Publications

08 Jun 2017
Accountability, International Justice and the Responsibility to Protect

Remarks delivered by Dr. Simon Adams on behalf of the Global Centre for the Responsibility to Protect on 7 June 2017 at a Human Rights Council side-event on "Accountability and Prevention of Mass Atrocities – The Link to R2P." The side-event was co-hosted by the Permanent Missions of Canada and Liechtenstein in Geneva.

I'd like to thank the governments of Canada and Liechtenstein for organizing this event during the thirty-fifth session of the Human Rights Council. Let me start by saying that there is an intrinsic link between accountability, the Responsibility to Protect (R2P) and the prevention of mass atrocities.

A generation ago, there was almost total impunity for perpetrators of mass atrocities. What we know, what history teaches us, is that accountability for mass atrocity crimes is not only a deterrent, but that international justice can be contagious. Even the most powerful and malevolent perpetrator can no longer rely upon the permanence of impunity.
For example, 22 years ago the Bosnian Serb General and war criminal Ratko Mladić was the swaggering commander of troops that massacred 8,000 men and boys at Srebrenica, brazenly carrying out a genocide in the heart of Europe. Fifteen years ago Former Liberian President Charles Taylor's proxies in Sierra Leone were still hacking off people's limbs and terrorizing civilians. Power over life and death, and their capacity to commit atrocities, has abandoned both men. Instead they now know the silent tedium of prison. The message this sends to other perpetrators is powerful.

Many of the perpetrators of the 1994 Rwandan genocide have also been punished, either at the International Criminal Tribunal for Rwanda or via Gacaca courts inside Rwanda. And one day those currently indicted by the International Criminal Court (ICC) – including Joseph Kony of the Lord's Resistance Army - will hopefully join Mladić and Taylor in prison.

But the reverse is also true. Impunity begets impunity. And we are living through a period of increased instability and of growing impunity for gross violations of International Humanitarian Law (IHL) and International Human Rights Law. For example, in August 2013 the Syrian government gassed to death about 1,200 men, women and children in East Ghouta, Damascus. Both the Syrian government and the so-called Islamic State of Iraq and the Levant (ISIL) have used improvised chemical weapons on multiple occasions since then, including the notorious Khan Shaykhun attack earlier this year. So far, perpetrators have escaped accountability for these crimes.

Moreover, Amnesty International has credibly reported that Sudanese forces used chemical weapons at least thirty times in the remote Jebel Marra region of Darfur during 2016. To our knowledge this is a new development in the ongoing Darfur conflict. Why?

I can't help feeling that part of the reason is that the perpetrators in Sudan have seen that the use of chemical weapons in Syria has gone unpunished. No indictments, no arrests, no trials. Impunity begets impunity.

Ending impunity for mass atrocity crimes through truth commissions or criminal investigations can help deter future mass atrocity crimes. For victims, recognition of their suffering and accountability for violations and abuses perpetrated against them can have immense restorative value. I have seen this for myself in South Africa and East Timor.

Accountability should be seen as more than simply criminal prosecutions, but rather as incorporating truth, justice, as well as rebuilding and possibly reconciliation.

The establishment of international investigative mechanisms such as Commissions of Inquiry (COI) or Fact-Finding Missions (FFM) can contribute to all pillars of accountability by establishing the fact and circumstances of international crimes, collecting and preserving evidence, identifying perpetrators, and making recommendations regarding national truth and justice mechanisms. In order to strengthen international investigations, they should:

• Have strong mandates that allow them to collect and preserve evidence and identify individual perpetrators;
• Be gender sensitive, by mandating the COI or FFM to look into the specific experiences of women and girls and always include a dedicated and specialised gender adviser;
• Ensure findings will be accessible and admissible to national or international accountability mechanisms. Under what conditions the investigation's findings can be shared should be clearly laid out in the mandate;
• Transmit their reports to all relevant bodies, including the UN General Assembly and the UN Security Council, as well as to relevant regional bodies;

All UN member states, but especially members of the UN Human Rights Council, should cooperate fully with any COI/FFM, including granting reasonable access and freedom of movement.

A very interesting mechanism is the newly established International, Impartial and Independent Mechanisms (IIIM) for Syria (set up by the UN General Assembly), which will cooperate with the COI for Syria. Everyone has great hopes for this mechanism, but it requires a longer-term and sustainable funding model. In this context, I would also like to commend Botswana for being first African state to pledge voluntary funding to the IIIM.

Finally, we have seen ongoing progress in how mechanisms of international justice deal with perpetrators. The Hissène Habré case in Senegal shows us that regional mechanisms can work. The Al Mahdi case at the ICC has established the crucial connection between the destruction of our shared cultural heritage and crimes against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) advanced the development of international justice in the realm of gender crimes by enabling the prosecution of sexual violence as a war crime, a crime against humanity and genocide. More than seventy individuals were charged with crimes of sexual violence at the ICTY, including sexual assault and rape. Meanwhile, Cambodia, Guatemala, Argentina and other countries have shown us that no past national trauma is too painful to escape scrutiny.

Accountability is vital in terms of justice for victims and the fight against impunity. However, accountability should never be a substitute for genuine prevention efforts. Or in other words, punishment is no substitute for prevention. So in all cases, in all situations, we need to build support for ideas, institutions and individuals who build domestic rule of law, promote human rights, protect against gender-based violence and build societies that are capable of upholding their primary responsibility to protect.

In conclusion, accountability is not exclusively a UN Security Council issue, or an ICC issue, or an African Union or European Union issue, or a Human Rights Council issue. Accountability is an essential part of how we build resilient societies. It is an essential part of what binds us, and defines us, as an international community. And in these times of routine violations of IHL – and when 65 million people are displaced by war, conflict and persecution – we need to advance accountability at the domestic, regional and multilateral level.

International justice is not just an institutional and legal obligation, it is a moral necessity. Now more than ever.