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| Index | E-mail | Resources |
June 1998 |
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| Index | E-mail | Resources |
June 1998 |
A Convention Against Impunity?
If human rights NGOs and activists get their way, states’ obligations to investigate human rights violations and punish violators will become much clearer. Last October, Louis Joinet, the special rapporteur on impunity for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, completed his report on impunity for violations of civil and political rights. The most important part of the report is the elaboration of a set of principles for the protection and promotion of human rights through action to combat impunity, which could be the basis for an international convention against impunity in the future.
At the heart of the principles is the recognition of the fundamental rights to truth, to justice and to reparations. The right to truth is understood not simply as “the right of any individual victim or closely related persons to know what happened” but also as “a collective right, drawing upon history to prevent violations from recurring in the future. Its corollary is a “duty to remember”, which the State must assume, in order to guard against the perversions of history that go under the names of revisionism or negationism...” To assure the right to truth, the principles recommend setting up truth commissions, and set standards as to their independence and objectivity, as well as to the security of its members and witnesses.
“The right to justice entails obligations for the State: to investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them”, and the principles set out specific obligations in the state to do so. They give original jurisdiction over human rights violations to the state where they took place, but allows for prosecutions of serious crimes under international law extraterritorially or internationally. The principles repeat the imprescriptability of serious crimes under international law, and restrict the prescriptablity of other human rights violations to allow for an effective remedy. While the principles do not forbid amnesties outright, they establish that they can only be passed after those responsible for serious crimes under international law have been prosecuted and duly punished. Although the principles allow for reduced punishments for violators who repent, the principles establish that the violators cannot be exempted from criminal responsibility. Similarly, the principles do not allow for a “due obedience” defense, although this can be taken into consideration when deciding the punishment of the violator.
The principles also provide for the right of reparation of the victims under all circumstances, which includes the right to medical and psychological care.
Although the principles help to make clear what international law is regarding impunity, they do not do much to expand state’s obligations to end impunity for human rights violators. The principle’s concentration on “serious crimes,” for example, which they define as covering war crimes, crimes against humanity, and grave breaches of international humanitarian law, leaves out other human rights violations - including in some cases extra-judicial executions and disappearances. The report including the principles was transmitted by the Subcomission to the UN Commission on Human Rights, which will now seek comments by states, international organizations and NGOs. Mr. Joinet’s report can be found online at http://www.unhchr.ch/html/menu4/subrep/97sc20r1.htm
