Regional human rights commissions are challenged in holding individuals accountable for human rights violations but have the potential to be transformative to international law. Accountability is not merely trying and punishing the person; rather accountability is a complicated process that presents the main challenges facing a regional human rights commission. These paramount problems are local interests and their influence, the proliferation of impunity, the capacity to deliver accountability, the sovereignty of the state, and the embeddedness of sovereignty within the processes and bodies of the United Nations (UN). However, these problems are not exclusive to regional human rights commissions, and the unique position and sensitivity a regional organization can provide highlights a potentially transformative process for international law.
Holding an individual accountable for human rights violations is not merely staging a trial and rendering a punishment. The person’s trial and punishment are certainly warranted; accountability for the actual abuse regardless of the person, however, is a complex process that involves every facet of international law. Juan Mendez and Javier Mareizucurrena (1999) refer to this as “affirmative obligations on the state” (p. 88). In summary of Mendez and Mareizucurrena (1999), these obligations are a duty to investigate, prosecute, punish those found guilty, and to provide truth to the victims and public. In continuing their summary, there is the requirement to provide certain measures of reparations to the victims and their families and to relieve and remove those who participated in the violations (p. 88). These obligations are crucial yet incredibly challenging to ensuring accountability for human rights abuses. This essay holds the argument that accountability for the alleged individual and the abuse committed are two unique things but that they cannot be separated because victims of abuse are seeking accountability for human rights violations.
Challenges
Interests: A subject that is not often talked about regarding regional organizations and as such regional human rights commissions is the geography of their mandates. Regional human rights commissions do have an influence on the entire international system but are representative of select areas and populations. For instances, the Inter-American Court of Human Rights primarily deals with abuses related to Latin America (Mendez & Mareizucurrena, 1999, p. 85). The greatest concern with geography and the challenges a regional human rights commission face are the local interests of its constituents.
A keen example of potential influence is the Organization of Islamic Conference (OIC) and their push for religious defamation resolutions claiming the same status as other protected human rights (Arab News, 2009, p. 1). While this concern isn’t just geography but theology too, it does raise concerns because many other regions consider religious defamation laws an affront to freedoms of speech. It begs the question of how that particular regional commission is going to ensure all the obligations that are required to meet outright accountability are satisfied.
Specifically regarding religious defamation, if it were a punishable human right, how could we ride those in the ranks of perpetrators, or how is someone against a religion supposed to repay the victim without trampling other protected human rights? If a person defames a religion through artwork, are they to make a new piece that is against non-religion as reparation? What if the reparation required is artwork against another faith, would that not constitute yet another crime of religious defamation?
Impunity: Regional human rights commissions and their member states have a marked history of granted impunity to those who have committed human rights violations. Christopher Joyner (1998) defines impunity as, “exemption or freedom from punishment and connotes the lack of effective remedies for victims of crimes” (p. 2). Granting impunity for crimes is critically dangerous because they violate the principles and protections valued most in the Universal Declaration of Human Rights. (Joyner, 1998, p. 2). However, amnesty laws and thinly worded freedoms of impunity are still pervasive even as the international community holds a strong consensus against impunity (Mendez & Mareizucurrena, 1999, p. 86).
Impunity often takes the form of amnesty laws argued as necessary to achieve a transition to democracy following a time of violations (Mendez & Mareizucurrena, 1999, p. 86). Jean-Marie Kamatali (2007) communicates this while speaking of Latin America, “amnesty laws motivated by impunity. . . were used for erasing, elimination, and forgetting the past in its entirety” (pp. 282-283). Guatemala in 1986 provides a telling example. Days before handing over power, the military government decreed self-amnesty that was protected by President Vinicio Cerezo. Worthy to note, however, ten years later in attempting to broker peace between guerilla fighters, the amnesty law granted in Guatemala did not grant amnesty for the most egregious crimes (Mendez& Mareizucurrena, 1999, pp. 86-87). This could highlight a shifting norm to the positive. Impunity undercuts the legitimacy across the board in reaching accountability and outright closure of the crimes committed. It is clearly against the primary obligations to investigate, prosecute, and punish. What truth or ‘moral of the story’ can victims and those who might commit crimes in the future take from the granting of impunity for human rights violations?
Capacity: Regional human rights commissions face challenges in the ability to deliver accountability of the individual who committed the crime and accountability of the offense committed. The capacity to provide accountability entails the ability to hold a trial, conduct a truth commission, command the compliance of member states, and navigate the divisions of labor in the international system that are important links in providing accountability (Kritz, 1997, pp. 133-146). An organization has to be able to achieve those items listed above to delivery accountability worth measuring. These challenges are faced by any human rights body and are extremely burdensome at overcoming. What is important to remember is that geography will bind a regional human rights commission, in that it’s capacity to deliver is related to the ability and will of its member states with or without independence. More important to the capabilities of a regional human rights commission are sovereignty and the interconnectedness of the UN, which holds a greater comparative advantage than most regional bodies regarding human rights.
The UN and Sovereignty: UN organizations and individual states have drastic comparative advantages when comparing them to regional human rights commissions. This might be obvious and desired by many people as the international system is set-up with the state as submissive to no one, with a significant amount of legitimacy granted to the UN. However, the state and UN present looming challenges to regional human rights commissions, along with numerous advantages. These challenges are not exactly adversarial, but rather descriptive and sometimes inefficiencies in communication and interaction. Inefficiencies are where the transformative potential of regional organizations and human rights commissions are found and are covered later in this essay.
Neil Kritz (1997) gives a rather persuasive argument for the benefits of international prosecution. Quoting Kritz (1997) an international body “is more likely to be staffed by experts able to apply and interpret evolving international standards” (p. 129). As well, international tribunals can do more to proliferate international development and norms (Kritz, 1997, p. 29). Kritz (1997) goes on to say international organizations, “can enhance the legitimacy and credibility of a fragile new government, demonstrating its determination to hold individuals accountable for their crimes” (p. 132). This is precisely because of the greater legitimacy granted to the UN by the global community in its application of universal coverage and a higher integration of international treaties and customary law into national law processes of its member states (Kritz, 1997, p. 145).
While it is not a bad thing that the UN has this advantages, it does present great division of labor problems between UN bodies and regional organizations (Kritz, 1997, p. 146). Often these divisions manifest in who’s responsibility it might be, who’s precedent should be followed, who is to pay, and who has the right, to which all of these are compounded further when accounting for the state in question and their rights of sovereignty or self-determination.
The sovereignty of the state in conflict or where the crimes are committed will greatly challenge a regional human rights commission. This is partly due to the inherent benefit of the country in question and those parties in conflict resolving their differences independent of a need for outside assistance. Where the UN can hamper a regional commissions capacity from above, the nation does it from below. Quoting Krtiz (1997) in saying, “domestic courts can be more sensitive to the nuances of local culture, and resulting decisions could be of greater and more immediate symbolic force because verdicts would be rendered by courts familiar to the local community” (p. 133). This is contingent on functioning institutions of law and order within the nation; without those facilities in place, the state can be at a severe disadvantage.
Potential
Regional human rights commission do face many of the same challenges that a state and the UN face. However, with its unique position as a regional body, there are numerous benefits that are in a sense the best of the UN and that of the state.
One of the biggest complaints of international level commissions or courts like the International Criminal Court (ICC) is their physical and figurative distance from those they are protecting. Kritz (1997) referred to the figurative distance in saying, “institutions. . . too often forget this point concerning complementary roles and adopt a somewhat condescending and dismissive attitude toward national efforts at achieving justice” (p. 145). While there is respect for the ideals of universalism, regional courts in their physical and figurative proximity to the cases they try do not suffer from that disadvantage. Just as Kritz (1997) talks of national jurisdictions having a benefit in understanding the people in its community, it stands to reason a regional body will have a greater understanding than that of an even further and often European based international organization (p. 133).
A key concern with national judicial institutions is fairness and transparency in trials (Kritz, 1997, p. 136). Honesty and transparency in trials create a stronger truth that is discoverable in truth commissions which are an important part of accountability. Theoretically, a regional body appears better suited for monitoring and securing fairness in domestic courts because of their proximity and greater understanding of its members than a distant ICC.
Often tied to the process of accountability in human rights violations are non-criminal sanctions. These are initiatives aimed at punitive recourse for the numerous amount of people it takes to commit systemic crimes, but that would be too burdensome to try as criminals (Kritz, 1997, p. 139). Non-criminal sanctions are necessary for obtaining accountability for crimes committed. The victims of those crimes need the assurance that those who perpetrated the crimes do not have the ability to commit that crime again, at least temporarily. Monitoring the enforcement of sanctions is key to non-criminal sanctions working. The benefit a regional body has regarding non-criminal sanctions is again proximity to the offenses and the advantage that gives in monitoring enforcement. Similar to monitoring sanctions, a regional organization is theoretically just as suited for monitoring the enforcement of the removal of those armed forces who perpetrated human rights violations (Mendez & Mareizucurrena, 1999, p. 98). This too is essential for reaching closure for the victims. Often human rights abuses are at the hands of armed forces, expelling those guilty members, in the end, makes the same sense as non-criminal sanctions.
The final benefit is rather abstract. Milli Lake (2014) in studying the legal processes still present in failed states refers to the ability of regional bodies to act as vaults or storehouses of legal findings (p. 517). If that is correct and, civil processes in law do continue but might appear implicit, the security, synthesis, and progress of those processes are necessary for that state’s culture and future stability. The geography of proximity again gives regional bodies of law a slight edge at holding onto those customs for the community.
Conclusion: Regional human rights commissions and organization face many of the same challenges as a state, or the UN would face in securing the accountability of human rights abuses. However, because of the unique position of a regional body, many of the challenges are heightened. Accountability for human rights violations is critical for all of us. Regional bodies of law must take explicit care not to fall prey to the self-interest of its region and warp the ideas of human rights and accountability. Many bodies have a long history of granting impunity, but moving forward they must realize amnesty for human rights abuses does not secure quick accountability or closure. The state and UN with the embeddedness importance of sovereignty do present lofty challenges for a regional body of law because of their comparative advantage in legitimacy. However, international institutions and the state both suffer from deficits that a regional body can naturally supplant because of proximity and a nuanced understanding of the communities they serve. Until the accountability of human rights abuses become a greater supremacy than the state, regional bodies face challenges in operation but are crucial to facilitating the accountability of abuses within a state and at most could represent reform or transformation in international law.
References
Joyner, C. C. (1998, Summer). Redressing impunity for human rights violations: the Universal Declaration and the search for accountability. Denver Journal of International Law and Policy, 26(4), 591
Kamatali, J.-M. (2007). Accountability for genocide and other gross human rights violations: the need for an integrated and victim-based transitional justice. Journal Of Genocide Research, 9(2).
Kritz, N. (1996). Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights. Law and Contemporary Problems, 59(4), 127-152.
Lake, M. (2014). Organizing Hypocrisy: Providing Legal Accountability for Human Rights Violations in Areas of Limited Statehood. International Studies Quarterly, 58(3), 515-526.
Mendez, J. E., & Mariezcurrena, J. (1999). Accountability for past human rights violations: Contributions of the inter-American organs of protection. Social Justice, 26(4), 84-106.
OIC defends resolution on religious defamation. (2009). Arab News (Jeddah, Saudi Arabia), (Oct 29 2009): NA.
