Victims’ responses after mass atrocities: a note on empirical findings

Abstract

Empirical research has shown that in the aftermath of mass atrocities, a large majority of the victims of gross human rights violations are much more concerned with their immediate needs than with the criminal prosecution of the perpetrators of these violations. The focus must shift from the perpetrators to the victims and that, in order to bring about desirable compensating improvements in the lives of those victims who are directly affected by these gross human rights violations, greater weight must be given to the interests and concerns expressed by them about matters fundamental to their well-being. The attention of legal scholars, policy analysts, and human rights campaigners and activists of the imperativeness of material reparations to meet the crying needs of a society emerging from political violence, comparative to criminal prosecution of the perpetrators must be engaged.

Keywords:

• criminal prosecution
• justice
• needs
• rights
• truth commission

Notes

1. The term ‘reparations’ is used here in a broader sense to mean various claims for mending past wrongs, including trials of perpetrators, monetary compensation for the victims, political purges, truth commissions, offering of apologies, and construction of plaques and memorials. For a detailed overview of reparations for human rights violations, see generally, De Feyter, Parmentier, Bossuyt, and Lemmens (2005), De Greiff (2006), Verdeja (2008).

2. For details of the human rights violations that occurred during the armed conflict in Sierra Leone, see, Final Report of the Truth and Reconciliation Commission (2004, chap. 4).

3. For detail of this conception, see Campbell and Thomas (2001, 11–48) (identifying eight fundamental jural relations, namely, claims duties, liberties, no-claims, powers, liabilities, immunities, and disabilities, and contrasting them with each other).

4. Entered into force on 3 September 1953.

5. Came into force on 18 July 1978.

6. Entered into force on 21 October 1986.

7. Enacted on 15 September 1994.

8. For more discussion of this point of view, see generally, De Kadt (1980), Facio (1995), Streeten (1980), Van Boven (1977). See also, Vienna Declaration and Programme of Action (1993, paragraph 5).

9. See the Constitution of the Republic of South Africa, No. 108 of 1996, as amended; notably, section. 26(1) — (Everyone has the right to have access to adequate housing), 27(1)(a)–(c) — (Everyone has the right to have access to (a) health care services; (b) sufficient food and water; and (c) social security), 28(c) — (Every child has the right to basic nutrition, shelter, basic health care services and social services), 29(1)(a) —(Everyone has the right to a basic education, including adult basic education), 33(1) —(Everyone has the right to administrative action1 that is lawful, reasonable and procedurally fair), 35(2)(e) — (Everyone who is detained, including every sentenced prisoner, has the right … to conditions of detention that are consistent with human dignity).

10. For a survey of cases where attempts were made at enforcing socioeconomic needs but which were met with very little or no success, see e.g., Soobramoney v Minister of Health, KwaZulu Natal (1998), (1) SA 745 (CC); Minister of Health and Others v Treatment Action Campaign and Others (No 2) (2002) (5) SA 721 (CC); Jaftha v Schoeman and Others (2003) 3 All SA 690 (C); Khosa v Minister of Social Development (2004) (6) SA 505 (CC); Mahlaule v Minister of Social Development (2004) (6) SA 505 (CC); Van Rooyen v Stolz (2005) (2) SA 140 (CC).

11. For further argument of this sort, see Louis-Edmond and Meyer-Bisch (1998).

12. Sulay Kanu, Testimony at the Truth and Reconciliation Commission Hearings in Tonkolili, Sierra Leone (7 July 2003).

13. Ibrahim Forna, Testimony at the Truth and Reconciliation Commission Hearings in Tonkolili, Sierra Leone (7 July 2003).

14. Kamba Kamara, Testimony at the Truth and Reconciliation Commission Hearings in Tonkolili, Sierra Leone (8 July 2003).

15. The Truth and Reconciliation Commission Act 2000, section 6(2)(a)(b).

16. The responses given in the Robin’s survey were originally expressed in decimal numbers but have been converted to percentages here for the purpose of this analysis.

17. For a scholarly discussion on the activities of Madres de Plaza de Mayo, see, Bosco (2004).

18. For full analysis and critique of rights-based criminal prosecution in periods of transition, see, Minow (1998).

19. Malamud-Goti offers countervailing argument noting that not punishing all violators of human rights does not constitute a breach of moral duties by the transitional administration see, Malamud-Goti (1990).