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RIGHTS: Do Elderly Human Rights Abusers Belong Behind Bars?

Paul Weinberg

TORONTO, Dec 9 2003 (IPS) - With decades sometimes elapsing before human rights atrocities are prosecuted, how to deal with aged defendants has become a thorny issue for some legal scholars.

William Schabas, a Canadian lawyer who is now serving on Sierra Leone’s Truth and Reconciliation Commission, believes elderly people convicted of war crimes or genocide should not be imprisoned.

Both former Chilean military dictator Augusto Pinochet, born in 1915 and now in his late eighties, and the remaining and aging Nazi criminals from the Second World War “are probably too old to be put in jail,” Schabas said in an interview on Dec. 6 while attending an international conference of human rights experts at Toronto’s York University.

Schabas is currently the director of the Irish Centre for Human Rights at the National University of Ireland in Galway, Ireland.

If Pinochet had been declared mentally competent by legal authorities, successfully extradited from Britain and brought under warrant to Spain for questioning by local judges for his alleged role in the deaths of Spanish citizens in Chile during his rule between 1973 and 1990, imprisonment would not have been considered under Spanish law, states Schabas.

“I think that is born out of a humane approach to criminal justice, which no doubt is born from the democratic spirit (in Spain) from people who have lived under fascism for years,” Schabas said.

> Schabas’s perspective, the Pinochet case was about establishing “an historical record” and holding a political leader “accountable” for recognised crimes involving the imprisonment, execution, and disappearances of thousands of people while in power in Chile.

“The fact that someone has committed a crime against humanity doesn’t mean they get to be treated in an inhumane way. It is part of a humane justice system that when you reach a certain age, it is really not appropriate to incarcerate someone,” Schabas says.

However, Fiona McKay, another participant at the Toronto human rights conference, says it is “my inclination that (Pinochet) should probably go to jail,” if the former dictator had been found fit to stand investigation and trial.

Currently the director of the international justice programme at the New York City-based Lawyers’ Committee for Human Rights, McKay was formerly involved with the London NGO Redress, which along with Amnesty International successfully sought the public release of Pinochet’s personal medical records. (Concerns surrounding the former dictator’s mental competency led to the refusal of the Spanish judges’ extradition request by the British government).

There is often a lag in time, lasting sometimes decades as in the case of deaths of six million Jews in the Second World War or the mass murders under the Khmer Rouge in Cambodia during the 1970s, between the actual events and what McKay calls “the political decision” by a government to set up a process for prosecution or other forms of redress.

Age should not be a factor in dealing with such horrific acts and in terms of sentencing, “there is not a coherent approach” among the international criminal courts, McKay said in an interview with IPS.

“I think it is very important to carry on making attempts to deal with accountability, however old someone gets,” she said. “As to the jailing aspect, I wouldn’t be so categorical. I think it would depend (on the) context.”

Schabas has no “cut-off date” for the jailing of the perpetrators of atrocities, but he states that many countries have statutes of limitations in their justice systems for all crimes, including murder, that were committed decades earlier.

Furthermore, he says it is more “valuable” from an international justice perspective to focus on “fresh crimes” involving genocide in countries like Rwanda and Sierra Leone.

“The thing that most people don’t understand about justiceàis that it is always about fixing priorities. Most criminals, most people who commit crimes in the world don’t get punished, don’t get held accountable. Good justice systems are able to focus on important cases and distinguish from less important cases,” adds Schabas.

But McKay counters that “an international consensus” exists which holds to the view that there should be no statutes of limitations for the most serious of international crimes, such as war crimes and crimes against humanity, she says. “In fact, there is an international convention on the non-applicability of statutes of limitations for crimes against humanity.”

This “selectivity” in the prosecution of alleged war criminals by international bodies is of concern to Sara Hossain, a Bangladeshi lawyer, who specialises in family and constitutional law and appears before her country’s Supreme Court.

“We are not looking at what’s happening with the U.S. military action in Iraq, looking at how Iraqis would get redress against the U.S. Even with the (NATO military) action in Kosovo, there was much less concern with what the military alliance was involved in,” she said in an interview.

Hossain adds that her country’s government in Decca has been slow in pursuing alleged perpetrators of mass killings of Bangladeshis by Western Pakistan troopers (estimates range from 300,000 upwards to millions dead) during an unsuccessful invasion to prevent the eastern Bengali speaking portion of the country from separating and becoming independent.

In the host country where the human rights conference was held, the national government in Ottawa focuses on deporting foreign nationals who are alleged to have committed war crimes, rather than prosecute and sentence them here.

This is not a position that satisfies Alex Neve, secretary general of Amnesty International Canada.

Neve has noticed “scepticism, and questions and doubts” among the Canadian public whenever he and other human rights organisations talk about how “our national level courts need to be part of the solutionàprosecution, civil remedies.”

More than 100 leading international experts on human rights attended the Toronto conference, which was entitled, “Searching for Justice: Comprehensive Action in the Face of Atrocities”.