Resolving the Human Rights Violations of a Previous Regime
Walsh, Brian, World Affairs
During the latter half of the twentieth century, the international community has sharpened its focus on human rights. One of the more perplexing issues, which has consistently confounded national leaders and the international community, is the question of dealing with the perpetrators of human rights violations. When individuals are accused of serious human rights violations, the succeeding government(1) and the international community face difficult policy choices: granting amnesty, establishing a truth commission, paying reparations, prosecuting the perpetrator(s) in domestic courts, and/or prosecuting them in international tribunals. The decision of the authorities to adopt one or more of these policies is driven by four objectives: reconciliation, deterrence, justice, and legitimacy. When a government pursues multiple objectives, the different contributions of each objective can create debilitating systemic contradictions. While a government can simultaneously pursue justice, deterrence, and legitimacy with minimal policy conflicts, the addition of reconciliation to any or all of the other three objectives seriously undermines the successor government's attempts to deal with past human rights violations. This conflict stems from fundamental differences in the policies necessary to pursue each objective.
The extent to which a government or the international community wants to emphasize one or more of the objectives dictates the blend of policies it adopts. To be successful, the authorities must recognize the contributions and contradictions that each policy can make to the pursuit of the different objectives. Once this process is completed, the authorities can select the appropriate blend of policies.
The first three objectives - reconciliation, deterrence, and justice - have been studied extensively; however, the need of the international community and successor government, especially a democratic government, to establish legitimacy is virtually ignored in the human rights literature. This oversight leaves the analysis of the prosecution of human rights violators incomplete. While the search for legitimacy is not the only reason for government and international action, it helps to explain the ebb and flow of calls for national governments and international tribunals to prosecute human rights violators.
THE FIVE POLICY OPTIONS
The selection of an appropriate response to past human rights violations often produces angst among national leaders. Their decisions will have a profound impact upon the nation's citizenry and their government. Each policy provides important, but often contradictory, social and political products to the new regime. Regardless of which policies the leaders select, their decisions will surely affect large numbers of people, victims and perpetrators. In a repressive regime, the rights of millions may have been violated. Such an assault requires the participation of large numbers of government officials, who may still retain substantial influence.(2) In dealing with these two groups, the new regime must balance the demands of justice with the need for social harmony and political stability. Successfully striking this balance of policies requires an understanding of the five policies and four objectives.
In the aftermath of a repressive regime, the new government often grants amnesty for crimes committed by government officials and military personnel during their service to the previous regime. Issuing amnesties and granting presidential pardons is quite common, especially in Central and South America. Prominent examples include Chile-1978, Brazil-1979, Argentina-1986 through 1990, Guatemala-1986, El Salvador - 1987, and Uruguay - 1986.(3)
These actions do not indicate ignorance of the crimes or a lack of caring by the respective governments. Instead, they reflect the precarious position in which many new governments find themselves. …