I am very pleased to participate in this Opinio Juris roundtable on my just-published article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf), and particularly to engage with Dinah PoKempner, Professors Cesare Romano, Chandra Sriram and others who have offered such thoughtful and probing observations on my article.
The article grows out of a multi-year ongoing project that examines on the jurisprudence pertaining to states undergoing political transition or dealing with unresolved justice issues from prior transitions. In this particular essay, the emphasis is on transnational human rights jurisprudence, notably that of the Inter-American Court of Human Rights and the European Court of Human Rights. These tribunals, sometimes in dialogue with each other, have evolved, through interpretation of existing legal instruments, an approach that establishes what I term a “right to accountability,” an entitlement of victims of human rights abuses by the state to the investigation and prosecution of these offences, as well as various remedies for past failures of accountability. The result is to frame transitional justice in terms of human rights, with an emphasis on those who have suffered from human rights abuses particularly in conflicts of the past.
Beginning with the Inter-American Court decision of Velasquez Rodriguez, the Latin American case law has been highly contextualized to the special challenge of dealing with those human rights abuses characteristic of the “dirty war,” especially disappearances. It is often implied that no less than criminal law punishments can satisfy demands for accountability. Thus, as I explore in the article, these judgments cannot help but collide, in many contexts, with approaches to transitional justice that emphasize social reconciliation, or social peace. Examples include various forms of amnesty in Peru, Chile and Uruguay that can go back as far as the 1980s, and that are put in question by the right to accountability approach. Most recently, the Inter-American Court embraced a challenge to amnesty practices in Brazil that had been the result of a process of open democratic deliberation and freely arrived at and supported by wide number of political actors in that country including its Supreme Court.
The pressing question that is the articles focus becomes is the legitimacy of such judgments particularly after the passage of significant time, and where there had been comprehensive processes of transitional justice on a case by case basis, including repair of victims, and some form of arrival of truth but nevertheless something falling short of individualized criminal accountability and punishment.
The tension between domestic ownership of transitional justice and internal political compromises that it produces and the rights based approach may point to the need to qualify or relativize the right to accountability so conceived in light of important normative considerations and political factors, which I elaborate in the Article, such as first and foremost the relevance of context and capacity, the strength/weakness of the relevant state, the degree of compliance/impunity; ie thinking about the relevant rights fulfillment not in dichotomous terms but rather in terms of what could be seen as a “continuum of accountability.” (See p 414.) I argue for “greater care …in intervening where some accountability process has started….There may be a number of political and institutional reasons at play and ideally the court should have an appreciation of these reasons before deciding whether and how to intervene.” Id.
A related approach would be to resort to the concept of “complementarity,” associated most notably with the exercise of jurisdiction by the ICC. The question is whether complementarity, deference to domestic processes can be justified where there is no lack of ability or willingness to prosecute but there has been a conscious inclusive democratic decision to prioritize other forms of accountability than full or conventional criminal sanctions.
Overall, my stance is that human rights tribunals need to develop techniques of adjudication that permit a constructive dialogue with domestic political and legal institutions and practices of transitional justice, a dialogue sensitive to context and the considerations that affect the relative legitimacy of transnational tribunals and domestic political and legal actors in addressing questions of justice related to political conflict.