In Vindication of Justiciable Victims' Rights to Truth and Justice for State-Sponsored Crimes

Aldana-Pindell, Raquel, Vanderbilt Journal of Transnational Law

ABSTRACT

In this Article, Professor Aldana-Pindell explores the norms establishing a state's responsibility to grant victims of human rights violations adequate rights in the criminal prosecution process as a remedy for their victimization. She argues that victim-focused prosecution norms comport and provide more effective means of promoting respect for human rights, in certain nations in democratic transition from mass atrocities. Moreover, she suggests that, as part of other justice reforms, states plagued with impunity should adopt criminal procedures granting surviving human rights victims greater standing in the prosecution process. Professor Aldana-Pindell then uses Guatemala to examine the factors that compel the need for reformed victim's rights in a country whose criminal justice system is wrought with incompetence and corruption.

 
TABLE OF CONTENTS 
 
 I. INTRODUCTION 
II. DEVELOPMENTS IN INTERNATIONAL LAW ON 
    VICTIMS' RIGHTS IN THE CRIMINAL PROCESS 
    A. Prosecutions as an Effective Remedy 
       For Victims of Violent Crimes 
       1. Caselaw Interpreting Comprehensive 
          Human Rights Treaties 
          a. The Human Rights Committee 
          b. The Inter-American Court 
             on Human Rights 
          c. The European Court on 
             Human Rights 
       2. Specialized Treaties or Declarations 
          a. The Basic Principles and 
             Guidelines on the Right 
             to a Remedy and 
             Reparation of Victims of 
             Violations of international 
             Human Rights and 
             Humanitarian Law 
          b. Other U.N. Human 
             Rights Instruments 
    B. Victims' Participatory Rights in the 
       Criminal Process 
       1. The United Nations 
          a. The Declaration of Basic 
             Principles of Justice for 
             Victims of Crime and 
             Abuse of Power 
          b. The Rome Statute and the 
             Rules of Procedure and 
             Evidence of the International 
             Criminal Court 
          c. Other U.N. Human 
             Rights Instruments 
       2. European Nations 
          a. The Council of Europe and 
             the Committee of Ministers 
          b. The European Court on 
             Human Rights 
          c. The European Union 
III. WHY SURVIVING HUMAN RIGHTS VICTIMS' DEMAND 
     PROSECUTIONS AS A REMEDY FOR STATE-SPONSORED 
     CRIMES 
     A. The Right to Truth 
        1. The Substantive Right to Truth 
        2. The Procedural Right to Truth 
     B. The Right to Justice 
        1. Criminal Punishment for 
           Accountability 
        2. Criminal Punishment for 
           Retribution 
        3. Criminal Punishment for Equal 
           Treatment 
IV. THE CASE FOR VICTIM-FOCUSED PROSECUTIONS 
    A. Criminal Punishment to Purge the State 
       of Human Rights Violators 
    B. Criminal Punishment to Legitimate the State 
    C. The Expressive Functions of Punishment 
       1. Criminal Punishment as Moral 
          Educator 
       2. Criminal Punishment as Tamer 
          of Anger 
V. GUATEMALA'S STORY OF IMPUNITY 
   A. Guatemala's Cycle of Violence 
   B. Impunity's Contribution to Guatemala's 
      Violence 
      1. State Corruption 
      2. Toleration for Human Rights 
         Violations 
      3. Vigilante Justice 
VI. CONCLUSION 

I. INTRODUCTION

The prominence of international human rights law emerged as nations encountered, at the end of World War II, one of the worst examples of what Kant deemed "radical evil." (1) Never before World War II had humanity confronted an authoritarian leader who espoused an explicit doctrine of racial superiority to enslave and exterminate millions of Jews, homosexuals, gypsies, and other religious and ethnic minorities. The advent of the Holocaust drove most nations to reconsider state sovereignty claims over the individual rights of its citizens. As more stories and pictures emerged of the horror of the Holocaust, it became morally impossible for the Allied nations to ignore what had transpired. The Allied nations responded by establishing the Nuremberg Tribunals to prosecute some of the individuals responsible for the atrocities in the hope that similar acts would not be repeated. As Justice Robert Jackson stated in his opening remarks for the prosecutions of Nuremberg,

 
   The privilege of opening the first trial of history for crimes 
   against the peace of the world imposes a grave responsibility. 
   The wrongs which we seek to condemn and punish have been so 
   calculated, so malignant, and so devastating, that 
   civilization cannot tolerate this being ignored, 
   because it cannot survive their being repeated. (2) 

The Nuremberg Principles establishing the tribunals imposed individual criminal liability for grave international crimes and were later construed to require states to prosecute these crimes. (3) Since then, as a matter of general principle, the international human rights norm that states have a duty to prosecute certain grave crimes has progressively become settled law. The majority of specialized human rights treaties impose a state duty to prosecute such acts, whether or not the crime was committed in the state's territory. (4) Similarly, international case law interpreting comprehensive human rights treaties have read a similar duty to prosecute crimes against an individual's right to life and personal integrity, whether the crime was committed by a state agent or a private actor. (5) This duty to prosecute norm also applies to governments in transition from civil war or authoritarian regimes during which mass atrocities were conducted. (6)

In practice, however, the state response to state-sponsored mass atrocities post-World War II has not been faithful to the duty to prosecute norm. Instead, a glance back at Southern Europe's transition from dictatorships in the 1970s, Eastern Europe's transition from communism in the 1980s and 1990s, the severe human rights violations in Asia, the violent civil wars in emerging democracies in Africa, and the violent democratization process in Latin America has shown that prosecutions are rare and that inaction, amnesties, and pardons are the norm. (7) In some countries, the state's lack of political will to admit responsibility and impose accountability for its past human rights abuses has led to the adoption of general amnesty laws and dismissal of the findings of truth commissions. (8) In the instances where there has been some political will to admit institutional responsibility, some countries have nonetheless opted for non-prosecution alternatives, such as truth commissions or disciplinary sanctions, expressing concern that prosecutions could provoke further violence (9) or frustrate other goals of democratic and economic development. (10) When states have attempted prosecutions, these efforts have been halted or limited by other state factions (11) or have been hindered substantially by the weaknesses and corruption of the institutions charged with administering justice. (12) When states have adopted a strong rhetoric of prosecutions, the significant procedural irregularities that have characterized the process have significantly compromised their legitimacy and purpose. (13) Even in the two instances where the United Nations has stepped in to prosecute--Rwanda and Former Yugoslavia--prosecutions have necessarily been few and slow, and have not escaped criticism over bias, due process violations, and shortcomings in bringing reconciliation to the region or addressing victims' needs. (14)

The numerous failures to prosecute in countries where state-sponsored mass atrocities have occurred have led many to reconsider the viability of the duty to prosecute norm in these contexts and even some to challenge its validity. Those who have reassessed its viability have conceded that non-prosecution alternatives represent a legitimate compromise to prosecutions when establishing individual responsibility is impractical, when prosecutions cannot be conducted without violating defendants' fundamental rights, or when prosecutions would substantially impede transition to peace or to a democratic government. (15) Many in this group, however, still affirm the superiority of prosecutions and propose that at least the prosecution of certain particularly grave offenses against those in high command should remain an alternative, even if prosecutions must take place at a later time or be conducted by international tribunals or other nations. (16)

Those who question the validity of prosecutions, however, challenge the core reasons why international human rights law universally adopted the duty to prosecute norm as the most effective response to mass atrocities. The case for prosecutions in democracies in transition has largely turned on punishment as the new regimes' most powerful guarantor of non-repetition of similar human rights violations. (17) Prosecutions, for example, would advance the nation's democratic consolidation by increasing the legitimacy of the new regime and promoting respect for the rule of law. (18) Subsequently, the case for prosecution also focused on punishment as a tool for reconciliation. This argument, for example, emphasizes the importance of retributive justice as a form of healing for the victims' and the public's anger for the wrongs committed against them. (19)

Critics of the validity of these claims challenge the assumption that prosecutions can guarantee non-repetition or promote reconciliation. (20) For example, some have argued that prosecutions may indeed spark more hatred and lead to further fragmentation and violence, even when those in power favor prosecutions. (21) Others have questioned that prosecutions can restore the rule of law in society when these must be selective or conducted in violation of defendants' fundamental rights. (22) Others have emphasized that the adversarial nature of prosecutions, in contrast to truth commissions, necessarily compromises the comprehensive truth about the past (23) and provides little opportunity for victims to tell their stories or for perpetrators to seek forgiveness. (24) These factors, they argue, impede rather than aid the process of reconciliation. (25) These critics, therefore, conclude that non-prosecution alternatives are better suited to promote peace and reconciliation in nations in democratic transition from mass atrocities. (26)

Despite these criticisms, states have responded collectively or individually to states' domestic failure to prosecute by solidifying their commitment to the duty to prosecute norm. For example, in addition to recent attempts by a few states to exercise universal jurisdiction to prosecute some human rights perpetrators, (27) states approved the Rome Statute to create a permanent international criminal court. (28) Also, international organizations and states have funneled millions to promote domestic justice reforms that emphasize combating impunity in democracies in transition. Such reforms have even included sending U.N. missions to these democracies to monitor compliance with human rights norms. (29) Moreover, states have continued to develop international human rights laws that expand the states' duty to prosecute norm--for example, by granting victims a justiciable right to prosecutions.

This Article examines the merits of the nascent international law developments on what the Author calls victim-focused prosecution norms. The stated purpose of these emerging norms has been to alleviate victims' exclusion from the criminal process, which states believe has worsened victims' treatment in the criminal justice system. (30) Generally, these norms establish that states must guarantee victims an effective prosecution as a remedy whenever violent crimes are committed against them. (31) Second, these norms grant victims certain participatory rights in criminal proceedings that, while not intended to convert prosecutions into a private process, nevertheless limit states' prosecutorial discretion by establishing mechanisms by which victims may have input into the criminal process. (32)

Such victim participation in the criminal process is by no means new. Surviving human rights victims, (33) in particular, often participate in prosecutions against those accused of gross human rights violations. Their level of participation has varied depending on the degree of risk, (34) resources, (35) and the parameters established by law in their respective countries. The permissible scope of victim participation in the criminal process varies significantly from country to country. In some countries, including the United States, victims' place in the criminal justice system has evolved dramatically from being the sole executors of private justice to having virtually no role. (36) In these systems of law, victims are viewed as having ceded to the state the authority to punish on behalf of the public good. (37) In contrast, in many European and Latin American countries, for example, the accepted view is that victims are natural or juridical persons directly endangered or harmed by the criminal act. (38) Therefore, in these systems of law, victims can directly prosecute crimes considered to be private, or crimes viewed as implicating a broader public interest, and the prosecutorial role is either independent from or subsidiary to that of the public prosecutor. (39)

Until the 1980s, however, in contrast to the development of international norms codifying the fundamental rights of criminal defendants, international human rights law had been silent about whether and how much domestic legal systems should prescribe victim participation in criminal proceedings. That is now changing. Victims are also being viewed, under international human rights law, as those most directly harmed by violent crimes and, therefore, as those with certain rights to participate in prosecutions. Given the diverse accommodation of victim participation in the criminal process by different legal systems, currently these norms consist principally of general recommendations on granting victims access to justice that also contemplate significant flexibility for state compliance. (40) Still, these norms urge states, for instance, to establish a review mechanism to limit the prosecutors' decision not to prosecute, to allow victim input into the collection of evidence, and to grant victims the opportunity to participate in the trial by permitting them to introduce evidence and cross-examine witnesses. (41)

Any evaluation of these victim-focused prosecution norms should consider at least three levels of analysis. First, these norms should be viewed as reaffirming in principle the more settled duty to prosecute norm, including in the context of state-sponsored mass atrocities, which is the focus of this Article. The analysis should therefore consider the broader on-going debate about the viability and validity of retroactive justice for mass atrocities, as well as whether victim-focused prosecutions, including their right to participate in the criminal process, would also further the stated goals of prosecutions in this context. Second, there are several valid pragmatic concerns about the application of these norms. For example, many observers have argued victim participation in the criminal process would not only endanger their lives but could lead to duplication, inefficiency, and conflicting agendas. (42) Third, each proposed norm for victim participation in the criminal process should be assessed for its effect on others' fundamental rights. For example, many have cautioned that victim participation will substantially diminish the hard-earned, fundamental procedural rights of defendants. (43) The outcome of each of level of independent analysis could yield compelling reasons for or against victim participation in the criminal process.

This Article focuses principally on the first level of analysis and examines the merits of international law's promotion of prosecutions of state-sponsored mass atrocities through these emerging victim-prosecution norms. These norms, like the duty to prosecute, apply to all victims of right to life and personal integrity crimes generally, (44) and not solely to victims of state-sponsored mass atrocities. However, it would be a mistake to generalize the analysis of these types of victims' rights to all contexts. Victims' rights movements have emerged from both politically conservative and politically progressive impulses, (45) as well as from different ideological trends. (46) Because there is not a monolithic victims' rights movement nor a single social context in which victims' calls for greater participatory rights in criminal proceedings take place, (47) the merits of such reforms must be assessed independently.

The focus of this Article on state-sponsored mass atrocities also needs qualification, as it is not intended to generalize the characteristics of all state-sponsored mass atrocities. This Article will specifically examine the merits of victims' rights movement to further prosecutions in the aftermath of Guatemala's genocide. (48) The shared characteristics of Guatemala's genocide with other state-sponsored mass atrocities make it possible, however, to draw broader lessons from Guatemala's experience. More generally, this Article assesses the merits of victim-focused prosecutions in societies where state institutions and agents have directly committed or sponsored systematic, gross human rights abuses against members of their own citizenry. Moreover, these mass atrocities have resulted from deliberate, state-sponsored campaigns that vilify, and spark hatred against, members of specific groups, usually on the basis of ethnic or social conflict. Although these mass atrocities have occurred often in the context of civil wars or civil unrest, the overwhelming majority of the violations have been attributed directly or indirectly to the state, as distinguished from societies with a widespread level of public participation as perpetrators and victims. (49) In these societies, particularly for the victims of the atrocities, states have replaced justice with impunity, so that the very systems charged with the administration of justice are controlled or are influenced by the perpetrators of the abuse and exist primarily to protect from punishment the very people who committed the crimes.

In this context of impunity for state-sponsored mass atrocities, surviving human rights victims have espoused that states must prosecute the perpetrators of human rights abuses as part of the remedy for the violations committed against them. (50) Alternatives to prosecutions, especially truth commissions, are sometimes distinguished from prosecutions precisely due to their focus on victims. Prosecution alternatives, therefore, have been characterized as more responsive to victims' needs. (51) This Article, however, rejects this view. Following a discussion of the emerging international norms on victim-focused prosecutions in Part II, Part III explains why, consistent with these norms, many surviving human rights victims view prosecutions as the superior forum to guarantee them their rights to truth and justice. (52) This is true because, through prosecutions, surviving human rights victims seek to promote individual and institutional accountability, to obtain retribution, and to attain equal protection under the law. (53) Surviving human rights victims have argued that truth commissions, despite some potential advantages for revealing certain aspects of the truth, cannot adequately satisfy their goals for accountability, retribution, and equality when the commissions must treat the perpetrators leniently and, thereby, compromise justice. (54)

Even if prosecutions more effectively address surviving human rights victims' goals, however, this result does not resolve the broader question of whether prosecutions also better serve society's transitional justice goals. Despite the numerous valid concerns that many have expressed against prosecutions, (55) this Article advocates prosecutions as the superior mechanism for restoring respect for human rights in the aftermath of certain state-sponsored mass atrocities. The juxtaposition of prosecutions over other alternatives by no means suggests that these cannot or should not co-exist. Truth commissions, for example, also offer a superior forum to achieve certain important goals of transitional justice. This includes the advantage of truth commissions over trials to establish the historical and social context that gave rise to the atrocity, as well as to explain its more complex patterns of institutional responsibility and, sometimes, mass complicity. (56) Moreover, truth commissions may represent a necessary compromise in certain societies where only a select number of prosecutions are possible. (57) The preference, therefore, is to favor responses to mass atrocities that attempt to capitalize on the advantages offered by each of these alternatives and that address legitimate impediments to prosecutions. (58) Unfortunately, however, most observers, wrongly asserting that truth commissions and prosecutions cannot co-exist, generally frame the debate to favor one over the other. (59) This Article, therefore, responds principally to the arguments that place alternatives to prosecutions, principally truth commissions, not as compromises, but as overall superior forums to prosecutions.

The prosecution versus alternative response to mass atrocities debate is not new. In fact, whenever mass atrocities have occurred, whether the state response has been to adopt an amnesty law, a truth commission process, or prosecutions, observers have written vastly either to support or reject the respective response. (60) This debate, however, has occurred principally with prosecutions being conceived as a duty states owe the public as a response to certain grave crimes. This Article reframes the debate to consider a victim-focused approach to the debate between prosecutions versus other alternatives.

Part IV elaborates why surviving human rights victims' goals in prosecutions are equally crucial to restoring human rights. (61) As with the duty to prosecute norm, the case for victim-focused prosecutions turns on the consequences of the state's failure to punish the perpetrators of human rights violations by, for example, adopting amnesty laws, or the state punishing them too leniently by imposing disciplinary sanctions or demanding a public apology. Echoing the same arguments advanced for the state's duty to prosecute, surviving human rights victims fear inadequate punishment will fail to (1) purge the state of those who perpetrate violence or (2) deter others from committing similar acts in the future. (62) Surviving human rights victims also argue that impunity undermines the state's legitimacy and ability to promote the rule of law. (63) Surviving human rights victims, more centered on their rights, argue the states' imposition of disparate punishments for human rights violations disparages victims and creates a dual system of justice. (64) By doing so, states send the wrong message to the perpetrators and the public about their level of tolerance for the commission of such acts, which may encourage others to commit similar infractions. (65) Finally, by doing so, the state risks rekindling the victims' and the public's anger and frustration against the state and those responsible for the abuse, encouraging some to take the law into their own hands. (66)

It is possible and even preferable (67) for the state's criminal justice system to further victims' goals through prosecutions without victim participation in the criminal process. Surviving human rights victims, however, have considered their involvement in the criminal process crucial to holding the states' institutions of justice accountable to victims, particularly when corruption or incompetence have systematically prevented the state from effectively administering justice. (68) The argument in favor of increasing the accountability of state institutions of justice can be compelling. A state, even if it expresses a commitment to do so, will not always be able to comply with its duty to prosecute in societies where many of its agents and institutions have become too aligned with crime. Guatemala's story of impunity, recounted in Part V, provides a specific example of how a state's corrupt institutions of justice may render meaningless its duty to prosecute.

Due to mounting international and domestic pressure, Guatemala did not adopt a general amnesty law. (69) Instead, the country agreed to both a U.N. truth commission process and to prosecute gross human rights violations. (70) Unfortunately, Guatemala's dismal record of prosecutions (71) has contributed to the assessment that Guatemala did not need to adopt a general amnesty law to guarantee impunity. (72) Guatemala's record of impunity can be attributed, in part, to corrupt officials who obstruct the criminal process in individual cases and to the incompetence and inadequate resources that plague the institutions responsible for Guatemala's administration of justice. (73) Unfortunately, the poor record can also be attributed to Guatemala's culture of toleration for violent acts when directed at persons viewed as somehow contributing to the ills of Guatemalan society. (74) In that context, by infusing some public accountability into the process, surviving human rights victims' participation in prosecutions could increase the quality of the investigation and trial, at ]east in some cases. Some positive results, even in a few prominent prosecutions, could help curb Guatemala's culture of violence by sending a strong condemnatory message about the acceptability of such acts, and by restoring victims' and the public's faith in institutional justice. (75)

Part VI of this Article concludes that states plagued with impunity should consider, as part of other reforms, adopting criminal procedure laws that codify victims' rights to prosecutions and grant victims greater standing to participate in the criminal process. Despite the compelling reasons offered in this Article for states to increase victim participation in the criminal process, however, this proposal should not be read as a blanket endorsement for victim-focused prosecutions in all democracries in transition from state-sponsored mass atrocities. Future research should be conducted, for example, into the effect of existing and proposed reforms for victim participation in prosecutions on victims, society, and on defendants' fundamental rights. The Article concludes, therefore, by highlighting some potential concerns related to the victims' role in transitional justice and offers some preliminary solutions that merit further study.

II. DEVELOPMENTS IN INTERNATIONAL LAW ON VICTIMS' RIGHTS IN THE CRIMINAL PROCESS

Since the 1980s, international human rights norms related to the prosecution of certain grave crimes have emerged as more victim-focused. Despite the fact that many domestic legal systems in the world already prescribed victim participation in the criminal process, international human rights law initially conceived of prosecutions solely as a state duty to the public and not as a private right. Specifically, international human rights law established that states had a duty to the public to prosecute crimes against the individual's rights to life and personal integrity, (76) and to impose penalties that considered the grave nature of the crimes. (77) Primarily since the 1980s, however, international human rights law has developed to create norms that respond to many of the concerns expressed by surviving human rights victims about their exclusion from criminal proceedings, especially when states rampantly refuse to comply with their duty to prosecute. These victim-focused prosecution norms establish that prosecutions are an essential component of the remedy states owe victims of certain grave crimes. Moreover, these norms began to recognize certain participatory rights of victims in criminal proceedings, other than as witnesses. (78)

The framing of prosecutions as a victim's right has emerged primarily from international human rights tribunals' interpretation of provisions in comprehensive human rights treaties that generally establish a right of access to justice or to be heard, and a right to an effective remedy. That this occurred through case law is not surprising. Surviving human rights victims overwhelmingly file human rights complaints only when the state has refused to prosecute, has deliberately or recklessly obstructed the criminal process, or has conducted a sham prosecution. (79) These cases have revealed the anguish suffered by surviving victims of gross human rights violations that result from the lack of effective prosecutions. (80) This has influenced international tribunals to declare other forms of reparations, such as monetary compensation or disciplinary sanctions, as insufficient to remedy the harm caused by human rights violations. (81) These case law developments are briefly summarized in Section A. (82)

Second, international norms have also developed that grant victims standing to participate in the criminal process. Such participation allows victims to monitor the states actions and to advance their interests in truth and justice. Many of these norms have been codified in international declarations on victims' rights or have developed through human rights cases. (83) More recently, the Rome Statute of the International Court and its Rules of Procedure and Evidence have also included, for the first time, more ample participatory rights of victims in international criminal proceedings. (84) These codified legal developments are briefly summarized in Section B. (85)

Victims' claims to prosecutions as a remedy does not mean, however, that prosecutions have been transformed into a purely private right that victims could renounce by, for example, asking the state not to prosecute. Rather, victims' rights to prosecutions co-exist with the states' duty to prosecute. This important point was recently clarified by the Inter-American Court on Human Rights when it declared that the duty to conduct an effective criminal process is independent and separate from the state's duty to repair. (86) The Inter-American Court explained that were the state to leave human rights violations unpunished at the request of the victim, the state would ultimately be violating its general duty to guarantee the free and full exercise of the rights of persons under its jurisdiction. (87) Victims' claims to prosecutions as a remedy have come to mean, however, that prosecutions become a justiciable right that victims should be able to claim against the state. The Inter-American Court also stated that the fact that a right--like the right to truth--may take on a collective or general character, intended to benefit the public as a whole, does not mean that an individual may not have standing to assert that right. (88)

A. Prosecutions as an Effective Remedy For Victims of Violent Crimes

Treaty-based international human rights tribunals have interpreted certain provisions in comprehensive human rights treaties as creating victims' right to prosecutions. These provisions generally include those that codify the right to access justice or to be heard and the right to obtain an effective remedy. These decisions have declared primarily that states must conduct an effective prosecution of gross human rights violations to repair victims' harm. Most cases have been decided by the European and American regional human rights systems, and a few have been decided by U.N. treaty-based bodies. (89) In addition, a few specialized human rights instruments include provisions on the right to complain and to an effective remedy, which have also been construed to require prosecutions as part of the remedy that states must provide victims of certain violent crimes.

1. Caselaw Interpreting Comprehensive Human Rights Treaties

a. The Human Rights Committee

The Human Rights Committee has interpreted Article 2.3 of the International Covenant on Civil and Political Rights (ICCPR) (90) to require states to conduct an effective prosecution to remedy the harm caused to victims of right to life and personal integrity violations. Article 2.3 generally provides that states must accord an effective remedy to any person whose rights under the ICCPR have been violated. (91) In cases involving arbitrary detentions, forced disappearances, torture, and extrajudicial executions, the Human Rights Committee has ruled victims' effective remedy under Article 2.3 of the ICCPR must include a criminal investigation that brings to justice those responsible. (92) In so holding, the Human Rights Committee expressly rejected some states' arguments that disciplinary sanctions or monetary damages should suffice as a remedy. (93) The Committee has accorded the remedy of prosecutions to the direct victim of right to life and personal integrity violations and to the family members. (94)

b. The Inter-American Court on Human Rights

The Inter-American Commission and Court on Human Rights (95) have interpreted Articles 8, 25, and 1.1, respectively, of the American Convention on Human Rights (96) as jointly prescribing states to provide victims of right of life and personal integrity violations an effective prosecution as a remedy for right to life and personal intergrity violations. Articles 8 and 25 respectively provide the right to be heard (97) and to an effective recourse (98) of every person who claims a violation of the American Convention, with Article 1.1 imposing a general duty on the state to ensure the full exercise of these rights. (99) The Inter-American Court has interpreted Articles 25 and 8 as directly related: the former requires the state to provide human rights victims access to a criminal trial as reparations for the violation, and the latter requires the criminal trial be conducted in a way that guarantees procedural fairness to victims. (100) These provisions, when read in conjunction with Article 1.1 of the American Convention, impose an affirmative duty on the state to effectuate these rights. (101) In these cases, the definition of victims has included those whom the laws of the respective countries recognize as the direct victims' heirs. (102)

Specifically, the Inter-American Court has declared that the right to be heard under Article 8 of the Convention contemplates victims' rights to have the crime investigated and to have those responsible prosecuted and, when appropriate, punished. (103) The state has to fulfill this right with due process guarantees, within a reasonable time, and by a competent, independent, and impartial tribunal. (104) The Inter-American Court similarly interpreted Article 25 to hold that access to a simple, prompt, and effective recourse before a competent tribunal for protection against right to life and personal integrity violations includes victims' access to criminal proceedings. (105) More recently, the Inter-American Court has held that these provisions also require states to conduct criminal trials in order to guarantee family members the right to know the truth. The Court held that there is a direct correlation between the state denying human rights victims' access to effective justice or to procedural fairness in criminal trials and their right to learn the truth, which includes obtaining knowledge of the circumstances of the crime and the identification of those responsible. (106)

c. The European Court on Human Rights

The European Court on Human Rights has interpreted two articles of the European Convention for the protection on Human Rights and Fundamental Freedoms (107) as prescribing victims' rights in the criminal process: Article 2, right to life, and Article 13, right to an effective remedy. Similar to the Inter-American Court, the European Court has granted ownership of victims' rights in the criminal process to the direct victim of the violation. Furthermore, if the victim is dead or has consented to being represented, the victim's next of kin may assert the victim's rights. The European Court has specifically permitted, other than the direct victims, (108) parents, (109) spouses, (110) siblings, (111) uncles, (112) and nephews (113) to allege an independent violation arising from procedural errors or lack of victim access to the criminal process. In granting standing to victims' family members, the European Court focused not on the type of familial relationship, but instead on the closeness of the relationship in fact. (114) The European Court has interpreted Article 13 of the European Convention as providing that prosecutions must be considered an effective remedy that states owe victims of violent crime. Article 2, which confers to victims certain participatory rights in criminal proceedings, will be discussed below in Section B.

Primarily in cases against Turkey, the European Court has found a violation of Article 13 of the European Convention in almost every case in which (1) there was no criminal investigation into alleged right to life or personal integrity violations, or (2) where the investigation was superficial or plagued with substantial errors. (115) The language of Article 13 of the European Convention is very similar to Article 25 of the American Convention. It provides that every person alleging a violation of the European Convention has a right to an effective remedy before a national authority. (116)

By finding a separate Article 13 violation, the European Court established that a state's violation of its duty to prosecute right to life and inhuman treatment allegations (117) also violates the individual victim's right to an effective remedy. The European Court specifically held that, given the importance of the rights to life and humane treatment, Article 13 requires the state to provide victims a thorough and effective investigation capable of leading to identification and punishment of those responsible, in addition to the payment of compensation where appropriate. (118) Although victims' rights under Article 13 also coexist with the procedural duties to investigate violations of the right to life and personal integrity, the European Court has held that the requirements under Article 13 are broader than the procedural duties because Article 13 not only requires an effective investigation, but also requires that the entire system securing the remedy be effective. (119)

Some recent cases decided against the United Kingdom, however, appear to represent a shift in thinking about the European Court's interpretation of Article 13 in the Turkish cases. (120) In the U.K. Cases, the European Court examined, but did not find, an Article 13 violation, even though it otherwise found procedural errors in the criminal process that violated the state's duty to conduct an effective criminal investigation under Article 2 of the European Convention. (121) Instead, the European Court distinguished the Southeast Turkey cases because in the United Kingdom civil proceedings for damages against state agents are independent from the criminal outcome. (122) Implicit in this analysis is that states may satisfy victims' rights to an effective remedy under Article 13 by providing civil recourse in which victims may recover monetary damages, notwithstanding the results of a criminal trial. This analysis was more explicit when the European Court stated that it "has found no elements which would prevent (the pending civil) proceedings" from providing the redress contemplated under Article 13. (123)

2. Specialized Treaties or Declarations

a. The Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims of Violations of International Human Rights and Humanitarian Law

The U.N. Commission on Human Rights has also adopted a revised draft titled Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims of Violations of International Human Rights and Humanitarian Law (Basic Principles). (124) The document is described as a "victim-oriented point of departure of the community, at local, national, and international levels, [that] affirms its human solidarity and compassion with victims of violations of international human rights and humanitarian law as well as with humanity at large." (125) The Basic Principles is not yet in final form, although during its 58th Session the U.N. Commission on Human Rights requested the U.N. High Commissioner for Human Rights to hold a consultative meeting for the purpose of finalizing the text for consideration by the U.N. Commission on Human Rights during the 59th Session. (126)

The most relevant parts of the Basic Principles relating to victims' rights in the criminal process are those related to reparations and access to justice. Section X on "Forms of Reparation of the Basic Principles" lists the types Of reparations states must provide victims of international human rights and humanitarian law violations. These include, among others, satisfaction and guarantees of nonrepetition. The state must specifically guarantee victims

 
   [v]erification of the facts and full and public 
   disclosure of the truth to the extent that such disclosure 
   does not cause further unnecessary harm or threaten the 
   safety of the victim, witnesses, or others; It]he search 
   for the bodies of those killed or disappeared and assistance in 
   the identification and reburial of the bodies in accordance with 
   the cultural practices of the families and communities; [a]n 
   official declaration or judicial decision restoring the dignity, 
   reputation and legal and social rights of the victim and of 
   persons closely connected with the victim; [an] apology, 
   including public acknowledgment of the facts and acceptance 
   of responsibility; and [j]udicial or administrative 
   sanctions against persons responsible for the violations." (127) 

b. Other U.N. Human Rights Instruments

The United Nations has also adopted specialized human rights instruments that include provisions on the right to complain or to an effective remedy. These provisions have also been interpreted to include victims' right to an effective investigation into the allegations with the aim of according the appropriate sanctions against the perpetrators.

One of the earliest international human rights treaties to include a provision related to victims' rights to complain is the U.N. Torture Convention. (128) Article 13 of the U.N. Torture Convention provides that "[e]ach State Party shall ensure that any individual who alleges he has been subject to torture in any territory under its jurisdiction has the right to complain, and to have his case promptly and impartially examined by its competent authorities." (129) The Committee against Torture (130) has held that a state violates Article 13 when it fails to proceed with an impartial investigation of alleged acts of torture within its territory. (131)

The 1992 U.N. Declaration on Enforced Disappearances also includes the right to complain and expands the scope of this right to any persons with knowledge of the violation. Article 13 of this Declaration provides that "any person having knowledge or legitimate interest who alleges that a person has been subjected to enforced disappearance has the right to complain to a competent and independent state authority and to have that complaint promptly, thoroughly and impartially investigated by the authority." (132) Article 13 elaborates that this right imposes the following duties on a state, whenever it has reasonable grounds to believe that an enforced disappearance has been committed: to refer the matter to the appropriate authorities; not to take any measure that would curtail or impede the investigation; to provide all the necessary powers and resources to conduct the investigation effectively; to protect all individuals involved in the investigation from harassment and ill-treatment; and to make its findings available to those parties concerned, unless doing so would jeopardize the investigation. (133) The Working Group on Enforced or Involuntary Disappearance similarly interpreted Article 19 of the U.N. Declaration on Enforced Disappearance, which pertains to the right to an effective remedy, to require the prosecution and punishment of human rights perpetrators. (134)

In summary, most of the human rights cases and documents establishing victims' rights in the criminal process have declared that states must guarantee victims an effective prosecution as a remedy for violations implicating the right to life and personal integrity. Therefore, when states fail to conduct effective prosecutions, they not only violate the general duty to prosecute, but more specifically, they violate victims' rights to an effective remedy. The remedy has generally been to order states to rectify the violation by conducting an effective prosecution. In addition, international law has developed specific norms that grant standing to victims to participate in criminal proceedings, in part to ensure that states guarantee victims' right to prosecutions as a remedy.

B. Victims' Participatory Rights in the Criminal Process

Victims' participatory rights in the criminal process are found in Declarations and Recommendations by the United Nations and European countries, in the case law of the European Court on Human Rights, and in the Rome Statute for the International Criminal Court. These documents or cases generally provide that victims must have access to the criminal process. Some states have construed these instruments to grant victims the right to direct participation or to seek review of the state's prosecutorial practices.

1. The United Nations

a. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

The General Assembly adopted, by consensus, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power on November 29, 1985. (135) The Victims' Declaration has been described as "a reflection of the collective will of the international community to restore the balance between the fundamental rights of suspects and offenders, and the rights and interest of victims." (136) The Victims' Declaration has also become known as the Magna Carta for victims. (137) Part A of the Victims' Declaration broadly defines victims of crime to include persons who individually or collectively have suffered harm, which includes physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights through acts or omissions that violate existing domestic laws, including those proscribing criminal abuses of power. (138) Victims can also include, where appropriate, the immediate family or dependents of the direct victim who have suffered harm in intervening to assist victims in distress or to prevent victimization. (139)

Part A of the Victims' Declaration recommends that states adopt measures that will improve, among other things, the access of victims of crime to justice and fair treatment. (140) These recommendations urge states to do the following: treat victims with compassion and dignity; guarantee them access to the mechanisms of justice; establish or strengthen judicial and administrative mechanisms to allow victims to secure redress through procedures that are fair, inexpensive and accessible; and inform victims of their rights to seek redress. (141) This Section also outlines specific steps states can institute to improve the responsiveness of judicial and administrative processes to victims' needs. These include informing victims of crime of their potential role in the process and scope and progress of the disposition of their cases; allowing victims' views and concerns to be presented and considered at appropriate stages of the proceedings, without prejudice to the accused; providing proper assistance to victims through the legal process; taking measures to minimize inconvenience to victims, protect their privacy, and ensure their safety, and the safety of their families and witnesses on their behalf, from intimidation and violation; avoiding unnecessary delays; and creating informal mechanisms for the resolution of disputes, where appropriate, to facilitate conciliation and redress for victims. (142)

Subsequent publications regarding the Victims' Declaration elaborate on how states can comply with its provisions and review the specific steps implemented to date by some states in an effort to do so. (143) These publications reveal that some states have interpreted the Victims' Declaration as codifying victims' rights to have input into the prosecutorial decision-making throughout the criminal process. Specifically, some states have interpreted victims' rights to access justice to require states to accord victims a review mechanism to challenge state decisions in criminal investigations and trials that adversely affect victims' interests. (144) This interpretation has raised some concerns. During the Tenth Congress for the Prevention of Crime and the Treatment of Offenders, (145) for example, states specifically addressed potential for conflicts between offenders' (146) and victims' rights in the criminal process. (147) The Tenth Congress declared that the most debated victims' right in the criminal process is the right to be involved in the decision-making. (148) The Tenth Congress concluded, however, that not all victim involvement has been controversial. It observed that most states recognize victims' rights to initiate criminal proceedings when prosecutors refrain from prosecuting. (149) Many states also recognize victims' rights …

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Publication information: Article title: In Vindication of Justiciable Victims' Rights to Truth and Justice for State-Sponsored Crimes. Contributors: Aldana-Pindell, Raquel - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 35. Issue: 5 Publication date: November 2002. Page number: 1399+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 2002 Gale Group.

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