Using Legal Mechanisms To Deal With the Past Starting point: State-sponsored systemic human rights abuses or other criminal behavior What if no post-abuse regime change? How can victims / families obtain justice? Domestic avenues are compromised Looking elsewhere International pressure Legal options: regional human rights courts or ICC or courts in other countries (universal jurisdiction) ICC indicts President of Sudan (International Criminal Court) Charged with genocide & crimes against humanity in Darfur Why has the decision to indict President Bashir proved so controversial? What are the pluses & minuses of his indictment? How successor regimes deal w/ past Where does this relatively recent desire to deal w/ the past come from? Qualitatively new types of transition Democracy Subjects vs. citizens More reflection on past more willing to face mistakes cultural change Sometimes recognition comes much later How helpful? 1
Why might post-abuse regime choose NOT to deal with the past? Composition of new regime Has there been a turnover of elites? Danger of reopening old wounds Who benefits from reopening the past? Cultural environment mood of society How does society think about responsibility? As attitudes change, society may be more open to reexamining past Successor regime that is prepared to confront the past has choices in terms of how to proceed. What type of responsibility is the regime and the society willing to impose and/or accept? Individual Group In cases of systematic discrimination against minority groups, dominant groups within society can make a choice to acknowledge their guilt through an apology. Examples include apologies by Australian govt for treatment of Aborigines & Canadian govt s treatment of native populations. 2
Group liability Goal: rid society of those who collaborated Examples: De-Nazification Lustration: Used in Czechoslovakia, East Germany Identified categories of people who were deemed to have been implicated in preexisting system Members of these groups were barred from occupying high office in successor regime for finite term What problems? Individual liability Basic choice => prosecution or amnesty Prosecution: Plus: clear break from the past Minus: Society remains mired in past Choosing defendants -- who to prosecute? Leaders? Ordinary citizens? Danger of ex post facto prosecutions Competency of legal system Amnesty: can take various forms & can be conditioned or blanket Examples: Available only upon admission of misdeeds Available to all military personnel Plus: Preserves stability fosters reconciliation ROL more likely to evolve in stable conditions Minus: May be dissatisfying to victims & their families who are more interested in vengeance than reconciliation 3
How did amnesty play out in Chile? Timeline of Pinochet prosecution 1973-90: President of Chile 1990-98: Commander-in-Chief 1998-06: Senator for life Immediately after seizing power As President 1998: placed under house arrest in London on warrant from Spain requesting extradition on murder charges Former Prime Minister Margaret Thatcher visits Pinochet while under house arrest in London. 2000: UK Home Secretary rules that Pinochet cannot be extradited; free to leave UK (March) 2000-01: Chilean courts lift Pinochet s immunity, but find him unfit for trial 2005-06: Court orders Pinochet arrested; he dies before being tried What forms can be used by successor regimes to deal with the past? Truth commissions: exist in 15+ countries Goals: Create authoritative record of what happened Provide platform for victims (families) to tell their stories & obtain some form of redress Recommend reforms (legislative, institutional) to avoid repetition of past abuses Establish who was responsible for abuses & provide some level of accountability for the perpetrators 4
When are truth commissions most likely to be used? Regime wants to shape format Look to the type of violations committed Ex: disappearances; death squads Preexisting legal institutions were tainted Ex: courts & police allegedly participated Regular courts are considered unreliable Desire for speedy process South African Truth & Reconciliation Commission 2 goals Allow victims & families to tell their stories Provides forum for abusers to come forward w/ truth about their behavior Opens door to potential amnesty Rwanda represents combination of multiple methods International tribunal Criminal trials Gacaca Why were multiple methods helpful in the Rwandan case? 5
Options when successor regimes are incapable or unwilling to confront past Establish special tribunal to deal w/ problem Nuremburg International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda Plus: Mechanism for bringing leaders to justice; transparent Minus: Can be seen as victors justice; expensive Make use of already-existing international tribunals International Criminal Court Other countries reach out to try leaders Belgium s efforts to help Rwandan victims Spanish judge s efforts to extradite and try Pinochet 6