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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The Long Walk to Accountability

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

The ICC is just one of the many mechanisms in the multi-layered fight against impunity. The primary responsibility to foster accountability lies with States themselves.

Many arguments in this debate so far have focused, quite naturally, on the International Criminal Court, and on concerns that specific situations or cases continue to escape its reach. While I think that the fight against impunity must be multi-layered, and should not exclusively concern the Court, I do share these concerns. As I indicated in my earlier contribution, although the ICC has already achieved a lot, it is unfortunately hindered by its limited jurisdiction.

These limits to the ICC’s jurisdiction are problematic insofar as they leave an important impunity gap when the criminal jurisdictions of the States concerned are unable or unwilling to foster accountability. This is detrimental first and foremost for the victims, who are denied remedy. It is also damaging for the ICC, which is perceived as being the problem, rather than the solution. Yet, those concerned by impunity gaps must demand more justice, not less. Surely, they must support a broader fight against impunity: one that closes the gaps in the ICC’s mandate, and advances more accountability measures at the domestic level. Kofi Annan once remarked: “When I meet Africans from all walks of life, they demand justice: from their own courts if possible, from international courts if no credible alternative exists.” To satisfy these demands— and those of victims from all continents—means strengthening the ICC’s capacity. And we need more efforts in two complementary directions: universal ratification of the Rome Statute, and stronger capacity by States to fight against impunity.

The ICC is a distillation of humanity’s common thirst for justice, and it testifies to the joint commitment of States to deliver it. But the Court cannot—and was never intended to—address, single-handedly, all international crimes. The ICC is just one of the many mechanisms in the multi-layered fight against impunity. The primary responsibility to foster accountability lies with States themselves. The Preamble of the Rome Statute emphatically declares that, “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. States do not merely have a right to take the lead; it is the duty of States, and of the governments that represent and administer them, to deliver justice to their own people. Rendering criminal justice is not merely an attribute of sovereignty; it is an essential characteristic of sovereignty, one of its constitutive elements.

This is potently demonstrated by the fact that fragile States all have weak criminal justice systems. They provide fertile ground for many, and often interrelated, illicit and criminal activities, ranging from illegal trafficking to terrorism. The principal actors in these cases are, for the most part, non-state armed groups. From the Sahel to Iraq, but also in other contexts, such as in the Democratic Republic of the Congo, these non-state armed groups commit despicable atrocities. They terrorize the population, in order to control them through sheer force and fear. In a joint report just released by my Office and the UN Assistance Mission for Iraq, we report widespread human rights violations of an increasingly sectarian nature in Iraq, as well as a deterioration of the rule of law in large parts of the country. The report details violations of international humanitarian and international human rights law reportedly committed by the so-called Islamic State of Iraq and the Levant (ISIL), and also by the Iraqi Security Forces and affiliated armed groups. We found that members of Iraq’s diverse ethnic and religious communities, including Turkmen, Shabaks, Christians, Yezidi, Sabaeans, Kaka’e, Faili Kurds, Arab Shi’a, and others have been intentionally and systematically targeted by ISIL and associated armed groups in what appears as a deliberate policy aimed at destroying, suppressing or expelling these communities permanently from areas under their control. We concluded that many of the violations and abuses perpetrated by ISIL may amount to war crimes, crimes against humanity and possibly genocide.

The fight against groups such as ISIL is at the heart of today’s most pressing challenges in fighting impunity. These groups can sometimes be reminiscent of the Greek mythological Hydra of Lerna: for each head cut off, it seems like two more grow back. My hope is that the States engaged in combating them understand that security measures alone cannot suffice to defeat such groups. Like Heracles, we need to use all the tools available to us. And among the potent tools to deal with terrorists and organized criminal networks is judicial accountability. Those responsible for international crimes need to be brought to justice and be held criminally accountable. This is particularly important as some of these groups, themselves, seek to adorn the attributes of statehood, and pretend to carry out judicial functions, doing so in blatant disregard for international law, notably international human rights law. The report I just mentioned documented at least 165 executions that were carried out following sentences in ISIL “courts” in the territories they hold. It is urgent that we insist on the "monopoly of the judiciary" which can only be exercised by States and organizations they duly and lawfully constitute, such as the ICC and the UN. For the fight against groups such as ISIL to succeed, all States must vigorously engage or re-engage in the fight against impunity, so that those responsible for international crimes are brought to justice and held criminally accountable. Ultimately, as underlined this week by the UN Secretary General: “Missiles may kill terrorists. But good governance kills terrorism.” And good governance relies on a functioning justice system.

While they are many reasons to be pessimistic, I remain hopeful that the considerable challenges we are facing today will bring a new lease of life to the fight against impunity. I am encouraged by the writings of Nelson Mandela, who, in his book, Long walk to Freedom, wrote: “I am fundamentally an optimist… Part of being optimistic is keeping one's head pointed toward the sun, one's feet moving forward.” One needs to be realistic but also look for and exploit opportunities whenever and wherever they arise. I believe that, increasingly, States recognize that accountability is an important tool in the counter-terrorist arsenal. State ownership of the fight against impunity is crucial for long-term success of the fight against impunity. Strengthening the ability of sovereign States to function effectively, and resist non-State armed actors engaged in international crimes, will mean increasing human rights protection—not eroding it—and will necessarily involve more accountability, not less.

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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