Human Rights and International Law (9): Impunity

I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account ’96 whether in criminal, civil, administrative or disciplinary proceedings ’96 since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.

Human Rights and International Law (2): Universal Jurisdiction

Some countries have granted their courts so-called “universal jurisdiction” in certain matters. Traditionally, courts only have national jurisdiction and can only punish crimes committed on the national territory; crimes committed elsewhere should be handled by the courts of the country in question or by international courts. Laws of one country are also generally understood to be applicable in that country only. Universal jurisdiction in effect leads to extra-territoriality of the law. Some laws are valid outside the territory as well and national judiciaries can apply these laws to acts committed elsewhere.

Belgium, for instance, at one time allowed its courts to prosecute genocide, even if the crime of genocide was committed abroad and no Belgians were involved either as perpetrators or as victims. This was a commendable initiative from a moral point of view, but there are several reasons why universal jurisdiction is not very effective and cannot replace national and international law.

  1. The victims of genocide, or the representatives of these victims, if they already know that Belgian courts can possibly help them, will find it difficult to go to Belgium to plead their case. These people will probably live in some Third World country and will not have the financial means to start court proceedings in Belgium (where the hell is Belgium anyway?)
  2. The perpetrators are mostly not in Belgium and can therefore not be punished by the Belgian courts. If convicted, they will simply avoid Belgium and it is unlikely that they will be extradited by their home state since they generally occupy a leading function in the government of their state. The only tangible result is a number of diplomatic crises between Belgium and other states, sometimes traditionally friendly states.
  3. The Belgian courts quickly find themselves in the position of Atlas, carrying the whole burden of global suffering. There is no way in which these courts, already suffering serious delays, can handle all submitted cases.
  4. Political agitators will use the Belgian law to make publicity for their case. They will be tempted to file spurious charges against their political enemies. For example, friends of Saddam Hussein filed charges against President George W. Bush and some other leading members of his administration for waging war against Saddam. The Belgian courts, of course, could not refuse these charges without examination. So an investigation was launched, which deeply upset the Americans, who even threatened to move NATO headquarters out of Belgium, supposedly to protect American officials visiting these headquarters. After all, the Americans know that they are no saints and that Belgian courts can one day decide that there is a case to be made against some of their officials, and can try to arrest them.
  5. What if several states decide to start cases simultaneously against one and the same offender, each using its right to universal jurisdiction? That would create judicial uncertainty and many practical problems.

However, in the absence of effective national or international jurisdiction, universal jurisdiction may be the only alternative. And even if it’s not effective for the reasons given above, it sends a signal.