From Freetown, Sierra Leone.
Volume 1: Chapter 3: Concepts
CHAPTER THREE
Concepts
Introduction
1.
Truth and Reconciliation Commissions have, in recent years, become
well-recognised as valuable and effective mechanisms in societies
emerging from conflict. They help to ensure accountability for human
rights violations, they clarify the historical record and put myths and
lies about the past to rest, and they assist in giving a vision for the
future. They are not a cure-all, but they can make a positive
contribution when their work and activities are married with the
dynamism of a civil society anxious for social transformation. This
chapter addresses the principal concepts that underpinned and guided
the work of the Sierra Leone Truth and Reconciliation Commission, and
which are not specifically dealt with elsewhere in the Report. Concepts
dealt with in the chapter include truth and truth telling, just war and
just means, victims and perpetrators.
2.
The Commission operated in a public and transparent fashion.
Commissioners were appointed following a process of public
consultation, in which all concerned citizens were invited to submit
their names or the names of others as potential candidates. All major
protagonists in the conflict were represented in the selection process
and gave their consent to the eventual composition of the Commission.
The staff members of the Commission were employed following public
advertisement and interviews. The funds of the Commission were
administered by the United Nations Development Programme office in
Freetown, and audited by thoroughly independent accountants. The
Commission has regularly reported on its activities, and has constantly
called upon the people of Sierra Leone to participate to the fullest
extent possible. The work of the Commission has been bolstered in a
multitude of respects by civil society, and more specifically by
non-governmental organisations (NGOs), both national and international.
Funding for the Commission came from several donor countries, the
Government of Sierra Leone and from individuals.
3.
The underlying principles of the Commission were set out in the
‘Memorandum of Objects and Reasons’, which was attached to the Truth
and Reconciliation Act 2000, the legal instrument responsible for the
creation of the Commission. The Memorandum explains that the Commission
was ‘proposed by Article XXVI of the Lomé Peace Agreement as part of
the process of healing the wounds of the armed conflict which began in
1991’. Furthermore, ‘[s]ection 1 of Article XXVI of the Peace Agreement
envisaged the proceedings of the Commission as a catharsis for
constructive interchange between the victims and perpetrators of human
rights violations and abuses and from this catharsis the Commission is
to compile ‘a clear picture of the past’. Accordingly, by clause 6, the
principal function of the Commission is to create an impartial
historical record of events in question as the basis for the task of
preventing their recurrence.’
4.
The Lomé Peace Agreement itself declared that one of the purposes of
the Commission was exactly to ‘get a clear picture of the past in order
to facilitate genuine healing and reconciliation’.
Truth and truth-telling
5.
What the ‘Memorandum of Objects and Reasons’ does not highlight is the
fact that the Commission was created out of a tension between two
contradictory intentions, on the one hand an impetus to forget the past
and to forgive past violations of human rights, and another calling for
the truth of the past to be determined and acknowledged. The
controversial premise upon which the Lomé Peace Agreement was
predicated is the pardon and amnesty set out in Article IX. The
justification appears in the provision itself: ‘In order to bring
lasting peace to Sierra Leone…’ and ‘To consolidate the peace and
promote the cause of national reconciliation’.
6.
International law has acknowledged the validity of granting amnesty to
combatants when a conflict comes to an end. In the case of Sierra
Leone, as the Commission was told on more than one occasion by
participants in the Lomé negotiations, amnesty presented itself as an
essential condition if fighting was to stop and peace allowed to break
out. The Commission has determined that serious violations of human
rights and international humanitarian law took place on all sides in
the conflict, so there can be no doubt that all of the participants in
the Lomé negotiations in fact benefited from the amnesty. It cannot, in
other words, be reduced to a one-sided concession.
7.
However, in recent decades, the dangers of granting full amnesty for
human rights violations have been increasingly appreciated. Amnesty
overrides the interests of individual victims, who are also entitled to
see their personal concerns addressed and balanced against those of
society as a whole. International law refuses to accept the validity of
amnesty for the most serious crimes of international concern, namely
genocide, crimes against humanity and war crimes. These categories
correspond in an approximate sense with the concept of gross and
systematic violations of human rights. Even the practical justification
for amnesty is called into question: it may not deliver the long-term
peace that it promises. If the amnesty is granted in a way that ignores
the past, it may sow the seeds for future conflict, and serve as a
justification for future generations to settle scores that were left
unresolved when the conflict came to an end.
8.
All of these concerns meant that the grant of pardon and amnesty in
article IX of the Lomé Peace Agreement had to be accompanied with other
mechanisms and values that seek to remember and account for the past,
and to respond to the needs of victims. It is out of this dialectic
that the Truth and Reconciliation Commission was conceived. Truth and
truth-telling, and the need to recognise and acknowledge the past, lie
at the heart of this.
An ‘inalienable right to truth’
9.
In one of the seminal documents of the United Nations on the issue of
impunity for human rights violations, Special Rapporteur Louis Joinet
has spoken of the inalienable right to truth: ‘Every people has the
inalienable right to know the truth about past events and about the
circumstances and reasons which led, through the consistent pattern of
gross violations of human rights, to the perpetration of aberrant
crimes. Full and effective exercise of the right to the truth is
essential to avoid any recurrence of such acts in the future.’ Further,
he explains: ‘This is not simply the right of any individual victim or
his nearest and dearest to know what happened, a right to the truth.
The right to know is also a collective right, drawing upon history to
prevent violations from recurring in the future. Its corollary is a
"duty to remember" on the part of the State: to be forearmed against
the perversions of history that go under the names of revisionism or
negationism, for the history of its oppression is part of a people's
national heritage and as such must be preserved. These, then, are the
main objectives of the right to know as a collective right.’
10.
Truth commissions have largely come about in recent years to give
effect to what Joinet called ‘the inalienable right to truth’. There is
a belief that truth can be established through mechanisms other than
criminal trials which may, in the past, have been considered to be the
ideal way to get at the truth. Where amnesty has been granted - this is
the case of Sierra Leone, or where effective prosecution is difficult
or impossible because of resource issues, or because perpetrators
cannot be brought to trial, truth commissions offer a valuable
alternative. But trials have their own shortcomings in establishing the
truth, and the flexibility of truth commissions may in fact better suit
them to this task of establishing and enforcing the ‘inalienable right
to truth’.
11.
The Special Court is also in search of the truth, but the Court’s truth
will necessarily be limited to the criminal responsibility of the
accused. Moreover, the Court will only draw a picture of the criminal
responsibility of those that ‘bear the greatest responsibility’. The
Special Court and the TRC have essentially different, although
complementary, roles to play. Whereas the TRC cannot replace judicial
investigations into the criminal responsibility of those that bear the
greatest responsibility, the Special Court is not as well-suited for a
broader inquiry into the causes, nature and circumstances of the
conflict.
12.
As Pedro Nikken, former president of the Inter-American Court of Human
Rights, has written: ‘There is no doubt that the discovery of the
Truth, which is the responsibility of independent persons, destroys
that element which, while not useful in itself for eradicating
impunity, fulfils at least a dual function. First, it is useful for
society to learn, objectively, what happened in its midst, which
translates into a sort of collective catharsis. And second, it
contributes to creating a collective conscience as to the need to
impede the repetition of similar acts and shows those who are capable
of doing so that even if they may escape the action of justice, they
are not immune from being publicly recognized as the persons
responsible for very grave attacks against other human rights. In this
regard, even though [truth commissions] do not constitute punitive
mechanisms, they may perform a preventive function that is highly
useful in a process of building peace and the transition to democracy.’
13. A major challenge is ensuring
that the search for the ‘truth’ or the ‘truth’ itself does not obscure
this ‘preventative function’. There are a few important cautions:
1. The truth must be known;
2. The truth must be complete;
3. The truth must be officially proclaimed and publicly exposed.
14.
The ‘inalienable right to truth’ is closely related to the ‘right to an
effective remedy’ for violations of human rights. The right to an
effective remedy is firmly entrenched in all major international law
instruments. ‘Establishing the truth’ has been recognised as an
essential part of the right to an effective remedy, as it is a crucial
aspect of the guarantee of non-repetition of the original violation or
abuse. This link between ‘knowing what has happened’ and ‘avoiding the
recurrence of violations in the future’ has been repeatedly confirmed.
Very illustrative in this respect is the innovative case law of the
Inter-American human rights institutions, borne in the long and painful
history of conflict in South and Central America.
15.
In the case of Ellacuria v. El Salvador, the Inter-American Commission
for Human Rights presented the right to know the truth as a direct
remedy in itself, based on Article 1.1 of the Inter-American Convention
providing that ‘a State party is obligated to guarantee the full and
free exercise of the rights recognized by the Convention’. In the
opinion of the Inter-American Commission, ensuring rights for the
future requires a society to learn from the abuses of the past. States
must inform their citizens about the truth. This right to know the
truth has two components: an individual right applying to the victim
and family members and a general societal right. With respect to the
public right, the Inter-American Commission said: ‘Every society has
the inalienable right to know the truth about what has occurred, as
well as the reasons and circumstances in which those crimes came to be
committed, so as to avoid repetition of such events in the future.’
16.
These principles were developed further by the Inter-American
Commission on Human Rights in the case of Romero v. El Salvador. The
Commission referred again to the dual character of the right: ‘The
right to the truth is a collective right that enables society to have
access to information essential to the development of democracies. At
the same time, it is a private right of the next-of-kin of victims that
makes possible one form of reparation, especially where amnesty laws
are applied.’ Elaborating on society’s right to be duly informed, the
Commission stated that it had held before that:
Independently of the problem of
proving guilt, which in every case must be determined individually and
with due process guarantees, by a pre existing court which applies the
law in force at the time the crime was committed, one of the first
matters that the Commission feels obliged to give its opinion on in
this regard is the need to investigate the human rights violations
committed prior to the establishment of the democratic government....
Every society has the inalienable right to know the truth about past
events, as well as the motives and circumstances in which aberrant
crimes came to be committed, in order to prevent repetition of such
acts in the future. Moreover, the family members of the victims are
entitled to information as to what happened to their relatives.... Such
access to the truth presupposes freedom of speech....
The Inter-American Commission
concluded that the ‘right that all persons and society have to know the
full, complete, and public truth as to the events transpired, their
specific circumstances, and who participated in them is part of the
right to reparation for human rights violations, with respect to
satisfaction and guarantees of non-repetition. The right of a society
to have full knowledge of its past is not only a mode of reparation and
clarification of what has happened, but is also aimed at preventing
future violations.’
17.
An important aspect of the right to an effective remedy is the duty
that international human rights law imposes upon States to investigate
human rights violations and abuses. For example, the European Court of
Human Rights has held that the right to an effective remedy (article 13
of the European Convention on Human Rights) guarantees both the
availability of an effective domestic remedy to be exercised at the
initiative of complainants and, in the event of very serious
allegations, the carrying out of a full investigation by public
authorities. In McCann v. United Kingdom, the Court said that ‘[t]he
obligation to protect the right to life under [article 2], read in
conjunction with the State’s general duty under [a]rticle 1 of the
Convention to “secure to everyone within their jurisdiction the rights
and freedoms defined in [the] Convention”, requires by implication that
there should be some form of effective official investigation when
individuals have been killed as a result of the use of force by, inter
alias, agents of the State’. In Tanrikulu v. Turkey, despite
insufficient evidence to implicate the Turkish government in a victim’s
death, the European Court said that the duty to investigate was not
confined to cases where it had been established that the killing was
caused by an agent of the State. The fact that the authorities were
informed of the murder established a right to an effective
investigation.
18.
The same interpretation, by which the fundamental right to a remedy
includes an entitlement to know the truth, through investigation,
appears in the case law of the Inter-American Court of Human Rights. In
Velásquez Rodríguez v. Honduras, the Inter-American Court held that the
State is required to investigate every context involving a violation of
the rights enshrined in the American Convention on Human Rights, even
if the perpetrator is a private person. The ‘effective search for the
truth’ must be assumed by the State itself and is not dependent on
victims’ initiatives. The Court also demanded an effective
investigation despite the existence of difficult conditions within the
country. Even where there are amnesty laws, the Inter-American Court
has declared that the State is still obliged to use the means at its
disposal to inform the relatives of the fate of the victims, and the
location of their remains, if they have been killed.
19.
The United Nations Human Rights Commission has spoken of this right to
an investigation to establish the truth in cases of forced
disappearance. According to the Committee, ‘state parties should also
take specific and effective measures to prevent the disappearance of
individuals and establish effective facilities and procedures to
investigate thoroughly, by an appropriate and impartial body, cases of
missing and disappeared persons in circumstances which may involve a
violation of the right to life’. It has also said that complaints of
torture and inhuman treatment ‘must be investigated promptly and
impartially by competent authorities so as to make the remedy
effective’.
Categories of truth
20.
The Commission has had to address different types of truth. The
Canadian writer Michael Ignatief, has stated that ‘all a Truth
Commission can achieve is to reduce the number of lies that can be
circulated unchallenged in public discourse. In Argentina, its work has
made it impossible to claim, for example that the military did not
throw half-dead victims in the sea from helicopters. In Chile, it is no
longer permissible to assert in public that the Pinochet regime did not
dispatch thousand of entirely innocent people’. In South Africa, no one
can now claim that the apartheid state was not a criminal state who
unleashed violence and death squads on its own citizens who opposed the
state and dissented from it.
21.
The South African Truth and Reconciliation Commission, which is in many
respects the model for so many other similar institutions, including
the Commission, dealt in its report with four different kinds of truth:
factual or forensic truth; personal and narrative truth; social truth;
healing and restorative truth. The list is probably not exhaustive.
22. Factual or forensic truth.
One of South Africa’s great human rights jurists, Albie Sachs, has
called this ‘microscopic truth’. It is akin to a version of events that
is accepted after all the facts have been examined and can be supported
by evidence. It involves bringing the facts to light. In this respect,
the Commission was mandated by legislation to provide an impartial
record into the violations and abuses of human rights and humanitarian
law that were committed during the conflict. It was provided with
robust powers of investigation, including the authority to summon
witnesses and compel testimony, and to conduct searches and to take
custody of documents and other material evidence.
23.
Though not a court in the traditional strict sense, these powers of the
Commission are akin to those available to traditional methods of
justice, including criminal justice. The Commission used them, although
sparingly, because as a general rule Sierra Leoneans were committed to
the truth-seeking process and as a result they cooperated fully. But on
occasion it was as a result of the threat to use these powers that
witnesses appeared before the Commission, that official documents were
provided, and that access was gained to premises normally closed to the
public and to human rights investigators from NGOs and the United
Nations.
24.
In this area, the factual findings by the Commission complete a partial
portrait of the conflict that has been provided in the past by
journalists, by United Nations reports, and by the studies of various
individual researchers and NGOs. This is, without doubt, the most
thorough account of the conflict that has been produced. It is based on
thousands of interviews, independent research, study of documents, and
statistical analysis of a comprehensive database. And it is, as the
Truth and Reconciliation Act 2000 requires, a truly independent
account. Fact-finding has been approached empirically, without any
preconceived notions about the ‘truth’ being sought. The approach of
the Commission has been to investigate the truth according to an
accepted methodology, and then to ‘let the chips fall where they may’.
25. Personal and narrative truth.
This is a witness’s personal truth which he or she tells either in a
statement or at a hearing. This is what he or she believes and should
be respected. Often, the individual accounts did not initially appear
to contribute significantly to the more general ‘impartial historical
record’ that the Truth and Reconciliation Commission Act 2000 requires
of the Commission. But over time, the sheer volume of these accounts
provided a complex, multi-layered vision of the conflict. This truth is
not the history of battles, military leaders and political parties, but
rather a series of personal stories and accounts, telling a tale of the
suffering, the pain and of the immense dignity of the common people of
Sierra Leone. It is, perhaps more than anything else, a vision of the
truth that describes the fundamental humanity of the people of this
country.
26.
The personal and narrative truth which the Commission has endeavoured
to capture faithfully is inadequately presented in the present report
of the Commission. It is simply impossible, in a document the length of
the Commission’s report, to provide a fair account of the complexity of
the personal truths that make up the story of the conflict. But the
materials remain largely available, in the archives of the Commission.
Many of them have been transcribed. A full videographic record of the
public hearings of the Commission was taken and can be accessed by the
public and researchers. The individual statements that were taken by
the Commission have been coded and analysed in a data base to
facilitate their consultation. We are confident that these resources
will be drawn upon for years, possibly decades and even generations to
come.
27. Social truth.
This may come the closest to what the Truth and Reconciliation
Commission is expected to establish. It is the truth established after
interaction and dialogue that will be accepted by all after the myths
and the lies have been discredited and disproven. In order to determine
this ‘social truth’, the Commission endeavoured to provide a forum
where the parties to the conflict, and the various components of civil
society, including faith communities, political parties, the country’s
principal institutions, and various constituencies such as women, youth
and children, could come together for debate and exchange. Even
informally, out of this process a form of consensus has emerged about
the nature of the conflict. The dynamics that were established between
the participants in this process may provide a basis for future
understanding and relationships.
28. Healing and restorative truth.
This truth is necessary for the nation to cope with its pain. It is the
truth of what happened. It involves an acknowledgement of people’s pain
and suffering by the nation. There were many opportunities for
participants in the conflict to acknowledge the truth of what had
happened and, in many cases, what they had themselves done to others. A
significant number took full advantage of this opportunity. Their
admissions and acknowledgement contribute without doubt to this
‘healing and restorative truth’.
29.
On occasion after occasion, and often during the public hearings,
victims and perpetrators confronted each other, sometimes agreeing and
sometimes disagreeing about the ‘facts’ of their encounters during the
conflict. Out of this process a vision of the truth emerged that
enables these members of Sierra Leonean society to deal with the past
and, in a sense, put it behind them. The ‘healing and restorative
truth’ in many respects, provides the foundation upon which the other
wing of the mandate of the Commission, namely the quest for
reconciliation can be built.
The relationship between reparation, truth and reconciliation
30.
As a consequence of their victimisation, people often find themselves
in a condition which is not conducive to forgiveness and
reconciliation. The vast majority of them live in abject poverty, some
having to endure the loss of limbs and others shunned because of their
personal experiences such as rape and sexual slavery. Their dependency
and social exclusion are constant reminders of the suffering they have
endured. Faced almost on a daily basis by those who have harmed them,
it is difficult to find within themselves the capacity to forgive. The
humiliation of being dependent on the charity of others and often
having to beg in order to live re-victimizes the victims, leaving
conditions under which thoughts of revenge fester and grow. A
reparations programme will assist those whose lives have been most
devastated to move beyond the position they are in currently as a
consequence of the war. The cycle of suffering must be broken.
31.
One of the objectives of the Commission is to foster reconciliation in
the country. A reconciliation which is based on a common understanding
of the past and which allows both victims and perpetrators to find the
space to live side by side in a spirit of tolerance and respect. Truth
and reparation are key components of reconciliation. In most
transitional societies, the political realities of the day force
compromises on new governments which result in the rights of victims
being compromised. Victims are required to forgive and to forgo
opportunities to seek redress and punishment for wrongs done to them.
They bear the brunt of these political compromises. In such societies
truth telling and reparations become even more important.
32. Jose Zalaquett, a member of the Chilean Truth and Reconciliation Commission, has explained this in the following way:
To provide for measures of
reparation and prevention, it must be clearly known what should be
repaired and prevented. Further, society cannot simply block out a
chapter of its history; it cannot deny the facts of its past, however
differently these may be interpreted. Inevitably the void would be
filled with lies or with conflicting, confusing versions of the past. A
nation’s unity depends on a shared identity, which in turn depends
largely on a shared memory. The truth also brings a measure of healthy
social catharsis and helps to prevent the past from reoccurring.
33.
If the Commission had not intended to pursue a reparation policy for
victims, truth-telling without reparation could conceivably be
perceived by the victims to be an incomplete process in which they have
revealed their pain and suffering without any mechanism being put in
place to deal with the consequences of that pain. Similarly,
reparations without truth-telling could be perceived by the
beneficiaries as an attempt to buy their silence. Restorative justice
requires not only truth telling but reparations which will strengthen
the reconciliation process.
34.
Reparations are an important instrument to achieving this goal. A
sincere commitment from the Government to the execution of the proposed
Reparations Programme would give a clear sign to the victims that the
State and their fellow citizens are serious in their efforts to
re-establish relations of equality and respect. Acknowledging the
wrongdoing done to victims, engaging with those victimized and
disempowered will lead to members of society having a renewed faith in
the democratic process. This leads to the restoration of civic trust
and a sense of ownership for the nation, attributes necessary if Sierra
Leone is to take its rightful place in the community of nations.
Just war and just means
35.
In the course of its work, the Commission frequently encountered those
who consider that the justification for the conflict - on all sides -
needed to be taken into account in assessing the existence and
seriousness of alleged violations of human rights and international
humanitarian law principles. For example, the Commission has often been
told that the violations and abuses of human rights and humanitarian
law for which the Civil Defense Forces (CDF) bears responsibility are
in some sense less important than the violations attributable to the
Revolutionary United Front (RUF), because the CDF was endeavouring to
resist the rebels, a cause perceived by most to be just.
36.
This argument is tantamount to saying that because a cause might have
been just, the means used to pursue it are irrelevant. In other words,
the ends justify the means. But this reasoning is not compatible with
the normative framework of the Commission, which is to examine
violations and abuses of human rights and international humanitarian
law. Violations and abuses of human rights and international
humanitarian law can be neither justified nor excused on the grounds
that they are in some way responding to violations and abuses by the
other side in a conflict.
37.
At the outset, it seems important to state that the Commission is not
called upon to assess the justness of the conflict itself. It may be
argued by some that those who initiated the attempts to overthrow the
Momoh regime were justified in taking up arms. The preamble of the
Universal Declaration of Human Rights states: ‘Whereas it is essential,
if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be
protected by the Rule of Law.’ Accordingly, human rights law seems to
acknowledge that in extreme conditions, there is a ‘right of
rebellion’. It does not encourage rebellion, nor does it sanction coups
d’état. Human rights law assumes that rights will be pursued using
legal means and in a rule of law framework. The Universal Declaration
of Human Rights declares that the will of the people shall be the basis
of the authority of government, and that it shall be expressed in
periodic and genuine elections. Governmental change, in principle, is
to be effected at the ballot box. Sometimes, however, after long years
of dictatorship, this aspiration may seem unlikely or even impossible.
The Commission need not determine whether the conditions mentioned in
the preamble of the Universal Declaration of Human Rights for the right
of rebellion were indeed fulfilled. But, as this Report explains
elsewhere, there is little doubt that the words ‘tyranny’ and
‘oppression’, and the failure to protect human rights by the Rule of
Law, were appropriate descriptions of Sierra Leone in March 1991.
38. On
the other hand, international human rights law also acknowledges the
right of States to restrict and even suspend certain fundamental rights
under certain circumstances. The International Covenant on Civil and
Political Rights, in article 4, allows such suspension ‘[i]n time of
public emergency which threatens the life of the nation…’ Few would
quarrel with the applicability of this provision to the situation in
Sierra Leone during the decade-long war. Nevertheless, certain
fundamental rights and freedoms cannot be suspended even in time of
war. These core rights, which are sacrosanct, include the right to
life, the prohibition of torture and other cruel, inhuman or degrading
treatment, and the right to protection against discrimination. Many
acts committed by the Government and by forces loyal to it cannot be
excused on the grounds that the State was dealing with a public
emergency.
39.
If human rights law seems to leave a small amount of room for taking
into account the justice of the cause being defended by the alleged
perpetrator, international humanitarian law is essentially indifferent
to the question altogether. International humanitarian law looks at the
participants in an armed conflict without regard to whether or not the
cause is legitimate. Its only concern is with the legality of the means
and methods of warfare, and with the protection of vulnerable groups,
especially civilians. Whether we are speaking of rebels or
pro-Government forces, neither side can invoke the alleged justice of
its cause as a defence to inhuman acts perpetrated by its combatants
and collaborators.
40.
The Commission need not examine the justness of the rebellion to
overthrow the government in 1991, in order to fulfil its mandate, which
is to address violations and abuses of human rights and international
humanitarian law. Nor does it consider that those who fought to defend
a democratically elected regime, from 1996 onwards were justified in
using any means necessary to ensure that those chosen by the people
actually governed the country.
41.
Finally, a word should be said about the impermissibility of reprisals.
Reprisals are undertaken in order to punish those who breach the rules
of humanitarian law during armed conflict. In the past, international
humanitarian law may have tolerated reprisals, but the permissibility
has been constantly restricted over the years. It is now well
established that under no circumstances may reprisals be committed
against civilians, or against combatants who have laid down their arms
and been taken prisoner. Even if they may be allowed among genuine
combatants, they can only be used to the strict extent necessary, in
order to compel the other side to stop its violations of the laws of
armed conflict.
Victims
42. The Commission adopts the definition of a victim that is now generally accepted in international law,
A person is a ‘victim’ where as a
result of acts or omissions that constitute a violation of
international human rights and humanitarian law norms, that person,
individually or collectively, suffered harm, including physical or
mental injury, emotional suffering, economic loss, or impairment of
that person’s fundamental legal rights. A ‘victim’ may also be a
dependant or a member of the immediate family or household of the
direct victim as well as a person who, in intervening to assist a
victim or prevent the occurrence of further violations, has suffered
physical, mental or economic harm.
Perpetrators
43.
The term ‘perpetrator’ is widely used in international human rights law
to describe individuals who are responsible for violations of human
rights and international humanitarian law. Accordingly, the United
Nation’s Sub-Commission on the Protection and Promotion of Human
Rights, in mandating Louis Joinet to examine the question of impunity,
spoke of the ‘Question of the impunity of perpetrators of human rights
violations’. A distinction is made here with the State itself, which is
also responsible for human rights violations under international law.
44.
Historically, human rights law addressed itself essentially to
violations committed by the State. The rights of the individual were
viewed in this context. The development of the concept of
‘perpetrators’ indicates a desire to focus on individuals who bear
personal responsibility for human rights violations and abuses.
45.
Perpetrators may be public officials or members of quasi-governmental
or private armed groups with any kind of link to the State, or of
non-governmental armed movements having the status of belligerents.
Perpetrators may be the direct offenders, or they may be accomplices.
Often, the accomplice is actually the person with greater
responsibility for violations, because it is the accomplice who, from a
leadership position, directs and encourages the violations, even if he
or she does not personally commit the atrocity. At the same time, the
fact that the perpetrator of violations acted on the orders of his
Government or of a superior does not exempt him or her from criminal or
other responsibility.
© 2002 - 2007, Sierra Leone Truth & Reconciliation Commission
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