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?

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Despite Setbacks, Fight Against Impunity Continues

Zeid Ra’ad Al Hussein
UN High Commissioner for Human Rights

All the fights worth fighting involve long-term struggles, hard work and many forces at play. The fights against apartheid, slavery, and colonialism have been fought over the long term, with battles both won and lost. They involve the employment of a variety of methods in order to advance a cause.

So it goes with the fight against impunity. It is multi-faceted and in constant flux. It takes many different forms, involves many different actors, and is carried out through different mechanisms, some of them relatively new. These include judicial proceedings, both international and domestic; transitional justice mechanisms, including truth commissions; the documentation of violations, for instance by commissions of inquiry; and diplomatic means.

The first of these mechanisms that comes to mind is the International Criminal Court, the most powerful symbol of the progress made in the fight against impunity for international crimes. No less than 123 states have ratified the Rome Statute of the ICC : this is a huge tribute to the determination of states across all regions of the world to foster accountability. When we assembled in Rome in the summer of 1998, we could not imagine that the 60 first ratifications needed for the statute to enter into force would be obtained in so few years. We could not have conceived that the court would operate, be formally seized of many important situations, and render its first judgments so soon. The expectation was in fact that the court would take some time to develop and that its establishment would not be linear. What has been achieved is remarkable. Despite a number of challenges—stemming for instance from the court’s limited jurisdiction and its reliance on states’ cooperation—it has gone on to successfully try some of the most atrocious crimes in recent history.

Turning to other international tribunals, such as the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), established in the early 1990s, they are winding down, as they now have largely achieved their limited mandates. Besides significantly contributing to the development of international law, these tribunals have had a major impact on the transitional processes in the concerned countries, contributing to ending impunity, incentivizing major domestic judicial reforms, and helping to pave the way for reconciliation.

In parallel, significant steps have been taken in the pursuit of accountability at the national level that would have been unthinkable only a decade ago. In Latin America, unprecedented trials have been conducted in Argentina, Chile, and Guatemala. The African Union has in recent years supported the establishment of Extraordinary African Chambers in the Senegalese courts to try former Chadian President Hissène Habré. This presents a long-awaited opportunity for redress for Chadian victims. Furthermore, while I am concerned about attempts to shield acting heads of state from accountability for international crimes, I note that the African Union’s initiative to expand the jurisdiction of the African Court on Human and People’s Rights could potentially broaden the net to hold individuals accountable for international crimes.

Several of these initiatives, from South America to Africa to Asia, have been supported by the international community, notably the United Nations and my Office. Judicial reform and rule of law programs increasingly form part of peacekeeping operations: for example, the mandates of those operating in the Democratic Republic of the Congo, the Central African Republic, and Mali all include entities devoted to strengthening the judicial systems of the countries concerned.

Further, several countries around the world are pursuing agendas for transitional justice and there again, are often doing so with the support of the United Nations, including my Office. Building on the experiences of Latin American countries and post-apartheid South Africa, truth commissions have been recently established or are under consideration in Colombia, Nepal, Mali, and Tunisia, to mention just a few. Recently, the report of the Brazil’s National Truth Commission publicly exposed military brutality. These transitional justice initiatives provide a framework to address the horrors of the past and contribute to reconciling societies that have suffered unspeakable hardship.

Globally, new mechanisms have been established or redesigned over recent years to better protect human rights and ensure accountability. The Human Rights Council, which replaced the Human Rights Commission; the Special Procedures it appoints; the Universal Periodic Review conducted under its umbrella; and the human rights treaty bodies are all robust processes that contribute to holding states accountable and advancing human rights around the world. By offering victims and civil society the opportunity to report allegations of human rights violations to independent bodies and the Council itself, these mechanisms give visibility to their claims, contributing to fighting impunity for human rights violations and abuses.

“What you see depends on where you stand,” C.S. Lewis once wrote. As a historian and the United Nations’ High Commissioner for Human Rights, I cannot help but take a long-term view, considering how the protection of human rights and the promotion of accountability have increased over time.

Yes, there are setbacks. The failure to refer the situations in Syria and Iraq to the ICC is deplorable and dangerous. But even in those situations, there have been sustained and concerted efforts to document crimes and to plan for post-conflict accountability. The Human Rights Council mandated my office to document violations in Iraq following its Special Session in September of last year. The Commission of Inquiry on Syria established by the Human Rights Council has produced several detailed and comprehensive reports, which pay great attention to the need to fight impunity and offer recommendations on what action is needed to pursue accountability for atrocities.

A number of other Commissions of Inquiry have been established to publicly report on violations taking place in many parts of the world and to identify concrete accountability measures at the national and international level in, the Central African Republic, the Democratic People's Republic of Korea, Eritrea, Gaza, and , Libya to mention just a few recent examples. The DPRK commission has been pivotal, demonstrating the importance of systematically documenting and recording the particulars of human rights violations. Even in entrenched situations, exposing the details of these violations in a single, powerful report brings renewed international attention to the plight of the victims.

Indeed, these reports are crucial: they are discussed, domestically and internationally, openly and behind the scenes, in newspapers and on websites. They are read by civil activists, in Parliaments, and by regional and international human rights mechanisms—including the UN treaty bodies, at the Human Rights Council, General Assembly, Security Council, and so on. While they do not by themselves bring perpetrators to justice, they nevertheless constitute important steps toward accountability. By documenting the crimes—and preserving, whenever possible, crucial evidence for future accountability mechanisms—they expose the truth for all to know and lead to public discussions of who is responsible.

Civil society actors and human rights defenders play a crucial role in revealing atrocities to the world and denouncing those responsible. New forms of communications enable the orchestration of support and amplify the real-time reports of “citizen journalists.” Social media, and the use of the Internet, contribute to a broader and more effective disclosure of human rights abuses.

Against this background, it is perhaps understandable why there is a perception that the fight against impunity is being abandoned. The headlines might lead us to believe that today's human rights abuses are exceptionally intense, but it may be because we are more aware now of the scope of ongoing violations and abuses than we ever were.

A look at the past, including recent history, does not suggest that today’s atrocities are necessarily more widespread than those committed in earlier centuries, including the 20th century. Massive human rights violations were committed during the two World Wars, throughout the Cold War, and as a direct and indirect consequence of colonialism. Women had no voice and few rights, and they often bore the brunt of the violence. Ethnic and religious minorities were not only marginalized but often subjected to persecution and massacred. There was mass starvation, genocides, repressive and vengeful tyrannies, and apartheid, as well as persistent racism and anti-Semitism, and vestiges of slavery.

Clearly, and sadly, violations continue to affect millions of people around the world. What has changed is that there is now a multi-layered construct that denounces these violations, almost in real time as they occur. Traditional and social media, individual activists, civil society groups, the United Nations and other organizations all play their part in exposing abuses and advocating for accountability.

Of course much more can and must be done to give meaning to the opening statement of Justice Robert H. Jackson at the Nuremberg trials: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”

The fight goes on. Past struggles and achievements remind us that the road to victory is long and strewn with obstacles. We have come a long way already in the fight against impunity, and we must continue with determination, tenacity and resilience, one battle at a time.

Zeid Ra'ad Al Hussein is the current United Nations High Commissioner for Human Rights. A veteran multilateral diplomat, Zeid was previously Jordan’s Permanent Representative to the United Nations in New York, and has served as Jordan’s Ambassador to the United States. He served as Jordan’s Deputy Permanent Representative to the UN, with the rank of Ambassador, from 1996 to 2000. Zeid played a central role in the establishment of the International Criminal Court, chairing the complex negotiations regarding the elements of individual offences amounting to genocide; crimes against humanity; and war crimes. In 2002, he was elected the first President of the Assembly of States Parties to the Rome Statute of the International Criminal Court.

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