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Citation: Jose Zalaquett, "Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints," in Transitional Justice, ed. Neil J. Kritz, (Washington, D.C.: United States Institute of Peace Press, 1995) pp. 3-31.
Zalaquett discusses the international moral standards which may apply to new governments in dealing with past human rights abuses. He also discusses the practical constraints faced by new governments. Transitional justice refers to the new government's attempts to address injustices perpetrated under the old regime. The basic objectives of transitional justice are prevention and reparation. Justice requires that the new government should seek to prevent recurrence of human rights abuses. Justice also demands that the new government should seek to repair damage from past abuses. Transitional justice occurs within a context of larger objectives. The new government must also unify and depolarize the nation, rebuild the basic institutions needed to support a fair political system, and acquire needed economic resources and rebuild the economy.
Zalaquett argues that legitimate human rights policies must be based on complete, publicized and officially acknowledged knowledge of the truth regarding the past abuses. The new government's policies must have popular approval. The policies must also be consistent with international law regarding human rights. For example, trials must be fair and open.
Within these limits, states have substantial discretion in crafting their approach to transitional justice. Governments may make reparations by offering treatment for the consequences of victimization, restoring victim's property and positions, by official acknowledgment of the victim's suffering, by direct payments, or by commemorative events. Preventative measures may include signing on to international human rights agreements, writing human rights protections into the constitution, establishing domestic institutions which monitor and prosecute human rights abuses, and increased human rights education.
Prosecution and punishment is the most common preventative measure. Punishments may include imprisonment, confiscation of property, and loss of position, loss of political rights. International norms increasingly reject use of the death penalty, however. Prosecution and punishment are often combined with some measure of clemency. Clemency may take such forms as amnesty, pardons or sentence reductions. In addition to the requirements of legitimacy, states' discretion in crafting their approach to transitional justice is limited by international law. Prosecution must abide by basic legal principles such as the presumption of innocence. There can be no retroactive application of criminal law, and states must recognize the individual's right not to testify against herself. Legal procedural changes can be made at any time, so long as they do not undermine internationally recognized civil and political rights. Zalaquett notes that international legal opinion is not settled on whether clemency is unacceptable for certain crimes, such as genocide or torture. The Genocide Convention, for example, may be read as requiring states to prosecute and punish crimes of genocide. States must also confirm to Nuremberg principle IV, which sets forth standards for the use of the "superior orders" criminal defense. However, Zalaquett notes that the standard itself needs further elaboration.
In addition to moral and legal constraints, new governments may face a variety of practical and political constraints on their ability to implement transitional justice. Zalaquett describes six common types of situations which new governments may face.
Where the new government has achieved a complete military victory over the old regime, there may be no political constraints on their policies. The new governments powers to deal justice will be unchecked. Zalaquett observes that "there is here a paradoxical situation: the power required to carry out fully a legitimate human rights policy regarding past abuses is, in itself, a potential source of abuses."[p. 18]
In many cases the old regime retains military power, but loses legitimacy. The new government is limited in its ability to prosecute members of the military, or to have them removed from power.
In other cases the military forces of the old regime remain strong and in control. Opposition has compelled military leaders to agree to negotiate a transition to civilian government, but the military controls the terms of negotiation. In these cases the military generally refuses to acknowledge or remedy its human rights abuses.
The transition from the old repressive regime to new democratic regime may occur gradually. The reduction of human rights abuses generally facilitates popular forgiveness. Zalaquett notes that transitional justice in such cases tends to emphasize prevention of future abuses rather than to focus on investigating past abuses.
Significant constraints remain in cases where "the new government represents a realignment of political forces in a situation of unresolved armed conflict." The parties in such situations have often become radicalized. All parties to the conflict may have some history of human rights abuses. The new government does not then represent a clear break with the past. Human rights policies in these cases will generally focus on restraining abuses committed by the current government. Finally, a new government may face internal ethnic or religious divisions. If the old regime was associated with one group over another, then investigations into past human rights abuses may exacerbate ongoing ethnic tensions.
In addition to these political constraints, new governments may face various practical constraints on their ability to pursue justice. The magnitude and extent of the crimes may make investigation, prosecution, and reparations very difficult. The new government may lack an adequate judicial system. The judiciary may be underdeveloped, corrupted by the old regime, or may simply be overwhelmed by the task. States may lack the resources needed to implement human rights policies.
Zalaquett concludes by analyzing transitional justice policies in Argentina and Uruguay in terms of the principles and practical constraints described above.
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