Impoverished Countries and Weak Formal Legal Systems - a Past of Mass Human Rights Atrocities - Essay Example

?Introduction Injustice manifests itself in various forms, but the most poignant cases in the recent past have been witnessed in impoverished countries, particularly in Africa. Injustice in such countries is demonstrated in different forms which include violation of human rights, “procedural and distributive injustice” among others (Schabas, 2003: p1038). The victims of these injustices are mainly the weak, poor and marginalized segments in the society. In the spirit of promoting sustainable development in these countries, addressing the past injustices meted on the victims becomes of paramount importance. However, the prevailing economic, legal and political frameworks in these countries are major impediments to achievement of justice especially on human rights atrocities. This paper explores ways in which impoverished countries can deal with past injustices, with particular focus on human rights atrocities. In attempts to deal with the past human right atrocities, the impoverished countries have undertaken a rather unusual approach of forgiveness instead of punishing the perpetrators. Other countries forgive many of the alleged perpetrators and imposing punishment on few individuals considered most culpable of the atrocities. This form of addressing past injustices of human rights atrocities referred as “restorative justice” has become the most popular mechanism for the last four decades especially in developing countries. Several countries including Sierra Leone, South Africa, Rwanda, Ghana and Central African Republic in Africa have embarked and concluded restorative justice to address the past atrocities. Other notable countries in Africa include Nigeria, Morocco (Lyn and Kimberly 2004:2). Similarly restorative justice process has been undertaken in developed countries such as Northern Ireland. Establishment of truth and reconciliation commissions is the most commonly applied method of dealing with the past injustices in Africa. However, before examining the challenges in seeking justice for individuals and collective community for past human rights atrocities, lets examine the opportunities available in the jurisdiction of the international law. There are several opportunities for seeking justice in impoverished countries for crimes against humanity. These include international humanitarian law, international tribunals, non governmental organizations and foreign military intervention to overthrow the regime responsible for mass killings (Benomar, 1993). According to Beckman and Butte(2008: p2), “international law comprises of principles and rules that are universally applied in dealing with the conduct of states and of international organizations in their relations with one another and with private individuals, global companies and minority groups.” The International Criminal Court a permanent international tribunal is one of the universal judicial organs established under the international law to arbitrate on the most serious crimes against humanity. These crimes include genocide, war crimes, crimes against humanity and aggression (Beckman and Butte, 2008: p3). Most impoverished countries are normally in transition to democratic governance and emerging from conflicts, which cause widespread violations of human rights. The International Criminal Court through many subsidiary global committees on human rights examines all these crimes and determines which falls within its jurisdiction. The perpetrators who bear the greatest responsibility for crimes against humanity are charged in the International Criminal Court (Gary, 2000). Currently, several prominent persons in several sub-Saharan Africa accused of crimes against humanity are facing charges in the international court. Some of the countries in which the international court is arbitrating include Sudan, where the current president is wanted for committing crimes against humanity in Darfur, the Democratic Republic of Congo and Kenya for the post election violence in 2008. In addition, individuals accused of committing transitional crimes against humanity such as the fugitive Joseph Kony, accused of war crimes and child abduction for use as sex slaves and soldiers in Uganda and central Africa is among the most wanted individual to stand trial for the offenses in the court. International humanitarian law is another opportunity for countries, including the impoverished and those in political transition to seek justice for the past human rights atrocities. According to ICRC (2004), international humanitarian law functions on the principle of retributive justice and is empowered to serve and protect humanity even during the times of wars. ICRC (2004) defines international law as “set of rules which seek for humanitarian reasons to limit the effects of armed conflicts”. Although most armed conflicts involve soldiers and combatants engaged directly in the war, the civilian populations, who are not actively involved, suffer from the conflict by getting killed in large numbers, kidnapped, raped and forcefully conscripted in the warring factions. In addition, civilians suffer indirectly following destruction of basic infrastructure such as housing, transport, and communication. Destruction of the important infrastructure and the insecurity associated with conflict interfere with the distribution of essential goods and services such as water, food and medical supplies. Thus, international humanitarian law was formulated to protect the civilian population who are not engaged directly in conflicts and it also limits the techniques of fighting applied in the conflict, such as the types of weapons and the military tactics applied. Besides protecting the civilian populations not involved directly in the war, the international humanitarian law offers protection to medical personnel, religious military personnel, prisoners of war the wounded and ailing fighters in addition to those shipwrecked (ICRC, 2004). Concerning use of weapons and military tactics, the international humanitarian law prohibits aspects of warfare that do not differentiate active combatants from those who are not actively involved in the conflict. These include civilian and their properties. The second aspect that the law prohibits during conflict is the use of weapons capable of causing excessive injuries and needless torment or suffering. In addition, weapons that cause long-term environmental damage are prohibited under the international law. These include use of exploding bullets, chemical and biological weapons in addition to the arsenals that cause blindness such as lasers n addition to land and anti personnel mines (ICRC, 2004). Non governmental organizations, such as Amnesty International also provide valuable opportunities for impoverished countries with weak legal structures to address past injustices of human rights atrocities. Other internationally recognized non governmental organizations for addressing gross human rights abuses include International Commission for Jurists (Allen, 2001). Although these organizations do not have established infrastructure such as courts for prosecuting perpetrators of the atrocities, they play a significant role in exerting pressure on the legal framework of these of countries to address the past injustices of human rights atrocities (Miriam, 2002). However, Magnarella (2000) notes that most countries in the transition to democracy are characterized by weak formal and legal infrastructure which inhibits the effectiveness of non governmental organizations in pressurizing such countries to institute appropriate mechanism for addressing the injustices. In such countries, non governmental organizations can play a role in supporting legal reforms with the ultimate goal of instituting the relevant legal mechanism to deal with the past injustices. Military intervention has recently been used to overthrow governments that commit superfluous human rights violations, including genocide and war crimes against their citizens. The most recent case is the military ouster of Libyan dictator Muammar Gaddafi for committing large scale massacre against Libyan population, actions that greatly undermined the legitimacy of his government. According to Beckman and Butte (2008), states that commit atrocities against its own citizens loses their sovereignty and authority, make it necessary for foreign military intervention. These approaches of addressing past atrocities in poor countries with weak legal structures are characterized by several legal and moral shortcomings. Military intervention is not widely practiced, because most foreign countries are not usually willing to entrust their military resources to other states (Allen, 2001). An apt example currently is the widespread human atrocities in Syria where foreign military have failed to intervene and overthrow the government of President Assad that continues undertaking deadly crackdown on the Syrian citizens. Foreign military intervention also elicits moral debate on its suitability because it could cause more deaths leading to further carnage of innocent people. Similarly, Schabas (2003) argues that arbitration by the international law is not adequate in addressing the human injustices, mainly because it apprehends few individuals regarded as most culpable for the committing atrocities. This shortcoming inhibits the suitability of the international legal process in providing justice and reconciliation for majority of victims in poor countries. In view of these shortcomings, truth justice and reconciliation commissions have been touted as the most appropriate mechanisms for addressing past injustices such as human rights atrocities in impoverished countries. The weak legal frameworks and volatile political structure are major impediments to creating a favourable legal environment to address the past injustices in impoverished countries (Gibson, 2004). According to UNDP (2004), creation of sustainable environment that provides equal access to justice requires a multidisciplinary participation. Some of the most critical institutions include the police, social workers, legal personnel, community leaders, traditional councils and prisons authorities. Other important participants include paralegals, religious authorities and locally based judges. Presence of effective working relationships and interconnections between these institutions is also very important (UNDP, 2004). Truth commissions, international criminal tribunals, hybrid courts funded by the United Nations and traditional judicial structures have been formed in various countries such as Yugoslavia and Rwanda (Magnarella, 2000). According to Richard (2001), these legal structures are established with the objective of addressing the past human rights atrocities, to facilitate the establishment of legal judicial framework and democracy in the affected countries. Schabas (2003, p1060) argues that the objectives of these systems is to establish individuals accountable for the crimes, deter future recurrences and punishing the culpable parties in addition to determining the truth concerning the past crimes in order to facilitate national unity through reconciliation and healing. The Truth and Reconciliation Commission established in South Africa to address the past human atrocities perpetrated under the infamous apartheid regime concluded that not only were all antagonists across the political divide culpable of human rights abuse , but they also all suffered for causing the violations (Richard, 2001). These findings enabled the country to establish the grounds for reconciliation and forgiveness as far as the apartheid crimes was concerned. According to Boraine (2000), forgiveness was offered to the offenders as a condition for disclosing the full truth about the past atrocities during the era. Hence, the commission’s rationale for addressing the past injustices was to promote reconciliation between the victims and perpetrators by creating a platform where the guilty parties acknowledged their crimes and ask for forgiveness from the victims. Similarly, victims were encouraged to reveal the sufferings they underwent during the oppressive regime (Gibson, 2004). Therefore, the commission was not about providing justice for the victims, but to establish the truth that was deemed necessary to assist the victims come to terms with their past suffering and deterring recurrence. The Truth and Reconciliation Commission in South Africa achieved four major successes, which including public acceptance of the crimes, breaking the silence about the past human rights violations, establishing a record of all the atrocities committed and expression of the past crimes (Benomar, 1993). The commission however failed to unravel all the truth associated with the apartheid rule, partly due to the limited number of people that participated in the hearings, political interference and the restricted scope of the hearings (Gibson, 2004). Families of people killed during the era including Steve Biko, Madaka and Slovo among others felt the process did not reveal full truth and was an injustice to their murdered kin (Lyn, and Kimberly 2004). Amnesty for perpetrators of the past crimes also caused resentment among the victims, who decried that commission did not deliver them justice that they so wished. Hence justice in retributive sense is still a contentious issue in South Africa after the conclusion of the commission, undermining the intended reconciliation. Miriam (2002) argues that justice is crucial and important ingredient of promoting the victim’s psychological recovery from the traumatic crimes. Another shortcoming of the commission was the government’s reluctance under president Thabo Mbeki to implement recommendations made the truth commission since the report was completed and handed over to the office of the president in October 1998 (Gibson, 2004). Conclusion The case study of South African Truth Commission demonstrates that human rights are usually exchanged for political compromise, a situation that denies justice to victims of past atrocities. This situation arises because such commissions are usually undertaken when the country is undergoing transition period to more democratic society. Lyn and Kimberly (2004) argue that punishing the perpetrators in such politically sensitive environment could create further instability, which is counterproductive for national reconciliation to take place. Hence failure to punish the perpetrators and compensating the victims is their major shortcoming of truth commissions, which could significantly undermine future peaceful coexistence. To deal with past injustices comprehensively in developing economies, truth commissions should be integrated with international law. Bibliography Allen, J.(2001). Balancing justice and social unity: Political theory and the idea of truth and reconciliation commission. University Of Toronto Law Journal, 49: 315-354. Beckman, R., and Butte, D.(2008). Introduction to international law. [Online].Available from http://www.ilsa.org/jessup/intlawintro.pdf [Retrieved on April 22 2012] Benomar, J.(1993). Confronting the past: Justice in transitions. Journal of Democracy, 4(1): 13- 29. Biggar, N.(2000). Burying the past: making peace and doing justice after civil conflict. Washington, DC: George Town University Press. Boraine, A. (2000). A country unmasked: South Africa’s truth and reconciliation commission. 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The relationship between truth commissions and international courts: The case of Sierra Leone. Human Rights Quarterly, 25: 1035-66 UNDP (2004). Access to justice; Practice note [online]. Available from http://web.undp.org/governance/docs/Justice_PN_English.pdf[retrieved on April23 2012] Read More