2. Successors' Responses to illegal Acts of Previous Regimes

The ways in which violations of fundamental norms in many internal situations are handled, including by successor regimes, illustrates the complexity of the whole subject of enforcement. Sometimes such violations lead to judicial processes, but often they do not.

Terrible crimes occurred in South Africa in the apartheid years, and in many South American states in the 1970s, and Ethiopia in the 1980s. In these countries, successor regimes have taken very different approaches to the question of whether to prosecute. Decisions not to do so are naturally contested, but they reflect some serious considerations: that it is hard to pinpoint individual responsibility and invidious to select out a few for trial; that there were some mitigating circumstances at the time; that the quiescence or positive co-operation of those with overall political responsibility for the offences may be needed if the successor regime is to survive; that those who have lost power, privileges or jobs are perceived by the public to have suffered enough already; or that trials might reopen old wounds.

Similar considerations frequently apply as regards violations of the laws of war, m conflicts between as well as within countries. Decisions to prosecute, or not to prosecute, are frequently the outcome of complex political processes and calculations. We are very far from anything approaching a system where it can be taken for granted that offences will be the subject of trials.