Impunity for international criminals: business as usual?

The shocking images capturing the atrocities of armed conflicts in Syria have so shocked the world that, in March 2011, the UN General Assembly set up the International Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of those responsible for the most serious crimes under international law committed in Syria. The most serious crimes under international law are generally understood to be acts of genocide, crimes against humanity, and war crimes. The international support for the IIIM gained traction after the reported confirmation that chem­ical weapons had been used in Syria. However, when there was some hope for achieving the all-inclusive political solution for Syria, bringing individual criminal responsibility to account seems to lose its impetus and priority in the eyes of the countries participating in the diplomatic negotiation who fear that prosecution might derail the peace process and perpetuate the ongoing situation in Syria.

Besides, why should the perpetrators of atrocities in Syria be deterred by the prospect of being punished for their crimes? After all, those sought for prosecution before the International Criminal Court (ICC) for similar sins in Darfur, Sudan, have yet to be apprehended. The ICC does not have jurisdiction over Syria unless the UN Security Council refer it to the ICC, and such referral is impossible without the unanimous agreement of the five Permanent Members of the Council, some of whom will certainly veto any proposed referral. Setting up an ad hoc international criminal tribunal, like the one for the former Yugoslavia or for Rwanda, is not a realistic option in the light of such veto in the Security Council.

Nation States can resort to existing international agreements binding on them to either extradite to another party to the agreements persons accused of any offence covered by the respective agreements or prosecute the persons in their own domestic courts. Most of these agreements concern acts of international terrorism; the others are related to acts of torture, enforced disappearances, and the most serious war crimes known as “grave breaches” committed during international armed conflicts. The existing agreements do not cover acts of genocide, most crimes against humanity, or most war crimes, however.

To curb the impunity loopholes mentioned above, a group of countries led by Argentina, Belgium, the Netherlands, and Slovenia have initiated efforts to supplement supranational justice with the adoption of a new international agreement on mutual legal assistance and extradi­tion concerning the effective national investigation and prosecution of perpetrators of all the major international crimes. It will take several years for the agreement to be concluded and come into effect, if at all. All hope is not lost though; there is evidence of practice by nation States accompanied by their sense of binding legal obligations to substantiate the existence or at least crystallization of a rule of customary international law binding upon all of them to extradite or prosecute perpetrators of the most serious international crimes.

Two considerations may impede bringing wanted criminals to criminal justice. First, incumbent heads of State, heads of Government, and foreign ministers have immunity from prosecution in foreign domestic courts so long as they remain in office; when they have left office they have no such immunity for acts done in their private capacity or, arguably, crimes of international concern committed by them. Therefore, these office holders are usually motivated to “fight to the death” rather than peacefully cede power unless a deal is struck to grant them a blanket amnesty for their past wrongs. Second, a nation may opt for national reconciliation instead of mass prosecution of hundreds of thousands who have committed atrocious acts against their fellow compatriots—as in the case of post-apartheid South Africa’s Truth and Reconciliation Commission.

Truth commissions are normally entrusted with investigating and documenting atrocities, identifying the perpetrators of atrocities and involving them in a process of public assump­tion of their individual responsibilities, providing redress to victims of mass atro­cities, and making recommendations for reform and establishing a mechanism to ensure accountability for future atrocities. Yet, the work of some truth commissions, such as the ones in Argentina, Chile, and Peru, facilitated national prosecution of perpetrators of crimes.  The Integral System of Truth, Reparations, Justice, and Non- repetition under the 2016 peace accord to end several decades of internal armed conflicts in Colombia includes a truth commission entrusted with examining the broader truth of what happened in the armed conflict, and why, beyond the facts and responsibilities of particular crimes. There will be no amnesty for crimes against humanity, war crimes, genocide, or serious international human rights crimes such as extrajudicial executions, forced disappearances, torture, sexual violence, forced displacements, and recruiting or using child soldiers. While an am­nesty may be granted for rebellion and related political crimes as well as other crimes inherent in the act of armed rebellion, this is without prejudice to the victims’ right for any damages caused by those crimes.

The Colombian approach seems to be fairly balanced and should be emulated elsewhere. Above all, there can be no “impunity” as usual for perpetrators of international crimes, especially those in the leadership position.

Featured image credit: “The Peace Palace in The Hague, Netherlands, which is the seat of the International Court of Justice” by Yeu Ninje. Public domain via Wikimedia Commons.