CHAPTER FIVE

RESPONSES TO GRAVE VIOLATION OF HUMAN RIGHTS

INTRODUCTION
 Generally, Human rights are to be respected and protected by States through all appropriate measures.
 States shall also make remedies available at domestic level to any one claiming his/her rights were violated.
 In some cases, alleged victims of violation may also seek remedy from regional or international institutions.
 However, sometimes violations may be committed grossly & systematically that the normal procedures
become not enough to address them.
 Then the question is what mechanisms exist for responding to grave violations of human rights the national
and international levels?
 Throughout history, many people were victims of violations of their rights due to the systematic acts of
States (& even non-State actors).
 However, the perpetrators were rarely held accountable for their acts.
 Mostly, the systematic & serious violations were/are committed by State officials as an instrument of
achieving some policy, e.g., crushing opposition & sustaining their power, maintaining territorial integrity &
the like. For example;
 The serious & systematic violations in Chile during the Pinochet regime, Uganda during the Id Amin
regime, South Africa during the Apartheid regime, in Ethiopia during the Dergue regime were all
committed as part of State policy to achieve some result.
 Other systematic & gross violations committed during international and internal wars include;
 World War II, the civil war in Former Yugoslavia, and Rwanda, in which Millions have suffered because of
the horrific acts committed.

5.1. NATIONAL RESPONSES - TRANSITIONAL JUSTICE

 It is an undisputed principle that violations of rights including systematic & gross violations shall first be
addressed at national level;
 Thus, the perpetrators of such violations of crimes shall be brought to justice at national level;
 The international system of addressing such violations becomes relevant only if the domestic system is
unable or unwilling to provide remedies;

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  Although, studies suggest that systematic & gross violations are often committed by State institutions and
officials, however, non-state actors like rebel groups in case of civil war, may also be involved in such
violations.
 The presumption is simply because the perpetrators are State officials, or members of armed forces or
security forces, or the police, and the like.
 Thus, the system can't be expected to hold the perpetrators accountable.
 It rather protects them, and even allows them to continue to carry out their crimes, and;
 The perpetrators are likely to continue to do so in the knowledge that it is extremely unlikely that they
would brought to justice.
 As a result, a regime change is likely to happen.
 Regime change is a prerequisite for putting the national mechanism of responding to such violations.
 This regime change may result in many ways, for e.g., armed struggle, negotiation & others
 Thus, it is a requirement that the new regime should be a regime that is committed to the values of human
rights & democratization, and thus bringing a transition within the society.
 During the transitional period, the need to address past violations would arise which is addressed through
what is usually referred to as transitional justice.
 Transitional justice has to address the needs of societies in transition, because, Societies in transition may
have variety of needs/concerns related to past violations.
 There are three main needs that arise in societies in transition are the following:
1. The need for justice:
 Victims of violations or their relatives and the society at large need to see the perpetrators of the
violations are brought to Justice.
 It is thus necessary that transitional justice should provide a mechanism by which this need may be
satisfied.
 It is generally suggested that justice shall be rendered in order for a society to break with the past &
move forward.
2. The Need to Know the Truth
 The society in general, and victims or relatives in particular, wants to know who among its members
did participate in the violations.
 As the past violations were committed systematically & grossly, the society, even victim/relatives,
may not know all that happened & all the perpetrators & the degree of their participation.
 Thus, the need to know who did what & why is one of the basic issues that may arise at the time of
transition;

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  It is claimed that knowing the truth about the past is crucial to build a viable, rights-respecting &
democratic society as well as to ensure that violations wouldn't happen again.
 On the other hand, some argue that knowing the truth about is not desirable as it may lead to further
suspicion & animosity between those that claim to be victims & their relatives on the one hand and
alleged perpetrators, who are usually former officials,& their relatives (& even supporters) on the
other hand, and thereby motivating revenge & leading to further conflict.
 They thus suggest it is better to forget the past & move forward;
 Others criticize this by arguing society cannot move forward without knowing the past.
 Some rather propose ‘you shall never forget but forgive’.
3. The Need for Conciliation
 Society may also need to create conciliation among its members. There may be a general
understanding that one groups of the society are victims while others are perpetrators or vice versa.
 This and other factors are likely to cultivate among members of the society a mentality of suspicion,
mistrust & even animosity.
 It is commented that it is difficult, if not impossible, for a divided society to break with the past,
establish a stable system & move forward.

THE MODALITIES OF TRANSITIONAL JUSTICE

1. Prosecution
 This is one of the modalities of transitional justice often employed by societies to address past
violations.
 Thus, it involves the apprehension of perpetrators, the gathering of evidence, and the filing of
criminal charges, judicial hearing and decision according to the law.
 The main concern here is to maintain the rule of law, which is considered as the cornerstone of
democracy.
 The rule of law thus requires that no person is exempt from the law and as such it is a mechanism of
fighting impunity.
 The duty to prosecute, particularly, exists in relation to grave breaches of the international
humanitarian law.
 Examples of grave breaches are War crimes, the crime of genocide, crimes against humanity.
 In these respects, States have the duty to prosecute or extradite violators for crimes committed
anywhere.

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  This obligation of States to prosecute or extradite on the basis of universal jurisdiction is stipulated in
the Four Geneva Conventions. Customary international law also requires states to investigate war
crimes & prosecute suspects.
2. Truth & reconciliation
 This modality is the mechanism by which a society may identify truth about the past & create
conciliation among its members.
 For this purpose societies may establish truth commissions or truth and reconciliation commissions.
 The main priority of this modality to reveal truths about the past, create conciliation, and achieve a
successful transition.
3. Amnesty
 The term amnesty refers to an official act, usually through law, prospectively barring prosecutions of
a class of persons for a particular set of actions or events.
 Amnesty is often contrasted with pardons, which usually refer to the exemption of criminals from
serving all or part of their sentences but do not expunge the conviction.

5.2. INTERNATIONAL RESPONSES

 The international response is premised on the conviction that grave breaches of international law which
constitutes crimes against the international community, and results from the inadequacy/non-existence of
national responses.
 The criminal responsibility of individuals under international law contributes to fight impunity. However,
limited it is. The underlying idea is that the perpetrators of such crime shall not go free.
 The mechanism by which international law ensures to fight impunity, takes different forms. These include:
1) the recognition & application of the principle of universal jurisdiction,
2) prosecution and trial by ad hoc international tribunal, and
3) Prosecution & trial by a permanent international tribunal called the International Criminal Court
(ICC).
1. Application of the Principle of Universal Jurisdiction.
 The principle of universal jurisdiction is classically defined as “a legal principle allowing or requiring a
State to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime
and the nationality of the perpetrator or the victim”.
 Universal jurisdiction allows for the trial of international crimes committed by anybody, anywhere in the
world.
 Universal jurisdiction is therefore a matter of concern for everybody

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 2. Prosecution and Trial by Ad hoc Tribunal
 Another mechanism by which the international community has been responding to gross violations is
through prosecution of perpetrators before an international tribunal.
 These tribunals have specific/limited jurisdiction over crimes listed under the instrument creating the
tribunal.
 Ad hoc tribunal includes the International Criminal Tribunal for the former Yugoslavia & for Rwanda
(ICTY & ICTR respectively).
 These tribunals are established pursuant to the Decision of the UN Security Council. The Statutes
establishing these tribunals set out the crimes that fall within the jurisdiction of each tribunal.
3. The Procedure under the International Criminal Court
 The ICC is established pursuant to the Rome Statute of the International Criminal Court, which was
adopted at a diplomatic conference in Rome, on 17 July 1998 and entered in to force on I July 2002;
 According to Article 5 of the Rome Statute, the Court has jurisdiction over the most serious crimes to the
international community namely genocide, crimes against humanity, war crimes & war of aggression.
However, the court functions as a complementary organ.
 The principle of complementarity can be defined as a functional principle aimed at granting jurisdiction
to a subsidiary body when the main body fails to exercise its primary function;
 The principle of complementarity in international criminal law requires the existence of both national and
international criminal justice systems functioning in a subsidiary manner for curbing crimes of
international law: when the former fails to do so, the latter intervenes and ensures that the perpetrators do
not go unpunished.
 Thus, the ICC has jurisdiction over the stated international crimes when States are unable or unwilling to
prosecute these crimes at national level.

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