ‘effective’ means that the penalty should be sufficiently grave in order to deter future acts of genocide. The punishment needs to reflect the evil character of the crime in order to stress that it will not be tolerated. The Genocide Convention itself does not specify the underlying rationale for punishment. The deterrence rationale which is regularly referred to in international criminal law has been challenged of late. It has been questioned whether punishment can effectively prevent the commission of genocide.17 Some authors doubt that those bearing the greatest responsibility will be deterred by the threat of prosecution or will be led by a cost–benefit analysis.18 The UN Special Rapporteur on the UN Genocide Convention, Benjamin Whitaker, pointed out that ‘[t]hose who 11 Nehemiah Robinson, The Genocide Convention: A Commentary 80 (1960). 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J., Judgment of 26 February 2007, para. 444, at (last accessed 5 December 2008). 13 One draft explicitly mentioned ‘criminal penalties’. See Genocide: Draft Convention and Report of the Economic and Social Council in Report of the Sixth Committee U.N. Doc. A/C.6/254 (1948). For the drafting history, see Nehemiah Robinson, The Genocide Convention: A Commentary 74 et seq. (1960). 14 Article V provides: ‘The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in art. III.’ 15 Nehemiah Robinson, The Genocide Convention: A Commentary 77 (1960). 16 For the effectiveness of the deterrence rationale see below Chapter 6, note 41 and Chapter 8, note 35. 17 Martin Mennecke, Punishing Genocidaires: A Deterrent Effect or Not?, 8 Hum. Rts. Rev. 319–339 (2007). 18 Jan Klabbers, Just Revenge? The Deterrence Argument in International Criminal Law, 12 Finnish YB Int’l L. 249, 252–253 (2001); D. Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 479–480 (1999); Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Northwestern University L. Rev. 101–179 (2005).

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are psychologically prepared to commit genocide are not always likely to be deterred by retribution’.19 There is no reliable statistical evidence for the practical relevance of the deterrence rationale and it is questionable whether evidence for one or other argument could be produced.20 However, doubts about its success should not be used as excuse not to prosecute. The Genocide Convention is strict on the duty to punish. It is firmly based on the understanding that genocide needs to be repressed by means of criminal prosecution irrespective of the underlying rationale. It is the most heinous crime which must be confronted with the most serious available sanction. Even if deterrence is effective only in one instance, it would be more than justified. Furthermore, there are additional reasons for criminal measures. Criminalization stands as a statement by society that is will not tolerate genocide and will do whatever is necessary for the rule of law. This idea equally sustains the call for punishment. As noted above, the Genocide Convention provides for some flexibility with regard to the particular degree of punishment. However, by explicitly requiring punishment for genocide (arts I, IV, and V) apart from an investigation, the Convention does not leave any room for the Contracting Parties to amnesty acts of genocide defined in arts II and III. Pursuant to art. I States parties undertake to punish genocide irrespective of the circumstances in which it was committed (in time of peace or in time of war). The intention of the Convention is to ensure that perpetrators in any case serve a severe criminal sentence reflecting the gravity of the offence.21 This together with the requirement of trial by a tribunal closes the door on alternative measures of accountability, as, for example, investigation by a truth commission without criminal punishment. The fact that no derogation from the entire Convention is permissible in times of emergency underlines that the duty to punish is dispensable. The Genocide Convention addresses only the relationship between the Contracting Parties and the perpetrators without making any provision for the victims. There is no provision on redress for victims. While the Convention provides for a duty to punish, it does not set out any rights of victims or their families to see their perpetrators prosecuted or to claim compensation.22 This is so because the focus of the Convention is on prohibition and on obligations of States parties to confront acts of genocide. Deriving victims’ rights from the Convention was not the Convention’s overall concept. 19 Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 78 (2 July 1985). 20 Gary Jonathan Bass, Stay the Hand of Vengeance—The Politics of War Crimes Tribunals (2000). 21 See the drafting history in Nehemiah Robinson, The Genocide Convention: A Commentary (1960). 22 The delegates regarded a provision on responsibility other than criminal out of place. U.N. General Assembly, Sixth Committee, U.N. Doc. A/C.6/SR.95, pp. 11 et seq. See also Nehemiah Robinson, The Genocide Convention: A Commentary 73–74 (1960).

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2. The Convention against Torture Domestic criminal prosecution is a central measure of protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.23 Pursuant to art. 4(1) ‘[e]ach State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.’ Torture, according to the Convention, means: 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.24

The UN Committee against Torture established to monitor compliance with the Convention asks for an incorporation of the prohibition of torture into domestic law. Domestic criminal law should at least contain the elements of torture as defined in art. 1 of the Convention.25 This encourages defining the offence of torture as distinct from common assault or other crimes.26 The conduct of a prompt and impartial criminal investigation is required by art. 12.27 The investigation must collect all crucial evidence available.28 This does not only apply to the principal perpetrators. A State party to the Convention must also prevent instigation, incitement, encouragement, acquiescence, and complicity.29 Superiors must be held accountable if they knew or should have known that torture was occurring, or was likely to occur and they failed to take reasonable 23 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature by GA Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51, at p.197, 4 February 1985, and entered into force 26 June 1987, reprinted in 23 I.L.M. 1027 (1984) [hereinafter Torture Convention] 24 Article 1(1) of the Convention. 25 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, paras 8–9 (24 January 2008). 26 Id. at para. 11. 27 Article 12 reads: ‘Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.’ According to the Torture Committee a criminal investigation is required. Committee against Torture, Concluding Observations on Bolivia, U.N. Doc. A/56/44, paras 89–98, at p. 97, subpara. d (2001). In Blanco Abad v. Spain the Committee criticized the authorities for waiting over a month to interview the victims, Blanco Abad v. Spain, Communication No. 59/1996, Committee against Torture, U.N. Doc. CAT/C/20/D/59/1996, para. 8.7 (1998). 28 M’Barek v. Tunisia, Communication No. 60/1996, Committee against Torture, U.N. Doc. CAT/C/23/D/60/1996, para. 11.8 (24 January 2000). 29 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 17 (24 January 2008).

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and necessary preventive measures.30 According to the Torture Committee, any direct instigation, encouragement, consent, or acquiescence by a superior official must be fully investigated through competent, independent, and impartial prosecutorial and judicial authorities.31 As to territorial scope, art. 7(1) requires the States parties either to extradite or to prosecute perpetrators of torture who are found in their territory.32 Therefore, the States parties are obliged to extradite or prosecute not only perpetrators who have committed acts of torture within their territory, but also those found in their territory who perpetrated torture in another territory.33 In this regard, the scope of the Torture Convention is broader than that of the Genocide Convention. This is due to the different mechanisms envisaged in the two Conventions. While the Genocide Convention envisages domestic or international prosecution alternatively and limits compulsory domestic prosecution to the States parties in the territory of which the act was committed, the Torture Convention leaves criminal prosecution generally to the national authorities, namely the ones where torture was committed, the ones whose national is the alleged offender, the ones whose national is the victim, and the ones on whose territory a perpetrator is found.34 Since the Torture Convention is applicable to torture committed in any territory under a State party’s jurisdiction it is not only limited to State territory but applies also to ‘all areas where a State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control’.35 This, according to the Torture Committee, includes torture committed during military occupation or in peacekeeping operations and if a State exercises some form of control over persons in detention.36 Article 7(1) of the Torture Convention obliges States parties to ‘submit the case to its competent authorities for the purpose of prosecution’ ‘if it does not extradite’ the person alleged to have committed an act of torture.37 It thereby incorporates 30 Id. at para. 26. 31 Id. 32 Article 7(1) provides: ‘The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in art. 4 is found shall in the cases contemplated in art. 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.’ 33 Article 5 establishes universal jurisdiction for the States parties. Under paragraph 2 a State party is required to establish its jurisdiction if the alleged offender is present in its territory. Boulesbaa calls it ‘multi-state jurisdiction’ limited to the States parties of the Torture Convention. Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 205 (1999). 34 See art. 5(1) and (2). Pursuant to art. 5(1)(c) the States parties are free to establish jurisdiction on the basis of the victim’s nationality. 35 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 16 (24 January 2008). 36 Id. 37 The principle aut dedere aut judicare was used earlier in the Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192, 10 I.L.M. 133; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, 24 U.S.T. 564, T.I.A.S. No. 7570, 10 I.L.M. 1151; the Convention on the Prevention and

160 Universal Human Rights Conventions Explicitly Requiring Prosecution the concept of aut dedere aut judicare which can also be found in various antiterrorism conventions. The wording of art. 7 indicates that the duty to prosecute does not depend on an extradition request by a country having jurisdiction under art. 5(1).38 This is re-emphasized by the drafting history. The drafters intended to create a duty to prosecute by the State party in whose territory the alleged offender is present irrespective of a request for extradition from the State where the crime of torture was committed.39 The mere fact that an alleged torturer is not extradited, regardless of the reason, is enough to trigger the obligation to submit the case to the prosecuting authorities of the State where the perpetrator is found. To do otherwise would mean that the effectiveness of the Convention would be considerably weakened. This becomes relevant in cases where the territorial State is reluctant to request extradition.40 Such omission does not excuse the failure to prosecute the perpetrator by the State party where he or she is found. The Convention leaves the choice between prosecution and extradition to the State party where the accused is found. It thereby clarifies that there is no obligation to extradite provided the State on whose territory the accused is found initiates criminal proceedings.41 The Torture Convention does not explicitly require the States parties to request extradition in order to prosecute those who committed acts of torture in their territory and then fled the State. Article 5 merely obliges States parties to establish jurisdiction, in other words to provide for a legal basis for the exercise of jurisdiction. This applies in the following cases: when the act of torture was committed in the territory of a State party, when the alleged offender

Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 14 December 1973, T.I.A.S. No. 8532, 13 I.L.M. 41; the International Convention against the Taking of Hostages, 17 December 1979, G.A. Res. 146, U.N. GAOR, 34th Sess. (1979), 18 I.L.M. 1456. 38 M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 18 (1995). But see Georg Dahm, Rüdiger Wolfrum & Jost Delbrück, Völkerrecht, I/3 Die Formen des völkerrechtlichen Handelns, die inhaltliche Ordnung der internationalen Gemeinschaft, § 190 II. 3 c) (2nd edn, 2002). Contrary to the U.N. Torture Convention, the O.A.S. Torture Convention of 1985 provides that the obligation to prosecute depends on the refusal of a request for extradition. See art. 14 Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Doc. OEA/Ser.P, AG/Doc.2023/85 rev.1 (1986). 39 Report of the 1983 Working Group on the Convention against Torture, U.N. Doc. E/ CN.4/1983/L.2 (1983), p. 6; Report of the 1981 Working Group, U.N. Doc. E/CN.4/L.1576 (1981), p. 10; Commission on Human Rights, Report on the Thirty-Seventh Session, ESCOR, 37th Sess., Supp. No. 5, p. 50, U.N. Doc. E/1981/25 (1981), U.N. Doc. E/CN.4/1475 (1981), p. 59. See also Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 222–225 (1999). 40 J. Herman Burgers & Hans Dabelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 137 (1988). 41 Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 207 (1999); J. Herman Burgers & Hans Dabelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 139 (1988).

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is the national of a State party, when the victim is a national of a State party,42 or when the alleged offender is present in the territory of a State party. Though the scope of jurisdiction is comprehensive, art. 7 requires States parties only to exercise this jurisdiction by prosecuting or extraditing if the accused was found in its territory. Thus, only after a State party has obtained jurisdiction over the alleged offender does the obligation of aut dedere aut judicare become relevant. Due to the definition of torture as acts committed ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’43 purely private acts are not covered.44 But the obligations for Contracting Parties under the Torture Convention go beyond the duty to refrain from committing torture. If State officials or State powers are somehow implicated in a crime it is not considered purely private. A private person who commits an act of torture with the involvement of the authorities, i.e. by encouraging or tolerating it,45 must be prosecuted or extradited. This follows from arts 1 and 4. Likewise, all persons acting on behalf of the State, in conjunction with it, under its direction or control, or otherwise under cover of law need to be held accountable.46 For example, in a prison run by the private sector the Committee considers its personnel as acting in an official capacity.47 The Torture Committee has gone beyond these cases of public–private co-perpetration. According to its interpretation, even in purely private cases of illtreatment the failure to counteract may give rise to State responsibility.48 Where State authorities or others acting in an official capacity have reasonable grounds for believing that acts of torture or ill-treatment are being committed by private actors and where they fail to exercise due diligence to investigate, prosecute, and punish the State party bears responsibility.49 Such omission is considered a form of encouragement or de facto permission. Impunity accordingly is a contributing factor to the commission of torture. This concept is similar to the Velásquez Rodríguez line of reasoning50 and extends the scope of the Convention to private crimes. The Committee has applied this to cases of gender-based violence, such as rape, to domestic violence, female genital mutilation, and trafficking.51 It follows 42 This obligation depends on whether the State Party considers this jurisdiction appropriate. See art. 5(1)(c). 43 Article 1(1) of the Convention [emphasis added]. 44 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 15 (24 January 2008). 45 See Thomas Buergenthal, International Human Rights 72 (2nd edn, 1995). 46 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 15 (24 January 2008). 47 Id. at para. 17. 48 Id. at para. 18. 49 Id. 50 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). 51 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 18 (24 January 2008).

162 Universal Human Rights Conventions Explicitly Requiring Prosecution that in cases of such serious crimes States parties are under an obligation to investigate, prosecute, and punish regardless of whether the perpetrator was an official or a private person, and they must do so as soon as the authorities become aware of it. This jurisprudence by extending the scope of the Convention to private misconduct has far-reaching implications and is not entirely persuasive since the failure of State officials to intervene does not change the private character of a crime. Rape committed by private persons does not become official conduct because State authorities fail to prosecute the perpetrator. Since the Torture Convention provides only for a duty to prevent and punish official misconduct, arguably it does not apply to those crimes. When the Torture Committee nevertheless requires States parties to take criminal measures in such cases it effectively abrogates the official capacity requirement of the Convention. However, it is a different situation if the authorities’ failure to act amounts to complicity. If State authorities, for example, are aware of continuous serious ill-treatment, remain passive, and allow the crime to occur, their behaviour contributes to the commission of those crimes. Such crimes are committed with public involvement and hence constitute torture. But it would be wrong to infer a comprehensive duty to prosecute private misconduct. Not every failure to prosecute amounts to aiding and abetting. The Committee has further specified the necessary measures in response to torture and inhuman treatment. It asks for prosecution alongside legislative, administrative, judicial, and other measures.52 In referring to ‘offences under its criminal law’,53 ‘offences punishable’,54 ‘prosecution and conviction’,55 and ‘criminal proceedings’,56 the Torture Convention explicitly requires criminal prosecution. However, similar to the Genocide Convention, it does not specify what type of criminal punishment is required. Pursuant to art. 4(2) ‘[e]ach State Party shall make these offences punishable by appropriate penalties which take into account their grave nature’. The term ‘appropriate’ indicates that punishment should be commensurate with the gravity of the act of torture committed.57 The Convention refers to the ‘grave nature’ of torture. This implies that the penalty should be severe.58 Since the Convention requires prosecution as a measure to prevent acts of 52 E.g. civil remedies for torture (art. 14), training of law-enforcement personnel (art. 10). 53 Article 4(1) Torture Convention. 54 Article 4(2) Torture Convention. 55 Article 7(2) Torture Convention. 56 Article 9(1) Torture Convention. 57 The Committee against Torture has called upon States Parties to punish torture ‘by means of penalties commensurate with its seriousness’. Committee against Torture, Concluding Observations on Colombia, U.N. Doc. A/51/44, para. 66, at 80 (1996). In its Concluding Observations on Bolivia the Committee expressed its concern with respect to ‘the mild penalty prescribed, which is not consistent with the seriousness of the crime’. Committee against Torture, Concluding Observations on Bolivia, U.N. Doc. A/56/44, paras 89–98, at 95 (2001). 58 J. Herman Burgers & Hans Dabelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 129 (1988).

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torture, the punishment should be sufficiently severe effectively to deter future violations.59 The Torture Committee has sometimes criticized States parties for lenient penalties for acts of torture.60 Allowing persons who have committed acts of torture to remain entirely unpunished by means of pardon is a violation of the Covenant.61 While the Torture Convention requires criminal penalties which should be commensurate with the gravity of the crime of torture, it leaves a certain margin of appreciation to States parties to allow for particularities of the domestic criminal system to be taken into account. The specific penalty must then be determined on the basis of the specific details of each case. This explains why the Convention refers to ‘appropriate penalties’. The determination of the appropriate penalty depends also on the parameters of the domestic penal system. Pursuant to art. 7(2) the authorities charged with prosecution ‘shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State’. The severity of the penalty for acts of torture, therefore, must be determined in relation to the severity of sanctions applied in a particular country.62 It has been argued that the punishment for torture should be similar to the penalties for the most serious offences under domestic law.63 Apart from criminal punishment, the UN Torture Committee also requests removal from office.64 Under the Torture Convention the explicit obligation to prosecute is limited to acts of torture.65 Acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture must also be prevented. But art. 16 does not extend to such acts the obligation to prosecute or extradite under art. 7. This distinction reflects the understanding that less severe violations of human rights 59 The deterrent effect is the underlying rationale for the Committee to ask for the punishment of torturers. In its Concluding Observations on Bolivia the Committee criticized also the failure to remove the accused police officers from office as ‘reaffirming impunity and encouraging the continuation or repetition of these practices’. Committee against Torture, Concluding Observations on Bolivia, U.N. Doc. A/56/44, paras 89–98, at 95 (2001). 60 E.g., during the consideration of Hungary’s report submitted under art. 19 of the Convention the members of the Committee ‘noted that the crime of torture could be punished in accordance with arts. 226 to 228 of the Criminal Code, although they found the maximum penalties laid down by those articles extremely light’, U.N. Doc. A/48/44 at 56 (48th Session, 1993), para. 345. 61 Kepa Urra Guridi v. Spain, Communication No. 212/2002, Committee against Torture, U.N. Doc. CAT/C/34/D/212/2002 (2005). 62 Roland Bank, Die internationale Bekämpfung von Folter und unmenschlicher Behandlung auf den Ebenen der Vereinten Nationen und des Europarats, 207 (1996). 63 J. Herman Burgers & Hans Dabelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 129 (1988). 64 Committee against Torture, Concluding Observations on Bolivia, U.N. Doc. A/56/44, paras 89–98, at 95 (2001). The accused officials should be suspended from their duties during the criminal investigation. Id. at para. 97. 65 However, the Committee against Torture has extended the obligation to punish also to perpetrators of cruel, inhuman or degrading treatment or punishment. Committee against Torture, Concluding Observations on Argentina, U.N. Doc. A/48/44, paras 88–115, at 113 (1993).

164 Universal Human Rights Conventions Explicitly Requiring Prosecution (acts not amounting to torture) are not deemed to require criminal punishment in every case. Turning to the question whether amnesties are permissible under the Torture Convention, the text of the Convention is clear. Not only does the Convention require criminalization of torture (art. 4), it also mandates the establishment (art. 5) and actual exercise of criminal jurisdiction (art. 7). Each State party is bound to submit cases of torture to ‘its competent authorities for the purpose of prosecution’ (art. 7(1)). There is no clause which allows States to derogate from their obligations under the Convention in time of public emergency.66 This indicates that criminal prosecution as envisaged by the Convention is vital. To exclude criminal prosecution ab initio by means of an amnesty would therefore not be in accordance with art. 7(1). It has been discussed whether a State party after conducting criminal proceedings is able to dispense with the duty to execute the criminal conviction in exceptional circumstances and pardon offenders if it seeks to re-establish peace and respect for human rights.67 Arguably—contrary to the Genocide Convention which provides that persons who commit genocide ‘shall be punished’—the Torture Convention refers only to prosecution without explicitly requiring that punishment be served. By asking the States Parties to ‘submit the case to its competent authorities for the purpose of prosecution’ the drafters tried to avoid a strict obligation of prosecution which could be breached if the authorities decided to dismiss the case after submission.68 This suggests that there is no indispensable duty to punish under the Torture Convention. It is to emphasize only that the criminal duties under the Convention are obligations of conduct, rather than of result. This avoids any predetermination of the outcome of criminal proceedings. After all, if there is not enough evidence an alleged perpetrator must be acquitted.69 But it is doubtful whether this also allows any leeway for considerations which lie outside the responsibility of the accused. As evidenced by art. 7(2) which requires that authorities take their decision in the same manner as in the case of any ‘ordinary offence of a serious nature under the law of that State’, the Convention envisages the conduct of criminal proceedings. States are required to abide by their 66 Article 2(2) provides that the duty to refrain from torture is indispensable even in times of emergency. However, it does not refer to the duty to prosecute or extradite. 67 See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2604 et seq. (1991); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l. L.J. 1, 23 et seq. (1996). 68 For the details of the drafting history, see Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement, 209 et seq. (1999). 69 J. Herman Burgers & Hans Dabelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 138 (1988); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, note 306 (1991); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l. L.J. 1, 24 (1996).

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criminal law and criminal procedure in the decision-making process. If the legal requirements are met and the case is established the prosecution will lead to a conviction and thus to punishment of the offender. This would be jeopardized if torturers were spared from serving any sentence or if punishment out of political motives was entirely inadequate.70 The Torture Convention, with its strict emphasis on appropriate penalties, allows for little room to compromise. By referring to ordinary criminal law the drafters intended to counteract the practice of some Latin-American States to treat politically motivated crimes with leniency.71 While art. 7(2) does not entirely prevent States parties from being influenced by political considerations in the decision-making process, its reference to the law of a State and ordinary criminal offences clarifies that consideration must be taken primarily on legal grounds.72 To allow for an amnesty act or for a general pardon and thereby render perpetrators generally immune from prosecution would be contrary to the Convention’s underlying principle that torturers should be punished. This reading of the Convention is reflected in a number of pronouncements by the UN Committee against Torture. Its dislike of amnesties became apparent in its first statements on communications. In O.R., M.M. and M.S. v. Argentina the Torture Committee in an obiter dictum criticized the Punto Final and the Due Obedience Acts. Both had resulted in the impunity of torturers and left the victims without compensation. According to the Committee, this was ‘incompatible with the spirit and purpose of the Convention’.73 Though the communication was declared inadmissible ratione temporis because the acts of torture had taken place before the Convention’s entry into force, the Committee held that ‘Argentina is morally bound to provide a remedy to victims of torture and to their dependants’.74 Arguably, an amnesty providing for the compensation of victims without punishment of the perpetrators could have met the Committee’s requirements. However, it seems that impunity of torturers was also a reason for the Committee’s criticism of the Argentinean amnesty. In later pronouncements the Committee explicitly denied an exception to the duty to prosecute acts of torture for reasons of reconciliation. For example, in its Concluding Observations on Peru it expressed concern over ‘[t]he use of, in 70 Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2605, note 309 (1991); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 24 (1996). 71 See Boulesbaa with further references in notes 210–211 therein. Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 230 (1999). 72 Boulesbaa argues that the officials charged with the power of prosecution have a certain degree of discretion. Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 232–242, 235 (1999). 73 O.R., M.M. and M.S. v. Argentina, Communications Nos 1/1988, 2/1988, and 3/1988, Committee against Torture, in Report of the Committee against Torture, U.N. Doc. A/45/44, Annex V, p.108, at p. 112, para. 9 (1990). 74 Id. at paras 7.5, 8, and 9.

166 Universal Human Rights Conventions Explicitly Requiring Prosecution particular, the amnesty laws which preclude prosecution of alleged torturers who must, according to arts. 4, 5 and 12 of the Convention, be investigated and prosecuted where appropriate’.75 In the case of Azerbaijan the Committee recommended that ‘[i]n order to ensure that perpetrators of torture do not enjoy impunity, the State party ensure the investigation and, where appropriate, the prosecution of those accused of having committed the crime of torture, and ensure that amnesty laws exclude torture from their reach’.76 This idea gained ground in the following statement by the Committee in its General Comment No. 2 of 2008: [A]mnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability.77

Like the Torture Committee, the Special Rapporteur on the Question of Torture, Sir Nigel Rodley, criticized amnesties for acts of torture. In his Observations on Peru he pointed out: As regards the amnesty . . . both under general international law and under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, States are obliged to investigate allegations of torture, ensure that perpetrators are brought to justice and provide means of redress, including compensation, to victims. It is axiomatic that a State’s national law may not be invoked to avoid its obligations under international law.78

That there is no allowance for general pardons was stressed by the Torture Committee in its Concluding Observations on Argentina of 1993. The Committee refused to follow the State party’s arguments. The State party had attempted to justify the presidential pardon of 1989 by pointing out that ‘pardon removed the penal consequences without wiping out an offence of the infamy attached to it’.79 Members of the Committee, however, were concerned whether the pardon for human rights violations under the previous regime was in strict compliance with the Convention.80 Therefore, the Committee ‘expressed its deep concern at the continuing vestiges of the former regime, at the disturbing use of violent methods and torture in many cases, and at the clemency and impunity enjoyed by the perpetrators of such acts contrary to the requirements of the Convention’ and called upon the government to punish the perpetrators.81 Similarly, the Special Rapporteur on 75 Committee against Torture, Report of the Committee against Torture, GAOR, 55th Sess., Supp. No. 44, U.N. Doc. A/55/44, para. 56, at 59(g) (2000). 76 Id. at para. 64, at 69(c). 77 Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 5 (24 January 2008). 78 Report of the Special Rapporteur to the Commission on Human Rights, U.N. Doc. E/CN.4/ 1996/34, para. 136 (1996). 79 Committee against Torture, Concluding Observations on Argentina, U.N. Doc. A/48/44, paras 88–115, at 107 (1993). 80 Id. at para. 99 (1993). 81 Id. at paras 88–115, at 113.

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the Question of Torture in his ‘Compilation of recommendations which may all be resolved into one global recommendation—an end to de facto or de jure impunity’ recommended that ‘[a] person found to be responsible for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemption from criminal responsibility for torturers, such as amnesties, indemnity laws, etc., should be abrogated.’82 In sum, the Torture Convention calls for ordinary criminal prosecution leading to appropriate penalties for the offenders if the legal exigencies under domestic law are met. This does not allow States parties to amnesty acts of torture. Ordinary criminal institutions are charged with the prosecution of this crime. The Torture Convention’s emphasis on criminal proceedings shows that a truth commission alone does not satisfy the requirements of the Torture Convention if torture is involved. Even if an amnesty is granted by a State where torture has been committed it does not affect third countries’ legal obligations under the Torture Convention. Articles 5 and 7, with the obligation to establish and exercise criminal jurisdiction, guarantee that there is no safe haven for torturers.83 An amnesty does not prevent other States parties from complying with their duty to prosecute or extradite offenders found in their territory pursuant to art. 7(1). If there is no extradition request the State party where the alleged offender resides is bound under the Convention to institute criminal proceedings. The Torture Convention also sets out the rights of victims of torture. Pursuant to art. 13 ‘[e]ach State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities’. Additionally, pursuant to art. 14(1) ‘[e]ach 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’. There is, however, no individual right of the victim to see his perpetrator punished. With respect to criminal proceedings, there is pursuant to art. 13 a right only to submit a complaint and to have the case investigated. Nor does Article 14 provide for a right to criminal punishment. It deals only with redress and thus includes compensation and similar remedies. The fact that art. 14 calls for redress in addition to compensation has been understood as showing that redress is more than compensation and thus also includes criminal measures.84 82 Report of the Special Rapporteur on the Question of Torture to the Commission on Human Rights, U.N. Doc. E/CN.4/1995/34, para. 926, subpara. g (1995). 83 Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 223 (1999). 84 Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 466 (1990). The Torture Committee also gives a broad reading to art. 14. In Kepa Urra Guridi v. Spain it explained that art. 14 requires restitution, compensation, and rehabilitation of the victim. It considered the payment of compensation insufficient. It held that the State party which had granted pardon to the perpetrators of torture had violated

168 Universal Human Rights Conventions Explicitly Requiring Prosecution However, this argument is not persuasive. Redress can be achieved through means other than prosecution. There is no room to extend victims’ rights in criminal proceedings beyond those spelt out in art. 13. With respect to criminal prosecution, art. 13 is lex specialis.

3. The Conventions on Slavery, Traffic in Persons, Exploitation of Prostitution and Apartheid Apart from the Genocide Convention and Torture Convention, there are a number of other international treaties explicitly calling upon States to punish certain human rights violations. For example, art. 6 of the Slavery Convention provides that ‘[t]hose High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions’.85 Similarly, the Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery prescribes that certain acts, such as the conveying of slaves to other countries, shall be ‘a criminal offence under the laws of the States Parties’ and that ‘persons convicted thereof shall be liable to very severe penalties’.86 However, forced labour that develops into conditions similar to slavery is not included in the catalogue of crimes which must be punished pursuant to the Slavery Convention. The Convention calls upon the

art. 14(1). Communication No. 212/2002, Committee against Torture, U.N. Doc. CAT/C/34/D/ 212/2002, para. 6.8 (2005). 85 Slavery Convention, signed 25 September 1926 and entered into force 9 March 1927, 212 U.N.T.S. 17. 86 Adopted by a Conference of Plenipotentiaries convened by Economic and Social Council Resolution 608 (XXI) of 30 April 1956 and done at Geneva on 7 September 1956, entry into force 30 April 1957, 266 U.N.T.S. 40. See art. 3(1). See also art. 3(2)(a) which reads: ‘The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose’ (emphasis added). Article 5 provides: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. (Emphasis added.) Further, art. 6(1) reads: The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. (Emphasis added.)

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Contracting Parties only to prevent such forced labour, but does not mandate criminal measures in this respect.87 In the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others the States parties agree to punish persons taking advantage of or inciting prostitution.88 Attempt and participation ‘shall also be punishable’ ‘to the extent permitted by domestic law’.89 Ascertaining that the offences ‘shall in each State be defined, prosecuted and punished in conformity with its domestic law’, art. 12 leaves some latitude to the States parties in the prosecution process. In contrast to the Genocide Convention, the Convention for the Suppression of the Traffic in Persons does not explicitly limit the duty to prosecute to the territorial State. But this can be taken indirectly from art. 9.90 It makes specific provision for those cases where an accused after the commission of a crime flees to his country of origin and for the reason of his nationality cannot be extradited to the State where the crime was committed. Such a provision would be superfluous if there was a general duty by all States parties to prosecute perpetrators regardless of where the crime had been committed. The provision, therefore, indicates that the Convention generally envisages only prosecution by the States parties in whose territory the offence was committed. Only in exceptional cases is the country of origin obliged to institute criminal proceedings pursuant to art. 9. If the accused is found outside the territorial State, the Convention, similarly to the Genocide Convention, does not provide for an absolute obligation to extradite perpetrators. Instead, pursuant to art. 8 ‘[e]xtradition shall be granted in accordance with the law of the State to which the request is made’. The specified offences, 87 See art. 5 of the Slavery Convention. 88 Approved by General Assembly Resolution 317 (IV) of 2 December 1949, entered into force 25 July 1951, 96 U.N.T.S. 271. Article 1 provides: The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person. Article 2 reads: The Parties to the present Convention further agree to punish any person who: (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others. 89 Articles 3 and 4. 90 Article 9 reads: In States where the extradition of nationals is not permitted by law, nationals who have returned to their own State after the commission abroad of any of the offences referred to in articles 1 and 2 of the present Convention shall be prosecuted in and punished by the courts of their own State. This provision shall not apply if, in a similar case between the Parties to the present Convention, the extradition of an alien cannot be granted.

170 Universal Human Rights Conventions Explicitly Requiring Prosecution pursuant to this provision, shall be regarded as extraditable offences in any extradition treaty and shall be recognized as extraditable unless extradition is made conditional on the existence of such a treaty. Another example is the International Convention on the Suppression and Punishment of the Crime of Apartheid.91 Like the Genocide Convention, the Apartheid Convention relies on international and domestic criminal prosecution alternatively.92 While art. III provides for international criminal responsibility for acts of apartheid,93 art. IV requires domestic legislation ‘to punish persons guilty of that crime’ and adoption of ‘legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in article II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons’. Thus the territorial scope of the Apartheid Convention is as similarly comprehensive as the one of the Torture Convention.

4. The scope of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity In order to ensure the punishment of war crimes and crimes against humanity, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity establishes as a universal principle that there is no period of limitation for such crimes.94 The Convention was intended to prevent Nazi crimes from going unpunished under German statutory limitations. There has been discussion as to whether this entails an implicit requirement of domestic criminal punishment.95 Pursuant to art. 4 of the Convention, States parties shall 91 Adopted and opened for signature, ratification by General Assembly Resolution 3068 (XXVIII) of 30 November 1973, entered into force 18 July 1976; 1015 U.N.T.S. 243. 92 Article V reads: Persons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction. 93 The international penal tribunal mentioned in art. V was established by the Rome Statute. See art. 7(1)(j) of the Statute. 94 Adopted and opened for signature, ratification, and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968; entered into force 11 November 1970; 754 U.N.T.S. 73. See the Preamble and art. 1. For an analysis of the Convention, see Robert H. Miller, The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 65 Am. J. Int’l L. 476 (1971). See also European Convention on the Non-applicability of Statutory Limitations to Crimes against Humanity and War Crimes, E.T.S. No. 82, 25 January 1974, reprinted in 13 I.L.M. 540 (1974). 95 See Frank Achim Hammel, Innerstaatliche Amnestien, Grundlagen und Grenzen aufgrund des Internationalen Rechts, 125 et seq. (1993); Juliane Kokott, Völkerrechtliche Beurteilung

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ensure that ‘statutory or other limitations shall not apply to the prosecution and punishment’ of the crimes concerned. The reference to other limitations has been interpreted as excluding not only time limits to prosecution but also other limitations, such as amnesty laws.96 Indeed, the wording of the Convention is broader than the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes.97 The European Convention requires the adoption of necessary measures to secure that statutory limitations do not apply to the prosecution of the crimes concerned.98 No reference is made to other limitations. The universal Convention was intended to ensure criminal prosecution and punishment.99 This is underlined in the Preamble which confirms that ‘the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of cooperation among peoples and the promotion of international peace and security’.100 Furthermore, the Convention does not stop at ruling out statutes of limitation; it requires States parties to adopt domestic measures ‘with a view to making possible the extradition, in accordance with international law’.101 The Convention thus points in the direction of the concept of aut dedere aut judicare. However, this should not be interpreted as an absolute prohibition of amnesties.102 While the Convention may be informed principally by the desire to hold perpetrators accountable for such grave crimes, the text of the respective provisions does not support the assumption that amnesties are entirely prohibited. There is no explicit outright obligation to punish in the Convention as, for example, in the Genocide Convention. It should also be taken into account that the drafters could not agree on the permissibility of amnesties.103 To assume that the Convention des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZAÖRV 506, 516 (1987) with further references. 96 Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZAÖRV 506, 516 (1987). 97 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, 13 I.L.M. 540 (1974). It entered into force with three ratifications on 27 June 2003. 98 See art. 1. 99 Orentlicher argues that in the drafter’s view international law already required punishment of crimes against humanity. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2594 at note 252 (1991). 100 Preambular paragraph 5 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted and opened for signature, ratification, and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968. 101 See art. 3. 102 But see Domb who argues that an amnesty would be contrary to the spirit of the Convention. Fania Domb, Treatment of War Crimes in Peace Settlements—Prosecution or Amnesty?, in War Crimes in International Law 305, 316 (Yoram Dinstein & Mala Tabory eds, 1996). 103 While the Greek representative tried to defend the proclamation of an amnesty, the Soviet representative held it to be impermissible. U.N. GAOR, 22nd Session, Annexes Agenda Item 60,

172 Universal Human Rights Conventions Explicitly Requiring Prosecution was intended to exclude amnesties would therefore be misleading. Though a prohibition of statutory limitations and a prohibition of amnesties may be informed by similar reasons, the latter is not necessarily included comprehensively in the former.104 It is one thing to provide for statutory limitations but quite another to proclaim an amnesty.105 Statutes of limitation in abstract terms provide that there will generally be no prosecution after a certain passage of time. They carry with them a general value-judgment concerning the crimes they cover. The proclamation of an amnesty is qualitatively different because it attempts to deal with a particular situation. Furthermore, statutes of limitation and amnesties can differ as to their underlying rationale. Some amnesties are motivated by the desire to re-establish peace and security. To ascertain that such instances are entirely outlawed by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity would go beyond the text and scope of the Convention. Even if it is assumed that there is an implicit duty to punish there is nothing in the Convention that speaks of an absolute obligation to prosecute.106 At least in the case where an amnesty has the potential of serving the protection of human rights by making ample provision for prevention and alternative measures of accountability, the purpose of the Convention spelled out in its Preamble— namely the prevention of further crimes and the promotion of international peace and security—is arguably covered in an adequate manner.

5. International Convention on the Elimination of All Forms of Racial Discrimination A further example of criminal obligations in universal human rights treaties is the International Convention on the Elimination of All Forms of Racial Discrimination.107 Article 4(a) calls on the States parties to declare all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, and all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin an offence punishable by law. This obligation concerns the criminalization of conduct but there are no detailed rules on U.N. Doc. A/C.3/SR.1515, para. 17; U.N. GAOR, 22nd Session, Annexes Agenda Item 60, U.N. Doc. A/C.3/SR.1516, para. 3. See Frank Achim Hammel, Innerstaatliche Amnestien, Grundlagen und Grenzen aufgrund des Internationalen Rechts 130 (1993). 104 But see Frank Achim Hammel, Innerstaatliche Amnestien, Grundlagen und Grenzen aufgrund des Internationalen Rechts 134–136 (1993) 105 See Michael Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 520 at note 95 (1999). But see Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZAÖRV 506, 516 (1987). 106 However, it goes without saying that an amnesty may not be used with the intention of circumventing the prohibiton of statutory limitations. 107 International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification by General Assembly Resolution 2106 (XX) of 21 December 1965, entered into force 4 January 1969.

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the scope of this obligation as is the case in the aforementioned conventions. The interpretation of art. 4 has been left to the Committee on the Elimination of Racial Discrimination. According to the Committee, the enactment of a law making discrimination a criminal act is not in itself sufficient.108 The Committee has repeatedly called on States parties to criminalize and to effectively investigate and punish such acts.109 In Ahmad v. Denmark it recommended ensuring that the police and the public prosecutors properly investigate accusations and complaints related to acts of racial discrimination which should be punishable by law according to art. 4 of the Convention.110 The obligation to criminalize should not be understood as an absolute duty to punish. Efforts to challenge the expediency principle on the basis of the Convention have been unsuccessful. In Yilmaz Dogan v. The Netherlands the Committee observed that the freedom to prosecute criminal offences commonly known as the expediency principle is governed by considerations of public policy . . .. [T]he Convention cannot be interpreted as challenging the raison d’être of that principle. Notwithstanding, it should be applied in each case of alleged racial discrimination, in the light of the guarantees laid down in the Convention.111

The Committee thereby acknowledged a margin of appreciation for prosecuting authorities. To a certain extent there is an allowance for political considerations. But criminal authorities in their exercise of discretion need to take due account of the guarantees against racial discrimination. The seriousness of the offence needs to be considered and weighed against the reasons for discontinuation. Since art. 4 is phrased as a general obligation which requires States parties to declare racial hatred punishable by law, it does not provide the basis for a right of the victim to demand punishment. The rights of victims are specified in art. 6. This requires that States parties assure effective remedies against acts of racial discrimination and the right to seek just and adequate reparation or satisfaction for the damage suffered. The steps required were elaborated on in L.K. v. The Netherlands. In that case the authorities had been rushed in their conclusion that no racial discrimination was at issue and had not properly investigated or gathered

108 L.K. v. The Netherlands, Communication No. 4/1991, Committee on the Elimination of Racial Discrimination, U.N Doc. CERD/C/42/D/4/1991, para. 6.4 (1993). 109 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Russian Federation, U.N. Doc. CERD/C/304/Add.43, para. 16 (1998); Committee on the Elimination of Racial Discrimination, Decision 1 (52) on the Democratic Republic of the Congo, U.N. Doc. CERD/C/52/Misc. 32, para. 3 (1998); Committee on the Elimination of Racial Discrimination, Concluding Observations on Rwanda, U.N. Doc. CERD/C/56/Misc.38/Rev.3, para. 10 (2000). 110 Ahmad v. Denmark, Communication No. 16/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/1999, para. 9 (2000). 111 Yilmaz Dogan v. The Netherlands, Communiction No. 1 /1984, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/36/D/1/1984, para. 9.4 (1988).

174 Universal Human Rights Conventions Explicitly Requiring Prosecution the necessary testimony.112 The Committee elaborated that the right to effective protection and remedies pursuant to art. 6 of the Convention requires that the States parties investigate with due diligence and expedition threats of racial violence.113 Since the Dutch authorities had failed properly to investigate in that case, the Committee held that ‘in view of the inadequate response to the incidents, the police and judicial proceedings in this case did not afford the applicant effective protection and remedies’.114 Criminal proceedings may thus be challenged due to insufficient investigation.115 In Ahmad Najaati Sadic v. Denmark the Committee criticized that the criminal proceedings under general criminal legislation had not been an effective remedy.116 But resort to criminal sanctions should not be overemphasized. The Committee against Racial Discrimination in its General Recommendation on art. 6 explained that ‘the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination, which is embodied in art. 6 of the Convention, is not necessarily secured solely by the punishment of the perpetrator of the discrimination’.117 It thereby allowed for and emphasized the importance of other measures, such as compensation. Similarly, in B.J. v. Denmark the Committee described refusal of access to public places as a ‘humiliating experience which . . . cannot always be adequately repaired or satisfied by merely imposing a criminal sanction on the perpetrator’.118 It is doubtful whether these pronouncements can be interpreted as an affirmative statement on a right to punishment. In none of the above-mentioned cases was the lack of criminal punishment criticized. The point of criticism was the failure of the police to continue investigations in order to establish whether the author of a communication had been the victim of racial discrimination. In L.K. v. The Netherlands and in Ahmad v. Denmark the focus with regard to the victims’ rights

112 L.K. v. The Netherlands, Communication No. 4/1991, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/42/D/4/1991, para. 2.7 (1993); Ahmad v. Denmark, Communication No. 16/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/1999, para. 6.2 (2000). 113 L.K. v. The Netherlands, Communication No. 4/1991, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/42/D/4/1991, para. 6.6 (1993). 114 Id. at para. 6.7. 115 Ahmad v. Denmark, Communication No. 16/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/1999, para. 6.4 (2000). Though the Committee in that case found a violation of art. 6 it was not due to the absence of a criminal conviction, but because the police had failed to continue their investigations. 116 Ahmad Najaati Sadic v. Denmark, Communication No. 25/2002, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/62/D/25/2002, paras 6.3–6.4 (2003). 117 General Recommendation No. 26, 24 March 2000, 56th Session, para. 2, in U.N. Doc. HRI/ GEN/1/Rev.6 (2003). See also B.J. v. Denmark, Communication No. 17/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/17/1999, paras 6.2–6.3 (2000). 118 B.J. v. Denmark, Communication No. 17/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/17/1999, paras 6.2–6.3 (2000).

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was clearly on the investigation and the establishment of a violation.119 The Committee stressed that the victim had been denied ‘any opportunity to establish whether his rights under the Convention had been violated’.120 It was not the criminal punishment of the offender which was criticized.121 In recent cases there is an indication that the investigation must be part of criminal proceedings in order to provide victims with an adequate remedy according to the Committee. This issue has become relevant in the admissibility stage which requires complainants to exhaust local remedies before bringing cases to the Committee. In Habassi v. Denmark, the respondent State had asked the Committee to declare the complaint inadmissible because the complainant still had the opportunity to seek damages in civil litigation. But the Committee held that civil remedies in domestic law were not adequate avenues of redress.122 The objective of the victim in seeking a conviction could not be achieved by instituting a civil action which would lead only to compensation for damages. The Committee concluded that the author of the communication had exhausted domestic remedies despite the possibility of civil remedies and declared the communication admissible. Regarding the merits of the case, the Committee was more hesitant. Here again, as in previous cases, it based its finding only on the lack of adequate investigation, not on the failure to punish under criminal law. Criminal punishment still does not appear as an element of remedial rights. There has been no case so far in which the Committee has maintained a right to demand criminal punishment.

6. International Convention for the Protection of All Persons from Enforced Disappearances The International Convention for the Protection of All Persons from Enforced Disappearances is a quite recent universal human rights convention which mandates criminal measures.123 Enforced disappearance in art. 2 is defined as: arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by 119 See Ahmad v. Denmark, Communication No. 16/1999, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/D/1999, paras 6.2, 6.4 (2000). 120 Id. at para. 6.4. See also Habassi v. Denmark, Communication No. 10/1997, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/54/D/10/1997, paras 9.3, 9.4 (1999). 121 In Ahmad Najaati Sadic v. Denmark the Commission observed that ‘the notion of “effective remedy”, within the meaning of art. 6 of the Convention, is not limited to criminal proceedings based on provisions which specifically, expressly and exclusively penalize acts of racial discrimination’, Ahmad Najaati Sadic v. Denmark, Communication No. 25/2002, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/62/D/25/2002, paras 6.3–6.4 (2003). 122 Habassi v. Denmark, Communication No. 10/1997, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/54/D/10/1997, para. 6.1 (1999). 123 International Convention for the Protection of All Persons from Enforced Disappearances, U.N. G.A. Res. 61/177, 16 December 2005, Annex.

176 Universal Human Rights Conventions Explicitly Requiring Prosecution concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Such serious human rights violations were regularly committed in some LatinAmerican countries in the 1970s and 80s as a measure to fight opposition. Unfortunately, the practice persists and can be found around the world. Early on, such cases gave rise to numerous complaints in the Inter-American human rights system and to the Human Rights Committee on the basis of the applicable comprehensive human rights conventions. A large part of the jurisprudence on the duty to prosecute was developed on the basis of such cases.124 This was primarily based on the protection of the right to life, the prohibition of torture, and the protection of liberty and security. The duty to investigate often acted as a surrogate because the specific crimes could not usually be established because the enforced disappearances were aimed at and actually resulted in the destruction of any evidence of the crimes committed. To grasp adequately the nature of the offence, the need was felt to elaborate a convention which outlawed and criminalized enforced disappearances as an offence sui generis. After long debate the International Convention for the Protection of All Persons from Enforced Disappearances was finally adopted in 2005 and entered into force in 2008. The entire convention relies heavily on prosecution. Compared with other human rights conventions, it contains the most detailed and elaborate list of criminal obligations.125 Pursuant to art. 4 States parties are obliged to ensure that enforced disappearance constitutes an offence under their domestic criminal law. Such acts must be punishable by appropriate penalties pursuant to art. 7. In determining what penalty is appropriate, States parties need to take into account the ‘extreme seriousness’ of enforced disappearances.126 The question whether this requires the adoption of a specific autonomous offence of enforced disappearance is controversial. Some States have objected to such reading.127 They consider their existing criminal legislation sufficient to deal with enforced disappearances. Others have argued that only an autonomous provision is able to cover in sufficient depth the seriousness of the offence.128 124 See e.g. Velásquez Rodríguez Case, 1988 Inter-Am. Ct. HR (ser. C) No. 4, para. 148 (1988); Bleier v. Uruguay, Communication No. R. 7/30, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/37/40, at 130, para. 15 (1982). 125 For the drafting history see Olivier de Frouville, La Convention des Nations Unies pour la Protection des Toutes les Personnes Contre les Disparitions Forcées: Les Enjeux Juridiques d’une Negociation Exemplaire, Droits fondamentaux, no. 6, January–December 2006, at (last accessed 5 December 2008). 126 Article 7(1). 127 See Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, U.N. Doc. E/CN.4/2006/57, paras 101–102 and Annex II (2 February 2006). 128 Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of all Persons from Enforced Disappearance, U.N. Doc. E/ CN.4/2004/59, para. 49 (23 February 2004).

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The Convention allows mitigating circumstances. For example, if a perpetrator assists in the investigation of the crime then his or her sentence may be reduced.129 On the other hand, there is also an allowance for aggravating circumstances, for example if the victim is pregnant, a minor, a person with disability, or another particularly vulnerable person.130 Article 25 extends the catalogue of offences to wrongful removal of children. It seeks to capture those cases in which a State party takes advantage of an enforced disappearance and removes children from their families. This is usually done either by removal or by misuse of documentation.131 Such steps must also be punished under criminal law.132 All acts of enforced disappearance shall be investigated and those responsible held criminally liable. This obligation not only concerns perpetrators who are State agents but also private offenders.133 The duty to criminalize and prosecute already indicates the overlap of human rights with international criminal law. It becomes even more visible in art. 5 which provides that widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law. Such crimes shall attract the consequences provided for under the rules of international law dealing with crimes against humanity. The United States criticized the provision as vague and aspirational.134 It is unclear whether the provision itself criminalizes widespread or systematic practice of enforced disappearance or whether it is declaratory only. The reference to ‘applicable international law’ suggests that it is not the Convention itself but the norms of international criminal law which are decisive. As with the Genocide Convention,135 the Torture Convention,136 and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others,137 the Disappearance Convention does not only apply to the principal perpetrators. It provides for a detailed catalogue of those who should be held criminally responsible. This includes commission, ordering, soliciting, inducing, attempts, accomplice liability, and participation.138 The Convention is the first among the aforementioned human rights treaties that specifies superior responsibility. Article 6(2) mandates criminal responsibility for:

129 Article 7(2)(a). 130 Article 7(2)(b). 131 Article 25(1)(a) and (b). 132 Article 25(1). 133 Article 3. 134 Human Rights Council, Note Verbale dated 20 June 2006 from the Permanent Mission of the United States of America to the United Nations Office at Geneva addressed to the Secretariat of the Human Rights Council, U.N. Doc. A/HRC/ 1/G/1 (27 June 2006). 135 Article III Genocide Convention. 136 Article 4(1) Torture Convention. 137 Articles 3 and 4 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. 138 Article 6(1).

178 Universal Human Rights Conventions Explicitly Requiring Prosecution A superior who: (i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution.

Such detailed rules on the requirements for individual criminal responsibility can usually be found only in Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC).139 But despite parallels in the overall concept, the particular requirements for superior responsibility in the Disappearance Convention deviate from the provision on superior responsibility in the Rome Statute of the International Criminal Court.140 This divergence has been challenged as inappropriate.141 The purpose of the Disappearance Convention is to ensure that perpetrators of enforced disappearances do not evade responsibility. For this purpose it tries to limit as far as possible potential loopholes, such as statutes of limitation and seeking refuge in foreign countries. Though art. 8 does not rule out statutes of limitation, it limits the scope of its application. Any statute of limitation must be of long duration and proportionate to the extreme seriousness of the offence.142 They may only commence from the time at which the enforced disappearance ceases.143 This ensures that criminal authorities become aware of the offence and have sufficient time to bring charges. Statutes of limitation may not be misused to cover up such crimes. In cases of widespread or systematic practice of disappearance which constitute crimes against humanity the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity is relevant.144 To ensure that those responsible for enforced disappearance are brought to justice, the Disappearance Convention, as with the Torture Convention, provides for

139 See art. 7(3) ICTY Statute; art. 6(3) ICTR Statute; art. 28 Rome Statute. 140 In any event, art. 6(1)(c) provides that the requirements under the Disappearance Convention are without prejudice to the higher standards applicable to military commanders under other international treaties. 141 Human Rights Council, Note Verbale dated 20 June 2006 from the Permanent Mission of the United States of America to the United Nations Office at Geneva addressed to the Secretariat of the Human Rights Council, U.N. Doc. A/HRC/ 1/G/1 (27 June 2006). See also the statement by New Zealand, U.N. Doc. GA/SHC/3872. 142 Article 8(1)(a). 143 Article 8(1)(b). 144 See above sub-section 4.

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a broad scope of jurisdiction.145 States parties shall establish their competence to exercise jurisdiction over disappearances if the offence was committed in their territory and/or if the alleged offender is their national.146 It thus incorporates the principles of territoriality and active personality. The Convention leaves to each party the decision whether it also provides for passive personality jurisdiction.147 The rules on jurisdiction should not be interpreted as providing for the mandatory exercise thereof.148 Though the adoption of measures to establish jurisdiction is compulsory, art. 9 does not deal with the exercise of such jurisdiction.149 It requires each State party only ‘to establish its competence to exercise jurisdiction’. It thus deals with the competence (ability) of a State party to exercise jurisdiction, not with the obligation to exercise it. States parties need to be able to exercise jurisdiction if the offence was committed abroad. But they are not obliged to institute proceedings if the perpetrator is not present on their territory. Only if the alleged perpetrator is present and if he or she is not extradited must a State party exercise jurisdiction.150 In order to ensure such criminal proceedings, States parties shall establish their competence to exercise jurisdiction over those on their territory irrespective of the place of commission of the crime or nationality of the victim and offender (modified universal jurisdiction).151 The Convention sets out detailed rules for the conduct of proceedings. If a suspect is found on the territory of a State party, the competent authorities pursuant to art. 10(1) shall take the suspect into custody. The State party may also take other measures. The purpose of this is to ensure the suspect’s presence at criminal, surrender, or extradition proceedings. The authorities are obliged to carry out an immediate preliminary inquiry or investigation to establish the facts.152 If the arresting State does not extradite the suspect (to another State) or surrender him (to an international criminal tribunal) it must submit the case to its competent authorities for the purpose of prosecution.153 Thereby the Disappearance Convention, as with the Torture Convention,154 incorporates the concept of aut dedere aut judicare. The obligation does not depend on an extradition request by a country having jurisdiction. The mere fact that an alleged perpetrator is not extradited, regardless of the reason, is sufficient to trigger the obligation to submit the case to the prosecuting authorities of the State where the perpetrator is found. The phrase ‘submit the case to its competent authorities for the purpose of prosecution’ 145 Compare art. 9 Disappearance Convention to art. 5 Torture Convention. 146 Article 9(1)(a) and (b). 147 Article 9(1)(c). 148 But see Tullio Scovazzi &Gabriella Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention 301 (2007). 149 This is the subject of art. 11. 150 Article 11. 151 Article 9(2). 152 Article 10(2). 153 Article 11(1). 154 Article 7(1) of the Torture Convention.

180 Universal Human Rights Conventions Explicitly Requiring Prosecution indicates that this is an obligation of means, not of result.155 The authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature.156 This applies also to the standards for evidence which need to be uniform regardless of where the crime was committed and by whom. The investigation must be prompt, thorough, and impartial.157 As soon as a complaint is filed the competent authorities must initiate prompt investigations.158 Such investigations must be undertaken sua sponte even in the absence of a formal complaint once there are reasonable grounds for believing that a person has been subjected to enforced disappearance.159 Effective investigation requires the necessary powers and resources and access to information, documentation, and places of detention.160 If a culprit flees the country where he committed the crime there are two options. Either he is tried in the State party where he is found or he is extradited to and prosecuted by the territorial State. The State party where the accused committed the crime is not required to request extradition under the Convention. If it does so the State party where the accused is found still has the choice between prosecution and extradition. However, it may only refuse to extradite or surrender if it institutes criminal proceedings instead.161 Extradition depends primarily on the domestic law of the State party where the culprit is found and upon any extradition treaty it has concluded with the requesting State party. In order to facilitate extradition, the Disappearance Convention in art. 13 attempts to counter potential obstacles. Similar to the Genocide Convention, it rejects the application of political offence exceptions in extradition treaties in cases where forced disappearances are concerned.162 Therefore, if a treaty provides for a duty to extradite, States parties to the Disappearance Convention are prevented from declining to extradite on the basis of a political offence clause. Enforced disappearance shall be considered an extraditable offence.163 Other provisions in extradition treaties are left unaffected.164 The Convention in art. 24 recognizes the rights of the victim. It sets out a broad definition. Victims are disappeared persons and any individual suffering harm as a direct result of the enforced disappearance.165 They have a right to know the truth regarding the circumstances of the enforced disappearance and the progress and

155 156 157 158 159 160 161 162 163 164 165

Article 11(1). Article 11(2). Article 12(1). Article 12(1). Article 12(2). Article 12(3). Article 11. Article 13(1) Disappearance. See also art. VII Genocide Convention. Article 13(2)–(5). Article 13(6). Article 24(1).

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results of the investigation as well as the fate of the disappeared person.166 Any individual who alleges an enforced disappearance has the right to report the facts to the competent authorities.167 The State authorities shall promptly thereafter examine the allegation in an impartial manner and initiate an investigation where necessary.168 The rights of the victim are concerned with this investigation, not with the criminal punishment of the accused. Article 24(4) guarantees also the right to obtain reparation and prompt, fair, and adequate compensation. The term ‘reparation’ is specified in paragraph 5 and covers material and moral damage and, where appropriate, restitution, rehabilitation, satisfaction, and guarantees of nonrepetition. Criminal sanctions are not mentioned. There is thus no right of victims to demand punishment under the Convention. In order effectively to protect remedial rights, even in situations where a statute of limitation applies, a State party must guarantee the right to investigation, reparation, and compensation during the term of limitation.169 Criminal justice is not envisaged at all costs. The Convention also considers the rights of the accused. While there is an obligation to take those accused into custody if the circumstances so warrant, the procedures must comply with the law of the respective State and may only be maintained for such time as is necessary to ensure a person’s presence.170 At all stages of the proceedings the accused must be guaranteed fair treatment.171 In particular, the rights of due process need to be observed. This involves a fair trial before a competent, independent, and impartial court or tribunal established by law.172 The guarantee of independence works both ways: in the interest of the accused, and in the interest of justice. It ensures that those implicated in a crime are not able to exercise control over the proceedings. The Convention does not contain a provision on amnesties. In this respect it deviates from the Declaration on the Protection of all Persons from Enforced Disappearance by the General Assembly.173 It provides in art. 18 that perpetrators of enforced disappearance shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. The Working Group on Enforced or Involuntary Disappearances in 2005 adopted a general comment on this provision. It elaborated that ‘States should refrain from making or enacting amnesty laws that would exempt the perpetrators of enforced disappearance from criminal proceedings and sanctions’.174 166 Article 24(2). 167 Article 12(1). 168 Id. 169 Article 8(2). 170 Article 10(1). 171 Article 11(3). 172 Id. 173 Declaration on the Protection of All Persons from Enforced Disapperance, U.N. Doc. A/ RES/47/133 (1992). 174 Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/ CN.4/2006/56, p. 17, para. 1 (2005).

182 Universal Human Rights Conventions Explicitly Requiring Prosecution Even amnesties endorsed by referendum ‘should be considered as being contrary’ to the Declaration if they end the obligation to investigate, prosecute, and punish.175 The terminology applied by the Working Group, in particular the term ‘should’, suggests that it does not assume an absolute ban on amnesties. The exact scope for amnesties remains unclear. The Comment allows for pardon in ‘exceptional circumstances’. It provides in paragraph 8: [I]n exceptional circumstances, when States consider it necessary to enact laws aimed to elucidate the truth and to terminate the practice of enforced disappearance, such laws may be compatible with the Declaration as long as such laws are within the following limits: (a) Criminal sanctions should not be completely eliminated, even if imprisonment is excluded by the law. Within the framework of pardon or of the application of mitigating measures, reasonable alternative criminal sanctions (i.e. payment of compensation, community work, etc.) should always be applicable to the persons who would otherwise have been subject to imprisonment for having perpetrated the crime of disappearance; (b) Pardon should only be granted after a genuine peace process or bona fide negotiations with the victims have been carried out, resulting in apologies and expressions of regret from the State or the perpetrators, and guarantees to prevent disappearances in the future; (c) Perpetrators of disappearances shall not benefit from such laws if the State has not fulfilled its obligations to investigate the relevant circumstances surrounding disappearances, identify and detain the perpetrators, and ensure the satisfaction of the right to justice, truth, information, redress, reparation, rehabilitation and compensation to the victims. Truth and reconciliation procedures should not prevent the parallel functioning of special prosecution and investigation procedures regarding disappearances; (d) In States that have gone through deep internal conflicts, criminal investigations and prosecutions may not be displaced by, but can run parallel to, carefully designed truth and reconciliation processes; (e) The law should clearly aim, with appropriate implementing mechanisms, to effectively achieve genuine and sustainable peace and to grant the victims guarantees of termination and non-repetition of the practice of disappearance.176

This suggests that a conditional amnesty, such as the one promulgated in South Africa, may be admissible, provided that it is based on a genuine peace process with the participation of the victims, that there are alternative sanctions, full disclosure, preventive measures, and compensation for victims. Though an earlier draft of the International Convention for the Protection of All Persons from Enforced Disappearances contained a similar provision it did not achieve the necessary approval from the States. The issue of amnesties was controversial in the discussions.177 Some States feared that a prohibition of amnesties 175 Id. at para. 2. 176 Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/ CN.4/2006/56, p. 17, para. 8 (2005). 177 Olivier de Frouville, La Convention des Nations Unies pour la Protection des Toutes les Personnes Contre les Disparitions Forcées: Les Enjeux Juridiques d’une Negociation Exemplaire, Droits fondamentaux,

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might be counterproductive to a peace process.178 Others advocated a provision outlawing amnesties, pardons, and other measures which had the effect of exempting the offenders from any criminal proceedings or sanctions before they were tried and convicted.179 The discussion showed that there has not developed an opinio juris on a prohibition of amnesties. Ultimately, the issue was left open and no provision on amnesties was adopted. The Convention therefore reflects a compromise. Alhough it emphasizes the grave seriousness of enforced disappearance and the need to combat such offences, it still leaves the States parties with some leeway. The overall purpose is to combat impunity for enforced disappearance. Accordingly the Convention relies heavily on criminal measures in order to prevent enforced disappearance. The standards for jurisdiction, extradition, and criminal proceedings seek to complement one another so that perpetrators cannot evade accountability, either at home or abroad. The Convention reflects the insight gained from other human rights conventions as to how effectively to deal with serious human rights violations. It incorporates provisions already found in earlier human rights treaties and further develops the standards in accordance with the jurisprudence of various treaty bodies. Within this framework, the Convention leaves it to States parties to decide the necessary measures. There is no obligation to establish universal jurisdiction or passive personality jurisdiction. But the State party on whose territory a perpetrator is found must react promptly by either extraditing, surrendering, or prosecuting the accused.

2. Comparative analysis The universal treaties explicitly requiring prosecution of human rights offenders show that there has been a tendency over the past 60 years increasingly to ask States Parties for domestic criminal prosecution in respect of particularly serious human rights offences. Punishment is deemed to be an effective measure to prevent specified violations.180 The idea of criminalizing serious human rights violations also entered into several recent instruments such as the Optional Protocol to the no. 6, January–December 2006, pp. 45–48, at (last accessed 5 December 2008). 178 Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of All Persons from Enforced Disappearance, U.N. Doc. E/CN.4/2004/59, para. 76 (2004). 179 Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of All Persons from Enforced Disappearance, U.N. Doc. E/ CN.4/2004/59, para. 74 (2004). 180 See Preambular paragraph 5. As noted above, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968.

184 Universal Human Rights Conventions Explicitly Requiring Prosecution Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, and the International Convention for the Protection of All Persons from Enforced Disappearances.181 The imposition of adequate penalties (criminal or other) is a common factor in these treaties. The offences to be punished by criminal law are crimes of a serious nature, such as torture, genocide, slavery, slave trade, exploitation of prostitution, apartheid, and enforced disappearance. Less serious offences, for example cruel, inhuman, or discriminatory treatment or punishment, and forced labour, are to be prevented but the treaties do not explicitly require their criminal prosecution. The actual method of implementation differs. Some treaties consider international criminal jurisdiction alongside national jurisdiction.182 Others rely on the concept of aut dedere aut judicare. The nationality of the perpetrator is irrelevant for the obligation to prosecute in all conventions. Whether there is an obligation to prosecute or an obligation to extradite will usually depend on where the crime was committed or where the perpetrator is found. The envisaged mechanism is related to the territorial scope of the obligation to punish.183 The Genocide Convention relies primarily on the State party where the offence was committed and leaves extradition to the other State parties. The Torture Convention and the Disappearance Convention incorporate the concept of aut dedere aut judicare. They give primary responsibility to the State on whose territory the perpetrator is found. That country has the choice between punishment and extradition. With the exception of the Torture Convention and the Disappearance Convention, the majority of the above-mentioned human rights treaties do not incorporate the aut dedere aut judicare principle. The Slavery Conventions do not refer to extradition at all. Others, such as the Genocide Convention, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, and the Apartheid Convention, set up a primary duty to punish without referring to the alternative option of extradition. They merely require that the particular crime shall not be considered as a political crime for the purpose of extradition thereby excluding the denial of extradition on the basis of the political offence exception.184 181 The Optional Protocol was adopted by U.N. Doc. A/RES/54/263 on 25 May 2000 and entered into force on 18 January 2002. See arts 3(3) and 10(1). 182 The Torture Convention, the Slavery Convention, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others rely on domestic prosecution exclusively, while the Genocide Convention and the Apartheid Convention also provide for international jurisdiction if accepted by the States parties. The International Convention for the Protection of All Persons from Enforced Disappearances also makes reference to surrenders to international criminal tribunals. 183 The territorial scope of the Apartheid Convention is very broad. The two Slavery Conventions do not explicitly define territorial scope. 184 See art. VII Genocide Convention; art. XI Apartheid Convention; art. 8 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.

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None of the conventions sets up an original unrestricted duty to extradite perpetrators. That primarily depends on the extradition treaties concluded by a State party. Even the Torture Convention leaves the choice between prosecution and extradition to the States parties and provides only that the crime shall be considered an extraditable offence.185 Aside from this, extradition shall be granted in accordance with international and domestic law.186 The Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity goes one step further providing in art. 3 that its States parties undertake to adopt all necessary measures ‘with a view to making possible the extradition, in accordance with international law’.187 All conventions outlined above envisage criminal sanctions. While most treaties refer explicitly to the term ‘punishment’, the Torture Convention and the Disappearance Convention focus on prosecution. The underlying idea is to stress that the duty to take criminal measures is an obligation of means rather than an obligation of result. There is no minimum requirement for sentencing in any of the treaties. The Genocide Convention requires effective penalties; the Slavery Convention mandates severe penalties; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery refers to very severe penalties; and the Torture Convention and the Disappearance Convention require criminalization with appropriate penalties taking into account the grave nature/extreme seriousness of the offence. While these requirements set the mandatory parameters, the States parties are left with a certain margin of appreciation in all the conventions. The appropriate penalty and the prosecution process, therefore, are able to be determined in accordance with the particularities of domestic legal systems.188 The vast majority of the above treaties refer to the main perpetrators and to various other participants. Among the forms of participation which require criminalization are complicity, incitement, conspiracy, preparatory acts, intentional 185 Pursuant to art. 8(1) and (2) of the Torture Convention acts of torture shall be deemed to be included as extraditable offence in any extradition treaty and in absence of such a treaty, the States parties making extradition conditional on the existence of a treaty may consider the Convention as the legal basis for extradition. See also art. 8 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. 186 See art. VII Genocide Convention, art. 8 Torture Convention; art. XI Apartheid Convention. art. 8 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others refers to the law of the State to which the extradition request is made. 187 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity mentions punishment and extradition separately. Adopted and opened for signature, ratification, and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968. 188 Article IV of the Apartheid Convention requires prosecution and punishment by the States Parties ‘in accordance with their jurisdiction’ and art. 12 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others provides that ‘[t]he present Convention does not affect the principle that the offences to which it refers shall in each State be defined, prosecuted and punished in conformity with its domestic law’. See also art. 11(2) Disappearance Convention.

186 Universal Human Rights Conventions Explicitly Requiring Prosecution participation, direct aid, encouragement, cooperation, and attempt.189 Depending on the nature of the particular crime not only State officials but also private individual perpetrators must be punished in order to provide for comprehensive protection of the human right protected. The Torture Convention requires some form of involvement by public officials, as does the Disappearance Convention.190 But the latter also obliges States to bring private offences to justice.191 The Genocide Convention provides that not only State officials but also private individual perpetrators must be prosecuted.192 The Slavery Convention, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others specifically address offences committed by private individuals. The crimes to be punished under the above-mentioned conventions are of such grave nature that none provide a derogation clause.193 The duty to prosecute and punish is phrased to be indispensable especially in the Genocide Convention. Therefore, there is no allowance for proclaiming an amnesty or a general pardon which would run counter to the idea of the convention that perpetrators should be brought to justice and not be spared from punishment so that future violations can be prevented. This was also affirmed with regard to the Torture Convention by the Committee against Torture and the Human Rights Commission’s Special Rapporteur on the Question of Torture. The emphasis on severe penalties for the criminal offence,194 the reference to a conviction,195 or a trial196 and the duty to prosecute and punish do not appear to allow for such truth-commission processes which absolve from criminal punishment. The picture is somewhat different in respect of enforced disappearances. Considering the controversy during its drafting, it can hardly be argued that the Convention is based on the understanding of an uncompromised duty to prosecute. 189 See art. 3 Genocide Convention; art. 4 Torture Convention; art. 6(1) Disappearance Convention; arts 3, 5, 6 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; arts 3, 4 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; art. III Apartheid Convention. The Slavery Convention defines the acts to be punished very widely thereby covering also participation. For example, art. 6 speaks of ‘infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention’. 190 Article 10(1) Disappearance Convention. 191 Article 3 Disppearance Convention. 192 See also the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968. 193 The reason why there is no derogation clause in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others is presumably that there is no need to derogate from the obligations under the Convention in times of public emergency. 194 Article 6 Slavery Convention 195 Article 3(1) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. 196 Article IV Apartheid Convention.

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None of these conventions provide for a right to criminal justice. Remedies for victims, namely the right to an investigation, to redress, and compensation, are provided for only in the Torture Convention and the Disappearance Convention. This is due to the fact that the Genocide Convention and the Apartheid Convention concentrate on the crime as one against humanity and therefore focus on the group rather than on the individual victim. In the other conventions the reason for not providing for a right to claim compensation against States parties which is usually granted only in cases of violations of human rights by State officials,197 is perhaps that they deal mainly with crimes committed by private individuals and therefore do not give rise to State responsibility.198

197 See e.g. art. 2(3) ICCPR. 198 The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in arts 16 and 19(1) merely provides for the care and rehabilitation of victims by the States parties.

6 Conceptualizing the Duty to Prosecute under Human Rights Treaties The overview of human rights treaties and their interpretation by the competent courts and institutions shows the growing importance of criminal measures in the context of human rights at the international and regional level. Criminal prosecution is considered a necessary element to preserve the rule of law and with it to protect human rights. This development is symptomatic of the increasing emphasis on the rule of law in international human rights. To ensure that the offenders are held accountable, international human rights bodies increasingly analyse criminal law and criminal proceedings. The Inter-American and the European Court of Human Rights in particular are developing standards for the conduct of criminal investigations and criminal trials. The requirements resemble one another in large part and apply to all stages of criminal proceedings. One example is the independence and expedience of criminal investigation and trial. The taking and evaluation of evidence in criminal proceedings has also become the subject of judicial scrutiny. Even the sentence and enforcement stage have attracted the attention of these courts. The growing emphasis on the proper administration of justice inevitably leads to a supervisory role for international courts in the analysis of domestic criminal law and procedure. This requires a solid foundation in international law. Especially in the context of general human rights treaties, it is necessary to clarify further why criminal measures are required and to elucidate the specific role of prosecution in the protection of human rights. For this purpose, this chapter highlights common denominators and differences in the courts’ current conceptualization, identifies shortcomings and makes recommendations for the future. Its aim is to assist the development of a consolidated, coherent, and well-founded concept of prosecution in the sphere of international human rights.

1. Comparing different approaches to prosecution and investigation The legal theory of criminal measures in human rights law is still heterogeneous and sometimes incoherent. The analysis of jurisprudence shows that there are important differences. While on first sight there are certain parallels when the

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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Human Rights Committee and the Inter-American Court assume a duty to investigate and punish human rights violations, a closer inspection reveals differences which have considerable practical effects. A common denominator is the duty to investigate human rights violations. Such a duty is assumed by the Human Rights Committee, the Inter-American Court, and the European Court of Human Rights. Investigation is sought as a remedial measure owed to the individual victim and his or her family and as a measure to prevent future violations. But there is no such consensus on punishment as a measure of individual human rights protection. Terminology differs: the Human Rights Committee and the Inter-American Court refer to the duty to punish. But the European Court of Human Rights fell short of deriving an outright duty to punish from the European Convention.1 It refers to an obligation to criminalize particularly serious human rights abuses and to provide for a law-enforcement machinery to prevent, suppress, and punish breaches of criminal law. In individual cases, the Court assumes an obligation to investigate serious human rights abuses under criminal law. Here, the focus is on the investigatory function rather than on actual punishment.

1. Rationalizing the call for prosecution On the basis of various arguments used in the judgments cited, earlier chapters have tried to develop a taxonomy of different legal rationales. Broadly speaking there are two different concepts: criminalization and prosecution are often referred to as general measures of implementation. Their purpose is to protect human rights in general. In this respect, criminal measures form part of procedural human rights protection in the interests of society at large. It is the preventive aspect of punishment that is emphasized here. A different concept is the theory that prosecution serves to protect the individual victim. Here the remedial function of punishment comes into play. The concept comprises three different models of justification. Occasionally the concept is based on the right to a fair trial, sometimes on remedial rights, and at other times on the assumption that punishment serves retrospective protection of the infringed right. The discussion on the role of criminal punishment in human rights law largely reflects the different rationales of punishment in domestic criminal law, ranging from deterrence through retribution to the notion of the rule of law.

A. The right to justice controversy While there is in principle agreement that criminal law is a necessary element of general human rights protection, ideas about the role of victims vary among the 1 This is probably due to the fact that the European Court does not recognize an individual right of the victim to have someone punished.

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competent institutions. The Inter-American human rights institutions have gone furthest in their interpretation of victims rights. The Inter-American Court and Commission, so far, are the only institutions which assume an individual right to criminal prosecution and punishment of those found responsible for serious human rights violations. The path was paved by the Velásquez Rodríguez Case.2 The underlying idea was that punishment serves as a measure to prevent human rights violations and as a measure to protect the individual victim. This idea has progressively influenced the interpretation of the American Convention. While it was originally based on the ‘respect and ensure’ provision there was a shift to the substantive provisions of the right to judicial guarantees and judicial protection. The interpretation of these rights was gradually extended. If there was initially a focus on investigation, the duty to punish is currently of equal importance. Efforts to read a requirement of criminal justice into the Convention have culminated in the assumption of a comprehensive right to justice. While originally the victim’s right to demand punishment depended on whether domestic law gave victims a role in criminal procedure, this requirement was later dropped. Outside the Organization of American States (OAS), the question whether punishment is required in the interest of the particular victim remains unsettled.3 Though the jurisprudence of the Inter-American Court has to a certain extent influenced the Human Rights Committee and the European Court of Human Rights, they have been hesitant to consider criminal measures as a matter of protecting individual victims. The Human Rights Committee in its early jurisprudence had already asked States parties to bring perpetrators of human rights violations to justice. But its focus was on the preventive aspect of punishment.

B. Remedies There is an ongoing evaluation into the right to an effective remedy. The Human Rights Committee assumes an individual right to an official investigation into allegations of human rights violations and a right to be compensated. This interpretation is shared by the other human rights institutions. There is a growing consensus that a criminal investigation should be conducted to provide victims with an effective remedy.4 This is the approach taken by the European Court. The assertion by the Human Rights Committee and the Committee on the Elimination of Racial Discrimination that civil proceedings do not suffice as an 2 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). See above Chapter 3, section 1. 3 For the disagreement in the European Court of Human Rights compare its judgment in VO v. France, App. No. 53924/00, 2004-VIII, Eur. Ct. H.R., Judgment of 8 July 2004, 67, with the Dissenting Opinion of Judge Ress paras 1–2. 4 See also Raquel Aldana-Pindell, An Emerging Universality of Justiciable Victim’s Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes, 26 Hum. Rts. Q. 605, 668–669 (2004).

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effective remedy in cases of serious human rights violations also points in this direction.5 A similar position was adopted by the Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities in the so-called ‘Joinet Principles’6 and was later affirmed in the Updated Principles.7 Criminal authorities are obliged to investigate such allegations carefully. But there is a general reluctance to interfere with the decision of whether to sentence under criminal law.8 The European Court is cautious in deriving from the European Convention merely a right to an investigation capable of leading to the punishment of those responsible for serious human rights violations. It has repeatedly held that the European Convention does not, as such, guarantee the right to have a perpetrator convicted.9 Rather than punishment, it is an official investigation that is owed to the victim. However, it is still unclear to what extent criminal measures are embraced as a necessary remedy for serious human rights violations.The fact that the European Court of Human Rights requires as an effective remedy not merely an official investigation, but one which is capable of leading to punishment, and the fact that the Human Rights Committee in more recent pronouncements has regarded criminal punishment as an effective remedy show a new trend in this subject area. Criminal proceedings are increasingly seen not only as a measure of prevention but also as a measure taken in the interest of individual victims. The influence of the Inter-American jurisprudence is evident. The authors of some individual communications have attempted to persuade the Committee to adopt the Inter-American 5 For the Human Rights Committee see Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/55/D/563/1993, para. 8.2 (1995); Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/1995, para. 8.2 (1997). For the Committee on the Elimination of Racial Discrimination see Habassi v. Denmark, Communication No. 10/1997, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/54/D/10/1997, para. 6.1 (1999). 6 The Special Rapporteur stated that the decision to prosecute is initially a State responsibility. But there should be supplementary procedural rules to allow victims to institute criminal proceedings if the public authorities fail to do so. Louis Joinet, Revised Final Report pursuant to Sub-Commission decision 1996/119, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1, para. 27 (1997). 7 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/Add.1, Principle 19 (2005). 8 See e.g. Yilmaz Dogan v. The Netherlands, Communiction No. 1/1984, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/36/D/1/1984, para. 9.4 (1988). 9 Erikson v. Italy, App. No. 37900/97, Eur. Ct. H.R., Decision as to Admissibility, 26 October 1999, with further reference to Danini v. Italy, App. No. 22998/93, 87 Eur. Comm’n H.R. Dec. & Rep. 24 (14 October 1996); VO v. France, App. No. 53924/00, 2004-VIII, Eur. Ct. H.R., Judgment of 8 July 2004, para. 90. The Court somehow rephrased its earlier assertion that there is no right to demand prosecution into the notion that there is no right to have someone convicted. This was necessary in order to assume an individual right to initiate criminal proceedings. This may also lead the way for the Human Rights Committee. At present, the assertion that criminal prosecution is required somewhat contradicts the traditional concept that there is no right to demand that the State prosecutes another person under criminal law.

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approach by referring to the terminology of the Inter-American institutions.10 In the long run this may lead to the abandonment of the traditional assertion that the Covenant does not provide for an individual right to require a State to prosecute criminally. This step, however, has not yet been made.11 Efforts to persuade the Committee of the existence of an individual right to demand prosecution and punishment have so far failed.12 In particular, the idea that such a right derives from the right to a fair trial has neither been accepted by the European Court of Human Rights nor by the Human Rights Committee.13 There is thus no universal consensus about an individual right to have perpetrators of serious violations punished.14

2. Rationalizing the right to an investigation While the role of criminal sentences continues to be debated, the discussion is uncontroversial with respect to the right to an official investigation because its purpose is merely to establish the facts and not to determine the means of liability. As indicated above, this right is commonly recognized. When the European Court of Human Rights explains the obligation to conduct an investigation capable of leading to the identification and punishment of those responsible, its arguments often resemble those of the Human Rights Committee. Here, again, the taxonomy discussed above becomes relevant. There are three options for deriving the rights of victims to an investigation from the general human rights treaties: the right to an effective remedy, the right to a fair trial, and the rights affected read in conjunction with the duty to protect and ensure. The fair trial arguments have been rejected by both European and universal human rights bodies. The remaining two options are based on different lines of reasoning. One considers investigation as a remedial measure, the other treats it as a form of primary protection. The difference 10 In recent years authors of communications have repeatedly used the term ‘judicial remedy’. 11 Sundara A. L. Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/87/D/1250/2004, para. 9.3 (2006); Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/ C/55/D/563/1993, para. 8.6 (1995); Arhuacos v. Colombia, Communication No. 612/1995, U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/60/D/612/1995, para. 8.8 (1997). The provision on remedies is framed as an individual right. The logical consequence of requiring punishment as a remedy for an individual violation would seem to be the assumption of a corresponding right of the victim. 12 Though the Committee calls on the States parties to criminally prosecute those responsible for particularly serious human rights violations and ascertains that purely disciplinary measures do not provide an effective remedy, it has not yet recognized a corresponding individual right. 13 VO v. France, App. No. 53924/00, 2004-VIII, Eur. Ct. H.R., Judgment of 8 July 2004, para. 90. 14 But see Diane Orentlicher who—similar to Joinet—assumes a right to justice. Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity. U.N. Doc. E/CN.4/2004/88, paras 24–56 (2004); Raquel Aldana-Pindell, An Emerging Universality of Justiciable Victim’s Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes, 26 Hum. Rts. Q. 605 (2004).

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underlying the two ideas is often unclear and requires further clarification.15 The concept of primary protection is that by means of investigation the substantive right of the victim is ensured ex post facto. This concept is still evolving. It goes back to the idea that by not investigating serious human rights violations a State ratifies the violation retrospectively thereby violating the right. This idea also originated from the Inter-American Court of Human Rights.16 It later entered the jurisprudence of the European Court of Human Rights when the Court held that the inability to initiate criminal proceedings in cases of rape violated the right to private life.17 This concept extends the interpretation of protection to retrospective measures. A criminal investigation of serious human rights violations is seen as a measure to secure retrospectively the right of the victim. The overlap with the right to an effective remedy is obvious. This idea has also influenced the interpretation of the UN Torture Convention. The Torture Committee requests the investigation and prosecution of private crimes in order to avoid State responsibility. It considerably extends the scope of primary obligations under the Convention.

2. Significance of the legal rationale This overview demonstrates that the competent human rights institutions are continuously searching for a rationalization of criminal measures in human rights law. This may on first sight appear to be a purely theoretical question but it has considerable practical relevance. The purpose for which prosecution is required necessarily determines the scope of the obligation. For example, the specific form of punishment may vary depending on its purpose. If punishment is required as a measure of prevention, the aspect of social rehabilitation is far more important than if it is sought as a measure of retribution. At the same time, the legal rationale for a duty to punish informs whether punishment is strictly mandatory or can be compromised. This is relevant, for example, in cases of amnesty. The question whether an amnesty is permissible is likely to be determined by the reason for which prosecution is sought. This is evidenced by a comparison of the recent jurisprudence of the Inter-American institutions on amnesties with the decision of the European Commission of Human Rights in Dujardin v. France. In Dujardin 15 The European Court’s jurisprudence, for example, is not clear about the scope and difference between the duty to ensure substantive rights and the duty to provide an effective remedy. See Chapter 4 for the European system. The Human Rights Committee speaks of the interrelation between the positive obligation under the ‘respect and ensure’ provision and the duty to provide effective remedies. See Human Rights Committee, General Comment on Article 2 ICCPR: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/ Add.13, para. 8 (2004). 16 Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, para. 148 (29 July 1988). See above Chapter 3, section 1. 17 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 27.

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v. France the Commission analysed the amnesty law by asking whether the right to life was sufficiently protected in law.18 It denied a right to instigate criminal prosecution under the right of access to a court.19 Instead, punishment was required in order procedurally to protect the right to life. Only if this protection was rendered ineffective, was the non-prosecution considered to be in violation of the European Convention. In that particular case the Commission upheld the amnesty for New Caledonia despite the fact that as a result of the amnesty murder went unpunished. Differing from the European institutions, the Inter-American human rights institutions seek prosecution in order to provide a specific victim with the right to judicial protection. States parties not only violate their obligation if the failure to prosecute leads in the long run to insufficient protection of the right to life, but also in each case where investigation and prosecution fails. Consequently the assumption of a duty to punish as a duty owed to a specific victim led in recent years to increased invalidation of amnesty laws under the Inter-American human rights system. It is increasingly difficult to proclaim an amnesty, especially if serious human rights violations are at stake. The comparison between the European and the Inter-American approaches therefore shows that the more the punishment is required in the interest of the particular victim, the more difficult it becomes to accept measures which absolve perpetrators from criminal responsibility even if the measures are motivated by an interest to re-establish peace. The Inter-American line of legal reasoning is not only relevant for the evaluation of amnesties. It has had a significant impact on all cases concerned with the accountability of perpetrators of serious human rights violations. The assumption of an individual right to have a perpetrator arrested has far-reaching consequences. This is evidenced by the growing scrutiny of criminal justice by the American institutions. The assumption of a right to justice under the American human rights system has led the Inter-American Court of Human Rights increasingly to analyse the administration of criminal justice.20 It even goes as far as analysing the evaluation of evidence against the accused. This is not problematic where the victim’s right to justice and the due process rights of the accused require the same measures, 18 Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (243–244) (2 September 1991). 19 Id. 20 None of the other institutions have gone as far as the Inter-American institutions. Though the European Court in Mahmut Kaya v. Turkey also analysed the criminal procedure of the States for its efficiency and the independence of the institutions involved in the criminal proceedings, this was not done in the interest of the particular victim, but in order to determine whether there were deficiencies which undermined the general protection against later abuses. The Court found that the lack of independence of the institutions involved undermined the effectiveness of the protection afforded by the criminal law. Mahmut Kaya v. Turkey, App. No. 22535/93, ECHR 2000-III, Eur. Ct. H.R., Judgment of 28 March 2000, para. 98. But there is no case in which the European Court scrutinized particular criminal proceedings in order to determine whether the interest of the victim in the criminal conviction of the offender was adequately dealt with.

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such as an expeditious trial. But since the accused and the victim are on different sides, their interests generally conflict. Criminal law, therefore, is increasingly becoming an area of conflict between the rights of the accused to have perpetrators of human rights violations properly tried and punished and the rights of the accused to have his or her due process rights observed, to be free from arbitrary interference with his or her liberty, and to social integration. While originally the criminal trial was scrutinized to ensure that the due process rights of the accused were respected, the right to a fair trial has somewhat changed sides as now it is sought to protect the victim’s interest in the prosecution and punishment of those responsible, too. With the right of the victim to justice understood as being a right to material justice, not only procedural but also substantive aspects are taken into account. These far-reaching consequences give rise to the question whether this is what the protection of human rights stands for. Is it the purpose of human rights protection to set standards to ensure that offenders are punished? Ultimately the assumption of victims’ rights could lead to requirements concerning the length and nature of criminal sentences. It is, however, doubtful whether this type of scrutiny is adequate for an international human rights body.21

3. Evaluation: the duty to prosecute and its proper legal rationale The difference between the jurisprudence of the various human rights institutions shows how important it is to evaluate carefully the purpose and scope of a duty to prosecute. Instead of readily assuming a uniform and comprehensive duty to punish, there is a need first to determine why punishment is an element of human rights protection. The above assessment shows an element of trial and error in the interpretation of the respective human rights conventions and the ongoing struggle within the systems in respect of the duty to punish. Some issues are far from being settled. As shown above, the jurisprudence still lacks a coherent theoretical approach. The courts have not yet developed a consistent legal methodology for their jurisprudence in these matters, much less a coherent terminology for their legal reasoning. Their jurisprudence is frequently intuitive, lacking in consistency, and mixed in its differing arguments. In the future it will be necessary to develop a systematic approach. To assist this, an evaluation and interpretation of the relevant provisions will be outlined. The reason why the right to a fair trial and judicial guarantees do not support a right to criminal justice have been set out above22 so

21 According to the European Court of Human Rights, it cannot substitute itself for the domestic courts by assessing evidence submitted by an applicant in support of his complaint. Perez v. France, App. No. 47287/99, Eur. Ct. H.R., Judgment of 12 February 2004, para. 55. 22 See above Chapter 2, section 2.3.A, Chapter 3, section 2.2.B.b, and Chapter 4, section 2.3.A.

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that the focus will now be on the respect and ensure provisions and the right to an effective remedy.

1. Prosecution as a matter of human rights law To derive a duty to prosecute from human rights law it is not enough simply to argue that prosecution and punishment in practice can serve both aspects, prevention and retribution. A State may in practice punish for both reasons. But it is an entirely different issue whether a State has a corresponding legal obligation. In order to determine the role prosecution plays in international human rights law we must ask which of the multiple purposes of punishment are in the interest of human rights protection. Does human rights law require prosecution for the prevention of future abuses? Do human rights oblige States to prosecute human rights violations in order to provide victims with satisfaction or redress? Even if prosecution in practice serves the interests of individuals this does not mean that the human rights protection of victims makes it mandatory for States to punish human rights perpetrators. Only if these interests are protected by human rights law and if they indeed require prosecution, can a corresponding individual right be assumed. At first sight, a duty to prosecute and punish seems alien to the concept of human rights protection which was originally framed to protect against interference by the State. The duty to punish comes as a consequence of a broader reading of human rights protection including not only negative rights but also positive rights. It turns the traditional approach into an embrace of State power. Public interests, such as rule of law notions, are read into human rights. It then goes further. While positive rights were initially rights directed against a State to give positive assistance or protection,23 the obligation to punish requires intervention.24 It is the most intrusive form of mittelbare Drittwirkung. The assumption of a duty to punish thus creates a new generation of human rights law.25 That a duty to punish had already found expression in several human rights treaties, such as the Genocide and Torture Convention, shows its acceptability for certain very serious human rights violations. Nonetheless, it is necessary to have regard to the far-reaching effects of the assumption of a comprehensive duty to punish.

23 The concept found expression in German Constiutional Law. See Peter Szczekalla, Die sogenannten grundrechtlichen Schutzpflichten im deutschen und europäischen Recht (2002). The terms used are ‘Teilhaberechte’ and ‘Leistungsrechte’. 24 Such intrusion may be justified due to the crime committed but it is still a restriction of personal liberty. 25 It adds objective rules to human rights law which was traditionally concerned with negative rights.

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A. The ‘respect and ensure’ provisions Turning to the question whether and from which provision a duty to prosecute can be derived from the comprehensive human rights treaties, the ‘respect and ensure’ provisions play a central role in this evaluation. They can be found in the International Covenant on Civil and Political Rights,26 the American Convention on Human Rights,27 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.28 While in the preceding chapters the interpretation by the different treaty bodies was elaborated on, the following is a personal evaluation. In the first step, the question will be asked whether a State is indeed under a duty to prosecute and punish those responsible for human rights violations in order to prevent future violations. In the second step, the concept of retrospective protection and, finally, remedial rights of the victim will be evaluated. a. Prosecution as prevention Though criminal punishment figures as a central measure to establish peace and justice particularly in western societies, there is the risk that the demand for punishment is informed by western notions of justice rather than by universal human rights standards.29 This is not to be misunderstood as an argument against the universality of human rights. When evaluating the suitability of criminal punishment for the effective protection of human rights, we do not question the validity of the substantive human rights but instead deal with the question of implementation. There can be no question that States are required to abstain from conduct which violates human rights. There is no derogation from these negative duties (duties of abstention). But once active conduct of the States is at issue there could be variations. The implementation of human rights needs to be shaped according to the specific exigencies in the States concerned.30 To hold that criminal punishment is necessary for the protection of human rights may seem appealing at first sight but it is too general. It carries the risk that States limit the protection of human rights to criminal prosecution without adopting alternative positive measures of protection. There is a broad range of possible ways to effectuate human rights. This is evidenced by art. 2(2) of the International Covenant on Civil and Political Rights which provides that ‘each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its 26 Article 2(1) ICCPR. 27 Article 1(1) ACHR 28 Article 1 ECHR uses the term ‘secure’. 29 But see Van Dyke who asserts that in ‘any orderly civilized society, prosecution of criminals is an essential responsibility’. M. Van Dyke, The Fundamental Human Right to Prosecution and Compensation, 29 Denv. J. Int’l L. & Pol’y 77, 99 (2001). 30 Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its Article 2 para. 2, 5 Max Planck UNYB 399 (2001).

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constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant’. This provision has been traditionally interpreted by the Human Rights Committee as leaving States parties with considerable leeway to choose the measures of implementation.31 To be clear, the discretion of States may be reduced to nil if there is only one single possible and necessary means of enforcement. But in order to ascertain a duty to prosecute human rights violations it does not suffice simply to point out that punishment serves the protection of human rights. Taking into account that detention is an intrusion into liberty, such punishment must not only be suitable but also necessary in the sense of an ultima ratio.32 Only if punishment is the single effective and adequate means to protect human rights, is there a corresponding duty.33 The idea that criminalization of certain serious abuses is required in order effectively to secure certain human rights, has been endorsed by a large number of international institutions. Most prominent is the jurisprudence of the Human Rights Committee and the Inter-American Court of Human Rights which is detailed above. Theo van Boven, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his draft of the Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law also referred to the duty to prosecute and punish perpetrators of crimes deriving from the obligation to respect and to ensure respect for human rights.34 A similar approach has been adopted under the constitutional law of some countries. One example is the first judgment of the German Constitutional Court on abortion. The Court developed a new theory of proportionality with respect to positive obligations (‘Untermaßverbot’). This theory prohibits insufficient protection of civil rights, especially in the protection of life. The Court held that the 31 For a detailed analysis of the exigencies under this provision, see Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its Article 2 para. 2, 5 Max Planck UNYB 399 (2001). 32 The jurisprudence of the German Constitutional Court, with the requirement of ultima ratio, follows a similar approach. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 39 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 1 (45) (F.R.G.); 88 BVerfGE 203 (258) (F.R.G.); 90 BVerfGE 145 (172, 199–200) (F.R.G.). See also Anja Seibert-Fohr, The Fight against Impunity under the International Covenant on Civil and Political Rights, 6 Max Planck UNYB 301, 331 (2002). Orentlicher describes punishment as ‘the most effective—and therefore only adequate— means of ensuring a narrow class of right that merit special protection’ without, however, explaining this requirement. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2568 (1991). See also Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 370, 377–378 (1999). 33 Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 377–378, 380 (1999). 34 Theo van Boven, Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law (in U.N. Doc. E/CN.4/ 1997/104, Appendix, para. 2 (1997)).

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German government was under an obligation to criminalize abortion in order effectively to guarantee the life of the nasciturus.35 Later, however, the Court withdrew from this position, making room for alternative measures of protection. It left the legislators to decide on the means of protecting the unborn during the early stages of pregnancy.36 This experience, though concerned with domestic civil rights, should be considered when evaluating international human rights standards. It is important to note that even in Germany, which has a long tradition of assuming positive obligations of civil rights protection, there is a reluctance to assume comprehensive obligations to prosecute human rights abuses under criminal law. Criminal punishment is required only if it is the ultima ratio for the effective protection of civil rights.37 Preventive measures are generally preferred over repressive measures.38 That States have a certain leeway in measures of implementation is also the view of the European Court of Human Rights. In X. and Y. v. The Netherlands the Court, in principle, accorded to the States a margin of appreciation in the choice of means to secure compliance with the right to private life. However, it held that where fundamental values and essential aspects of private life are at stake, such as in the case of rape, effective deterrence could be achieved only by criminal-law provisions.39 The question whether punishment in the sense of criminal prosecution is required depends on the affected right and on the seriousness of the particular violation. This is because the scope of the duty to protect depends on the substantive right at issue. The protective obligations regarding the right to life are wider than those with regard to, for example, the freedom of speech. The margin of appreciation is limited if essential aspects of fundamental human rights are at issue.40 The reason for this is among others the fatal result in cases of recurrence. This applies in particular to the rights to life and the protection against torture.

35 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 31 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 1 (46–47, 55 et seq.) (F.R.G.). See also 66 BVerfGE 203 (F.R.G.). 36 BVerfG, 88 BVerfGE 203 (254, 257) (F.R.G.F). See Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 376 (1999). The question whether the killing of the nasciturus (unborn child) needs to be punished under criminal law pursuant to the European Convention of Human Rights was left open by the European Court of Human Rights in VO v. France, App. No. 53924/00, 2004-VIII, Eur. Ct. H.R., Judgment of 8 July 2004. 37 BVerfG, 88 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 203 (258) (F.R.G); 31 BVerfGE 1 (47) (F.R.G.). 38 BVerfG, 31 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 1 (44) (F.R.G.). 39 X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985, para. 27. 40 The fact that the seriousness of the violation informs the interest in prevention is overlooked when Schilling asserts merely that this is a reason of material justice. Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 369, 376 (1999).

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The criterion of seriousness is the result of a balancing approach which weighs the duty to prevent future violations against the interests of the accused. It is not enough simply to argue that punishment is the most effective means to assume a comprehensive duty to punish. In cases of less serious violations a State does not need to take the most effective means if the result, namely criminal punishment, is not proportionate. The effectiveness required depends on the seriousness of the violation at issue. The more serious a violation, the more important is its prevention by means of deterrence, and the more compelling the interest in punishing the offender.41 The degree of seriousness of a violation is not only informed by the right at issue but also by the gravity of the particular offence. For example, in cases of medial negligence the European Court of Human Rights denied a duty to criminalize even if the right of life was at issue.42 Aside from the mens rea there are additional factors which need to be taken into account according to the Court’s jurisprudence. Independent of the seriousness of a violation it must be determined whether a criminal sanction is indeed effective to deter further abuses or whether alternative sanctions are preferable. Doubts have been raised, for example, as to whether criminalization of sexual abuses provides for effective deterrence.43 The answer to this question can ultimately be given only on the basis of an in-depth criminological analysis which is beyond the scope of this text. While there appears to be universal consensus that grave human rights abuses, such as murder, require punishment, there are considerable differences with regard to other abuses, such as hate speech. European States are certain that an effective protection requires criminalization of such conduct. However, the belief of the United States in the marketplace of ideas, has led the Supreme Court to rule out criminal punishment of hate speech as incompatible with the First Amendment.44 The United States therefore declared a reservation to the relevant human rights treaties. These different approaches do not merely provide evidence for a different human rights understanding, but also for the fact that protection of human rights may be achieved by different means. To a certain extent the measures necessary to protect human rights depend on the 41 The International Law Association has cautioned not to overstate the deterrence rationale pointing to the Second World War and incidences in Kosovo despite the announcement of holding perpetrators accountable. International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, London Conference 2000, p. 4, at (last accessed 5 December 2008). While the deterrence rationale should certainly not be overstated, the cited cases of armed conflict do not bring into question the general need for criminal law for the most serious human rights violations as a measure of deterrence. 42 Calvelli and Ciglio v. Italy, App. No. 32967/96, Eur. Ct. H.R., Judgment of 17 January 2002, para. 51. 43 Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357 (1999). But see European Court of Human Rights in X. and Y. v. The Netherlands, App. No. 16/1983/72/110, 91 Eur. Ct. H.R. (ser. A), Judgment of 27 February 1985. 44 See e.g. R.A.V v. City of St. Paul, 505 U.S. 377 (1992).

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situation existing in a particular country. An example is the protection of minority rights. As long as the marketplace of ideas guarantees the effective protection of minorities, there is no need for prosecution. Even if resort to criminal law is deemed to be necessary to provide for effective protection by means of prevention, it does not necessarily mean that there is an absolute obligation to punish every serious human rights abuse. There is a difference, on the one hand, between requiring a State to legislate to criminalize serious abuses and requiring it to set up an effective law-enforcement machinery and, on the other hand to question whether a State is required actually to enforce criminal law in every case of maltreatment, especially in times of transition. The European Court of Human Rights refers to criminalization, the establishment of a criminallaw machinery, and the duty to apply such machinery. There is a general duty on States to establish an effective criminal law system. It goes without saying, that a criminal law system provides for effective deterrence only if it is implemented. But this does not require an absolute duty to punish even in times of transition. Only if the conduct of the law-enforcement machinery jeopardizes the validity of criminalization is there a failure adequately to protect. Especially where there is a climate of impunity which gives rise to further serious human rights violations, there is undoubtedly a duty to punish grave human rights abuses. This duty derives from the duty to ensure the enjoyment of fundamental human rights. The pronouncements of the international human rights bodies should be understood in this sense since these usually concern systematic failures to prosecute serious human rights abuses.45 A culture of impunity is contrary to human rights law regardless of whether the abuses are committed by State officials or private individuals. This is confirmed by all human rights institutions. In sum, instead of assuming a comprehensive duty to punish all human rights violations, it is advisable first to look to the specifics of a case to determine which measures are necessary to ensure effectively the rights at issue. The determination of whether punishment is required as an ultima ratio will often depend on the gravity of a violation. Less serious violations may be addressed by a variety of countermeasures. Even where punishment is required, the particular form of punishment may vary. While a relatively short time of imprisonment may be deemed inadequate in certain criminal jurisdictions, this may not be the case in more liberal systems. What is essential is the coherence and effectiveness within a particular system. Prosecution is only a matter of means, not of outcome. It requires procedures which comply with the fair trial rights of the accused. These rights should not be compromised in the interest of notions of material justice.46 Justice can only be 45 This not only applies to the concluding observations of the Human Rights Committee but became apparent also in the Turkish cases dealt with by the European Court of Human Rights. 46 Unfortunately, the right to justice doctrine seems to go in another direction. See Case of La Cantuta v. Peru, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 162, para. 149 (29 November 2006).

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achieved by means of a procedure which complies with the principle of due process.47 It would not be in accordance with the right to a trial by an independent court and with the presumption of innocence if the outcome of a trial was predetermined by a duty to punish. Instead of focusing on the outcome, more attention should be given to the process. Accordingly, the Human Rights Committee and the Torture Committee have called upon States parties ‘to exercise due diligence’ in criminal proceedings.48 Unfortunately, not all terminology applied by the competent human rights institutions reflects this approach. Instead of referring to a duty to punish which suggests a specific outcome, the term ‘duty to prosecute’ which emphasizes the procedure is preferred here. For the future, it is important to distinguish between the different stages of criminal proceedings (criminal investigation, criminal trial, sentence, and enforcement) and to specify the role human rights play in the respective stages. The development of such a scheme has been attempted in the above analysis of cases. Important measures, apart from criminal prosecution, are disciplinary sanctions. The removal from office of perpetrators of serious human rights violations is an essential element in the prevention of future violations. An effective official investigation is indispensable, not only to provide the victim with an effective remedy but also to prevent recurrence. It is therefore necessary to inquire about the reasons and the structures which enable the commission of serious crimes. Even if a duty to punish is assumed, it should not distract from a necessary and comprehensive approach which is not limited to repressive and legal measures, but additionally comprises practical measures, such as human rights education. This requires creativity on the part of the States and of the international human rights institutions. When a duty to prosecute is derived from the ‘respect and ensure’ provisions it should be borne in mind that this is a utilitarian concept.49 Prosecution is not required for its own sake, but as a means of achieving the purpose of human rights protection. As shown above, there is only a duty to prosecute if it is necessary for the protection of human rights.50 There is, above all, a duty to criminalize serious human rights abuses and to provide for an independent and effective law-enforcement machinery. There is also a duty, in principle, to carry out the prosecution of the 47 In Osman v. United Kingdom the European Court of Human Rights stressed the need to ensure that the police exercise their powers in a manner which fully respects the due process. Osman v. United Kingdom, 1998-VII Eur. Ct. H.R. 3159–3160, para. 116. 48 Human Rights Committee, General Comment on Article 2 CCPR: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, paras 8, 16 (2004); Committee against Torture, General Comment No. 2, U.N. Doc. CAT/C/GC/2, para. 18 (24 January 2008). 49 Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 369 (1999). Schilling, however, does not distinguish between the aspect of protection of the individual and the prevention of future atrocities. See id. at 369. 50 See id. at 393.

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perpetrators of serious human rights violations. But, if the enforcement of criminal law runs contrary to overall human rights protection—which is the very purpose of the duty to prosecute—no such duty can be assumed.51 b. Retrospective protection of substantive rights So far, the ‘respect and ensure’ provisions have been dealt with as a matter of general human rights protection. But this is merely one aspect. As indicated above, these provisions have also been repeatedly cited in the context of individual cases.52 It has been argued that punishment has the purpose of re-establishing respect for the norm and therefore serves the protection of the individual.53 The failure to prosecute is considered a form of complicity in the crime. According to this theory, States are required to prosecute serious crimes in order to avoid responsibility. It is submitted that this theory is not able to sustain a comprehensive duty to prosecute. It may become relevant only in particular cases. For example, if there is a general practice which indicates an unwillingness to hold perpetrators of serious human rights violations accountable, this could be regarded as a form of acquiescence which is contrary to the protection of human rights. As Thomas Buergenthal pointed out, widespread impunity constitutes a ‘retroactive ratification of the offences committed’.54 Furthermore, if the failure to prosecute results in insufficient protection against further abuses, the argument can be made that a State has not complied with its duty to secure fundamental human rights. In cases where an investigation has the potential of preventing further abuses of the victim, the argument can be made that an investigation is required as a form of primary protection. For example, in cases of forced disappearance where the fate of the victim is uncertain, there needs to be an effective investigation to prevent the death of the victim. The same applies to domestic violence.55 51 Anja Seibert-Fohr, The Fight Against Impunity under the International Covenant on Civil and Political Rights, 6 Max Planck UNYB 301, 332 (2002). See also Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 369, 393 (1999); Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 Yale L.J. 2619 (1991). 52 The Human Rights Committee adopted this approach in Joaquin Herrera Rubio et al. v. Colombia, Communication No. 161/1983, U.N. GAOR, Suppl. No. 40, Hum. Rts. Comm., U.N. Doc. A/43/40 190, paras 11–12 (1988). It held that the State party had violated the right to life because it had failed to investigate effectively the responsibility for the victim’s murder. 53 See also George P. Fletcher, What Is Punishment Imposed For?, 5 J. Contemp. Legal Issues 101, 101 (1994). 54 Human Rights Committee, Summary Record of the 1519th Meeting: Peru, U.N. Doc. CCPR/C/SR.1519, para. 44 (1997). 55 The Committee on the Elimination of Discrimination against Women has repeatedly held that States parties are obliged to investigate and punish acts of domestic violence. Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against Women (11th Sess., 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 243 (2003), para. 9. In Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice v. Austria the Committee found a violation of art. 2(a)

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But not every failure to punish can be considered to be complicity. The complicity rationale and the Velásquez Rodríguez reasoning is sometimes overstretched. The Velásquez Rodríguez Case concerned the systematic failure by State authorities to react to forced disappearances generally. The shortcomings in this case illustrated a pattern which ultimately perpetuated criminal practice. But it does not follow that any shortcomings in criminal proceedings automatically amount to aiding and abetting. The complicity rationale can be applied only if there is a nexus between the shortcomings and the violation. Therefore, it is necessary to consider the specific circumstances of a case. Though the failure to prosecute may in specific cases amount to violation of a substantive right,56 there is no general rule giving victims a right to demand prosecution as a means by which to protect their lives in retrospect. Not every case in which a murder goes unpunished constitutes a violation of the victim’s right to life. This insight seems to gain ground in the OAS. The Inter-American Court of Human Rights in the Las Palmeras Case rejected the assertion that the State had to provide an ex post facto procedure to protect the right to life.57 According to the Court, the failure to investigate does not in general constitute a violation of the duty to protect life. Currently, if punishment is sought in the interest of the victim the Court no longer frames it as a measure necessary to protect the right which was affected by the violation. Instead it is derived from the right to judicial protection.58 The Human Rights Committee also adopts this approach. In its General Comment on art. 2 it pointed out that [t]here may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. (Emphasis added.)59 and (c)–(f ) and art. 3 read in conjunction with art. 1 because police had known or should have known that the victim was in serious danger. The Public Prosecutor should not have denied the request to arrest and detain the perpetrator. U.N. Doc. CEDAW/C/39/D/6/2005, para. 12.1.4 (2007). 56 Where state authorities are reluctant to hold perpetrators of serious human rights violations accountable so that their conduct can be regarded as a retrospective ratification of the crime at issue, the failure to prosecute constitutes a violation of the substantive right affected by the crime. This is the case if there is a general practice aimed at the systematic prevention of prosecution. 57 Las Palmeras Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 90, para. 42 (6 December 2001). But see Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (29 July 1988). The InterAmerican Court currently assumes on a regular basis a violation of the right to judicial guarantees and judicial protection. 58 The idea of retrospective protection seems to have disappeared from the concept of the InterAmerican Court. If the Court refers to the ‘respect and ensure’ provision it is for the preventive aspect of punishment and not in the interest of the individual victim. 59 Human Rights Committee, General Comment on Article 2 CCPR: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 8 (2004).

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This indicates that not every failure to punish is a violation of the substantive right affected. When the Commission refers to circumstances in which there is a violation, it presumably has in mind cases in which a general failure to prosecute crimes indicates a form of acquiescence. But there may also be circumstances under which the failure to prosecute does not constitute a violation of the right to life.60 It is in any event doubtful whether punishment can be considered a form of primary protection for the victim. After all, punishment does not make an offence non-existent.61 Punishment seen from the victim’s perspective is not a form of primary protection but of redress or satisfaction. The case is different with respect to investigations. Arguably, an investigation into allegations of human rights abuses is a means by which a State is able to demonstrate that it retains the protection of human rights and is thereby able to re-establish the validity of the affected right. This is a reasonable argument to sustain a right to an investigation as a matter of primary protection. But, to this end, the sanction itself is not necessary, as long as the abuse is clearly rejected by the State.

B. The right to an effective remedy Turning to the question whether a duty to punish human rights violations can be derived from the right to an effective remedy, it has to be taken into account that this idea has become relatively popular, not only in the OAS but also among human rights advocates.62 The approach was taken by Louis Joinet, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. He was entrusted to conduct a study of the impunity of perpetrators of civil and political human rights violations by the Sub-Commission and submitted his final report in 1997. In his view, the right to an effective remedy ‘implies that all victims shall have the opportunity to assert their rights and receive a fair and effective remedy, ensuring that their oppressors stand trial and that they obtain

60 Even the European Commission of Human Rights in Dujardin v. France did not derive a comprehensive duty to punish from the right to life. Though the amnesty at issue meant that a number of murders went unpunished, it was not held to be in violation of the right to life. Dujardin v. France, App. No. 16734/90, 72 Eur. Comm’n H.R. Dec. & Rep. 236 (244) (2 September 1991). 61 But see George P. Fletcher, What Is Punishment Imposed For?, 5 J. Contemp. Legal Issues 101, 101 (1994). 62 See e.g. Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice 37 (1995). Van Dyke even assumes a fundamental right to prosecution. M. Van Dyke, The Fundamental Human Right to Prosecution and Compensation, 29 Denv. J. Int’l L. & Pol’y 77 (2001). See also Méndez who assumes a right of victims to see justice done by means of process. Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 277 (1997). Even the Committee against Torture appears to be moving this direction. In Kepa Urra Guridi v. Spain the Committee criticized the granting of a pardon and concluded that the State party, though having paid compensation, had violated its duty under art. 14(1) which required not only compensation but also restitution, compensation, and rehabilitation of the victim. Kepa Urra Guridi v. Spain, Communication No. 212/2002, Committee against Torture, U.N. Doc. CAT/C/34/D/212/2002, para. 6.8 (2005).

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reparations’.63 Similar to the Inter-American institutions, he assumes a right to justice which ‘entails obligations for the State: to investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them’.64 However, such pronouncements have not gone unchallenged.65 It is submitted that the idea that punishment is required to provide the victim with satisfaction,66 is alien to the idea of human rights. It is one thing to require criminalization to prevent further abuses, but quite another to request punishment to provide the victim with satisfaction. The right to justice, though a powerful term, is questionable, especially if it is understood as a right to criminal justice. Human rights are not concerned with retaliation.67 Even if a victim feels relief and satisfaction once those responsible for a human rights violation have been punished, it is doubtful whether the protection of the victim’s human rights requires it to be mandatory.68 Justice may be achieved by other means. This was obviously also the understanding of the drafters of the most prominent and comprehensive universal human rights treaty, the International Covenant on Civil and Political Rights. In the drafting process, this issue was considered and the inclusion of criminal punishment as a 63 Louis Joinet, Revised Final Report pursuant to Sub-Commission decision 1996/119, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1997/20/ Rev.1, para. 26 (1997). 64 Id. at para. 27 (1997). In her independent study Diane Orentlicher held that the Principles as a whole had been strenuously affirmed by recent developments. Though she uses the term ‘right to justice’ she does not say that victims have a right to criminal justice. Diane Orentlicher, Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat All Aspects of Impunity, U.N. Doc. E/CN.4/2004/88, paras 24–56, 65 (2004). 65 Nino, for example doubts that there is a right that someone else is punished for a past crime. Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 Yale L.J. 2619, 2621 (2621). 66 But see Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the U.N. General Assembly on 16 December 2005, U.N. Doc. A/ RES/60/147 (2006), Annex, para. 22(f ). Judicial and administrative sanctions against persons liable for gross human rights violations are considered a form of satisfaction and thus a matter of reparation for the victims. 67 See also Joint Partly Dissenting Opinion of Judges Pastor Ridruejo, Ress, Makarczyk, Tulkens, and Butkevych, in V. v. United Kingdom, App. No. 24888/94, Eur. Ct. H.R., Judgment of 16 December 1999, p. 171. 68 Theo van Boven who elaborated the first draft of the Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law (in U.N. Doc. E/CN.4/1997/104, Appendix, para. 2 (1997)), holds that the victim ‘generally does not possess the right to make a criminal claim in order to bring the perpetrator(s) to justice’. Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 352 (Christopher C. Joyner ed., 1998). But see Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 263 (Christopher C. Joyner ed., 1998).

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remedy was rejected.69 The Covenant was never meant to include a right to criminal punishment. It is noteworthy that there is no international human rights convention recognizing in its text a right to criminal justice. Though there are numerous conventions providing for a duty to criminalize and prosecute, none refer to a corresponding individual right. Neither the Genocide Convention, the Torture Convention, nor the more recent Disappearance Convention provides for an individual right of the victim to demand punishment. The duty to prosecute and punish is framed as an objective duty. It is possible to argue that retribution is one of the functions of punishment and therefore entirely acceptable. However, the question whether there is a right to demand punishment must be distinguished from different theories of criminal punishment. Even if it is considered to serve as retribution in a number of States it does not mean that there is a corresponding civil right. After all, retribution is not necessarily exercised in the interest of the particular victim.70 Retribution, as a matter of re-establishing the rule of law, is in the interest of society and, according to Kant’s enlightened theory of retribution, in the interest of the perpetrator himself.71 Even if a sentence is in the interest of a victim it does not follow that this is the result of victim’s human right. In rejecting a right to punishment, it is not intended here to deny victims of human rights violations a right to reparation. The rights of victims have long been neglected.72 The growing concern of the UN institutions in this area is therefore laudable.73 Reconciliation and lasting peace cannot ultimately be established without taking due account of the victims. These goals can be achieved only in concert with the victims. The continued suffering of victims if their rights are disregarded 69 See U.N. Docs E/CN.4/SR.195 (1950); E/CN.4/365 (Philippines), A/C.3/L.1166 (Japan). See also Oscar Schachter, The Obligation to Implement the Covenant in Domestic Law, in International Bill of Rights 312, 326 (Louis Henkin ed., 1981). 70 Méndez argues that retribution means that society does not tolerate the violation of rules. His argument is not necessarily related to the victim. It is doubtful anyway whether an ‘enlightened theory of punishment’ provides for punishment in order to signal to the victims that their plight will not go unheeded. But see Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 276 (1997); George P. Fletcher, What Is Punishment Imposed For?, 5 J. Contemp. Legal Issues 101 (1994). 71 See the ‘Sühnetheorie’ and ‘Vergeltungstheorie’ by Kant and Hegel. Immanuel Kant, The Metaphysical Elements of Justice (John Ladd trans., 2nd edn, 1999) (1797); Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right (William Hastie trans., 2002) (1796); Georg W.F. Hegel, Elements of the Philosophy of Right (Allen W. Wood ed., H.B. Nisbet trans., 1991) (1821). 72 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 350 (Christopher C. Joyner ed., 1998). 73 See e.g. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the U.N. General Assembly on 16 December 2005, U.N. Doc. A/ RES/60/147 (2006), Annex, para. 4.

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should not be underestimated. After the ending of civil conflict especially, there needs to be a comprehensive strategy taking due account of the victims’ rights: foremost, the cessation of continuing violations is vital. But all this does not require a right to criminal punishment. Remedy means the enforcement of a right or the redress of an injury.74 If restitution in integrum is not possible, there are further options for reparation. The Disappearance Convention lists material and moral damage, restitution, rehabilitation, satisfaction, including restoration of dignity and reputation, and guarantees of non-repetition among the means of reparation.75 Punishment is not included in this list. What is necessary is the rehabilitation of the victim.76 This may be achieved by means other than punishment.77 One important measure is the investigation of an offence.78 This sheds light on the facts and identifies those responsible. The participation of the victims and their families is an important factor in the healing process.79 By conducting an investigation, a State demonstrates that it does not condone the abuse. It also re-establishes the validity of a right in principle, acknowledges the suffering of victims, and condemns the injustice suffered by them. Acknowledgment is an important element of reconciliation.80 At the same time, the intention to avoid repetition is demonstrated.81 This is not only in the interest of general prevention but also important for the victim himself.82 There are 74 Black’s Law Dictionary 536 (pocket edn, 1996). With respect to the right to an effective remedy under the human rights instruments the following should be observed: The purpose of a remedy apart from redress is not the deterrence of potential violators in general. Though deterrence may be the effect, the purpose of a remedy is to right the wrong committed. The point of departure for a remedy is therefore not what happens in the future but the violation committed in the past. Even if it requires steps to be taken after the event, it is not future-centred but, rather, a retrospective measure providing for redress. 75 Article 24(5) Disappearance Convention. 76 This to a certain extent requires the re-establishment of the validity of the affected right. 77 Méndez argues that victims have a ‘right to a process that fully restores them in the enjoyment of their rights and their dignity and worth that society owes to each of its members’. He leaves open whether prosecution and punishment are the only forms of such restoration. Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 277 (1997). 78 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the U.N. General Assembly on 16 December 2005, U.N. Doc. A/RES/60/147 (2006), Annex, para. 4. 79 Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 266 (Christopher C. Joyner ed., 1998). 80 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 353 (Christopher C. Joyner ed., 1998). 81 Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 269 (Christopher C. Joyner ed., 1998). 82 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human

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numerous alternative remedial measures. Apart from the investigation, an apology and commemorations are further measures to provide victims with satisfaction.83 Reparation can, to a certain extent, also be provided by the payment of compensation.84 Victims should be able to pursue their rights in civil proceedings. Taking all these potential measures into account, it is difficult to hold that without punishment no effective remedy is provided.85 Effective remedy has recently been interpreted to include not only redress for the victim but also deterrence of future violations.86 Dinah Shelton, for example, argues that the early arbitral awards regarding injuries to aliens show a strong deterrent element.87 But even under a broader definition of the right to satisfaction including, for example, punitive damages, it is doubtful whether there is a right to demand criminal punishment under the right to an effective remedy.88 Here, again, is a view to national law: the US Restatement of Torts lists among the purposes for which actions of tort are required, the deterrence of wrongful conduct. But this Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 353 (Christopher C. Joyner ed., 1998). 83 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the U.N. General Assembly on 16 December 2005, U.N. Doc. A/RES/60/147 (2006), Annex, para. 20. 84 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 352 (Christopher C. Joyner ed., 1998). 85 Taking into account that punishment means an invasion, an individual right can be claimed only if punishment is necessary in order to remedy the violation or, in other words, if there is adequate redress only if the perpetrator is punished. It is doubtful whether punishment itself is a necessary element of redress. Though punishment acknowledges the injustice suffered by victims, furthers their rehabilitation, and may result in a feeling of satisfaction this may also be achieved by alternative measures. 86 Dinah Shelton, Remedies in International Human Rights Law 13–14, 427 (2nd edn, 2005). According to van Boven, reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Theo van Boven, Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, in U.N. Doc. E/CN.4/1997/104, Appendix, para. 7 (1997). 87 Dinah Shelton, Remedies in International Human Rights Law 103 (2nd edn, 2005). 88 The jurisprudence of the arbitral awards is analysed below. See Chapter 7, section 1. The analysis demonstrates that it is doubtful whether the arbitral awards can be taken as evidence of a customary international law rule that States are obliged to criminally punish those responsible as a consequence of an international criminal act. In a number of cases criminal punishment is dealt with as a form of primary protection, not as satisfaction for an international wrongful act. The deterrence rationale of criminal punishment is thus not an element of satisfaction but the rationale for the primary duty. Though there are awards which provide for punitive damages they cannot be taken as evidence for a rule that victims have a right to demand criminal prosecution. Furthermore it is one thing to require criminal punishment in the interest of a State under the law on aliens but quite another to require it as a right under the international human rights conventions. Even if there is a right to demand punishment for the injury to aliens care should be taken in applying the argument to human rights law. After all, what is construed as an individual right here is the demand that another person serves a criminal sentence.

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rationale is limited to damages and does not result in a right to have someone punished under criminal law.89 Even in Germany where positive rights have a long constitutional tradition, the Constitutional Court has continuously denied the existence of an individual right to have perpetrators of human rights violations punished.90 As mentioned above, the German Constitutional Court assumes an objective duty to criminalize serious abuses and to have an effective law-enforcement machinery where effective protection cannot be guaranteed by alternative measures.91 This duty serves the protection of constitutional rights in general. According to the Court, the State satisfies the duty to protect by criminalizing abuses, establishing an effective law-enforcement machinery, and providing for procedures for those injured.92 But there is no corresponding individual right to have someone punished at law.93 Even the right to judicial guarantee does not provide for such an individual right.94 The German Constitutional Court merely assumes a duty to investigate allegations of crimes effectively. This obligation is derived from the right to judicial guarantee.95 Though victims under German criminal procedure are entitled to submit a motion for the initiation of criminal proceedings, there is no right to claim punishment.96 The decision of a criminal court not to initiate criminal proceedings may be challenged only if the investigation was insufficient.97 The allegations of the victim need to be taken into due account.98 But there is no right to have the substantive decision

89 American Law Institute, Restatement (Second) of Foreign Relations Law of the United States, Torts, Sect. 901 (1962). 90 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 51 Entscheidungen des Bundesverfassungsgericht [BVerfGE] 176 (187) (F.R.G.); BVerfG, File No. 2 BvR 1551/01, Decision of 5 November 2001, para. 12 (F.R.G.); BVerfG] [Federal Constitutional Court] File No.2 BvR 2104/01, Decision of 8 March 2002, para. 14 (F.R.G.). 91 See e.g. BVerfG, 51 Entscheidungen des Bundesverfassungsgericht [BverfGE] 324 (345) (F.R.G.).; 39 BVerfGE 1 et seq. (F.R.G.). For a survey of the jurisprudence of the Court see Peter Szczekalla, Die sogenannten grundrechtlichen Schutzpflichten im deutschen und europäischen Recht 119–122 (2002). 92 BVerfG, File No. 2 BvR 2104/01, Decision of 8 March 2002, para. 23 (F.R.G.). 93 BVerfG, 1993 Neue Juristische Wochenschrift 915 Nr.2,3 (F.R.G.); BVerfG, File No. 2 BvR 1492/96, Decision of 10 February 1997 (F.R.G.). 94 The right to judicial guarantees (‘Recht auf rechtliches Gehör’) is protected in the German Constitution under Art. 103 Grundgesetz. 95 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 1314/97, Decision of 4 May 1998, para. 16 (F.R.G.). 96 This procedure is called ‘Klageerzwingungsverfahren’. See § 172 StPO [Strafprozessordnung] [Code of Criminal Procedure]. The victim may not challenge the discontinuation of criminal proceedings when the accused is ordered to pay a fine only pursuant to § 153a, para. 1 StPO [Strafprozessordnung] [Code of Criminal Procedure]. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 1551/01, Decision of 5 November 2001, para. 16 (F.R.G.). For the right to initiate criminal proceedings (‘Anzeigerecht’), see Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 74, 257 (262) (F.R.G.). 97 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 1314/97, Decision of 4 May 1998, paras 16–19 (F.R.G.). 98 Id. at para. 16.

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reviewed unless there have been serious errors.99 The German Constitutional Court in a decision concerning a discontinuation of criminal proceedings explained that the victim did not have a legal position to challenge constitutionally the decision of the criminal authorities.100 There was no violation of the victim’s rights when the authorities evaluated the public interest in prosecution.101 The Court accorded a broad margin of appreciation to the criminal authorities in this respect.102 The denial of a right of the victim to compel criminal prosecution was deemed to be in accordance with the German Constitution.103 This jurisprudence is symptomatic of the widely held conviction that criminal punishment primarily concerns the public interest of the State. Even if the criminal procedure in a number of countries provides for certain participatory rights of the victim it is usually not viewed as the result of constitutional civil rights. The procedural rights of victims in criminal procedure are usually limited to the right to initiate and participate in the proceedings. But there is no right to secure criminal convictions. Not even the former UN Commission on Human Rights in the Updated Set of principles for the protection and promotion of human rights through action to combat impunity assumed such a right. Though reference is made to a ‘right to justice’ and a State duty to prosecute, the principles do not refer to a right to secure criminal conviction.104 In fact, it is acknowledged that the decision to prosecute is initially a State responsibility.105 States are merely encouraged to enable victims to institute criminal proceedings.106 The conclusion that there is no remedial right to have perpetrators of human rights violations punished, should not be misunderstood as giving States unfettered discretion in dealing with such abuses. There is indeed a duty to hold perpetrators 99 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 2104/01, Decision of 28 March 2002, paras 16, 19, 21 (F.R.G.). 100 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 1551/01, Decision of 5 November 2001, para. 12 (F.R.G.). The decision to discontinue criminal proceedings is usually under the condition of a fine and may be rendered in cases of misdemeanour. § 153 a StPO [Strafprozessordnung] [Code of Criminal Procedure]. 101 Id.; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 51 Entscheidungen des Bundesverfassungsgericht [BverfGE] 176 (187) (F.R.G.). 102 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] File No. 2 BvR 1551/01, Decision of 5 November 2001, para. 15 (F.R.G.). 103 Id. at para. 12 (F.R.G.). 104 U.N. Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/ Add.1, Principle 19 (2005). 105 Id. See also Louis Joinet, Revised Final Report pursuant to Sub-Commission decision 1996/119, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), SubCommission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/ Sub.2/1997/20/Rev.1, para. 27 (1997). 106 The phrase ‘victims . . . should be able to institute proceedings’ indicates its non-mandatory nature. U.N. Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/ Add.1, Principle 19 (2005).

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of human rights abuses accountable. But criminal punishment is not required in the interest of the particular victim; instead it is in the interests of general human rights protection. This does not mean that impunity and the victims’ rights are entirely distinct issues. The phenomenon of impunity is often linked with the denial of effective remedies.107 If State authorities fail to prosecute those responsible for serious human rights violations no alternative mechanism of investigation normally exists. In most cases there is a general unwillingness to deal with the abuses, not only criminally but also at the level of administrative or civil proceedings. As a result, the right to an investigation which is a central element of an effective remedy is denied. Furthermore, the absence of an official investigation makes it, at the least, difficult to pursue civil claims so that compensation may be obtained by victims. This is why the UN Torture Committee, for example, in O.R., M.M. and M.S. v. Argentina criticized the Argentine Punto Final and the Due Obedience Acts which had left the victims without compensation, as incompatible with the Torture Convention.108 The reason impunity has a negative impact on victims’ rights is primarily the absence of an investigation, the reluctance to deal with past abuses, and the lack of compensation. It is not due to the absence of punishment. Therefore, if there is an alternative mechanism of investigation the rights of the victims may be safeguarded even if the perpetrators are not criminally punished. What is necessary is an independent official investigation which sheds light on past serious human rights abuses, determines those responsible, and therefore enables a genuine process of coming to terms with the past. The argument has been made that there cannot be reparation for the psychological destruction of the victims as long as impunity for the violators remains.109 This is certainly true if past events have not been dealt with. But if there is an investigation, determination of those responsible, and publication and recognition of guilt by the State then a healing process does not require criminal punishment of the perpetrators at all costs.110 107 Asbjorn Eide, Preventing Impunity for the Violator and Ensuring Remedies for the Victim, 69 Nordic J. Int’l L. 1, 1 (2000); Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 353 (Christopher C. Joyner ed., 1998). It should be noted, however, that this link does not necessarily warrant a right to bring criminal charges. The right to reparation can be secured by alternative measures. 108 O.R., M.M. and M.S. v. Argentina, Communications Nos. 1/1988, 2/1988 and 3/1988, Committee against Torture, in Report of the Committee against Torture, U.N. Doc. A/45/44, Annex V, p.108, at p. 112, para. 9 (1990). 109 Paz Rojas Baeza, Impunity: An Impossible Reparation, 69 Nordic J. Int’l L. 27 (2000). 110 See the discussion of psychological premises for reconciliation including the establishment of truth commissions by Sveaas and Lavik. They argue that investigation alone without sanction is not sufficient and that the emotional imbalance is to some extent restored through humiliation of the perpetrator. Public disclosure, as in the case of the African Truth and Reconciliation Commission, is regarded as one form of humiliation. Nora Sveaass & Nils Johan Lavik, Psychological Aspects of Human Rights Violations: The Importance of Justice and Reconciliation, 69 Nordic J. Int’l L. 35, 49–50 (2000).

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For the future it would be advisable to define the term ‘remedies’ more clearly. Not every measure which is applied in response to a human rights violation is necessarily a remedy.111 The term ‘remedy’ in the international human rights conventions describes a concept which is owed to the victim.112 Therefore, if the Human Rights Committee considers criminal measures a necessary remedy, it can easily be misunderstood as an affirmation of a corresponding individual right. To avoid misconception, the concept should be limited to such elements which can be claimed by the victim.

2. Evaluation of amnesties To address adequately serious human rights violations the following standards must be observed: foremost, such violations need to be investigated. To hold perpetrators accountable may be achieved in various ways. Even if criminal punishment is usually necessary to confront particularly serious human rights violations the answer may need to be varied on the ground of exceptional circumstances.113 Punishment is not to be misunderstood as a ritual. It is not an end in itself.114 Whether there is still room for amnesties depends on the notions and reasons for which punishment is sought in international human rights law. Though the ideas about whether an amnesty can serve to prevent future human rights violations vary, there is more leeway for conditional amnesties when the focus is on prevention rather than retribution. A large number of international scholars, though advocating the prosecution of serious human rights violations in principle, are prepared to allow for certain exceptions.115 It is important to note that most international human rights courts and treaty bodies have also stopped short of pronouncing an outright prohibition of amnesties despite the fact that they have been very critical of a number of amnesties.116

111 But see Dinah Shelton, Remedies in International Human Rights Law 465 (2nd edn, 2005). 112 See e.g. art. 2(3) ICCPR; art. 13 ECHR. 113 If the deterrence rationale is applied there is no absolute duty to prosecute. 114 In cases where prosecution does not serve the lasting protection of human rights a duty to prosecute cannot be derived from the ‘respect and ensure’ provisions. 115 Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 538 (1994); Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255 (1997); Andreas O’Shea, Amnesty for Crime in International Law and Practice 165 et seq. (2002); Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 347 (Hans-Joachim Cremer et al. eds, 2002). In this sense see also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2600–2603 (1991); Diane F. Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, 1 Int’l J. of Trans’l Justice 10, 15 (2007). But see U.N. Doc. E/CN.4/2004/88 (2004). 116 The Human Rights Committee uses the term ‘generally incompatible’. General Comment 20 on Article 7 (1992), in HRI/GEN/1/Rev.1, at p. 31, para. 15; Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 7

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There has been extensive writing on the pros and cons of prosecution in transitional societies.117 Some authors favour reconciliation at the expense of punishment arguing that non-prosecution enables a return to peace; others argue that reconciliation requires punishment. As Louis Joinet stated, ‘[t]here can be no just and lasting reconciliation without an effective response to the need for justice’.118 According to some authors, the return to peace argument has only short-term appeal because the deterrence of future human rights abuses requires investigation, prosecution, and compensation even if it is disruptive in the short run.119 Amnesties are regarded as giving rise to further atrocities.120 Argument is made that reconciliation cannot be achieved by words of sorrow, but that wrong must be made right by punishing the perpetrators.121 The necessary elements of reconciliation, according to this concept, are not only an apology, an investigation, and compensation for the victims but also the prosecution of wrongdoers.122 It is not the task of this text to comment on different theories of reconciliation and justice.123 Rather, it is to set out the international legal standards for dealing with serious human rights violations. What is advocated here is a differentiated approach. No allowance should be made for ready and simplistic answers with regard to amnesties. It is not accepted here that truth is preferable to justice, nor that reconciliation requires amnesties.124 There is no absolute prohibition of amnesties for serious human rights violations. It seems that all international law can do is to raise awareness of the issue of impunity and to provide the basis for a balanced evaluation. What ultimately counts for the question here at issue is whether one or the other model is more apt to secure human rights in a particular

(1999); Human Rights Committee, Concluding Observations of the Human Rights Committee: Congo, U.N. Doc. CCPR/C/79/Add.118, para. 12 (2000). 117 For a summary of the two approaches see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2541–2546 (1991). See also Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998 (Christopher C. Joyner ed., 1998). 118 Louis Joinet, Revised Final Report pursuant to Sub-Commission decision 1996/119, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1997/20/ Rev.1, para. 26 (1997). Joinet demanded not to accord amnesty to perpetrators before victims have obtained justice by means of an effective remedy. Id. at para. 32. In his view, truth and reconciliation commissions do not offer an alternative to criminal justice. Louis Joinet, La lutte contre l’impunité, in Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide 621,628 (Morten Bergsmo ed., 2003). 119 Jon M. van Dyke, The Fundamental Human Right to Prosecution and Compensation, 29 Denv. J. Int’l L. & Pol’y 77, 99 (2001). 120 Id. at 80. 121 Id. at 87. 122 Id. at 87 et seq. 123 For a recent study questioning the dilemma between justice and peace, see Edel Hughes et al. (eds), Atrocities and International Accountability: Beyond Transitional Justice (2007). 124 Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 273 (1997).

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set of circumstances. Given the vast differences between transitional societies, there is no room for one-sided answers as to whether the protection of human rights is better served by prosecution or alternative measures or even both. As Thomas Buergenthal, during his work as a member of the UN Truth Commission for El Salvador, put it, ‘whether trials are held, sanctions imposed, compensation awarded, or amnesties granted, these are all considerations that may well depend upon the nature of the conflict, the national character of the country, the political realities, and compromises that produced the end of the conflict’.125 It should, therefore, be left to political and social scientists to consider each particular situation at hand and to evaluate the potential for lasting peace. This evaluation necessarily depends on a prognosis and thus involves uncertainties which are inevitable. There is a trend for strengthening the requirements and increasingly to rule out amnesties. This is due to the experience gained from a deferential approach and in several instances the insistence on prosecution has indeed been successful in breaking the vicious circle of impunity.126 But it is doubtful whether an uncompromised absolute prohibition of amnesties would serve the interest of effective human rights protection.127 If there is a strict reading, States may find themselves in a situation of deadlock with the result that conflict continues. This would certainly undermine the credibility and even the force of human rights law. In such a situation the idea of lasting human rights protection may be better served by providing for an exception. As Méndez said, there may be situations in which favouring forgiveness is better suited to avoiding recurrence but this is not a rule.128 To accommodate the exigencies of a particular situation there is a need for some flexibility. The guiding principle is the duty to respect and ensure human rights. This duty is a rule of hard law and legally binding on States parties. Whether an amnesty is permissible ultimately depends on the application of this principle to the situation at hand. The advantage of its general formulation is that it provides for the necessary flexibility in such cases where return to peace can be achieved only by compromising the call for prosecution. By setting out the overall purpose, namely the effective protection of human rights, it gives ample guidance in the search for a solution. The frequently deplored lacuna of the comprehensive human rights conventions with regard to punishment of serious human rights violations 125 In his view, the minimum requirement is an investigation of past events in order to achieve reconciliation. Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 544 (1994). 126 One example is the case of Sierra Leone. See also the examples cited by Diane F. Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, 1 Int’l J. of Trans’l Justice 10, 22 (2007). 127 See also Orentlicher who argues that international legal standards requiring prosecution should be interpreted in a manner which accomodates constraints faced by transitional governments. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2612 (1991). 128 Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 276 (1997).

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is not thus a shortcoming but allows for solutions in conflict situations. Whether such flexibility could be achieved by the adoption of an international treaty on the admissibility of amnesties is doubtful. A set of firmly established rules is unlikely to resolve the issues at stake. Furthermore, considering the controversy during the drafting of the Disappearance Convention it is highly unlikely that an international consensus could be achieved for the adoption of such a treaty.129 There are several important factors to be considered when evaluating an amnesty. The purpose of an amnesty, its scope, and its concrete form including alternative measures are relevant for the following reasons.130 The prevention of future human rights violations is crucial in the determination of steps which are required to secure human rights effectively. This will usually require prosecution of serious human rights violations.131 But if a conflict can be halted only by way of compromise, the prevention of more atrocities is an important consideration.132 Therefore, it is important to take into account the purpose of an amnesty. It is important to distinguish blank impunity from faithful efforts to re-establish peace, security, and respect for human rights. If the purpose of an amnesty is to shield offenders from responsibility, the respect for human rights is nullified. Such amnesties are impermissible. However, if a State refrains from prosecution with the aim of re-establishing peace, there is room to argue that this is the result of a compromise which is ultimately warranted in the interest of lasting human rights protection and therefore in accordance with the ‘respect and ensure’ provisions.133 Another factor which needs to be taken into account is the scope of an amnesty, namely the nature of the offences covered. The more limited the scope and the more efforts are made to exclude the most heinous crimes, the better an argument can be made that an amnesty is in line with the ‘respect and ensure’ provisions.134 129 Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Insturment for the Protection of All Persons from Enforced Disappearance, U.N. Doc. E/ CN.4/2004/59, paras 74–76 (2004). 130 According to O’Shea, amnesties need to be judged against their purpose, scope, and means of implementation. Andreas O’Shea, Amnesty for Crime in International Law and Practice 165 (2002). 131 The UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to prevent crimes. S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993); S.C. Res. 955, U.N. Doc. S/RES/955 (8 November 1994). 132 In Buergenthal’s view, amnesties after a civil war may be a legitimate means of ending conflict. Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 538 (1994). But see O’Shea who argues that the necessity to deter repetition outweighs considerations of reconciliation and attainment of peace. He does not take into account that the attainment of peace immediately serves the prevention of human rights violations. Andreas O’Shea, Amnesty for Crime in International Law and Practice 114 (2002). 133 See Jochen Abr. Frowein & Wolfgang Peukert, Europäische Menschenrechtskonvention (2nd edn, 1996), Article 2, para. 33. He argues that art. 2 of the European Convention is not violated if an amnesty is warranted by specific reasons and if it does not seek to prevent punishment in general. 134 According to O’Shea, very serious and repugnant human rights violations may not be amnestied because an amnesty for such perpetrators would not assist national reconciliation. Andreas O’Shea, Amnesty for Crime in International Law and Practice 181 (2002).

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Some authors have even suggested selective prosecution depending on the degree of culpability, starting from the top where possible, or for exemplary trials.135 If this is combined with alternative mechanisms which take into account the victim’s right to an investigation and to compensation it will be difficult to argue that the failure to prosecute others violates the obligation to respect and ensure human rights. For this purpose a truth commission could be established as a means of transition from injustice to peace.136 Despite the lack of criminal punishment such a mechanism could serve a twofold purpose. The genuine inquiry into and the analysis of past human rights violations seek to prevent future violations, try to bring the parties together, and give guidance for the future. At the same time, they confront the perpetrators with their wrongdoing. This is also a form of accountability. What is ultimately required by human rights law is that human rights violations do not go unanswered. Perpetrators of serious human rights violations must be held accountable. The early jurisprudence of the Human Rights Committee used the notion ‘bring to justice’. There is nothing in the comprehensive human rights conventions which determines that accountability and justice are limited to criminal punishment.137 Though the Inter-American Court considers criminal punishment as the only adequate form of accountability for serious human rights violations, it is difficult to see why alternative forms of accountability should be excluded if peace, and with it the lasting protection of human rights, is at risk. To limit the interpretation of the conventions to criminal punishment, it is submitted, is not only unnecessary but also unwarranted. Though the above analysis of the international jurisprudence demonstrates a highly critical approach towards amnesties, it should be taken into account that most amnesties at issue 135 Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 267, 274 (1997); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2598 (1991). 136 According to Schilling, human rights are better served by a democracy rather than a return to the previous regime with the potential for new violations. Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 394 (1999). See also Tomuschat who gives some deference to a responsible decision of a people which seeks to make a fresh start after a period of suffering. Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 347 (Hans-Joachim Cremer et al. eds, 2002). 137 The jurisprudence of the European Court of Human Rights which requests criminal investigation in cases of serious human rights abuses should not be misinterpreted as excluding altogether the establishment of truth commissions. Kaya v. Turkey, App. Nos 158/1996/777/978, Eur. Ct. H.R., Judgment of 19 February 1998, para. 87; Mahmut Kaya v. Turkey, App. No. 22535/93, ECHR 2000III, Eur. Ct. H.R., Judgment of 28 March 2000, paras 98–99. The cases before the Court were not concerned with this problem. The decision to rely on the criminal law system to protect human rights was taken by the State itself. In the absence of alternative measures the Court was called upon to evaluate whether the measures taken provided adequate protection. Thus, in cases where the only means of an official investigation is to have a criminal investigation such investigation is indeed required under the comprehensive human rights conventions. But this does not necessarily exclude the establishment of alternative mechanisms of investigation.

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were self-amnesties, blanket amnesties, or at least amnesties with a broad scope. The conditional amnesty of South Africa has not so far been the subject of international scrutiny.138 Another aspect should also be considered: there may be situations in which the call for criminal justice could lead to injustices incompatible with the human rights standards of the international instruments. The UN Truth Commission for El Salvador139 in its Report pointed out that under certain conditions in a country and due to the situation of the administration of justice there may be insurmountable difficulties in the prosecution of alleged perpetrators.140 As the Commission stated, in a situation where the judiciary is not capable of fulfilling the requirements of justice the ‘question is not whether the guilty should be punished, but whether justice can be done’.141 The Commission in drafting its recommendations was faced with the dilemma that ‘public morality demands that those responsible for the crimes . . . be punished’. However, El Salvador had no system for the administration of justice which met the minimum requirements of objectivity and impartiality so that justice could be done.142 Indeed, apart from the fear that justice would not be reliably rendered, the Commission described a judicial debate in the context of the prevailing situation as counter-productive because it could have revived old frustrations. This would have impeded the achievement of reconciliation which was described by the Commission as the ‘cardinal objective’.143 Since it was not possible to guarantee a proper trial for all those responsible for crimes, it was deemed unfair to hold some of them in prison while those who had planned the crimes or also took part in them remained at liberty.144 Generally speaking, in situations where criminal prosecution will inevitably result in new violations of judicial guarantees and where reconciliation is actually hampered, a duty to prosecute cannot be derived from the obligation to respect and ensure human rights because it would be counterproductive. The UN Truth Commission for El Salvador therefore advocated a balanced approach, recommending a ‘process of collective reflection’,145 a dismissal from office of those perpetrators of crimes still serving in the armed forces,146 the dismissal of civilian 138 O’Shea argues that a refined and limited amnesty might be considered to be consistent with international human rights instruments. Andreas O’Shea, Amnesty for Crime in International Law and Practice 171 (2002). 139 The Commission on the Truth for El Salvador was established in 1992 pursuant to the Salvadoran Peace Accord. For a detailed account see Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497 (1994). 140 U.N. Truth Commission, The Commission on the Truth for EL Salvador, Report of the Commission: From Madness to Hope, U.N. Doc. S/25500, Annex, p. 177 (1993). 141 Id. at p. 178. 142 Id. 143 Id. at pp. 178–179. 144 Id. at p. 185. The Commission recommended ‘a pardon after justice has been served’. Id. 145 Id. 146 Id. at p. 176.

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government officials and members of the judiciary who committed or covered up serious acts of violence or failed to investigate them, disqualification of those responsible for serious acts of violence from holding public office for at least ten years and permanently from positions related to public security and national defence.147 It further recommended a pardon ‘founded on a universal determination to rectify the mistakes of the past and on the certainty that this process will not be complete unless it emphasizes the future rather than the past’.148 This did not give carte blanche for an amnesty thereby closing the door on retrospective measures but called for responsible and active handling of the past. Despite the very serious human rights violations which under normal circumstances should be punished, according to the Truth Commission’s understanding,149 it did not ask for criminal trial at all costs. In the Commission’s own words, the State after civil unrest ‘must move on from a situation of confrontation to one of calm assimilation of all that has happened, in order to banish such occurrences from a future characterized by a new relationship of solidarity, coexistence and tolerance’.150 Reconciliation and unification of society was deemed to be of cardinal importance in this respect. This approach was future-oriented. To ensure that the past would not be repeated the Commission recommended transition to a democratic country where the rule of law and human rights would be observed.151 The steps to be taken with respect to the crimes committed had to focus on the future rather than on the past ‘which, no matter how abhorrent the acts which occurred, cannot now be altered’.152 Apart from the recommendations made, the choice of concrete measures to be taken was ultimately left to the people of El Salvador. The Commission neither recommended criminal trial nor an amnesty because an amnesty required a national consensus that it would promote reconciliation.153 Despite the balanced recommendations given by the Commission, the government of El Salvador granted a comprehensive amnesty only days after the publication of the report by the Commission. This blanket amnesty was arguably not in line with the balanced approach advocated by the UN Truth Commission but certainly did not nullify the work of the Commission.154 147 Id. 148 Id. at p. 185. For further recommendations designed to promote reconciliation see id. at pp. 184–187. 149 Id. at p. 177. 150 Id. at p. 185. 151 Id. at pp. 174–175. 152 Id. at p. 185. 153 Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 536 (1994). 154 It is doubtful whether blanket amnesty not based on a national consensus can be said to be in furtherance of reconciliation. However, according to Buergenthal the amnesty did not affect the Commission’s recommendations because it had not called for a criminal trial. Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 538 (1994).

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It is recognized that the approach advocated here is not the one currently pursued by the Inter-American human rights institutions. Especially in the interpretation of the American Convention of Human Rights, there has been a development from setting up minimum requirements for amnesties to statements which show a broad rejection of self-amnesties and amnesties for serious human rights violations. There is no allowance for a balancing approach with respect to such amnesties. But it is doubtful whether this is the way forward. The jurisprudence of the Inter-American institutions has been criticized as too strict to work in practice.155 Ultimately, the acknowledgement of certain minimum requirements may better serve the purpose of human rights protection than the elaboration of rigid rules.156 Among the minimum requirements which have so far crystallized, are the prohibition of self-amnesties and the prohibition of amnesty for genocide.157 There must be an official investigation leading to the determination of individual responsibility.158 Perpetrators of serious offences need to be removed from office and remain excluded from service in the military, the police force, and the judiciary in order not to hamper the transition to security, democracy, and the rule of law. There is a need for democratic decision based on a national consensus that an amnesty would promote reconciliation. In this process particular attention should be given to minorities, especially if they were the target of the crimes which occured. Further steps would be necessary to re-establish respect for human rights, ensure non-recurrence, and promote national reconciliation. The compensation and rehabilitation of victims is an important element not only to provide for redress but also as a necessary measure of reconciliation.159 This survey shows that the question of an amnesty’s compatibility with international norms is not only about 155 William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467, 522 (2001); Ellen Lutz, Responses to Amnesties by the Inter-American System for the Protection of Human Rights, in The Inter-American System of Human Rights 345, 370 (David J. Harris & Stephen Livingston eds, 1998); Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857, 869 (1995); Michael P. Scharf, Trading Justice for Peace: The Contemporary Law and Policy Debate, in Atrocities and International Accountability: Beyond Transitional Justice 246 (Edel Hughes et al. eds, 2007). 156 See also Tomuschat, who criticizes categorical answers to the issue of amnesty. Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 344 (Hans-Joachim Cremer et al. eds, 2002). The idea of minimum requirements had previously been expressed by Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857, 870 (1995). 157 See also Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 347 (Hans-Joachim Cremer et al. eds, 2002). 158 The following requirements are the result of the above analysis and comparison of the jurisprudence of the Human Rights Committee and the Inter-American human rights institutions. 159 A State may be overburdened by the requirement to provide adequate compensation to all victims. In such cases national institutions and programmes serving as a channel of redress may provide an alternative.

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the existence of a duty to punish. Though an uncompromised duty to punish would render an amnesty incompatible with international law, the non-existence of such a duty does not mean that an amnesty is automatically permissible. As elaborated on above, there are obligations, apart from prosecution, that need to be taken into account, such as the duties to investigate and to compensate.160 The approach advocated here is a flexible one with certain minimum requirements.161 It is not to give States an unfettered discretion in post-conflict situations.162 It needs to be shown that the model chosen is genuinely intended to serve the protection of human rights. A conclusion should not be rushed into that prosecution is impossible.163 The jurisprudence under the various comprehensive human rights treaties may even be taken as an indication of a reputable presumption for the criminal prosecution of serious human rights violations (unless it is shown that an alternative mechanism is necessary). But this should not lead to a situation where the international community substitutes the views of a people with its own. The evaluation of the factual circumstances is primarily for the people concerned.164 If there is evidence for a good-faith effort by the people of a country to put an end to atrocities and to deal with the past responsibly, the international community should not interfere.165

4. Summary: suggestions for future conceptualization The following is a summary which repeats the insights gained from this part of the text and gives summary recommendations for future conceptualization. There is not only a duty on States parties to abstain from human rights violations but also to address adequately such violations when they occur. This applies to abuses committed by State authorities and serious abuses, such as murder, committed by private individuals. Human rights violations should not go unanswered. The duty to react and take adequate measures of response has two aspects. The first is to provide the particular victim with an effective remedy. The second is to provide for general human rights protection. By addressing past violations a State party shows that human rights have to be observed and thereby reaffirms the 160 See above Chapter 2, section 6.1. 161 The flexibility is achieved by reference to the overall goal of lasting human rights protection which at the same time provides for certain minimum requirements. 162 See also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2547 (1991). 163 Id. at 2548. 164 Theodor Schilling, Ungeschriebene Strafpflichten—Eine wertende Bestandsaufnahme des Völker-, Gemeinschafts- und (deutschen) Verfassungsrechts, 54 ZÖR 357, 395 (1999). 165 According to Tomuschat this is an exercise of self-determination which needs to be respected. Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 347 (Hans-Joachim Cremer et al. eds, 2002).

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validity of the rights concerned. At the same time, future violations are sought to be prevented. If human rights violations are entirely ignored the validity of human rights is thrown into question and future protection is endangered. While the remedial and preventive aspects to a certain extent overlap, there are differences as to the specific measures necessary. The duty to investigate is an obligation which is not only required in the interest of prevention but also to provide the victim with an effective remedy. The picture is different with regard to punishment: there is a duty to punish serious human rights violations if it is necessary for the protection of human rights in general. But punishment is not a necessary element of reparation for the victim. In other words, only the investigation is a necessary remedy, the trial and punishment of human rights offenders is not. In international practice there is often reference to the duty to punish serious human rights violations without clarifying the legal rationale. Notions of prevention are mixed with remedial concepts.166 If punishment is required to prevent recurrence it does not necessarily mean that the victim of a human rights violation is entitled to demand punishment. The difference is crucial not only for the question whether there is an individual right to have perpetrators of serious human rights violations punished but also for the scope of the duty to punish. In future it is therefore advisable for the international human rights institutions to distinguish more clearly between the different legal rationales for requiring punishment. Traditionally if a duty to punish was derived from the general international human rights conventions the focus has been on the preventive aspect. In recent years there has also been a trend increasingly to require it as an effective remedy. The idea that punishment is necessary as a remedy is still evolving. International institutions have been reluctant to adopt the approach followed by the InterAmerican institutions. Neither the European Court of Human Rights nor the universal human rights bodies have assumed an individual right to criminal justice.167 The jurisprudence of the European Court and the Human Rights Committee is still in progress. Though the remedial aspects of punishment have been acknowledged, the Committee has not accepted an individual right to demand punishment for serious human rights violations. If the idea of a right to justice were pursued, a fundamental change to the human rights jurisprudence would be the consequence. This has already been witnessed in the Inter-American human rights system. International law is currently at a crossroads. The decision on how punishment should be framed will determine the way forward. The above analysis has attempted to give guidance on how the duty to prosecute could be framed, taking into account the differences between the various approaches and their consequences. The analysis 166 See e.g. Myrna Mack Chang Case, 2003 Inter-Am. Ct. H.R. (ser. C) No. 101, para. 272 (25 November 2003). 167 The European Court of Human Rights merely assumes a duty to conduct an investigation capable of leading to the punishment of those responsible for serious human rights violations.

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comes to the conclusion that it is more appropriate to require prosecution as a form of general human rights protection than as a measure owed to the individual victim. From this perspective, punishment is not a form of retaliation but serves the prevention of further violations. Prevention should be understood broadly, not only in the sense of deterrence, but also as a measure of re-establishing trust in the rule of law. A duty to punish derives from the ‘respect and ensure’ provisions if punishment is necessary for the protection of human rights. It is the result of an obligation to ensure effectively individual rights not only today but also in the future. Understood this way, the duty to prosecute is not a corollary of a substantive individual right to seek punishment but, rather, it is a procedural obligation. It is a positive obligation of a State vis-à-vis a collective and serves the implementation of human rights in general. This also involves an obligation to criminalize serious human rights violations and to establish a law-enforcement machinery. It is not the result of State responsibility for human rights violations by its agents but a matter of primary protection (namely of the duty to protect and ensure). This is why it not only applies to abuses by public officials but also to private individuals. One might query how it is possible to derive duties from human rights law without assuming a corresponding individual right. This is not to put substantive individual rights into question. But it is necessary to be aware that the duty to prosecute is a functional duty by means of which substantive rights are guaranteed. There are a number of procedural duties which are derived from the ‘respect and ensure’ provisions without the assertion of a corresponding individual right. One example is the duty to provide human rights training to the police, military forces, judiciary, and to the general public.168 The fact that criminal prosecution is required as a preventive measure without assuming a corresponding individual right, does not exclude the possibility of individuals complaining of deficits in the criminal prosecution of human rights offenders. If there is a climate of impunity and a generic unwillingness to prosecute serious human rights violations which then give rise to new violations, the failure to prosecute means that there is insufficient protection and is therefore in violation of fundamental human rights. What is at issue in such cases is the individual right to have fundamental rights, such as the right to life, protected by preventive measures. The victim’s remedial rights are not concerned. Where the failure to prosecute is criticized as giving rise to further violations, prosecution is sought as a matter of prevention, not as a matter of redress. The duty to prosecute is limited to the most serious human rights violations, such as extra-judicial, summary, or arbitrary executions, enforced disappearances, torture, and other serious breaches of personal integrity. It should not be considered 168 For a survey of specific measures of implementation see Anja Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its article 2 para 2, 5 Max Planck UNYB 399, 453–466 (2001).

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as an uncompromising formula.169 The duty to criminalize must be exercised in accordance with other international norms. One example is the prohibition of ex post facto laws. Furthermore, the duty to prosecute is limited by the human rights of the accused.170 The right to a fair trial needs to be observed.171 It is not the purpose of human rights protection to punish at any expense. Therefore, the term ‘prosecution’ is preferable to ‘punishment’ in this context. It indicates that, though the perpetrators should be held accountable, the rights of the accused need to be respected. The quest for justice may be frustrated if the evidence is not sufficient and the accused is subsequently acquitted. But justice and the integrity of the legal system are better served in the long run if a criminal system abides by its own rules. Thus, the duty to prosecute is best described as a duty of conduct rather than a duty of result. There is another important limit which becomes relevant in post-conflict situations: if under specific circumstances criminal prosecution does not serve the overall protection of human rights, there is no duty to punish.172 Such a duty originates only if it is necessary effectively to secure human rights. This requires an evaluation of the particular factual situation. While there is prima facie an obligation to prosecute the most serious human rights violations, there may be situations which justify a deviation from this rule.173 After all, human rights should not be interpreted as obstacles to the restoration of lasting peace which is in effect a precondition for the enjoyment of human rights.

169 According to Méndez and Meintjes not all obligations are necessarily absolute. Garth Meintjes & Juan E. Méndez, Reconciling Amnesties with Universal Jurisdiction, 2 Int’l L. F. 76, 82 (2000). Weiner points out that an absolutist position against amnesties may result in the irrelevance of the rule. Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857, 869 (1995). 170 For a detailed account of these rights see e.g. Stefan Trechsel, Human Rights in Criminal Proceedings (2005); Sarah J Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (2007); Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002); Salvatore Zappalà, Human Rights in International Criminal Proceedings (2003); Ben Emmerson, Andrew Ashworth, & Alison Macdonald, Human Rights and Criminal Justice (2nd edn, 2007); Stephen Livingstone & Jonathan Doak, Human Rights Standards and Criminal Justice (2000); Mireille Delmas-Marty & Mark A. Summers (eds), The Criminal Process and Human Rights: Toward a European Consciousness (1995). 171 José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, in State Crimes: Punishment or Pardon 23, 41 (Aspen Institute ed., 1989). 172 For a similar approach see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2601 (1991); Diane F. Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, 1 Int’l J. of Trans’l Justice 10, 15 (2007). 173 Orentlicher proposes a programme of exemplary punishment. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2601 (1991).

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The argument has been made that the duty to punish may not be compromised if non-derogable human rights have been violated.174 Admittedly, the fact that a right is non-derogable indicates that it deserves heightened protection. This to a certain extent informs the evaluation of whether there is a duty to prosecute. But there is still a difference between the substantive right itself, which may not be derogated from, and the procedural obligation to protect these rights.175 It is one thing to ascertain that there may not be summary executions even in case of emergency, but quite another to ascertain that the obligation to prosecute such crimes may not be compromised in the interests of re-establishing lasting peace.176 The decision not to prosecute crimes in order to re-establish peace and security does not qualify as an ex post facto derogation of the rights violated. In such cases it is not the substantive right that is compromised but the procedural protection of the right with a view to its future protection.177 This is not to say that judicial guarantees for the protection of fundamental rights may be abrogated from arbitrarily. The derogation clause of the American Convention on Human Rights, for example, provides that the ‘judicial guarantees essential for the protection’ of non-derogable rights may not be suspended.178 An example is the right of habeas corpus. That may not be derogated from because it is necessary to prevent potential abuses.179 However, the duty to prosecute arbitrary killings cannot retrospectively prevent the commission of the crime. It is questionable whether it is ‘essential’ for the protection of the right to life.180 If a particular situation makes it necessary to deviate from the duty to prosecute in order to restore peace and respect for human rights, prosecution is no longer essential for the protection of human rights. Retaining the duty to prosecute in these exceptional situations would run contrary to the underlying idea of the derogation clause; the purpose of which is to make room for certain deviations from ordinary rules in order to respond adequately to emergency situations which endanger 174 Andreas O’Shea, Amnesty for Crime in International Law and Practice 178, 183 (2002). For the question whether an investigation is dispensable see Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 261–262 (Christopher C. Joyner ed., 1998). 175 Although it is not possible to derogate from the prohibition of torture, a State may not have the capacity in times of public emergency to continue training programmes for the police designed to prevent torture which it is required to provide in times of peace. 176 As long as there is no retrospective ratification of the crimes—for example if an investigation is conducted—there is no absolute duty to prosecute even if violations of non-derogable rights are at issue. 177 The situation is different if there is no compelling reason to abstain from prosecution. If a State condones human rights abuses by not prosecuting there is indeed a violation of the right affected. But there is no general rule that every abstention from prosecution amounts to acquiescence. But see Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255, 260 (1997). 178 Article 27(2) American Convention on Human Rights. 179 Advisory Opinion No. 9/87, 1987 Inter-Am. Ct. H.R. (ser. A) No. 9, para. 35 (1987). 180 For this issue see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2608 (1991).

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human rights and also to secure those rights in the long run. If there is a situation in which a return to peace can be achieved only by paying the price of non-prosecution, the human rights idea may be better served by accepting suspension of procedural obligations than by foreclosing the opportunity to end hostilities. These all are issues which should be considered before rushing into ambitious conclusions which later need to be compromised. For example, those authors who advocate an outright obligation to punish human rights violations face problems if they are confronted with post-conflict situations. Some try to restrict the duty to punish to allow for the transition to peace and democracy.181 This is done by assuming inherent limitations to human rights or by referring to the rules of necessity.182 The underlying idea is the same as the one proposed above. If criminal prosecution, in effect, becomes an obstacle to the preservation of human rights it cannot be required.183 But instead of assuming a priori a duty to prosecute which later necessitates resort to tenuous legal constructions184 to find exceptions, it is preferable to solve such issues in an overall evaluation which is informed by the question whether punishment is indeed necessary for the protection of human rights in the particular situation at issue.185

181 See e.g. Andreas O’Shea, Amnesty for Crime in International Law and Practice 178–181 (2002). 182 Id.; Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 505 (1990); Michael P. Scharf & Nigel Rodley, International Law Principles of Accountability, in Post-Conflict Justice 89, 96 (Cherif Bassiouni ed., 2002). For this issue see also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2606–2012 (1991). 183 According to Orentlicher, ‘the comprehensive treaties should be interpreted in a manner that avoids imposing impossible obligations or duties whose discharge would prove harmful’. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2599 (1991). 184 It is doubful whether the doctrine of necessity which originated in the law of State responsibility to determine the wrongfulness of State action should be applied to human rights conventions. These conventions already make provision for this issue in the derogation clauses. They are lex specialis and do not allow for additional exceptions. 185 Orentlicher advocates an interpretation of ‘general legal standards requiring prosecution in a manner that accommodates constraints commonly faced by transitional governments.’ She calls it a ‘functional analyis’. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2612, 2600 at note 284 (1991).

7 Prosecution of Human Rights Violations under Customary International Law While the Genocide Convention provides explicitly for a duty to prosecute there is no parallel treaty with respect to crimes against humanity.1 Therefore it has been a point of discussion whether customary international law also provides for a duty to prosecute this category of international crimes thereby filling the lacuna in treaty law.2 This is problematic as it is difficult to establish general practice and opinio juris.3 Even those authors who support a customary international rule to prosecute crimes against humanity concede shortcomings in State practice.4 Though serious human rights abuses constituting crimes under domestic criminal law are usually punished, it is doubtful whether States feel legally bound to do so. The decades following the Second World War show that States have frequently been reluctant to punish those responsible for serious human rights violations especially in postconflict situations where the call for prosecution has been repeatedly compromised. Only in the past decade has there been a trend towards holding perpetrators of gross and systematic human rights violations criminally accountable. This is evidenced by the establishment of the international criminal tribunals. There is 1 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity does not provide for an explicit duty to punish. The Torture Convention, the Apartheid Convention, and the Genocide Convention cover aspects of crimes against humanity. See above at Chapter 5. If they do not apply reference must be made to the comprehensive human rights conventions where applicable or to customary international law. 2 See e.g. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2585–2595 (1991); State Crimes: Punishment or Pardon (Aspen Institute ed., 1989); Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Aut. Law & Contemp. Probs. 41, 52–59 (1996); Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 513–515 (1987). 3 For the definition of customary international law as an international custom which is evidence of a general principle accepted as law, see art. 38(1)(b) Statute of the International Court of Justice. See also American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, sect. 102(2) (1987), which defines customary international law as ‘a general and consistent practice of states followed by them from a sense of legal obligation’. 4 Orentlicher observes a gap between duty and compliance. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2613 (1991); Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 Leiden J. Int’l L. 5, 15–16 (1994); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, at 493–494, 499–500 (1990).

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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now a growing conviction that perpetrators of the most serious crimes should be held accountable. This development, however, is predominantly concerned with the exercise of international criminal jurisdiction. But it is doubtful whether the establishment of the international tribunals as such can be taken as evidence for a customary duty to prosecute at the domestic level. Since it is difficult to establish coherent State practice with regard to punishment, reference has been made to different international legal doctrines, among them the law of diplomatic protection and the law on State responsibility, in order to substantiate the assertion that there is a customary international duty to punish serious human rights violations.5 This chapter evaluates the validity of these arguments by explaining the relevant rules and examining the question whether they are applicable to human rights law. In a final step, current international practice will be evaluated in more detail.

1. The protection of aliens There are several cases from the late nineteenth and early twentieth centuries where a duty to punish crimes injuring aliens was at issue.6 Although these cases were not concerned with international human rights law, which is essentially a product of post-Second World War developments, they are of interest because of the obvious parallels and partial overlap between human rights violations and injuries to aliens. The following section analyses the relevant jurisprudence and elaborates on the exigencies for and exceptions to the duty to punish injuries to aliens. Secondly, it will ask whether these rules can be applied to human rights law.

1. The duty to punish injuries to aliens Several cases concerning the prosecution of crimes against aliens were subject to arbitration by the United States-Mexican General Claims Commission. This was established to deal with claims against one government by nationals of the other for loss or damage suffered.7 Most cases arose from instances of wrongful killing, denial of justice, unlawful arrest and detention, breach of contract, and disputes over taxation. In the Janes Case a US national had been murdered in Mexico. Despite eye-witness testimony the Mexican authorities did not prosecute the author of the crime. The United States claimed that Mexico was responsible for 5 Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 513–518 (1987); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 489–505 (1990). 6 For a survey of State practice see F. Wedler, Der Interstaatliche Strafanspruch in der Staatenpraxis (1971). 7 General Claims Convention, U.S.-Mex., 8 September 1923, 43 Stat. 1730.

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not apprehending and punishing the murderer. The General Claims Commission of the United States and Mexico held that the Mexican government was liable for ‘not having measured up to its duty of diligently prosecuting and properly punishing the offender’.8 The same Commission stated in the Neer Case that a State is liable if its behaviour amounts to wilful neglect or to a readily recognizable deficiency with regard to prosecution.9 In the Galván Case an award was made because the murderer of a Mexican national had not been brought to trial.10 It was indicated by the United States and Panama General Claims Commission in the Gust Adams Case that disciplinary measures do not suffice for certain crimes and that criminal punishment is required. In that instance the United States brought a claim on behalf of a US citizen who claimed compensation for injuries inflicted on him by a Panaman policeman.11 The arbitral commission held that the perpetrator’s dismissal plus 30 days’ imprisonment for the breach of police regulations did not constitute adequate punishment in the absence of a criminal conviction.12 It reiterated that adequate punishment for crimes against aliens was a ‘clearly established’ international obligation.13 Since the failure to punish such crimes adequately gave rise to international liability, the Commission held that the government of Panama was obliged to pay US$500 to the US government on behalf of Gust Adams.14 These cases show that traditional international law provides for a duty of States diligently to apprehend, prosecute, and punish perpetrators for crimes against aliens committed on their territory.15 If a State fails to comply with this obligation the State whose national was injured is able to bring a claim based upon the principles of State responsibility.16 This concept is also reflected in the US Restatement 8 Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82, 87 (1927). See Richard Lillich & John M. Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217, 279 (1976–1977). 9 L. F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States, Opinions 71, United States and Mexico General Claims Commission, 4 R. Int’l Arb. Awards 60 (1926), 15 October 1926, para. 4. 10 Salome Lerma de Galván (The United Mexican States) v. The United States of America, United States and Mexico General Claims Commission, Opinions 408, 4 R. Int’l Arb. Awards 273 (1927), 21 July 1927, para. 7. 11 Gust Adams (The United States) v. Panama, 6 R. Int’l Arb. Awards 321 (1955), 21 June 1933. 12 Id. at 323. 13 Id. 14 Id. 15 Richard Lillich & John M. Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217, 305 (1976–1977); Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 317 (Hans-Joachim Cremer et al. eds, 2002). 16 Richard Lillich & John M. Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217, 305 (1976–1977).

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of the Law. This lists, in the section on ‘Responsibility of States for Injuries to Aliens’, the failure to prosecute perpetrators of a crime causing injury to an alien as a denial of justice.17

2. Amnesties for injuries to aliens Some cases regarding the protection of aliens also dealt with the issue of amnesty. An example is the Montijo Case of 1874. This case was brought by the United States against Colombia when a ship under the US flag was seized by revolutionaries in the territorial jurisdiction of Colombia. The perpetrators were later granted amnesty. The United States-Colombia Commission refused to accept this outcome. It stated that ‘the grantor of an amnesty assumes as his own the liabilities previously incurred by the objects of his pardon towards persons and things over which the grantor has not control’ (emphasis added).18 The acts of both perpetration and shielding the perpetrators from criminal responsibility were equated. A different line of reasoning was applied by the US-Mexican General Claims Commission. In the West Case it held that an amnesty had the same effect as not punishing crimes and therefore concluded that Mexico had an indirect liability for the murder of a US national who had been murdered by Mexican rebels.19 Similarly, in the Cotesworth and Powell Case of 1875 the British-Colombia Mixed Commission held that a State incurs responsibility for granting pardon or amnesty to an offender when it deprives the injured party of all redress.20 In both cases the failure to punish as a consequence of the amnesty triggered State responsibility. However, there are also cases in which State responsibility was denied as a result of an amnesty. In the Devine Case the arbitral tribunal had to deal with the amnesty granted to the confederates after the American Civil War. It observed that other governments had also pardoned rebels without paying damages to individuals for the losses caused by the rebels.21 Due to the underlying reasons no issue was taken with the proclamation of the amnesty. There are other cases which confirm that the motivation for granting an amnesty is important. An example is a case before the Special Claims Commission for the 17 American Law Institute, Restatement (Second) of Foreign Relations Law of the United States, Part IV, pp. 502–503 (1962). 18 The Montijo (US v. Colombia), 26 July 1875, 2 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 1421, 1438 (1898). 19 F. R. West (U.S.A.) v. The United Mexican States, United States and Mexico General Claims Commission, Opinions 404, 4 R. Int’l Arb. Awards 270 (1927), 21 July 1927, para. 3. 20 Cotesworth and Powell Case, British-Colombia Mixed Commission, 5 November 1875 2 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 2050 (1898). See Richard Lillich & John M. Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217, 291–292 (1976–1977). 21 Devine Case, 3 J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 2980 (1898).

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United States and Mexico involving an attack on a train by Villa’s forces which resulted in the death of several US citizens. The attackers had been granted amnesty by the Mexican government in 1915. The Special Claims Commission took into account the long period of serious unrest. It acknowledged that the amnesty was a ‘supreme effort for achieving . . . the pacification of the country’.22 The amnesty was also recognized by the British-Mexican Claims Commission which described it as ‘an act of political expediency’.23 Both commissions allowed for political considerations. There was never an absolute duty to prosecute individuals for committing crimes at the detriment of aliens. Instead an exception was allowed if the aim of an amnesty was to re-establish peace. However, despite there being a certain margin for political considerations the discretion left to States for granting amnesties applied only to particular crimes. The British-Mexican Claims Commission was not willing to recognize amnesties for particularly grave and non-politically motivated crimes. It stressed that an amnesty for ‘crimes committed with no possible legitimate excuse or reason of military necessity’ could not be justified.24 Political expedience for amnesties could not be argued with respect to wilful murder.

3. Applicability to human rights violations Though these arbitral decisions on the law of aliens in some aspects resemble the current interpretation of human rights conventions,25 it would be wrong to conclude that there is a customary international obligation to punish serious human rights violations which can be applied even if a human rights treaty is not applicable. While it may seem desirable to develop such a rule which parallels the duty to punish crimes against aliens,26 the practice with regard to aliens is not evidence of an opinio juris that States are internationally bound to punish all human rights 22 Cornelia J. Pringle et al. (U.S.A.) v. The United Mexican States (Santa Isabel Claims), MexicoUnited States Special Claims Commission, 5 G. Hackworth, Digest of International Law 547 (1943), 26 April 1926. 23 The Buena Tierra Mining Co. (Great Britain) v. The United Mexican States, British-Mexican Claims Commission, 5 R. Int’l Arb. Awards 252–254, 3 August 1931. 24 Id. See Richard Lillich & John M. Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217, 293 (1976–1977) with further reference to Santa Isabel Claims (United States v. Mexico), Opinions 1, 4 R. Int’l Arb. Awards 783 (1926). 25 Under both regimes punishment is regarded as a measure of protection. But there are also differences. In some of the older cases on the protection of aliens punishment is also regarded as a form of achieving justice for the crime. Chase Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 19, 4 R. Int’l Arb. Awards 339 (1928). This reading is informed by a retrospective approach emphasizing the repressive and retaliatory function of punishment. But this reasoning should not be applied to explain that an individual victim has a right to demand punishment for human rights violations. The rationale of achieving justice in the context of the protection of aliens was never used to justify an individual right of the alien to demand punishment but only to explain the duty of States to punish crimes against aliens. 26 See Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 517 (1987). Kokott argues that there should be a duty to punish

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violations, particularly those injuring a State’s own nationals. Though there is a customary international obligation to prosecute crimes committed against aliens, it cannot make up for deficient State practice with regard to human rights violations generally. There are numerous instances where States do not institute criminal proceedings against human rights perpetrators. Even when they do so, it is questionable whether they consider themselves legally bound. Some authors have argued that the duty to punish injuries to aliens must a fortiori apply to violations of fundamental human rights.27 There are, however, conceptual differences between international law on aliens and human rights law which render the a fortiori argument unpersuasive.28 Though the law on aliens is considered an antecedent of modern human rights law, it is primarily concerned with inter-State relations.29 The failure to prosecute the offender is a failure vis-àvis the State whose national is the victim. It is one thing to require States to prosecute crimes committed on their territory against aliens, but quite another to oblige States to prosecute all crimes affecting their nationals. Extending the duty to prosecute from traditional international law on aliens to all fundamental human rights violations would be a substantial step which could not be done without a solid legal foundation.

2. The rules of State responsibility Efforts have been made to derive a duty to prosecute human rights violations from the principles of State responsibility.30 According to one author, these principles provide some basis for the duty to punish violations of international law in general.31 Prosecution is seen as a form of satisfaction which the violating State has human rights violations similar to the one concerning crimes against aliens because it was not justifiable to provide human rights guarantees with less protection. 27 Michael Bothe, War Crimes in Non-International Armed Conflicts, in War Crimes in International Law 293, 300 (Yoram Dinstein & Mala Tabory eds, 1996). See also Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 517 (1987); Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice 50 (1995). 28 Roht-Arriaza argues that the convergence of the law on aliens and human rights law justifies the extension of the duty to prosecute developed with respect to aliens, to human rights violations committed against a State’s own nationals. It is submitted that this view is not correct. Naomi RohtArriaza, Impunity and Human Rights in International Law and Practice 50 (1995). To extend rules on the basis of asserted convergence is questionable because of the differences between the two areas of law and is probably better characterized as a de lege ferenda argument. 29 Karl Doehring, Die Pflicht des Staates zur Gewährung diplomatischen Schutzes (1959). But see Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice 50 (1995). 30 Michael Bothe, War Crimes in Non-International Armed Conflicts, in War Crimes in International Law 293, 300 (Yoram Dinstein & Mala Tabory eds, 1996). 31 Id. Bothe, nevertheless, makes some exceptions from the duty to punish, for example with regard to acts committed by insurgents and with regard to states of necessity. Id. at 300–301.

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to give.32 Following this line of argument, the duty to punish would be a secondary obligation which follows on from a State’s failure to comply with a primary duty, i.e. the duty to abide by international human rights. The argument has been put forward in the context of international humanitarian law with regard to non-international armed conflicts to counter the lack of a treaty obligation to punish serious violations.33 However, it is based on two assumptions, namely that the law on State responsibility provides for the duty of a State to punish those who committed the international wrong and that such a duty also applies to human rights violations. Both assumptions are problematic for the following reasons.

1. Punishment under the rules of State responsibility It is doubtful whether the law on State responsibility provides for the duty of a State to punish those who committed an international wrong. Although the punishment of perpetrators is an option for States to provide satisfaction,34 it is not clear whether a State is obliged to do so.35 According to the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology, or another appropriate method.36 While an earlier draft referred to punishment of those responsible as a form of satisfaction,37 no such reference is made in the final draft.38 Only the commentary by the International Law Commission on the Draft Articles states, among the many possibilities for satisfaction, disciplinary or penal 32 Id. 33 Id. at 300–301. But it is doubtful whether there is a comprehensive duty to punish violations of international humanitarian law under the rules of State responsibility. The Geneva Conventions provide only for a duty to punish grave breaches in international armed conflicts. It is already questionable whether those provisions of the Geneva Conventions which require punishment can be regarded as a concept of State responsibility providing for satisfaction or rather as a measure of prevention. In any event, there is no such rule in the Geneva framework with regard to non-international armed conflicts and it is doubtful whether opinio juris exists in this respect. The trend towards holding perpetrators of crimes committed in non-international armed conflicts accountable by international tribunals cannot be taken as evidence that the States are obliged to prosecute the offenders domestically. The widespread reluctance of States to initiate criminal proceedings for crimes committed in non-international armed conflicts points in another direction. 34 Franciszek Przetacznik, La Responsabilité Internationale de l’État a Raison des Préjudices de Caractère Moral et Politique Causés a un autre État, 1974 R.G.D.I.P. 919, 926. 35 According to Przetacznik, an injured State may demand the punishment of the State agent who committed the international wrong. Franciszek Przetacznik, La Responsabilité Internationale de l’État a Raison des Préjudices de Caractère Moral et Politique Causés a un autre État, 1974 R.G.D.I.P. 919, 962. 36 Article 37 of the Draft Articles adopted by the I.L.C. at its 53rd session (2001), in Report of the International Law Commission on the Work of its Fifth-third Session, U.N. GOAR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10, Chapter IV. E. 1 (2001). 37 Article 45, Report of the International Law Commission on the Work of its Forty-eighth Session, U.N. G.A.O.R., 51st Sess., Supp. no. 10, U.N. Doc. A/51/10, Chapter II (1996). 38 The listed options, however, are not exhaustive. I.L.C. Commentary on Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess, Suppl. No. 10, U.N. Doc A/56/10, p. 266 (2001).

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action against the individuals whose conduct caused the international wrongful act.39 The appropriate form of satisfaction according to the ILC depends on the particular circumstances of a case.40 Even those who ascertain that punishment provides for satisfaction under the rules of State responsibility admit that there is no immediate duty to punish those responsible and that it arises only on request by the injured State.41 Those who doubt that there is a duty to punish under the present law of State responsibility, refer to several decisions which allow for considerable leeway for satisfaction.42 In the Corfu Channel Case, for example, the ICJ pointed out that the declaration of a violation of Albania’s sovereignty constituted in itself appropriate satisfaction.43 A similar approach was followed in the Rainbow Warrior Case by the France-New Zealand Arbitration Tribunal.44 The tribunal stated that satisfaction could take various forms.45 The decision of an international tribunal declaring the unlawfulness of a State’s conduct was described as a significant sanction.46 The tribunal therefore made a declaration of material breach of international obligations and declared that this condemnation was appropriate satisfaction for the legal and moral damage.47 The UN Secretary General, who was originally a mediator in the case, had requested that France pay damages and that those responsible for the incident were to spend three years on an isolated French military base in the Pacific.48 It is, however, questionable whether his request can be taken as evidence for or against an international legal duty to punish because the Secretary General acted as a mediator and tried to find a solution which respected and reconciled the conflicting positions of the parties. The arbitral tribunal decided differently. Those who argue in favour of a duty to punish take the arbitral awards on the protection of aliens49 as evidence for a rule that the principles of State

39 I.L.C. Commentary on Draft articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10, p. 263 (2001). 40 Id. pp. 265–266. 41 See in particular Gaetano Arangio-Ruiz, Special Rapporteur, Second Report on State Responsibility [1989] 2 Y.B. Int’l L. Comm’n 31–40, U.N. Doc. A/CN.4/425 and Add.l, and the case law cited therein. 42 Karl Zemanek, Responsibility of States: General Principles, in 4 Encyclopedia of Public International law 219, 226 (2000). 43 Corfu Channel, Merits, 1949 ICJ 4, at 35 (9 April 1949). It should be noted, however, that Albania had sought no other form of satisfaction than such a declaration. 44 Rainbow Warrior (New Zealand v. France), France–New Zealand Arbitration Tribunal, 82 I.L.R. 499 (1990), 30 April 1990. 45 Id. at p. 576, para. 122. 46 Id. at p. 576, para. 123. 47 Id. at p. 577, para. 123. 48 The Rainbow Warrior (New Zealand v. France), Conciliation Pertaining to the Differences between France and New Zealand Arising from the Rainbow Warrior Affair, 1986, Ruling by the U.N. Secretary General Perez de Cuellar, 26 I.L.M. 1346 (1987), 5 July 1986. 49 See above section 1.

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responsibility provide for a duty to punish violations of international law.50 They argue that the traditional concept of State responsibility for injuries of aliens includes a duty to punish and that this is a form of satisfaction which results from State responsibility.51 They conclude that there is a duty to punish all violations of international law under the rules of State responsibility, including violations of human rights law.52 What is overlooked is that there is a difference between a primary duty to punish injury to aliens and a secondary duty of State responsibility resulting from the violation of a primary duty. The obligation to prosecute in the cases concerning the protection of aliens is a primary duty of the host State rather than a result of State responsibility for an international wrongful act.53 In the majority of these cases the crime itself did not constitute an international wrong by the host State because the perpetrators were private individuals (e.g. rebels) therefore the crime could not be attributed to the State.54 This also applies to repeated claims by States for the punishment of private individuals responsible for attacks on embassies or consular staff.55 If there is, nonetheless, an obligation to punish the offender it is a primary duty, the failure of which gives rise to international liability rather than a secondary duty resulting from an international wrong.56 This reading is supported by the Gust Adams Case cited above. In its arbitral award the Commission ordered Panama to pay US$500 because it had failed adequately to punish crimes against aliens. Panama’s international liability arose from its failure to comply with its primary duty to punish crimes against aliens.57 50 Michael Bothe, War Crimes in Non-International Armed Conflicts, in War Crimes in International Law 293, 300 (Yoram Dinstein & Mala Tabory eds, 1996); Andreas O’Shea, Amnesty for Crime in International Law and Practice 211 (2002). 51 Michael Bothe, War Crimes in Non-International Armed Conflicts, in War Crimes in International Law 293, 300 (Yoram Dinstein & Mala Tabory eds, 1996). 52 Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 500–504 (1990). 53 In the Janes Case the General Claims Commission awarded damages for the non-prosecution of a murderer. The primary duty thus was the prosecution, the secondary to pay damages. Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82, 87 (1927). In the Neer Case the Commission stated that the failure to take affirmative actions to investigate and apprehend those responsible is a breach of a legal duty, giving rise to an international delinquency. L. F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States, United States and Mexico General Claims Commission, Opinions 71, 4 R. Int’l Arb. Awards 60, 15 October 1926. 54 In the Janes Case a US national had been murdered by a private individual. Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82, 87 (1927). 55 One case is the killing of two US officers in Teheran. 80 R.G.D.I.P. 257. For further cases see Franciszek Przetacznik, La Responsabilité Internationale de l’État a Raison des Préjudices de Caractère Moral et Politique Causés a un autre État, 1974 R.G.D.I.P. 919, 964–966. 56 In the Janes Case the US-Mexican General Claims Commission stated that the failure to prosecute was an offence of the State and therefore awarded damages to the family. Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82, 87 (1927). 57 Gust Adams (The United States) v. Panama, 6 R. Int’l Arb. Awards 321, at 323 (1955), 21 June 1933.

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In other words, although the duty to punish became relevant when State responsibility was at issue, it is important to note that it was a substantive primary rule. The failure to comply with this primary rule resulted in State responsibility with the consequence that damages had to be paid. But this does not mean that there is a comprehensive duty to punish all violations of international law. The arbitral awards cannot be taken as evidence for a general rule that international wrongful acts trigger a duty to prosecute. Considered as a whole, it is unclear whether the current law on State responsibility provides for a duty to punish as a form of satisfaction for an international wrongful act. Even if this is the case it is doubtful whether such a duty applies to violations of human rights which requires at least that the rules of State responsibility are applicable to international human rights law.

2. Human rights and State responsibility Whether human rights are primary norms which in the case of their violation trigger State responsibility is a controversial issue.58 There is a structural difficulty which complicates the application of the rules of State responsibility to international human rights law. While the law on State responsibility traditionally requires an international wrongful act committed by one State to the detriment of another, human rights law concerns the relationship between a State and the individuals under its jurisdiction. The rules of State responsibility provide affected States with a right to seek reparation for the damages suffered by the wrongful act. If, however, the victim of a human rights violation is a national of the State responsible for the violation, there is no immediate harm to another State.59 Therefore, the question arises: could a State as a third party demand prosecution when another State seriously violates the rights of its nationals? Or even, is the affected individual entitled to claim prosecution as a matter of reparation? To be clear, these issues do not arise in respect of States which are party to the comprehensive human rights treaties which provide for an obligation to guarantee effective remedies. The scope

58 For this question see Albrecht Randelzhofer & Christian Tomuschat (eds), State Responsibility and the Individual (1999); Andreas Zimmermann, Responsibility for Violations of International Humanitarian Law, International Criminal Law and Human Rights Law—Synergy and Conflict?, in International Humanitarian Law Facing New Challenges 215, 220–222 (Wolff Heintschel von Heinegg & Volker Epping eds, 2007). O’Shea argues that international law today is also concerned with injuries done to a State’s own citizens. Andreas O’Shea, Amnesty for Crime in International Law and Practice 210 (2002). But this does not necessarily mean that the law on State responsibility is entirely applicable to human rights law. It is one thing to say that a State is bound to observe human rights, but another to ascertain that a State must provide for satisfaction for human rights violations. 59 An injury to other States can be assumed under the theory of erga omnes obligations. But the question remains whether a State which does not suffer any direct harm is interested in demanding prosecution of human rights violations committed abroad victimizing foreign nationals.

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of such obligation is to be determined under the respective treaty regime. But in cases where these rules are not applicable, customary international law is relevant.60 The ICJ dealt with the customary international concept of State responsibility in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). The Court confirmed the applicability of the rules on State responsibility between States in the context of genocide.61 Since Serbia and Montenegro had failed to comply with the duty to prevent and punish genocide Bosnia and Herzegovina had a right to reparation in the form of satisfaction.62 But the Court considered that its declaration that the respondent had failed to comply with the duty to prevent and punish genocide to be in itself appropriate satisfaction.63 Though the Court recognized that States affected by genocide have the right to demand reparation in the form of satisfaction, the decision cannot be taken as an indication of a customary obligation to punish serious human rights violations. The duty to punish the crime of genocide in this case resulted from the Genocide Convention. Apart from such treaty obligations, it is questionable whether under customary international law a State can claim the right to prosecute if another State violates serious human rights violations within its jurisdiction. For this purpose it is not enough to ascertain that a human rights violation is an international wrongful act which according to the ILC Draft Articles results in State responsibility. In order to derive a duty to punish human rights violations there must be evidence of relevant State practice and opinio juris in this field of law. But in contrast with the law of aliens there is little practice where a State claims reparation or punishment for human rights violations committed by another State against its citizens. There is minimal case law referring to customary international law in respect of serious human rights violations. The argument that there is an erga omnes State responsibility towards third States compelling prosecution under customary international law is therefore unpersuasive.64

60 For the issue whether there is a right of access to justice under customary international law see Francesco Francioni, The Rights of Access to Justice under Customary International Law, in Access to Justice as a Human Right 1–55 (Francesco Francioni ed., 2007). 61 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J., Judgment of 26 February 2007, para. 463, at (last accessed 5 December 2008). 62 Id. at para. 179. 63 Id. at paras 463, 465. 64 For the issue of compensation see Christian Tomuschat, Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position under General International Law, in State Responsibility and the Individual 1, 5 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999).

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A. The controversial individual right to reparation This leaves us with the question whether there is State responsibility for human rights violations vis-à-vis the individual victim under customary international law.65 The issue whether victims are generally entitled to seek reparation for human rights violations has recently attracted much attention.66 The ILC Draft Articles do not deal with the responsibility of a State vis-à-vis individuals for violations of international law.67 Those who argue in favour of State responsibility for human rights violations refer to the relevant human rights treaties as evidence for a customary international law rule.68 This alone cannot support a rule of customary international law but could at least give an indication for opinio juris. However, even the provisions in the international human rights treaties providing for secondary obligations resulting from human rights violations are fragmentary. Though there are some treaty provisions which require specific forms of reparation for human rights violations, such as monetary compensation, they are limited in scope. They do not refer to punishment as a form of reparation. The following overview of relevant treaty provisions on reparations for human rights violations shows how fragmented the rules are. In order to draw conclusions for customary international law, the relevant provisions elaborated on above will be summarized. The International Covenant on Civil and Political Rights (ICCPR) provides in art. 14(6) for compensation for the miscarriage of justice and in art. 9(5) guarantees the right to compensation for unlawful arrest or detention. While these explicit provisions on compensation concern only specific violations, the International Convention on the Elimination of All Forms of Racial Discrimination is more comprehensive. It obliges States parties to assure the right to seek from domestic tribunals just and adequate reparation or satisfaction for 65 For this issue see e.g. Riccardo Pisillo-Mazzeschi, International Obligations to Provide for Reparation Claims?, in State Responsibility and the Individual 149 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). 66 See e.g. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 147, U.N. Doc. A/RES/60/147 (2006), Annex. Koen de Feyter et al. (eds), Out of the Ashes: Reparations for Victims of Gross and Systematic Human Rights Violations (2005). 67 For the obstacles for an individual right to reparation see Christian Tomuschat, Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position under General International Law, in State Responsibility and the Individual 1, 18–25 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). 68 The most far-reaching pronouncements are those of the Inter-American Court of Human Rights which holds that international responsibility arises when a human rights violation is attributable to a State with the consequence of the duty vis-à-vis the victim to redress and to ensure cessation of the consequences of the violation. El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 76 (29 August 2002) with further references. According to the Inter-American Court there is a customary international law rule of State responsibility for human rights violations which is codified in art. 63(1) of the American Convention. Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 50 (27 November 1998).

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damages suffered as a result of acts of racial discrimination.69 Similarly, art. 14 of the Torture Convention provides for a right to fair and adequate compensation for all victims of acts of torture. But none of these provisions contains a duty to punish.70 The International Convention for the Protection of All Persons from Enforced Disappearances in art. 24 includes a more detailed provision on the right to reparation and compensation.71 But as in the conventions cited above, prosecution and punishment do not feature as an element of compensation.72 This also applies to the provision on satisfaction in the European Convention of Human Rights. Article 41 of the European Convention reads: ‘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.’ Although the European Court of Human Rights has given up its earlier jurisprudence that art. 41 provides only for the payment of damages,73 it has not gone as far as ordering the prosecution or punishment of those responsible for abuses under art. 41.74 The interpretation by the Inter-American Court of Human Rights which derives a duty to punish from the corresponding provision (art. 63 of the American Convention) and includes such orders in its judgments75 is, therefore, still unmatched by other international human rights institutions. The provisions which explicitly require punishment also cannot be taken as evidence for a customary rule providing victims with a right to seek prosecution for serious human rights violations as a matter of reparation. As the above analysis of the international and regional human rights treaties shows, these provisions are not usually considered as remedial rights but as measures of prevention.76 They are formulated as obligations by States, not as individual rights of the victim. 69 Article 6. 70 See above Chapter 5, sections 1.2 and 1.5. 71 G.A. Res. 177, U.N. Doc. Res.61/177, Annex (16 December 2005). 72 Article 24(5) list only restitution, satisfaction (including restoration of dignity and reparation), and guarantees of non-repetition as mandated forms of reparation. 73 In Ireland v. United Kingdom the Court held that it did not have the power to direct a State party who had violated the Convention to institute criminal or disciplinary proceedings against the officers who had committed the breaches. Ireland v. United Kingdom, App. No. 5310/71, Eur. Ct. H.R., Judgment of 18 January 1978, paras 187, 246. For the traditional interpretation of Art. 4 see also Riccardo Pisillo-Mazzeschi, International Obligations to Provide for Reparation Claims?, in State Responsibility and the Individual 149, 168–169 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999) with further references at 168, note 62. In Assanidze v. Georgia, however, the Court went beyond this concept of pecuniary satisfaction and ordered the State party to release the victim. Assanidze v. Georgia, App. No. 71503/01, Eur. Ct. H.R., Judgment of 8 April 2004, para. 203. 74 For the interpretation of art. 41 by the European Court of Human Rights, see Dinah Shelton, Remedies in International Human Rights Law 123–124, 194–200 (2nd edn, 2005). 75 Paniagua Morales et al. Case, 1998 Inter-Am. Ct. H.R. (ser. C) No. 37, para. 181 (8 March 1998); Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case), 1999 Inter-Am. Ct. H.R. (ser. C) No. 253, para. 227 (19 November 1999); Bámaca Velásquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No. 70, paras 227, 230 (25 November 2000). See also above Chapter 3, section 7.2. 76 See above Chapter 5.

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For example, the Torture Convention frames the duty to prosecute or extradite in art. 7(1) as an objective obligation of each State party: ‘The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in art. 4 is found shall in the cases contemplated in art. 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.’ No reference is made to the victim in this provision. The provision regulating victims’ rights in criminal proceedings merely provides for a right to complain and to have a case investigated.77 Although there is an overlap between the aut dedere aut judicare obligation of art. 5 and the remedial rights of art. 13 with respect to investigation, the rights of the victim do not include punishment of the perpetrator. Such a right also cannot be inferred from the general right to compensation and other forms of redress pursuant to art. 14 of the Torture Convention. The Convention provides in two separate provisions for the participatory rights of the victim with respect to criminal proceedings (art. 13) on the one hand and for the right to redress and compensation (art. 14) on the other. It thereby plainly distinguishes between these two concepts. To read additional rights regarding prosecution and punishment into the right to compensation (art. 14) apart from those provided for in art. 13 would not be in accordance with the wording and the structure of the Convention.78 The same applies to the International Convention for the Protection of All Persons from Enforced Disappearances which distinguishes between the duty to criminalize enforced disappearance in art. 7 and the duty to compensate in art. 24. The practice regarding the right to an effective remedy does not provide evidence for such a right either. Relevant provisions are included in the ICCPR, the American Convention on Human Rights, and the European Human Rights Convention.79 There has been a trend in the international jurisprudence to derive specific obligations from the right to an effective remedy, such as the right to compensation for human rights violations.80 But with respect to punishment there is no coherent practice. The above analysis of the relevant jurisprudence shows that despite the trend towards the assumption of individual rights of the victims in criminal proceedings and the idea held by some that punishment is not only a form of prevention but also is remedial,81 there is no universal consensus on the 77 Article 13 Torture Convention. 78 See above Chapter 5, section 1.2. 79 Article 2(3) ICCPR, art. 25 ACHR, art. 13 ECHR. 80 According to the Human Rights Committee, the ICCPR generally requires appropriate compensation. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 16 (26 May 2004). 81 This idea was first assumed by the Inter-American Commission and recently entered the jurisprudence of the Human Rights Committee. Id. at para. 16. It has not been accepted by the European Court, which limits its jurisprudence on remedial rights to the assumption of a right to a criminal

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assumption that there is a comprehensive right to justice which requires not only investigation, but also the punishment of those responsible. Although the InterAmerican Court assumes a duty to punish as a form of remedy,82 the Human Rights Committee and the European Court of Human Rights have denied the existence of such a right.83 Considering this diversity of international human rights treaties these rules cannot substantiate a fortiori a comprehensive duty to punish human rights violations under customary international law. The fact that existing provisions on compensation vary considerably has even led some authors to question the applicability of the rules of State responsibility to human rights law in general.84 They doubt that there is a customary international right to demand reparation for human rights violations and argue that on the whole there is insufficient evidence for a coherent practice regarding State responsibility for human rights violations.85 The authors point out that the International Covenant on Civil and Political Rights, for example, does not even include an explicit provision on satisfaction.86 They argue that the rules providing for compensation in other treaties differ and there is no coherent interpretation of the right to an effective remedy. It is submitted here that State responsibility vis-à-vis the individual is in statu nascendi. While there is a growing consensus that States can be held responsible for serious human rights violations there is no unanimity as to the specific measures of reparation. It is, at the least, difficult to find coherent practice with respect to the necessary form of redress. Although recent developments investigation. Punishment has not been accepted by the European Court as a necessary element of the victim’s remedial rights. 82 According to the Inter-American Court of Human Rights the right to judicial guarantees and judicial protection (arts 8 and 26 ACHR) define the scope of a State’s responsibility for acts of State authorities. 83 Even though the European Court of Human Rights assumes a right to an investigation capable of leading to the punishment of those responsible, it denies a right to secure a criminal conviction. 84 In the view of Pisillo-Mazzeschi, the provisions in the European and American Convention are isolated incidents which cannot be regarded as reflecting customary international law. Riccardo Pisillo-Mazzeschi, International Obligations to Provide for Reparation Claims?, in State Responsibility and the Individual 149, 171 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). 85 Riccardo Pisillo-Mazzeschi, International Obligations to Provide for Reparation Claims?, in State Responsibility and the Individual 149, 164 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999); Cristian Tomuschat, Darfur—Compensation for the Victims, 3 J. Int’l. Crim. Just. 579–589 (2005). But see Theo van Boven, Reparative Justice—Focus on Victims, 25 Netherlands Q. H.R. 723, 729–730 (2007); Andreas Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln: Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts, 45 Archiv des Völkerrechts 299–381(2007); Heidy Rombouts, Pietro Sardaro, & Stef Vandeginste, The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights, in Koen de Feyteret et al. (eds), Out of the Ashes: Reparations for Victims of Gross and Systematic Human Rights Violations 345, 501 (2005). 86 For the responsibility for violations under the ICCPR see Eckart Klein, Individual Reparation Claims under the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee, in State Responsibility and the Individual 27 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999).

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under the international human rights treaties and the provision on reparations for victims in the Rome Statute (Art.75) all provide evidence that there are emerging principles,87 in the absence of further State practice it is too early to speak of a rule of general international law providing the individual with a right to claim compensation for human rights violations. It is, furthermore, questionable whether such a rule of general international law would be desirable in every case. Especially in case of past large-scale human rights abuses, the reconstruction of a democratic government can be jeopardized if there is a right of every victim to claim adequate compensation. Such a right would give rise to an extensive financial burden for the new government.88 However, practice under the international human rights treaties at least reveals one common denominator; the right of access to judicial remedies which has been widely incorporated into international human rights treaties.89 This also applies to the right to have an official investigation of human rights violations. The repeated and consistent assertion of such a right of the individual victim by all international and regional human rights bodies as well as by the United Nations indicates that there is sufficient international consensus for a duty to investigate at least gross and systematic human rights abuses.90 This norm has largely been solidified. But there is no established customary international rule for a right to claim punishment.91

B. Punishment as an emerging or de lege ferenda form of reparation? The United Nations General Assembly in December 2005 adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of

87 See in particular the jurisprudence of the Inter-American Court. El Caracazo Case, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 95, para. 76 (29 August 2002) with further references. For the Inter-American Court there is already a customary international law on State responsibility for human rights violation. States are obliged to make reparations for human rights violations. Article 63 of the American Convention is regarded as a codification of this rule. Castillo Páez Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 43, para. 50 (27 November 1998). 88 Christian Tomuschat, Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position under General International Law, in State Responsibility and the Individual 1, 19–21 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). 89 Dinah Shelton, Remedies in International Human Rights Law 465 (2nd edn, 2005). 90 G.A. Res. 147, U.N. Doc. A/RES/60/147 (2006), Annex. 91 See also Christian Tomuschat, Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position under General International Law, in State Responsibility and the Individual 1 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). Méndez speaks of an emerging principle. Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255 (Christopher C. Joyner ed., 1998). But see Joint Concurring Opinion of Judges Cançado Trindade and Abreu-Burelli, in Loayza Tamayo Case, Reparations, 1998 Inter-Am. Ct. H.R. (ser. C) No. 42, para. 2 (27 November 1998).

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International Humanitarian Law.92 These principles include the following paragraph: In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.93

Where such a duty is derived from is unclear. Although the guidelines are intended to elaborate on the concept of State responsibility for human rights violations (as evidenced by its title), the reference to international crimes indicates that the duty to punish is intended as a concept of international criminal law, an obligation that results from the criminal nature of the violation.94 But, as will be explained below, an obligation to punish human rights violations constituting international crimes is actually a concept de lege ferenda rather than one of current international criminal law.95 It is noteworthy that Diane Orentlicher in her independent study on impunity does not refer to criminal punishment as a measure of reparation for the victim.96 Even in the Basic Principles Declaration of the General Assembly the duty to prosecute and punish is phrased as an objective obligation of States, not as an individual right.97 No reference is made to a corresponding right of the victim. The Updated Set of principles for the protection and promotion of human rights through action to combat impunity asserts that ‘[a]lthough the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of 92 G.A. Res. 147, U.N. Doc. A/RES/60/147 (2006), Annex. For an analysis see Dinah Shelton, The United Nations Principles and Guidelines on Reparations: Context and Content, in Koen de Feyter et al. (eds), Out of the Ashes: Reparations for Victims of Gross and Systematic Human Rights Violations 11–50 (2005). 93 G.A. Res. 147, U.N. Doc. A/RES/60/147 (2006), Annex, para. 4. 94 This idea goes back to Bassiouni. M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 24 (1995); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 499 (1992). 95 See below section 3. 96 Diane Orentlicher, Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat All Aspects of Impunity, in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, U.N. Doc. E/ CN.4/2004/88, paras 33–42 (2004). 97 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 147, U.N. Doc. A/RES/60/147 (2006), Annex, para. 4. Even though sanctions are listed as a form of reparation (para. 22), the Basic Principles do not specify the form of sanction. A sanction would also include the removal from office of the perpetrator.

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criminal procedure recognizes these procedures.’98 Here again, there is no recognition of a general right of victims to see their perpetrators prosecuted and punished. Thus, the provision on the duty to punish in the Guidelines on the Right to a Remedy and Reparation can neither be taken as a statement of actual international criminal law nor as indicating that there is a right of a victim to claim punishment for human rights violations as a form of reparation. They are, after all, only guidelines. Though the guidelines may be an indication of future development they still remain to be finalized and they have not gone unchallenged. As Christian Tomuschat put it, although there is room for individual reparation claims within the framework of specific treaty regimes, under general international law, the traditional system of State responsibility should not be replaced with a system where an individual victim has the right to claim reparation.99 His criticism indicates that the guidelines still have a long way to go before they receive universal recognition. This is not to throw the development towards the creation of rules on State responsibility for human rights violations generally into question. The idea that a State party is responsible for human rights violations has found expression in various human rights treaties as evidenced, for example, in the provisions on compensation.100 But the issue whether there is a duty to prosecute human rights violations arising under the rules of State responsibility is far from being settled. Whether a duty to punish should be part of these rules is still open to debate.101 The following consideration should be taken into account in future discussions: if prosecution is required as a form of satisfaction it is mainly a retrospective measure which emphasizes the repressive and retaliatory elements. If it is instead based on the general obligation to ensure human rights the focus is on the prevention of future abuses—a concept that seems to be better suited to human rights law.102 The earlier van Boven Principles appeared to follow the latter approach. 98 Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/Add.1, Principle 19, para. 2 (8 February 2005). 99 Christian Tomuschat, Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position under General International Law, in State Responsibility and the Individual 1, 25 (Albrecht Randelzhofer & Christian Tomuschat eds, 1999). 100 For a recent interpretation of treaty law see Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/Rev.1/Add.13, para. 16 (26 May 2004). 101 According to Méndez prosecution and punishment should form part of a concept of integral reparation. Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 263 (Christopher C. Joyner ed., 1998). 102 As explained in Chapter 6, section 3.1 above, punishment as a measure of retaliation is not a concept of human rights law. Demanding punishment in order to satisfy victims seems to be alien to the concept of human rights because it is not the purpose of human rights law to provide the basis for claims that a State should take rights and liberties from other persons. Even in those human rights

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They called for attention to ‘the duty to prosecute and punish perpetrators of crimes under international law’ and derived this obligation from the more general obligation to respect and ensure respect for human rights.103 In a different context, Theo van Boven denied the existence of a right to punishment.104 The close link between punishment and prevention was also acknowledged by the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). The Court explained that the duty to provide for penalties and to impose those penalties effectively on those responsible for genocide was one of the most effective ways of preventing this crime.105 While the idea that punishment is an element of primary protection has thus found broad acceptance in the international human rights institutions there is no such consensus that punishment is required in order to provide satisfaction. In sum, there is no duty to punish human rights violations under the rules of State responsibility and the development of such a concept is not advisable. The obligation to punish would be better framed as a primary duty of human rights law rather than as a secondary duty of satisfaction.106

3. Conclusion The above points demonstrate that caution should be used in deriving abstract duties, such as the duty to punish, from the traditional law of State responsibility and then applying them mechanically to human rights law, thereby going far beyond the original treaty obligations without proving the existence of a corresponding rule of customary international law. This could amount to the creation of law rather than a description of current law especially in cases where there is a lack of actual State practice with regard to a duty to prosecute. After all, the principles of State responsibility are a concept of customary international law. The above analysis shows that it is already doubtful whether the international law of State responsibility, as it stands, includes a duty to punish violations treaties which contain explicit provisions on punishment the duty to prosecute is phrased as an objective obligation of States, not as an individual right of victims. 103 Basic Principles and Guidelines on the Right to Reparations for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, U.N. Doc. E/CN.4/1997/104, Appendix, para. 2 (1997). 104 At an international conference he held that the victim ‘generally does not possess the right to make a criminal claim in order to bring the perpetrator(s) to justice’. Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 349, 352 (Christopher C. Joyner ed., 1998). 105 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J., Judgment of 26 February 2007, para. 426, at (last accessed 5 December 2008). 106 The question whether the wide ratification of the respect and ensure provisions is evidence for a customary international rule will be dealt with below. See below section 7.

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of inter-State obligations as a means of satisfaction. There is as yet no such customary international law duty at least in regard to human rights violations. Although it is advocated by some authors that such a duty as a form of reparation for victims of human right violations should be assumed, it is doubtful whether this approach should be followed in future. Admittedly, on first sight punishment as a retrospective measure after the occurrence of a crime seems to have its merits in the concept of secondary obligations, i.e. State responsibility for international wrongful acts or remedial measures. What is overlooked are the preventive functions of punishment. Even in international law on the protection of aliens the duty to punish is a concept of primary protection rather than one of redress. The arguments made by the arbitral tribunals with respect to aliens resemble contemporary jurisprudence on the duty to respect and to ensure human rights. If there is a duty to punish human rights violations it is a form of primary protection against future abuses rather than the result of a right by victims to claim compensation. The persistent assertions by the Human Rights Committee and the European Court of Human Rights that under the comprehensive international human rights treaties there is no right of the victim to have offenders punished provide ample evidence that a right to justice is not universally accepted. Although victims have a legitimate interest in ensuring that crimes which have been committed against them are adequately addressed, there is no customary human right to demand punishment. The concept of State responsibility and the right to an effective remedy do not seem to be the appropriate forum for a duty to punish human rights violations—not even de lege ferenda. This is not to deny victims a right to reparation. But reparation can be provided by means other than punishment. An example is the right of the victim to an official investigation of gross and systematic human rights abuses which is now universally recognized.

3. International individual criminal responsibility There are several treaties explicitly obliging States parties to punish certain crimes, as for example genocide. There have been numerous developments in international criminal law over the past half-century. While international criminal responsibility was originally mainly concerned with crimes committed in international armed conflicts, international criminal responsibility now extends to certain serious human rights violations independent of whether they took place during times of war, in non-international armed conflicts, or in times of peace.107 Examples for the continuing extension of international criminal law are crimes committed in non-international armed conflicts. There has been a development to hold accountable internationally the perpetrators of serious violations of common art. 3 of the Geneva Conventions and of international humanitarian law applicable in internal 107 Crimes against humanity and genocide do not require any link to war.

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armed conflicts.108 Common art. 3 and the Second Additional Protocol are increasingly seen as a basis for individual criminal responsibility. In considering the extension of individual criminal responsibility in international law the question arises whether this body of law provides for a comprehensive duty of States to prosecute international crimes generally as a matter of making individual responsibility effective in practice. O’Shea argues that amnesties for crimes committed in internal armed conflicts are incompatible with this development of international criminal law.109 Some authors even go beyond this and extend the argument to other violations of international law.110 They assert that there is a comprehensive duty to prosecute or extradite offenders of crimes against peace and the security of mankind.111 Bassiouni, for example, argues that war crimes, crimes against humanity, and acts of international terrorism are of concern to all States so that all States should cooperate in bringing those who commit such crimes to justice.112 He argues that the purpose of criminalizing such conduct, namely to prevent it, requires deterrence and the likelihood of prosecution which could be achieved only by mandatory domestic prosecution.113 Without a duty to 108 Article 4 of the Statute of the International Tribunal for Rwanda provides the Tribunal with jurisdiction for serious violations of common art. 3 of the Geneva Conventions. The Appeals Chamber of the ICTY in its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Prosecutor v. Dusko Tadic´, Case No. IT-94-1-A, ICTY, Decision of 2 October 1995, paras 86–137, at (last accessed 5 December 2008) interpreted violations of common art. 3 as violations of ‘the laws or customs of war’ subject to its jurisdiction. Article 8(2)(c) and (e) of the Rome Statute provides the International Criminal Court with jurisdiction for serious violations of common art. 3 of the Geneva Conventions and for other serious violations of the laws and customs in non-international armed conflicts. See also Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 554 (1995). 109 Andreas O’Shea, Amnesty for Crime in International Law and Practice 151 (2002). 110 Orentlicher argued that the law applied at Nuremberg not only authorized but required States to punish crimes against humanity when committed on their territory. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2593 (1991). 111 Fania Domb, Treatment of War Crimes in Peace Settlements—Prosecution or Amnesty?, in War Crimes in International Law 305, 316 (Yoram Dinstein & Mala Tabory eds, 1996). Hafner, Boon, Rübesame, and Huston argue that there is an erga omnes duty to exercise jurisdiction over the crimes for which the International Criminal Court has jurisdiction. Gerhard Hafner et al., A Response to the American View as Presented by Ruth Wedgwood, 10 Eur. J. Int’l L. 108, 112 (1999). Ambos assumes a general duty of States to prosecute perpetrators of international crimes (the core human rights). He appears to derive this duty from the mere fact that the prosecution is in the interest of the international community. Kai Ambos, Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzungen, 37 Archiv des Völkerrechts 318, 348 (1999). 112 M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 24 (1995). According to Tomuschat the ‘logic of international crimes . . . would seem to deny individual States the power to grant amnesties on their own initiative, without any co-ordinations with the other members of the international community’. Nonetheless he cautions that there should not be categorical answers. Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 344 (Hans-Joachim Cremer et al. eds, 2002). 113 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 499 (1992).

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prosecute or extradite the efforts to bring such criminals to justice would be frustrated.114 The assumption of such an aut dedere aut judicare obligation would have farreaching consequences and would also apply to crimes committed abroad. Basssiouni based his argument on the lack of international enforcement. He argued that since there was no international criminal court the only available mechanism for enforcing international criminal law was a duty to prosecute or extradite.115 This line of argument, however, has been set aside by the entry into force of the Rome Statute for the International Criminal Court. This provides the basis for international prosecution and is designed to deter international crimes.116 Admittedly, international criminal prosecution by the Court does not replace domestic prosecution of international crimes. However, there is still the deterrent effect of permissive universal jurisdiction by States aside from international prosecution. In any event, international prosecution may be an incentive for States to prosecute the offenders at the domestic level. Therefore, the concept of international crimes is not rendered meaningless without a duty on States to prosecute or extradite. The international consensus that perpetrators of crimes against humanity incur individual criminal responsibility does not necessarily imply that States are bound to prosecute these crimes.117 It goes without saying that a State duty to prosecute international crimes will ensure that the system of international prosecution is more effective and is therefore desirable. However, the mere fact that domestic prosecution is desirable cannot make up for the lack of a legal obligation on States to prosecute international crimes at the domestic level.118 Although international criminal responsibility and the duty to prosecute or extradite overlap, for example in cases of genocide, the two concepts are not identical.119 The former concerns the individual liability of the perpetrator with the consequence that he or she can be held accountable internationally, while the other concerns a State obligation to institute domestic criminal proceedings against 114 M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 24 (1995). 115 M. Cherif Bassiouni, International Criminal Law 7 (vol. 1, 1986). 116 Benvenuti argues that paragraph 6 of the Rome Statute’s Preamble referring to a duty to exercise criminal jurisdiction over perpetrators of international crimes is the reflection of customary international law rules. Paolo Benvenuti, in Flavia Lattanzi & William A. Schabas (eds), Essays on the Rome Statute of the International Criminal Court 21, at 22 (vol.1, 1999). While the reference may be viewed as an indication of future development, the Preamble should not be taken as a proof without further indication of such a norm. 117 Andreas O’Shea, Amnesty for Crime in International Law and Practice 205 (2002). He lists several purposes served by classifying an offence as a crime under international law, notwithstanding the absence of an obligation to extradite or prosecute. Id. at 205–206. 118 O’Shea argues that a duty to prosecute international crimes itself needs to be derived from a source of international law. Id. at 205. See also John Dugard, Dealing With Crimes of a Past Regime. Is Amnesty Still an Option?, 12 Leiden J. Int’l L. 1001, 1015 (1999). 119 The European Court of Human Rights in the McCann Case pointed out that State responsibility and individual criminal responsibility should not be equated. McCann and Others v. United Kingdom, App. No. 18984/91, Eur. Ct. H.R. (ser. A) No. 324, Judgment of 27 September 1995.

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an offender. The Nuremberg Principles do not refer to a State duty but only to individual responsibility. They provided that ‘[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment’.120 Neither does the Rome Statute for the International Criminal Court provide for a duty to prosecute.121 The fact that the most serious crimes of international concern can be prosecuted by an international criminal tribunal122 does not necessarily mean that there is automatically also a duty of all States to prosecute or extradite.123 There is yet another argument against deriving a general duty of all States to prosecute or extradite crimes from international criminal responsibility. Those international treaties establishing individual criminal responsibility provide for a duty to prosecute or extradite only under specific circumstances. For example, the Genocide Convention provides for such a duty with regard only to the State where the act was committed.124 To derive a duty from the international criminal responsibility for genocide that each custodial State should prosecute offenders at criminal law would go beyond the specific provision of the Genocide Convention. It is unfeasible to justify such an extension on the basis of customary international law without regard to the practice of States.125 In order to strengthen the argument that there is still an obligation to prosecute, Bassiouni’s argument uses the jus cogens nature of some international crimes, such as genocide. He claims that once an international crime forms part of jus cogens it also requires the effective punishment or the extradition of the perpetrators by all States.126 Accordingly, his view is that aggression, genocide, crimes 120 Principle VI, in Report of the I.L.C. to the U.N. General Assembly, U.N. GAOR, Supp. Nos 12, 13–14, U.N. Doc. A/1316 (1950). 121 Anja Seibert-Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, 7 Max Planck UNYB 553, 558–60 (2003). 122 E.g., by the International Criminal Court and in case of the former Yugoslavia and Rwanda, the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda. 123 The individual criminal accountability before an international court is to be distinguished from the question whether there is a duty of all States to prosecute or extradite perpetrators of international crimes. Although international prosecution may undermine a domestic amnesty, for example by requiring the custodial State to surrender the accused, it does not follow that it prohibits an amnesty altogether. See Anja Seibert-Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, 7 Max Planck UNYB 553 (2003). 124 Other examples are the Geneva Conventions of 1949. To derive individual criminal responsibility for serious violations of humanitarian law in non-international armed conflicts from common art. 3 of the Geneva Conventions and then to assume a duty to prosecute or extradite such violations contradicts the obvious intent of the drafters not to apply the mandatory criminal jurisdiction to noninternational armed conflicts. Such a duty requires a corresponding State practice that reflects opinio juris. 125 Whether there is such a practice with regard to genocide will be discussed below. In any event, a general duty to prosecute or extradite perpetrators of genocide cannot be derived simply from their individual criminal responsibility. 126 M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligation Erga Omnes, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human

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against humanity, war crimes, piracy, slavery and related practices, and torture are ‘international crimes of jus cogens’.127 A similar approach was taken by a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Furundzija. The Chamber argued that the jus cogens nature of the prohibition of torture had the effect of de-legitimizing any act authorizing torture. It continued: It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. (Footnotes omitted.)128

These statements illustrate efforts to develop further the concept of international crimes. Prohibitions are equated with a duty to prosecute.129 And sometimes individual criminal responsibility is construed as a basis for comprehensive criminal obligations. This is based on rule of law arguments and resembles those arguments brought forward recently in the Inter-American Court of Human Rights.130 Although the arguments are well meant it is questionable whether they represent norms of international law. This is why their advocates usually argue on the basis of reason rather than on the basis of treaties or general practice. But though their line of argument may seem at first persuasive, the argument is not rationally compelling. The prohibition of an act does not automatically carry with it a comprehensive duty to prosecute or extradite. Despite several treaties prohibiting and, at Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 133 (Christopher C. Joyner ed., 1998). See also Fania Domb, Treatment of War Crimes in Peace Settlements—Prosecution or Amnesty?, in War Crimes in International Law 305, 316–317 (Yoram Dinstein & Mala Tabory eds, 1996). According to Bassiouni the threshold question of jus cogens crimes is whether States are under an obligation erga omnes to proceed against the offenders. M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligation Erga Omnes, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 136. He thereby appears to use a circular argument. 127 M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligation Erga Omnes, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 133, 139 (Christopher C. Joyner ed., 1998). 128 The Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ICTY, Judgment of 10 December 1998, para. 155. Less decisive is Antonio Cassese, International Criminal Law 316 (2003). According to Cassese, peremptory norms ‘may be construed’ as imposing the obligation not to cancel the crimes they prescribe. 129 See e.g. Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity under International Law 226 (2007). 130 Case of Almonacid-Arellano et al v. Chile, Preliminary Objections, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 105 (29 November 2006); Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 153, para. 128 (22 September 2006).

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the same time, requiring States parties to criminally prosecute certain acts there are also treaties which do not contain criminal obligations. There is a difference between a substantive norm proscribing certain conduct and a procedural norm obliging States to prosecute or extradite persons accused of such crimes. It is one thing to say that due to the erga omnes character of the crime every State is entitled to investigate, prosecute and punish, or extradite those responsible, but quite another to say that there is a corresponding duty. It would be going too far to oblige every State to prosecute or extradite crimes regardless of any link simply on the basis of a prohibition. The fact that certain prohibitions form part of jus cogens does not mean that there is a corresponding universal duty of aut dedere aut judicare. The concepts of jus cogens and erga omnes norms are tools to classify certain international norms. If a norm is qualified as jus cogens this means that it is pre-emptory and nonderogable.131 Pursuant to art. 53 of the Vienna Convention on the Law of Treaties of 1969, ‘a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.132 Legal acts not conforming with such norms are void. For example, a treaty encouraging genocide would be void. The jus cogens concept, however, does not create additional obligations. It thus cannot make up for the lack of a norm obliging all States to prosecute certain crimes. Certain crimes are of concern to the international community. But this does not necessarily mean that all States are under an obligation to prosecute or extradite offenders who committed international crimes abroad.133 While the concepts of jus cogens, erga omnes norms, and mandatory universal jurisdiction may be coexistent with respect to certain crimes this is not necessarily the rule.134 Admittedly, there may be a trend towards the creation of such a rule.135 The Preamble of the Rome Statute which refers to the ‘duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ is an indication of 131 For a detailed description of the concept see Jochen A. Frowein, Jus Cogens, in 3 Encyclopedia of Public International Law 65 (Rudolf Bernhardt ed., 1997). 132 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force 27 January 1980. 133 Even if there is an erga omnes obligation to prohibit certain international crimes this does not necessarily mean that the obligation extends to violations outside the territorial reach of a State. The concept of erga omnes norms as elaborated by the ICJ in the Barcelona Traction case merely indicates that there are obligations of a State ‘toward the international community as a whole’ because they are ‘the concern of all States’.Though the beneficiary is a universal one, the conduct mandated does not necessarily extend to extra-territorial acts. Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain), 1970 I.C.J. 3, 32. 134 For the difference between the concepts of erga omnes and jus cogens see The Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ICTY, Judgment of 10 December 1998, para. 153. 135 Bartram S. Brown, The Evolving Concept of Universal Jurisdiction, 35 New Eng. L. Rev. 383, 392–395 (2001).

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this trend.136 But it cannot yet be regarded as a reflection of customary international law. If treaty law does not provide for a comprehensive duty to prosecute or extradite it cannot be derived from international criminal responsibility. Instead of generally deriving a duty to prosecute from individual criminal responsibility and jus cogens it would be better to start with the prohibition of serious abuses, to take its territorial scope into account, and then to consider whether the prohibition requires prosecution. The prohibition of certain heinous crimes, such as torture, involves the obligation by States to prevent such crimes on their territory. It may even require repressive means.137 But as pointed out above, the complicity rationale does not support a comprehensive obligation to punish.138 A failure to punish does not necessarily amount to aiding and abetting. Neither does it recognize the situation created by the crime as lawful.139 The argument of the ICTY that prohibition would be meaningless in cases of amnesty is not persuasive. While it is correct that any act which authorizes or condones torture is in violation of the duty to prevent torture, an amnesty law does not necessarily authorize or condone torture.

4. Universal jurisdiction Related in some ways to individual criminal responsibility is the assumption that a duty to punish could be derived from the concept of universal jurisdiction.140 According to this principle States have the power to prescribe and punish a limited number of crimes generally recognized as being of universal concern and to prosecute the perpetrators of such crimes regardless of any territorial, personal, or other

136 Paragraph 6 of the Preamble. 137 The argument has been made that an amnesty which authorizes or recognizes crimes as lawful retrospectively would be contrary to the jus cogens nature of the core international crimes. This is, however, limited to such amnesties providing for complete impunity and ratifying retrospectively the crimes at issue. Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, 85 I.R.R.C. 583, 613–614 (2003) with reference to The Prosecutor v. Furundzija, Case No. IT-9517/1-T, ICTY, Judgment of 10 December 1998, para. 155. 138 Chapter 6, section 3.1.A.b.. 139 R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, 112–114 (2005). 140 Kai Ambos, Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzungen, 37 Archiv des Völkerrechts 318, 348 (1999). See also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2593 (1991). Orentlicher interprets the emphasis on international jurisdiction in the Nuremberg Principles as an affirmation of a duty to punish crimes against humanity. According to Meintjes and Méndez international crimes are subject to universal jurisdiction ‘which requires that states either prosecute or extradite the suspected perpetrators’. Garth Meintjes & Juan E. Méndez, Reconciling Amnesties with Universal Jurisdiction, 2 Int’l L. F. 76, 97 (2000). For the concept of universal jurisdiction generally see Stephen Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (2003).

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link to the crime committed.141 Such jurisdiction is accepted, for example for piracy, as part of customary international law142 but as indicated by the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in the ICJ case of Congo v. Belgium, it is a controversial point for which other crimes universal jurisdiction exists.143 The argument advocating a comprehensive obligation to prosecute in cases of universal jurisdiction is similar to the one regarding jus cogens: some crimes are of concern to the international community as a whole and therefore require prosecution by all States.144 It is, however, overlooked that universal jurisdiction has traditionally been considered a permissive basis for the exercise of jurisdiction by States. The concept of permissive universal criminal jurisdiction should be distinguished 141 The US Restatement of the Law defines jurisdiction as ‘the capacity of a State under international law to prescribe or to enforce a rule of law’. American Law Institute, Restatement (Second) of Foreign Relations Law of the United States, Part IV, Ch. 1, Sect. 6, p. 25 (1962). There is some dispute as to whether universal jurisdiction applies only to States on whose territory the accused is found or provides even other States without any personal or territorial link to prosecute the accused. See Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63, para. 41. Thomas Buergenthal, The ICJ, Human Rights and Extraterritorial Jurisdiction, in Human Rights, Democracy and the Rule of Law 143–150 (Stephan Breitenmoser ed., 2007). 142 Joyner argues that there is permissive universal jurisdiction also for war crimes. Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in BringingWar Criminals to Accountability, 59 Aut Law & Contemp. Probs. 153 (1996). 143 According to Judges Higgins, Kooijmans, and Buergenthal there is in contrast to piracy and grave breaches under the Geneva Conventions of 1949, for example, no general permissive rule of universal jurisdiction under international law with regard to crimes against humanity. Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63, para. 52. But referring to the Lotus Principle proclaimed by the Permanent Court of Justice they conclude that the exercise of universal jurisdiction in respect of crimes against humanity is not precluded under international law. Id. at paras 49, 65. According to the Third Restatement of the Law ‘[a]n international crime is presumably subject to universal jurisdiction’. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, Sect. 404, p. 257 (1987). Similarly, Stern argues that permissive universal jurisdiction exists as a customary principle of international law for all crimes that are universally condemned by international law. Brigitte Stern, Better Interpretation and Enforcement of Universality Jurisdiction, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 175, 179 (Christopher C. Joyner ed., 1998). This broad reading was criticized by Higgins. Rosalyn Higgins, Problems and Process; International Law and How we Use It 62–65 (1994). According to Scharf there is universal jurisdiction with regard to piracy, war crimes, crimes against humanity, genocide, torture, terrorism, and narcotic trafficking on the basis of the respective treaties. Most of these treaties, in his view, do not, however, represent a codification of existing customary international law. Michael Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 372–373 (2001). According to Judges Higgins, Kooijmans, and Buergenthal universal criminal jurisdiction should be exercised only over those ‘crimes regarded as the most heinous by the international community’. 144 See Brigitte Stern, Better Interpretation and Enforcement of Universal Jurisdiction, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 175, 178 (Christopher C. Joyner ed., 1998).

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from the concept of aut dedere aut judicare which is sometimes referred to as mandatory universal criminal jurisdiction.145 While some treaties, as for example the Geneva Conventions of 1949 and the Torture Convention establishing mandatory jurisdiction for States in which the accused is found,146 a duty to prosecute cannot generally be derived from the concept of universal jurisdiction which allows for but does not require prosecution by States.147 Taking into account that there is only limited State practice exercising even permissive universal jurisdiction,148 it is difficult to argue that there is a universal duty to punish international crimes. The question whether amnesties for crimes of universal jurisdiction can be recognized was raised before the Special Court for Sierra Leone. Although the Court did not accept the amnesty provided for in the Lomé Accord, its decision should not be misunderstood as deriving a prohibition of amnesties from the principle of universal jurisdiction.149 The decision concerned only jurisdictional matters. The defendants had challenged the Court’s competence on the basis of the amnesty in the Lomé Accord. But the Court held that this Agreement did not constitute ‘a legal bar to prosecution of the defendant’ by the Special Court.150 This was explained using the concept of universal jurisdiction over the crimes for which the Court had jurisdiction.151 Universal jurisdiction, thus, was an argument for the

145 See also Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63, para. 44. Wolfrum distinguishes between universal jurisdiction and the principle of vicarious administration of justice. Rüdiger Wolfrum, The Decentralized Prosecution of International Offences Through National Courts, in War Crimes in International Law 233, 235 et seq. (Yoram Dinstein & Mala Tabory eds, 1996). 146 See above Chapter 5, section 1.2. Judges Higgins, Kooijmans, and Buergenthal argue that the jurisdiction established in these treaties is not truly universal but ‘an obligatory territorial jurisdiction to persons, albeit in relation to acts committed elsewhere’. Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63, para. 41. 147 Joyner who explains universal jurisdiction for war crimes by the fact that they qualify as delicta juris gentium, repeatedly holds that States have the right to prosecute and that the jurisdiction is permissive. Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 Aut Law & Contemp. Probs. 153, 169 (1996). Wise holds that the question whether there is a duty to prosecute is a matter different from universal jurisdiction. M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 44 (1995). 148 According to the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal there is no such practice for truly universal jurisdiction; that is if there is no link at all by the prosecuting State to the crime committed and if the accused is not even on the territory of the State. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63, para. 45. 149 The Court explained in an obiter dictum that there was only an emerging rule against amnesties under international law. Prosecutor v. Kallon and Kamara, Case Nos SCSL-2004-15-AR 72 (E), SCSL-2004-16-AR 72 (E), Special Court for Sierra Leone (Appeals Chamber), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty. 150 Id. at para. 72 (13 March 2004). 151 Id. at paras 70–72.

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Court’s own jurisdiction. Not at issue was the question, whether a State by enacting an amnesty for such crimes violated international law.152 A final argument against the contention that States are obliged to prosecute all international crimes according to the principle of universal jurisdiction is the jurisdictional regime of the Rome Statute for the International Criminal Court. The Court does not have jurisdiction for all crimes covered by the Statute. Instead the consent of the State of nationality or of the territorial State is required.153 Since the international community was not even prepared to allow the International Criminal Court to operate on the basis of universal jurisdiction, it can hardly be assumed that such conduct is required by each single State.154

5. Aut dedere aut judicare Bassiouni explains his assertion that there is a customary international law duty to extradite or prosecute all international offences also with international treaty law. He asserts that there is a consistent reaffirmation of the duty in conventional international criminal law which requires universal application.155 Here it is not individual criminal responsibility which is used as the basis to derive an obligation to prosecute or extradite. But an effort is made to derive a general principle of aut dedere aut judicare from international treaty law. But it is doubtful whether such a general principle exists. Despite a number of treaties providing for a duty to prosecute or extradite, such as the Torture Convention and the Geneva Conventions,156 they cover only a limited number of international crimes. There is no such treaty obligation, for example, for the whole range of crimes against humanity.157 Admittedly, there are increasing efforts to require States to prosecute or punish a growing number of crimes. Several international resolutions and declarations concerning specific international crimes include provisions in this respect: the Declaration on the Protection of all Persons from 152 In the end the Court adopted Cassese’s approach, that there is not yet any general obligation for States to refrain from amnesty law on these crimes. Id. at para. 71 with reference to Antonio Cassese, International Criminal Law 315 (2003). 153 See art. 12(2)–(3). In case of referral by the Security Council pursuant to art. 13(b) no consent by the State is required. 154 Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 348 (Hans-Joachim Cremer et al. eds, 2002). 155 M. Cherif Bassiouni, International Extradition: United States Law and Practice 39 (4th edn, 2002); M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 21 (1995). See also Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, at 492–493 (1990). 156 For further treaties see above and the comprehensive list in M. Cherif Bassiouni, International Extradition: United States Law and Practice, Chapter I, pp. 13 et seq. (4th edn, 2002). 157 Only some aspects of these crimes are covered by the above-mentioned treaties, such as torture and apartheid.

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Enforced Disappearance by the General Assembly158 and the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions by the Economic and Social Council159 are just two examples. The draft Code of crimes against the Peace and Security of Mankind adopted by the ILC also provides for an obligation to extradite or prosecute for genocide, crimes against humanity, and crimes against the United Nations and its associated personnel.160 Louis Joinet in his study for the Commission on Human Rights went as far as deriving from these pronouncements a prohibition of amnesties for serious international crimes.161 Likewise, principle 22 of the Updated Set of principles for the protection and promotion of human rights through action to combat impunity provides that ‘[s]tates should adopt and enforce safeguards against any abuse of rules such as those pertaining to . . . amnesty that fosters or contributes to impunity’.162 Futhermore, the former Commission on Human Rights in its Resolution on Impunity of 2005 asserted that amnesties should not be granted to those who commit violations of human rights and international humanitarian 158 G.A. Res 133, U.N. Doc. A/RES/47/133, art. 14 (18 December 1992): Any person alleged to have perpetrated an act of enforced disappearance in a particular State shall, when the facts disclosed by an official investigation so warrant, be brought before the competent civil authorities of that State for the purpose of prosecution and trial unless he has been extradited to another State wishing to exercise jurisdiction in accordance with the relevant international agreements in force. All States should take any lawful and appropriate action available to them to bring to justice all persons presumed responsible for an act of enforced disappearance, who are found to be within their jurisdiction or under their control. 159 U.N. Econ. & Soc. Council [ECOSOC] Resolution 1989/65, para. 18 (24 May 1989): Governments shall ensure that persons identified by the investigation as having participated in extralegal, arbitrary or summary executions in any territory under their jurisdiction are brought to justice. Governments shall either bring such persons to justice or cooperate to extradite any such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed. 160 Article 9 of the text as finally adopted by the Commission at its forty-eighth session provides: Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in articles 17, 18, 19 or 20 is found shall extradite or prosecute that individual. Report of the International Law Commission on the Work of its Forty-eighth Session, U.N. G.A.O.R., 51st Sess., Supp. No. 10, U.N. Doc. A/51/10, Chapter II (1996). It is not clear whether the ILC regarded the aut dedere principles as a rule of customary international law. The commentary merely provides that this principle is reflected in several conventions. I.L.C. Commentary on Art. 9, at para. 2, at (last accessed 5 December 2008). 161 Joinet, Amnesty—A methodological analysis of the process of Amnesty, p. 5. See also the socalled Joinet Principles according to which perpetrators of gross and systematic violations may not be included in an amnesty ‘unless the victims have been unable to avail themselves of an effective remedy and obtain a fair and effective decision’. Commission on Human Rights, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), U.N. Doc. E/CN.4/Sub.2/1997/20/ Rev.1, Annex II, Principle 28, at p. 23 (2 October 1997). 162 Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/Add.1 (8 February 2005).

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law that constitute crimes.163 It should, however, not be overlooked that these are non-binding pronouncements which represent only emerging principles.164 The Draft Code, for example, was never adopted by the United Nations but served only as a point of departure for the later negotiations on the Rome Statute for the International Criminal Court. Taking into account the difference between the existing treaty provisions it is doubtful whether the aut dedere aut judicare concept is applicable to all international crimes.165 As elaborated on above, a considerable number of treaties, as for example the Genocide Convention, the Slavery Conventions, and the Apartheid Convention, are not based on this concept.166 Although the principle can be found in other treaties, such as in the Torture Convention and the Disappearance Convention, there is still reason to doubt whether it represents a coherent and universally applicable concept.167 Even the international conventions referring to the aut dedere aut judicare principle vary. Some provide for a duty to prosecute only if the accused is not extradited, others leave the requested State with a choice between extradition and prosecution.168 Even Bassiouni, who speaks of a customary duty to extradite or prosecute, admits that the principle has not been expressed with sufficient specificity in this respect.169 With respect to State practice the following observations can be made: apart from the wide ratification of the Torture Convention a considerable number of States have failed to ratify major international conventions incorporating the concept of aut dedere aut judicare.170 Even if States ratify these conventions, they do not necessarily enforce these provisions with domestic legislation171 For example, 163 Commission on Human Rights, Impunity, U.N. Doc. E/CN.4/RES/2005/81, para. 3 (2005). 164 For an analysis of the relevance of these documents see Marc Groenhuijsen & Rianne Letschert (eds), Compilation of International Victims’ Rights Instruments (2006). 165 For a survey of the different formulations of the duty to proscribe, prosecute, or punish international crimes, see M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 8 et seq. (1995). It also indicates that some agreements do not at all contain a provision on extradition. Id. at 9. 166 See above Chapter 5. 167 Georg Dahm, Rüdiger Wolfrum, & Jost Delbrück, Völkerrecht, I/3 Die Formen des völkerrechtlichen Handelns, die inhaltliche Ordnung der internationalen Gemeinschaft, § 190 II. 3 b) (2nd edn, 2002). 168 For the different categories of aut dedere aut judicare see M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 11–19 (1995). 169 M. Cherif Bassiouni, International Criminal Law 8–9 (Vol. 1, 1986). 170 Michael Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 373 (2001). Scharf refers to leading terrorism conventions, such as the Hostages Taking Convention. But see M. Cherif Bassiouni, International Extradition: United States Law and Practice 22 (4th edn, 2002); 171 Brigitte Stern, Better Interpretation and Enforcement of Universality Jurisdiction, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 175, 183 (Christopher C. Joyner ed., 1998).

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France has not adopted specific legislation providing for universal jurisdiction for grave breaches of the Geneva Conventions of 1994. Therefore the Cour de Cassation in a case brought against Serbs by Bosnian victims refused to apply the Conventions which it considered to be non-self-executing.172 Some States parties merely establish a right of the authorities to prosecute the crimes without making it mandatory.173 The lack of cases also suggests that mandatory universal jurisdiction is often not adhered to.174 Bassiouni concedes that State practice is far from consistent.175 Taking all this into account—that there is a treaty-based duty to prosecute or extradite only with regard to particular offences, that its content varies from treaty to treaty, and that there is no coherent State practice with regard to other crimes— the obvious conclusion is that the principle of aut dedere aut judicare is not part of customary international law with regard to all international crimes.176 The argument that international crimes are of concern to the international community may provide the rationale for a rule de lege ferenda. But it cannot make up for the lack of a legal basis absent a comprehensive treaty or corresponding State practice. It is unwarranted to abstract a comprehensive principle of aut dedere aut judicare from treaties dealing with particular crimes in various ways and applying it to other crimes in a uniform way.177 Whether there is a customary international law duty with regard to single crimes due to a widespread ratification, as for example of the Torture Convention, will be analysed below.178

172 Cour de cassation, Cass. crim. [Highest Court of Ordinary Jurisdiction, Criminal Chamber], 26 March 1995, (Fr.). See also Brigitte Stern, Better Interpretation and Enforcement of Universality Jurisdiction, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 175, 183 (Christopher C. Joyner ed., 1998). 173 E.g. art. 689-1 C. Pr. Pén. [French Penal Procedure Code]. See Brigitte Stern, Better Interpretation and Enforcement of Universality Jurisdiction, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 175, 185 (Christopher C. Joyner ed., 1998). 174 Michael Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 373 (2001). See also Hammel who argues that there is no common State practice. Frank A. Hammel, Innerstaatliche Amnestien, Grundlagen und Grenzen aufgrund des Internationalen Rechts 124 (1993). 175 Despite the lack of State practice Bassiouni derives a customary international law rule of aut dedere aut judicare from conventional law. M. Cherif Bassiouni, International Extradition: United States Law and Practice 22 (4th edn, 2002). 176 Edward M. Wise in M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 49 (1995). See Michael Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 373 (2001). 177 Edward M. Wise in M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 49 (1995). 178 Scharf argues that there is such a duty with regard to specific crimes. Michael Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 374 (2001).

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To conclude that there is no mandatory universal jurisdiction for international crimes in general, does not mean that States are permitted to disregard their international obligations following from treaty law. These obligations have been described in the first part of this text. Furthermore, even if there is no comprehensive duty to prosecute perpetrators of international crimes, the substantive obligations providing for international criminal responsibility are in force and other States may prosecute provided they have jurisdiction.

6. State international criminal responsibility? O’Shea raised the question whether the failure to prosecute could give rise to the criminal responsibility of a State.179 He argues that the promotion of an atmosphere of impunity by a State tolerating crime may amount to complicity in the crime so that they are obliged to prosecute such crimes in the first place in order to avoid State responsibility. A similar argument was occasionally put forward in the arbitration cases above where States claimed compensation for another State’s failure to punish crimes against aliens.180 It should, however, be noted that in these cases the argument was made to substantiate claims for monetary compensation.181 O’Shea goes beyond this and uses the rationale to justify criminal responsibility by a State.182 This line of argument faces several major obstacles. First, there is the question whether there is State criminal responsibility at all. The idea of O’Shea is based on the premise that a State can be held directly accountable for a crime.183 But is international criminal law applicable to States? There has recently been some discussion about international ‘crimes’ of States and their consequences.184 An early 179 Andreas O’Shea, Amnesty for Crime in International Law and Practice 207 (2002). 180 In the Janes Case the United States stressed the complicity of the Mexican Government by failing to punish the murderer of a US national and concluded that the Mexican Government was responsible for the crime itself. Janes Case (United States v. Mexico), United States and Mexico General Claims Commission, Opinions 108, 114, 4 R. Int’l Arb. Awards 82, 82 (1927). 181 The US Restatement seems to have taken the cases regarding the protection of aliens as evidence for its assertion that a total failure to punish repeated and notorious violations of rights protected by customary international law renders a government sufficiently complicit to generate State responsibility. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987). A word of caution seems advisable here. Only if the retrospective ratification gives rise to new crimes can the argument be made that the later crimes can be attributed to the State. But this does not give rise to a per se obligation to prosecute crimes. 182 But this would lead to a duty to prosecute irrespective of whether the crime itself can be attributed to the State. 183 O’Shea recognizes that his theory depends on this question. Andreas O’Shea, Amnesty for Crime in International Law and Practice 208 (2002). 184 Shabtai Rosenne, War Crimes and State Responsibility, in War Crimes in International Law 65 (Yoram Dinstein & Mala Tabory eds, 1996); Joseph H. H. Weiler, Antonio Cassese, & Marina Spinedi (eds), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989); Nina H.B. Jorgensen, The Responsibility of States for

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draft of the ILC on State responsibility referred to international crimes and described them as a breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime.185 However, the final Draft Articles on Responsibility of States for internationally wrongful acts adopted in 2001 do not include a provision on international crimes.186 The following considerations argue against State criminal responsibility: the idea of criminal responsibility originated with respect to individuals. In 1946 the International Military Tribunal pointed out that ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.187 Since then there has not been any development of penal consequences for States of breaches of pre-emptory norms of international law.188 All international criminal tribunals since the Nuremberg Trials have been concerned only with the prosecution of individuals.189 The jurisdiction of the International Criminal Court is explicitly limited to natural persons.190 The idea that States incur criminal responsibility was also rejected by the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).191 The Court referred to the concept of dual responsibility and distinguished between individual criminal responsibility and State responsibility.192 It held that the obligation for States under the Genocide Convention and the responsibilities arising from a breach thereof are obligations and responsibilities under international law and not criminal in nature.193 That there is no criminal responsibility of States was also stressed by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia. It declared that ‘[u]nder present international law it is clear that States, by definition, International Crimes (2000); Allain Pellet, Can a State Commit a Crime? Definitely, Yes!, 10 Eur. J. Int’l L. 425 (1999). 185 Article 19(2), see International Law Commission, Fifth Report on State Responsibility, U.N. Doc. A/CN.4/453, Add.2 (8 June 1993). 186 Draft article adopted by the ILC at its 53rd session (2001), in Report of the International Law Commission on the Work of its Fifty-third Session, U.N. G.O.A.R., 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10, Chapter IV, E. 1 (2001). 187 International Military Tribunal for the Trial of the Major War Criminals, Judgment of October 1, 1946, reprinted in 41 Am. J. Int’l L. 172, 221 (1947). 188 Commentaries to the draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001), in Report of the International Law Commission on the Work of its Fifty-third Session, U.N. G.O.A.R., 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10, Chapter IV.E.2, 279. 189 Id. at 280. 190 Article 25, para. 1 of the Rome Statute. 191 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J., Judgment of 26 February 2007, at (last accessed 5 December 2008). 192 Id. at para. 173. 193 Id. at para. 170.

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cannot be the subject of criminal sanctions akin to those provided for in national criminal systems’.194 This is why the ILC finally omitted the former distinction between crimes and delicts in the Draft Articles on State responsibility.195 It is in any case doubtful whether the earlier reference to international crimes of a State could be taken as an indication that a State can be held criminally accountable for a crime. The term ‘international crimes’ was misleading. It was a distinction between different types of internationally wrongful acts which all have the consequence that a State must provide for compensation and satisfaction. The reference was originally intended to reflect that the violation of a substantive norm of a fundamental character weighed more heavily and concerned the international community as a whole so that compensation could be claimed by all States.196 The Draft Articles do not concern the criminal but the civil liability of States.197 The renunciation of the former reference to international crimes underlines this. There is a second obstacle to deriving a duty to prosecute from criminal responsibility: even if there were a concept of State criminal responsibility it is doubtful whether there is a sufficient link between the failure to prosecute past crimes and the commission of new crimes which is close enough to provide the basis for criminal responsibility. To derive a protective duty to punish past human rights violations in order to deter future violations is one thing, but to say that a State is criminally liable for non-prosecution is another. Criminal responsibility due to its grave consequences would require more than mere causation. It would also necessitate a cognitive element to substantiate the criminal nature of the wrongful act. In sum, though the idea of deriving a duty to prosecute from State criminal responsibility may be innovative, there is currently no basis for it in customary international law.

7. The relevance of treaties providing for a duty to prosecute None of the above-mentioned concepts is able to sustain a comprehensive duty to prosecute serious human rights violations. It is therefore necessary to consider State practice more generally. One aspect of such practice is the conclusion of 194 Prosecutor v. Blaškic´, Subpoena duces tecum, Case No. IT-95-14-AR 108, I.C.T.Y, Decision of 29 July 1997. 195 Commentaries to the draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001), in Report of the International Law Commission on the Work of its Fifty-third Session, U.N. G.O.A.R., 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10, Chapter IV.E.2, p. 281. 196 Commentaries to the draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001), in Report of the International Law Commission on the Work of its Fifty-third Session, U.N. G.O.A.R., 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10, Chapter IV.E.2, p. 281. 197 Shabtai Rosenne, War Crimes and State Responsibility, in War Crimes in International Law 65, 101 (Yoram Dinstein & Mala Tabory eds, 1996). But see Allain Pellet who argues that international responsibility is neither civil nor penal. Allain Pellet, Can a State Commit a Crime? Definitely, Yes!, 10 Eur. J. Int’l L. 425, 433 (1999).

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international treaties. It has been argued that the human rights treaties providing for an obligation to punish could provide evidence for the existence of a customary international law rule obliging States to prosecute serious human rights violations.198 That widespread and representative participation in a convention may indicate a general rule of international law provided that those States most affected participate was indicated by the ICJ in the North Sea Continental Shelf Case.199 However, there is no room to argue for a comprehensive duty to prosecute all serious human rights violations on this basis. Some of those treaties which provide for an obligation to prosecute have not been widely ratified. Examples are the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others200 and the International Convention on the Suppression and Punishment of the Crime of Apartheid.201 Furthermore, not all human rights treaties explicitly oblige States to prosecute human rights violations. The general human rights conventions especially do not include an explicit duty to do so. The argument that these treaties implicitly provide for a duty to prosecute under the ‘respect and ensure’ provisions and therefore indicate a corresponding rule of general international law is not persuasive.202 Unwritten duties cannot provide evidence of a comprehensive customary international rule. It is one thing to argue that a widely ratified Convention can represent customary international law, but quite another to argue that unwritten obligations which are derived from such treaties by treaty bodies need to be observed by the international community at large irrespective of their ratification. This is particularly troublesome absent any proof of general State practice. There is evidently a trend under the major international human rights treaties to assume a duty to bring perpetrators of serious human rights violations to justice. Considering the unanimity of the relevant jurisprudence it is reasonable to argue that it accurately represents treaty obligations. But in order to bind non-State parties some evidence for general practice is vital. Furthermore, the treaties do not provide for an absolute duty to prosecute. As indicated above, this duty has specific inherent limits. If the 198 Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 511–513 (1987). 199 North Sea Continental Shelf Case (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 I.C.J. 41–43. See also Nottebohm Case (Liechtenstein v. Guatemala), 1955 I.C.J. 21–23. For this issue see Andreas O’Shea, Amnesty for Crime in International Law and Practice 214–218 (2002). For further references see id. at note 88. 200 There were 81 States parties to the Convention as of 8 April 2009. See Status of Treaties, United Nations Treaty Collection, (last accessed 8 April 2009). The Slavery Convention had 95 States parties as of 5 February 2002. Id.. It should be noted that the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity counted only 52 State parties as of 8 April 2009. Id. 201 As of 8 April 2009 there were 107 States parties to the Apartheid Convention. See Status of Treaties, United Nations Treaty Collection, (last accessed 8 April 2009). 202 But see Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 492–493 (1990).

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argument of a customary international obligation to prosecute is made on the basis of the ‘respect and ensure’ provisions such a customary obligation cannot go beyond the content of the actual treaty obligation if there is no evidence for a different general practice. Though there is no allowance for a customary international rule requiring prosecution for all serious human rights violations there are specific conventions which arguably represent rules of customary international law.203 An example is the Genocide Convention which explicitly provides for a duty to prosecute. It has met broad international acceptance.204 The ICJ in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide held that the principles underlying the Convention ‘are considered by civilized nations as binding on States, even without any conventional obligation’.205 Although the Court did not specify which provisions were considered underlying principles, art. 1 which lays down the principal obligation to prevent and punish genocide is certainly included, at least with respect to acts of genocide committed on a State’s territory.206 In respect of torture the picture is less clear than with the duty to punish genocide. There are 146 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.207 The Convention has gained considerable support over the past years, including in Africa. It has its counterparts in the Inter-American Convention to Prevent and Punish Torture and in the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.208 The Inter-American 203 Taking into account the almost universal ratification of the Geneva Conventions together with the result of the domestic legislation of implementation, there is a weighty argument that the duty to prosecute the grave breaches under the Geneva Conventions is part of customary international law. Theodor Meron, Is International Law Moving Towards Criminalization?, 9 Eur. J. Int’l L. 18, 23 (1998); Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, 85 I.R.R.C. 583, 597 (2003). But see Bassiouni in M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 44–46 (1995). As to the question whether other serious breaches of international humanitarian law require prosecution under customary international law see Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, 85 I.R.R.C. 583, 597 et seq. (2003). 204 There were 140 States parties to the Genocide Convention as of 8 April 2009. See (last accessed 8 April 2009). 205 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15, 23 (28 May 1951). 206 Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2566 (1991); Andreas O’Shea, Amnesty for Crime in International Law and Practice 239 (2002). For a description of actual State practice with regard to the prosecution of genocide see id. at 240–242. Of particular importance in this context are the genocide trials in Rwanda. 207 As of 8 April 2009 there were 146 States parties to the Torture Convention. See (last accessed 8 April 2009). 208 Inter-American Convention to Prevent and Punish Torture, concluded 9 December 1985, entered into force 28 February 1987, O.A.S. Treaty Series No. 67. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Strasbourg, 26.

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Torture Convention counts 17 States parties, the European Convention 47 States parties. There are, however, still countries, such as India, Pakistan, some Arab States, and some African States, which are not a party to any treaty providing for a duty to prosecute acts of torture. Although there is evidently some development, it is not entirely clear whether the current participation can be said to be widespread and representative—in the sense expressed by the ICJ in the North Sea Continental Shelf Case—to assume a customary international rule mandating prosecution for torture.209

8. The relevance of non-binding documents If customary international law could be ascertained only on the basis of the number of international documents which have been produced with respect to the duty to punish serious human rights violations, its existence would not be doubted. In the absence of explicit treaty obligations the international community has put a heavy emphasis on advancing the applicable standards by virtue of non-binding declarations. This is due to the growing conviction that impunity poses a real threat to the protection of human rights. There is a wide array of Resolutions by the General Assembly and other UN bodies dealing with the issue of impunity.210 Among them are Declarations by the UN General Assembly, for example the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity.211 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities early on appointed two special rapporteurs on amnesty. This led to the elaboration of two reports on the question of impunity for perpetrators of human rights violation.212 The report by El Hadji Guissé concerned the violations of economic, social, and cultural rights,213 the other, by Louis Joinet, concerned

XI.1987, Text amended according to the provisions of Protocols No. 1 (E.T.S. No. 151) and No. 2 (E.T.S. No. 152) which entered into force on 1 March 2002. 209 See also below section 9.3. 210 For a detailed account of the various soft law document see Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 498–500 (1990); Andreas O’Shea, Amnesty for Crime in International Law and Practice 247–249 (2002). 211 G.A. Res. 3074 (XXVIII), para. 8 (3 December 1973) provides that States shall not take any legislative or other measure prejudicial to the international obligations they have undertaken with respect to the punishment of persons guilty of war crimes and crimes against humanity. 212 Sub-Commission Resolution 1996/24; 1996/119. 213 Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights), U.N. Doc. E/CN.4/Sub.2/1997/8 (27 June 1997).

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violations of civil and political rights.214 Both were submitted to the SubCommission. As the Joinet Report pointed out, the principles were not regarded as legal standards in the strict sense, but as guiding principles.215 Later, Yozo Yokota was asked to prepare a working paper on the issues of amnesties, impunity, and accountability for violations of international humanitarian law and international human rights law.216 That combating impunity is important for the prevention of violations of international human rights has been repeatedly emphasized by the former UN Commission on Human Rights.217 According to the Commission, amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes.218 The United Nations Secretary General in his report on the establishment of the Special Court for Sierra Leone stressed: While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.219

The Vienna Declaration and Programme of Action recommended the adoption of a set of principles for the protection and promotion of human rights through action to combat impunity by the United Nations General Assembly.220 This led to an independent study by Diane Orentlicher on best practices, including recommendations, to assist States in strengthening their domestic capacity to combat all aspects of impunity.221 The Updated Set of principles for the protection and

214 Commission on Human Rights, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1 (2 October 1997). The Joinet Principles were intended as a ‘broad strategic framework for the campaign against impunity’. Id. at para. 46. 215 Id. at para. 49. 216 Sub-Commission Decision 2005/108. 217 See e.g. Commission on Human Rights, Res. 2004/72, Impunity, in U.N. Doc. E/CN.4/2004/ L.11/Add.6, pp. 51 et seq., para. 1 (2004). 218 Commission on Human Rights, Res. 2004/72, Impunity, in U.N. Doc. E/CN.4/2004/L.11/ Add.6, pp. 51 et seq., para. 3 (2004). 219 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915, para. 22 (4 October 2000). 220 U.N. Doc. A/CONF.157/24, Part II, para. 91. 221 Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, U.N. Doc. E/CN.4/2004/88 (27 February 2004). According to Orentlicher, the Joinet Principles today embody principles of human rights treaty and customary law that were established at the time of their submission to the Commission or were affirmed by more recent developments in international law. Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, U.N. Doc. E/ CN.4/2004/88, para. 65 (27 February 2004). As will be seen below, this conclusion is not fully warranted given the current situation with State practice. Some principles are better characterized as de lege ferenda norms. This is why the Commission merely invited States to consider the Principles in an

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promotion of human rights through action to combat impunity were endorsed by the former Commission on Human Rights in 2005.222 Alone, these resolutions, declarations, and principles do not provide evidence for a rule of hard law but this does not make them irrelevant. Together with other relevant State practice, which will be analysed below, they show that there is a growing conviction that perpetrators of serious human rights violations should be held to account.

9. Current State practice As indicated above, the usual practice of States to prosecute serious human rights violations under criminal law in times of peace is not enough to bind them legally. Such practice must be based on opinio juris.223 Article 38 of the ICJ Statute refers to ‘international custom, as evidence of a general practice accepted as law’ (emphasis added). It is doubtful whether national criminal law is enforced based on the notion that there is a corresponding international duty.224 This applies especially to the prosecution of ordinary crimes of domestic law. The case is different for legislation incorporating international crimes.225 This is a fairly recent phenomenon which is usually triggered by the ratification of international treaties: taking the example of Germany, the crime of genocide was incorporated into German law after the ratification of the Genocide Convention. Just before the entry into force of the Rome Statute the German Parliament enacted an International Criminal Code.226 Though such legislation does not necessarily demonstrate opinio juris in the sense that a State feels legally obliged to do so, it is at least evidence for a conviction that effort to combat impunity. Commission on Human Rights, Res. 2004/72, Impunity, in U.N. Doc. E/ CN.4/2004/L.11/Add.6, pp. 51 et seq., para. 16 (2004). 222 Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/2005/102/Add.1 (8 February 2005). 223 Andreas O’Shea, Amnesty for Crime in International Law and Practice 218 (2002). However, in his legal analysis he takes national criminal legislation as a piece of evidence for supporting his assertion that there is a customary rule to prosecute certain serious human rights violations. Id. at pp. 228 et seq. 224 According to Roht-Arriaza it is unclear whether a decision to prosecute after civil conflict is due to domestic political concerns or shows a sense of legal obligation. However, she takes the criminal law provisions as support for a customary norm to prosecute serious human rights violations. Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 495 (1990). 225 Andreas O’Shea, Amnesty for Crime in International Law and Practice 219 (2002). 226 ‘Völkerstrafgesetzbuch’. For the English translation see 1 Annual for German and European Law (AGEL) 667 (2003). This code paralleled German efforts to implement the Rome Statute of the International Criminal Court. It should be noted that the Rome Statute does not provide for a duty to prosecute. It would therefore be inadequate to consider it as implementing legislation. Whether it supports the assertion of an opinio juris regarding a duty to prosecute is not clear. It could also be argued that it was enacted to provide the basis for domestic prosecution thereby avoiding cases in which the International Criminal Court would exercise jurisdiction. In any event, it shows the conviction that perpetrators of the core international crimes should not evade prosecution.

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these crimes should not go unpunished and that there is a need for domestic enforcement due to international concerns.227

1. Limiting the option for amnesties internationally Since ordinary criminal legislation alone does not provide evidence for a customary international obligation to prosecute, it is important to look not only to legislation which was adopted in order to enforce international standards but also to exceptional circumstances where States have been confronted with the question whether to prosecute past serious human rights offences. Though the earlier practice of Latin American amnesties seemed to speak against the assumption of a customary international obligation to prosecute serious human rights violations,228 more recent practice points in another direction, at least in respect of core international crimes.229 There have been international developments in recent years that indicate that apart from genocide and war crimes such serious human rights violations which are part of a widespread or systematic attack (i.e. crimes against humanity) should at least be prosecuted. International tribunals are not only established for the prosecution of genocide, war crimes, and crimes against humanity. There is also a trend to try to persuade States to exercise criminal jurisdiction over such crimes. For example, in June 2003 the United Nations and Cambodia signed the Agreement concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea.230 This seeks to bring to trial senior officials and those most responsible not only for genocide and grave breaches but also for crimes against humanity and certain violations of Cambodian law.231 In the case 227 Many domestic legal developments were initiated by the Rome Statute of the International Criminal Court. Taken alone they do not suffice as evidence for a customary international rule obliging States to prosecute the crimes falling under the Court’s jurisdiction because they could also be regarded as abiding by the treaty or expressing measures furthering the underlying idea. In order to go beyond treaty law it is necessary to show some form of State practice by non-treaty States. But see O’Shea who argues that it should not matter why States feel legally obligated. Andreas O’Shea, Amnesty for Crime in International Law and Practice 224 (2002). It is suggested here that legislation such as the German Völkerstrafgesetzbuch cannot in itself be relied on to justify a customary international obligation. But it should at least be considered together with other relevant State practice. 228 Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Aut Law & Contemp. Probs. 41, 56–58 (1996). But see Naomi RohtArriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 497 (1990). 229 See e.g. the amnesty promulgated on 12 April 2007 in the Ivory Coast which excluded war crimes and crimes against humanity. Ordonnance No. 2007 457, portante amnistie, at (Republic of the Ivory Coast) (last accessed 5 December 2008). 230 The draft agreement was approved by the U.N. General Assembly prior to the signature. G.A. Res. 57/228, U.N. Doc. A/RES/57/228 (2002). 231 Article 1 of the Agreement concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, concluded 6 June 2003, entered into force 29 April 2005, U.N. Doc. A/RES/57/228B (2003).

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of East Timor a Commission for Reception, Truth and Reconciliation was established in 2002. Serious crimes are excluded from the scope of immunity from prosecution. Although a number of legal systems provide for the opportunity to grant amnesty, there has been a trend to limit this power.232 The French Constitution was amended for this purpose.233 The reason for this was that the jurisdictional power of the International Criminal Court for crimes against humanity, genocide, and war crimes was deemed to conflict with the French sovereign power to grant amnesties for such crimes.234 A new article was inserted into the Constitution allowing for ratification of the Rome Statute. Irrespective of whether the amendment permitting ratification can be interpreted as generally excluding amnesties for such crimes, it shows a willingness by the State not to persist in using its sovereign power to render perpetrators of such crimes immune from prosecution.235 There are increasing efforts in international law to ensure prosecution and punishment of the most serious human rights violations. This is not only evidenced in those treaties which provide for a State duty to prosecute certain crimes, but also in the establishment of the international criminal tribunals by the international community. Criminal punishment in these instances is seen as an important measure of prevention. For example, the Security Council saw in the establishment of the ad hoc Tribunals for the Former Yugoslavia and for Rwanda a necessary measure to re-establish peace and security. The Rome Statute confirmed that the crimes for which the International Criminal Court has jurisdiction threaten peace, security, and the well-being of the world and that its States parties are determined to put an end to impunity in order to contribute to the prevention of these crimes.236 In the case of Sierra Leone a Special Court was established to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone after 30 November 1996.237 Its subject matter includes crimes against humanity.238 The Statute of the Court explicitly provides that an amnesty granted to a person 232 Roht-Arriaza refers to the examples of Romania, Hungary, and the Colombian amnesty law. Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449, 494–495 (1990). 233 See New Article 53-2 inserted by Constitutional Law 99-568 of 8 July 1999. 234 See the above explanation for the decision of the French Conseil Constitutionnel, Decision of 22 January 1999, No. 98-408 DC, 1999 J.O. 1317, at (last accessed 5 December 2008). 235 The Rome Statute of the International Criminal Court does not provide for a duty to prosecute. But there is a duty to surrender persons who benefit from a blank amnesty to the Court. This will certainly be an incentive for States not to proclaim such amnesties in the first place. 236 Preamble of the Rome Statute. 237 Article 1 Statute of the Special Court for Sierra Leone (16 January 2002) 2178 U.N.T.S. 145. 238 Article 2 Statute of the Special Court for Sierra Leone.

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falling within the jurisdiction of the Court for the crimes for which it has jurisdiction shall not be a bar to prosecution by the Court.239 In the specific situation of these conflicts it was deemed necessary to provide for prosecution without deference to a potential domestic amnesty. Indeed, in these cases punishment was sought as a measure of reconciliation. As the Security Council when establishing the International Criminal Tribunal for Rwanda in 1994 elaborated, it was ‘Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would . . . contribute to the process of national reconciliation and to the restoration and maintenance of peace.’240 Similarly, the Special Court for Sierra Leone was intended to contribute to the process of national reconciliation and the restoration and maintenance of peace.241 It should, however, be noted that the resolution referred explicitly to the particular circumstances of the States. To conclude that there is a general rule that reconciliation can only be achieved by prosecution is therefore unwarranted. But there is at least no more room for generalized arguments ascertaining that reconciliation can be achieved only by an amnesty. As indicated above, there is a parallel development under the human rights treaty systems. The Human Rights Committee and the Inter-American human rights institutions have become increasingly critical of the assertion by States that amnesty is necessary in the interest of reconciliation.242 The reference to reconciliation does not give carte blanche to States and the margin of appreciation has been increasingly restricted. The evaluation of amnesties thus depends on the question whether it has the potential to contribute to reconciliation and the re-establishment of peace. This is a question which is to be determined on the basis of the particular circumstances in a State. One option is the concept chosen by the agreement between the United Nations and Cambodia of 2002. In order not to endanger the process of reconciliation it envisages only the prosecution of senior leaders and those most responsible for genocide, crimes against humanity, and grave breaches of humanitarian law.243 A similar approach was taken in Sierra Leone.244 The Special Court has jurisdiction for those held most responsible for serious violations of international humanitarian law. Apart from prosecution by the Special Court there is a national truth 239 Article 10 Statute of the Special Court for Sierra Leone. 240 S.C. Res. 955, U.N. Doc. S/RES/955 (8 November 1994). 241 S.C. Res. 1315, U.N. Doc. S/RES/1315 (14 August 2000). 242 See above Chapter 2, section 6.2.A; Chapter 3, section 8. 243 See Agreement concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea. Such a selective approach had already been advocated by Orentlicher. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991). 244 See Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone; S.C. Res. 1315, U.N. Doc. S/RES/1315 (14 August 2000).

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and reconciliation process. A specific commission was established for this purpose.245 This process becomes particularly relevant for crimes that do not fall under the jurisdiction of the Court. Those who bear a lesser burden of responsibility for the crimes committed during the Civil War in Sierra Leone are subject to proceedings before the national Truth and Reconciliation Commission.246 Originally the Lomé Peace Agreement had provided for an amnesty.247 The UN Secretary General, however, appended to his signature on the peace agreement a proviso that the amnesty ‘shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’.248 Later, the Special Court for Sierra Leone was established in order to ensure criminal prosecution of these crimes. In the above-cited decision of 2004 the Special Court held that the amnesty could not be a bar to the prosecution of such crimes before an international court.249 Although the Truth Commission was not established to complement the Special Court’s jurisdiction, the experience of Sierra Leone may in future provide a model for mixed forms of accountability. The question of accountability for human rights violations also arose in Haiti. The Security Council in Resolution 1529 of February 2004 declared that there will be ‘individual accountability and no impunity for violators’ of human rights.250 While this assertion was the result of the experience with the 1994 amnesty in Haiti and symptomatic of the international trend to establish accountability for human rights violations and for the conviction that accountability is necessary in the interest of peace and security, it cannot be read as an absolute prohibition of alternative measures of justice.251 This issue should be left to each individual peace-making process. The primary task should, of course, be to press for 245 For the relationship between the two see William A. Schabas, The Relationship Between Truth Commissions and International Courts: The Case of Sierra Leone, 25 Hum. Rts. Q. 1035 (2003). It should, however, be noted that this mixed system was not what was originally envisaged. 246 Office of the Attorney General and Ministry of Justice Special Court Task Force, Briefing Papers on Relationship between the Special Court and the Truth and Reconciliation Commission, January 2002, at (last accessed 5 December 2008). 247 Article IX of the Lomé Accord. For the Agreement see Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (4 October 2000). 248 Letter dated 99/07/12 from the Chargé d’affaires ad interim of the Permanent Mission of Togo to the United Nations addressed to the President of the Security Council, U.N. Doc. S/1999/777 (12 July 1999). 249 Prosecutor v. Kallon and Kamara, Case Nos SCSL-2004-15-AR 72 (E), SCSL-2004-16-AR 72 (E), Special Court for Sierra Leone (Appeals Chamber), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, para. 71 (13 March 2004). This finding was based on the concept of universal jurisdiction which is not persuasive. As indicated above, the Court did not hold that an amnesty is in violation of international law, but that international and foreign domestic courts are not prevented by such amnesties from exercising criminal jurisdiction. Id. at paras 71 et seq. 250 S.C. Res. 1529, U.N. Doc. S/RES/1529 (29 February 2004). 251 Kirgis raises the issue whether the reiteration that there will be no impunity can be interpreted as a binding decision under arts 25 and 48 of the U.N. Charter. Frederic L. Kirgis, Security Council Resolution on Multinational Interim Force in Haiti, ASIL Insights, March 2004, at (last accessed 5 December 2008).

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criminal accountability. The experience of Sierra Leone is an example of this undertaking. But as elaborated on above, there are various ways to hold perpetrators accountable for human rights violations, of which criminal punishment is simply one option.

2. Domestic State practice Apart from the increasing development at the international level to combat impunity and the efforts to exclude the crime of genocide, crimes against humanity, and war crimes from the application of domestic amnesties, it should be observed that at the national level there is also a trend to draw back from the practice of granting amnesties. Examples can be found in Latin America. In Argentina, for example, the former amnesty law was eventually repealed.252 If new amnesties are enacted they are limited in scope providing for an exception for specified offences.253 In the case of Guatemala the amnesty which was called for in the peace agreement and passed in December 1996 contains an exception for very serious crimes.254 The South African model of a Truth and Reconciliation Commission limits the amnesty provisions to offences associated with a political objective.255 It is noteworthy that amnesties for politically motivated offences are often regarded as more acceptable.256 This is not only evidenced in the South African model but also by the early cases on the protection of aliens referred to above.257 There is a trend of resistance against amnesties especially with respect to core international crimes. Pursuant to

252 For the situation in Argentina and the judicial developments see Maria Fernanda Pérez Solla, Enforced Disappearances before Argentinean Tribunals: New Developments in an Endless Fight for Justice, 19 South African J. Hum. Rts. 691 (2003); Christine A.E. Bakker, A Full Stop to Amnesty in Argentina, 3 J. Int’l Crim. Justice 1106–1120 (2005). See also Law 25.779, promulgated on 2 September 2003. 253 See e.g. the amnesty promulgated on 12 April 2007 in the Ivory Coast which excludes war crimes and crimes against humanity. Ordonnance No. 2007 457, portante amnistie, at (Republic of the Ivory Coast) (last accessed 5 December 2008). 254 For this issue see Juan E. Méndez, The Right to Truth, in Reining in Impunity for international Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255, 273 (Christopher C. Joyner ed., 1998); Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 346 (Hans-Joachim Cremer et al. eds, 2002). 255 The Truth and Reconciliation Commission is based on the Promotion of National Unity and Reconciliation Act, No. 34 of 26 July 1995, at (last accessed 5 December 2008). 256 Meintjes and Méndez advocate the application of the political offence exception which can be found in extradition treaties on the issue of amnesties. According to the authors, abuses amounting to international crimes should not be amnestied. Garth Meintjes & Juan E. Méndez, Reconciling Amnesties with Universal Jurisdiction, 2 Int’l L. F. 76, 97 (2000). 257 See above section 1.2.

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a 1989 Polish law, for example, amnesties shall not be applied with respect to war crimes and crimes against humanity.258 An increasingly critical position on amnesties is also evidenced by States which have conducted criminal proceedings for crimes committed abroad despite the fact that the country of origin had granted amnesty to the accused. One example is Spain which began an investigation of crimes against Spanish nationals under Chilean dictatorship even though Chile had enacted an amnesty degree.259 Another example is a French decision of 2002 in which the Cour de Cassation rejected consideration of a 1993 Mauritanian amnesty. The Court explained that recognizing the applicability of the amnesty would be contrary to France’s international obligations.260

3. Human rights violations outside the scope of international crimes Taking all these developments together there is undeniably a trend in the international arena increasingly to limit the option for amnesties in practice, especially if they concern the most serious crimes affecting human rights. International law does not encourage but rather discourages the proclamation of amnesties. There is a need to respond to serious violations of fundamental human rights. There is a growing conviction by States that apart from genocide and grave breaches, crimes against humanity should not be amnestied. This is probably also the result of efforts by international institutions and legal scholars attempting to outlaw impunity for such crimes. But, strictly speaking, it is State practice, not the de lege ferenda pronouncements which sustain a rule of customary international law. The recognition of international crimes alone does not suffice. It was the practice actually to hold perpetrators responsible which led to the formation of a new customary international rule. Apart from those core crimes it is unclear whether there is a customary international duty to prosecute other serious human rights violations.261 Torture, summary 258 See Diane Orentlicher, Independent Study on Best Practices, including Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat All Aspects of Impunity, in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, U.N. Doc. E/CN.4/2004/88, para. 30 (27 February 2004). See also Ecuador, art. 23 of the Constitution which prohibits the enactment of amnesty legislation or grant of pardons for human rights violations. 259 See Audiencia Nacional, Appeal 173/98 Order of the Criminal Chamber (1998) (Spain). The legal basis for the exercise of jurisdiction is the Ley Orgánica del Poder Judicial which gives Spanish courts jurisdiction over international crimes committed outside Spain. 260 Cour de cassation, Cass. crim. [Highest Court of Ordinary Jurisdiction, Criminal Chamber], Affaire Ely Ould Dah, No. de pourvoi: 02-85379, 23 October 2002, Bull. crim. No. 195, p. 725 (Fr.). 261 But see Tomuschat who assumes a legal duty to prosecute grave crimes against life, physical integrity, and freedom of human beings for the territorial State. Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 342 (Hans-Joachim Cremer et al. eds, 2002).

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executions, and disappearances do not qualify as crimes against humanity as such if they are not part of a widespread or systematic attack.262 It has been argued that the prohibition of torture as well as of enforced disappearances and summary executions forms part of customary international law and that this involves also a duty to punish these human rights violations.263 But again, such automatism is not persuasive. It is one thing to maintain that a State must not be involved in enforced disappearances, but another to maintain that a State is strictly required to punish the perpetrator of the offence. While the prohibition of summary executions is a substantive obligation which has its counterpart in the corresponding individual right the question whether a State is obliged to prosecute the perpetrator concerns procedural obligation. Evidently, procedural obligations serve the protection of substantive rights. A procedural failure can lead to the violation of substantive rights. But the two obligations are not identical. If State officials decide in a certain case not to prosecute a perpetrator of a serious human rights abuse, the State is not automatically responsible for the crime committed. Only if there is a general failure giving rise to further crimes can the argument be made that the State is responsible because it encouraged or at least acquiescenced in these crimes. This form of complicity is prohibited under the substantive obligation not to commit serious violations such as these.264 To conclude, however, that there is a comprehensive duty to punish these crimes would go beyond this rationale. Instead it is necessary to consider State practice with respect to each of these violations individually. The above-outlined scope of ratification of the Torture Convention is only one element of such practice. O’Shea argues that domestic law and the implementation of the Torture Convention provide evidence for a customary international obligation to punish acts of torture.265 As indicated above, it is unclear whether the ratification of the Torture Convention by a large number of States is sufficient for a general rule of international law. Taking into account that a large number of States do not provide for the crime of torture,266 262 Article 7 Rome Statute. See also art. 3 ICTR Statute. 263 Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2582 (1991). Orentlicher refers to the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987). 264 See also American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987). It should be noted that the duty not to encourage or condone serious human rights violations is a matter of primary protection of human rights. It does not warrant the argument that victims have a right to demand punishment, because the failure to punish is not criticized in the interest of the particular victim but it renders the State accomplice in the crimes. Though the failure results in State responsibility its evaluation is one of primary protection. 265 Andreas O’Shea, Amnesty for Crime in International Law and Practice 234–238 (2002). 266 For a detailed account of the domestic criminal law on torture see id. at 234–237 (2002). Although it is suggested here that the mere existence of criminal law is not of itself evidence for the existence of a duty to prosecute, the non-existence of such domestic legislation contradicts the assumption that there is an opinio juris to prosecute.

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it is questionable whether there is opinio juris with respect to prosecution.267 Unfortunately, practice by States, especially by those which have not ratified the Torture Convention, does not support a customary international rule. On the other hand, the Torture Convention has been increasingly ratified by new States parties over the past years. There are also numerous pronouncements from the United Nations including the Declaration on the Protection of Torture.268 This all indicates that the duty to prosecute torture is at least on the verge of general international law. In any event, where torture forms part of a widespread or systematic attack against the civil population, and thus constitutes a crime against humanity, the assumption of a customary international obligation to prosecute is warranted in principle. However, the picture is different with respect to summary executions and enforced disappearances. Though there have been considerable efforts at the international level to call for the prosecution of such crimes as evidenced by numerous resolutions and declarations,269 there is no legally binding universal instrument spelling out a duty to prosecute in respect of summary executions. Even though there are recent conventions outlawing enforced disappearances it is too early to find a customary international rule for these violations. Although the Inter-American Convention on Forced Disappearance of Persons formulates an emerging rule of general international law, its ratification has been rather limited.270 The International Convention for the Protection of All Persons from Enforced Disappearances entered into force in 2008 and still lacks universal ratification. It could not in any event be cited as evidence for an uncompromised call for criminal measures because it does not include a provision outlawing amnesties despite repeated efforts by nongovernmental organizations advocating such a provision. The diverging positions on this issue expressed during the drafting of the convention show that there is as yet

267 O’Shea refers to the explanations given by States parties to the Torture Convention that torture can be convicted under ordinary criminal provisions, as with assault. Id. at 236. Although these references are given as an excuse for non-compliance it is doubtful that they are evidence for an opinio juris, or in other words that the actual prosecution is due to the idea of an international obligation. It is not sufficient to find that there is no evidence of denunciation of the duty to prosecute the crime of torture to support the assumption of a customary international duty. 268 See also Andreas O’Shea, Amnesty for Crime in International Law and Practice 238 (2002). O’Shea goes even further by pointing out that in his opinion the rule has matured into customary international law. 269 See e.g. art. 14 of the Declaration on the Protection of all Persons from Enforced Disappearance, G.A. Res 133, U.N. Doc. A/RES/47/133 (18 December 1992). 270 Pursuant to art. I of the Convention the States parties undertake to punish those persons who commit or attempt to commit the crime of forced disappearance and their accomplices and accessories. Inter-American Convention on Forced Disappearance of Persons, adopted at Belém do Pará, on 9 June 1994, and entered into force 28 March 1996, O.A.S. Treaty Series No. 68, reprinted in 33 I.L.M. 1429 (1994).

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no opinio juris outlawing amnesties for such violations.271 Neither does actual State practice support the assertion of such a customary international obligation.272

10. General principles of law It has been argued that absent consistent State practice in prosecuting serious human rights violations, reference could be made to general principles of law.273 But there is reason to doubt whether there is a general principle of law which provides for a duty to prosecute serious human rights violations. Here the aforementioned considerations again become relevant. General principles should not be used to fill the gaps without a solid legal foundation. Sometimes reference is made to national criminal law to support the assumption of a general principle of law.274 Although domestic law commonly criminalizes abuses affecting physical integrity, this does not mean that there is a rule making prosecution mandatory. There is a universal conviction that perpetrators of serious human rights violations are criminally responsible. But this does not mean that there is a general principle obliging States to prosecute and punish such violations. While some countries provide for the principle of legality, as for example Germany, this is not a general rule. On the contrary, the expediency principle is common to several other countries.275 It stands for the understanding that it is for State authorities to decide whether and how to punish abuses at criminal law. Even if a general principle of law providing for mandatory prosecution could be assumed it is not an absolute principle. Taken together, general principles cannot play a significant role for the issue whether States are bound to prosecute serious human rights violations. If neither treaty law nor customary international law renders an amnesty inadmissible, the reference to general principles of law does not support a contrary conclusion.

11. Conclusions The above analysis attempts to avoid abstract assertions which cannot be based on customary international law. Generalized notions of a customary norm mandating 271 For the drafting history see Olivier de Frouville, La Convention des Nations Unies pour la Protection des Toutes les Personnes Contre les Disparitions Forcées: Les Enjeux Juridiques d’une Negociation Exemplaire, Droits fondamentaux, no. 6, January–December 2006, pp. 45–48, at (last accessed 5 December 2008). 272 See the detailed analysis of Andreas O’Shea, Amnesty for Crime in International Law and Practice 252–255 (2002). 273 See Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 513 (1987). Kokott points to the possibility of referring to general principles of law but ultimately leaves this question open. 274 Id. 275 The scope of the expediency principle often depends on the crime at issue.

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prosecution of serious human rights violations should be avoided if they are based on rationalizations not supported by any form of practice. For example, to conclude from the prosecution of crimes against humanity that there is a comprehensive duty to prosecute all serious human rights violations is not warranted absent a corresponding State practice reflecting opinio juris. It is necessary carefully to evaluate State practice and to avoid the assertion of a comprehensive and absolute obligation which does not adequately represent what is generally accepted as law. To show State practice it is necessary to consider domestic law and practice, the ratification of treaties, and voting on resolutions.276 It is not appropriate to set up excessive requirements for the assumption of customary international law, but there is a need to understand what the international community of States is willing to accept. A genuine analysis of State practice avoids allegations that customary international law is instrumental in filling what is deemed to be a lacuna in international treaty law. After all, reference to customary international law is relevant only if a State is not a party to a treaty. Especially in those cases where a State refuses to prosecute it is necessary to make a forceful and well-grounded argument to the contrary. This not only preserves the notion of customary international law but also stresses the viability and credibility of its assertion.277 There is no comprehensive customary international obligation to prosecute serious human rights violations in general. Less is there mandatory universal jurisdiction for crimes against humanity beyond the scope of the Torture and the Genocide Conventions.278 If there is a customary international duty to prosecute specific crimes it is territorially limited. There is indeed a development towards a general international norm making the prosecution of serious human rights violations mandatory for those States in whose territory the violation was committed. It is based on the idea that such violations in principle require criminal prosecution as a measure of general human rights protection. This trend shows an emerging rule of international law.279 But it has not entered the stage of customary international law with regard to all serious human rights violations.280 276 For the exigencies for customary human rights norms see Anja Seibert-Fohr, Unity and Diversity in the Formation and Relevance of Customary International Law: Modern Concepts of Customary International Law as a Manifestation of a Value-Based International Order, in Andreas Zimmermann & Rainer Hofmann, Unity and Diversity in International Law 257–283 (2006). 277 Andreas O’Shea, Amnesty for Crime in International Law and Practice 227 (2002) with further reference to Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 278 Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 348 (Hans-Joachim Cremer et al. eds, 2002). 279 See also Juan E. Méndez, The Right to Truth, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, 255 (Christopher C. Joyner ed., 1998). 280 According to Cassese, there is not yet any general obligation for States to refrain from enacting amnesty laws for international crimes. If a State passes such a law, it does not breach a rule of customary international law. Antonio Cassese, International Criminal Law 315 (2003).

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This result may be disappointing. Undoubtedly there is a need to fight impunity which gives rise to new violations. Those responsible for the most serious human rights violations should be held accountable. But even in the absence of a comprehensive customary duty to prosecute serious human rights violations this can largely be achieved by virtue of the treaties in operation at present. Even if there is no explicit duty to prosecute summary executions the States parties to the International Covenant on Civil and Political Rights and other comprehensive human rights conventions are obliged to respect and ensure the right to life. The scope of its ratification is particularly broad. The obligation to protect the right to life entails a duty to punish in order to prevent recurrence. This is now common sense and recognized by the Human Rights Committee and the regional human rights courts.281 It applies to extra-judicial, summary, or arbitrary executions, enforced disappearances, torture, and other serious breaches of personal integrity. There is a common denominator in customary international law and treaty law in those cases where mandatory prosecution applies (e.g. genocide). It concerns the purpose of prosecution. If prosecution is sought—either on the basis of a treaty or on the basis of customary international law—it is primarily to prevent further crimes.282 The idea that prosecution could be a necessary form of satisfaction for the victim has not found universal acceptance. The deterrence rationale is still prevalent. It has also influenced prosecution at the international level. Whether international prosecution is deemed necessary depends on whether it has the potential to prevent further crimes. In the cases of Yugoslavia, Rwanda, Sierra Leone, and Cambodia this question was answered in the affirmative. The international criminal tribunals were established in order to deter and thus to prevent recurrence. Prosecution of the core international crimes was regarded as a measure of reconciliation in these instances. But there is no uncompromised duty to prosecute.283 Neither is there a complete prohibition of amnesties.284 If an amnesty is permissible under treaty law there may not be a lacuna, less should it be filled by means of customary international law absent pertinent State practice. This becomes relevant if the evaluation of the ‘respect and ensure’ provisions reveals that there is no obligation to prosecute in a particular situation under criminal law. To resort to an alleged comprehensive customary duty to prosecute in such cases would amount to law-making rather than a reflection of actual law. 281 For the jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights see above Chapter 3, section 2.1 and Chapter 4, section 2.1. 282 For the law of aliens see above section 1.1; for treaty obligations see above Chapter 6, section 1.1. 283 See also Juliane Kokott, Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr.23.521 über die Gehorsamspflicht, 47 ZaöRV 506, 511 (1987). 284 See also International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Relation to Gross Human Rights Abuses, in, ILA, Report of the Sixty-Ninth Conference, 403, at 416 (2000).

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As evidenced by the above analysis of the right of aliens, there has never been such a strict approach towards amnesties. Although there is a growing trend to prosecute serious human rights violations in principle, exceptions have been made in particular cases. These exceptions should not be disregarded as single incidences. They are based on the understanding that under certain circumstances a different approach is warranted. Those instances where States perceive a need to resort to alternative mechanisms and make a genuine reasoned argument that prosecution is not to be pursued are also relevant State practice.

8 Conclusion The preceding chapters include summaries and conclusions with respect to each subject matter. At this point some general observations will be made. Their purpose is to encapsulate the insight gained from the preceding analysis and to give guidance for the way forward.

1. Role of prosecution for the protection of human rights Human rights law has at present a dual function in criminal matters. On the one hand, it provides for due process rights which need to be observed in the prosecution of those responsible for international crimes.1 On the other hand, criminal punishment is increasingly regarded as a necessary element of human rights protection. Thus, there is a trend to derive a duty to prosecute the most serious human rights violations from the comprehensive human rights treaties. Different legal rationales have been applied to justify this obligation. Before summarizing suggestions for the future conceptualization of prosecution in international human rights, it is necessary to acknowledge that the Inter-American institutions and several authors have taken a different route. In legal literature there is often the perception that prosecution of serious human rights violations is not only required in the interest of prevention but also as a remedy.2 The growing awareness of victims’ rights, and with it the idea that victims have legitimate interests in the prosecution of human rights offenders, has undoubtedly influenced the interpretation of the international human rights instruments,3 especially the jurisprudence of the 1 These standards apply also to international criminal tribunals. See Göran Sluiter, International Criminal Proceedings and the Protection of Human Rights, 37 New Eng. L. Rev. 935–948 (2002–2003). 2 See e.g. Dinah Shelton, Remedies in International Human Rights Law 394–399 (2nd edn, 2005). 3 The Council of Europe’s Committee of Ministers has adopted various recommendations regarding the rights of victims. Council of Eur., Comm. of Ministers, Recommendation No. R (83) 7 on Participation of the Public in Crime Policy (23 June 1983) (last accessed 4 December 2008); Council of Eur., Comm. of Ministers, Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (28 June 1985), [1991] 28 Y.B.E.C.H. 232; Council of Eur., Comm. of Ministers, Recommendation No. R (87) 21 on Assistance to Victims and the Prevention of Victimisation

Prosecuting Serious Human Rights Violations. Anja Seibert-Fohr. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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Inter-American Human Rights institutions. While the traditional concept sought punishment as a measure of prevention, there is a growing trend to require it also in the interest of the particular victim (either as a form of primary protection or as a remedy). Although this trend apparently began with the Inter-American Velásquez Rodríguez Case, the Human Rights Committee has to a certain extent followed this idea in its recent pronouncements but without acknowledging an individual right to criminal punishment. Neither has the European Court of Human Rights accepted that such a right derives from the European Convention. The discussion of the existence of an individual right to demand prosecution is therefore ongoing. Despite the growing emphasis on victims’ rights in international law the above analysis shows that there is not yet a common denominator which could provide the basis for the assumption of a customary international law rule in this respect.4 There appears to be a continuing quest in the Human Rights Committee and the European Court of Human Rights for the correct legal foundation on which to base the alleged duty to punish serious human rights violations. The current conceptualization, at least, is blurred in many respects. Remedial and preventive notions are often mixed: prosecution is deemed necessary to deter future violations; while at the same time it is pointed out that prosecution serves the interest of the individual.5 Admittedly, it is not easy to distinguish the notion of prevention from that of a remedy. They often overlap. For example, the award of pecuniary damages may not only serve the interest of the victim but also deter further violations in general and re-establish the validity of the affected right. As Dinah Shelton stated, ‘[r]emedies not only provide redress for the individual victim, but they serve the community interest in sanctioning the perpetrator and deterring future violations by the same or other wrongdoers’.6 But this does not imply that the two notions are identical or that each victim has a right to demand prosecution. Mere interests alone do not suffice to justify a legal claim. Even if victims feel an understandable sense of redress once their abusers are prosecuted it does not mean that they have a human right to demand punishment. In order to justify an individual right of the victim it is necessary to ask whether the reaction sought is required as a necessary remedy. By means of comparing and

(17 September 1987), [1992] 30 Y.B.E.C.H. 231. See also Council of the European Union Framework Decision of 15 March 2001 on the Standing of Victims in criminal proceedings 2001/220/JHA, O.J. (L 82/1). 4 Although the European Court assumes an individual right capable of leading to the punishment of those responsible, a concept that partially overlaps with the jurisprudence of the Inter-American Court, it has not yet been adopted by the Human Rights Committee. 5 Dinah Shelton, Remedies in International Human Rights Law 394–399 (2nd edn, 2005). 6 Id. at 465.

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analysing the consequences of the different approaches put forward and by evaluating them on the basis of the comprehensive human rights conventions, this text has endeavoured to seek guidance for the way forward. It is doubtful whether a violation of human rights can be remedied only by means of prosecution and punishment. Although prosecution is a response to a serious human rights violation, it is not a necessary remedy. Even those Conventions providing explicitly for a duty to punish do not provide for a corresponding individual right. The Torture Convention limits the victims’ participatory rights in criminal proceedings to the right of complaint and to secure an investigation. It is natural to feel empathy with the suffering of the victims. But even in the domestic sphere the role of victims is generally limited. The idea of a human right to justice which entitles victims to demand criminal prosecution neither reflects common notions of domestic law nor is it a theme of modern philosophy.7 Even in AZAPO v. President of the Republic of South Africa, in which the South African Constitutional Court indicated that an amnesty might conflict with the right to judicial guarantees, the Court did not pronounce a right of victims to demand prosecution.8 Although a number of countries provide for rules on the role of victims in criminal procedure, these rules cannot be interpreted as recognition of a right to demand punishment. They are primarily participatory without giving victims any capacity to determine the outcome of criminal proceedings. To require punishment as a necessary element of redress would not be in line with modern criminal law which seeks punishment primarily in the interests of society, as a defence of the rule of law, and in the interests of prevention.9 Nonetheless, there are voices at the international level referring to a right to justice not only in soft law documents but also in the jurisprudence of the Inter-American human rights institutions which is noteworthy if not curious.

7 Even the absolutionist theories of punishment, such as the ‘Sühnetheorie’ and ‘Vergeltungstheorie’ by Kant and Hegel do not call for punishment for the sake of the victim. Immanuel Kant, The Metaphysical Elements of Justice (John Ladd trans., 2nd edn, 1999) (1797); Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right (William Hastie trans., 2002) (1796); Georg W.F. Hegel, Elements of the Philosophy of Right (Allen W. Wood ed., H.B. Nisbet trans., 1991) (1821). For the deterrence rationale see Cesare Beccaria, On Crimes and Punishment (Henry Paolucci trans., 1963) (1764). For different rationales of punishment see also e.g. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968); George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International (2007); Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (1970). For the purpose of international criminal law, see also Mark A. Drumbl, Atrocity, Punishment and International Law (2007). 8 AZAPO v. President of the Republic of South Africa 1996 (4) SA 672 at para. 10 (S. Afr.). The Court merely stated that amnesty impacts on basic fundamental rights and that if the right to life of dignity and the protection against torture are invaded there is a right of the victim to obtain redress in the ordinary courts of law and that those guilty are answerable before such courts, both civilly and criminally. Id. at para. 9. 9 Michel Foucault, Théories et Institutions Pénales (1971–1972).

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The reason for this trend presumably concerns the procedural framework of international human rights law. In a system that relies heavily on individual enforcement there is a risk that measures of prevention are read into remedial rights in order to enforce such duties. It is telling that most of the pronouncements from the Human Rights Committee on the duty to punish serious human rights violations were issued under the State reporting procedure with reference to the ‘respect and ensure’ provision of art. 1 of the International Covenant on Civil and Political Rights. Under this procedure there is no requirement to refer to the right to an effective remedy. In contrast, most of the issues regarding the failure to prosecute serious human rights violations in Latin America arose under the Inter-American communication mechanism. Cases were brought to the Commission by victims or their next of kin. Individual complaints were considered the most promising method for the fight against impunity in the Americas. But in order to succeed it required the allegation of an individual right. Thereupon the Commission and the Court developed a right to justice. This illustrates that the current conceptualization of the duty to prosecute is influenced by the desire for enforcement. If deficits in criminal matters can be addressed only by individual complaints the assumption of a right to justice is tempting. But this step has its drawbacks. It is submitted that the jurisprudence on the right to criminal justice is more self-limiting than helpful.10 This becomes relevant in cases of carefully drafted amnesties genuinely seeking the re-establishment of peace and lasting protection of human rights—even though such cases are rare. The right to demand criminal punishment is difficult to reconcile with the call for the re-establishment of peace in such instances. It is noteworthy that some scholars advocating the right to justice seem prepared to construe an exception in order not to stand in the way of the transition to peace and democracy.11 But the interests of victims are the same whether in post-conflict situations or in times of peace. By allowing for an exception, those scholars acknowledge that it is not the right of the individual victim which ultimately counts but the advancement of general human rights protection. A further negative implication of the alleged right to justice is that it may ultimately lead to a situation where human rights treaty bodies or courts assume a comprehensive supervisory function in the administration of criminal justice—a dubious undertaking for a human rights court.12 Consequently, although the 10 See also William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467, 522 (2001). 11 Andreas O’Shea, Amnesty for Crime in International Law and Practice 178–181 (2002); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 505 (1990). 12 The Inter-American Court in Nogueira de Carvalho v. Brazil acknowledged that it was not its role to ensure a better outcome in domestic criminal proceedings. But its far-reaching analysis in other cases point in another direction. Case of Nogueira de Carvalho et al. v. Brazil, Preliminary Objections and Merits, 2006 Inter-Am. Ct. H.R. (ser. C) No. 161, para. 80 (28 November 2006).

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assumption of a right to justice may be tempting from a procedural point of view it does not persuade from a substantive point of view. If there are procedural obstacles adequately to enforce the obligation to punish which lead to a situation which is not in accordance with the idea of human rights protection then it is preferable to restructure the procedural framework to enforce this right. This is a more favourable option than reading notions into substantive law which will lead to undesirable consequences. In sum, if a duty to prosecute is derived from the comprehensive human rights treaties it is in the interest of prevention but not in the interest of retribution.13 Victims have the same interests in crime prevention as everyone else in society. Therefore, instead of framing the obligation to prosecute as a means of individual redress it should be characterized as a procedural protection following from the ‘respect and ensure’ provisions. Prosecution is required by international human rights insofar as it re-establishes the validity of the right affected and seeks to prevent future violations. This is not to question other criminological purposes of punishment but to explain why and to what extent criminal prosecution is a means for human rights protection.

2. Amnesties and the way forward The repeated assertion in academic legal writing that there is no longer room for amnesties and that the issue has been resolved accordingly does not adequately represent the current state of international law. Rather, it is motivated by a desire to advance a comprehensive and uncompromised application of international criminal law.14 But even individual criminal responsibility is not to be misunderstood as an uncompromised formula for the international community. The fact that individuals can be held criminally responsible under international law does not automatically mean that there is an obligation to exercise international criminal jurisdiction. Only if prosecution is deemed necessary in order to re-establish peace and the observance of human rights should it be practised. This was the case in Yugoslavia, Rwanda, and Sierra Leone. But if after careful evaluation particular circumstances lead to the conclusion that a return to peace and stability can be achieved only by compromising the call for criminal punishment and if prosecution would not serve the interest of lasting protection of human rights, it is 13 The current practice seeking the prosecution of those held most responsible for the core international crimes, as evidenced by the establishment of the Special Court for Sierra Leone and the UN agreement with Cambodia, confirms the validity of the deterrence rationale. If there was an individual right to justice, the limitation to a certain group of perpetrators could not be explained. 14 In this sense also Michael P. Scharf, Trading Justice for Peace: The Contemporary Law and Policy Debate, in Atrocities and International Accountability: Beyond Transitional Justice 246 (Edel Hughes, William A. Schabas, & Ramesh Thakur eds, 2007); Diane F. Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, 1 Int’l J. of Transitional Justice 10, 15 (2007).

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preferable to look for alternative measures of accountability. After all, the International Criminal Court, according to the Preamble of the Rome Statute, was established to prevent serious crimes. Despite the enthusiasm for an emerging order of global criminal justice it should not be forgotten that the prosecution of serious human rights abuses is not an end in itself. International justice as envisaged by the Rome Statute is one which serves the lasting protection of human rights in accordance with peace and security.15 While there is a trend increasingly to limit the leeway for the enactment of amnesties there is currently no comprehensive and absolute prohibition of amnesties for serious human rights violations under international law.16 The above analysis seeks to elaborate on the current legal standards in order to give guidance to States and international institutions dealing with past serious and large-scale human rights violations. It has been contemplated whether to compile a document with the relevant legal standards for dealing with serious human rights violations after civil conflict. Andreas O’Shea proposed an amendment to the Rome Statute to modify the jurisdiction of the International Criminal Court in order to allow for amnesties under certain circumstances.17 But the drafting of the Rome Statute already showed that there is no political will to find the solution.18 Furthermore, it is questionable whether such an abstract agreement could give adequate guidance and would ultimately serve the protection of human rights. In this area strict and detailed rules are likely to fail when put into practice. The implementation of human rights requires particularized answers on the basis of the circumstances and exigencies of a situation. For the future, it is preferable to continue with the original approach of providing for a catalogue of guiding principles and minimum standards than to pursue an approach of categorical prohibition. The latter would close the door on more flexible answers which may provide the only basis for practical solutions. This recommendation should not be understood as an encouragement to grant amnesty for serious human rights violations. Nor should it be understood as giving unfettered discretion to States. Taking due account of the recent developments in international law outlined above, it is probably best characterized as a rebuttable presumption that amnesties are detrimental to the protection of human rights.19 15 Anja Seibert-Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, 7 Max Planck UNYB 553–590 (2003). 16 For the evaluation of amnesties see above Chapter 6, section 3.2. 17 Andreas O’Shea, Amnesty for Crime in International Law and Practice 332–336 (2002). 18 Anja Seibert-Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, 7 Max Planck UNYB 553, 561–562 (2003). 19 This is, for example, reflected in those Human Rights Committee pronouncements pointing out that amnesties are generally incompatible with the International Covenant on Civil and Political Rights. See Human Rights Committee, General Comment No. 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), p. 31, para. 15, U.N. Doc. HRI/GEN/1/Rev.1 (3 April 1992); Human Rights Committee, Concluding Observations of the

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The assertion of a rebuttable presumption against amnesties for serious human rights violations will assist in avoiding long-term implications which would result from an indifferent approach. Certain minimum requirements have crystallized which cannot be ignored.20 Among them is the prohibition of amnesties for the crime of genocide.21 The Geneva Conventions and the Torture Convention provide for a duty of States parties to prosecute without making an exception for amnesties.22 Self-amnesties have been demonstrated to be unacceptable not only for the Inter-American Court of Human Rights but also for the universal human rights treaty bodies. A minimum requirement is the conduct of an official investigation as a necessary form of redress, measure of reconciliation, and prevention of further crimes.23 As Judge Thomas Buergenthal in his evaluation of the El Salvadoran truth commission process stated: A nation has to confront its past by acknowledging the wrongs that have been committed in its name before it can successfully embark on the arduous task of cementing the trust between former adversaries and their respective sympathizers, which is a prerequisite for national reconciliation . . . [I]f the basic truth about the past is suppressed, it will prove very difficult to achieve national reconciliation. The wounds left behind by the past will continue to fester and endanger the peace.24

Apart from the requirement for an investigation, perpetrators of serious offences must be removed from office. Efforts must be undertaken to establish respect for

Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add.104, para. 7 (1999); Human Rights Committee, Concluding Observations on the Second Periodic Report of the Congo: Congo, U.N. Doc. CCPR/C/79/Add.118, para. 12 (2000). Similarly, the so-called Princeton Principles on Universal Jurisdiction which were elaborated by the academia in Principle 7 use the term ‘generally inconsistent’. The Princeton Principles on Universal Jurisdiction (Princeton Univ. Program in Law and Public Affairs 2001). 20 It is submitted that Cassel’s soft law approach is not convincing. He drew from the rulings of the Inter-American institutions a number of principles and recommended their use as guidelines in the sense of soft law. Suggested here is that those principles which will be listed in the following (calling them ‘minimum requirements’) form part of hard law and are non-negotiable. See also Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197, 228–230 (Autumn 1996). 21 See also Christian Tomuschat, The Duty to Prosecute International Crimes Committed by Individuals, in Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 315, 347 (Hans-Joachim Cremer, Thomas Giegerich, Dagmar Richter, & Andreas Zimmermann eds, 2002). 22 There is a trend towards extending the catalogue of gross human rights violations which may not be amnestied, including summary executions and forced disappearances. 23 The idea of a right to an official investigation has entered the jurisprudence of various human rights institutions, as evidenced for example in various judgments of the European Court of Human Rights. See also U.N. Commission on Human Rights, Human Rights Resolution 2005/66: Right to the Truth, 20 April 2005, U.N. Doc. E/CN.4/RES/2005/66. 24 Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497, 544 (1994).

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human rights, to promote national reconciliation, to ensure non-recurrence, and to consolidate democracy. The question of redress for serious human rights violations arises regularly in peace negotiations involving the United Nations.25 It is advocated here that a principled and concerted approach is taken by the international community together with the State concerned.26 In its peace-building efforts the United Nations should be guided by the above principles. The main goal should be, and indeed has been, to re-establish peace without compromising the call for accountability.27 If, however, in a given situation criminal prosecution proves to be counter-productive there may be a need for some form of concession. In that case it is necessary to accept that the call for justice is compromised. The notion of restorative justice does not adequately reflect this compromise and should be viewed with suspicion because it pretends a catch-all formula. Instead of selling this concession as a different form of justice we should be honest. Justice has a high value but it is not an absolute principle. If we derive a rule of law principle from international human rights it goes only as far as human rights protection requires. Although it is agreed here that the dichotomy of peace and justice should not easily be assumed,28 the unrelenting insistence on an absolute duty to prosecute is not able to extinguish entirely such conflicts of interest.29 Eventually cases (hopefully very few) will remain where this issue will occur and will need to be dealt with.30 It is not a lawyer’s task to make a socio-political prognosis. That is the prerogative and expertise of social and political scientists who are in a far better position to explain the exigencies of a particular situation. They are able to evaluate whether alternative measures in a specific socio-cultural context have the potential to further reconciliation and a return to peace. Special attention must be paid to the views of the people affected. In order to sustain the UN peace-building efforts the establishment of a special unit may prove to be helpful. This should be composed of experienced negotiators, representatives of civil society, experts from 25 For the relevance of human rights law in peace agreements see Christine Bell, Peace Agreements and Human Rights (2000). 26 The international community should consider adequately the will of the people, especially if there is already a good-faith effort to put an end to atrocities and to deal responsibly with the past. 27 In its Resolution 1529 with respect to Haiti, for example, the Security Council reiterated that there will be ‘individual accountability and no impunity for violators’ of human rights. S.C. Res. 1529, U.N. Doc. S/RES/1529 (2004). For the interpretation of this resolution see above Chapter 7, section 9.1. See also Resolution on Women, Peace and Security, S.C. Res. 1820, U.N. Doc. S/ RES/1820 (2008). 28 Transitional Justice in the Twenty-First Century; Beyond Truth versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds, 2006). 29 Some of the essays in the following collection show that prosecution may be an obstacle and certainly not the only element of re-establishing peace. See Atrocities and International Accountability: Beyond Transitional Justice (Edel Hughes, William A. Schabas, & Ramesh Thakur eds, 2007). 30 See also Helena Cobban who argues that the international community should focus on the need to end a conflict rather than on laying down strict prohibitions on amnesties. Helena Cobban, Amnesty after Atrocity? 240 (2007).

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social and political science, and international lawyers, and their task should be to evaluate the specific situation at hand and to develop a context-specific strategy to assist affected societies in their undertaking to re-establish peace and the lasting protection of human rights.31 The legal parameters mentioned above could guide this undertaking from a legal point of view.

3. Human rights and international criminal law This text illustrates the converging process of international human rights and international criminal law.32 Historically it can be summarized as follows: while initially international criminal law developed primarily under the law of armed conflict—all crimes prosecuted by the Allies in Nuremberg, i.e. crimes against peace, crimes against humanity, and war crimes, required a nexus to the war—the scope of international criminal law over the past decades has also gradually extended to crimes committed outside armed conflict. The protection of human rights in times of peace became a concern for the international community after the Second World War. In order to prevent the recurrence of the unspeakable crimes of the Nazi regime, various human rights instruments—universal and regional—were adopted.33 As evidenced by the Genocide Convention and the Torture Convention, international law gradually moved towards demanding that States prosecute or extradite the persons accused of the most serious human rights violations. Currently, the core international crimes operable under the Rome Statute are either serious violations of international humanitarian law, namely war crimes, or serious violations of human rights, such as genocide and crimes against humanity. In other words, international humanitarian law and international human rights provide the substantive basis for these crimes. While there is undoubtedly an overlap of human rights law and international criminal law,34 they should not be equated. They are distinct categories of 31 For an analysis of the functions of justice in the Yugoslav peace-building process see Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002). The book seeks to advise how best to integrate the norm of justice into peace-building processes to construct durable peace. 32 For the convergence of international criminal law and human rights see also International Crimes, Peace, and Human Rights: The Role of the International Criminal Court 35–74 (Dinah Shelton ed., 2000). 33 For a description of the evolution of modern international human rights law, see Thomas Buergenthal, The Evolution of International Human Rights, in Héctor Gros Espiell Amicorum Liber Vol. I, 123 et seq. (1997). 34 The Human Rights Committee referred to this overlap in its 2004 General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant. It proclaimed a duty to bring those responsible for particularly serious human rights violations to justice and elaborated that such violations committed as part of a widespread or systematic attack on a civilian population are crimes under the Rome Statute. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/ Rev.1/Add.13, para. 18 (26 May 2004).

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international law based in part on diverging principles. While there is much to be said for the assertion that effective protection of fundamental human rights requires criminalization of certain abuses in order to prevent recurrence, international criminal law goes beyond this rationale. It not only concerns deterrence but also retribution and rehabilitation of the offender.35 In other words, the purpose for which punishment is sought in international human rights is not identical to that in international criminal law.36 At the same time, the scope of their application differs. Not every human rights violation entails individual criminal responsibility under international law; neither does individual criminal responsibility automatically mean that all States are bound to prosecute these crimes. However, recently efforts have been made to realign and synchronize human rights and international criminal law. The call for criminal punishment under human rights law is increasingly justified as a result of criminalization under international criminal law. Examples can be found in recent decisions by the Inter-American Court of Human Rights. The Court points to international criminal law in order to explain a duty of States parties to the American Convention on Human Rights to prosecute crimes against humanity at the domestic level.37 As Judge Cançado-Trindade reasoned, the Court thereby tries to assume a complementarity of State responsibility and international criminal law and to introduce the notion of State crimes as an

35 That the purpose of international criminal punishment is deterrence, retribution, and rehabilitation was pointed out by the International Criminal Tribunal for the Former Yugoslavia in The Prosecutor v. Erdemovic´, Sentencing Judgment, ICTY, Case No. IT-96-22-T, paras 57–58 (26 November 1996). This has implications for the actual sentence. See also International Criminal Tribunal for the Former Yugloslavia, The Prosecutor v. Dragan Obrenovic´, Sentencing Judgment, ICTY, Case No. IT-02-60/2-S (10 December 2003); The Prosecutor v. Jean Kambanda, Judgment and Sentence, ICTR, Case No. ICTR 97-23-S, para. 28 (4 September 1998); William A. Schabas, Sentencing by International Tribunals: A Human rights Approach, 7 Duke J. Comp. & Int’l L. 461, 498 (1997); Christoph Johannes Maria Safferling, The Justification of Punishment in International Criminal Law—Can National Theories of Justification be Applied to the International Level?, 4 Austrian Rev. of Int’l and Europ. L. 126–163 (1999). But see Henham who criticizes the emphasis on deterrence in international case law and instead stresses the importance of rehabilitation and reconciliation. Ralph Henham, The Philosophical Foundations of International Sentencing, 1 J.of Int’l Crim. J. 64–85 (2003). See also Mark Findlay & Ralph J. Henham, Transforming International Criminal Justice: Retributive and Restorative Justice in the Trial Process (2005). Mark Drumbl identifies expressivism as another major objective of punishment in present criminal justice. He also seeks to guide the future conceptualization of international criminal punishment. Mark A. Drumbl, Atrocity, Punishment, and International Law 173–176; 181–209 (2007). 36 If a treaty provides for domestic punishment of certain crimes the duty to punish exists independent of the underlying rationale. But this is not the case if a duty to punish is derived from the ‘respect and ensure’ provisions of international human rights treaties. In that case the notion of deterrence is decisive. 37 Case of Almonacid Arellano et al. v. Chile, Preliminary Objections, Merits, Reparations, and Costs, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 114 (26 September 2006). See also Case of Almonacid Arellano et al. v. Chile, Preliminary Objections, Merits, Reparations, and Costs, Concurring Opinion of Judge A. A. Cançado Trindade, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 26 (26 September 2006). He uses the term ‘jurisprudential cross-fertilization’.

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aggravated form of State responsibility.38 That is a very ambitious undertaking, to say the least. That the interpretation of international human rights law is increasingly influenced by the development of international criminal law is also evidenced by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by the UN General Assembly on 16 December 2005. It states: In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.39

The duty to respect and ensure human rights is read together with customary international law rules of criminal responsibility with the result that a duty to punish human rights violations which constitute international crimes are assumed. At other times, it is the notion of the rule of law which informs the call for punishment.40 At the same time, human rights law is occasionally referred to in order further to develop international criminal law and extend the list of international

38 Myrna Mack Chang Case, Reasoned Opinion of Judge Cançado Trindade, 2003 Inter-Am. Ct. H.R. (ser. C) No. 101, para. 14 (25 November 2003). 39 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. A/RES/60/147/Annex, para. 4 (2006). 40 For the Human Rights Committee see e.g. Human Rights Committee, Concluding Observations of the Human Rights Committee: Guatemala, U.N. Doc. CCPR/C/79/Add.63, para. 4 (1996); Human Rights Committee, Summary record of the 1519th meeting: Peru, U.N. Doc. CCPR/C/ SR.1519, para. 73 (1997). According to the Committee, the principles of legality and the rule of law are inherent in the Covenant as a whole. See Human Rights Committee, General Comment No. 29: States of Emergency (Art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, para. 16 (31 August 2001). For the Inter-American Commission on Human Rights see Estiles Ruíz Dávila v. Peru, Case 10.491, Inter-Am. C.H.R., Report No. 41/97, OEA/Ser.L/V/II.95 doc. 7 rev. para. 34 (19 February 1998); Carmelo Soria Espinoza v. Chile, Case 11.725, Inter-Am. Ct. H.R., Report No. 133/99, OEA/ Ser.L/V/II.106, doc. 3 rev. para. 104 (19 November 1999). See also Case of Almonacid Arellano et al v. Chile, Preliminary Objections, Merits, Reparations, and Costs, Concurring Opinion of Judge A. A. Cançado Trindade, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 15 (26 September 2006). For the European Court of Human Rights see Judgment in the Mahmut Kaya v. Turkey, App. No. 22535/93, 2000-III Eur. Ct. H.R., Judgment of 28 March 2000, paras 98–99; Öneryildiz v. Turkey, App. No. 48939/99, Eur. Ct. H.R., Judgment of 30 November 2004, para. 96. According to the European Court the rule of law is a concept inherent in all articles of the European Convention. See Case of Amuur v. France, 1996-III Eur. Ct. H.R. pp. 850–851, para. 50. Nonetheless, it should be noted that the rule of law is intended to serve the overall purpose of lasting protection of human rights. At the time of the Lomé Agreement which makes reference to an amnesty the establishment of a special tribunal was not yet envisaged.

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crimes.41 For example, summary and arbitrary killings, at present, do not constitute international crimes per se.42 Nonetheless, it has been ascertained that under international law they should not go unpunished.43 This may ultimately lead to an extension of the crimes which incur international criminal responsibility. Taking all these developments together with the trend described above, to read notions of material justice into human rights law,44 the following can be observed: efforts are made to provide for a coherent international system which not only provides that perpetrators of particularly serious human rights violations incur international criminal responsibility in order that they can be prosecuted internationally but also that States are obliged to prosecute such violations comprehensively under their domestic criminal law. But as the above analysis demonstrates, the assertion that the most serious human rights violations constitute international crimes and give rise to a State duty to prosecute such violations—although indicating a trend—have not materialized into customary international law. Many of the statements referred to above are driven by a desire to further develop international standards rather than as a reflection of actual legal standards.45 At present there is neither an absolute State obligation to prosecute all international crimes domestically46 nor is there individual criminal responsibility for all serious human rights violations. The approach taken recently by the Inter-American Court of Human Rights, which derives unwritten rules of human rights law from international criminal law is unpersuasive because it mixes the concepts of State responsibility and individual criminal responsibility and does not distinguish between the concepts of jus cogens, erga omnes obligations, and non-derogable rights. The duty to prosecute in international human rights and individual criminal responsibility in international criminal law are two different issues. To hold perpetrators responsible there needs to be a legal basis. This follows from the 41 This approach is advocated by Mirko Bagaric & John Morss, In Search of Coherent Jurisprudence for International Criminal Law: Correlating Universal Human Responsibilities with Universal Human Rights, 29 Suffolk Transnat’l L. Rev. 157–206 (2006). 42 These acts only constitute crimes against humanity, war crimes, or even genocide, if the necessary requirements for these crimes are met. 43 See e.g. Trujillo Oroza v. Bolivia, Reparations, 2002 Inter-Am. Ct. H.R. (ser. C) No. 92, para. 106 (27 February 2002); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), U.N. Doc. CCPR/C/21/ Rev.1/Add.13, para. 18 (26 May 2004). 44 This becomes apparent when the Inter-American Court assumes a right to justice and when punishment is required as an effective remedy. See above Chapter 3, section 4.3.A.c. 45 Orentlicher in her recent article concedes that her 1991 article was motivated by a desire to assist Latin-American lawyers in their fight against impunity. Diane F. Orentlicher, ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency, 1 Int’l J. of Transitional Justice 10, 15 (2007). 46 While the Genocide Convention and the Geneva Convention explicitly provide for a duty to prosecute the crime of genocide and grave breaches of international humanitarian law there is no such strict rule with respect to crimes against humanity.

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legality principle. A violation of international human rights law in itself is not sufficient. Apart from the substantive violation there needs to be a legal basis for individual criminal responsibility. International criminal law, as evidenced by the Rome Statute, has fallen short of establishing such a responsibility for all serious human rights violations. Crimes against humanity necessitate a large-scale or systematic pattern and genocide necessitates a special intent to destroy a protected group. Serious human rights violations below this level are not covered. It is also necessary to identify a legal basis in order to oblige States to punish serious human rights violations under criminal law. Although the Genocide Convention, for example, provides for such an obligation, there are only a small number of treaties with similar provisions and the scope of criminal obligations under these treaties differ. Only some of the most serious crimes, such as genocide, torture, slavery, slave trade, exploitation of prostitution, and apartheid, are covered by these treaties. Some of those explicit obligations are now part of customary international law. But not all have been universally accepted. Even where a duty to prosecute is accepted there are additional limitations, such as the territorial scope and the specific meaning of the duty to punish or extradite. There is no uniform standard of treatment for serious human rights violations in general. Neither is there any strict rule requiring unapologetic punishment. A duty to hold perpetrators of human rights violations accountable has been repeatedly derived from the comprehensive human rights treaties. But this only applies if it serves the lasting protection of human rights. Considering its different nature and purpose, international criminal law should not be employed to render this obligation absolute and thus extend its scope beyond its reach of human rights. At a time of increasing efforts to harmonize and perhaps even to merge international criminal law and human rights, it is advisable to pause for a moment and evaluate how far this development may and should go. Although international human rights are of great relevance for the administration of justice their role in the advancement of global justice should not be overstretched. To provide for material justice is not the ultimate purpose of human rights law. Especially in those cases in which unwritten obligations to punish are derived from the comprehensive human rights treaties, the ultimate goal is not justice itself but the lasting protection of human rights. Bringing those responsible for crimes to justice in the form of criminal justice is usually the requisite measure to provide for lasting respect for human rights. But this is not an absolute rule. Despite the growing conviction that accountability is a necessary means of human rights protection, it should not distract from other measures of protection, such as human rights education, training of police and military forces, etc. Punishment should be sought as an ultima ratio because it is the most intrusive measure. Where it is required it should be accompanied by additional measures of prevention.

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In sum, there is the duty to prosecute a number of crimes, such as genocide and torture, and international law is in the process of extending these obligations to other crimes. Apart from those most serious human rights violations, international law does not provide for a comprehensive and absolute duty of all States to prosecute every serious human rights violation in domestic criminal proceedings. It is doubtful whether a comprehensive and absolute duty to prosecute human rights violations is even desirable. Criminal punishment is not by far the only means to protect human rights and the overall objective of lasting protection of human rights may require alternative measures for confronting past abuses.

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Index abortion, right to life and 199–200 access to courts, right of 121–2, 195 see also fair trials accomplice liability 22, 72, 177 see also aiding and abetting accountability 1–2, 5 American Convention on Human Rights 51, 195–6, 218 amnesties 7, 144–6, 214, 218, 272–4, 286, 288 customary international law 230, 279 European Convention on Human Rights 120, 144–7, 149 individual criminal responsibility 248–5 International Covenant on Civil and Political Rights 12, 23–4, 28, 30, 31, 37 international criminal law 293 accused, rights of the American Convention on Human Rights 62 Disappearances Convention 181 European Convention on Human Rights 146 fair trials 29, 62, 78 International Covenant on Civil and Political Rights 29 relationship to duty to prosecute 196, 225 acknowledgments as remedy 209–10 acquittals 79, 113 administration of justice 9, 52, 77, 141, 189, 219, 293 administrative proceedings European Convention on Human Rights 114, 126, 146 police abuse 28 remedies 23–4, 28, 30 sanctions 30, 72 admonition 28 adversarial defence, principle of 74 aggravating circumstances 177 aiding and abetting amnesties 22 Disappearances Convention 177 International Criminal Tribunal for the Former Yugoslavia (ICTY) 205 investigate, duty to 58 punish, duty to 205, 254 standards 72 Torture Convention 162 Algeria, amnesties in 45

aliens, protection of 230–4, 261, 280–1 American Convention on Human Rights, prosecution under 51–109 see also amnesties under American Convention on Human Rights; Inter-American Commission on Human Rights; Inter-American Court of Human Rights; standards for the conduct of criminal proceedings under American Convention of Human Rights accountability 51, 195–6, 218 accused, rights of the 62 appeals 82 compensation 54, 65, 82–4, 88–93, 97, 106–7 derogations 101, 226 disappearances 53–4, 71–2, 95–6, 176 effective remedy, right to an 64–5, 192–3, 242 extradition 81 extraterritorial jurisdiction, duty to exercise 81 fair trials 59–64, 66–7 guarantees, victim’s right to judicial 60–1 Honduras, disappearances in 53–4 humane treatment, right to 71 impunity 51, 54–6, 71, 284 investigate, duty to 54, 58–64, 68–71 judicial protection, right to 59 justice, right to 59, 65–9, 191, 242–3, 284 legislation 56 life, right to 58–9, 105–6 minorities, protection of 266–7 prevention 191 private individuals, prosecution of 54–5 prosecute or extradite principle 81 punish, duty to 53–68, 73, 191, 223, 242–3 related duties 68–71 remedial rights 64–6 ‘respect and ensure’ provision 191 retrospective protection 56–9 serious violations of human rights 65, 87, 96, 99–101, 103–7 statutes of limitations 79–81 truth, right to 68–70, 86, 91–5, 99, 101–2, 107 victims’ rights 56–70, 86–90, 95–6, 101–5, 191, 195, 284

306

Index

amnesties 6–7, 9 see also amnesties under American Convention on Human Rights; amnesties under International Covenant on Civil and Political Rights (ICCPR) accountability 7, 144–6, 214, 218, 272–4, 286, 288 aiding and abetting 22 aliens, protection of 232–3, 280 compensation 221–2 conditional amnesties 6–7, 182, 219 crimes against humanity 272 customary international law 229, 232–3, 269, 274–5, 278, 280 democracy and peace, transitions to 6–7, 182–3, 215–18, 270–3, 284–6, 288 differentiated approach 215–22 disappearances 217, 275–6 Disappearances Convention 181–3, 217, 276–7 disclosure of crimes 6–7 discretion 286 European Convention on Human Rights 141–6 evaluation 214–22 executions, summary 274–6 exemplary trials 218 extradition 167 fair trials 18, 92 general principles of law 277 Geneva Conventions 287 genocide 157, 186, 221, 272, 287 Haiti 6, 272–3 Human Rights Committee 37–45, 218, 271 impunity 143–5, 150, 165–7, 215–17, 266–7, 272–4 individual criminal responsibility 221, 249, 285 initiate criminal proceedings, right to 144 International Criminal Court, Rome Statute for 270, 286 International Criminal Tribunal for Rwanda (ICTR) 270 International Criminal Tribunal for the former Yugoslavia (ICTY) 254, 270 international humanitarian law, breaches of 272 investigate, duty to 145, 218, 222, 287 Joinet Principles 258, 267 life, right to 102–5, 142–5 margin of appreciation 142, 151, 271 minorities 221 non-binding documents 266–7 office, removal from 49, 221, 287–8 Peru 22 political considerations 6, 90–1, 233 prevention 214, 217–18, 287–8 prosecute, duty to 38, 40–5, 214–22, 194–5, 214–22, 269, 288

prosecute or extradite principle 167, 258 punish, duty to 194–5, 214–15, 221–2 purpose of amnesties 6, 217, 232–3 reconciliation 142, 144–6, 165–6, 215, 221–2, 271–4, 287–8 referenda, endorsed by 88, 182 rehabilitation 221 ‘respect and ensure’ provisions 40, 217–18 restorative justice 288 scope of amnesties 217–18 self-amnesties 22, 92–3, 99–104, 109, 221, 287 selective prosecution 218 serious human rights violations 270–5, 285–8 shield offenders, where purpose is to 151, 217, 232 South African Truth and Reconciliation Commission 6, 273–4 Special Court of Sierra Leone 256–7, 270–2 standards 7, 214, 285 state practice 269–74 state responsibility 232 statutes of limitations 171–2 torture 164–7, 254, 274–6, 287 transitional societies 6–7, 182–3, 215–18, 270–3, 284–6, 288 treaties requiring prosecution 186, 216–19, 287 truth commissions 6, 144–6, 218, 219–20, 271–4 UN peacekeeping 288–9 United States-Mexican General Claims Commission 230, 232–3 universal jurisdiction 256–7 victims, rights of 284 war crimes 272 amnesties under American Convention on Human Rights 51–2, 85–105 absolute prohibition 94–6, 102–5 approval in referendums 88 Argentina 88–90, 165 Chile 18, 41, 45, 65, 92–5, 97, 103–4, 109, 274 compensation 88–93, 97, 106–7 crimes against humanity 103–4 democracy and peace, transitions to 85–6, 91, 93–5, 98, 101, 103 disappearances 95–6 due process 87–8 El Salvador 88, 89–90, 95–6, 97, 219–20, 287–8 emergencies, derogation in times of public 101 families, rights of 86, 90, 92–3, 98, 101, 105, 107 flexible approach 85

Index Guatemala 85–6, 273 guidelines 86, 100–1, 108 impunity 86, 94, 98, 99–100, 103, 107, 109 individual rights, protection of 105–7 Inter-American Commission of Human Rights 51–2, 85–97, 102, 106–9, 195, 221, 271 Inter-American Court of Human Rights 51–2, 86–90, 97–109, 221, 271 investigate, duty to 86–94, 97–101, 105–7 judicial investigations 88–9 judicial protection, right to 87–9, 101 justice, right to 90–4, 99, 105–6, 108 life, right to 105–6 limiting scope 87–90, 96 margin of appreciation 107, 109 Nicaragua 91 peacemaking 108 Peru 94, 97–101, 103–4, 109 political considerations, struggle between justice and 90–1 post-conflict situations 99, 107 prosecute, exception to duty to 85 punish, duty to 86–7, 91–8, 100–1, 105–8 reconciliation 86, 90, 91, 93–6, 99, 107, 271 remedial rights 65 self-amnesties 92, 93, 99–104, 109, 221 serious human rights violations 87, 96, 99–101, 103–7 shield offenders, where purpose is to 78–9, 80, 82 truth right to know the 86, 91–5, 99, 101–2, 107 truth commissions 91, 92–5, 102 Uruguay 88–90 victims’ rights 86–90, 95–6, 101, 103–5, 195 amnesties under European Convention on Human Rights 141–6 amnesties under International Covenant on Civil and Political Rights (ICCPR) 22, 30, 37–49 Algeria 45 Argentina 38–9, 43 Cambodia 44 Chile 18, 41, 45 civil claims for compensation 39 Colombia 40, 42 compensation 38–40, 48–9 conditional amnesties 43 crimes against humanity 43–4 democracy and peace, transitions to 37–8, 40–3, 48–9 disappearances 39, 45, 49 Ecuador 38 effective remedy, right to an 38–40, 45, 47–8 El Salvador 39 executions, summary 44, 49

307

gross violations of human rights 43, 49 Guatemala 41–2 Haiti 41 Human Rights Committee 37–45, 47–9 implement Covenant, duty to 47–8 impunity 40, 42, 44, 48 inhuman or degrading treatment 44 investigate, duty to 38, 39–40, 43, 45, 48–9 person, violation of right of recognition as a 39 personal responsibility 48–9 Peru 22, 40, 41 post-conflict situations 41–5 prohibition 38 prosecute, duty to 38, 40–5 public officials exclusion from office of 49 responsibility of 40, 44 reconciliation 37, 41–3, 47–9 rehabilitation 48–9 ‘respect and ensure’ provision 40 Senegal 44 serious violations 43–5, 48–9 South Africa’s Truth and Reconciliation Commission 42–3 torture 44, 49 Uruguay 38, 42 victims’ rights 38–40, 45, 47–9 violations which cannot be amnestied 43–5 war crimes 43 Apartheid Convention 170, 184, 187, 264 apologies 21, 37, 210 appeals 82 appropriate punishments, requirement for 176, 185 arbitrary and summary executions 28, 44, 49, 72, 226, 274–6, 279 arbitrary arrest and detention 36, 43, 45, 175–6, 230, 240 Argentina 30, 38–9, 43, 88–90, 165–7 armed conflict see also armed conflict, law of crimes against humanity and genocide, nexus with 3 individual criminal responsibility 248–9 armed conflict, law of Geneva Conventions 2–3 international criminal law 2–3, 289 precursor to prosecution, as 2 arrest 36, 42–3, 45, 175–6, 195, 230, 240 aut dedere aut judicare see prosecute or extradite principle Basic Principles and Guidelines (United Nations) 199, 244–6, 291 blanket amnesties 88, 103, 219–20, Cambodia 44, 269–71 capital punishment 29

308

Index

charges, right to file criminal 60–4 Chechnya conflict 7, 111 Chile amnesties 18, 41, 45, 65, 92–5, 97, 103–4, 109, 274 effective remedy, right to an 21–2 retroactive criminal law 19 Spanish nationals, investigation of crimes against 274 children 16–17, 28, 177, 184 civil liability 39, 122–3, 210, 263 civil war 6, 12, 37, 42, 232, 267, 272 climate of impunity 202, 224 collecting evidence 76–7, 82, 134–6 Colombia 16–17, 40–2 combating impunity 98, 183, 212, 245, 258–9, 267–8, 273 commemorations 21, 37, 210 Commission on Human Rights (UN) 212, 258, 268 Commission on Truth for El Salvador 219–20 Committee Against Torture (UN) 158–9, 161–2, 165 Committee on the Elimination of Racial Discrimination 173–4, 191–2 compensation see also damages American Convention on Human Rights 54, 65, 82–4, 88–93, 97, 106–7 amnesties 38–40, 48–9, 88–93, 97, 106–7, 221–2 civil claims 39 Disappearances Convention 181 effective remedy, right to an 21–2, 36–7 European Convention on Human Rights 124, 150 Inter-American Court of Human Rights 82–4 International Convention on the Elimination of All Forms of Racial Discrimination 174–5 International Covenant on Civil and Political Rights 21–2, 36–40, 48–9, 240 miscarriages of justice 36–7, 240 peace, transition to 244 reparations 241–4 Torture Convention 167–8, 242 complicity 204–5 comprehensive treaties see universal human rights conventions explicitly requiring prosecution conceptualization of duty to prosecute under human rights treaties 189–227 accused, rights of the 196, 225 amnesties 194–6 comparison of different approaches 189–94 conduct, as duty of 225

criminalization 190, 224, 225 derogations from human rights 226–7 effective remedy, right to an 191–3, 222–3 fair trials 196 general human rights protection, prosecution as 222–3, 224 implementation, general measure of 190 individual rights 224 International Covenant on Civil and Political Rights 25 investigate, duty to 190, 193–4, 233 justice, right to 190–1, 195–6 legal rationale 196–226 peace and security, establishment of 225–7 positive obligation 224 prevention 223–4 punish, duty to 194–5, 223–5 rationales 190–222 rationalizing call for prosecution 190–3, 194 rule of law 189 serious human rights violations 224–5 victims, rights of 195–6, 223–4 conditional amnesties 6–7, 182, 219 conduct, prosecution as duty of 114–16, 225 conduct of criminal proceedings, rules for 71–9, 179 constitutional rights in Germany 199–200, 211–12 Convention against Torture see Torture Convention Convention for the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 31, 170–2, 185 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 169–70, 184, 264 Convention on the Prevention and Punishment of the Crime of Genocide see Genocide Convention Convention on the Rights of the Child 184 Convention on the Suppression and Punishment of the Crime of Apartheid 170, 184, 187, 264 convergence of human rights and international criminal law 9, 289–293 convictions, right to secure 212 counsel 45 crimes against humanity amnesties 43–4, 103–4, 272 American Convention on Human Rights 103–4 armed conflict, nexus with 3 Disappearances Convention 177 International Covenant on Civil and Political Rights 29, 43–4

Index international criminal law 293 state practice 269–70 statutes of limitations 31 criminal convictions, right to secure 212 criminal evidence see evidence criminal investigations see investigate, duty to criminal law see also international criminal law enforce, duty to 114–16, 147–8 extension of reach of criminal law 8 machinery, duty to establish a criminal law 111, 114–16 recourse to criminal law, duty to have 112–16, 118–19, 146 criminal offences, extension of catalogue of international 3, 291–2, 294 criminal procedure charges, right to file 60–4 conduct of criminal proceedings 179 due process 79, 87–8, 181, 202–3 machinery, duty to establish a criminal law 111, 114–16 procedural framework 284–5 procedural protection 15–17, 116–20 standards 71–9, 179 criminal responsibility Disappearances Convention 177–8 individual criminal responsibility 144, 178, 248–54 International Covenant on Civil and Political Rights 13 personal responsibility 13 state international criminal responsibility 261–3 superior responsibility 177–8 criminal trials, duty to hold 114–16, 225 criminalization deterrence 118 Disappearances Convention 176–7, 185 enforcement machinery, need for 202 European Court of Human Rights 112–14, 115–32, 202 Geneva Conventions 2–3 Human Rights Committee (ICCPR) 199 impunity 202 International Convention on the Elimination of All Forms of Racial Discrimination 172–3 international criminal law 290 justification of duty to criminalize 116–32 mens rea 113–14, 146 prevention 199, 201–4 prosecute, conceptualization of duty to 190, 224, 225 ‘respect and ensure’ provisions 203–4 serious offences 56, 112–14, 115–32, 146–7 Torture Convention 164, 185 treaties requiring prosecution 185–6

309

Croatia 43 customary international law, prosecution under 229–80 accountability 230, 279 aliens, protection of 230–4, 280 amnesties 229, 232–3, 269, 274–5, 278, 280 crimes against humanity 229, 278 demand punishment, right to 248, 282 general human rights protection, measure of 278–9 general principles of law 277 impunity 279 individual criminal responsibility 248–54 international criminal law 291 non-binding documents, relevance of 266–8 opinio juris 233–4 prevention 279 prosecute, duty to 9, 230, 278–80 prosecute or extradite, duty to 257–61 punish, duty to 230–2, 242–3, 247–8, 282 reparations 24, 240–8 serious human rights violations 229–30, 279 state international criminal responsibility 261–3 state practice 229–30, 234, 268–77, 278 state responsibility 231–48, 261–3 treaties, relevance of 263–6, 279 universal jurisdiction 254–7, 260, 278 damages 30, 210–11, 240–1 see also compensation de facto impunity 5, 16, 30, 51–2, 94 de lege ferenda 260 death penalty 29 see also executions defence, time to prepare 78 defences 147 delay see expeditious trial, right to demand punishment, right to customary international law 248, 282 effective remedy, right to an 193, 208–13 European Convention on Human Rights 193 Human Rights Committee (ICCPR) 193, 214 justice, right to 191 democracy and peace, transitions to American Convention on Human Rights 85–6, 91, 93–5, 98, 101, 103 amnesties 6–7, 215–18, 270–3, 284–6, 288 American Convention on Human Rights 85–6, 91, 93–5, 98, 101, 103 Disappearances Convention 182–3 International Covenant on Civil and Political Rights 37–8, 40–3, 48–9 compensation 242 Disappearances Convention 182–3

310

Index

democracy and peace, transitions to (cont.) International Covenant on Civil and Political Rights 37–8, 40–3, 48–9 post-conflict justice 5 derogations see emergencies, derogation in time of detention see also imprisonment arbitrary arrest and detention 36, 43, 45, 175–6, 230, 240 compensation 39 humanity and dignity, right of detainees to be treated with 13 International Covenant on Civil and Political Rights 13, 39 deterrence criminalization 118 European Convention on Human Rights 118, 120, 149, 151, 191–2 Genocide Convention 156–7 International Covenant on Civil and Political Rights 17, 26 international criminal law 290 investigate, duty to 191–2 disappearances see also Disappearances Convention Algeria 45 American Convention on Human Rights 71–2, 95–6, 176 amnesties 45, 95–6, 217, 275–6 European Convention on Human Rights 132 Honduras 53–4 impunity 71 Inter-American Convention on Forced Disappearance of Persons 51, 276 International Covenant on Civil and Political Rights 13, 43, 45 investigate, duty to 71, 132, 204 prosecute or extradite, duty to 258 punish, duty to 205 standards 72 treaties requiring prosecution 175–83, 184 Uruguay 13, 43 Disappearances Convention accomplice liability 177 accused, rights of 181 aggravating circumstances 177 amnesties 181–3, 217, 276–7 children 177 compensation 181 conduct of proceedings, rules for 179 crimes against humanity 177 criminalization 176–7, 185 definition of enforced disappearance 175–6 effective remedy, right to an 187 exercise of jurisdiction 179 extradition 179–80, 183 fair trials 181

impunity 189 individual criminal responsibility 178 Inter-American human rights system 176 investigate, duty to 176, 177, 179–81 jurisdiction 178–9, 183 mitigating circumstances 177 participation 177 passive personality jurisdiction 179, 183 penalties, requirement for appropriate 176, 185 political offences exception 180 private offenders 177–8 prosecute or extradite principle 179–80, 184 punish, duty to 181 ratifications 276–7 reparations 181 standards 183 statutes of limitations 178, 181 superior responsibility 177–8 treaties requiring prosecution 175–83, 184 universal jurisdiction 183 victims, rights of 180–1 disciplinary measures 23–4, 28, 72, 203, 281 discovery see evidence discretion 14, 156, 157, 286 see also margin of appreciation domestic enforcement 3–4 Genocide Convention 155–6 implementation 147–8 International Covenant on Civil and Political Rights 23 lack of enforcement 7, 8 machinery, need for enforcement 202 standards 74–5 domestic violence 28, 33, 51, 204 double jeopardy 78–9 see also ne bis in idem Draft Articles on State Responsibility (ILC) 235–6, 239–40, 262–3 due process 79, 87–8, 181, 202–3 duty to bring to justice 12–27, 46, 115, 120, 218 duty to investigate see investigate, duty to duty to prosecute see also American Convention on Human Rights, prosecution under; conceptualization of duty to prosecute under human rights treaties; European Convention for the Protection of Human Rights and Fundamental Freedoms, prosecution under; International Covenant on Civil and Political Rights (ICCPR), prosecution under; prosecute or extradite principle; universal human rights conventions explicitly requiring prosecution aliens, protection of 234 amnesties 38, 40–5, 214–22, 194–5, 214–22, 269, 288

Index conceptualization, need for 25–7 customary international law 9, 230, 278–80 demand prosecution, right to 17–21, 24, 56–63, 121–32, 238–9 demand punishment, right to 282–3 European Court of Human Rights 112–15, 282 Human Rights Committee 12–15, 282–4 International Covenant on Civil and Political Rights 11–38, 40–7 international criminal law 292–4 justification of duty to prosecute 15–27, 55–68, 116–32, 292–3 obligation of human rights protection, as unwritten 8 prevention 198–204, 241–2, 246–7, 282, 284, 285 private persons 31–4, 54, 58, 117, 128–31, 154, 161–2, 177, 186–7, 224 public officials 31, 33–4 purposes 197 related duties 34–7 relevance, growth in 1–5 ‘respect and ensure’ provisions 198–206 role of prosecution for human rights protection 281–5 selective prosecution 218 serious offences 7, 9, 46, 224–5 state responsibility 204, 239, 247–8, 261–3 Van Boven Principles 246–7 victims, rights of 17–27, 46–7, 223–4, 281–3 duty to punish see punish, duty to Ecuador, amnesty in 38 effective remedy, right to an acknowledgment 209–10 administrative measures 23–4 American Convention on Human Rights 64–5, 74, 192–3, 242 amnesties under International Covenant on Civil and Political Rights 38–40, 45, 47–8 Apartheid Convention 187 apologies 210 civil proceedings, participation in 210 commemorations 210 Committee on the Elimination of Racial Discrimination 191–2 compensation 21–2, 36–7 conviction, right to secure criminal a 212 criminal investigations and proceedings, need for 191–2 damages 210–11 definition 214 demand criminal punishment, right to 193, 208–13

311

Disappearances Convention 187 disciplinary measures 23–4 European Convention on Human Rights 123, 124–5, 129, 130–2, 149, 191–3, 242 expeditious trials, right to 25, 35 Human Rights Committee 191–3, 214 individual rights 191–3 initiation of criminal proceedings 211–12 International Convention on the Elimination of All Forms of Racial Discrimination 173–5 International Covenant on Civil and Political Rights 11, 13–14, 20–7, 34–40, 45–8, 242 investigate, duty to 34–6, 46, 124–5, 191–4, 209, 211–13, 223 justice, right to 207–8 participation of victim in proceedings 212 rehabilitation 20–1, 209 reparations 209–10, 242–3 restitution 209 retrospective protection 129, 130–2 Torture Convention 187 El Salvador American Convention on Human Rights 88, 89–90, 95–6, 97, 219–20, 287–8 amnesties 39, 88, 89–90, 95–6, 97, 219–20, 287–8 International Covenant on Civil and Political Rights 39 investigate, duty to 61 judicial independence 219–20 justice, right to 219 reconciliation 219–20 Truth Commission 219–20 emergencies, derogation in time of American Convention on Human Rights 101, 226 amnesties under American Convention on Human Rights 101 Genocide Convention 157, 186 habeas corpus 226 life, right to 143 Torture Convention 164 enforced disappearances see disappearances; Disappearances Convention enforcement see also domestic enforcement criminal law 114–16, 147–8 judgments 79 lack of domestic enforcement 8 sentences 79, 139–40 enslavement 32 see also Slavery Convention erga omnes obligations 81, 239, 253, 292 European Commission of Human Rights 121, 139, 141–2, 151, 184–5

312

Index

European Convention for the Protection of Human Rights and Fundamental Freedoms, prosecution under 111–51 see also European Court of Human Rights access to court, right of 121–2, 195 accountability 120, 144–7, 149 accused, rights of the 146 administrative proceedings 114, 126, 146 amnesties 141–6, 194–5 civil claims 122–3, 125–6 compensation 124, 150 conduct criminal proceedings, duty to 114–16 criminal law machinery, duty to establish a 111, 114–16 criminalization 112–14, 115–32, 146–7, 202 damages 241 defences 147 demand punishment, right to 193 deterrence 118, 120, 149, 151, 191–3 disappearances 132 effective remedy, right to an 123, 124–5, 129, 130–2, 149, 242 enforce criminal law, duty to 114–16, 147–8 European Commission of Human Rights 121, 139, 141–2, 151, 184–5 expeditious trial, right to 130–1 fair trials 121–3 humane treatment 132 imprisonment 118–19 impunity 118, 120, 132, 143–5, 150 independence 114, 120–1, 126, 148 inhuman or degrading treatment 123–4, 132 institution of criminal proceedings 121–2, 126–9, 144, 146–9 investigate, duty to 111, 115–32, 145–51, 191–3 justice, right to 111, 120, 121–4, 150, 191 justification of duty to criminalize, investigate and prosecute 116–32 life, right to 112–14, 116–18, 123, 127–31, 142–5, 149–51 margin of appreciation 112–13, 117–18, 142, 146, 151 medical negligence 201 mens rea 113–14, 146 negligence 113–14, 149 positive obligations 117–19, 123–4, 128–9 prevention 118–21, 128, 148–9 private life, right to respect for 123, 128 procedural protection 116–20 punish, duty to 115–21, 126, 149, 223 reconciliation 142, 144, 145–6 recourse to criminal law, duty to have 112–16, 118–19, 146

remedial rights 124–6, 130–2, 149–51 reparations 241 retrospective protection 126–32 rule of law 119, 135, 150 satisfaction 241 serious human rights violations 111, 112–32, 148 standards 111, 132–40, 147–8 truth commissions 144–5 victims’ rights 121–2, 124–5, 148–51 vulnerable persons, duty to protect 112, 146 European Court of Human Rights Chechnyan cases 7, 111 criminal law machinery, duty to establish a 111, 114–16 criminalize serious offences, duty to 112–14, 115–32 domestic level, insufficient proceedings at 7 investigate, duty to 111, 115–32, 190 Kurdish conflict 111 prosecute, duty to 282 rape 194 standards 132–41 supervisory role 141 evidence general practice, evidence of 264–5 Inter-American Court of Human Rights 76–7, 82 investigate, duty to 76–7 police misconduct 134–5 standards 76–7, 134–6 taking and evaluation of evidence 76–7, 82, 134–6 executions amnesties 44, 49, 274–6 extrajudicial executions 72 International Covenant on Civil and Political Rights 29, 279 summary or arbitrary executions 28, 44, 49, 72, 226, 274–6, 279 exemplary trials 218 exhaustion of domestic remedies 175 expediency principle 173, 277 expeditious trial, right to defence, time to prepare 78 effective remedy, right to an 25 European Convention on Human Rights 130–1 families, rights of 76 general principles of law 277 International Convention on the Elimination of All Forms of Racial Discrimination 173–4 International Covenant on Civil and Political Rights 13, 23–5 investigations 136 standards 74, 76, 78, 136, 196

Index expression, freedom of 28 extradition see also prosecute or extradite principle American Convention on Human Rights 81 amnesties 167 Apartheid Convention 184 Disappearances Convention 179–80, 183 Genocide Convention 184 Inter-American Court of Human Rights 81 Slavery Convention 184 statutes of limitations 171, 185 Torture Convention 159–61, 163–4, 167, 185 Trafficking Convention 170, 184 extrajudicial executions 72 Extraordinary Chambers in the Courts in Cambodia 269, 271 extraterritorial jurisdiction 81, 169–70 fair trials accused, rights of 29, 62, 78 American Convention on Human Rights 59–64, 66–7 amnesties 18, 92 civil rights and obligations 121–3 definition 62 Disappearances Convention 181 European Convention on Human Rights 121–3 guarantee, victim’s right to judicial 60–1 Inter-American Commission of Human Rights 59–62 Inter-American Court of Human Rights 59–64, 66 International Covenant on Civil and Political Rights 17, 18–19, 29 judicial protection, right to 66–7 justice, right to 59–60, 66–7, 121–3 participate, victim’s right to 59–66 sanctions, right to 65–6 victims, rights of the 18–19, 59–64, 196 families, rights of amnesties under American Convention on Human Rights 86, 90, 92–3, 98, 101, 105, 107 expeditious justice, principle of 76 information 73 investigate, duty to 71, 73 life, right to 138–9 standards 138–9 female exploitation 28 forced disappearances see disappearances; Disappearances Convention forced labour 168–9 forms of reparations 83–4, 240 freedom of expression 28 fresh evidence 79

313

gender-based violence 51, 124, 161–2, 194, 204 general principles of law 18, 277 general protection of human rights customary international law 278–9 International Covenant on Civil and Political Rights 15–17, 279 prosecute, duty to 55–6, 59, 197, 222–3, 224, 281 Geneva Conventions amnesties 287 armed conflict, law of 2–3 criminalization of breaches 2–3 grave breaches 2–3 individual criminal responsibility 248–9 prosecute or extradite, duty to 257 universal jurisdiction 256, 260 genocide see also Genocide Convention prevention 247 reparations and satisfaction 239 sanctions 29, 239 state responsibility 239 Genocide Convention 1, 153–7 acts constituting genocide 153–4 amnesties 157, 186, 221, 272, 287 cooperate, obligation to 154 customary international law 155 definition of genocide 153–4 deterrence 156–7 domestic courts, primary jurisdiction for 155–6 emergencies, no derogation in time of public 157, 186 extradition 155, 184 international criminal law 293 International Criminal Tribunal for Rwanda (ICTR) 156 International Criminal Tribunal for the Former Yugoslavia (ICTY) 156 penalties, discretion as to 156, 157 political offence exception 155 prevention 156–7 prosecute or extradite principle 155, 251, 289 punish, duty to 154–7 retribution 156–7 state practice 268–70 territorial application 154–5 universal jurisdiction 155 victims, rights of 157 Germany abortion and right to life 199–200 constitutional rights 199–200, 211–12 investigate, duty to 211–12 Nuremberg trials 1, 2, 262 grave breaches 2, 33, 203

314

Index

gross human rights violations 43, 49 guarantees of non-repetition 20, 37, 181, 209 Guatemala 41–2, 71, 85–6, 273 habeas corpus 226 Haiti 6, 272–3 hate speech 14 heard, victim’s right to be 74, 77 Hegel 208, 283 Honduras, disappearances in 53–4 Human Rights Chamber for Bosnia and Herzegovina 115 Human Rights Commission (UN) 186 Human Rights Committee (ICCPR) 11–49 amnesties 37–45, 47–9, 218, 271 criminalization 199 demand punishment, right to 193, 214 effective remedy, right to an 191–3, 214 investigate, duty to 34–6, 190, 193–4 justice, bringing to 218 justice, right to 191 prosecute, duty to 282–4 punish, duty to 223 reports, duty to submit periodic 26, 47 ‘respect and ensure’ principle 284 human trafficking 28, 33, 169–70 extradition 170, 184 extraterritoriality 169–70 private individuals, punishment of 186 Trafficking Convention 169–70, 184, 264 humane treatment 71, 73, 82–5, 132 humanity, crimes against see crimes against humanity ICC see International Criminal Court (ICC) ICTR (International Criminal Tribunal for Rwanda) 1, 156, 178, 270 ICTY see International Criminal Tribunal for the Former Yugoslavia (ICTY) immunity 30 impartiality 59, 69, 158–9, 167, 180–1, 219 implementation domestic enforcement 147–8 general measure of implementation, duty to prosecute as 190 International Covenant on Civil and Political Rights 47–8, 198–9 margin of appreciation 200 prevention 198–200 imprisonment see also detention European Convention on Human Rights 118–19 International Covenant on Civil and Political Rights 13, 29

length of imprisonment 29 re-integration 140, 142–3 impunidad 109 impunity 5–8 American Convention on Human Rights 51, 54–6, 71 statutes of limitations 80 amnesties 165–7, 215–17, 272–4 American Convention on Human Rights 86, 94, 98, 99–100, 103, 107, 109 customary international law 279 de facto impunity 5, 16, 30, 51–2, 94 de jure impunity 51–2 disappearances 71, 189 Draft Principles 258–9 European Convention on Human Rights 118, 120, 132, 143–5, 150 impunidad 109 Inter-American Commission of Human Rights 51–2, 54–6 Inter-American Court of Human Rights 51–2, 55, 84 International Covenant on Civil and Political Rights 16–19, 22, 25–7, 29–33, 37, 40–8, 204 investigate, duty to 213 non-binding documents 266–8 post-conflict situations 16 prosecute or extradite principle 258–9 punish, duty to 245 statutes of limitations 80 Torture Convention 161, 165–7 UN Commission on Human Rights 267 UN Draft Principles 258–9 UN General Assembly declarations 266 Vienna Declaration and Programme of Action 267–8 independence 36, 75, 133–7 see also judicial independence independent and effective criminal investigation see investigate, duty to individual criminal responsibility accountability 248–51 amnesties 144 customary international law 248–54 Disappearances Convention 178 European Convention on Human Rights 140–1, 144 International Criminal Court, Rome Statute of 178 International Criminal Tribunal for Rwanda (ICTR) 178 International Criminal Tribunal for the Former Yugoslavia (ICTY) 178 international individual criminal responsibility 248–54

Index individual rights see also victims, rights of American Convention on Human Rights 105–6 amnesties 105–7, 144 effective remedy, right to an 191–3 European Convention on Human Rights 120–1, 148 International Covenant on Civil and Political Rights 11, 17–25, 144 investigate, duty to 127–30 prosecute, conceptualization of duty to 224 reparations 24, 240–8 inhuman or degrading treatment or punishment 44, 123–4, 132, 163–4 initiation of criminal proceedings amnesties 144 effective remedy, right to an 211–12 European Convention on Human Rights 121–2, 125–9, 146–9 fair trials 60 International Covenant on Civil and Political Rights 144 reparations 245–6 victims, rights of 121–2 injustice, 219–20 institution of proceedings see initiation of criminal proceedings Inter-American Commission on Human Rights amnesties 51–2, 85–97, 102, 106–9, 195, 221, 271 fair trials 58–62 impunity 51–6 investigate, duty to 73 justice, right to 66–7, 191 military courts 75 punish, duty to 53–5 remedial rights 65 statutes of limitations 79–80 truth, right to the 68–9, 102 truth commissions 68–9 Inter-American Convention on Forced Disappearance of Persons 51, 276 Inter-American Convention to Prevent and Punish Torture 51 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994 51 Inter-American Court of Human Rights 54, 58–64, 82–5 amnesties 51–2, 86–90, 97–109, 221, 271 appeals 82 compensation 82–4 criminalization 199 evidence, taking and evaluation of 76–7, 82 extradition 81 fair trials 59–64, 66

315

impunity 51–2, 55, 84 inhumane treatment, failure to prosecute as 85 investigate, duty to 54, 58–9, 71, 82–5, 194 justice, right to 66–8, 191 life, right to 205 miscarriages of justice 82 prevention 85 punish, right to 53–4, 57, 82–5 reasons for duty to prosecute 53 recurrence, education and training to prevent 85 remedy, punishment as 65–6, 84–5 reparations 82–5 retrospectivity 58–9 standards 71–9, 82, 84 state responsibility 84 statutes of limitations 79–81 supervisory function 82 truth, collective right to the 60–70 International Convention for the Protection of All Persons from Enforced Disappearances see Disappearances Convention International Convention on the Elimination of All Forms of Racial Discrimination 172–5 Committee on the Elimination of Racial Discrimination 173–4 compensation 174–5 criminalization 172–3 effective remedy, right to an 173–5 expediency principle 173–4 investigate, duty to 173–5 margin of appreciation 173 punish, duty to 172–5 reparations 174–5, 240–1 victims, rights of 173–5 International Convention on the Suppression and Punishment of the Crime of Apartheid 170, 184, 187, 264 International Court of Justice (ICJ) 262, 268 International Covenant on Civil and Political Rights (ICCPR), prosecution under 11–49 accountability 12, 23–4, 28, 30, 31, 37 accused, rights of the 29 administrative remedies 23–4, 28 affirmative duties 11 amnesties 18, 22, 30, 37–45, 47–9 capital punishment 29 compensation 21–2, 36–7, 240 conceptualization, need for 25–7, 190, 193–4, 223 crimes against humanity 29 criminal punishment, rationalization of 46–7

316

Index

International Covenant on Civil and Political Rights (ICCPR), prosecution under (cont.) delay, right to trial without undue 13, 23–5 demand prosecution, right to 24 deterrence 17, 26 direct horizontal effects 31–4, 46 disappearances 13, 43 disciplinary remedies 23–4, 28 discretion 14 effective remedy, right to an 11, 13–14, 20–7, 34–7, 46, 223, 242 expedition of criminal proceedings 13, 23–5 fair trials 17, 18–19, 29 general protection, punishment as 15–17, 279 hatred, advocacy of national, racial or religious 14 horizontal effects 31–4, 46 Human Rights Committee (ICCPR) 11–49, 190 humanity and dignity, right of detainees to be treated with 13 immunity 30 implement Covenant, duty to 16–17, 25–7, 29, 32–3, 198–9 imprisonment 13, 29 impunity 16–19, 22, 30, 37, 46 indirect horizontal effects 31–4 inhuman or degrading treatment or punishment 14 investigate, duty to 12, 15, 21–5, 34–7 justice, duty to bring perpetrators to 12–27, 46 justification of duty 15–27 victims’ rights 17–22 legality, principle of 20, 29 liberty and security, right to 13 life, right to 13, 14, 24, 32–3 margin of appreciation 29 military courts 23–4 miscarriages of justice 36–7, 47 non-interference, obligation of 11 v offenders, human rights of 29 office, removal from 29–30 personal responsibility 13 police abuse 28 positive obligations 11, 26–7 prevention, punishment as 22–3, 26–7 private individuals, responsibility of 12, 31–4, 46 procedural protection 15–17 prompt prosecution and conviction 23 propaganda for war purposes 14 prosecute, duty to 11–37, 46–7, 190, 193–4, 223, 279 public officials 29–33, 36

punish, duty to 12–31, 46–7, 243 refrain, duty to 31–2 rehabilitation 20–1 remedial rights 20–2, 26–7, 34, 46 remedy, punishment as 22–3 reparations 36–7, 240 ‘respect and ensure’ principle 11, 40, 47–8 retroactive criminal law 17, 19–20, 29 sanctions 13–15, 27–31, 46 statutes of limitations 30–1 summary executions 279 superior orders, defence of obedience to 30 territorial scope 11, 14–15 torture 13, 14, 15, 29, 36 victims’ rights 17–27, 46–7 international crimes see also international criminal law extension of catalogue of crimes 3, 291–2, 294 human rights violations outside scope of international crimes 274–7 International Criminal Court (ICC) see Rome Statute of the International Criminal Court (ICC) international criminal law accountability 293 armed conflict, law of 2–3, 289 convergence of human rights and international criminal law 9 crimes against humanity 293 criminalization 290 customary international law 291 deterrence 290 domestic enforcement 3–4 extension of list of international crimes 3, 291–2, 294 fragmentation and gaps 3 Genocide Convention 293 human rights 3–5, 9, 272–7, 289–94 individual criminal responsibility 290, 293 International Criminal Court, Rome Statute of the 293 international humanitarian law 289 legal basis 10 legality principle 292–3 prevention 293 prosecute, duty to 292–4 punishment 290 retribution 290 state responsibility 290–1 international individual criminal responsibility accountability 248–51 amnesties 249 armed conflicts 248–9 customary international law 251, 254 domestic criminal proceedings, duty to bring 249–51

Index Geneva Conventions 248–9 International Criminal Court, Rome Statute for the 250, 253–4 prosecute or extradite principle 249–53 punish, duty to 254 universal jurisdiction 250, 253 International Criminal Tribunal for Rwanda (ICTR) 1, 156, 178, 270 International Criminal Tribunal for the Former Yugoslavia (ICTY) aiding and abetting 205 amnesties 254, 270 impunity 204 individual criminal responsibility 178 jus cogens 252 retrospective penalties 204–5 international humanitarian law 2, 272, 278, 289 International Law Commission (ILC) Code of Crimes against the Peace and Security of Mankind (draft) 258 Draft Articles on State Responsibility 235–6, 239–40, 262–3 International Slavery Convention see Slavery Convention investigate, duty to aiding and abetting 58 American Convention on Human Rights 54, 58–77, 86–94, 97–101, 105–7 amnesties 218, 222, 287 American Convention on Human Rights 86–94, 97–101, 105–7 European Convention on Human Rights 145 International Covenant on Civil and Political Rights 38, 39–40, 43, 45, 48–9 criminal investigations, need for 191–2 disappearances 71, 132, 176, 177, 179–81, 204 domestic violence 204 effective remedy, right to an 124–5 effective remedy, right to an 34–6, 46, 191–4, 209, 211–13 European Convention on Human Rights 111, 115–37, 145–51, 191–2 evidence 76–7 expedience 136 families, rights of 71, 73 Human Rights Committee (ICCPR) 34–6, 193–4 humane treatment, right to 71 independence 75, 133–7 individual rights 127–30 Inter-American Commission of Human Rights 73

317

Inter-American Court of Human Rights 54, 58–9, 71, 190, 194 International Convention on the Elimination of All Forms of Racial Discrimination 173–5 International Covenant on Civil and Political Rights 12, 15, 21–2, 24–5, 34–40, 43–9 judicial investigations 88–9 justification of duty to investigate 116–32 legal basis 35 participate, victim’s right to 59–64 police abuse, independence and 36, 133 prevention 203 public officials, abuse of power by 36 public scrutiny 137, 145 rationalizing right to an investigation 193–4 remedial right, as 105–6, 124–6, 190, 193–4 re-opening investigations 79 retrospective measure 194 retrospective protection 126–32 torture 36, 133, 158–9, 162, 194, 283 transparency 137 victims, rights of 24–5, 59–64, 194 involvement of victims in proceedings see victims, involvement in proceedings of Joinet Principles 192, 206–7, 258, 267 judicial independence Disappearances Convention 181 European Convention on Human Rights 114, 120–1, 126, 148 military courts 75 standards 74–5 judicial protection, right to 59–61, 66–7, 87–9, 101 jurisdiction see also universal jurisdiction American Convention on Human Rights 81 Disappearances Convention 178, 179, 183 extraterritorial jurisdiction 81, 169–70 Genocide Convention 155–6 international criminal jurisdiction alongside domestic jurisdiction 184 mandatory jurisdiction 164 passive personality jurisdiction 179, 183 jus cogens 251–3 justice, right to American Convention on Human Rights 59, 62–9, 191, 242–3, 284 amnesties 85, 92, 90–4, 99, 104–6, 108 demand punishment, right to 191 European Court of Human Rights 111, 120–4, 150, 191, 207–8 fair trials 62–3, 121–3 impunity 284 injustice, calls for justice leading to 219–20

318

Index

justice, right to (cont.) International Covenant on Civil and Political Rights 12–27, 46, 207–8 justification for duty 15–27 prosecute, duty to 190–1, 195–6, 283–5 punish, duty to 66–7, 191, 207–8, 242–3 remedial rights 65–6 truth, right to 74 victims, rights of 17–22, 67–8, 74, 191, 195–6, 221, 223 Kant, Immanuel 208 kidnapping see disappearances Kurdish conflict 111 law enforcement see domestic enforcement; enforcement law of armed conflict see armed conflict, law of legality principle 20, 29, 78, 277, 292–3 liberty and security, right to 13 life, right to abortion 199–200 American Convention on Human Rights 58–9, 105–6 amnesties 102–5, 142–5 effective remedy, right to an 23 European Convention on Human Rights 112–18, 123, 133, 137–45, 149–51, 195 families, rights of 138–9 Inter-American Court of Human Rights 205 International Covenant on Civil and Political Rights 13, 14, 24, 32–3, 279 investigate, duty to 133 negligence 112–14, 149 prevention 199–200 retrospective protection 127–31 limitation periods see statutes of limitations Lomé Peace Accord 272 London Charter for Nuremberg Trials see Nuremberg trials lustration see office, removal from mandatory prosecution 7, 8, 46 margin of appreciation see also discretion amnesties 107, 109, 142, 151, 271 American Convention on Human Rights 107, 109 European Convention on Human Rights 112–13, 117–18, 142, 146, 151 implementation 200 International Convention on the Elimination of All Forms of Racial Discrimination 173 International Covenant on Civil and Political Rights 29

sanctions 29 Torture Convention 165 medical negligence 201 mens rea 113–14, 146 military courts 23–4, 74–5 minority protection 135–6, 192, 199, 202, 206, 221, 266–7 miscarriages of justice 8, 36–7, 47, 240 mitigating circumstances 177 modes of participation 185–6 monetary compensation see compensation; damages; reparations murder 7, 16–17, 120 see also executions names of offenders, publicizing the 30 national hatred, advocacy of 14 ne bis in idem 78–9 necessity 9, 191–2 negligence 113–14, 149, 201 negotiations 90, 182, 288–9 next of kin see families Nicaragua 91 non-binding documents 266–8 non-state actors see private individuals nullum crimen sine lege see retrospective penalties Nuremberg trials 1, 2, 262 obedience to superior orders 30 obligations of conduct/means/result 8, 158, 164, 179, 225, 287 office, removal from amnesties 49, 221, 287–8 International Covenant on Civil and Political Rights 29–30 prevention 203 official capacity see public officials opinio juris 233–4, 239, 240, 268, 270, 276 Optional Protocol to the International Covenant on Civil and Political Rights 29 Organization of American States (OAS) 59, 66, 91, 191, 205–6 Paraguay 56 pardons 163, 164–7 participation see also aiding and abetting; victims, involvement in proceedings of accomplice liability 22, 177 Disappearances Convention 177 modes of participation 185–6 treaties requiring prosecution 185–6 passive personality principle 179, 183 peace see also democracy and peace, transitions to amnesties under American Convention on Human Rights 108

Index ILC draft Code of Crimes against the Peace and Security of Mankind 258 peacetime, protection of human rights in 289 prosecute, conceptualization of duty to 225–7 punish as obstacle to peace, duty to 225 penalties see also retrospective penalties; sanctions appropriate penalties, requirement for 162–3, 165, 176, 184–5 Disappearances Convention 176 discretion 156, 157 Genocide Convention 156, 157 Torture Convention 162–3, 165 pensions, loss of 29 person, violation of right to be recognized as a 39 Peru 22, 40–1, 94, 97–101, 103–4, 109 Philippines 20 police abuse 28, 36, 133–6 political offence exception American Convention on Human Rights 90–1 amnesties 6, 90–1, 233 Disappearances Convention 180 Genocide Convention 155 International Convention on the Elimination of All Forms of Racial Discrimination 173 prosecute or extradite principle 155, 180, 184 positive obligations European Convention on Human Rights 117–19, 123–4 International Covenant on Civil and Political Rights 11, 26–7 positive rights 69, 197 post-conflict justice American Convention on Human Rights 99, 107 amnesties 41–5, 99, 107 future peace and reconciliation 5 impunity 16 International Covenant on Civil and Political Rights 41–5 punish, duty to 225 post-trial stage, standards of criminal proceedings and 79 presumption of innocence 203 pre-trial stage 72–4 prevention American Convention on Human Rights 191 amnesties 214, 217–18, 287–8 criminalization 199, 201–4 customary international law 279

319

disciplinary sanctions 203 education and training 85 European Convention on Human Rights 118–21, 148–9, 223 genocide 156–7, 247 guarantees of non-repetition 20, 37, 181, 209 implementation of human rights 198–200 Inter-American Court of Human Rights 82–5 International Covenant on Civil and Political Rights 22–3, 26–7, 198–9 international criminal law 293 investigate, duty to 203 life, right to 199–200, 279 office, removal from 203 prosecute 198–204, 223–4, 241–2, 246–7, 284, 285 punish, duty to 22–3, 26–7, 198–202, 223, 224 ‘respect and ensure’ provisions 198–204 serious human rights violations 200–2 torture 161–3, 200 prima facie obligation 225 primary protection 193–4, 205, 237, 238 private individuals American Convention on Human Rights 54–5 Disappearances Convention 177–8 International Covenant on Civil and Political Rights 12, 31–4, 46 life, right to 32–3 prosecute, duty to 31–4 punish, duty to 54–5 torture 34, 161–2, 186 Trafficking Convention 186 treaties requiring prosecution 186–7 private life, right to respect for 123, 128 procedural due process 79, 87–8, 181, 202–3 procedure see criminal procedure prohibition of retroactive criminal laws 17, 19–20, 22, 29 see also legality principle propaganda for war 14, 32 proportionality 74, 77, 199–200 prosecute or extradite principle American Convention on Human Rights 81 amnesties 167, 258 customary international law 257–61 de lege ferenda, rationale for rule 260 disappearances 179–80, 184, 258 enforcement in domestic legislation 259–60 erga omnes obligations 253 general principle 257–8 Geneva Conventions 155, 257 Genocide Convention 251, 289 ILC draft Code of Crimes against the Peace and Security of Mankind 258

320

Index

prosecute or extradite principle (cont.) individual criminal responsibility 249–53 political offence exception 155, 180 state practice 259–60 statutes of limitations 171 Torture Convention 159–64, 167, 184, 242, 257, 289 treaties requiring prosecution 184, 259–60 prosecution see American Convention on Human Rights, prosecution under; conceptualization of duty to prosecute under human rights treaties; European Convention for the Protection of Human Rights and Fundamental Freedoms, prosecution under; International Covenant on Civil and Political Rights (ICCPR), prosecution under; prosecute or extradite principle; universal human rights conventions explicitly requiring prosecution protection of aliens see aliens, protection of public emergencies see emergencies, derogation in time of public memorials 21, 37, 210 public officials abuse of power 36 accountability 31 amnesties under International Covenant on Civil and Political Rights 40, 44, 49 impunity 30 International Covenant on Civil and Political Rights 29–31, 36 investigate, duty to 36 negligence 112–14 prosecute, duty to 31, 33–4 removal 29–30, 49, 221, 287–8 responsibility 31–3 Torture Convention 161, 187 punish, duty to aliens, protection of 230–2 American Convention on Human Rights 91–8, 233 amnesties 86–7, 91–8, 100–1, 105–8 justice, right to 66–7, 191, 242–3 prosecution under 53–68, 73 amnesties 86–7, 91–8, 100–1, 105–8 194–5, 214–15, 221–2 Basic Principles and Guidelines 245–6 customary international law 230–2, 242–3, 247–8, 282 demand punishment, right to 193, 208–14, 223, 248, 282 deterrence 16 disappearances 181, 205 effective remedy, right to an 207–10, 223 European Convention on Human Rights 115–21, 126, 149, 223

forms of punishment 27–8 general human rights protection, as 55–6, 59, 197, 281 Genocide Convention 154–7 gravity of crime, commensurability with 28 individual criminal responsibility 254 institute proceedings, right to 245–6 Inter-American Commission of Human Rights 53–5, 223 Inter-American Court of Human Rights 53–4, 57, 223 International Convention on the Elimination of All Forms of Racial Discrimination 172–5 International Covenant on Civil and Political Rights 12–31, 46–7, 207–8, 243 international criminal law 290 justice, right to 66–7, 79, 191, 223, 242–3 legal rationale 46–7, 55–68, 156–7, 197, 223–4 peace, as obstacle to 224 post-conflict situations 225 prevention 22–3, 26–7, 198–202, 223, 224, 247 primary protection 205, 237, 247–8 private individuals 31–4, 54–5, 58, 117, 128–31, 154, 161–2, 177, 186–7, 224 proportionality 74, 77 prosecute, duty to 190, 194–5, 197, 223–6, 281–3 purpose 214 rationalization 46–7 reconciliation 215 rehabilitation 194 remedy, as a 22–3, 65–6, 84–5, 105–6 reparations 181, 244–7, 248 ‘respect and ensure’ provisions 198–206, 224 retribution 194 retrospectivity 22, 56–9, 204–5, 248 sanctions 27–31 satisfaction 235–6 secondary obligation, as 235 serious violations of human rights 8, 200–2, 226 Slavery Convention 168–9 statutes of limitations 170–1 substantive rights, linked with 17 torture 164–5, 200 Van Boven Principles 199, 246–7 victims, rights of 17–27, 62–4, 195, 223 racial discrimination Apartheid Convention 170, 184, 187, 264 Committee on the Elimination of Racial Discrimination 173–4, 191–2 damages 240–1

Index International Convention on the Elimination of All Forms of Racial Discrimination 172–5, 240–1 UN Sub-Commission on Prevention of Discrimination and the Protection of Minorities 192, 199, 206, 266–7 racial hatred, advocacy of 14, 173 racially motivated crimes 135–6 rape 124, 161–2, 194 reasonable time see expeditious trial, right to rebuttable presumption 286–7 reconciliation American Convention on Human Rights 86, 90, 91, 93–6, 99, 107, 271 amnesties 165–6, 215, 221–2, 271–4, 287–8 American Convention on Human Rights 86, 90, 91, 93–6, 99, 107, 271 European Convention on Human Rights 142, 144, 145–6 International Covenant on Civil and Political Rights 37, 41–3, 47–9 Colombia 41–2 El Salvador 219–20 European Convention on Human Rights 142, 144, 145–6 Guatemala 41–2 International Covenant on Civil and Political Rights 37, 41–3, 47–9 post-conflict justice 5 prosecute, duty to 41–3 punish, duty to 215 Torture Convention 165–6 Truth and Reconciliation Commission of South Africa (TRC) 6, 273–4 truth commissions 6, 145–6, 273–4 recourse to criminal law, duty to have 112–16, 118–19, 146 recurrence of crimes see also prevention education and training 85 guarantees of non-repetition 20, 37, 181, 209 Inter-American Court of Human Rights 85 referenda on amnesties 88, 182 refrain, duty to 31–2 rehabilitation 20–1, 37, 48–9, 194, 209, 221 relatives see families, rights of relevance of prosecution, growth in 1–5 religious hatred, advocacy of 14 remedial rights see also compensation; effective remedy, right to an; reparations acknowledgments 209–10 administrative remedies 23–4, 28, 30 American Convention on Human Rights 64–6 apologies 21, 37, 210

321

Basic Principles and Guidelines (United Nations) 199, 244–6, 291 criminal justice, right to 65–6 damages 30, 210–11, 240–1 disciplinary remedies 23–4 European Convention on Human Rights 64–5, 124–6, 130–2, 149–51 Inter-American Commission of Human Rights 65 Inter-American Court of Human Rights 65–6, 84–5 International Covenant on Civil and Political Rights 20–3, 26–7, 34, 36 investigate, duty to 105–6, 124–6, 190, 193–4 punish, duty to 22–3, 65–6, 84–5 satisfaction 37, 235–6, 238–9, 241, 246–7 victims, rights of 20–2, 26–7 removal from office see office, removal from reparations access to remedies, right of 244 Basic Principles and Guidelines (UN) 199, 244–6, 291 compensation 241–4 customary law 24, 240–8 definition 181 Disappearances Convention 181, 209–10, 242–3 effective remedy, right to an 209–10, 242–3 European Convention on Human Rights 241 form and amount 83–4, 240 general international law, rule of 244 genocide 239 individual rights 24, 240–8 institute proceedings, victim’s right to 245–6 Inter-American Court of Human Rights 82–5 International Convention on the Elimination of All Forms of Racial Discrimination 174–5, 240–1 International Covenant on Civil and Political Rights 36–7, 240 International Criminal Court, Rome Statute of the 244–5 investigate, duty to 24 methods 243–4 prosecute, duty to 241–2, 246–7 punish, duty to 181, 242–8 state responsibility 84, 240–8 Torture Convention 241–2 res judicata 78–9 ‘respect and ensure’ provisions, duty to prosecute and American Convention on Human Rights 191

322

Index

‘respect and ensure’ provisions, duty to prosecute and (cont.) amnesties 40, 217–18 criminalization 203–4 International Covenant on Civil and Political Rights 11, 40, 47–8 investigate, duty to 193, 224 prevention 198–204 punish, duty to 198–206 retrospectivity of substantive rights 204–6 restitio in integrum 83, 209 restitution 37, 83, 209 restorative justice 288 retrials 78–9 retribution 9–10, 156–7, 194 retroactivity see retrospective penalties; retrospective protection retrospective penalties customary international law 17 International Covenant on Civil and Political Rights 17, 19–20, 29 International Criminal Tribunal for the Former Yugoslavia (ICTY) 204–5 legality, principle of 20 punish, duty to 204–5, 248 retrospective protection American Convention on Human Rights 56–9 European Convention on Human Rights, 126–32 initiate criminal proceedings, individual’s rights to 126–9 investigate, duty to 126–32, 194 life, right to 127–31 positive obligations 128–9 punish, duty to 22, 56–9 retrospectivity see retrospective penalties; retrospective protection right to an effective remedy see effective remedy, right to an right to compensation see compensation right to fair trial see fair trials right to judicial protection 59–61, 66–7, 87–9, 101 right to justice see justice, right to right to life see life, right to right to remedy and reparation for victims see effective remedy, right to an; remedial rights; reparations right to truth see truth, right to rights of the accused see accused, rights of the role of the European Court of Human Rights see European Court of Human Rights role of the Inter-American Court of Human Rights see Inter-American Court of Human Rights

role of prosecution for human rights protection 9, 281–5 Rome Statute of the International Criminal Court (ICC) amnesties 104, 270, 286 individual criminal responsibility 178, 250, 253–4 international criminal law 293 international humanitarian law 289 reparations 244–5 shielding accused from justice 144 universal jurisdiction 257 rule of law 119, 135, 150, 291–2 Rwanda 1, 156, 178, 270 sanctions, right to administrative proceedings 30, 72 American Convention on Human Rights 65–6 crimes against humanity 29 disciplinary proceedings 203 fair trials 65–6 fines 30 genocide 29, 239 gravity of sanctions 29 International Covenant on Civil and Political Rights 13–15, 27–31, 46 margin of appreciation 29 office, removal from 29–30 punish, duty to 27–31 torture 29 treaties which require prosecution 185 satisfaction compensation 37 European Convention on Human Rights 241 prosecute, duty to 246–7 punish, duty to 235–6 state responsibility 235–6, 238–9 SCSL see Special Court of Sierra Leone secondary obligations 235 self-amnesties 92, 93, 99–104, 109, 221, 287 Senegal 44 sentencing see also imprisonment enforcement 139–40 proportionality 77 remedy, as 21 standards 77, 138–40 treaties requiring prosecution 185 serious human rights violations 3–5 American Convention on Human Rights 65, 87, 96, 99–101, 103–7 amnesties 270–5, 285–8 American Convention on Human Rights 87, 96, 99–101, 103–7 International Covenant on Civil and Political Rights 43–5, 48–9

Index criminalization 56, 112–14, 115–32, 146–7 customary international law 229–30, 279 European Convention on Human Rights 111, 112–32, 148, 201 International Covenant on Civil and Political Rights 43–5, 48–9 mandatory prosecution 7, 46 prevention 200–2 prosecute, duty to 7, 9, 46, 224–5 punish, duty to 8, 200–2, 226 remedial rights 65 standards 72–3, 77–8 statutes of limitations 80–1 sexual crimes 124, 161–2, 194 shielding of offenders/perpetrators 78–9, 80, 82, 144, 151, 217, 232 Sierra Leone see Special Court of Sierra Leone slavery 32 see also Slavery Convention Slavery Convention extradition 184 forced labour 168–9 penalties 185 private individuals, punishment of 186 prosecute or extradite principle 184 punish, duty to 168–9 Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery 168, 185–6 South Africa amnesties 6, 42–3, 273–4 Truth and Reconciliation Commission 6, 42–3, 145–6, 273–4 Special Court of Sierra Leone amnesty 256–7, 270–2 truth commission 271–2 universal jurisdiction 256–7, 272 standard of proof see evidence standards see also standards for the conduct of criminal proceedings under American Convention of Human Rights amnesties 7, 214, 285 Disappearances Convention 183 domestic criminal law 8 European Convention on Human Rights 111, 132–41, 147–8 Inter-American Court of Human Rights 82, 84 standards for the conduct of criminal proceedings under American Convention of Human Rights 71–9 accused, rights of the 78–9 adversarial defence, principle of 74 crimes to be prosecuted 72 disappearances 72 effective recourse, principle of 74 evidence, evaluation of 76–7

323

executions, extra-judicial, summary or arbitrary 72 expeditious justice, principle of 74, 76, 78, 196 fair trials 78 heard, victim’s right to be 74, 77 investigate, duty to 72–7, 79 judgments, enforcement of 79 judiciary, independence of the 74–5 justice, right to 74, 78, 79, 195–6 legality principle 78 military courts 74–5 ne bis in idem 78–9 post-trial stage 79 proportionality of punishment, principle of 74, 77 regular criminal courts, trial before 74–5 res judicata 78–9 sentence, length of 77 serious violations of human rights 72–3, 77–8 sham trials 79 torture 72 trial stage 74–9 truth, right to 74 victims, rights of 74, 77 standards for the conduct of criminal proceedings under European Convention of Human Rights 132–41 European Court of Human Rights 132–40 evidence, taking and evaluation of 134–6 expedience of investigation 136 families, rights of 138–9 investigations, independent and effective 133–7 life, right to 133, 137–40 police misconduct 133–6 racially motivated crimes 135–6 reintegration following imprisonment 140 sentences 138–40 torture 133 transparency 137 trial and punishment 137–8 victims in criminal proceedings, involvement of 138–9 state agents see public officials state international criminal responsibility customary international law 261–3 ILC Draft Articles on State Responsibility 262–3 impunity 261 International Court of Justice 262 International Criminal Tribunal for the former Yugoslavia 262–3 Nuremberg Tribunal 262 prosecute, duty to 261–3

324

Index

state practice aliens, protection of 234 amnesties 269–74 crimes against humanity 269–70 customary international law 229–30, 234, 268–77, 278 human rights violations outside scope of international crimes 274–7 International Court of Justice 268 opinio juris 268, 278 prosecute or extradite principle 259–60 state responsibility 239 treaties, relevance of 264–5, 268–9 universal jurisdiction 256, 260 state responsibility aliens, protection of 231–2, 261 customary international law 231–48, 261–3 effective remedy, right to an 248 genocide 239 human rights 234–5, 238–47 ILC Draft Articles on State Responsibility 235–6, 239–40, 262–3 Inter-American Court of Human Rights 84 International Court of Justice 262 opinio juris 239, 240 prosecute, duty to 204, 239, 246, 261–3 punish, duty to 234–8, 248–9 reparations 84, 240–8 sanctions 263–4 satisfaction 235–6, 238–9 state practice 239 Torture Convention 161 statutes of limitations American Convention on Human Rights 79–81 Convention for the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 31, 170–2, 185 crimes against humanity 31, 170–2 Disappearances Convention 178, 181 impunity 80 Inter-American Commission of Human Rights 79–80 Inter-American Court of Human Rights 79–81 International Covenant on Civil and Political Rights 30–1 prosecute or extradite, duty to 171 punish, duty to 170–1 serious human rights violations 80–1 treaties requiring prosecution 170–2, 185 war crimes 31, 170–2 summary or arbitrary executions 28, 44, 49, 72, 226, 274–6, 279 superior orders 30

superior responsibility 177–8 Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery 168, 185–6 territorial scope Disappearances Convention 179 extraterritoriality 82, 169–70 Genocide Convention 154–5 International Covenant on Civil and Political Rights 11, 14–15 Torture Convention 159–61 treaties requiring prosecution 168–70, 184 theories of punishment 208 time limits see statutes of limitations torture 3, 274–6 see also Torture Convention amnesties 44, 49, 254, 274–6 Inter-American Convention to Prevent and Punish Torture 51 International Covenant on Civil and Political Rights 13, 14, 15, 29, 36, 44, 49 investigate, duty to 36 monitoring bodies 36 prevention 200 private individuals 34 punish, duty to 200 sanctions 29 standards 72, 133 United Nations declarations 276 Torture Committee (UN) 158–9, 161–2, 165 Torture Convention aiding and abetting 162 amnesties 164–7, 275–6, 287 compensation 167–8, 242 criminal jurisdiction, mandatory establishment of 164 criminalization 164, 185 definition of torture 158, 161 domestic law, incorporation of prohibition into 158 effective remedy, right to an 187 emergencies, derogation in times of public 164 extradition 159–61, 163–4, 167, 185 gender-based violence 161–2 impunity 161, 165–7 inhuman or degrading treatment 163–4 investigate, duty to 158–9, 162, 193–4, 283 opinio juris 276 pardons 163, 164–7 participate in proceedings, victim’s right to 242 penalties, appropriateness of 162–3, 165, 185 prevention 161–3 private persons 161–2, 186

Index prosecute or extradite principle 159–61, 163–4, 167, 184, 242, 257, 289 public officials 187 punish, duty to 164–5 rape 161–2 ratifications 265–6, 275–6 reconciliation 165–6 reparations 241–2 state officials 161 state responsibility 161 territorial scope 159–61 UN Committee against Torture 158–9, 161–2, 165 universal jurisdiction 256 victims’, rights of 167–8, 283 trafficking see human trafficking transition to democracy and institution building see democracy and peace, transitions to transition to peace see democracy and peace, transitions to transitional justice 6–7, 215–16, 270–1 transparency 137 TRC (Truth and Reconciliation Commission of South Africa) 6, 145–6, 273–4 treaties and conventions see also particular treaties (e.g. Disappearances Convention); universal human rights conventions explicitly requiring prosecution ratifications 268–9 state practice 268–9 trials see also fair trials duty to hold criminal trials 114–16, 225 exemplary trials 218 regular courts trials before 23–4, 74–5, 249–51 sham trials 79 trial stage, standards at 74–9, 137–8 Truth and Reconciliation Commission of South Africa (TRC) 6, 145–6, 273–4 truth commissions American Convention on Human Rights 69, 91, 92–5, 102 amnesties 6, 91–5, 102, 144–6, 218, 219–20, 271–4 El Salvador 219–20, 287–8 European Convention on Human Rights 144–6 reconciliation 145–6 Special Court of Sierra Leone 271–2 Truth and Reconciliation Commission of South Africa (TRC) 6, 145–6, 273–4 truth, right to see also truth commissions American Convention on Human Rights 68–70, 86, 91–5, 99, 101–2, 107 amnesties 86, 91–5, 99, 101–2, 107

325 collective right 68–9 preventive function 69 standards 74

UN Convention Against Torture see Torture Convention UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for victims of violations of International Human Rights and Humanitarian Law 199, 244–6, 291 UN Draft Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity 258–9 UN Human Rights Committee see Human Rights Committee (ICCPR) United Nations Basic Principles and Guidelines 199, 244–6, 291 Commission on Human Rights 186, 212, 258, 268 General Assembly declarations 266 impunity 258–9, 266 peacekeeping 5, 108, 288–9 Sub-Commission on Prevention of Discrimination and the Protection of Minorities 192, 199, 206, 266–7 torture Committee against Torture 158–9, 161–2, 165 declarations on 276 United States aliens, protection of 230, 232–3 United States-Mexican General Claims Commission 230, 232–3 universal human rights conventions explicitly requiring prosecution 153–87 amnesties 186, 216–19, 287 Apartheid Convention 1973 170, 184, 187, 264 comparative analysis 183–7 compensation 187 Convention for the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968 170–2, 185 Convention on the Rights of the Child 1989, Optional Protocol 2002 on the Sale of Children, Child Prostitution and Child Pornography 184 criminalization 185–6 disappearances 175–83, 184 effective remedy, right to an 187, 208 extradition 184–5 general practice, evidence of 264–5 Genocide Convention 153–7, 184–7, 265 implementation, methods of 184

326

Index

universal human rights conventions explicitly requiring prosecution (cont.) International Convention for the Protection of All Persons from Enforced Disappearances 2005 175–83, 184–5, 187 International Convention on the Elimination of All Forms of Racial Discrimination 172–5 participation, forms of 185–6 penalties, imposition of adequate 184 private individuals, punishment of 186–7 prosecute, conceptualization of 189–227 prosecute or extradite principle 184, 259–60 racial discrimination 172–5 ratifications, number of 264 sanctions 185 scope of criminal obligations 153–83 sentencing 185 Slavery Convention 168–9, 184–5 statutes of limitations 170–2, 185 territorial scope 169–70, 184 Torture Convention 158–68, 184–7, 265–6 Trafficking Convention 1949 169–70, 184, 186, 264 universal jurisdiction amnesties 256–7 customary international law 254–7, 260, 278 deterrence 250 Disappearances Convention 183 Geneva Conventions 256, 260 Genocide Convention 155 individual criminal responsibility 250, 253–5 International Criminal Court, Rome Statute for the 257 mandatory jurisdiction 256, 260–1 permissive criminal jurisdiction 255–6 prosecute or extradite, duty to 256 Special Court for Sierra Leone 256–7, 272 state practice 256, 260 Torture Convention 256 Uruguay 13, 35, 38, 42–3, 59–60, 88–90 Van Boven Principles 70, 199, 246–7 victims, involvement in proceedings of American Convention on Human Rights 56–68 civil proceedings 210 criminal proceedings 56–70 effective remedy, right to an 212

fair trials 59–64 information, right to 68 investigate, duty to 59–64 Torture Convention 242 truth, right to 68–70 victims, rights of see also compensation; effective remedy, right to an; families, rights of; individual rights; justice, right to; remedial rights; reparations access to court, right of 121–2 accused, rights of the 196 American Convention on Human Rights 56–70, 86–90, 95–6, 101–5, 191, 195, 284 amnesties 38–40, 45, 47–9, 86–90, 95–6, 101, 103–5, 195, 284 criminal charges, right to file 60–4 Disappearances Convention 180–1 European Convention on Human Rights 121–2, 124–5, 148–51 fair trials 18–19, 196 Genocide Convention 157 guarantee, victim’s right to judicial 60–1 heard, right to be 74, 77 institution of criminal proceedings 121–2 International Convention on the Elimination of All Forms of Racial Discrimination 173–5 International Covenant on Civil and Political Rights 17–27, 38–40, 45–9 investigate, duty to 24–5, 59–64, 194 judicial guarantees, right to 60–1 justice, right to 17–22, 67–8, 74, 191, 195–6, 221, 223 prosecute, duty to 17–27, 46–7, 15–6, 223–4, 281–3 punish, right to 17–27, 62–4, 195, 223 remedial rights 20–2, 26–7 retroactivity 19–20, 22 retrospective protection, punishment as 22 standards 74, 77 Torture Convention 167–8, 283 Vienna Declaration and Programme of Action 267–8 vulnerable persons, duty to protect 2–3, 112, 146 war crimes 31, 43, 272 war propaganda 14, 32 Yugoslavia see International Criminal Tribunal for the Former Yugoslavia (ICTY)