chapter  12
10 Pages

Lands, wars and restoring justice for victims


The question of justice in societies devastated by armed conflicts or dictatorships, where large-scale violent crimes have been committed, is a complex contemporary issue. Public international law has a victim-oriented approach to justice, which conceives the crime as a violation of the victim’s human rights. To a great extent, in international law, justice for massive crimes is defined in terms of bringing justice to the victims by ending impunity. Over the last two decades international principles of justice, such as the Basic Principles of Justice for Victims of Crime and Abuse of Power, have been adopted by the United Nations. These principles favor the criminal prosecution of offenders. Conceiving the passage from war to peace or from dictatorship to democracy as a kind of ritual transition from one moral order to another, punishment is viewed as a moral obligation to the victims in order to build a morally just and democratic social order (Huyse 1996). This assumption provides a basis for the idea that international law has a moral obligation to prosecute serious crimes (Parmentier 2004). At the same time, however, the view has emerged that justice should be defined in terms of reparation for victims. An international consensus can be observed regarding the basic principles of transitional justice (Botero and Restrepo 2005). These principles, which link justice and reparation, were presented in 1996 by Louis Joinet, who was appointed by the United Nations’ Subcommission on Prevention of Discrimination and Protection of Minorities to study impunity related to the violation of human rights. Joinet’s 42 principles, the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, assigns three irrevocable obligations to states during the transitional process: 1) States must investigate, prosecute and condemn to penalties proportional to their crimes the individuals liable for gross human rights’ violations. 2) They should promote the right to truth, which is considered a right of victims and societies. Acknowledgment and social knowledge of the truth are viewed in these principles as ways to prevent new victimizations. Truth is also considered a form of reparation and victims have a right to the truth. 3) States must also guarantee the victim’s right to obtain full reparation for the harm suffered, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (Botero and Restrepo 2005).