Impunity - Inertia, Inaction, and Invalidity: A Literature Review

Abstract

Impunity is the torturer's most relished tool. It is the dictator's greatest and most potent weapon. It is the victim's ultimate injury. And, it is the international community's most conspicuous failure. Impunity continues to be one of the most prevalent causes of human rights violations in the world. As we near the new millennium, we must find effective ways to combat this vexing predicament.

Impunity knows no territorial bounds and speaks no specific language. It is not unique to any religion or race, and is not limited to any particular geographical region. Impunity remains a world wide problem. The end of the Cold War and the rise of nascent democracies throughout Latin America and Eastern Europe have brought much needed attention to this pervasive problem. Accordingly, the amount of literature and scholarly attention devoted to impunity continues to grow. This paper attempts to familiarize the reader with a broad range of information relating to impunity. The approach taken is mainly international, although one section will be devoted solely to the history of impunity in the Asian-Pacific region. Further, due to the limited scope of this review, only impunity relating to gross violations of human rights' will be considered.

The first section of this paper reflects upon the definitions utilized in the impunity vernacular. Impunity itself does not appear to be a contested matter, yet no single definition encompasses the term and its many variations. Examples of impunity are much easier to uncover than precise definitions of what the term "impunity" truly means. Nonetheless, several definitions have been proffered and provide a solid foundation on which to build.

The second portion of this paper focuses on the history of impunity dating back to World War I. This paper references several international treaties and presents a discussion regarding the Inter-American regional system to provide the reader with sufficient background materials to recognize impunity. While impunity as a political tool and legal concept certainly precedes World War I, many scholars delineate the omissions at Leipzig as the starting place of modem impunity.

The third section considers specific cases of impunity in the Asian-Pacific region. Due to the limited scope of this paper, only the cases of Cambodia, the Philippines and the Japanese treatment of "Comfort Women" have been examined. These three examples are frequently cited in scholarly literature and are generally illustrative of the Asian impunity dilemma.

Although the focus of this review is impunity, another term will be utilized throughout this survey, and it is important to present this term in the introduction. The term is "accountability." Accountability, it has been suggested, "is the antithesis of impunity." While impunity remains a focus of debate and international efforts, the human rights community is moving toward a culture of accountability. Essentially, accountability is the effort aimed at curtailing impunity. Readers in this field will undoubtedly come across the term accountability as it permeates modern writing and as human rights scholars and activists use it more frequently.

This survey and the case studies presented herein focuses on three main types of legal accountability: (1) the use of prosecutions, both national and international, in an effort to combat impunity; (2) the resort to non-criminal sanctions, such as lustration laws and political purgings that aim to remove human rights violators from positions of power and influence; and, (3) the use of truth commissions as a substitute for, or in addition to, other accountability mechanisms.

In describing each of these mechanisms, the common thread is a determination to combat impunity. While there is no "one-size-fits-all" approach to impunity or accountability, it is hoped that this literature review will provide pertinent information on the options available when governments are confronted with gross violations of human rights.

Keywords: international law, treaties, genocide convention, convention against torture, international covenant on civil and political rights, geneva convesntions of 1949, truth commissions, lustration laws, reparations, international criminal court, ICC

JEL Classification: K33, K42, N40