crimes committed by totalitarian regimes - Ministrstvo za pravosodje

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Crimes committed by totalitarian regimes others particularly vulnerable to suffering human rights abuses. 37 At a minimum, the terms of reference must: allow it to investigate “all persons alleged to have been responsible for violations of human rights and/or humanitarian law, whether they ordered them or actually committed them /and facilitated them/, acting as perpetrators or accomplices, and whether they are public officials or members of quasigovernmental or private armed groups with any kind of link to the State, or of non-governmental armed movements”; priority should be given to serious crimes under international law especially those against vulnerable groups; enable it to call on the assistance of law enforcement authorities to obtain oral and documentary evidence; protect potential witnesses; preserve evidenced for possible future legal proceedings; and maintain and provide access to the commission’s archive with limitations in respect to disclosing confidential information. 38 Preservation and accessibility to relevant archives is essential to the right to know and duty to remember. 39 Records of past human rights violations are integral to maintaining the collective memory and must not be destroyed, removed, hidden or tampered with. The obligation extends to third states which are expected to cooperate and restore archives. In addition, access must be granted to victims and their families to enable them to realise their rights to remedies and reparations; to alleged perpetrators to mount a defence; to the commissions of inquiry to facilitate their work; to persons engaged in historical research subject to restrictions concerning privacy and security of victims and witnesses. Access cannot be denied on grounds of national security except were prescribed by law and denial is subject to independent review. Persons named in the archives are entitled to be notified, access the record and challenge the accuracy of the information through a right of reply, with that reply being included in the archive. Special attention must be paid to the archives of places of detention or places where serious human rights and humanitarian law violations took place, particularly where their existence had been previously denied. 3.2. The present: the right to justice States should take “prompt, thorough, independent and impartial” investigations of breaches of human rights and international humanitarian law and perpetrators should be charged, tried and appropriately punished. 40 States have the primary obligation to investigate and prosecute serious crimes under international law; however, where they are unable or unwilling to do so, they must cooperate with international or internationalized tribunals. 41 For states whose judiciary has been decimated due to armed conflict or authoritarian rule, experiences at the international level have led to a move away from international tribunals like the ad hoc International Criminal Tribunal for the former Yugoslavia to mixed tribunals or internationalized tribunals like the ones established in Sierra Leone or Lebanon. 42 Also, there has been a proliferation of domestic initiatives like the establishment of specialised civilian courts, prosecutorial offices, police units and so forth to investigate serious human rights violations. 43 Military tribunals must not try violations of human rights law. 44 This must be undertaken by ordinary domestic courts, or in the case of serious crimes under international law by international or internationalized courts. 45 The right to justice overlaps with the victim’s right to equal and effective access to judicial remedy. 46 While the state has primary competence in prosecution of perpetrators, victims and their families 37 Ibid., Principles 7 and 11. 38 Ibid., Principles 8 and 13. 39 Ibid., Principles 14 to 18. Archives are defined as “collections of documents pertaining to violations of human rights and humanitarian law from sources including (a) national governmental agencies, particularly those that played significant roles in relation to human rights violations; (b) local agencies, such as police stations, that were involved in human rights violations; (c) state agencies, including the office of the prosecutor and the judiciary, that are involved in the protection of human rights; and (d) materials collected by truth commissions and other investigative bodies”. Ibid., p. 6. 40 Ibid., Principle 19. See generally United Nations Office of the High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States. Prosecution initiatives, United Nations, New York–Geneva 2006. 41 Ibid., Principle 20. States should also adopt effective domestic laws to enable them to exercise universal jurisdiction in respect of such crimes in accordance with treaty and customary law. They must exercise this obligation in respect of persons against whom there is credible evidence and if they do not to extradite them to face trial before an international tribunal: Principle 21. 42 See generally United Nations Office of the High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States. Maximising the Legacy of Hybrid Courts, United Nations, New York–Geneva 2008. 43 E/CN.4/2004/88, para. 41. 44 E/CN.4/Sub.2/2002/4. 45 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 29. 46 2005 Basic Principles and Guidelines on Reparations, UN Doc.A/Res/60/147, paras. 12–14. 270
Crimes committed by totalitarian regimes should be able to commence private prosecutions, individually or collectively. 47 To render access to justice effective for victims, states are required to disseminate information through public and private avenues about the remedies available for gross violations of human rights law or serious violations of humanitarian law; provide proper assistance to victims seeking access to remedies; render available all appropriate legal and diplomatic modes to facilitate exercise of this right; minimise the impact of proceedings on victims (especially victims of sexual assault) through the provisions of counselling, advising about the court proceedings, their role and the outcome of the proceedings, modifying rules of procedure and evidence, minimize inconvenience to victims and their families, shield their privacy and protect them from intimidation and retaliation; and permitting non-governmental organisations to institute and participate in criminal proceedings on behalf of victims. 48 States must not adhere to rules which foster impunity. In particular, there are limitations on the grant of prescription, statute of limitations, amnesties and right to asylum in respect of serious crimes under international law; and where they impinge on victims’ right to reparations. 49 Full disclosure or the defence of justification, superior orders and official status cannot be used to avoid prosecution and only go to sentencing. 50 Judicial independence must be guaranteed in accordance with the dictates of the rule of law. However, where a judge has been appointed unlawfully because of allegiances they can be relieved of their duties subject to the opportunity to challenge their dismissal and when removed replaced subject to the principle of parallelism. 51 The right to justice is intimately tied to the right of victims (and their families and dependants) to reparations and non-recurrence. 3.3. The future: the right to reparations and non-recurrence States have a duty to provide victims of violations of international human rights law and international humanitarian law with reparations (substantive component) and the ability to pursue redress against the perpetrator (procedural component). 52 A victim has been defined as persons who have “individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions” that are gross violations of human rights law or serious violations of international humanitarian law. The definition encompasses the immediate family and dependants of the direct victim who have also suffered harm. 53 The right to remedies for victims incorporates: equal and effective access to justice; adequate, effective and prompt reparations for harm sustained; and access to relevant information concerning violations and reparation mechanisms. 54 Victims should have access to “readily available, prompt and effective” remedies through criminal, civil, administrative or disciplinary proceedings, including those available at the international and regional levels. 55 These mechanisms should be accessible on an individual and collective basis. Victims and civil society (particularly women and minorities) should be involved in the development and implementation of reparation programmes. These programmes can be legislative or administrative mechanisms funded by international and national sources. 56 47 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add. 1, Principle 19. 48 E/CN.4/2004/88, paras. 43–44; and 2005 Basic Principles and Guidelines on Reparations, UN Doc.A/Res/60/147, paras. 12–13; and 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 33. 49 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add. 1, Principles 22–24. See also Convention on the Non- Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968, entered into force 11 November 1970, G.A. res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, UN Doc.A/7218 (1968); 754 UNTS 73. 50 Ibid., Principles 27–28. 51 Ibid., Principle 30. 52 Ibid., Principle 31. See UDHR, art. 8; ICCPR, art. 2; International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), 21 December 1965, entered into force 4 January 1969, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 UNTS 195, art. 6; Torture Convention, art. 14; Additional Protocol I to the 1949 Geneva Convention, art. 91; and Rome Statute of the International Criminal Court, arts. 68 and 75. See generally United Nations Office of the High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States. Reparations Programmes, United Nations, New York-Geneva 2008; D. Shelton, Remedies in International Human Rights Law, Second edition, Oxford University Press, Oxford 2005. 53 2005 Basic Principles and Guidelines on Reparations, UN Doc.A/Res/60/147, para. 8. 54 Ibid., para. 11. 55 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add. 1, Principle 32 (subject to the restrictions on prescription outlined in Principle 23). 56 Ibid. 271
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CRIMES COMMITTED BY TOTALITARIAN RE
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TABLE OF CONTENTS PREFACE Lovro Št
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IV. REMEMBRANCE, RECOGNITION AND PU
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