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Accountability for genocide and othergross human rights violations: the needfor an integrated and victim-basedtransitional justiceJean-Marie KamataliPublished online: 08 Jun 2007.

To cite this article: Jean-Marie Kamatali (2007) Accountability for genocide and other gross humanrights violations: the need for an integrated and victim-based transitional justice, Journal ofGenocide Research, 9:2, 275-295, DOI: 10.1080/14623520701368685

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Accountability for genocide and othergross human rights violations: theneed for an integrated and victim-based transitional justice

JEAN-MARIE KAMATALI

The Nuremberg tribunal was the expression and the beginning of states’ recog-nition of their duty to prosecute genocide and other gross human rights violations.It was a first step towards fulfilling their vow, “never again.” From Nuremberg toRome this duty was tested, adapted and strengthened, yet, the world’s commitmentto “never again” has yet to be fulfilled.1 To the genocide and other crimes againsthumanity in Rwanda and former Yugoslavia, the world reacted by setting up adhoc tribunals;2 to international crimes in Sierra Leone, East Timor and Kosovoand Cambodia, the response was hybrid courts;3 and to those committed in Iraqand Lebanon, special courts were set up.4 In the meantime, countries continuedto prosecute international crimes committed on their territories5 or elsewhereunder the principle of universal jurisdiction.6 Furthermore, in July 1998, theRome Statute set up the International Criminal Court.7 Yet, all these effortsfailed to stop atrocities in Sudan, the Democratic Republic of Congo, Ugandaand Central African Republic.8

As it started to become evident that too many expectations had been builtaround prosecutions of gross human rights violations, particularly as far as theirimpact on truth, reconciliation and peace were concerned,9 a number of authorsstarted challenging the legal and moral foundation of the duty to prosecute.10

Amnesties and truth commissions such as those initiated in post-apartheid SouthAfrica were presented as the best alternative to the duty to prosecute and as themethod to deal better with the “never again” challenge.11

The challenge to the duty to prosecute and the debate on its alternatives havebrought an opportunity to revisit what the duties of states should be in face of gen-ocide and other gross human rights violations. After a long debate, the consensushas shifted from a search for alternatives to the duty to prosecute, to a search for itscomplements through a more integrated and victim-centred approach.12

Journal of Genocide Research (2007), 9(2),June, 275–295

ISSN 1462-3528 print; ISSN 1469-9494 online/07/020275-21 # 2007 Research Network in Genocide StudiesDOI: 10.1080/14623520701368685

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This article is a contribution to this debate. It examines four key rights ofvictims of gross human rights violations, as adopted as principles by the UnitedNations Commission on Human Rights (hereafter called Updated UN Principles),and analyses how they can contribute to transitional justice. These rights are: theright to justice, which corresponds to the state’s duty to prosecute; the right totruth, which corresponds to the state’s duty to search and inform the victimsand the community at large of the truth about the violations; the right to reparation,which corresponds to the state’s duty to guarantee reparation to the victims andtheir beneficiaries; and, finally, the right to be guaranteed non-recurrence of viola-tions, which corresponds to the state’s duty to take all measures necessary to guar-antee a non-recurrence.13

This article will first demonstrate that these duties are well established andrecognized in international law. Second, it will explain how these duties are inter-dependent and complementary and, therefore, to be effective, how they should beadopted as a package rather than selectively and competitively. Finally, it willstress the need for setting up an organ or institution to monitor the implementationof those rights.

The duty to prosecute

A number of authors have disputed the existence of the duty to prosecute. Some haveargued that prosecution is an option rather than a duty;14 others, without denying itsexistence, have argued against its existence as a general rule15 or its effectiveness intransitional justice.16 While recognizing the merits of criticisms of the existence ofsuch a duty, it is worth highlighting that recent developments in international lawand practice, including international jurisprudence and state practice, prove unequi-vocally the existence of the duty to prosecute.

Treaty law and the duty to prosecute

Under treaty law the duty to prosecute finds its foundation in the 1949 GenevaConventions,17 the 1948 Genocide Convention,18 the 1984 Torture Convention,19

and in numerous international and regional human rights conventions. The fourGeneva Conventions, to which 194 states have acceded and which enjoy universalacceptance, provide that

Each High Contracting Party shall be under the obligation to search for persons alleged tohave committed, or to have ordered to be committed, such grave breaches, and shall bringsuch persons, regardless of their nationality, before its own courts. It may also, if itprefers, and in accordance with the provisions of its own legislation, hand such personsover for trial to another High Contracting Party concerned, provided such High ContractingParty has made out a “prima facie” case.20

In addition to the Geneva Conventions, the duty to prosecute war crimes is alsorecognized by a significant number of treaties, international instruments andnational laws.21

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Three questions have been raised concerning the scope of the duty to prosecuteunder the Geneva Conventions and other treaties providing for the duty to prose-cute. First, there is a debate on whether this obligation applies to both internationaland non-international armed conflicts. Second, it is debated whether the GenevaConventions not only accept but also encourage amnesty since Article 6(5)of the 1977 Protocol II Additional to the Geneva Conventions22 states that “atthe end of hostilities, the authorities in power shall endeavor to grant the broadestpossible amnesty to persons who have participated in the armed conflict, orthose deprived of their liberty for reasons related to the armed conflict, whetherthey are interned or detained.” Finally, it is debated whether the duty to prosecuteapplies to all breaches of international humanitarian law or only to some limitedbreaches.

Starting with the last question, each of the four Geneva Conventions of 1949contains a “grave breaches” provision, specifying particular breaches of theConvention for which the High Contracting Parties have a duty to prosecutethose responsible.23 The specific “grave breaches” included in the Geneva Con-ventions are “willful killing, torture or inhuman treatment, including biologicalexperiments, willfully causing great suffering or serious injury to body orhealth, and extensive destruction and appropriation of property, not justified bymilitary necessity and carried out unlawfully and wantonly.”24

On the question of the application of the duty to prosecute in internationalversus non-international armed conflicts, for a long time the consensus favouredlimiting the duty to prosecute to the context of international armed conflict.25

Recent developments in state practice and international law, however, nowsupport the view that the “grave breach system” applies regardless of whetherthe armed conflict is international or non-international.26

As far as amnesty for “grave breaches” of the Geneva Conventions is con-cerned, it is true that courts in South Africa, Chile and Peru have used Article6(5) of the 1977 Protocol II to find that amnesties, including those granted by mili-tary or military-dominated governments for murders, disappearances, and otherserious crimes, are consistent with international law.27 The interpretation ofthese national courts which led some to understand Article 6(5) as encouragingthe broader use of amnesty28 seems, however, to have missed the point. Underinternational law, it is well established that this article may not be “invoked infavor of impunity of war criminals, since it only applied to prosecution for thesole participation in hostilities.”29 In other words, amnesty may apply to violationsof jus ad bellum but not to violations of jus in bello.

The fact that in some extreme, exceptional and temporal cases, such as the onementioned above, the recourse to amnesty could be accepted should not be under-stood as a denial of the general duty to prosecute.30 Amnesty is an exception to theprinciple of the duty to prosecute and does not necessarily mean impunity.31 Thishas been confirmed in the Congo v Belgium case, where the ICJ reaffirmed that“the immunity from jurisdiction enjoyed by incumbent Ministers for ForeignAffairs does not mean that they enjoy impunity in respect of any crimes theymight have committed, irrespective of their gravity.”32

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The duty to prosecute is also recognized by the Genocide Convention. ThisConvention, which is widely ratified,33 requires its Contracting Parties “toenact, in accordance with their respective constitutions, the necessary legislationto give effect to the provisions of the present Convention, and, in particular, toprovide effective penalties for persons guilty of genocide or any of the otheracts . . .” (Art. 5) of “conspiracy to commit genocide; direct and public incitementto commit genocide; attempt to commit genocide and complicity in genocide”(Art. 3).

As far as the Torture Convention is concerned, it requires each of its 143 con-tracting parties34 to “ensure that all acts of torture are offences under its criminallaw” (Art. 4(1)) and to “make these offences punishable by appropriate penaltieswhich take into account their grave nature” (Art. 4(2)). Although this conventiondoes not specifically forbid amnesty for acts of torture, Articles 5 and 7, reflectingthe principle aut dedere aut judicare,35 demonstrate that its purpose is to leave noroom for impunity for acts of torture. The recent Pinochet case, in which it wasdecided that amnesty cannot hinder the implementation of the Torture Conven-tion,36 and the Committee against Torture (the body set up to monitor compliancewith the Convention), which has repeatedly made clear that amnesty laws are inviolation of the provisions of the Torture Convention,37 confirm that amnesty isforbidden by the Torture Convention.

International and regional human rights conventions such as the 1966International Covenant on Civil and Political Rights, the 1950 European Conven-tion for the Protection of Human Rights and Fundamental Freedoms, the 1969American Convention on Human Rights and the 1981 African Charter onHuman and Peoples’ Rights are silent about the duty to prosecute violations ofthe rights therein. A number of authors have, however, found the duty to prosecutein the general wording of these conventions and in their interpretation by theauthoritative bodies created to monitor their enforcement.38 The UN HumanRights Committee has, for example, interpreted Article 2(1) of the CCPR, requir-ing each State Party to “undertake to respect and to ensure to all individuals withinits territory and subject to its jurisdiction the rights recognized” therein, as imply-ing the duty to prosecute violators.39 The European Court of Human Rights hasalso interpreted Article 13 of the European Convention, guaranteeing the “rightto remedy,” as including the obligation to investigate and prosecute.40 TheInter-American Commission on Human Rights and the Inter-American Court ofHuman Rights have strongly emphasized that the “right to remedy” provided inArticle 1 of the American Convention includes the duty to investigate humanrights violations, prosecute those responsible and impose punishment on thoseidentified as responsible.41

Customary international law and the duty to prosecute

In the absence of a specific treaty on crimes against humanity, the latter find theirsources mainly in international customary law. Introduced for the first time ininternational law by the Charter of the Nuremberg War Crimes Tribunal in

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1945, crimes against humanity have evolved as a pure creature of internationalcustomary law. Today it is even argued that these crimes have reached the levelof jus cogens alongside genocide, war crimes, crimes against peace (aggression),torture, piracy, slavery and slave-related practices.42 The existence of an inter-national customary duty to prosecute crimes against humanity is also supportedby a significant number of scholars43 as well as state and United Nations practice.

Illustrations of state practice in this regard include diplomatic, legislative andcourts practices. For example, on a diplomatic level, Chile recognized in 1984its international obligation to investigate disappearances and to bring to justicethose responsible for such acts.44 In 1989, the US government conditionedforeign aid to El Salvador on satisfactory investigation and prosecution of thoseresponsible for the killings of non-US nationals, and in 1990 the US Ambassadorto Guatemala was recalled to protest the lack of prosecutions in human rightscases.45 On a legislative level, most recently the Consolidated AppropriationsAct (adopted by the US Senate and House of Representatives in 2005) tied debtrelief for countries in which individuals indicted by the ICTR and the SCSL arecredibly alleged to be living to their cooperation with those courts, “includingthe surrender and transfer of indictees in a timely manner.”46 In Rwanda, thelaw organizing the prosecution of crimes of genocide and crimes against humanitydeclared among its objectives the need “to eradicate for good the culture ofimpunity.”47 Furthermore, a significant number of countries have adopted lawsrequiring their courts to prosecute crimes against humanity.48 At the nationalcourt level, states have prosecuted crimes against humanity committed on theirterritory or in foreign countries. In the first category can be included countriessuch as Iraq, where the Iraqi High Tribunal Trial Chamber ruled in the Al-Dujailcase that crimes against humanity, whether committed in time of peace or war,were already part of international customary law in 1982.49 In its very first trial,the Court of Bosnia and Herzegovina indicted Momcilo Mandic for crimesagainst humanity in violation of Article 172 of the Criminal Code.50 Nationalcourts have also undertaken trials for crimes against humanity committed inforeign countries. According to Amnesty International, this practice, known asuniversal jurisdiction,51 is accepted by national legislation in approximately 95states,52 including Belgium, Denmark, France, Germany, Israel, Senegal, Spain,Switzerland, and the United States.53 In most cases, however, the practice of uni-versal jurisdiction requires “a relationship or connection with the forum state.”54

Practices of international organizations have also been very influential in therecognition of the duty to prosecute as an international customary rule. These prac-tices have accelerated steeply in the last 15 years. From 1919 to 1990 there wereonly three investigative commissions, two ad hoc international criminal tribunals,and three mandated or authorized national prosecutions.55 Between 1990 and 2005there were three investigative commissions,56 two ad hoc tribunals, four mixed orhybrid tribunals, and for the first time a permanent International Criminal Courtwas set up.

Pursuant to the recommendations of the 1992 Yugoslavia Commission ofExperts and the 1994 Rwanda Commission of Experts, the Security Council

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reinforced the duty to prosecute by setting up, respectively, the InternationalCriminal Tribunal for the former Yugoslavia and the International Criminal Tri-bunal for Rwanda, as instruments to end impunity through prosecution.57 Further-more, as a recognition that the inability and unwillingness of the Sudanesegovernment to prosecute atrocities committed in Darfur undermines its duty toprosecute,58 the Security Council referred the situation in Darfur to the ICC.59

The Rome Statute of the International Criminal Court also recognizes the dutyto prosecute. In its preamble it stresses the determination of the contractingparties “to put an end to impunity for the perpetrators of these crimes and thusto contribute to the prevention of such crimes” and it defines its jurisdiction as cov-ering gross violations of human rights such as genocide, crimes against humanity,war crimes and crimes of aggression.60

Decisions of international criminal tribunals have also recognized the duty toprosecute and punish gross human rights violations. For example, in the Prosecu-tor v Furundija case, the ICTY ruled that “it is the mandate and the duty of theInternational Tribunal . . . to deter such crimes and to combat impunity.”61 Inthe Prosecutor v Erdemovic case, the same tribunal reaffirms the duty of inter-national criminal tribunals to thwart impunity.62 Also, the ICTR, in its sentencing,has several times insisted that it should be clear that “the penalties imposed onaccused persons found guilty by the Tribunal must be directed . . . [to showing]that the International community was no longer ready to tolerate serious violationsof International humanitarian law and human rights.”63

The duty to prosecute has also been recognized by the Inter-American Court ofHuman Rights and the European Court of Human Rights. In the groundbreakingVelasquez Rodriguez case, the former ruled that “States must . . . investigate,and punish any violation of the rights recognized by the Convention.”64 TheEuropean Court of Human Rights in Selmouni v France and Adsani v UnitedKingdom affirmed that Article 13 of the ECHR on effective remedies requiresstates to conduct a thorough and effective investigation capable of leading tothe identification and punishment of those responsible.65

The recognition of the duty to prosecute does not answer, however, the questionof whose duty it is to prosecute. Is it a state’s duty or the international commu-nity’s duty? If it is both the duty of national courts and international courts,there is then the problem of how to solve the conflict of concurrent jurisdiction.This issue has undergone an interesting development. In a world dominated bythe principle of national sovereignty, the priority or even the monopoly wasinitially given to national courts.66 Since the Second World War, however, afterit was realized that most gross human rights violation are committed on behalfof or with the complicity of a state, international courts were developed as a gen-uinely fair, effective and independent judiciary.67 Yet, with the setting up of theICTR and ICTY the primacy of international justice over national justice was opti-mized.68 The failure of these courts to take advantage of this primacy and deliverjustice that fits both international standards and national needs69 led to a newsystem of mixed or hybrid courts70 and justified even more the necessity of aninternational criminal court.71 The question of whose duty it is to prosecute

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gross violations of human rights was definitely answered by the Rome Statute ofthe International Criminal Court, by reinstalling the primacy of national courts andby endowing the ICC with the power to exercise its jurisdiction as a complementto national criminal jurisdiction.72

The duty to truth

The right to know the truth about the circumstances in which gross violations ofhuman rights took place has been recognized as an effective and fundamentalrule of international law.73 The source of this right has been identified in custom-ary international law, general principles of international law, national and inter-national judicial decisions and in a number of international treaties. Accordingto the Report of the Independent Expert to Update the Set of Principles toCombat Impunity, the recognition of this right is reflected in recent developmentsin international law and practice as an inalienable and imprescriptible right of thevictim.74 The right to truth has been mainly acknowledged in situations of grosshuman rights violations as a family’s right to know what happened to its lovedones and a society’s right to know the truth about the historical context,motives and circumstances in which such violations were committed.75

Although human rights treaties do not explicitly codify the duty to provide truthabout gross violations of human rights, Articles 32 and 33 of the 1977 AdditionalProtocol I to the 1949 Geneva Conventions recognize “the right of families toknow the fate of their relatives” who are missing or dead, whether the conflictis international or non-international.76 This rule is also contained in a significantnumber of national laws, official statements and reports of physical practice.77

Article 24(2) of the draft International Convention for the Protection of AllPersons from Enforced Disappearances provides also that “each victim has theright to know the truth regarding the circumstances of the enforced disappearance,the progress and results of the investigation and the fate of the disappeared person.Each State Party shall take appropriate measures in this regard.”78 The right toknow is also guaranteed under Article 19(2) of the Covenant on Civil and PoliticalRights, which recognizes the right to seek and receive information.

Customary international law, as reflected by the practice and opinio juris ofstates and other subjects of international law, provides a strong source of theright to know. In a significant number of countries, national laws and courtdecisions have recognized the right of victims to truth. Today more than 40countries in all regions of the world where gross violations of human rightshave been committed have established truth commissions.79 For example, inSierra Leone, in setting up the legal framework of the Truth Commission, theLome Peace Agreement described the commission as a forum for both thevictims and perpetrators of human rights violations to tell their story and foraddressing impunity.80 In South Africa, the 1995 Promotion of National Unityand Reconciliation Act stressed that establishing and making known the fate orwhereabouts of victims should be one of the main objectives of the Truth andReconciliation Commission.81 In July 2005, Colombia adopted a law recognizing

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the right to the truth for victims of human rights violations and crimes under inter-national law.82 Countries such as Argentina, Cuba, Mauritius, Mexico, Italy, Peru,Slovenia, Uruguay, Venezuela and Bolivia have also expressed the view that theright to the truth is an autonomous right in international law.83 In addition tonational laws, national courts have also issued decisions recognizing the right toknow the truth. This is the case, for example, in the “Srebrenica cases” wherethe Human Rights Chamber of Bosnia and Herzegovina found that the failureof Republika Srpska authorities “to inform the applicants about the truth ofthe fate and whereabouts of their missing loved ones” violated Article 3 of theEuropean Convention on Human Rights.84 Other examples in which nationalcourts have developed important jurisprudence recognizing and affirming theright to know the truth of victims of gross human rights violations include the con-stitutional courts of Colombia85 and Peru86 and the federal criminal courts ofArgentina.87

Regional human rights commissions and courts have also recognized victims’right to know the truth. The African Commission on Human and Peoples’Rights has recognized the right to the truth as a constitutive part of the right toa remedy.88 In Amnesty International v Sudan, the Commission has held that“refusing to inform the family if and where the individual is being held isinhuman treatment of both the detainee and the family concerned.”89 The Inter-American Commission on Human Rights has recognized that “family membersof the victims are entitled to information as to what happened to their relatives.”90

The Inter-American Court on Human Rights has crystallized even more the exist-ence of this right by stressing that “the right to truth has been sufficiently devel-oped in the international human rights law.”91 The European Court of HumanRights has also recognized the state’s duty to inform families of the truth on thewhereabouts of their members disappeared while in police custody.92

At the UN, the right to truth that was initially referred to solely within thecontext of enforced disappearances has been gradually extended to other seriousviolations of human rights. The Human Rights Committee has, for example,urged Guatemala, a State Party to the International Covenant on Civil and PoliticalRights, to guarantee that the victims of human rights violations know the truthwith respect to the acts committed and know who the perpetrators of such actswere.93 The UN General Assembly, Security Council and the Secretary-Generalhave also made reference in their resolutions and reports to the existence of theright to truth.94

The South African experience in which truth was traded in exchange foramnesty has brought some to see the above mentioned trend to ban nationalamnesties as the end of truth and reconciliation commissions and therefore athreat to the right to truth.95 Obviously, this argument exaggerates the linkbetween amnesty and truth. There is surely a link between them but any attemptto see amnesty as a necessary precondition for the fulfilment of the duty to truthrisks being contradicted by the experience of Latin America, South Africa,Rwanda, Sierra Leone and East Timor. In Latin America, the campaign to getrid of amnesty laws was motivated not only by the fact that they favoured impunity

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but also by the fact that they were used for “erasing, eliminating, and forgetting thepast in its entirety.”96 In the case of South Africa, although many have agreed thatamnesty was effective, they have also acknowledged that it contributed to narrow-ing the truth about apartheid. On the one hand, the fact that both amnesty and tes-timonies were individual contributed to making obscure “the systemic character ofthe apartheid system.”97 On the other hand, the fact that leaders like PresidentP. W. Botha, F. W. de Klerk and Mongosuthu Buthelizi, as well as their innercircles, did not feel the necessity to trade their truth for amnesty challenges thepower of amnesty as an incentive for truth-telling. In Rwanda, instead of callingfor amnesty, the government has combined the classic criminal justice systemwith participatory justice known as “gacaca.” This system promotes truth-telling while focusing on ending impunity.

Finally, the cases of Sierra Leone and East Timor prove that truth commissionsdo not necessarily require amnesty in order to guarantee their success in bringingtruth to victims and the community as a whole. The fact that in both countries truthand reconciliation commissions and the special courts have successfully workedalongside each other98 offers a hope that the duty to prosecute and the right totruth can be simultaneously achieved. Such an approach ends a long debatebetween supporters of prosecution and those of truth commissions on which ofthe two institutions’ truths is to be preferred.99 As Mendez has correctly put it“[t]he right to truth should not be thought of as an alternative to the obligationto investigate, prosecute and punish perpetrators. Nor should it be seen as avalid substitute for the state’s obligation to compensate victims.”100 As it hasbeen well defined in laws creating the truth and reconciliation commissions andthose creating the criminal tribunals in Sierra Leone and in East Timor, truthand reconciliation commissions search for the truth leading to reconciliationwhile courts look for truth leading to a proper and effective criminal verdict.101

The duty of reparation

The UN Basic Principles for the Protection and Promotion of Human Rightsthrough Action to Combat Impunity states that “any human rights violationgives rise to a right to reparation on the part of the victim or his or her benefici-aries, implying a duty on the part of the State to make reparation and the possibilityfor the victim to seek redress from the perpetrator.”102 This principle finds itssources in treaty law, customary international law and general principle of law.

In treaty law, the right to reparation is recognized in Article 2 of the Inter-national Covenant on Civil and Political Rights,103 Article 6 of the InternationalConvention on the Elimination of All Forms of Racial Discrimination,104

Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrad-ing Treatment or Punishment,105 Article 39 of the Convention on the Rights of theChild,106 Article 3 of the Hague Convention respecting the Laws and Customs ofWar on Land of 18 October 1907 (Convention IV),107 Article 91 of the ProtocolAdditional to the Geneva Conventions of 12 August 1949, and relating to the Pro-tection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977,108

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and Articles 68 and 75 of the Rome Statute of the International Criminal Court.109

Regional human rights treaties, particularly Article 7 of the African Charter onHuman and Peoples’ Rights,110 Article 25 of the American Conventionon Human Rights,111 and Article 13 of the Convention for the Protection ofHuman Rights and Fundamental Freedoms,112 also guarantee the right toreparation.

The customary international law status of the right to reparation is evidenced bywidespread state and UN practice. First, the Universal Declaration of HumanRights, the content of which has now reached the level of customary internationallaw,113 provides in Article 8 that “everyone has the right to an effective remedy bythe competent national tribunals for acts violating the fundamental rights grantedhim by the constitution or by law.”114 The UN has recognized this right also in anumber of its resolutions and documents, including the Declaration of BasicPrinciples of Justice for Victims of Crime and Abuse of Power,115 the UpdatedSet of Principles for the Protection and Promotion of Human Rights throughAction to Combat Impunity116 and the Basic Principles and Guidelines on theRight to a Remedy and Reparation for Victims of Gross Violations of InternationalHuman Rights Law and Serious Violations of International Humanitarian Law.117

State practice recognizing the right to reparation includes reparation programmesin Chile,118 Argentina,119 Brazil,120 El Salvador,121 Haiti,122 South Africa,123

Malawi,124 United States,125 Germany,126 Benin,127 East Timor,128 and SierraLeone.129

Treaties and customary law on reparation recognize that in order to be full andeffective, reparation has to include restitution, compensation, rehabilitationand satisfaction.130 Reparation has been individual or collective and it has comeabout through judicial or administrative approaches.131 With the failure,however, of judicial reparations to deal with mass reparation132 and to meet theultimate goal of reparations in the context of transitional democracy, which isto restore the dignity of the victims and to reintegrate them into society as equalcitizens,133 recent practices have favoured administrative approaches to reparationthrough reparation programmes. In Sierra Leone, for example, reparations pro-grammes proposed by the commission largely focused “on the rehabilitation ofthe victims through the distribution of service packages and symbolic measureswhich acknowledge the past and the harm done to victims and gives victims theopportunity to move on.”134 In East Timor, the reparations scheme aimed at assist-ing “vulnerable victims of gross human rights violations, within the scope of themandate of the Commission, by repairing, as far as possible, the damage to theirlives caused by the violations through the delivery of social services and symbolicand collective measures.”135

This trend does not, however, mean that the future of reparation for grosshuman rights violation lies in administrative reparation only. Both administrativeand judicial reparation are not exclusive and can still coexist and complement eachother.136 Administrative reparations are mostly preferred when reparations areguaranteed in the context of state responsibility, as it is in the above mentionedcases of East Timor and Sierra Leone. Judicial reparation is preferred when

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liability is assessed against the individual who committed the crime as part of hisor her punishment. This is in the case innovatively introduced in internationalcriminal law137 by Article 75(2) of the Rome Statute, providing that “the Courtmay make an order directly against a convicted person specifying appropriatereparations to, or in respect of, victims, including restitution, compensation andrehabilitation,” and Article 79 establishing a trust fund for reparation.

The duty to prevent

The duty of states to prevent human rights violations and guarantee non-recurrence of such violations is at the foundation of the UN Charter and positivehuman rights. As enshrined in the UN Charter, saving “succeeding generationsfrom the scourge of war . . . and . . . reaffirm[ing] faith in fundamental humanrights, in the dignity and worth of the human person”138 has been and shouldremain the ultimate goal of every member of the UN.139 This duty was recentlyreiterated in Resolution 1366 of the Security Council, “stressing the fundamentalresponsibility of Member States to prevent and end impunity for genocide, crimesagainst humanity and war crimes”140 and stressing the Security Council’s“willingness to consider preventive deployment”141 in case of gross humanrights violations. The Security Council has also emphasized that preventing therecurrence of genocide and other gross human rights violations is a shared dutybetween national governments, the UN and the international community.

This duty was more specifically enshrined in the 1948 Convention on thePrevention and Punishment of the Crime of Genocide in which its contractingparties have confirmed “that genocide, whether committed in time of peace orin time of war, is a crime under international law which they undertake toprevent and to punish.”142 As Orentlicher has highlighted, “while the travauxpreparatoires on the Genocide convention suggest that one impetus behind thisconvention was a desire to condemn Second World War atrocities, the draftingrecords indicate that the overriding purpose was to prevent a recurrence ofatrocities committed during this war.”143 The 1984 Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishmentalso imposes on its member states the duty to prevent.144 In Article 2(1), the Con-vention against Torture obliges each State Party to “take effective legislative,administrative, judicial or other measures to prevent acts of torture in any territoryunder its jurisdiction,” and in Article 16(1) it extends this prevention to “other actsof cruel, inhuman or degrading treatment or punishment which do not amount totorture.” The duty to prevent is also recognized by the four 1949 Geneva Conven-tions and their two Additional Protocols. As provided in Article 87(1) of the Pro-tocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977,“[t]he High Contracting Parties and the Parties to the conflict shall require militarycommanders, with respect to members of the armed forces under their commandand other persons under their control, to prevent and, where necessary, to suppressand to report to competent authorities breaches of the Conventions and of this

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Protocol.” This duty was also reiterated by the Rome Statute of the InternationalCriminal Court which, in Article 28, holds criminally responsible military com-manders and other superiors for their failure to take all necessary and reasonablemeasures within their power to prevent or repress the commission of crimes withinthe jurisdiction of the Court by their subordinates.

At a regional level, the European Convention for the Prevention of Torture andInhuman or Degrading Treatment or Punishment145 and the Inter-American Con-vention to Prevent and Punish Torture146 stress their member states’ duty toprevent torture and define specific measures to monitor the implementation ofthis duty. Furthermore, in its famous Velasquez Rodriguez case, brought by theInter-American Commission on Human Rights against the government of Hon-duras, the Inter-American Court of Human Rights has interpreted Article 1(1)of the American Convention on Human Rights to impose on each State Party a“legal duty to take reasonable steps to prevent human rights violations.”147

In recognition of the international duty to prevent genocide and other grosshuman rights violations, the UN Secretary-General has appointed a SpecialAdviser on the Prevention of Genocide. As outlined by the UN Secretary-General, the mandate of the Special Advisor is to

(a) collect existing information, in particular from within the United Nations system, onmassive and serious violations of human rights and international humanitarian law ofethnic and racial origin that, if not prevented or halted, might lead to genocide; (b) act asa mechanism of early warning to the Secretary-General, and through him to the SecurityCouncil, by bringing to their attention potential situations that could result in genocide;(c) make recommendations to the Security Council, through the Secretary-General, onactions to prevent or halt genocide; (d) liaise with the United Nations system on activitiesfor the prevention of genocide and work to enhance the United Nations capacity toanalyze and manage information relating to genocide or related crimes.148

The failure to prevent gross human rights violations has drastic consequences. Theexperience of national and international failure to prevent such atrocities inRwanda and the former Yugoslavia has justified the need to set up mechanismsto prevent the occurrence but also the recurrence of such crimes. If BarbaraHarff’s conclusion that prior genocide and gross human rights violations aregood indicators of the recurrence of such atrocities is correct,149 special attentionis needed in monitoring countries that previously experienced genocide, crimesagainst humanity and other gross human rights violations. Among measures rec-ommended by the Report of Independent Experts to Update the Set of Principlesto Combat Impunity, there is the need to “undertake institutional reforms and othermeasures necessary to ensure respect of the rule of law, foster and sustain a cultureof respect for human rights, and restore or establish public trust in governmentinstitutions.”150

The duty to prevent results indirectly from the implementation of the duty toprosecute, duty to truth and the duty to repair, but it should also be the direct objec-tive behind constitutional and legal reforms, building a culture of human rights,lustration and democratization.

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An integrated and victim approach: the need for coordination

Accountability for gross human rights violations through prosecution, truth-telling, reparation and prevention has been one of the fastest growing fields ininternational law. Already in 1991, for some it was unrealistic to speak of theexistence of a duty to prosecute, duty to truth, or duties of reparation and preven-tion. Nino, for example, argued that there was no willingness of governing insti-tutions, i.e. states and international bodies, to enforce those duties. He went on toconclude that in the absence of this necessary criterion for the validity of any normof positive law, it was unrealistic to speak of the existence of such duties in inter-national law.151 From 1991 a significant step has been made. As explainedpreviously, these duties have been not only recognized in international instrumentsbut were also illustrated by international and state practice.

It is worth acknowledging, however, that the developments that led to the rec-ognition of the four mentioned duties were rather scattered, uncoordinated andsometimes competitive. As a result, countries were under no obligation to adoptthem together as a set. In Rwanda and the former Yugoslavia, for example, theemphasis on the duty to prosecute was neither accompanied by the setting up oftruth commissions152 nor by solid programmes on reparation. In South Africa,emphasis was put on the duty to truth but was not accompanied by the enforcementof the duty to prosecute and the duty of reparation.153 This selectivity and prior-itization of the rights of the victims has led to half-baked results. As AlexBoraine put it, referring to the TRC in South Africa, “the wounds incurred inthe long and bitter period of repression and resistance are too deep to be trivializedby imagining that a single initiative can on its own bring about a peaceful, stable,and restored society.”154 In the case of Rwanda, after concluding that the system ofcriminal justice as conducted by the ICTR and domestic courts is unlikely to leadto peace and reconciliation, Drumbl finds the only hope for Rwanda in setting up adiversified approach that could include:

trials for notorious killers and the leaders of the genocide as well as RPF human rights viola-tions; gacaca-based re-integrative shaming for all other offenders; a truth commission able toobtain, if not compel, testimony from Rwandans as well as international officials; the cre-ation of an international fund to administer compensation to the victims of the genocideand of subsequent RPF violence; and elite accommodation of Hutu and Tutsi in multiethnicgovernance.155

In the case of the former Yugoslavia it was argued that the ICTY can never addressall of the information gaps about what happened156 or the issue of victim repara-tion.157 Yet, until now, no truth and reconciliation commission or reparation pro-grammes have been set up in the former Yugoslavian states. Surely in these statesa number of institutional reforms did take place but there is little evidence to showthat most were motivated by the need for prevention of the reoccurrence of vio-lence and gross violations of human rights.

With the beginning of the year 2000, however, a solid development recognizingthe interdependence and complementarity of the duty to prosecute, duty to truth,

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duty of reparation and duty to prevent was witnessed. This development was illus-trated by international practice including, for example, the setting up of both truthand reconciliation commissions and judicial systems to prosecute internationalcrimes in Sierra Leone and East Timor, the recognition of the duty of reparationin East Timor, Sierra Leone and in the Rome Statute of International CriminalCourt, as well as the setting up of the Trust Fund for Victims by the InternationalCriminal Court. There was also the recognition by the UN of its duty to preventand the setting up of the Office of the Special Advisor on the Prevention ofGenocide. Unfortunately, countries such as South Africa, Rwanda and theformer Yugoslavian countries have been slow in taking advantage of thesedevelopments.

The recognition of interdependence, complementarity and need to adopt thesefour duties as indivisible rights of the victims is, however, unlikely to bear effec-tive results as long as it is not accompanied by effective mechanisms of implemen-tation. The UN has been very effective in this regard in the case of Sierra Leone,East Timor and in the work of office of the Special Advisor on the Prevention ofGenocide but more still needs to be done, for example, the creation of an insti-tution or organ specializing in accountability for gross human rights violation.

Such an organ would compile experiences learned to date in the developmentand implementation of the four categories of duties and serve as advisor to theUN and to countries to which fall these duties. It could also serve, if necessary,as a coordinating and reporting organ in the implementation of these duties. Inthis last case, countries, particularly those which have experienced genocideand gross human rights violations, could report to this organ and the lattercould draw recommendations from their reports. This mandate could beassumed, for example, by the Office of the Special Advisor on the Prevention ofGenocide if its mandate is expanded beyond the duty to prevent, to include theduty to prosecute, duty to truth and duty of reparation. Such an office wouldalso need to benefit from the Security Council’s powers under Chapter VII ofthe UN Charter.

Conclusion

The duties to prosecute, towards truth, of reparation and to prevent, as well estab-lished rules of international law, provide for a solid platform for an integrated andvictim-based approach to an effective method of accountability for genocide andother gross human rights violations. Although these duties have developed in ascattered and uncoordinated context, recent developments show that they arebeing recognized as inalienable, indivisible and interdependent. The JointReport on a Set of Principles for the Protection and Promotion of HumanRights through Action to Combat Impunity158 and its update by Orentlicher area significant step in this direction. Although these documents are not binding,they reflect “recent developments in international law and practice, includinginternational jurisprudence and State practice.”159 The cases of South Africa,Rwanda, the former Yugoslavia, Sierra Leone and East Timor illustrate that the

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complementarity and interdependence stressed in this article are not just theoreti-cal but reflect practical realities. It is not, however, enough to advocate for theadoption of the duties to prosecute, towards truth, of reparation and to preventas a framework for an integrated and victim-based approach to transitionaljustice. It is also necessary to set up an organ or institution to monitor theimplementation of those duties and to advise on their implementation.

Notes and References

1 See Michael P. Scharf, “Conceptualizing violence: present and future developments in international law:Panel II: adjudicating violence: problems confronting international law and policy on war crimes andcrimes against humanity: The Prosecutor v Dusko Tadic: an appraisal of the first international war crimestrial since Nuremberg,” Alb. Law Review, Vol 60, 1997, p 861; Theodor Meron, “Centennial essay: reflec-tions on the prosecution of war crimes by international tribunals,” American Journal of International Law,Vol 100, 2006, p 551.

2 See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, UN Doc S/RES/827 (May 25, 1993); and Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955,UN Doc S/RES/955 (November 8, 1994).

3 See Patricia M. Wald, “Symposium: The Nuremberg Trials: a reappraisal and their legacy: running the trialof the century: the Nuremberg legacy,” Cardozo Law Review, Vol 27, 2006, p 1559; Laura A. Dickson, “Thepromise of hybrid courts,” American Journal of International Law, Vol 97, 2003, p 295.

4 See the Statute of the Iraqi Special Tribunal, http://www.cpa-iraq.org/human_rights/Statute.htm (accessedDecember 21, 2006); see also Agreement between the United Nations and the Lebanese Republic on theEstablishment of a Special Tribunal for Lebanon, http://daccessdds.un.org/doc/UNDOC/GEN/N06/617/97/PDF/N0661797.pdf?OpenElement (accessed December 26, 2006).

5 See the Organic Law No 40/01/2001 Setting up “Gacaca jurisdiction” and Organizing Prosecutions forOffences Constituting the Crime of Genocide or Crimes against Humanity Committed between October1, 1990 and December 31, 1994, http://www.wihl.nl (accessed December 12, 2006); in Bosnia andHerzegovina see the Law on the Court of Bosnia and Herzegovina, http://www.sudbih.govba/files/docs/zakoni/en/Zakon_o_sudu_-_eng.pdf (accessed December 26, 2006).

6 In Belgium see e.g. Linda Keller, “Belgian jury to decide case concerning Rwandan genocide,” AmericanSociety of International Law Insights, http://www.asil.org/insights/insigh72.htm (accessed December27, 2006).

7 See Rome Statute of the International Criminal Court, http://www.un.org/law/icc/statute/romefra.htm(accessed December 27, 2006).

8 For more details on situations and cases before the ICC, see http://www.icc-cpi.int/cases.html (accessedDecember 26, 2006).

9 See Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and MassViolence (Boston: Beacon Press, 1998), p 49: “I do not think that it wise to claim that international anddomestic prosecutions for war crimes and other horrors themselves create an international moral andlegal order, prevent genocides, or forge the political transformation of previously oppressed regimes.”

10 For the debate on this challenge see Dwight G. Newman, “The Rome Statute, some reservations concerningamnesties, and a distributive problem,” American University International Law Review, Vol 20, 2005, p 293.

11 See Eric Blumenson, “The challenge of a global standard of justice: peace, pluralism, and punishment at theInternational Criminal Court,” Columbia Journal of Transnational Law, Vol 44, 2006, p 801: “Such insti-tutions as the South African TRC, with its amnesties conditioned on confession, should also be recognizedas a human rights advance, and in certain circumstances a necessary and morally acceptable option for theICC.” See also Celina Schocken, “Note, the Special Court for Sierra Leone: overview and recommen-dations,” Berkeley Journal International Law, Vol 20, 2002, p 458 (referring to the South African TRC as“one of the best models” of a truth commission); Kim L. Robinson, “Book note, out of America: a blackman confronts Africa,” Buffalo Human Rights Law Review, Vol 5, 1999, pp 301–302 (“[t]he TRC undoubt-edly is a hopeful development in Africa that will be a model for countries throughout the continent.”).

12 See Luis Moreno-Ocampo, “Integrating the work of the ICC into local justice initiatives,” Keynote Address:Symposium: International Criminal Tribunals in the 21st Century, American University International LawReview, Vol 21, 2006, p 497: “We need your support to achieve this: scholars and others must help todevelop standards, and engage other actors to think not just about the elements of crimes or cross-examin-ation, but also about an integrated approach.” See also M. Cherif Bassiouni, “The perennial conflict

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between international criminal justice and realpolitik,” Georgia State University Law Review, Vol 22, 2006,p 541.

13 UN Doc E/CN.4/2005/102/Add.1, February 18, 2005, http://daccessdds.un.org/doc/UNDOC/GEN/G05/111/03/PDF/G0511103.pdf?OpenElement (accessed November 26, 2006).

14 Carlos S. Nino, “The duty to punish past abuses of human rights put into context: the case of Argentina,”Yale Law Journal, Vol 100, 1991, p 2619 (he argues that prosecution should be considered in a case bycase basis taking into consideration factual context and the complex causal chains leading to the violationof human rights).

15 See Michael P. Scharf, “The amnesty exception to the jurisdiction of the International Criminal Court,”Cornell International Law Journal, Vol 32, 1999, p 507: “Since there is no international duty to prosecutecrimes against humanity, or war crimes in an internal conflict, an amnesty for peace deal would not violateinternational law.”

16 Minow, Between Vengeance and Forgiveness, op cit, pp 25–51.17 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field, August 12, 1949, 6 U.S.T. 311, T.I.A.S. No 3362, U.N.T.S., Vol 75, p 31 [hereinafter Geneva Con-vention I]; Art. 51 of the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick,and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, T.I.A.S. No 3363,U.N.T.S., Vol 75, p 85 [hereinafter Geneva Convention II]; Art. 130 of the Geneva Convention Relative tothe Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, T.I.A.S. No 3364, U.N.T.S., Vol 75, p135 [hereinafter Geneva Convention III]; and Art. 147 of the Geneva Convention Relative to the Protectionof Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No 3365, U.N.T.S., Vol 75, p287 [hereinafter Geneva Convention IV].

18 Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, U.N.T.S., Vol78, p 277.

19 Convention against Torture and other Cruel, Inhuman or Degrading Treatment. UN DocA/39/51/1984. Thenumber of parties to the Torture Convention as at September 2006, www.unis.unvienna.org/unis/pressrels/2006/lt4399.html (accessed December 28, 2006).

20 See Art. 49 of Geneva Convention I, Art. 50 Geneva Convention II, Art. 129 of the Geneva Convention III,and Art. 146 of Geneva Convention IV.

21 For details on international and national instruments on the duty to prosecute war crimes see Jean-MarieHenckaerts and Louise Doswald-Beck, eds, Customary International Humanitarian Law (Cambridge: Cam-bridge University Press, 2005), Vol II: Practice, Part 2, pp 3941–4016.

22 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection ofVictims of Non-International Armed Conflicts (Protocol II), June 8, 1977, http://www.icrc.org/ihl.nsf/WebART/475-760010?OpenDocument (accessed January 3, 2007).

23 See Prosecutor v Tadic, IT-94-1-T, Decision on the Defense Motion for Interlocutory Appeal on Jurisdic-tion, October 2, 1995, para 79, http://www.un.org/icty/tadic/appeal/decision-e/51002.htm.

24 Art. 50, Geneva Convention I; Art. 51, Geneva Convention II; Art. 130, Geneva Convention II; and Art. 147,Geneva Convention IV.

25 Michael Scharf, “The letter of the law: the scope of the international legal obligation to prosecute humanrights crimes,” Law and Contemporary Problems, Vol 59, 1996, p 4; Angelo Gitti, “Impunity under nationallaw and accountability under international human rights law: has the time of a duty to prosecute come?,”Italian Year Book of International Law, Vol 9, 1999, p 64.

26 See Prosecutor v Tadic, IT-94-1-T, para 83; Art. 4 of the Statute of International Criminal Tribunal forRwanda, http://69.94.11.53/ENGLISH/basicdocs/statute.html; Art. 8 of the Rome Statute of the Inter-national Criminal Court, http://www.un.org/law/icc/statute/romefra.htm; Commission on HumanRights, Resolution 1999/1, para 2, UN Doc E/CN.4/RES/1999/1 (Situation of Human Rights in SierraLeone).

27 See Naomi Roht-Arriaza, “Combating impunity: some thoughts on the way forward,” Law and Contempor-ary Problems, Vol 59, 1996, p 93.

28 Newman, “The Rome Statute,” op cit; Mahnoush H. Arsanjani, “The International Criminal Court andnational amnesty laws,” American Society of International Law Proceedings, Vol 93, 1999, p 65.

29 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, op cit, p 4043; see also Letterfrom Dr. Toni Pfanner, Head of the Legal Division, ICRC Headquarters, Geneva, to Naomi Roht-Arriaza.

30 Amnesty can always be challenged in national courts and international fora: see e.g. Art. 10 of the Statutecreating the Sierra Leone Court, January 16, 2002, http://www.sc-sl.org/scsl-statute.html, which states:“An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of thecrimes referred to in Articles 2 and 4 of the present Statute shall not be a bar to prosecution.”

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31 See Michael P. Scharf, “The amnesty exception to the jurisdiction of the International Criminal Court,”Cornell International Law Journal, Vol 32, 1999, p 512 (“Amnesty is not equivalent to impunity”).

32 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Summary of Judgment ofFebruary 14, 2002, http://www.icj-cij.org/icjwww/ipresscom/ipress2002/ipresscom2002-04bis_cobe_20020214.htm (accessed December 2006).

33 As of November 1, 2006, there were 41 signatories and 140 parties.34 San Marino was the 143rd State Party to CAT: see http://www.ohchr.org/english/bodies/cat/.35 For the discussion on this principle see Cherif Bassiouni and Edward Wise, Aud Dedere Aut Judicare. The

Duty to Extradite or Prosecute in International Law (Boston: Martinus Nijhoff, 1995), p 49.36 See Regina v Bartle and the Commissioner of Police for the Metropolis and Others; Ex Parte Pinochet;

Regina v Evans and Another and the Commissioner of Police for the Metropolis and Others; Ex Parte Pino-chet (On Appeal from a Decisional Court of the Queen’s Bench Division), http://www.trial-ch.org/fileadmin/user_upload/documents/trialwatch/pinochet_III.doc.

37 See e.g. UN Committee against Torture, Decision Concerning Communications 1/1988, 2/1988 and 3/1988(Argentina), 23/11/1989 (A/45/44), para 7.2; Concluding Observations of the Committee against Torture:Peru. 15/11/99 (A/55/44), para 59(g); Senegal, 09/07/96 (A/51/44), para 112; Senegal, 09/07/96 (A/51/44), para 112.

38 See Namoni Roth-Arriaza, “Sources in international treaties of an obligation to investigate, prosecute, andprovide redress,” in Naomi Roth-Arriaza, ed., Impunity and Human Rights in International Law and Prac-tice (New York: Oxford University Press, 1995), p 29; Gitti, “Impunity under national law,” op cit, p 70;Scharf, “The amnesty exception,” op cit.

39 General Comments under Art. 40, para 4 of the Covenant, Report of the Human Rights Committee, 37 UNGAOR Supp. (No 40); see also Roth-Arriaza, “Sources in international treaties,” op cit, p 29.

40 Case of Klass and others (F.R.G.), 28 European Court of Human Rights (Series A) (1978); see also com-ments of Roth-Arriaza, “Sources in international treaties,” op cit, p 34.

41 See Velasquez Rodriguez case, July 29, 1988, Inter-American Court of Human Rights (Series C), No 4, para166, http://www1.umn.edu/humanrts/iachr/b_11_12d.htm; Loayza Tamayo case, Reparations, November27, 1998, Inter-American Court of Human Rights (Series C), No 42, paras 170–171, http://www1.um-n.edu/humanrts/iachr/C/42-ing.html.

42 Cherif Bassiouni, Introduction to International Criminal Law (Ardsley: Transnational Publishers, 2003), pp173–174, Leila Nadya Sadat, “Exile, amnesty and international law,” University of Notre Dame Notre DameLaw Review, March 2006, p 81.

43 Scharf, “The amnesty exception,” op cit; M. Cherif Bassiouni, Crimes against Humanity in InternationalCriminal Law (Boston: Kluwer Law International, 1999), pp 82–88; Edelenbos, “Human rights violation:a duty to prosecute,” Leiden Journal of International Law, 1994, 7, p 21; D. Orentlicher, “Settling accounts:the duty to prosecute human rights violations of a prior regime,” Yale Law Journal, Vol 100, 1991, pp 2585,2593.

44 Human Rights Committee, 22nd Session, 529th meeting, Consideration of Reports Submitted by StatesParties Under Art. 40 of the Covenant (Chile), quoted in Roth-Arriaza, “Sources in international treaties,”op cit, p 42.

45 Human Rights Committee, 29th Session, 719th meeting, Consideration of Reports (El Salvador), quoted inRoth-Arriaza, “Sources in international treaties,” op cit, p 42.

46 Consolidated Appropriations Act 2005, War Crimes in Africa, s. 585(c) Public Law 108–447, 108th Con-gress, December 8, 2004, http://www.dsca.osd.mil/programs/LPA/2005/getdoc.cgi_dbname ¼ 108_cong_public_lawsanddocid ¼ f_publ447.108.pdf (accessed December 12, 2006).

47 See Preamble of the Organic Law No 40/01/2001 Setting up “Gacaca jurisdition” and Organizing Prosecu-tions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed betweenOctober 1, 1990 and December 31, 1994, http://www.wihl.nl (accessed December 12, 2006).

48 See e.g. Law No 2005 creating the Iraqi Higher Criminal Court, http://www.law.case.edu/saddamtrial/documents/IST_statute_unofficialenglish.pdf; the Belgian Law of June 16, 1993, Relative to the Repressionof Serious Violations of International Humanitarian Law, http://www.wihl.nl; Cambodian Law on theEstablishment of the Extraordinary Chambers, as amended, October 27, 2004 (NS/RKM/1004/006),http://www.cambodia.govkh/krt/pdfs/KR%20Law%20as%20amended%2027%20Oc-t%202004%20Eng.pdf); Statute of the Special Court for Sierra Leone, http://www.sc-sl.org/scsl-statute.html); Canadian Criminal Code, http://www.wihl.nl.

49 Case No 1/9 First/2005, http://www.law.case.edu/saddamtrial/documents/dujail_opinion_pt1.pdf(accessed December 20, 2006).

50 See Case X-KR-05/58, http://www.sudbih.govba/?opcija¼predmetiandid¼31andjezik¼e (accessedDecember 20, 2006).

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51 See Paul R. Dubinsky, “Human rights law meets private law harmonization: the coming conflict,” YaleJournal of International Law, Vol 30, 2005, p 211: “Universal jurisdiction refers to the circumstances inwhich a state can apply its law to conduct that takes place outside its borders and that lacks any connectionto the forum state.”

52 See Amnesty International, “Universal jurisdiction: the duty of states to enact and implement legislation,”September 2001, AI Index IOR 53/2001, http://web.amnesty.org/library/index/engior530092001?OpenDocument (accessed December 21, 2006).

53 For reference on specific cases for these countries see Dubinsky, “Human rights law meets private lawharmonization,” op cit, p 51.

54 See Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Democratic Republic of the Congo vBelgium, op cit, para 2; see Art. 7 of the 1985 Criminal Code of Canada 1985; ss. 9 and 11 of the AustralianWar Crimes Act of 1945, as amended in 1988; Art. 689-I of the Code of Criminal Procedure; s 6(1) and (9)and s. 7(2) of the German Criminal Code (Strafgesetzbuch) as interpreted by the German Federal SupremeCourt (Bundesgerichtshof).

55 See Bassiouni, Introduction to International Criminal Law, op cit, p 393.56 The 1992 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Inves-

tigate War Crimes and Other Violations of International Humanitarian Law in the Former Yugoslavia (1992Yugoslavia Commission of Experts); 1994 Independent Commission of Experts Established Pursuant toSecurity Council Resolution 935 (1994) to Investigate Grave Violations of International HumanitarianLaw in the Territory of Rwanda (the 1994 Rwanda Commission of Experts), and the International Commis-sion of Inquiry on Darfur Established Pursuant to Security Council Resolution 1564 (2004) to InvestigateReports of Violations of International Humanitarian Law and Human Rights Law in Darfur (the 2004Darfur Commission of Inquiry).

57 See preamble of the Statute of the ICTY and the Statute of the ICTR.58 See paras 586 and 588 of the Report of Darfur Commission of Inquiry, http://www.un.org/News/dh/

sudan/com_inq_darfur.pdf (accessed December 20, 2006).59 See Security Council Resolution 1593, March 31, 2005, UN Doc S/RES/1593 (2005).60 But see also Newman, “The Rome Statute,” op cit, arguing that the ICC is nuanced on this duty.61 Prosecutor v Furundija, IT-95-17/1-T, Judgment, December 10, 1998, para 288.62 Prosecutor v Erdemovi, IT-96-22-T, Sentencing Judgment, November 29, 1996, para 65.63 Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, Sentence, May 21, 1999, para 2; Prosecutor v

Serushago, ICTR-98-39-S, Sentence, February 5, 1999, para 20; Prosecutor v Akayesu, ICTR-96-4-T,Sentence, October 2, 1998, para 19; and Prosecutor v Kambanda, ICTR-97-23-S, Judgement and Sentence,September 4, 1998, para 28.

64 Velasquez Rodriguez case, op cit, para 166.65 See para 79 of Selmouni v France 25803/94 [1999] ECHR 66 (July 28, 1999), http://worldlii.org/eu/

cases/ECHR/1999/66.html (accessed December 20, 2006); see also para 38 of the Adsani v UnitedKingdom 35763/97 [2001] ECHR 761 (November 21, 2001), http://worldlii.org/eu/cases/ECHR/2001/761.html (accessed December 20, 2006).

66 See Bassiouni, Introduction to International Criminal Law, op cit, p 387.67 See Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International

Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001), pp 182–186.68 See Art. 8(2) of the Statute of the ICTR and Art. 9(2) of the Statute of the ICTY.69 See Sandra Coliver, “The contribution of the International Criminal Tribunal for the Former Yugoslavia to

reconciliation in Bosnia and Herzegovina,” in Dinah Shelton, ed., International Crimes, Peace, and HumanRights: The Role of the International Criminal Court (New York: Transnational Publishers, 2000), pp 19–31; Jean-Marie Kamatali, “From the ICTR to ICC: learning from the ICTR experience in bringing justice toRwandans,” New England Journal of International and Comparative Law, (2005) Vol 12, p 89.

70 See Ethel Higonnet, “Restructuring hybrid courts: local empowerment and national criminal justice reform”Yale Law School Student Scholarship Series, 2005.

71 See Bassiouni, Introduction to International Criminal Law, op cit, p 434.72 See Arts 1 and 17 of the Rome Statute.73 See Juan E. Mendez, “The right to truth,” in Christopher C. Joyner and Cherif Bassiouni, eds, Reining in

Impunity for International Crimes and Serious Violations of Fundamental Human Rights, Proceedings ofthe Siracusa Conference, September 17–21, 1998 (St Agnes: Eres, 1998), pp 256–257; Yasmin Naqvi,“The right to the truth in international law: fact or fiction?,” International Review of the Red Cross, Vol88, No 862, June 2006.

74 See UN Doc E/CN.4/2005/102/Add.1, op cit.

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75 See Douglass Cassel, “Lessons from the United Nations Truth Commission for El Salvador,” in Joyner andBassiouni, Reining in Impunity, op cit, p 227.

76 See 1949 Geneva Conventions, op cit.77 See Rule 117 in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, op cit, Vol I:

Rules, p 422.78 See UN Doc E/CN.4/2005/WG.22/WP.1/REV4, http://www.ohchr.org/english/issues/disappear/docs/

E.CN.4.2005.WG.22.WP.1.REV4.pdf.79 See Commission on Human Rights, Promotion and Protection of Human Rights, “Study on the right to the

truth, Report of the Office of the United Nations High Commissioner for Human Rights,” UN Doc E/CN.4/2006/91 of February 8, 2006, para 50.

80 Final Report of the Truth and Reconciliation Commission of Sierra Leone, Vol 1, Chapter 1, para 3, http://trcsierraleone.org/drwebsite/publish/v1c1.shtml (accessed December 22, 2006).

81 This act is at http://www.doj.govza/trc/legal/act9534.htm (accessed December 26, 2006).82 Law No 975 of July 25, 2005, quoted in Naqvi, “The right to the truth,” op cit, p 263.83 See Commission on Human Rights, Promotion and Protection of Human Rights, op cit, para 21.84 Decision of March 7, 2003, “Srebrenica cases,” Case Numbers CH/01/8365 et al., para 220(4).85 Constitutional Court of Colombia, Judgment of January 20, 2003, Case T-249/03 and C-228 of April 3,

2002, quoted in Commission on Human Rights, op cit.86 Constitutional Tribunal of Peru, Judgement of March 18, 2004, Case 2488-2002-HC/TC, quoted in

Commission on Human Rights, op cit.87 See Agreement of September 1, 2003 of the National Chamber for Federal Criminal and Correctional

Matters, Case Suarez Mason, Ro. 450 and Case Escuela Mecanica de la Armada, Rol. 761, quoted inCommission on Human Rights, op cit.

88 See African Union, African Commission on Human and Peoples’ Rights “Directives et Principes sur le Droita un Proces Equitable et a l’Assistance Judiciaire en Afrique,” DOC/OS(XXX)274, para C (b,3), 5, http://www.afrimap.org/english/images/treaty/file43662d79568b0.doc (accessed January 5, 2007).

89 Amnesty International and Others v Sudan, African Commission on Human Peoples’ Rights, Comm. No 48/90, 50/91, 52/91, 89/93 (1999), para 54, http://www1.umn.edu/humanrts/africa/comcases/48-90_50-91_52-91_89-93.html.

90 Inter-American Commission and Inter-American Court on Human Rights, Inter-American Yearbook onHuman Rights, 1986, p 308.

91 See Trujilo Oroza Reparations, Inter-American Court of Human Rights (Series C), No 92, 2002, para 115,translated and quoted in Juan E. Mendez and Janvier Mariezcurrena, “Book review: unspeakable truths,”Human Rights Quarterly, Vol 25, 2003, pp 237–256.

92 See inter alia Kurt v Turkey, Judgment of May 25, 1998, Application No 2427/94; Tas v Turkey, Judgmentof November 14, 2000, Application No 24396/94; Cyprus v Turkey, Judgment of May 10, 2001, ApplicationNo 25781/94; Aksoy v Turkey, Judgment of December 18, 1996, Application No 21987/93; and Kaya vTurkey, Judgment of March 28, 2000, Application No 22535/93; all available at http://worldlii.org/eu/cases/ECHR/ (accessed January 10, 2007).

93 Concluding Observations of the Human Rights Committee: Guatemala, 03/04/96, UN Doc CCPR/C/79/Add.63, para 25.

94 General Assembly Resolutions 3220 (XXIX), 33/173, 45/165, 47/132, 55/118, 57/105 and 57/161; SecurityCouncil Resolutions 1468 (2003), 1470 (2003) and 1606 (2005); for the Secretary-General, see ST/SGB/1999/13.

95 See e.g. Mashood A. Baderin, “Recent developments in the African regional human rights system,” HumanRights Law Review, Vol 5, 2005, pp 117–149.

96 Parada Cea y Otros v El Salvador, Case 10.480, Inter-American Court of Human Rights 1, OEA/ser.L./v./II.102, Doc6 (1999), quoted in Ronald Slye, “The legitimacy of amnesties under international law andgeneral principles of Anglo-American law: is a legitimate amnesty possible?,” Virginia Journal of Inter-national Law, Vol 43, 2002, p 173.

97 Hein Marais, South Africa: Limits to Change—The Political Economy of Transition (New York: Zed Books,2001), p 301.

98 See William A. Schabas, “The relationship between truth commissions and international courts: the case ofSierra Leone,” Human Rights Quarterly, Vol 25, 2003, p 1035; see also Final Report of the TRC of SierraLeone, op cit. For East Timor see the Commission for Reception, Truth and Reconciliation FinalReport, http://www.ictj.org/en/news/features/846.html (accessed December 26, 2006); see alsoSuzanne Katzenstein, “Hybrid tribunals: searching for justice in East Timor,” Harvard Human RightsJournal, Vol 16, 2003, p 245.

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99 In the Ellacuria case, the Inter-American Commission on Human Rights argued that the quality of truth thatcomes from a trial is to be preferred to that derived from a truth commission: in Slye, “The legitimacy ofamnesties,” op cit.

100 Mendez, “The right to truth,” op cit, p 257.101 Surely more steps are needed in defining a better collaboration between courts’ search for truth and the

TRC’s search for truth. For details on difficulties in collaboration between these two institutions in SierraLeone, see Schabas, “The relationship between truth commissions and international courts,” op cit.

102 See UN Doc E/CN.4/2005/102/Add.1, op cit, at principle 31; see also in more detail General Assembly,Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations ofInternational Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc A/60/509/Add.1.

103 Resolution 2200 A (XXI), annex.104 Resolution 2106 A (XX), annex.105 U.N.T.S., Vol 1465, No 24841.106 U.N.T.S., Vol 1577, No 27531.107 See Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and

1907 (New York: Oxford University Press, 1915).108 U.N.T.S., Vol 1125, No 17512.109 Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of

an International Criminal Court, Rome, June 15–July 17, 1998, Vol I: Final Documents, UN Doc E.02.I.5,section A.

110 U.N.T.S., Vol 1520, No 26363.111 U.N.T.S., Vol 1144, No 17955.112 U.N.T.S., Vol 213, No 2889.113 For a discussion about the Universal Declaration of Human Rights as customary international law, see Jack

Donnelly, “The United Nations adopts the Universal Declaration of Human Rights,” in Frank N. Magill, ed.,Great Events from History, Vol II (1992) (Passadena: Salem Press), pp 789, 792.

114 Resolution 217 A (III), http://www.un.org/Overview/rights.html (accessed January 12, 2007).115 Adopted by General Assembly Resolution 40/34 of November 29, 1985, http://www.unhchr.ch/html/

menu3/b/h_comp49.htm (accessed December 26, 2006).116 Adopted by General Assembly Resolution 40/34 of November 29, 1985, op cit.117 Ibid.118 For details see Elizabeth Lira, “The reparations policy for human rights violations in Chile,” in Pablo De

Greiff, ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006), pp 55–101.119 For details see Maria Jose Guembe, “Economic reparations for grave human rights violations: the Argenti-

nean experience,” in De Greiff, The Handbook of Reparations, op cit, pp 21–54.120 For details see Ignacio Cano and Patricia Salvao Ferreira, “The reparation program in Brazil,” in De Greiff,

The Handbook of Reparations, op cit, pp 102–153.121 For details see Alexander Segovia, “The reparations proposals of the truth commissions in El Salvador and

Haiti,” in De Greiff, The Handbook of Reparations, op cit, pp 154–175.122 Segovia, “The reparations proposals,” op cit.123 For details see Christopher J. Colvin, “Overview of the reparations programs in South Africa,” in De Greiff,

The Handbook of Reparations, op cit, pp 176–214.124 For details see Diana Cammack, “Reparation in Malawi,” in De Greiff, The Handbook of Reparations, op cit,

pp 215–256.125 For details see Eric K. Yamamoto and Liann Ebesugawa, “Report on redress: the Japanese American intern-

ment,” in De Greiff, The Handbook of Reparations, op cit, pp 257–283; see also Samuel Issacharoff andAnna Morawiec Mansfield, “Compensation for the victims of September 11,” in De Greiff, The Handbookof Reparations, op cit, pp 285–320.

126 For details see Ariel Colonomos and Andrea Armstrong, “German reparations to the Jews after World WarII: a turning point in the history of reparations,” in De Greiff, The Handbook of Reparations, op cit, pp 390–419.

127 For details see Anna Rotman, “U.S. foreign policy and human rights: note: Benin’s constitutional court: aninstitutional model for guaranteeing human rights,” Harvard Human Rights Journal, Vol 17, 2004, p 281.

128 See CAVR Final Report, pp 35–44, http://www.ictj.org/en/news/features/846.html (accessed January 17,2007).

129 See Final Report of the TRC of Sierra Leone, op cit, Vol 2, Chapter 4.

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130 See Updated Set of Principles, op cit, principle 34; Basic Principles and Guidelines, op cit, paras 19–22;CAVR Final Report, op cit, part. 11, para 12.2; Final Report of the TRC of Sierra Leone, op cit, Vol 2,Chapter 4, para 22.

131 For details on judicial versus administrative approaches see Jaime E. Malamud-Goti and Lucas SebastianGrosman, “Reparations and civil litigation: compensation for human rights violations in transitional democ-racies,” in De Greiff, The Handbook of Reparations, op cit, pp 539–559.

132 See on this issue Naomi Roht-Arriaza, “Reparations decisions and dilemmas,” Hastings International andComparative Law Review, Vol 27, 2004, p 157.

133 See Malamud-Goti and Grosman, “Reparations and civil litigation,” op cit, p 541.134 Final Report TRC Sierra Leone, op cit, para 23.135 CAVR Final Report, op cit, para 12.7.136 Malamud-Goti and Grosman, “Reparations and civil litigation,” op cit, p 557.137 The ICTR and ICTY limit reparations to the return of stolen property to their rightful owners without pro-

viding redress for personal injuries of a physical or mental nature (Art. 24 of the ICTY Statute and Art. 23 ofthe ICTR Statute). They also left the decision on compensation to national justice systems (see rule 106 ofboth tribunals).

138 UN Charter, preamble, http://www.un.org/aboutun/charter/ (accessed January 12, 2007).139 This determination enshrined in the preamble of the UN Charter may not be binding in the spirit of the

Vienna Convention on the Law of Treaties, but it sets out broad rules for the interpretation of this treatyand many other treaties based it: see Art. 31 (1) and (2), http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (accessed December 27, 2006).

140 Security Council Resolution 1366, August 30, 2001, UN Doc S/RES/1366 (2001), para 17, http://daccessdds.un.org/doc/UNDOC/GEN/N01/524/48/PDF/N0152448.pdf?OpenElement.

141 Security Council Resolution 1366, op cit, para 12.142 See Art. 1 of the Genocide Convention, op cit.143 Orentlicher, “Settling accounts,” op cit.144 See Convention against Torture, op cit.145 See text at http://www.cpt.coe.int/EN/documents/ecpt.htm.146 See text at http://www.oas.org/juridico/English/Treaties/a-51.html.147 See Velasquez Rodriguez case, op cit, para 166.148 See Security Council, letter dated July 12, 2004 from the Secretary-General addressed to the President of the

Security Council, Annex: Outline of the Mandate for the Special Adviser on the Prevention of Genocide, UNDoc S/2004/567, para C, http://www.un.org/Depts/dpa/prev_genocide/appointment.pdf. (accessedJanuary 6, 2007).

149 Barbara Harff, “No lessons learned from the Holocaust? Assessing risks of genocide and political massmurder since 1955,” American Political Science Review, Vol 97, 2003, p 62.

150 Updated Set of Principles, op cit, principle 35.151 Nino, “The duty to punish,” op cit, p 2619.152 See Jeremy Sarkin, “The necessity and challenges of establishing a truth and reconciliation commission in

Rwanda,” Human Rights Quarterly, Vol 21, 1999, pp 767–823; for Bosnia, see Bosnia and Herzegovina,“ICTJ activities: truth seeking,” http://www.ictj.org/en/where/region4/510.html.

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