17 March 2003
COMMISSION ON HUMAN RIGHTS
Item 11 (d) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF:
INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF JUSTICE, IMPUNITY
Written statement* submitted by the International Centre for Human Rights and Democratic Development ( Rights & Democracy),
a non-governmental organization in special consultative status
The Secretary-General has received the following written statement which is circulated in accordance with Economic and Social Council resolution 1996/31.
[6 February 2003]
Concerted International Action to End Impunity
1. In 2002, we have seen a number of positive developments to combat impunity by the international community, most notably the entry into force of the Rome Statute for an International Criminal Court (ICC) on July 1st. In the upcoming year, the ICC will be physically established in the Hague: judges and prosecutors will be elected; investigators and legal staff will be hired; the details of the rules of procedure will be ironed out. If the ICC is to be a strong, independent and effective institution, it is crucial that it be given adequate political and financial support during this nascent phase.
2. The International Criminal Tribunal for the former-Yugoslavia (ICTY) persevered with its work, issuing significant decisions from its Trial and Appeal chambers, expediting proceedings through amendments to the rules of procedure, and initiating its high-profile prosecution of Slobodan Milosovic. Such a prosecution of a former Head of State is a significant precedent for the fight against impunity.
3. In Sierra Leone, the United Nations established a special court to try crimes that arose during that country’s civil war. This court presents a new model for international justice: it is a mixture of national and international tribunal and operates in conjunction with a Truth and Reconciliation Commission. Its work deserves support and attention, both so that it may fulfill its specific mandate in Sierra Leone, but also so that similar tribunals may bring justice, reconciliation and peace to other countries.
4. In Denmark, a national court began proceedings against Nizar al-Khazraji, former chief of staff of Iraq’s armed forces. He is being tried for war crimes perpetrated against Kurdish civilians during the Iran-Iraq war. That this case is proceeding in a foreign court demonstrates the recent evolution of international law relating to universal jurisdiction of national courts to try the most serious international crimes. We must support the evolution of jurisprudence so that jurisdictional barriers between national and international prosecution of international crimes are erased.
5. Alongside these positive developments, there have also been set-backs in the flight against impunity. A long-term and serious threat to the ICC has arisen as the United States has launched an aggressive campaign against the new court. Such attempts to undermine the ICC are damaging to the international rule of law. The most disturbing United States’ manoeuvres against the ICC include:
- The signature of the American Service Members’ Protection Act (ASPA) by President Bush on August 2, 2002. This law prohibits cooperation with the ICC; prohibits military assistance to most States having ratified the Rome Statute; restricts American participation in UN peace-keeping operations; and authorizes the president to use force to liberate U.S. nationals detained by the ICC.
- The threat to withdraw its service members from international peace-keeping operations if immunities were not given by the Security Council. The pressure of the Americans resulted in Security Council Resolution 1422 which allows the suspension of an inquiry against the peace-keepers of States not party to the Rome Statute for up to one year, effectively providing immunity to U.S. soldiers.
- The intense efforts to negotiate bilateral “Article 98” agreements with most States. Such agreements prevent the transfer of U.S. nationals to the ICC and frustrate the extradition obligation that exists under the Rome Statute.
6. There has been insufficient progress towards justice and accountability in a number of countries where the United Nations has been working with national authorities to investigate and prosecute serious crimes. For example:
- In East Timor, the verdicts of the specially established human rights court were very disappointing, with only one of seven defendants convicted and then only for a term of three years.
- In Afghanistan, the inclusion of many powerful warlords in the new government has undermined attempts by the UN Mission and the Afghan human rights commission to deal with past crimes.
- In Cambodia, negotiations between the government and the United Nations to establish a mixed tribunal of national and international judges to try crimes committed by the Khmer Rouge have stalled.
7. The United Nations’ work in these and other areas could be significantly advanced by increased cooperation with and capacity-building within regional organizations. In this regard, the struggle against impunity will be well served by support for the Inter-American Human Rights System; the African Commission on Human People’s Rights and the African Court; and efforts to establish a regional human rights mechanism in Asia.
8. The international fight against impunity is extremely important for the peace and security of our world. The investigation, prosecution and punishment of serious international crimes is a fundamental part of the quest for truth and national reconciliation in many countries: it can provide redress and reparation to the victims of human rights abuses; it can provide justice upon which a durable peace can be established; and, it can provide deterrence against future genocides, crimes against humanity and war crimes.
9. Although a remedy for the harmful effects of impunity may be fashioned by the international community, we must not forget that penalties and/or compensation for human rights violations should also come from the State. After all, it is the State’s obligation to respect and guarantee the rights recognized under the International Bill of Human Rights.
10. Furthermore, we must underscore the fact that the struggle against impunity is ultimately aimed at providing accountability for all human rights violations. This means that we must pay attention to violations of economic, social and cultural rights—and fashion appropriate mechanisms and remedies to deal with such violations.
11. Another crucial issue has to do with sexual and gender-based crimes such as mass rapes, sexual slavery and forced prostitution. We must continue to foster awareness and gender-sensitivity, to develop appropriate jurisprudence and procedures for the protection of witnesses and victims so that national and international courts prosecute gender-based crimes in a more effective and systematic manner.
12. There has been significant scholarship on the issue of impunity within the United Nations system. In particular, Louis Joinet’s report, “The Set of Principles for the Protection and Promotion of Human Rights through Action to Prevent Impunity” has been in front of the Commission since 1998. It is critical that action is taken to implement the report’s recommendations. Although there are a number of Special Rapporteurs whose mandates relate to impunity, the creation of a Special Rapporteur with a specific mandate on impunity would greatly advance the United Nations’ work in this field.
13. Concerned about the advancement of the struggle against impunity, Rights & Democracy recommends:
- The Commission should reaffirm the central importance of a strong, independent and effective ICC and call upon States who have not yet signed the Rome Statute—and taken the necessary steps for its implementation in domestic legislation—to do so promptly. The Commission should call also upon States to extend the highest level of political, financial and technical assistance to the ICC as it establishes itself in the Hague.
- The Commission should take issue with the recent attempts by the United States to undermine the ICC. In this regard, it should take up Resolution 2002/4 of 13 August 2002 of the Sub-Commission which opposes the immunities granted under the terms of resolution 1422 of the Security Council of 12 July 2002.
- The Commission should call for continued support of the international ad hoc tribunals so that they may investigate and prosecute the cases before them in a systematic manner, including cases of gender violence.
- The Commission should call upon States to strengthen their cooperation with the United Nations and its members to bring perpetrators of past human rights abuses to justice. In this regard, particular efforts should be undertaken to increasing the capacity of regional human rights mechanisms.
- The Commission should encourage States to implement domestic measures to assist in the fight against impunity, including enacting legislation relating to universal jurisdiction and serious international crimes, as well as urging National Human Rights Institutions to focus on the issue of impunity.
- The Commission should renew its support for the work of the Secretary-General, the Sub-Commission on issues related to impunity with a focus on ‘best practices’. Further action should be taken to implement the ‘Joinet principles’ and to appoint a Special Rapporteur with a specific mandate on impunity.
- The Commission should pay special attention to the links between impunity for violations of civil and political rights and impunity for violations of economic, social and cultural rights in order to construct a coherent and holistic approach to impunity.
- The Commission should pay special attention to impunity for sexual and gender-based crimes.
*This written statement is issued, unedited, in the language(s) received from the submitting non-governmental organization(s).