Introduction: Accountability in the Aftermath of Mass Atrocity
BY JO-MARIE BURT
In spring 2008, the Transitional/Transnational Justice Working Group, a group of Mason faculty and graduate students interested in issues of global justice and human rights, launched the Human Rights, Global Justice and Democracy Project. The project’s central concern is to examine how societies that experienced mass atrocity cope with the legacies of violence and polarization, with special focus on efforts to bring alleged perpetrators of human rights crimes to justice and the social and political conflicts surrounding such efforts.
The project, generously funded by the Latin America Program of the Open Society Institute, proposed to examine ongoing efforts in Latin America to hold perpetrators of grave violations of human rights accountable.1 The project was especially interested in examining the domestic and global impacts of the trial of the former president of Peru, Alberto Fujimori, who —after eluding justice for several years— was finally extradited to Peru and put on trial for grave violations of human rights.2 In April 2009, the Peruvian Supreme Court found Fujimori guilty of crimes against humanity and sentenced him to 25 years in prison, and the verdict was upheld on appeal.3
Practitioners, activists and scholars have been debating the efficacy, viability, and sustainability of criminal prosecutions of those who ordered or participated in grave violations of human rights, as well as international crimes including genocide and crimes against humanity, since the Nuremburg trials. Indeed, over the course of the past decade an entire new field, under the rubric of ‘transitional justice,’ has emerged to address these and related issues.4 The discussion has taken on special intensity in the past decade, as global norms have evolved to favor accountability in the aftermath of atrocity even as mechanisms designed to enforce the accountability agenda at the local, national, and international levels have, despite important achievements such as the Fujimori trial, proven woefully inadequate to the task.
Inspired by this set of problems, the Transitional/Transnational Justice Working Group convened an international symposium entitled “Accountability after Mass Atrocity: Latin American and African Examples in Comparative Perspective” To examine accountability efforts from a comparative and cross-regional perspective. Thanks to support from the Center for Global Studies and Point of View at the Institute of Conflict Analysis and Resolution at George Mason University, we brought together more than a dozen distinguished scholars and practitioners in the transitional justice field to discuss the efficacy and challenges of accountability efforts, raise foundational questions about the principles that underlie responses to mass atrocity, and advance our understanding of how these play out in practice through comparative and cross-regional analysis. This issue of Global Studies Review offers reflective analyses from several of our conference participants, who explore key concepts in the debate on accountability and justice in the aftermath of mass atrocity.
New scholarship based on empirical research of accountability efforts in Latin America, Africa, the Balkans, and elsewhere has the potential to help us unlock some of the current stalemates in the literature. The essays offered in this issue of GSR highlight some of the new trends both in the theory and the praxis of transitional justice, particularly on the role of criminal prosecutions as one key —if contested— ingredient to the broader efforts to achieve justice in the wake of mass atrocity. Susan Benesch reminds us of the obligations international treaties impose on states to investigate, prosecute, and punish those responsible for grave violations of human rights, crimes against humanity, and genocide. Criminal prosecutions of such atrocities are multiplying in Latin America, Africa, the Balkans, and elsewhere. Yet, impunity remains the norm in many instances, revealing an enormous gap between the imperatives of international law and day-to-day practice in both Latin America and Africa.
Mark Drumbl highlights some of the difficulties international and local tribunals face in Africa, but also notes that on the normative level, these tribunals have made important contributions to the development of international criminal law. International tribunals have expanded our definitions of what constitutes genocide —which now includes sexual violence against women, for example. Moreover, international law is increasingly being used in domestic jurisdictions, as Ronald Gamarra notes was the case with the Fujimori verdict. Thus, despite problems in specific instances, international tribunals and their rulings have the potential to stimulate new law and new applications of the law in diverse contexts.
There is an ongoing debate in the transitional justice literature about the appropriate site of justice.5 International criminal tribunals are seen as a critical development for global justice efforts, but they are also sharply criticized as being too distant and disconnected from local contexts, and for their limited effects for building domestic governance based on the rule of law. Some scholars have avidly championed local justice efforts, such as the gaçaca courts in Rwanda, as an alternative to global justice, but as Stephen Lamony notes, in many cases these indigenous institutions were designed to deal with minor crimes and misdemeanors, not massive violence and genocide. While the Fujimori case suggests that national judiciaries can respond to the challenge of such massive crimes, as Ronald Gamarra notes, it is also certain that judicial systems in many countries simply lack the capacity to administer justice. This is precisely what led civil society groups around the world to champion the creation of the International Criminal Court.
One key difference that has favored the progress of domestic prosecutions in Latin America as compared to Africa has been the availability of a regional system of human rights protection —the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights, both institutions connected with the Organization of American States (OAS)— which became important sites for civil society groups from several Latin American countries to press their claims for justice when domestic tribunals failed in that task, with important, though hardly uniform, effects.6 For example, the 2001 decision in the Barrios Altos case (one of the cases for which Fujimori was convicted), the Inter-American Court ruled that amnesty laws intended to shield perpetrators from criminal prosecution contravene the American Convention on Human Rights and are therefore null and void. This has provided opportunities for judiciaries in many Latin American countries to advance criminal prosecutions in human rights cases, though in some nations, such as El Salvador, amnesty laws remain as yet unchallenged.
This leads to a second observable difference between Latin America and Africa, and that relates to state capacity. Despite historic problems of weak, politicized, and corrupt judiciaries in Latin America, judicial reform and other factors have facilitated in at least some cases more autonomous judiciaries. In Africa state capacity, especially in relation to domestic judiciaries, remains underdeveloped and hence less available as an option for prosecuting criminals. In other cases, as Hugo Van Der Merwe argues in his essay in South Africa, the problem is less state capacity than political will.
Criminal justice is, perhaps necessarily, selective and limited in reach. In this sense, trials can at best be one of many mechanisms societies adopt to achieve global justice both for the individual victims of violence as well as for society at large. Other mechanisms have and will continue to be necessary to address the complex legacy of atrocity, including truth commissions, reparations programs, memorial sites, and so on. While for many activists amnesties remain taboo, scholars David Backer and Leigh Payne suggest in their respective articles that amnesties remain part of the transitional justice landscape. Not all amnesties are alike, they argue, and their work offers important insights into public perceptions of amnesty laws in Latin America and Africa, as well as how amnesties relate to other transitional justice mechanisms. At the same time, as former president of the Inter-American Court Juan Mendez has argued, if there is no accountability for crimes against humanity, genocide, and grave human rights violations, impunity robs surviors and victims of their internationally recognized rights to truth and justice. It also undermines essential democratic values such as equality before the law. Criminal prosecutions are also a form of deterrence of future abuse, a point that is forcefully brought home in the essay by Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights, who argues in favor of criminal prosecutions of those who authorized and implemented torture by U.S. personnel in the wake of 9-11.
Criminal trials are not ends in themselves. They cannot be the sole mechanisms of transitional justice, for they can provide only a certain kind of justice: punishment for those who perpetrated heinous crimes. Certainly other types of justice are also necessary: reparations, for example, are also a central demand of victims and survivor groups, as are demands for truth-telling, which is necessary to set aside distorted versions of the past to set the historical record straight about what occurred and why. But without criminal trials, a culture of impunity can set in that may undermine further gains in democratic governance and rule of law. As Graeme Simpson of the International Center for Transitional Justice noted during the May conference, “A bicycle thief won’t respect the law if assassins get away with murder.”
Jo-Marie Burt is Associate Professor of Political Sciences at George Mason University and Director of the Human Rights, Global Justice and Democracy Project at the Center for Global Studies at Mason.
- The project, “Efforts to Achieve Accountability for Human Rights Violations in Latin America: The Fujimori Trial in Comparative Perspective,” was carried out in collaboration with the Instituto de Defensa Legal (IDL), a Lima-based NGO, and the Washington Office on Latin America (WOLA). [↩]
- The Working Group organized a conference series on the Fujimori trial, including a two-day event in Lima that examined the factors that made the Fujimori trial possible, and an international symposium in Washington, D.C. that evaluated progress in —and some of the setbacks to— the accountability agenda in the region. [↩]
- Jo-Marie Burt, “Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations,” The International Journal of Transitional Justice, Vol. 3, No. 3, 2009, 384–405. [↩]
- The term ‘transitional justice,’ first coined by legal scholar Ruti Teitel, emerged in the context of transitions from authoritarian rule in the Southern Cone of Latin America and the emergence of societal demands for truth and justice in the wake of massive state violence, and has evolved to encompass a rich interdisciplinary field of research and praxis examining the diverse mechanisms societies adopt to address prolonged periods of violence and authoritarianism. See Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000). The meaning and utility of the concept continued to be debated by scholars and practitioners. See Naomi Roht-Arriaza and Javier Mariezcurrena, Eds., Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (New York: Cambridge University Press, 2006). [↩]
- See for example the November 2009 special issue of the International Journal of Transitional Justice, which is dedicated to this theme. [↩]
- See for example the excellent compilation, Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin America (Washington, DC: Due Process of Law Foundation, 2007). [↩]
