Judging the Past: State Practice and the Law of Accountability

Abstract

As dictatorships of one sort or another around the world give way to nascent democracies, states, international organizations and non-governmental actors are facing head-on the dilemmas inherent in political transitions. For governments, transitions represent both an opportunity and a hazard — an opportunity to judge the evils of the prior regime and the figures behind them, or to decide not to judge them; and a hazard of alienating or angering key constituencies — victims or tormentors — within the polity. The methods used for accounting for past violations of human rights will say much about a new government's commitment to protecting human rights prospectively. At the same time, new regimes will surely be guided by careful political calculations, whether it be for survival against still potent elements of the previous administration, manipulation of the past in order to justify their own prior and current programmes, or advancing a process of national reconciliation among former enemies. For academic observers and advocates, especially legal ones, transitional situations offer their own opportunities and risks. The opportunity for international lawyers is to appraise the actions and attitudes of states and determine (a) if states are complying with existing International legal duties to prosecute certain crimes; and (b) if any new norms have evolved to govern the ways a new government addresses human rights abuses in the prior regime. State practice is obviously important for determining the contemporary meaning of, and state of compliance with, treaties that provide for such duties. When combined with oplnlo juris, state practice Is also critical in gauging the extent of customary law on these questions. The risk, however, which is inherent in all