Archived February 09, 2015 - March 12, 2015

Is the International Community Abandoning the Fight Against Impunity?

In recent years the world has seen no respite in conflict where civilians are being particularly targeted with increased brutality. Reports of the devastation wrought by conflict and terror seem to overtake one another with civilian casualties soaring in Syria, Central African Republic, Gaza, Nigeria, Pakistan, South Sudan, Ukraine, and more.

Especially worrying is that, increasingly, impunity reigns for the perpetrators of these atrocities, and political will and cooperation in upholding the interests of justice seem to have faltered: African governments have vowed to shield sitting heads of state from judicial oversight, and in Guatemala, despite huge efforts by victims and civil society, political forces continue to derail the trial of a former dictator accused of genocide. Meanwhile, the UN Security Council failed to refer the violence in Syria to the ICC, and the ICC Chief Prosecutor, citing a UN Security Council stalemate that can “only embolden perpetrators”, announced the suspension of the Court’s investigation of the genocide in Darfur, Sudan.

These developments have recently prompted ICTJ President David Tolbert to sound a warning that the international community is backsliding on its obligations to protect human rights. To continue this conversation, in this ICTJ Online Debate we ask: Is the international community abandoning the fight against impunity?

Need to catch up? View Opening Remarks

As Debate Closes, Global Action to Reinvigorate the Fight against Impunity Begins

David Tolbert
ICTJ President

I write to close this online debate but only in the most technical sense of the word, as the discussion on how we reinvigorate the fight against impunity is at the very heart of the human rights movement at this moment in time. Fighting impunity is a pressing moral imperative for us all. It is also an issue of the utmost urgency, as the lives and wellbeing of millions of people across the planet hang in the balance.

I would like to thank all of our participants who contributed to the debate. UN High Commissioner for Human Rights Zeid and Professor Michael Ignatieff proved to be worthy debaters and did an excellent job of framing the issues for us. The interventions by Justice Fatou Bensouda, Aryeh Neier, Betty Murungi and Professor James Stewart were innovative and thought provoking. Our distinguished commentators put important ideas on the table that will be critical in re-energizing the fight against impunity. More generally, I was impressed by the many comments that were made in response to the debate. Indeed, some sharp points were raised or refined by interventions “from the floor.”

As I noted in my opening remarks, both my own advocacy on this issue and the debate itself were framed in stark (some might say provocative) terms. Nonetheless, the question posed has brought to the surface many important questions. While there seems to be an across-the-board acknowledgment that the last decade has seen setbacks and lost ground in the fight against impunity, understandings of the causes, extent, and depth of the reversal as well as ideas to address this lost ground varied considerably.

Ignatieff argues strongly and provocatively that the fight against impunity is in retreat and that international justice is only possible where it does not threaten powerful states’ interests. Indeed, in his view there is no historical inevitability to the march of human rights, and we must be realistic about where we stand. Nonetheless, he does point to a better future if we take into account “the transformative contribution of human rights activists” in national contexts where “surely all our efforts should be” concentrated.

In contrast, Zeid points to a wide range of steps that have been taken in recent years to bolster human rights, notably more robust UN Commissions of Inquiry, the Habré trial, and strengthened human rights monitoring. He encourages us to look beyond the headlines and see the long arc of history, which is moving gradually in the direction of human rights and a greater demand for justice. While his views contrast with Ignatieff’s, they both have stressed the importance of action at the national level and that states themselves must lead the fight against impunity.

Bensouda forcefully articulates the mission of her office and puts forward a vision of a long road that is moving towards greater accountability. While she acknowledges states and the UN Security Council play an outsized role in determining when the International Criminal Court exercises its jurisdiction, nonetheless the court is working effectively across a range of situation. Therefore, our efforts should focus on strengthening the court and supporting efforts towards its universality, which would be an important contribution to the fight against impunity. Stewart in his timely intervention makes a strong case that the ICC is missing out on an important piece of the fight against impunity by failing to address corporate impunity. Stewart points to a lacuna in the post-Nuremberg landscape: “commercial actors responsible [for serious crimes] remain almost perfectly shielded from justice.”

In his farsighted piece, Neier advocates that we “think afresh about how to go forward.” He notes the “great advances” of the international criminal justice movement led “up to a certain point, but then it seemed to get stuck” and thus “further innovation is now required.” He posits several possibilities, including greater use of ad hoc tribunals, looking at pillage by corporate officials (echoing Stewart) and reconsidering trials in absentia. Neier argues that with these and other innovations, the fight against impunity could “reinvigorate itself.” He proposes a global gathering of governments and civil society coinciding with the 20th anniversary of Rome Conference that adopted the ICC treaty, suggesting that proposals could be made and debated at the national level and regional level in the lead up to such a conference.

Murungi’s views are perhaps closest to my own. She points out that in view of the mass atrocities that are occurring in real time, “the ICC has not had much of a deterrent effect.” In this regard, she argues that when the African Union pushed back against the “international justice order the world blinked.” Moreover, no action is being taken on a variety of atrocities in places like Syria, Ukraine, and Gaza, which also have “turned on politics, not law.” Murungi then issues a clarion call for us to make links between international criminal justice, national justice sector reform, and transitional justice and, in particular, transitional justice’s emphasis on victims and acknowledgment of the violations that they have suffered.

Into this mix we have had excellent contributions from other participants, too numerous and nuanced to summarize here. I would note, in particular, Kip Hale’s well-argued intervention pointing to the progress of international criminal justice over a short time but frankly admitting the lopsided approach on who has been prosecuted. Toby Cadman brought to our attention the dangers of criminal justice being instrumentalized for purposes of political retribution, as is happening in Bangladesh. The Women’s Initiative for Gender Justice brought an excellent intervention, underlining both the progress and setbacks in terms of gender justice. David Donat has vigorously argued that the evidence shows the ICC is indeed having an impact where it does have jurisdiction. Goran Simic underlined the importance of other transitional justice measures in carrying out the fight against impunity.

I share Simic’s view, in particular. While I expected that much of the discussion in the debate would focus on the ICC, I think this is too narrow a lens to view the fight against impunity. The Rome Statute itself makes clear that the ICC is intended to be a court of last and very limited resort. Even an efficient ICC will be able to deal only with a handful of cases from a given situation. Thus, if we are serious about criminal accountability, the complementarity principle must develop real teeth. At this stage we see a great deal of lip service paid to this idea but virtually no action. National governments, at best, wave complementarity as a proverbial flag to cover their own intended inaction. Donor countries are not willing to expend either the political capital nor provide the necessary investments to make national prosecutions a reality. I fear that the principle of complementarity is in danger of becoming a charade.

More fundamentally, in my view we need to reframe the fight against impunity, as Murungi has argued, to take into account the “evidence that transitional justice measures acknowledge the centrality of victims and better chances of creating a more durable peace and change in governance institutions that support democracy and human rights.” The first step in this process is to make clear that the fight against impunity is not seen as only about the ICC and, more generally, not only about criminal justice. Otherwise, we leave many victims out of the justice equation and the fight against impunity becomes a very narrow struggle with the forces of human rights leaving important tools on the sidelines. In this connection, we must remember that in cases of mass atrocities, only a limited number of perpetrators will be brought to the bar of justice. In the former Yugoslavia, there were an estimated 10,000 perpetrators in Bosnia-Herzegovina alone. The International Criminal Tribunal for the former Yugoslavia, where I spent a considerable part of my career, prosecuted 121 individuals and the national courts hundreds more, but thousands upon thousands will not see the inside of a courtroom.

More importantly, we must be clear-eyed and recognize the limits of a formal criminal justice process in the fight against impunity and the important role of other approaches to accountability that have developed under the rubric of transitional justice. While criminal justice processes are important for purposes of accountability, we must also recognize that they are very case specific and focused on charges against the individual on trial. Thus, other approaches and measures have evolved to address, in particular, the needs of victims, including reparations programs, which seek to recognize and acknowledge materially and/or symbolically the injuries that victims have suffered. Moreover, as Neier has argued, the steps taken in 1983 by President Raúl Ricardo Alfonsín of Argentina to establish a commission on the disappeared as well as prosecutions launched the modern fight against impunity. Truth commissions have played an important role in many contexts to uncover facts, identify root causes of human rights abuses, propose critical reforms, and in some contexts award reparations and/or uncover important evidence for criminal investigation and trials. Reforms can play a key role in fighting impunity, by ensuring that institutions, including the courts, the police, the military and other authorities, do not commit abuses again and become part of a democratic government based on the rule of law.

So, I put this on the table, let’s be clear that the fight against impunity is not limited to the ICC and that if the ICC stumbles, the fight against impunity somehow also is imperiled. As important as the ICC is, the fight against impunity remains, as a number of our contributors have argued, primarily about national processes. While every situation is context drive, I would argue that ensuring accountability, acknowledgement, and reform on the national level is generally at least as important as often-symbolic prosecutions at the international level.

Whatever our specific views, the critical question is, what is to be done? I think that we must first be honest with ourselves and acknowledge that the primary energy and innovation for taking the fight against impunity forward must be at the national level, led by active social forces (by this we at ICTJ mean not only what we usually think of as civil society, e.g., victims and human rights groups, but also groups and movements such as unions, religious communities, and environmental groups). I am quite attracted by Neier’s very interesting proposal for a conference, preceded by meetings at the national and regional level, linked to the 20th anniversary of the Rome Conference. In my view, the link is only at a symbolic level and such a series of meetings and conference would be based on a very different agenda as well as a different configuration of participants and a different process than occurred in Rome in 1998.

If we are to build momentum and re-energize the fight against impunity, human rights activists need to build on this debate. Thus, I would argue for the national and local consultations with NGOs that Neier has proposed, but we would need to ensure that a plethora of voices would be heard and a range of ideas discussed. We should work to ensure that the voices heard would come from local and national contexts. While international NGOs would have a role to play, the energy and drive will come from local and national social forces, and international NGOs should play primarily a supporting role. In my view this seems a promising way forward, and I look forward to hearing from our colleagues in the coming days and months on their ideas on how we can take this idea forward and put more “flesh on the bones.”

We will be leaving the floor open for the next two weeks for further comments, and I look forward to hearing your thoughts and ideas on both the ideas I have put on the table as well as your own proposals for continuing the debate and taking steps to reinvigorate the fight against impunity.

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