crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
Ana Filipa Vrdoljak *
Remembering and reconciliation: an international
law perspective
/I/n matters of justice and rule of law, an ounce of prevention is worth significantly more than a pound
of cure. 1
1. Introduction
Most states are going through or have gone through periods of “transition” which have involved
a collective confrontation with past painful events. However, since the 1990s, there has been a
proliferation of legal and non-legal mechanisms created to promote reconciliation and accountability in
post-authoritarian or post-conflict societies. 2 These mechanisms have been heavily influenced by (and
have influenced) international law norms in the field of human rights, humanitarian law and international
criminal law. Failure to address promptly and effectively the lingering impact of gross violations of
human rights law or serious violations of international humanitarian law impact on victims directly but
diminish the enjoyment of these norms and the integrity of the rule of law for the society generally.
Three discernible trends can be extracted from these developments. First, there has been an
increased and concerted effort to fight impunity including the rejection of wholesale amnesties. Second,
this has been translated into various obligations on states concerning serious violations of human rights
including the right to know, the right to justice and the right to a remedy and non-recurrence. Third,
this in turn, has led to the reinforcement of the rights of victims of these violations to a remedy and
reparations. These three components are interrelated and mutually reinforcing in any efforts towards
reconciliation and the restoration of the rule of law.
This is a brief introduction to a growing body of international standards and broad discourse being
produced at the international level, as a response to the lessons learned since the 1990s. The chapter
is divided into two parts. In the first part, I consider the significant and definite shift in international
society towards fighting impunity in respect of serious crimes under international law since the end of
the Cold War. To this end, I examine the obligation on states to hold perpetrators of such violations to
account, the definition of serious crimes and the reconfiguration of the role of amnesties and vetting in
post-authoritarian and post-conflict societies. In the second part, I outline the practical consequences
of satisfying this obligation upon states which includes the right to truth attained through commissions
of inquiry and the preservation of archives; the right to justice; and the right to reparations and nonrecurrence
for victims and the broader community alike.
2. Combating impunity
The efforts towards accountability for serious crimes under international law are fundamental
for the restoration of the rule of law and functioning of an effective legal order – not a hindrance to
* Anna Filipa Vrdoljak, Senior Lecturer, Faculty of Law, University of Western Australia, Perth, Australia; and Marie Curie Fellow (2006–
2008), Department of Law, European University Institute, Florence, Italy.
1
The Rule of Law and Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General (‘2004 Rule of Law Report’), UN
Doc.S/2004/616, para. 4.
2
See for example, 2004 Rule of Law Report, UN Doc.S/2004/616; Updated Set of Principles for the Protection and Promotion of
Human Rights through Act to Combat Impunity (‘2005 Updated Set of Principles to Combat Impunity’), 8 February 2005, UN Doc.E/
CN.4/2005/102/Add.1; and Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res.60/147 of 16 December 2005, UN
Doc.A/Res/60/147 (‘2005 Basic Principles and Guidelines on Reparations’).
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