Debates

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

A Debate Whose Time Has Come

Moderator
David Tolbert
President, International Center for Transitional Justice

Twenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court, shockingly little is being done to stop massive human rights abuses. The prospects of victims receiving justice, let alone bringing perpetrators to account, seems ever more remote.

In recent days, we have witnessed horrific atrocities by Boko Haram, with only a limited response by the international community. The bloody handiwork of ISIL is grabbing headlines, and there seems to be no coherent strategy to address its barbarity. In Syria conflict rages, with untold civilian casualties as a divided UN Security Council sits on the sidelines. Gaza is struggling to recover after its umpteenth destruction. Eastern Ukraine is rocked by daily attacks on civilian targets, and very few seem to remember the downing of a civilian airplane there, in which 295 people died. This somber list could go on and on.

In my view, the response by the international community to these horrors is one primarily of lip service and well-worn shibboleths. Indeed, powerful states often seem to be casting support to whichever group of killers best suits their interests, with only faint rhetorical nods to human rights.

This is not only a professional reaction to these disturbing trends; it is also born of deep personal concerns and experiences. I joined the United Nations in 1993 to work on issues in Palestine and started my new job on the very day the Oslo Accords were signed, marveling both at the apparent breakthrough and my seeming good fortune to be part of an era of peacebuilding. Several years later I joined the International Criminal Tribunal for the former Yugoslavia and later sat across a jail cell desk from one of the principal architects of the Balkan tragedy, Slobodan Milosevic, whose prevarications were then being made from behind bars, far from the halls of power. In 1998, I was in Rome for negotiations on the International Criminal Court; I was both awe-inspired by the apparent flowering of international justice and a bit nervous that the world perhaps did not understand fully the implications of such a groundbreaking step.

Thus, like other human rights activists and supporters of this generation I was a witness to some key moments in the 1990s, a decade in which there was an upswing across the planet in responding to massive human rights abuses. We saw the establishment of UN-backed courts and tribunals in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. On the national level, some 10 truth commissions were established in that decade across every geographical region as well as other important initiatives, including reparations programs, national prosecutions and other reforms, providing a measure of justice to victims and accountability for some of the worst perpetrators. The response was fitful and erratic, but the moral arc of our universe, in the words of Martin Luther King, Jr., seemed to be “bending towards justice.”

That no longer seems to be the case. The fight against impunity has experienced many setbacks over the last decade, with the ICC under attack (particularly in Africa), national efforts failing, and many states that supported human rights in the past more concerned about the “War on Terror” or their access to natural resources than fighting impunity. Indeed, if anything, the trend seems to be continuing in a downwards spiral.

My intention in writing on this very issue — “A Wrong Turn for Human Rights” — last September for Project Syndicate, was to start a debate on the critical question of the extent to which there has been a “wrong turn” on human rights generally and the fight against impunity specifically. Even more importantly, I hoped that such a debate would begin to mobilize ideas and energy to push back against the revanchists and energize the struggle for human rights and accountability.

At the outset, I would agree that my argument is a work of advocacy and that there are other different and perhaps more nuanced views on this critically important subject. Some may say that the focus of the argument is too narrowly construed or that it does not take into account the advances made in recent years. Indeed, we at ICTJ are providing advice and technical assistance on justice issues as the groundbreaking peace process in Colombia goes forward. We are also working closely with the Truth and Dignity Commission in Tunisia and other transitional justice efforts globally, and these show some promise. Some voices may posit that the fight against impunity is not the right lens and that, instead, economic, social, and cultural rights should come to the fore and progress on human rights should be measured in these terms.

For those who share the view that the fight against impunity is on the wane, there are no doubt many diagnoses of the causes and scope for discussion about the reasons for such a “wrong turn”. Analytically, one can certainly argue that understanding the underlying causes of the apparent waning commitment to human rights is key to finding remedies as well as setting our sights on a better course. Some voices will probably point to the impact of the attacks on September 11th and its ensuing fallout, particularly in the approach the United States and some of its allies, including the use of “extraordinary renditions,” “black sites,” torture, and other dark arts employed at detention facilities in Guantánamo Bay and Abu Ghraib. Obviously the US-led invasion in Iraq has had many negative consequences as well. The rise of a more aggressive group of non-democratic states and their active disregard for human rights is also a factor to be taken into account.

So, there are many points of view and much to discuss. In order to frame the debate and place some parameters on the discussion, we have posed the question broadly:

Is the international community abandoning the fight against impunity?

I am very pleased to have some of the leading thinkers and activists on human rights and the fight against impunity participating in the debate. We are kicking off our discussion with opening statements from our debaters, two eminent authorities in the field of human rights. I am deeply honored that the UN High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, will be arguing the “no” position – that the international community is not abandoning the fight against impunity.

In his intervention, High Commissioner Zeid argues that we need to look at the question in perspective, that there have been many advancements in human rights, admittedly along with some setbacks. He strongly makes the point that we now hear much more about human rights abuses due to the work of activists, intrepid reporters, and the rise of the internet and new media that uncover these abuses. Further, women and many marginalized peoples are now more able to exercise their rights in many contexts. He also notes the work of national and international courts, including the trial of former Chadian dictator Hissene Habré in Senegal, as evidence that the fight against impunity is making progress. In his view, activists must keep perspective and be prepared for a long struggle, and that, all in all, the cause of human rights is heading in the right direction.

Arguing for the other side is Michael Ignatieff, the Edward R. Murrow Professor of Practice at the John F. Kennedy School of Government at Harvard University and the former leader of Canada’s Liberal Party. In his piece, Ignatieff points to the ICC Prosecutor’s recent decision to drop charges against the sitting Kenyan President, Uhuru Kenyatta, as a strong signal that the international community has abandoned the fight against impunity. He argues that without political support from the UN Security Council and, in this case, African states, no international prosecutor can try high-level defendants. In Ignatieff’s view impunity reigns because politics ultimately trumps international justice. In particular, Ignatieff poses the difficult proposition that supporters of international justice must be more pragmatic and careful before launching investigations in difficult political terrain, as in the Israeli-Palestine situation or on the crime of aggression. In his view the prudent exercise of judicial discretion is a key tool whereby the ICC gains traction; otherwise it simply turns into an illusion.

Over the course of the debate, I am pleased to say that we will also hear from other leading experts and figures in the field of international criminal law, transitional justice, and human rights. The current ICC Chief Prosecutor, Fatou Bensouda, a respected jurist in her own right, is slated to make an important intervention in the later stages of the debate. Aryeh Neier, the former President of the Open Society Institute and a leading voice in the fight against impunity for over a generation, will join our discussion. We will also welcome comments from Betty Murungi, a courageous advocate for justice and a former Vice Chair of the Kenyan Truth, Justice and Reconciliation Commission, and James G. Stewart, Assistant Professor at University of British Columbia Faculty of Law, and former Appeals Counsel with the Prosecution of the United Nations International Criminal Tribunal for the former Yugoslavia.

Of course, your contribution to the debate is critical. I look forward to your thoughts, critiques, proposals, and support, which are instrumental both to this debate and ultimately to improving the human rights situation for victims. One of the key insights in recent years is the importance of online discussions that allow for a plethora of voices to be heard. It is through the power of your ideas that we will be able to try to address and correct the “wrong turn” for human rights.

I am looking forward to your comments and interventions.

Let the debate begin!


David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008 Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY). From 2000 to 2003 Mr. Tolbert held the position of executive director of the American Bar Association’s Central European and Eurasian Law Initiative, which manages rule-of-law development programs throughout Eastern Europe and the former Soviet Union.

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