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Failure to Prosecute Human Rights Violations and the Rule Of Law

Tumaini wafula

Justice must be done, even should the heavens fall Immanuel Kant (1724-1804)

Table of Contents
INTRODUCTION 1.1. Retributive Justice 1.2 1.3 Restorative Justice African Perspective 2 3 4 4

1.3.1 Repugnancy Clause and its effect on International Criminal Law

2.

Amnesty and International Criminal Law 2.1. 2.2. International Treaties and Amnesties Why prosecute? 2.2.1 Victims Rights

6 6 8 10

3. 4.

The case for Amnesties and Peace Alternatives approaches to Prosecutions in the 21st Century 4.1. The Sequencing Approach 4.1.2. Prosecutions In Latin America Today 4.1.3. Sequencing and the ICC 4.2 Non-Judicial Truth Commissions 4.2.1 Traditional Or Alternative Dispute Resolution Mechanisms

10 12 12 12 14 15 15

5.

Conclusion

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INTRODUCTION Despite great advances in international criminal accountability in the last decade, amnesties and/or safe passage to asylum in exile have been granted to secure peace or democratic transitions in a number of cases. Indeed it has been argued that this rise in amnesties was the unintended consequence of advances in International law and demonstrates that International law is winning against impunity. 1 Such was the case in post-Communist Eastern Europe, post-Franco Spain, Cambodia, South Africa, Chile, Brazil, Guatemala, Argentina, Uruguay, Nicaragua, Peru, El Salvador, Haiti, Philippines, Uganda, and many more. By the 1990s, with amnesty laws established as modi operandi, the attention turned to truth commissions. The politics and legal machinations after human rights abuses in Africa often mirror those in Central and South America. In Latin America, Governments were resorting to immunity mechanisms to avoid criminal justice and relying almost exclusively on truth commissions to assure that the government provided some type of accountability for past wrongs. The experiences in Latin America began to shape what would ultimately be christened the truth v. justice debate. It became one of the fundamental dilemmas in the growing field of transitional justice. By the 2000s, there is an undeniable trend in international peace negotiating practice that fewer, or in any case, increasingly restrictive, amnesty clauses are inserted in peace agreements.2 . International consensus appears to be growing that peace and justice are not mutually exclusive but mutually reinforcing. 3 The rule of law embodies the simple principle that all state officials, whether elected or nonelected, should act within the law and the constitution, on the basis of powers that are legally circumscribed. The principle can be traces back to the Aristotelian idea that the ideal government involves the rule of laws, not of persons. The principle developed from the

Louise Mallinder Amnesty, Human Rights and Political Transitions Bridging the Peace and Justice Divide (2008) 2 Vinjamuri, L. and Boesenecker, A., Accountability and peace agreements: mapping trends from 1980 2006, Centre for Humanitarian Dialogue, Geneva, 2007. 3 United Nations, Human Rights Council, Analytical Study on Human Rights and Transitional Justice, UN Doc. A/HRC/12/18, 6 August 2009, para. 51 (The assumed tension between peace and justice has gradually dissolved).

struggle to limit the absolute powers of the monarch and his or her officials, by requiring legal authorisation for all executive action. The concept of justice comes in different forms. The most common purposes of justice are reparation, retribution, restoration, denunciation, deterrence, and incapacitation.4 In this paper we consider only Retributive and Restorative Justices.

1.1. Retributive Justice Retributive Justice reflects some strong perceptions about just punishment: that it should be proportional to the crime and that it should be of only and all of the guilty. Justice is seen as the duty of the state as the custodian of the rights of its citizens.5 Established laws are used as the basis for measuring moral authority. It is concerned with just deserts for the offender through legal mechanisms such as courts, national criminal laws and international criminal tribunals are essential for ending impunity and for putting in place procedures for the nonrepetition of rights abuses in the future. It is retrospective in that it looks at the past to better the future. 1.2. Restorative Justice Restorative Justice is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community rather than the state. It views crime essentially as a violation of people and relationships between people. Its primary concern is to correct such violations and to restore harmony among peoples. As such, it involves victims and survivors, perpetrators and the community in the quest for a level of justice that promotes healing, trust building and reconciliation. It is concerned with resolving crime and conflicts, with the end result being harmonious community relations and its characterised by

community participation that involves both the victim and the perpetrator, with a view to restoring rights that have been abused. Moreover, its employ integral responses that focuses upon redressing the harm to the victims, holding perpetrators accountable for their actions and engaging the community in a conflict resolution process. It is s forward-looking in that it looks at the future to heal the past.
4

Villa-Vicencio C, .Restorative Justice., in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, p.33 5 Villa-Vicencio C. p.3

This essay seeks to explore the Justice versus peace debate and submit that while amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights in the 1980s and 1990s, offering amnesty for the most serious crimes of international concern in return for a cessation of hostilities is no longer an option. It suggests two basic principles to deal with the issue of amnesties and pardons in fragile transitional Governments: (i) Where the successor democratic state has issued amnesties and there is genuine threat of instability, the best policy is sit and wait or the sequencing approach. First secure the conditions of basic security compatible with the establishment of democratic stability, and then initiate prosecutions at such a time as conditions allow.6 (ii) Pardons or leniency after due process of the law, should, if it all, only be permitted in noninternational crimes cases, conditional and accompanied by alternative forms of justice.

1.3.

African Perspective

1.3.1. Repugnancy Clause and Its Effect on International Criminal Law Today The repugnancy clause found in most commonwealth jurisdiction is a relic of colonial rule. This clause was introduced to filter out any customary law that was deemed repugnant to the British. Any aspect of customary law that European culture found appalling, ridiculous or simply unhelpful to the inculcation of Christian ideals could be identified as repugnant and barred. In this way, many African customs were made illegal or illicit and the British standard of what was just and moral was imposed on the colonised people.

Quinn J. R. Chicken and Egg? Sequencing in Transitional Justice:1 The Case of Uganda Conference Papers for the Annual Meeting -- International Studies Association, 2007, pp. 1-23.

The repugnancy clause was not well received by the African tribes as they saw it as an extension of oppressive colonial rule into their way of life. Allison Kent observes: The use of colonial legal devices such as repugnancy clauses perhaps foreshadows the constant debate in international human rights over universality versus cultural relativism, often framed as a Northern or Western notion of universality and a counterpoint advanced by the global SouthThough repugnancy clauses were arguably grounded in early conceptions of what became known as human rights, they are invariably tainted by their use as a colonial mechanism to assert power and cultural superiority over the colonized.7 After independence, this provision was incorporated in sub-Saharan African countries statues in countries that applied customary law in their legal systems. 8 This has important implications for international criminal law. For example, some human rights norms, especially those that oppose traditional practices of reconciliation or retribution are often challenged by some of sub-Saharan Africa as concepts imposed by the West. Thus Prosecution of offenders who are willing to reconcile is termed unafrican.

Application of customary law was however barred in Criminal law. The rationale being that all people of the land should be subject to the same criminal code. Sub-Saharan African countries have used this cultural tag to bypass prosecution be it Ubuntu in South Africa or Moto oput in Uganda. In the traditional African setting, Moto Oput was used for skirmishes between clans or disputes about livestock and not mass atrocities of the 21st century brought about advancement in arms and weaponry. While these are not to be discouraged, they should come after prosecution of offenders with an aim of integration and not amnestying. These concepts have been in African cultures since time immemorial yet civil strife still occurs.

. Kent A.D , Custody, Maintenance, and Succession: The Internalization of Womens and Childrens Rights under Customary Law in Africa, 28 MICH. J. INTL L. 507 (Winter, 2007). 517-518. 8 In Ethopia Civil Code Proclamation No 65, Gambia Section 5 of the Law of England Application Act 1953, Ghana Section 49 and 50 of the District Tribunals Act, Kenya Section 3 of the Judicature Act and Constitution Article 159 (2)(c), Malawi, Traditional Courts Act 1962, Tanzania Magistrates courts Act of 1984, Uganda Section 3 Judicature Act 1987 South Africa Section(1)(1) of The Law Of Evidence Act etc.

Codification of criminal laws did not eliminate the application of customary laws in some African society and the attendant problems can be illustrated by the example of the Somali people in North Eastern Kenya.

2.

AMNESTY AND INTERNATIONAL CRIMINAL LAW

2.1. International Treaties and Amnesties Reference to amnesties in treaty law is indirect. The duty of a state to prosecute or extradite ( aut dedere aut judicare) may be found in treaties that a state is party to. The United Nations Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention") was sets out its purpose of punishing those who commit genocide.9 In an advisory opinion, The International Court of Justice observed that under the Genocide Convention, even states that are not part to the treaty are under an obligation to prosecute genocide offenders.10 The Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture") both require States Parties to prosecute the conduct they proscribe as criminal. Article 4 and 5 of the Torture Convention requires parties to criminalise acts which constitute complicity or participation in torture in domestic legislation. Under the Rome Statute, States have international legal obligations to investigate and, where appropriate, prosecute the perpetrators of the most serious crimes of concern to the international community as a whole.11 The prohibition against amnesties for crimes of this kind is now no longer limited to blanket auto-amnesties granted by the dictators of failing regimes or military commanders of long-fought wars to themselves and their subordinates.12 Under the principle of complementarity enshrined in the Rome Statute, the ICC may be able

Pursuant to Article I, Contracting Parties "confirm that genocide . . . is a crime under international law which they undertake to prevent and to punish," and Article III sets forth various forms of participation in genocide that "shall be punishable." Article IV provides that persons "committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals," while Article V requires Contracting Parties to enact legislation necessary to give effect to the Convention "and, in particular, to provide effective penalties for persons guilty of genocide." Article VI specifies the tribunals that should try cases of genocide. 10 Reservation to the Convention on the Prevention of the Crime of Genocide Advisory Opinion May 28 1951 11 Rome Statute of the International Criminal Court, Preamble 12 Orentlicher D, The Future of Universal Jurisdiction in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (ed. Stephen Macedo) 2004 at page 237.

to find that a State invoking amnesty, whether conditional or otherwise, for crimes under international law, is unwilling or unable to prosecute, and so would be able to intervene. Interpretations of Human rights treaties globally depict that state parties are required to endorse and safeguard the fundamental rights in the treaties by investigating, prosecuting and punishing those who violate these rights. The Human Rights Committee which monitors acquiescence with International Covenant on Civil and Political Rights has held that state parties must investigate and prosecute international crimes violations. 13 A similar position was taken by the Inter-American Convention by the Inter-American Court of Human Rights in its interpretation of article 1(1) of the Inter-American Convention.14 In some of the leading cases before the Inter-American Court of Human Rights the Court has been clear that amnesties for international crimes are objectionable. In the 2001 Barrios Altos Case it determined that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law. 15 In addition, in its decision in the 2006 Almonacid Arrellano Case, the Inter American Court of Human Rights (IACHR) ruled that the obligation to try and punish perpetrators of international crimes, including crimes against humanity, is derived from the duty of protection contained in Article 1(1) of the American Convention regarding the obligation to protect rights. It also concluded that the States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.16 The Lome agreement in Sierra Leone set out clearly the United Nations position on amnesties; they are not acceptable and have no legal basis. The Special court in Sierra Leone held that:

13

Quinteros V Uruguay Comm 107/1981, UN Doc A/38/40 (1983) The committee held that the Government of Uruguay should take effective steps to bring to justice any person found responsible. 14 Velasquez Rodriques Case, Inter-American CHR (Ser C) 4 para 174 (1998) Judgement 15 Inter-American Court of Human Rights, Judgment of 14 March 2001, Barrios Altos (Chumbipuma Aguirre and Others) vs. Per, paragraph. 41 16 Inter-American Court of Human Rights, Judgment of 26 September 2006, Almonacid Arellano

A State cannot deprive another State of its jurisdiction to prosecute the offender by the grant of amnesty. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.17 In Tas Vs Turkey,18 The European Court of Human Rights held that compensation should be accompanied by investigation and prosecution to identify the persons in the Turkish security forces who disappeared a Turkish national.

2.2

WHY PROSECUTE?

The decision whether to bring criminal proceedings is an important one for a successor Government. Authorising a criminal charge can have a devastating effect on a fragile democracy. It can lead to questions concerning judicial impartiality and separation of powers. It subjects not only the individuals concerned to the criminal process but in extension the whole structure of the former autocratic regime that may still be in place.

International law recognizes certain norms as being unchallengeable. These are termed jus cogen norms, and are defined as absolute norms to which no derogation of any kind is permitted. Breach of jus cogens norms does not only constitute delicti jus gentium (international crimes), but also constitutes the highest level of crimes against mankind. These highest levels of crimes include genocide, crimes against humanity and war crimes. Hence, no matter where jus cogens crimes are committed, the international community in its entirety, scourged by the effects of these crimes, becomes the victim.19 The duty to prosecute has been described as absolute and as creating a mandatory duty o n States to prosecute This implies that an amnesty for such crimes would violate a States obligations to prosecute . Prosecution not only offers retribution for perpetrators, but Democratic accountability also presents an opportunity for the public depiction of the deliberative procedures associated with
17

Prosecutor against Morris Kallon, Brima Bazzy Kamara (Case No.SCSL-2004-15-PT, Case No.SCSL-200416-PT) Decision on Challenge to jurisdiction: Lom Accord Amnesty 13 March 2004, at paragraph 67 18 33 Eur Hum Rts Rep 15 PPHI-H3 (2000) 19 Bassiouni M. Cherif International Crimes: Jus Cogens And Obligatio Erga Omnes in Duke Law Journal 59 Law & Contemp. Probs. 63 (Autumn 1996)

the rule of law. Amnesties do not prevent punishment they prevent prosecution. Every Prosecutor is alive to the fact that one of the outcomes of prosecutions is acquittal. Accordingly, prosecutions do not serve just a retributive effect. Prosecutions especially those held in the country of conflict, have the advantages of enabling justice to be seen. They address public scepticism about the rule of law. In countries long ruled by autocratic regimes, principles of justice such as impartiality, burden of proof and fair trial for the accused are made visible. Where the lawlessness of conflict resulted in mass human rights abuses, the rule of law is often a deterrent of future abuse, through the punishment of perpetrators, the introduction of greater accountability mechanisms,

By holding individual perpetrator accountable, the trials show that certain conduct is out of bounds. No matter what your cause or grievance certain crimes are unacceptable and universally condemned. This issue was brought home in Sierra Leone during the trials of civilian defence forces leaders as the public did not understand why they has to be tried. Some researchers have observed that in fragile political transitions normative requirements relating to implementing the rule of law must be tempered by the political preconditions of a ceasefire necessary to implementing anything at all.20 In essence, flouting from the rule of law, and allowing measures such as amnesty laws, may be a pre-condition until when conditions permit the institutional reforms necessary to re-establish the rule of law is put in place. This argument is flawed because the rule of law can prevail even without amnesty laws. In Burundi after the civil war, a 2001 cease-fire was signed in 2003 between the Tutsicontrolled Burundian government and the largest Hutu rebel group, CNDD-FDD (National Council for the Defence of Democracy-Forces for the Defence of Democracy). Burundis peace process has clearly been shaped by the international normative environment. The amnesty prohibition affected the peace process and the proposed transitional justice process for Burundi. The peace agreements do not grant or condone amnesty for genocide, crimes against humanity or war crimes, not even in a disguised manner. Furthermore, legislation adopted rules out amnesty. And, in practice, no amnesty has been granted for these most serious crimes of international concern.

20

C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP, Oxford, 2008) 256.

Failure to prosecute leaders responsible for human rights abuses fosters disregard for the law and encourages future violations. This in turn creates a culture of impunity which is one of the main reasons for the continuation of grave violations of human rights throughout the world.21 Surveys on Chile and EI Salvador indicate that the granting of amnesty or de facto impunity led to an increase in abuses in those countries. 22 The perpetrators who are not prosecute are able to manipulate all spheres of Government to their advantage. Charles Taylor was offered exile in Nigeria as the price of peace in but in exile he planned and financed a failed assassination plot in 2005 against President Lansana Conte of Guinea, a neighbouring country that had backed the rebel movement that forced Taylor from power.23 2.2.1. Victims Rights Victims rights have taken a front position in international criminal law in the past decade. A 2006 survey of 991 war victims in 11 different countries and regions showed that the overwhelming majority of victims demand accountability in form of criminal prosecutions, trials and punishment and reject amnesty. 24 Of the surveyed victims, 61% were against granting of amnesties even if the perpetrators confessed to their crimes.25 While there is a school of thought that believes the prime purpose of criminal law is to convict or acquit the accused, and that the task of attending to the victims should perhaps be left to other entities,26 The victim plays a central role in criminal justice and their views, and expectations must be taken into account.

3.

The Case For Amnesties And Peace

Proponents of the rule of law also argue that where programmes make government officials more accountable and reform the institutions that implement and enforce the law, they have
21

U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Working Group on Enforced or Involuntary Disappearances, Report on the Consequences of Impunity, ~ 344, U.N. Doc. E/CN.411990/13 (Jan. 24, 1990), reprinted in 3 Transitional Justice: How Emerging Democracies Reckon With Former Regimes 18, 19 (N. Kritz ed., 1995). 22 U.N. Econ. & Soc. Council [ECOSOC], Protection of Human Rights in Chile, ~ 341, U.N. Doc. A/38/385 (Oct. 17, 1983). 23 Ryan Lizza, Charles At Large, The New Republic, Apr. 25, 2005 Http://Www.Tnr.Com/Article/CharlesLarge Accessed Om 16th March 2012 24 Kiza E, Rathgeber C, Rohne H, Victims of war. An empirical study on war-victimization and victims attitudes towards addressing atrocities (Hamburger edition online, 2006) http://www.hisonline.de/fileadmin/verlag/pdf/978-3-936096-73-6.pdf accessed on March 23 2012. 25 Kiza E, Rathgeber C, Rohne H (2006) 53 26 Christoph Safferling C.The Role of the Victim in the Criminal Process A Paradigm Shift in National German and International Law? : International Criminal Law Review, Volume 11, Issue 2, 183 215 Also Rauschenbach M, Scalia D International Review of the Red Cross, No. 870 (2008)

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the potential to publicly demonstrate a newfound legitimacy and accountability. In other words, deviations from the rule of law, such as amnesty laws, may initially be needed in order to get to a situation where conditions permit the institutional reforms necessary to reestablish the rule of law. Early advocates of amnesties for transitional governments argued that trials for past human rights violations were in reality untenable and likely to undermine new democracies. Huntington, Samuel in his book The Third Wave: Democratization in the Late Twentieth Century for example, argued that prosecutions could destroy the necessary basis for democracy and, in general, recommended that transitional states not carry out human rights trials. 27

Jack Snyder and Leslie Vinjamuri argue more generally that in transitional countries decisions to try members of the former regime should be weighed against the possibly adverse effects on the strengthening of institutions.28 One such example is Argentina, where prosecutors of the military junta were forced to calculate how far they could go down the ranks without threatening instability or even a military coup. One of Argentinian President Alfonsins advisors, Jaime Malamud Goti has described these calculations29. He argued that Argentinas decision to prosecute only some did not breach its duties of justice. By 2000s, the pro-amnesty movement had grudgingly acknowledged that blanket amnesties do not work and started agitating for conditional amnesties. This was more so after the success of the South African amnesty law which was brought about by truth commission. Truth Commissions were seen as a way to reveal truth and realization of justice and ultimately reconciliation. The success of the truth commissions could only be achieved by offering conditional amnesty to perpetrators.

It is also argued that while justice is fundamental after abuses of human rights; it may be impossible or impractical. International tribunals are useful, but they are not the only way
27 28

Huntington, S. P.,. The Third Wave: Democratization in the Late Twentieth Century.( 1991) Snyder & Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice." International Security 28, no. 3 (Winter 2003/04) 29 Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1, 5 (1990)

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out. They are hugely expensive and can try only a small group of perpetrators, the most responsible. Ironically, many times, those who are tried are not the most responsible but the most available in the country. Consequently justice become extremely selective and seems to be the way of granting de facto amnesty to those who fled the country and those responsible. 30 Boraine advocates more for restorative justice than retributive. Amnesties granted after truth commissions by some states have been justified by the argument that International Law does not bar amnesties but instead encourages states to apply amnesty. Article 6(5) of the Additional protocol II of 1977 states that:

At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.' 4. Alternatives approaches to Transitional Justice in the 21st Century The rejection of criminal prosecution in exchange for peace and reconciliation is no longer an option globally. Consequently alternative measures should not substitute but complement prosecutions. These approaches must be both retributive and restorative but should also be well planned so as not to derail a fragile peace and minimise the tension between peace and justice. 4.1. The Sequencing Approach A United Nations Secretary Generals report said, Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities.31

30 31

Boraine A. A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission 258-299 United Nations Secretary-General, Report of the Secretary General: The rule of law and transitional justice in conflict and post-conflict situations, 2004, S/2004/616, 4.

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The sequences in which either retributive or restorative justice processes operate rely on the context of each states conflict. cessation of hostilities.32 4.1.2. Prosecutions In Latin America Today In some instances, the wait approach is best. As demonstrated by the Latin American Countries, prosecutions cannot be avoided. After periods of authoritarian dictatorships, Prosecution may not always be immediately after the

Argentina, Uruguay, Brazil, Chile, Peru, El Salvador, and others passed amnesty laws that allowed persons accused of human rights violations to remain in impunity. These laws limited the ability to investigate and prosecute serious human rights violations committed in the past and the ability to try and sentence perpetrators or to make reparations for the harm caused to the victims. When thwarted by the criminal justice system in their own countries, the victims, their family members, and human rights organizations approached the IACHR as a final alternative. The IACHR declared that amnesty laws for serious violations of human rights were a breach of the American Convention on Human Rights. Years after, the governments of the countries continued defending the legality of their respective amnesty laws. Today, however, most countries have accepted the recommendation issued by the IACHR nearly two decades earlier. In Argentina The full stop law of 1986 (Law No. 23,492) set a 60-day deadline for the initiation of new prosecutions. When that law failed to thwart the prosecution of large numbers of defendants, the due obedience law (Law No. 23,521) was passed in 1987, granting automatic immunity from prosecution to all members of the military except top commanders. On June 22, 1987, the Supreme Court ruled that the due obedience law was constitutional, effectively putting a stop to the prosecution of dirty war crimes. However, the Supreme Court of Justice again ruled on June 14, 2005 that the country's "due obedience" and "full stop" laws were unconstitutional, and they cited the decisions of the inter-American system. 33 This has prompted trials in Argentina against people accused of serious human

32

The issues of temporary immunities and its problems are discussed in Vandeginste S. Bypassing the Prohibition of Amnesty for Human Rights Crimes under International Law: lessons learned from the Burundi peace process. Netherlands Quarterly of Human Rights, Vol. 29/2 (2011) 189-211 33 Simn Case, Argentine Supreme Court, causa No 17.768 (14 June 2005) S.1767.XXXVIII. The decision upheld the findings of lower courts on this issue and confirmed that Argentinas Congress had validly annulled the amnesty laws in 2003

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right violations during the dictatorship.34 Likewise, on November 6, 2009, in a hearing held in the headquarters of the IACHR on a case involving the murder of Archbishop Oscar Romero in 1977, (32 years later) representatives of the state of El Salvador announced they had changed their policy on amnesty and declared their commitment to complying with the recommendations of the report.35 Uruguay, where the justice system has already begun to try some of the serious human rights violators, congress ratified this path by passing a law which repealed the 1986 amnesty law known as the expiry law.36 In the case of Uruguay, where the amnesty law had been upheld by no less than two public referendums, it became clear that there are certain fundamental rights, like the right to life, that there was no derogation from for a proper democracy. The decision by federal prosecutors to bring charges against a retired military officer for grave abuses committed in the 1970s on March 2012 is the first time such prosecutions are being brought against a military officer in Brazil.37 A study by Kathryn Sikkink and Carrie Booth Walling found that out of 121country trial years in Latin America between 1979 and 2004 there was only a single case where conflict continues to date and therefore it is difficult to sustain the argument that trials have contributed to exacerbating conflict in the region. 38

4.1.3. Sequencing and the ICC Deferrals of prosecutions are considered in the Rome statute. Article 16 states that No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations has requested the Court to that effect.39

34

Argentina presses forward with human rights trials CNN http://articles.cnn.com/2011-1006/americas/world_americas_chile-argentina-fugitives_1_cristina-fernandez-argentinaperonist?_s=PM:AMERICAS accessed on March 20th 2012 35 Inter-Am Commn on Human Rights, Press Release No. 78/09: IACHR Concludes Its 137th Period of Sessions (Nov. 13, 2009); Assassination of Archbishop Romero: 30 Years of Impunity, Revista envoi (April 2010). 36 Amnesty International, Uruguay: Congress adopts landmark law to tackle impunity, 27 October 2011, available at: http://www.unhcr.org/refworld/docid/4eb299832.html [accessed 28 th March2012] 37 Human Rights Watch Brazil: Human Rights Prosecution a Landmark Step http://www.hrw.org/news/2012/03/13/brazil-human-rights-prosecution-landmark-step accessed on March 22 2012 38 Sikkink K and Booth Walling C The Impact of Human Rights Trials in Latin America Journal of Peace Research 2007 44: 440 39 Rome Statute of the International Criminal Court (2002), art.16.

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The UN Security Council could also extend this deferral for another 12 months. This could in effect enable countries to come up with their own methods of retributive and restorative justice mechanisms. It should be noted that the words commenced or proceeded with do not bar prosecutions in the long term. In situations like Uganda, where the prosecutions have already commenced, this means a delay in proceedings is possible. In order to establish and maintain a sustainable peace and justice it is essential to carefully time and sequence transitional justice mechanisms The question of whether International Criminal Court will be legally able to comply with a sequencing approach is one best answered by on-going events. Thomas Dyilo Lubanga has been convicted by the ICC yet his co-accused is free in Congo, with an arrest warrant hanging over him. In January 2009, DRC reached an agreement with a rebel group purportedly backed by Rwanda, Congress National pour la defense du people, CNDP. Ntaganda was integrated into the Congolese army. The DRC then declined to arrest Ntaganda on the grounds that peace in DRC is more urgent than justice. According to human rights watch Bosco Ntaganda continues to be implicated in international crimes 40 . There is no statute of limitation in the Rome statute and the prosecutor can afford to wait out Ntaganda rather like a western Mexican standoff.41

4.2 Non-Judicial Truth Commissions Truth and reconciliation commissions (TRCs) the most recognized form of restorative justice. UN Secretary General, defined TRCs as: official, temporary, non-judicial fact finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years. These bodies take a victim-centred approach and conclude their work with a final report of findings of fact and recommendations. Truth commissions have the potential to be of great benefit in helping post-conflict societies establish the facts about past human rights violations, foster accountability, preserve evidence, identify perpetrators and recommend reparations and institutional reforms. They can also provide a public platform for victims to address the nation directly with

40

Human Rights Watch DRC Congo:ICC indicted war criminal implicated in assassination of opponents (http://hrw.org/news/2010/10/12/dr-congo-icc-indicted-war-criminal-involved-assassinations-opponents accessed on 25th March 2012 41 Rome Statute of the International Criminal Court (2002), art.29.

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their personal stories and can facilitate public debate about how to come to terms with the past.42 Sikkink and Booth Walling found that every country in the Americas region that established a truth commission also held domestic trials43 4.2.1 Traditional Or Alternative Dispute Resolution Mechanisms These should come after prosecutions. Traditional rituals and ADR can be a great way for forgiveness and reintegration of the violators into society. In western society, one is considered to have paid his dues to the society after a jail term. In Africa, there is a divide between the official and unofficial. The official being the Government way (or read western) and the tribal way. Thus even after an offender is prosecuted or depending on the sequencing approach, before or during prosecutions certain rituals or traditional resolutions methods may be followed. Performing ritual ceremonies brings comfort and ensures a sense of belonging, thus strengthening the individuals and the communities. In south Mozambique, the reintegration of war-affected youth was by cleansing rituals performed by the main category of south Mozambique healers, the vanyamussoro.44Among the Xhosa, isinyarna, a pollution or curse, is of persons who are sent to jail and who consequently require ritual cleansing after their release.45 Truth and reconciliation commissions are forced to finish on a stipulated time frame, leaving a lacuna on how to continue the reconciliation process. This is a big disadvantage of modern methods of transitional justice. When the funding stops, so does the process. When the sierra Leone TRC closed its sessions, part of its recommendation was to continue the traditional methods of reconciliation in the interior villages that were deeply affected by the war. The Sierra Leone TRC exemplified the fact that donors assume to know what is best for communities. The input of local people is crucial. What is needed is a paradigm shift towards recognition and understanding that reconciliation should be rooted in and responsive to the experimental and subjective realities of peoples perspectives and needs. This shift in the
42

Report of the UN Secretary General, The rule of law and transitional justice in conflict and post-conflict societies (2004) para. 50. 43 Sikkink K and Booth Walling 431 44 Granjo P. Back home. Post-war cleansing rituals in Mozambique Studies in Witchcraft, Magic, War and Peace in Africa (19th and 20th centuries). 2006: 277-294. 45 Kapferer B. Beyond rationalism: rethinking magic, witchcraft, and sorcery 2003 - 257

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transitional and restorative justice paradigm will open up ample space to discuss the role of traditional restorative justice.

5. CONCLUSION Failure to prosecute leads to the demise of the rule of law. In fact studies have illustrated the effect in Latin America. In transitional justice, amnesties are as dead as the proverbial dodo. There is an emergence of situations where de facto amnesties are tacitly agreed upon by former rivals in fragile peace. International organizations are aware of the situations, and in these cases sequencing of peace works best. Other mechanism of achieving transitional justice such as sequencing, and traditional methods must be explored.. It is also important that representatives from all levels of society be consulted when planning to implement a reconciliation process.

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