United Nations dialogue with Member States on rule of law at the international level

United Nations dialogue with Member States on rule of law at the international level Strengthening the nexus between international criminal justice and national capacity to combat impunity April 9, 2010 Paul F. Seils, Chief (a.i), Rule of Law and Democracy Section, UN Office of the High Commissioner for Human Rights This brief intervention considers the role of the United Nations (UN) in strengthening the nexus between international criminal justice and the struggle against impunity. It considers what the UN does in this field (necessarily in a cursory manner) and looks at some examples of good practice. It then asks what more should the UN be doing to help improve the national capacities charged with combating impunity. Many of the UN s agencies are very actively involved in fighting impunity. The most obvious actors are the Office of the High Commissioner for Human Rights (OHCHR), Department of Peacekeeping Operations (DPKO), United Nations Development Programme (UNDP) and the Office of Legal Affairs. However, many others are very actively engaged within the limits of their mandates. The United Nations Development Fund for Women (UNIFEM) undertakes increasingly important work advocating for and developing technical approaches in the pursuit of accountability for sexual and gender based violence. The United Nations Children s Fund (UNICEF) has, especially in the context of child soldiers, been an important voice in seeking justice. As regards the assistance provided to help national authorities address impunity, the activities are varied. It may range from focused technical assistance of the kind that OHCHR hopes to offer to Senegal in the context of the proceedings concerning ex -president Habre of Chad, to the longer term activities of judicial training and access to legal systems offered by all of the major actors mentioned above. DPKO s focus is necessarily centered on strengthening criminal justice systems in conflict and post-conflict situations. For the most part, these efforts do not specifically address the issue of accountability for serious crimes committed in the past, but look more towards how the legal system deals with current and emerging challenges. In a similar vein, the majority of UNDP s efforts, while most certainly capable of being applied to accountability for serious past crimes, tend also to be framed in the context of a prospective paradigm, trying to strengthen the system generally rather than focusing specifically on past crimes. OHCHR, with its particular responsibility of leading the UN efforts in relation to transitional justice, has perhaps developed more of a specific focus on how States address massive violations of the past in the context of their national legal systems. For the most part, OHCHR s efforts have been in the form of standard setting with a significant although slightly lesser degree of direct technical assistance. The most notable contribution by OHCHR in this area has been a series of technically-oriented tools on issues including prosecutions, truth commissions, vetting and reparations that seek to provide some guidance, especially to staff in field offices, about the 1

ways in which such modalities of justice might be most effectively developed and what kinds of challenges await. These tools and the field of transitional justice in general, remind us that the relationship between international criminal justice and national accountability efforts is a complex one. States can legitimately point to efforts in relation to accountability that embrace more than efforts to bring criminal prosecutions. Under international human rights law it is clear that at least in relation to matters for which the States can be held responsible, they bear a responsibility not only to investigate gross violations of human rights, but also to ensure the rights of victims to know the truth, to provide adequate reparations, and to take all reasonable steps to ensure non-recurrence of the said violations. International law does not and cannot provide guidance about how these challenges should be prioritized. In the context of mass atrocities, scarce resources and urgently competing demand, the challenge of prioritization is very real indeed. One major advance that has been recognized and is increasingly developed by OHCHR is the idea of detailed and sophisticated mapping exercises. Properly done, this can provide States with valuable information about the scale and distribution of alleged violations, allow a degree of meaningful consultation to take place with stakeholders, and afford a period of calm reflection to allow policy solutions to be carefully digested. The mapping exercises carried out in the Democratic Republic of the Congo, and currently in Nepal, are good examples of the kind of efforts that should be seriously examined for future purposes. Similarly, the efforts of the Afghan Independent Human Rights Commission, advised and supported by OHCHR at various stages, to map and document past violations have been an impressive, particularly in light of the operating constraints there. In Togo and Burundi, the OHCHR has also recently been involved in developing consultation mechanisms with local stakeholders on accountability mechanisms. These consultations serve a different function from mapping exercises as such, but have some of the similar benefits. The Office of the High Commissioner has also been providing advice in a number of countries where it has a presence, in relation to implementing legislation on aspects of the Rome Statute. It does so of course in an impartial and technical sense, as the International Criminal Court is not a United Nations body. The aim in these situations is to assist an ongoing effort of the State concerned rather than advocate for a particular change. In terms of developing general policy and guidelines, the Secretary General s report of August 2004 on the rule of law and transitional justice in conflict and post-conflict situations continues to play a very important role in setting out the consistent framework applicable for UN actors in considering transitional justice issues. In addition, the recent Guidance Note of the Secretary- General on the UN Approach to Transitional Justice, issued by the Secretary-General on March 10, 2010, reiterates and develops some of the core principles elaborated in 2004. 2

While recognizing that there must be sensitivity toward the political and logistical realities on the ground, the Secretary-General also notes that whatever policies are adopted must be in conformity with international law. In short, this guidance note reiterates and clarifies that States are obliged to develop an approach that does not seek to avoid or indefinitely delay compliance with the obligations mentioned above in relation to criminal justice, knowing the truth, reparations and non-recurrence. The bigger and more challenging question facing the UN is how to develop its activities in the struggle against impunity. How the UN develops its approaches in this regard requires consideration of a number of different scenarios. One scenario deals with State Parties to the Rome Statute and another with those that are not parties. At this point there are 110 States Parties, so that amounts to more than half of the countries in this world. At the same time more than 80 states are not members to the ICC. Many of these States either have recently faced, or continue to face situations where serious human rights violations have occurred. Whether or not a State is party to the ICC ought not to make a difference in principle to the way in which the UN approaches the issue of strengthening national capacities, but it will make a difference in operational terms. If the UN is engaged in strengthening national capacity in a State where the ICC may have a role, the issue of complementarity comes into play. The ICC will monitor the nature of any proceeding to assess their genuineness. The UN, in such circumstances becomes at least an indirect player, helping to develop national efforts and perhaps advising on the appropriate strategies to meet multiple and competing obligations on various aspects of accountability and non-recurrence. A second issue is the context with which one is dealing in terms of whether it is a post-conflict/ transitional or longer term/ stable situations. A valid question is whether the nature of the situation affects the approaches that should be taken to technical assistance in the fight against impunity. Again it is worth remembering that the fight against impunity ought not to be restricted to criminal justice alone. In this sense it is clearly true that a general approach to improving rule of law standards ought to lead, preferably sooner rather than later, to circumstances that will certainly help in the obligation to ensure non-recurrence. On the other hand, it is difficult to imagine in the vast majority of circumstances that an approach premised on the idea that a rising tide lifts all boats will be a valuable one in relation to criminal justice. Even countries that have put repression or civil war behind them a decade earlier tend frequently to remain in perilous economic and political circumstances. There is frequently an urgent need to bring ongoing crime under control. Unless particular and specialized resources are directed at addressing mass atrocities or gross violations of human rights from the past, the risk is that the rising tide if such there be rather than lifting all boats, will be allowed to bury past crimes rather than ensure accountability for them. There are many reasons for the lack of examples of serious national prosecutions for gross violations human rights. They can be divided into three broad categories: that states were unwilling to prosecute, that states were unable to prosecute, and that states were unwilling to 3

become able and managed to hide behind their supposed inability, to strengthen their legal and/or judicial systems to prosecute the crimes. In many cases, the failure to prosecute has been explicitly or tacitly supported at the international level on the basis of some form of the peacejustice debate. Over the last thirty years there are plenty of examples where improvements in the rule of law, or at least efforts directed thereto, have failed to result in any effort to address mass atrocities from the past. The reason for specialized mechanisms and ring-fenced resources is not necessarily due to particular complexity of the crimes themselves. Investigating massacres, for example, while complex, is by no means as complex a criminal investigation as required for sophisticated fraud or drug dealing for example. The value in specialized mechanisms or resources is threefold: (1) they provide evidence of an identifiable commitment to address international obligations in a specific and responsible way; (2) accountability and transparency of such efforts is made much easier for victims, civil society and the international community, and the process is not buried in opaque bureaucracy; and (3) these specialized mechanisms endeavor to meet more easily and directly the unique challenges may arise in particular types of investigations. The fact that there are more complex kinds of investigations does not negate the need for particularity. Investigations of mass atrocities will frequently involve police or prosecutors investigating in communities that have been marginalized or discriminated against. It may often involve highly sensitive matters such as sexually motivated violence There will very often be a strong political aspect to the context of investigations, including pressure from institutions with something to fear from investigations and bodies with an agenda to push through. It will sometimes require objective and detailed understanding of local political dynamics. It will require understanding of structures of military, paramilitary and governmental bodies on many occasions. Again, these issues may not be especially complex, but they are sufficiently different from the circumstances of normal day-to-day policing and lawyering that most national officials will have been trained in. Therefore specific efforts need to be made to ensure tactical and strategic skills are properly developed. Those skills have to aim at achieving two goals: carrying out effective investigations, and doing so in a way that genuinely treats victims and survivors as valued rightsbearing members of society. As the UN develops its approaches to strengthening national efforts in the criminal justice, the relevant UN agencies should seek to do three things. Firstly, they should seek to develop wherever possible constructive relationships with States that focus on technical assistance and problem solving. It is of course important to maintain the standards that have been developed, but it is not much use to tell a State that it is failing to meet what might appear to be insurmountable challenges without offering some practical assistance in solving the problem. In such circumstances the UN should be prepared to engage in the difficult business of providing the right kind of help to meet the challenges. 4

Secondly, the UN should strive to provide appropriate assistance. Generalized information in terms of human rights standards is simply not what is required in practical terms to enhance national accountability efforts. What is needed are experienced practitioners who crucially carry the respect of national legal and judicial officials as a result of their real knowledge and experience. Law enforcement officials, lawyers and judges can easily identify inexperience and do not want to be lectured to about correct approaches to real problems by a person who has simply been told the information by someone else. They want to feel that they are being treated with respect as professionals. If those providing assistance can talk meaningfully about how problems were solved in their own experience or can, equally importantly, say, you know, in fifteen years of doing war crimes investigations I never had to deal with that. This is new territory for me, that person will still have the respect of his or her colleagues. The same will not be true if it becomes clear that the person has no direct experience of investigations or prosecutions at all. Thirdly, the planning and financial commitment involved in the kind of assistance necessary has to be properly understood. Assistance has to be sufficiently sustained to ensure that national authorities, on the one hand, really get the chance to develop, and on the other, are not able to use assistance as window dressing to embellish otherwise sub-standard or less than genuine efforts. This means one-off flying visits for one or two days to provide training or advice will not generally be good enough. It almost certainly means planning for longer and repeat engagements. To conclude then: to help national authorities address impunity for gross violations of human rights, specialization is almost always preferred. It is important because it provides commitment, transparency and the particular skills sets needed. Secondly, while the UN has done a great deal to date in two areas of standard setting and affirming principles, and of helping to raise rule of law standards generally, specialized technical assistance requires movement and engagement in new terrain. There needs to be a more conscious movement from standards to problem solving; that requires real experience and expertise that can deliver meaningful results. The UN itself is almost certainly not able to provide all of the relevant assistance directly, but it crucially has both access and the networks to facilitate it. In the short term it should direct its efforts in this direction. 5