Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability
Joyner, Christopher C., Denver Journal of International Law and Policy
This year celebrates the fiftieth anniversary of the Universal Declaration of Human Rights,(1) a document that is regarded both as the wellspring and cornerstone of modern international human rights law. The Universal Declaration, though not intended to be legally binding, aims to set "a common standard of achievement for all peoples and nations."(2) And that it surely does. Its thirty articles cover a raft of human rights and fundamental freedoms, ranging from the liberty and security of the person, equality before the law, due process, prohibitions against torture and arbitrary interference with privacy, to civil and political rights that protect freedom of movement, asylum, expression, conscience and religion, and assembly. There are in addition economic and social rights, such as the rights to work and equal pay and to social security and education.
The Universal Declaration clearly is not an enforceable international instrument. Yet, the fact remains that its contents have subsequently become regarded as binding customary international law,(3) or as embodying general principles of law,(4) or as conventional law by virtue of being codified through specific provisions in specific international treaty instruments.(5)
Nevertheless, underpinning the proclaimed rights in the Universal Declaration is a critical provision that tends to be passed over in most treatments of human rights law. This provision is Article 8, which in full emphatically asserts the following: "Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law."(6) This is the effective remedies provision that explicitly intends to protect the rights of the victim. Each person therefore possesses and can exercise the right to obtain redress for harm done by public or private agents to him or her. The premise here is that no person is above the law. Every person should have recourse to protection under the law, to equal protection against discrimination of his or her fundamental human rights, and to justice in seeking juridical remedies under the law. Furthermore, in the event that the fundamental human rights of a person are violated, there remains the overarching right to justice. States are obligated to investigate those violations, take appropriate measures against the perpetrators, ensure that they are prosecuted, and furnish the victims with effective remedies.
Such remedies for victims have not, in fact, often been attained. Human rights have been grossly violated, on massive scales, usually leaving as stark legacies the scars of profound suffering for victims and scabs of impunity for perpetrators. This realization points up the main purpose of this paper, namely, to examine the notion of allowing impunity for serious violators of fundamental human rights as opposed to the obligation of obtaining effective remedies for victims as affirmed under Article 8 of the Universal Declaration. To address this theme, Part II section briefly treats the scope of impunity, as it appraises the contemporary system of international criminal law that prohibits impunity for human rights violations and supplies the legal basis for governments to comply with and enforce the obligation for juridical redress in Article 8 of the Universal Declaration. Part III deals with the nature of impunity, specifically by exploring the rationales concerning why governments do so little in prosecuting and punishing persons who have committed the most horrendous of crimes. The availability under national and international law of various accountability mechanisms for bringing alleged perpetrators to justice is treated in Part IV, as is how the need for justice squares with the need for national reconciliation. Part V appraises the prospects for obtaining Article 8 effective remedies through competent tribunals (inclusive of international courts), as guided by principles designed to ensure restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, and the final section proffers some conclusions for reflective consideration. …