Global Policy Forum

Rights and reconciliation in a new era of international law

Challenging Impunity

"The date of 17 July 1998 will long be remembered as the day the world finally united to bring an end to the culture of impunity". This was the message of Kofi Annan, the Secretary General of the United Nations, speaking on 17 July 2002, at a meeting to mark the fourth anniversary of the adoption of the Rome Statute. The Rome Statute is the instrument that created the International Criminal Court (ICC).

Bringing an end to impunity in this context refers to making those responsible for human rights atrocities accountable for their actions. It is an ultimatum to those dictators or warlords of the future that the time-honoured fashion of retiring to the South of France or Argentina to live on the millions creamed from their countries during their periods of brutal misrule has come to an end. As Mr Annan says, it is "a message to those who would commit these heinous crimes that you have nowhere to hide; you will be made accountable".

Is challenging impunity always in the best interests of society?

There has been much celebration among human rights groups of the progress made in international law which has led to the International Criminal Court, a permanent court set up to hear cases of those responsible for gross systematic human rights abuses. The idea was first mooted at the time of the Nuremberg trials, and so has been 50 years in the making. But challenging impunity does not only mean ferreting out former dictators from wherever they may be in order to stand trial for the crimes they have committed. It also means not extending amnesties to people accused of committing crimes against humanity. Amnesties have long been used as a negotiation tool to bring wars to an end. Is there a possibility that an eagerness to tackle impunity and investigate crimes can get in the way of bringing an end to conflict?

Denial of amnesty

The Lord's Resistance Army (LRA) has terrorised large swathes of Northern Uganda and South Sudan, kidnapping children and forcing them to become soldiers and sex slaves, as well as massacring and driving out the local communities. Many children who live in the area where the LRA is most prevalent are forced to commute at night to larger towns, often many miles away, in order to avoid being captured in the night raids that characterise the modus operandi of the LRA.

In a bid to bring about a cessation of violence, the Ugandan Amnesty Commission (UAC) was set up to offer a blanket amnesty to all militia and soldiers. It was hoped that this amnesty would encourage soldiers to lay down their weapons without fear of reprisal. Then in October 2005, the International Criminal Court issued arrest warrants against five members of the (LRA) in Uganda. This move effectively undid the work of the UAC.

Luis Moreno Ocampo, the Chief Prosecutor for the ICC, told IRIN: "Domestic amnesties are strictly a matter for national authorities and do not act as a bar to an investigation by the ICC." The message was that at a national level, amnesties may be granted, but they will not be guaranteed at an international level. As the first such warrants to be issued under the Rome Statute, this was hailed as a great step forward in the international human rights arena. In Uganda the reaction was more complex. Peter Onega, the chairman of the UAC, was not optimistic about the potential impact of the ICC warrants, fearing that they could lead to more atrocities because the LRA leadership could react to the warrants as "desperately as a wounded buffalo".

A leader in the Acholi community, which has been one of the communities worst affected by the activites of the LRA, Mr Onega went to The Hague to object to the ICC investigation and said "The priority should be peace first and justice later". This opinion gained some support when, within days of the announcement of the warrants, the LRA increased attacks and started targeting humanitarian workers in northern Uganda.

So, did the desire for justice undo any progress towards peace? Juan Mendez, the President of the International Center for Transitional Justice, rejects this idea: "The prosecutor even exercised caution and took time to let peace negotiations develop. He only sought indictments when that latest round of negotiations had already foundered for reasons completely unrelated to the ICC." He told IRIN: "When you have spoilers like the five people who have been indicted who are really not interested in peace, at some point it is important to remove them from the negotiating table so you can bargain with people who are more interested in peace. This removal, by the fact that they are now under indictment, may initially be seen as an obstacle to peace, but farther down the road it may be exactly what is needed to get a stable peace in Northern Uganda."

Closing the impunity gap

The rejection of amnesties for perpetrators of human rights abuses on the basis that they are incompatible with the principles of international law has been steadily evolving. The International Criminal Tribunal for the Former Yugoslavia observed in 1998 that amnesties covering certain crimes "would not be accorded international legal recognition" despite having legal force in that country. Spanish and French courts have also lent their backing to this interpretation, and the Inter-American Court of Human Rights in 2001 stated: "All amnesty provisions….are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations….(which are) non-derogable rights recognised by international human rights law".

These trends in international justice undoubtedly show the impunity gap is closing. However, there is also the very real concern that armed conflicts and abusive regimes would not have ended without the promise of amnesties, and that current attempts to revoke amnesties could negatively affect the prospects for peace.

Breaking promises

The Sierra Leone Truth and Reconciliation Commission in its October 2004 report stated that "disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end", and further held in its findings that "those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict". There is the unpalatable possibility that attempts to prevent crimes going unpunished could lead to abusive regimes staying in power, and consequently further abuses being perpetrated.

The UN was accused of inconsistency with respect to the Sierra Leone peace accords. At the signing of the accords in 1996 in Abidjan, which it attended as "moral guarantor" of the peace, it made no comment about the inclusion of a clause stating "the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF". But a similar provision in the Lome accords of 1999 led to the UN representative writing on the document: "The United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law". This shift in position shows a fundamental change in international attitudes to human rights at that time, and was a marker of an adjustment to tolerance levels. The UN decided expressly to set out its position with respect to human rights infractions in a way that it had not considered necessary three years earlier.

The Sierra Leone Truth and Reconciliation Commission has opposed this position, which had the effect of revoking any amnesty after the signing of the Abidjan Agreement, on the grounds that "both the United Nations and the Government of Sierra Leone have sent a message to combatants in future wars that peace agreements containing amnesty clauses ought not to be trusted". According to them, impunity in certain circumstances is justifiable.

Paul Van Zyl of the International Center for Transitional Justice recognises that, "Where the tension between peace and justice becomes most acute is in the course of negotiation to end a conflict or to allow for a return to democratic and civilian rule". But he rejects the findings of the Sierra Leone Truth Commission: "Sierra Leone is the exemplary case of the danger of granting amnesties. The Lome amnesty that was concocted was a very broad, blanket amnesty for people who had committed atrocities during the course of the civil war. No sooner had the amnesty been granted than Foday Sankoh and the RUF returned to the bush and continued the conflict".

Where amnesties have brought peace, but at a cost

In some instances though there can be little doubt that conflicts or abusive regimes have been brought to a conclusion through amnesties. Dr Fanie du Toit of the South African Institute for Justice and Reconciliation points out the value of amnesties in the context of the transition from apartheid to democracy in South Africa: "If P.W. Botha and F.W. De Klerk had been indicted at the time prior to or during the transition, there may have been a lot more difficulty in moving towards a democracy. Amnesties can serve a positive purpose."

Whether General Augusto Pinochet would have resigned as President of Chile in 1990 had there not been a guarantee of immunity from prosecution, is a valid question to be posed to all those who advocate zero tolerance for the granting of amnesties. The Chilean courts are now attempting to repeal this immunity, and on 20 January 2006 the Court of Appeal repealed his immunity in respect of allegations relating to Operation Colombo, in which 119 people are alleged to have been abducted and later killed. This will need to be passed by the Supreme Court before the ex-dictator can stand trial, but the message is clear: amnesties may provide illusory comfort.

The passage of time is important. Even 20 years after the event, there was a concern in Uruguay that revocation of amnesties could have a destabilising effect.When the armed forces there negotiated their withdrawal from power in 1985, they insisted upon an amnesty provision, which was subsequently ratified by the people. Tabare Vasquez who won the presidential election in 2004, still felt it was necessary in his campaign to assure the military that he would respect that 1985 amnesty law.

Juan Mendez, the President of the International Center for Transitional Justice, who was detained and tortured by the military junta in Argentina, draws a distinction between the different kinds of amnesties. "Blanket amnesties that have the effect of not permitting the investigation or the prosecution of anybody under any circumstance… are the ones that international law prohibits." He distinguishes between blanket amnesties to all and ones that depend on perpetrators coming forward to confess their guilt and provide information to victims' families: "I think that under certain circumstances, amnesties that are conditioned on conduct by the perpetrator could in principle be legal under international law. I have in mind the South African case, at least as conceived by the statute."

Paul van Zyl stresses that, "There is no doubt that there are instances in which amnesties pave the way for a short term improvement of the human rights position in a country or a reduction in hostilities…the only way that you minimise that tension between peace and justice or democracy and justice is by trying to be creative in the terms of the amnesty: by limiting them as much as possible; trying to make them as conditional as possible; trying to build sunset clauses into them; and trying to ensure that language is built into them which says that if people take up arms again or try to undertake another coup, then the benefits of that amnesty are immediately extinguished."

Where justice may not be wanted

Amnesties are of course not the only form of impunity. Certain countries may think prosecutions for past abuses is not of utmost importance to the country. Timor-Leste is reliant on good economic relations with its giant neighbour and has found it expedient to remain discreet about the violent occupation by Indonesia. The Timor-Leste President, Xanana Gusmao, who was himself a freedom fighter and struggled to bring independence to Timor-Leste, only grudgingly released the Truth and Reconciliation report detailing Indonesia's human rights abuses to the UN in January 2006.

Gusmao's apparent reluctance to release the report because of fears of damaging an already fraught relationship seemed to be justified, when a meeting scheduled between the leaders of the two countries was cancelled days after the release of the report, without any official reason. Human rights activists have criticised Gusmao's attitude to seeking justice, but he appears to believe that for the people of Timor-Leste, equity can be gained through enhancing their economy and accordingly their standards of living. In a speech to the Timor-Leste parliament he stated: "The report says the 'absence of justice ... is a fundamental obstacle in the process of building a democratic society'. My reply to that would be 'not necessarily'."

Ellen Sirleaf-Johnson, the recently-elected president of Liberia, also came under increasing pressure from the international community and human rights organisations to put justice at the top of her agenda, by pushing for the extradition of Charles Taylor, the former Liberian leader, from Nigeria. He is under indictment at the Sierra Leone Special Court as he is believed to have been instrumental in atrocities carried out by the Revolutionary United Front (RUF) in Sierra Leone during the civil war there between 1991 and 2000. Sirleaf-Johnson said on 16 January 2006, that her aim was to construct a secure Liberia and that she does not want the "Mr Taylor issue to be the issue that constrains us or the issue that causes us not to be able to do what we have to do here for the Liberian people… we want to see it as a secondary issue, even though it may be of utmost concern to the international community". She has since bowed to pressure and sought his extradition to the Sierra Leone Special Court.

For Sirleaf-Johnson, the stability of Liberia is paramount. External players have dictated what should happen there, in the name of justice and accountability, even though the democratically elected government was not convinced that making Taylor accountable was its priority. In the wake of the Rome Statute, the mood has changed: the question is not whether challenging impunity should be the subject of domestic prioritisation, but whether it can be.

‘Bridging the impunity gap'and ‘No peace without justice' are slogans which abound in this new age of international justice. This is emblematic of the advances that have been made in the last ten years towards making those responsible for gross human rights abuses accountable for their crimes at an international level. Undoubtedly, this is a major leap forward and gives force to the ideas set out in the 1948 Universal Declaration on Human Rights. However, in the zeal to punish the perpetrators, there is a need to tread cautiously: there may be a danger that the processes of peace are jeopardised by seeking justice at too early a stage. Time is of the essence in making the guilty accountable for their actions. In the words of a member of the Acholi community in Northern Uganda: "The priority should be peace first and justice later".