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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Finding Middle Ground

Betty Murungi
Former Commissioner, Kenya TJRC

Since the coming into force of the Rome Statute establishing the International Criminal Court in July 2002, mass atrocities have increased rather than abated. In Africa, new sites of violence opened up in Cote d’Ivoire, Libya, Mali, Central African Republic, Kenya, Tunisia, Egypt, South Sudan, Niger, Nigeria, Sudan and Somalia. Murderous campaigns by the LRA and other insurgent groups continue unabated to this day, despite ICC indictments relating to the atrocities in Northern Uganda, Democratic Republic of the Congo and the Central African Republic. Transnational networks of terrorists have gained momentum and unleashed terrible violence in Nigeria, Syria and Kenya. Clearly, the ICC has not had much of a deterrent effect. I propose that rather than bemoan the retreat by the international community in the fight against impunity, we must look to other viable alternatives.

Africa has been ‘raising’ its voice and the international justice and accountability discourse has been loud and contrary. The latest out of the African Union is the proposal to expand the jurisdiction of the African Court of Justice to include criminal jurisdiction of the crimes currently under the ICC’s jurisdiction. The prevailing narrative of “African Solutions for African problems” ironically promotes the view that the international community (on the African front) is abandoning the fight against impunity. Just to be clear, there is nothing African about gross violations of human rights that involve mass killings, rapes, torture, abductions and displacement. I do not believe that the solutions and responses to the violent conflicts unfolding across Africa rest with the creation of yet another under resourced international (albeit regional) mechanism.

In an audacious move executed by the African Union at the United Nations Security Council, Africa rebelled against the international justice order and the world blinked. In the heat of the Sudan, Libya and Kenya deferral negotiations, a few African states pronounced their intention to reverse their membership to the court altogether—never mind that African states provided robust support for the establishment of the court and today constitute the largest block of state parties to the Rome Statute. Indeed, self referral of situations by the governments of Uganda, Democratic Republic of Congo (DRC) and the Central African Republic (CAR) inaugurated the ICC’s operations. African states stared the rest of the international community in the face and dared to opt out of aspects of international law that did not sit well with their leaders

But African states are not alone in standing in the way of international justice. Powerful nations continue to apply double standards on the question of ICC intervention in global conflicts. The reticence to act on Syria, Ukraine and Gaza has further undermined and damaged the court’s credibility. This reticence has led to an unacceptable asymmetry between international justice institutions and national judicial authorities—especially as concerns holding powerful states and their ‘big men and women’ to account. Typifying this asymmetry and negation of the fundamental obligation by the international community to fight impunity and hold perpetrators of serious crimes accountable is the United Nations Security Council (UNSC). Decisions to refer or defer situations to the ICC have turned on politics, not law. And politics has often trumped the law as both David Tolbert and Michael Ignatieff have argued elsewhere. It should not surprise anyone that the African Union has taken advantage of this contradiction to lay serious political and legal charges against the ICC and its chief prosecutor.

International justice actors, state parties and the ICC must honestly confront the concerns over the selective application of international justice instruments including examining the role of the UNSC and its impact on the global movement against impunity. This is no time to be defensive about failures in the statute, the most glaring of which are also the key principles underpinning the courts’ work; cooperation and complementarity.

Many states have not developed domestic or regional systems that can play the role of accountability ‘first responders’. Bar a few cases where violations have occurred, the principles of complementarity and cooperation have zero application. What seems like failure on the part of the international community is actually a failure by states. I suggest that state parties rethink and review the issues of cooperation and complementarity and what these principles mean in light of the experience of the last twelve years. Beyond the usual affirmations and resolutions at the Assembly of State Parties, the application of the letter of the law must count.

To advance the fight against impunity, it is imperative that a link be made between international criminal justice objectives, national justice sector reforms and transitional justice objectives. There is evidence that transitional justice measures that acknowledge the centrality of victims in programming have better chances of creating a more durable peace and change in governance institutions that support democracy and human rights The Gacaca courts and gender sensitive land reforms in Rwanda come to mind as an example of this. Successful accountability measures should of necessity be local, not international.

For international justice to work effectively, national justice systems must be strengthened. This is where the real work of transitional justice must be focussed. Genocide, war crimes and crimes against humanity should be punished at the domestic level, where they occur. The reality is that the fight against impunity will be irreversibly lost if not fought at the national level.

Fighting impunity is not just about the effectiveness of the ICC or the politics of the UNSC. More important, it is about the value nations place on the lives of their citizens, it is about building and supporting national judicial mechanisms with resources to respond to violations as they occur. In sum, I suggest we go beyond the idea that the international community owes the world a duty to fight impunity and consider that the real responsibility lies with individual states and citizens. How can we use the most innovative aspects of the Rome Statute pertaining to victim participation and protection at the national level? I suggest that the international community find ways to expand and promote the work of the Trust Fund for Victims which has a real and present opportunity to make a difference in the lives of hundreds of thousands of victims. Justice needs —particularly of women victims of sexual and gender based violence—can only be met by involving them directly in designing transitional justice programmes that speak to their specific concerns.

Betty Murungi is a former commissioner of Kenya’s Truth, Justice and Reconciliation Commission (TJRC), and has over 27 years of experience in the practice of law at the national, regional, and international levels, as well as extensive human rights experience in the context of violent conflict and international criminal justice accountability mechanisms.

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