- Accountability for Past Abuses
This study focuses on the debates about holding perpetrators of massive human rights violations accountable. It also focuses on the experience, in Latin America and elsewhere, of attempts to restore truth and justice to the legacy of abuse remaining from the recent past. That experience is necessarily diverse and rich in variations, but it offers some principles of universal applicability.
In only a few years the international community has made considerable progress toward the recognition that a legacy of grave and systematic violations generates obligations that the state owes to the victims and to society. Considerable disagreement remains, however, as to the content of those obligations and as to how they should be fulfilled. This article attempts to show that those obligations (a) are multifaceted and can be fulfilled separately, but (b) should not be seen as alternatives to one another. The different obligations are not a menu from which a government can pick a solution; they are in fact distinct duties, each one of which must be complied with to the best of the government’s abilities. In this context, prosecutions and trials, as long as they are held under strict fair trial guarantees, are a necessary and even desirable ingredient in any serious effort at accountability.
This article challenges the view that because democratic leaders know best what their societies need at any given time, the international community should not attempt to impose any rules about what should be done [End Page 255] about the recent past. This article also disputes the view that democratic leaders should strive to restore truth to the analysis of the recent past and, in general, forego attempts to restore justice, at least by way of criminal prosecutions (even while accepting that universal principles govern the problem).
II. Multiple Dimensions of the Accountability Problem
The experience accumulated since the early 1980s on this topic continues to be enriched. For example, the new South Africa is embarking on the most ambitious program to combine truth telling, clemency and prosecution, and eventual reconciliation. Undoubtedly, those who have designed the South African program have benefitted from the Latin American and East European experiences, but it is hard to find a place where so much thoughtfulness and creativity has gone into this grave matter of public policy as in South Africa. The ongoing experiment with justice that the United Nations has begun with the creation of the war crimes tribunals for the former Yugoslavia and for Rwanda has also served to broaden horizons and challenge assumptions. Two or three years from now, analysts will have to reexamine everything said today about truth and justice in light of what these experiments produce.
The accountability problem has legal, ethical, and political dimensions, and it is imperative to recognize and tackle all three. It is a mistake for the human rights movement to allow itself to be painted into the corner of either a “legalistic” or a “moralistic” position. Inevitably, many have seen the movement as grossly uncompromising, intransigent, terribly naive about political realities, vindictive, and opposed to reconciliation. One must, therefore, be ready to take a sober and realistic view of political constraints in proposing accountability measures. But such a view does not necessarily result in realpolitik and surrender of principle. In fact, it is possible to argue that a program of truth and justice is not only the right thing to do, but also politically desirable because it goes a long way toward realizing our idea of democracy.
III. Framing the Questions
The multiplicity of dimensions mentioned above has changed the way human rights organizations conceive their work and how they work to promote and defend fundamental freedoms. They no longer look strictly for the facts that constitute a violation of a universal standard, but trace how governmental institutions respond to each episode. They apply this approach [End Page 256] not only to a recent epidemic of abuses directed against a political enemy, but also to the “endemic violations” present in our democracies: police brutality, rural violence, poor prison conditions, the plight of minorities, and domestic violence. This notion of an institutional response recognizes that abuses will...