Convenios, Acuerdos Internacionales

Good reviews of the transitional justice literature can be found elsewhere Gierycz, 2008; Gloppen, (2002); Huyse and Salter, (2008); Oomen and Marchand, (2007); PRIO, (2008), and as it is both beyond the scope and not the intention of this study to provide such an exhaustive literature review, this cannot and will not be attempted or repeated here. But in order to locate this study within the wider historical context in this field of transitional justice, a brief account of the broader historical development within this field will be outlined. Here it is possible to distinguish between three different historical periods concerning transitional justice; (1) the interwar years; (2) post-1945, and; (3) the post-Cold War (Elster, 2004; du Plessis, 2005:174- 178; Teitel, 2000).

2.2.1 The interwar years

Until World War One from 1914 to 1918, the idea of bringing a head of state or political leaders of a country to justice was perceived as totally unheard of. Yet, nearly one century later, the situation is the other way around, with a large number of political leaders either being indicted or facing the threat of indictments, going from Slobodan Milosevic, Saddam Hussein, Augusto Pinochet, Charles Taylor, Alberto Fujimori and Omar al-Bashir (Economist 2009a; du Plessis, 2005: 174; New African, 2009; Teitel, 2000, 2006:1).

To understand why this fundamental change in the perception of bringing such leaders to justice has happened, it is necessary to look at a process that started with the Versailles Treaty. It dictated the conditions for Germany’s surrender after World War One, and had provisions that would have made it possible to establish an international tribunal conducting

27 criminal prosecutions against this country’s political leaders and head of state, since they were seen as responsible for the mayhem unfolding over these four years. However, the German emperor escaped to the Netherlands, which consequently refused to extradite him on the grounds that he as a head of state enjoyed immunity and that an eventual indictment would be based on retroactive justice. As a result, only a handful of Germans faced national sham trials where they were given relatively short sentences (Elster, 2004; du Plessis, 2005:174; Teitel, 2000).

Nevertheless, throughout the 1920s and 1930s, in the period known as the ‘interwar years’, the UN’s predecessor, the League of Nations tried to establish an ‘high court of international justice’ dealing with both individual and state responsibility. Because of massive resistance from the member states it only succeeded in establishing the International Court of Justice (ICJ) concerning state responsibility, meaning that individuals such as heads of states and political leaders of a country would still enjoy impunity for decisions made prior to and during wars (Elster, 2004; du Plessis, 2005: 174-175; Teitel, 2000).

2.2.2 Post-1945

Even if the origins of transitional justice can be traced back to World War One and the interwar years, its full impact only came about in the aftermath of the Second World War. With the establishment of the International Military Tribunals (IMT) in Nuremberg and Tokyo in the post-war period after 1945, a new trend had emerged in international criminal justice. Reacting against the holocaust genocide and other heinous war crimes, these tribunals convicted those German and Japanese leaders perceived as most responsible for committing these acts during the war, based on their individual responsibility (Allen, 2006:5-7; du Plessis, 2005:175; Teitel, 2000).

Although these IMTs later have been criticised for representing the ‘victor’s justice’ with rather selective and politicised prosecutions resulting in retroactive punishments, it cannot overshadow the fact that they were the first attempt ever to establish an international criminal court dealing with individuals. These tribunals served to illustrate that the character of certain grave acts, such as crimes against humanity and genocide, are of such a serious matter that they simply cannot be ignored by the international community. Where no other means or options were available, the justice of international criminal law would therefore as a solution of last resort be able to reach out and prosecute the individuals responsible for such crimes,

28 independently of whether they had committed them in the capacity as serving heads of state, political leaders of a country or individual citizens. This meant that under certain conditions state sovereignty could be put aside, with national laws and domestically lawful orders overruled as unlawful (Allen, 2006:5-7; du Plessis, 2005:175).

2.2.3 Post-Cold War

Despite these milestones being achieved in the aftermath of the Second World War, the field of transitional justice was, however, largely neglected and further developments in the direction of a universal human rights regime upheld by an international criminal court stalled for nearly five decades during the Cold War period. As a consequence of the rivalry unfolding between the major powers in their competition for dominance and power on a global scale throughout the Cold War, many countries and armed groups in Asia, Africa and Latin America were supported directly or indirectly from one of the sides. This created a situation where perpetrators responsible for committing various human rights violations independently of being a political leader or a serving head of state issuing an order, as well as the soldiers obeying them enjoyed impunity, without facing any kind of consequences at all. But it also resulted in a stalemate serving as a lid that kept many of the conflicts in this period under a certain form of control, giving them the distinction of being proxy wars fought with low intensity. As that era came to an end with the collapse of the Soviet bloc in the early 1990s, this lid was removed and resulted in that many of these conflicts exploded in full scale warfare (Allen, 2007:5-9; Bøås and Dunn, 2007:17-20; du Plessis, 2005; 175-176). Nevertheless, several of these conflicts raging throughout the 1990s have now come to an end, and many of these countries have in recent years become what is known as ‘transitional societies’ situated somewhere between war and peace, offering new and in many ways unique possibilities of capturing and punishing perpetrators for the crimes they have committed against humanity in these conflicts. The international community was in two of these cases faced by the massive crimes against humanity committed in the wars in Rwanda and former Yugoslavia, and responded by establishing the two ad hoc tribunals ICTR and ICTY to deal with the individual perpetrators perceived as most responsible for committing them (Allen, 2006: 9-15; du Plessis, 2005:175-176).

Motivated by the results of the work made by ICTR and ICTY in upholding international criminal law to guarantee justice in the proceedings against the responsible perpetrators, led

29 the international community to initiate multilateral negotiations, resulting in the Rome Treaty of 1998 and finally the creation of the ICC in 2002. The ICC’s establishment was intended to send out a clear signal to existing and prospective perpetrators to restrain themselves, as the practice of impunity for them through amnesties or exile had come to a definitive end, since the international community would no longer remain passive by accepting it, with this Court prosecuting them instead (Allen, 2006:16-24; du Plessis, 2005:176-178).

The American human rights lawyer Charles T. Call (2004:101) argues that because of this development, transitional justice has made a significant contribution to international criminal justice by creating an ‘array of innovative and evolving instruments to expose and punish human rights abusers’, and it will thereby have an ‘unexpected influence on state sovereignty and on hopes for global justice’.

Despite Call’s optimism, the result has also been the ‘peace vs. justice’ debate where the focus of concern for the international community, human rights activists, legal practitioners and social science scholars alike has been about whether to deal with previously oppressive rulers or brutal guerrillas through amnesties with impunity or through prosecution with trials throughout the phase of transitional justice in order to secure the transition to a more peaceful future. Transitional justice has as such been given widespread attention and considered to be a subfield of peace and conflict studies both addressing and dealing with past human rights abuses through the use of both judicial and non-judicial mechanisms (Huyse, 2008; Nielsen, 2008; van Zyl, 2005).