State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law

Abstract

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The South African truth and reconciliation commission as a therapeutic tool

“…The purpose of such a meeting would be to attempt to facilitate empathy between the parties for one another, and to explore restitution for damage caused by the wrongdoing. Examples of such meetings in other settings are the community conferences found in Australia and New Zealand (Moore, 1993;Sche, 1998). For meetings of this nature to be successful, we believe they must be culturally appropriate,¯exible, and preferably participant driven.…”

“…want the wrongdoer to be punished, because each of us has``a profound sense of moral equilibrium compelling us to demand that people pay for the harm they have done to others'' (Jacoby, 1983, p. 361). In international law the latter view is shared by authors such as Roht-Arriaza (1990), who believe that states have an armative obligation to investigate grave human rights violations and take action against the responsible parties. However, is retributive justice necessarily the best form of justice in situations such as these?…”

“…Second, obtaining retributive justice is not easy as the NuÈ remberg trials demonstrated (Botman, 1997;Levison, 1973;Taylor, 1992;Verwoerd, 1997). It may be expensive and dicult to demonstrate the guilt of perpetrators of human rights abuses beyond reasonable doubt.…”

“…Many therapists believe that forgiveness, even if it is not communicated, is necessary to free survivors of the control of past traumatic events by reducing the fear, guilt, and anxiety that may be associated with it (Fitzgibbons, 1986;Hope, 1987). In respect of anxiety, there is tentative empirical support for this hypothesis (see Subkoviak et al, 1995).…”

Self-Critique, (Anti) Politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement

“…In 2001, it issued its decision in Barrios Altos v. Peru, which was considered path-breaking for its finding that self-amnesty laws, such as those in Peru, are "manifestly incompatible with the aims and States). 81 For a sense of this debate through the 1990s, see Roht-Arriaza 1990, Cohen 1995, Zalaquett 1995, Cassese 1998, Scharf 1999, Minow 1999 For a lively debate over the nature of South African amnesty, see Meintjes and Mendez 2000, 88, arguing that South African amnesty "is a significant step in the evolution of domestic efforts to deal with the past in a manner that satisfies the requirements of international law," and Rakate 2001, 42, responding that South Africa's Truth and Reconciliation Commission was "totally unsatisfactory, but that it is what South Africans had to accept, because no other solution was politically or materially conceivable," and contending that victims received nothing in the way of compensation and that the perpetrators remain convinced of their innocence). For a counter to Rakate, see Meintjes and Mendez 2001. 16 spirit of the [American] Convention [of Human Rights]" because they "lead to the defenselessness of victims and perpetuate impunity."…”