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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International Justice Movement Needs Another Rome Conference

Aryeh Neier
President Emeritus, Open Society Foundations

As one who has devoted a lot of effort for more than three decades to trying to promote accountability for severe abuses of human rights, I find much with which I agree in the essays of both Michael Ignatieff and Zeid Ra’ad Al Hussein. The difference between them, I think, is that Ignatieff sees the glass as half empty. He points out the shortcomings of the current system of international justice, including the failure to address great crimes committed by powerful states and states for which they provide protection; the inability to find ways to establish jurisdiction over those responsible for atrocities in some of the world’s most ghastly conflicts; and the failure of regional leaders to provide support for some measures by international institutions to try to promote international justice.

In contrast, Zeid sees the glass as half full. He points out the successes of the ad hoc international criminal tribunals in dealing with crimes of the 1990s; of certain national judicial systems in Latin America in dealing with crimes of the 1970s and the 1980s; the impending trial of Hissein Habré in the Senegalese courts under the imprimatur of the African Union; the achievements of more than forty national truth commissions in different parts of the world in acknowledging the crimes of the past and in identifying the victims and those responsible for victimizing them; and the symbolic weight that has been achieved by the International Criminal Court—despite its paltry record of actual criminal convictions—that itself makes it a factor in deterring some abuses. Zeid regards the achievements and the setbacks up to now as elements of a long-term struggle that is making headway and that, one way or another, has held many former dictators accountable for their crimes.

Taken together, it seems to me that the essays by Ignatieff and Zeid demonstrate that quite a lot has been accomplished over the past three decades. Yet there have also been substantial misjudgments or mistakes by some proponents of international justice, and there are major disappointments that reflect the immense difficulty of bringing about the revolution in human history that is needed before anything approaching systematic accountability can be achieved.

In recognizing that the glass is both half empty and half full, I think it would be appropriate for the international human rights movement to think afresh about how to go forward. We got this far because the human rights movement and its allies in governments demonstrated great initiative and creativity in the period from December 1983, when President Raúl Alfonsín of Argentina effectively launched the current era of accountability when he announced that he was forming a national commission on the disappeared and initiating prosecutions for those crimes; to 1998, when the conference in Rome adopted a resolution for the establishment of the International Criminal Court and the human rights movement backed the arrest of General Augusto Pinochet in London and his extradition to Spain to stand trial for the practice of torture. During that decade-and-a-half, the practice of establishing truth commissions became an accepted part of transitions from dictatorships to democracy; their effectiveness and impact was greatly enhanced by the procedures devised in South Africa for the operation of the commission established in that country; amnesties for certain crimes were invalidated; criminal prosecutions in national courts for past human rights abuses became a practice in some countries; the UN created two ad hoc international criminal tribunals; after slow starts, those tribunals began to function more effectively than even many partisans of international justice expected; many governments cooperated by making arrests; the arrest of Pinochet in London gave enhanced significance to universal jurisdiction – as manifested in recent prosecutions in such countries as France and Switzerland – as well as substantial impetus in Latin America to domestic criminal prosecutions for past abuses; and agreement was reached on a treaty to establish the International Criminal Court with the backing of many countries, especially in Europe, Latin America and Africa.

Then, in the roughly similar time period that has elapsed since 1998, the spirit of initiative and creativity seemed to drain away. There have been some important developments in the intervening years such as the success of the Yugoslav tribunal in apprehending defendants and the establishment of national courts in Serbia, Croatia and Bosnia that have brought to justice many war criminals who could not be tried by the ICTY; the establishment of a few hybrid tribunals and their prosecution and conviction of former heads of state Charles Taylor and Khieu Samphan; and the criminal prosecutions and convictions in international tribunals and national courts of additional former heads of state and heads of government, as well as hundreds of military officers, warlords and guerrilla leaders for atrocious crimes. By and large, however, it has been a period in which innovations have been comparatively scarce. The movement for international justice made great advances up to a certain point, but then it seemed to get stuck. In the past decade, it has seemed to suffer some important reverses. Partisans of international justice have been particularly dismayed by the failure of the International Criminal Court to achieve more since its formation in 2002.

It seems to me apparent that further innovation is now required. Not surprisingly, those of us who are proponents of international justice did not get everything right the first time around. We should try to correct our mistakes and to take additional steps that will build on the achievements thus far in order to ensure that eventual accountability is the likely result when governments and guerrilla forces engage in a practice of war crimes, or when they commit crimes against humanity or genocide. Also, we should consider whether certain other crimes should be addressed by international justice. I don’t mean aggression, which seems to me to risk politicizing international tribunals in ways that would be unfortunate. Rather, I have in mind such matters as the sky-high murder rates in El Salvador, Guatemala and Honduras; the disappearances in Mexico; and the murder of former Prime Minister Hariri that did lead to the establishment of the special Tribunal for Lebanon.

The human rights movement should consider whether to try to establish additional ad hoc tribunals like those for ex-Yugoslavia and Rwanda, and additional hybrid bodies like the Special Court for Sierra Leone and the Extraordinary African Chambers that is sponsoring the Hissein Habré trial in Senegal. It should also consider whether to try to promote the establishment of regional courts that would relate to and complement the work of the International Criminal Court; whether to press the ICC to focus some of its efforts on pillage in which corporate officials in Western countries often collaborate with African warlords in the commission of war crimes in Africa; and whether the 123 countries that are parties to the ICC should attempt to amend its treaty – admittedly, a tall order – so as to make it easier to extend its work to situations that now lie outside its jurisdiction. Though I have been an opponent of trials in absentia, I think it is worth further consideration of the question because, in certain circumstances, it will be impossible for international tribunals to obtain custody of defendants. As additional resources would be required, the proponents of international justice should also consider an effort to establish a Global Fund for Justice along the lines of the Global Fund to Fight AIDS, TB and Malaria, though it would not be as expensive as that body.

Securing international acceptance of such measures would be difficult, though no more difficult than obtaining international support for the creative developments that took place during the first decade-and-a-half of the contemporary struggle for international justice. Of course, then the struggle was fresh. It would reinvigorate itself, I believe, if it concentrated on a few significant changes and additions to the current system that would be designed to enhance its effectiveness.

Perhaps a way to consider measures that might be taken to extend the reach and to enhance the effectiveness of international justice would be for governments that are supportive to convene a global gathering for this purpose like the one that took place in Rome in 1998. By not leaving such an effort to the United Nations, they would avoid subjection to the veto power by the permanent members of the Security Council. That was a critical factor in the success of the Rome Conference where only two of the permanent five supported establishment of the ICC. If such a meeting were to be scheduled about the time of the twentieth anniversary of the meeting in Rome, there would be adequate time to develop proposals and to subject them to scrutiny and debate at regional meetings that could be held in advance. In addition, of course, there would be time for the international human rights movement, which now includes thousands of nongovernmental organizations in all parts of the world, to persuade some governments to sponsor such a meeting and to participate in its deliberations and in its decision-making.

Given the disappointments that have been suffered, this is not a time for those committed to international justice to sit by passively or to limit themselves to efforts to make small improvements. As David Tolbert points out “shockingly little is being done to stop massive human rights abuses.” We need a new infusion of thought, energy and effort to try to make good on the idea that accountability is crucial if efforts to limit such abuses are to make progress.

Aryeh Neier is president emeritus of the Open Society Foundations. He was president from 1993 to 2012. Before that, he served for 12 years as executive director of Human Rights Watch, of which he was a founder in 1978. He worked 15 years at the ACLU, including eight years as national executive director. He served as an adjunct professor of law at NYU for more than a dozen years, and has also taught at Georgetown University Law School and the University of Siena (Italy). Since 2012, he has served as Distinguished Visiting Professor at the Paris School of International Affairs of Sciences Po.

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