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. In many cases, the new civilian government does not have sufficient power to control a disgruntled and anxious military.(4) New leaders fear that subjecting the human rights violators to prosecution or their activities to public scrutiny will initiate a violent response from the military, which is often responsible for the majority of violations. In many of these nations, the former violators are not vanquished; they retain significant power and influence. In other words, they still pose a threat to the stability of the successor government. For example, the democratically elected president of Chile had to share power with the former military dictator.(5) Under these circumstances, it is easy to understand why some successor governments issue amnesties and pardons.
While this policy may answer the demands of the military and former government officials, it hampers civil and criminal legal proceedings.(6) In essence, amnesty laws officially absolve human rights violators of their crimes. Without criminal responsibility, it is nearly impossible to successfully prosecute a criminal or civil case against former officials.(7) Despite these drawbacks, new governments often feel compelled to issue amnesties and presidential pardons.
Unlike the amnesty policy option, the creation of truth commissions indicates that the new government feels secure enough to take a tentative step toward addressing the previous regime's human rights violations by identifying those responsible and acknowledging the victims.(8) In short, these official commissions investigate accusations of human rights violations. The goal of the commission is to provide the public with an accurate account of the policies and practices of the previous regime.(9) Once the investigation is completed, the commission typically publishes a detailed account of its findings.
While establishing a truth commission is a rather passive policy, the disclosure of the human rights violations can make a meaningful contribution to the social and political stability of the subsequent regime. By shedding light on the truth, these commissions contribute to social reconciliation. By publicly recognizing the victims' suffering, the new government expresses an interest in their welfare. Moreover, truth commissions can provide a measure of political stability. Falsehoods and a desire to forget the past provide a weak foundation upon which to build the democratic institutions of a new government.(10) While this policy can make a contribution to the society, the use of this passive policy usually indicates that the successor government remains vulnerable to the influence of members of the previous regime.
In contrast to amnesty laws and truth commissions, both of which focus on the perpetrators, reparations address victim issues. Nevertheless, the disclosure of the policies and practices of a previous regime is often closely tied to reparations.
In many cases, seeking financial compensation for damages is the victim's only recourse. One cannot imprison a state or government, especially one that has dissolved and is no longer in power.(11) This compensation can take many forms. Willing governments often pay monetary damages and arrange free medical and psychological assistance for the victims.(12) In other instances, the government will provide low-cost housing and educational subsidies. Regardless of their form, the reparations are an attempt by the successor government to return the victims to their status quo ante.
Not surprisingly, it is rare for the government guilty of the violations to pay reparations. Nevertheless, victims can seek compensation for their injuries from the successor regime. The victims' right to these payments is a widely recognized principle of customary international law.(13) This right flows from the doctrine of State Responsibility. This doctrine asserts that regardless of who leads the …
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Publication information: Article title: Resolving the Human Rights Violations of a Previous Regime. Contributors: Walsh, Brian - Author. Magazine title: World Affairs. Volume: 158. Issue: 3 Publication date: Winter 1996. Page number: 111+. © 1999 Heldref Publications. COPYRIGHT 1996 Gale Group.
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