Gross Violations Of Human Rights Research Articles

The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States

This article provides a framework for addressing concerns about retributive justice in states recovering from national traumas and it uses South Africa's Truth and Reconciliation Commission (TRC) as its focal point. The article begins by providing an overview of the origins and operations of the TRC, and then explores several conceptual and legal challenges that the TRC faced. These challenges are important to understand for two purposes: first, they highlight the probable criticisms that might emerge as other recovering states consider the particularized amnesty proceedings that were the heart of the TRC; and second, they provide a particular illustration of what I call the social expressivist opposition to the TRC. The paper then engages the TRC's justification of the practice of particularized amnesty, a justification that emanates from the TRC's account of truth, reconciliation, and justice. Here, I scrutinize not only the theory of justice propounded by the TRC, but also the theory of restorative justice offered by some of the TRC's most astute defenders. This examination reveals deficiencies that should renew our interest in the conceptual resources inhering in retributivism as a theory of criminal justice. There is an obvious tension between the TRC's defence of particularized amnesty and the challenges launched against it by those who adhere to the social expressivist view. The paper thus seeks to mediate this conflict by outlining the confrontational conception of retributivism - an account that I offer to answer not only why retribution for wrongdoing is internally justified and obligatory, but why it is also the sole province of the state in modern society. The theory offered here, which is premised on familiar notions of equal human worth and liberty under law, assures that in the face of known wrongdoing, the state responds as our agent to diminish the evidence of unequal liberty claimed by perpetrators through their actions. One conclusion I draw from this theory is that retributivism, once properly understood, need not be viewed as inextricably dependent upon traditional concepts of proportionality. Thus, under certain circumstances, a retributivist vision of punishment can find an authentic expression in particularized amnesty proceedings. In particular, I indicate how the confrontational conception of retributive justice differs from others insofar as it limits what kind of leniency the state may demonstrate in response to gross violations of human rights. In short, the paper defends the thesis that particularized amnesty proceedings are compatible with retributive justice properly understood.

Victims as the Heart of the Matter: The South African Amnesty Process as Promised in Practice

The South African amnesty process, and the truth and reconciliation commission of which it is a part, has been hailed as one of the most innovative and successful commissions to address a history of gross violations of human rights in a transitional society. This paper begins to look at the accomplishments of the amnesty process from the perspective of victims - those who suffered violations of their fundamental rights at the hands of those individuals who applied for amnesty. In particular it looks at the treatment, role, and perspectives of victims as reflected in the 921 amnesty decisions published to date, and in selective transcripts of amnesty hearings.

The Truth Commission and Post-Apartheid Literature in South Africa

rom the beginning, it was clear that South Africa's and Rec- onciliation Commission (TRC) would be different from the cold, bureaucratic, and mostly in camera proceedings of similar bodies in Chile and other nations in transition from authoritarian regimes. Rather than issuing blanket indemnity the agents of state terror, as in Chile, amnesty in South Africa was granted on an individual basis those who gave disclosure of politically motivated crimes. Thus amnesty was used as a tool excavating the truth about the past. Moreover, South Africa's Commission attempted balance the perpetrator-oriented nature of the amnesty proceedings with a Human Rights Violation (HRV) Commission that heard stories from survivors and families of the victims of apartheid-era political violence. The victim hear- ings were decidedly nonjudicial, involving no cross-examination of testi- mony, and were intended provide a safe space some victims of human violations have their accounts of the past made part of the offi cial record. Indeed, two of the principal goals of the TRC were establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights committed within a thirty-four-year period from 1960 1994 (Justice in Transition 5-6), and compiling a report of the Commission's fi ndings and conclusions. Wilhelm Verwoerd argues that the TRC was largely successful in its efforts to expose as much truth as possible about those (human rights) violations that tend be cloaked in denials and would otherwise, in all likelihood, have remained obscured from the public eye. Through the public testimonies of so many victims and the more or less full disclosures by those responsible gross violations of human at amnesty hearings, the powerful 'conspiracy of silence,' the temptation forget (. . .) has been seriously challenged (160). The TRC was designed at least lay the groundwork reconciliation between the agents and supporters of the former white minority regime and the opponents of apartheid. As the banner hanging at every hearing proclaimed, is the Road Reconciliation. This formulation was perhaps overly optimistic, as the task of determining the Truth about the past based on thousands of confl icting testimonies is a hopelessly muddled enterprise that nevertheless requires the commissioners make absolute determinations of guilt and responsibility. Sometimes the rhetoric of the Commission minimizes this uncomfortable demand by emphasizing the need present multiple perspectives and versions. In his foreword the Final Report, example, former Archbishop Desmond Tutu, Chair- person of the Commission, refers the past as a jigsaw puzzle of which the TRC is only a piece, and alludes a search for the clues that lead, endlessly, a truth that will, in the very nature of things, never be fully revealed (TRC Final Report 4).

Torture under Police Remand in Bangladesh: A Culture of Impunity for Gross Violations of Human Rights

There is an ongoing trend of custodial tortures leading to death and irreparable bodily injuries in Bangladesh - the worst atrocities often take place under police remand - examining the practice o...

Africa’s Intrastate Conflicts: Relevance and Limitations of Diplomacy

The African continent remains besieged by many conflicts. Since 1970, Africa has seen more than thirty wars which have resulted in more than half of all war-related deaths worldwide and have produced about 9.5 million refugees(The Observer, June 15, 2003). The conflicts have led to genocide in Rwanda and gross violations of human rights, including gruesome mutilations of large numbers of people, in Sierra Leone, Burundi, the Democratic Republic of the Congo, Angola, the Sudan, and Uganda. In addition to causing the collapse or near collapse of some states, these conflicts have produced severe economic dislocation and disruption in the provision of public services. Moreover, there are growing indications that they have directly or indirectly exacerbated the spread of HIV/AIDS and other infectious diseases.

The complementary and conflicting relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission

Societies emerging from political turmoil and civil unrest associated with gross violations of human rights and humanitarian law face the crucial question of how to deal with these atrocities and put the past in its place. Since the 1980s, this problem has been a major preoccupation of international law and scholarship. The traditional responses include outside intervention in such states pursuant to Chapter VII powers under the United Nations Charter, grants of conditional amnesty to perpetrators of war crimes and crimes against humanity, grants of some form of unconditional amnesty, and prosecution of perpetrators.Nowhere is this question more pressing than in Sierra Leone, which recently emerged from a ten-year civil war characterized by systematic, serious and widespread violations of human rights and international humanitarian law. The Government of Sierra Leone had to make a choice between these four traditional strategies for dealing with these pervasive human rights violations.

Developments in the law of genocide

Probably more has happened in the past five years to the Convention for the Prevention and Punishment of the Crime of Genocide than in the previous 50, that is, in the half-century following its adoption by the United Nations General Assembly on 9 December 1948.Indeed, for the first five decades of its existence, the Convention was largely ignored by lawyers, viewed by most of them — as Georg Schwar-zenberger famously remarked — to be ‘unnecessary when applicable and inapplicable when necessary’. Over the years there had been attempts to apply the ‘g-word’ to a wide range of atrocities and gross violations of human rights, including those of China in Tibet, of Iraq against the Kurds, of the United States in Vietnam as well as towards its African-American and aboriginal populations, of Pakistan in Bangladesh, the Khmer Rouge in Cambodia, and Israel in Lebanon. But in each of these cases, some interpretative flair was required in order to stretch the definition to fit the crimes, and the efforts were not always very convincing. In 1990 scholars Frank Chalk and Kurt Jonassohn wrote that ‘the wording of the Convention is so restrictive that not one of the genocidal killings committed since its adoption is covered by it’.

Overcoming tensions between family and judicial procedures

Mechanisms designed to address the phenomenon of persons missing as a result of armed conflict or gross violations of human rights are examined in this article in terms of how well these mechanisms address three categories of needs of families of missing persons: information, accountability and acknowledgment. The analysis highlights the importance of establishing a plurality of mechanisms which respond to the diverse needs and priorities of victim families.

East Meets West: Human Rights and Democracy in East Asia (review)

Reviewed by: East Meets West: Human Rights and Democracy in East Asia Jerry Burke East Meets West: Human Rights and Democracy in East Asia. By Daniel A. Bell. Princeton: Princeton University Press, 2000. Pp. 369. In Daniel Bell's extremely rich new book, East Meets West: Human Rights and Democracy in East Asia, the medium is part of the message. The book is written in dialogue form, and its central message is the need for more cross-cultural dialogue between political theorists trained in Western and East Asian societies. Bell criticizes "West-centric perspectives," which assume that every society aspires to the ideal of [End Page 265]becoming a Western-style liberal democracy. West-centric perspectives foreclose the possibility of a genuine dialogue where both sides open themselves to learning something new and revising their initial assumptions. Genuine dialogue is needed to figure out which arguments for the promotion of human rights and democracy resonate best in East Asian societies. If Bell's text focused merely on this strategic aim, then his own account could be accused of being "West-centric," but Bell goes on to argue that non-Western input would also modify international understandings of human rights and democracy. Over the course of his book, Bell suggests a number of reasons why Western theorists are reluctant to engage in genuine dialogue with East Asian scholars. Western theorists suspect that political leaders in East Asia self-servingly use the idea of "Asian values" to justify authoritarian rule rather than make a constructive contribution to the cross-cultural dialogue on political values (p. 8). Bell hopes to avoid this problem by looking at the work of East Asian intellectuals who draw on their cultural traditions to explore areas of commonality and difference with Western views on human rights and democracy. Given this preference for intellectuals over politicians, Bell's choice of Lee Kuan Yew as the main interlocutor in part 2 of East Meets Westseems strange. However, Singapore's former prime minister has been a very articulate defender of Asian values. In constructing the conversations in part 2, Bell quotes at length from Lee's public statements and it is a testament to Bell's skill at constructing a believable dialogue that he is able to integrate these quotations into a seamless, flowing conversation. Bell's text also suggests that Western intellectuals are not open to a genuine dialogue concerning democracy because they assume that there is no alternative to democracy (p. 127). He argues that Westerners should be open to dialogue with decent non-democrats, where non-democratic regimes are decent if they do not endorse or practice gross violations of human rights (p. 116). Indeed, Bell makes it clear that the subject matter of a dialogue between East and West does not concern "customary international law." There is already broad agreement that slavery, genocide, murder, torture, prolonged arbitrary detention, and systematic racial discrimination are wrong. The real debate concerns "criminal law, family law, women's rights, social and economic rights, the rights of indigenous peoples, and the attempt to universalize Western-style democratic practices" (p. 3). Bell's text focuses almost exclusively on the last of these issues, and part 2 is an example of how a dialogue between a Western democrat and a decent non-democrat might proceed. The very title of Bell's book might raise the hackles of commentators like Edward Friedman, who was recently critical in this journal of simplistic and essentializing contrasts between a democratic West and a despotic East. 1Bell hopes to avoid this pitfall by employing a "multiple-voices approach" (p. 12). His fictitious Western interlocutor converses with characters from Hong Kong, Singapore, and mainland China. By having this interlocutor engage in these different conversations, Bell hopes to convey the idea that there are a plurality of Asian voices in the debate on human rights and democracy (p. 12). His interlocutor's name is Sam Demo, who is presented as the East Asia program officer for a fictitious U.S.-based nongovernmental [End Page 266]organization called the National Endowment for Human Rights and Democracy. In Hong Kong, Demo talks to a human-rights activist and business consultant named...

Post apartheid South Africa's democratic transformation process: Redress of the past, reconciliation and ‘unity in diversity’

1However, a good understanding of the complex issues of transformation in this divided society requires a broader approach. Reconciliation involves not only telling the truth about the past and forgiveness, but also requires reparation for material and other forms of deprivation and the restoration of a human community in a spirit of respect for human rights and democracy. Indeed, it also necessitates the creation of a society within which the chances of reoccurrence of the kinds of gross violations of human rights that occurred in the past are reduced to a minimum. Consequently, the evaluation of the constitutional negotiation process and the way in which the themes of redress of the past, overcoming the legacy of apartheid and nation-building played their role are equally if not more important. The provisions of the Bill of Rights as well as some other sections of the Constitution are important building blocks in this reconciliation and transformation process. The ongoing implementation of these constitutional provisions and the perceptions surrounding that process also has an important impact on the actual transformation and reconciliation process. A brief description of the most striking features of the apartheid regime is followed by an explanation of the overall constitutional negotiation process, which is particular to South Africa. Subsequently, the constitutional basis, relevant legislation and a brief description of the TRC process, as well as its current status and overall assessment of its actual impact on reconciliation, are discussed. A fourth paragraph then goes on to analyze the constitutional negotiations with respect to the provisions dealing with controversial issues like equality, language and education, self-determination and minority rights, and land. The implementation of the constitutional provisions with respect to equality, language and education, self-determination and land reform is ongoing and confronted with several hurdles. Nevertheless, there is a steady progression and the concomitant transformation will hopefully entail a higher level of reconciliation in South African society.

To Intervene or Not to Intervene, That is the Question

The prohibition against intervention in the affairs of other sovereign states has been modified by licences permitting intervention for the purpose of combating external aggression or gross violations of human rights. Additionally, a norm which would mandate humanitarian intervention may be evolving. Because these changes lack principled legal bases, any intervention runs the risk of triggering large-scale armed conflict.

Legal constraints on the international community's responses to gross violations of human rights and humanitarian law in Kosovo, east Timor, and Chechnya

Legal constraints on the international community's responses to gross violations of human rights and humanitarian law in Kosovo, east Timor, and Chechnya

Symbiosis: mass media and the Truth and Reconciliation Commission of South Africa

One of the most important and visible elements of South Africa's transition to democracy has been the Truth and Reconciliation Commission (TRC). Without mass media - particularly broadcast media - the TRC's much-heralded process of providing a public platform for victims of gross violations of human rights and forging a new national history would have been severely limited. This article teases out the relationship between mass media and the TRC, focusing primarily but not exclusively on broadcast media. It draws on two analytical frameworks from the field of media studies: Dayan and Katz's Media Events (1992) and Hayman and Tomaselli's `Broadcasting Technology as an Ideological Terrain' (1987). Particular attention is paid to the TRC's institutional hearings on the media. These explorations help us to better conceptualize how and why mass media have played such a unique and crucial role in South Africa, both under apartheid and throughout the TRC process.

Between Pinochet and Kropotkin: state terror, human rights and the geographers

The lecture develops a civil perspective on states engaged in systematic but arbitrary armed violence against their home populations: what the Nürnberg Tribunal called ‘government by terror. Civilians, or most of them, appear uniquely vulnerable to such violence and the gross violations of human rights accompanying it. Moreover, this, rather than wars as usually understood, involved the largest uses of armed force in the twentieth century. It was the main cause of violent death of civilians. Two geographical concerns are addressed: the ‘geographic' nature of such violence, and its implications for the thought and practice of geographers. They are explored especially through the work of two geographers whose lives bracket the past ‘century of violence, Peter Kropotkin and Augusto Pinochet. Pinochet's dictatorship in Chile fully illustrates the scope of state terror. Geographies of coercion are seen in the system of political prisons and torture, the making of a society and landscapes of fear, and the unmaking of civil life. The atrocities also violated Chile's former commitment to human rights initiatives. Pinochet's geographical work, especially the geopolitics, is in accord with, or offers no counter to, the repressive, authoritarian regime he headed, Kropotkin's descriptions of imperial Russia show many parallels to the Chilean case, and the kind of repressive state power that he rejected to dedicate his life to its vulnerable and innocent victims. Almost alone among geographers he developed a coherent, influential vision of violence, social justice and interpersonal ethics, based on geographical investigations as well as an anarchist perspective. These two may also seem to represent conceptual and lived extremes ‐ respectively, an extreme deployment of state violence, and a total rejection of the state because of the facts and potential of violent repression. Unfortunately, enquiries into violence and the state, let alone terrorist states, are virtually absent from contemporary geographical scholarship. Its emergence as an essentially ‘civil field' has reinforced this ‐ when it should have had the opposite effect. In part this involves a failure to temper our long, and less‐than‐critical, service to the state in all areas, and a continuing governmental mind‐set. It is suggested that the absence of critical reflection on the contested relations of civil society and the state, especially as they involve state violence, undermines the intellectual value and ethical standards of our work.

Domestic Violence

Summary Domestic violence in same-sex relationships is still a rarely spoken about phenomenon that occurs far too often. This article explores this heinous behavior as a gross violation of human rights and explores how and why domestic violence may happen. Strategies for professional social work intervention for both the victim and the perpetrator are explored, and myths about same-sex domestic violence are exploded.

The Medical Profession and Human Rights: Handbook for a Changing Agenda

Gross violations of human rights occur in many parts of the world. The nature of the media ensures that many of these are brought to our attention. But the need for equality of rights goes beyond these gross violations. The World Health Organization declared in 1970 that “health is a human right.” Clearly, doctors have a role to play in making this a reality. The BMA's new report on human rights and the medical profession begins to examine the …

Review of Long Night's Journey into Day: South Africa's Search for Truth and Reconciliation

The Oscar-nominated documentary Long Night's Journey into Day provides a compelling view into the impact of the Truth and Reconciliation Committee on the lives of those who participated in it, both as perpetrators and survivors of gross violations of human rights. What does the film, made by Americans and primarily for Americans, tell us about race relations in the United States and South Africa? The author examines the possibilities and pitfalls of examining the TRC for an American audience.

Conference paper. Conflict prevention, management, and resolution: Africa - regional strategies for the prevention of displacement and protection of displaced persons: the cases of the OAU, ECOWAS, SADC, and IGAD

I. INTRODUCTION Over the past ten years the international humanitarian protection regime for displaced persons has been strengthened by, for example, the emergence of protective guidelines for internally displaced persons (IDPs).(1) Ironically, during the same period, many states have in theory and practice failed to respect the norms of various protective regimes.(2) During times of interstate and intrastate armed conflict or mass social unrest (e.g., gross violations of human rights),(3) combatants and other perpetrators have generally ignored universal refugee, human rights, and humanitarian protective norms. This has not only exacerbated Africa's refugee and IDP dilemma, but also resulted in an incalculable number of war crimes and crimes against humanity being committed against civilians, humanitarian workers, peacekeepers and combatants. As a result, African people, and specifically women and children, have suffered the greatest indignity,(4) and to make matters worse, the international community has yet to forward a viable solution to the problem. In the absence of the international politics of the Cold War, Africa's geo-political stock has greatly devalued, and its former stockbrokers have not been genuinely interested in finding new ways to proactively re-engage and reinvest. They have simply ignored the need to re-conceptualize the nature of their relationships with African states, which has mistakenly caused many Western policy-makers to be convinced that they have no strategic interests in Africa. Others like the United States purport to have an African policy. During the Clinton Administration one commentator noted that [s]tripped of its Clintonian rhetorical veneer, U.S. policy toward Africa is extractive commercial, limited security and selective humanitarianism--remain the cardinal ordinances of US foreign policy towards the continent.(5) It is yet to be seen whether the Bush Administration will adopt a progressive policy toward Africa. Although U.S. Secretary of State Colin Powell claims to have a keen interest in African issues, his designee for Assistant Secretary of State for African Affairs will serve as the first indicator of his genuineness. Such policy is in theory and practice cosmetic and instituted to pacify domestic constituencies. This may explain why, similar to the United States, many countries refuse to provide genuine human resources (e.g., peace-keepers and peace-enforcers) to avert conflict and alleviate human suffering in Africa when there is no overriding domestic strategic interest. The cases of Liberia, Somalia, Rwanda, Burundi, and Sierra Leone clearly show that the risks involved with saving African lives in Africa far outweigh the benefits. Furthermore, the case of Kosovo unmistakably demonstrates that, unless people of European descent are threatened with death or suffering on a grand scale the more civilized nations of the North, and the international organizations which they control, are reluctant to expend human and tangible resources to save lives. This is especially true with respect to the Dark Continent, where the international community spent $0.11 a day per refugee in Rwanda and Sierra Leone, compared to an approximate $1.50 a day per refugee in Kosovo.(6) Such disparities lead one to conclude that race and geo-politics are as much determining factors as national strategic interests when it comes to international peace and security, especially as it relates to Africa. Notwithstanding, perhaps, European and American forces should not be employed for peace-keeping in Africa, but rather provide tangible resources such as logistics, reconnaissance, and communications support to African peace-enforcers, as the records of the former in Africa are at best dismal. On this point, one analyst comments, It seems that every peacekeeping operation has had its share of horror stories: US soldiers offending Muslim values by skinny-dipping in Somalia; Canadians torturing and murdering Somali civilians; Dutch peacekeepers `luring Bosnian children into a field to check for land mines by throwing sweets into the area'; and UNTAC's Bulgarian contingent becoming involved in prostitution and smuggling. …

Rodríguez v. Uruguay

Human rights — Torture — Allegations of acts of torture committed by former military regime — Gross violations of human rights — Whether Uruguay having obligation to investigate violations of Covenant rights by prior regime — State Party having obligation to grant effective remedy — Whether amnesties and Uruguayan Limitation Act incompatible with obligations of State Party — Whether Uruguay violating International Covenant on Civil and Political Rights, 1966, Article 7 in connection with Article 2(3)

A guerra do Kosovo e a desintegração da Iugoslávia: notas sobre a (re)construção do Estado no fim do mil

The war in Kosovo was the first armed conflict in which NATO was involved since its creation, and the largest humanitarian crisis in Europe since the end of World War II. The operation was seen by many analysts as an attempt by the US to extend its influence and hegemony in the continent. The conflict, however, may be interpreted in the light of the evolution of the practice of humanitarian interventions in the post-Cold War period, especially when gross violations of human rights occur in regions where the nation-state is undergoing a process of fragmentation. The article discusses the intervention in Kosovo from the perspective of the systemic instability caused by the collapse of the Yugoslav State after the end of the Cold War. The redefinition of the rule of sovereignty is implicit in the international community's efforts to establish order and stability in face of the threat humanitarian crises pose to international security.