Part I Combating Impunity: General Obligations, Principle 1 General Obligations of States to Take Effective Action to Combat Impunity
Edited By: Frank Haldemann, Thomas Unger
- Human rights — Immunity from jurisdiction
Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.
Principle 1 is the introduction and cornerstone to the Principles as a whole. It establishes state responsibility for the interrelated obligations outlined in the Principles, and makes clear that these obligations are all mandatory, interrelated, non-hierarchical, and in addition to responsibility for the underlying violations. The Principle arises from then-existing jurisprudence of the regional human rights courts and the United Nations (UN) human rights bodies, and from academic and non-governmental commentary. It has been taken up and developed in national law, donor priorities, and related international soft law since 2005. It has been applied, albeit not explicitly, by the International Court of Justice (ICJ). The Principle contains some ambiguities and weaknesses, which will be detailed in this chapter, but these are due in part to the fast-changing nature of the attitudes of states towards fighting impunity. The Principles were originally drafted at a time of enthusiasm for transitional justice (and its relative, international criminal justice); it is doubtful that their reception would be as enthusiastic were they drafted today.
1 There was no general principle of state obligation in the 1997 Joinet Principles. The original Principles had a definitions section, followed immediately by the first section, on the right to truth. What became Principle 1 was originally Article 18(1), which was situated in the section on ‘right to justice’. It read as follows:
Duties of States with Regard to the Administration of Justice: Impunity arises from a failure by States to meet their obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that they are prosecuted, tried and duly punished, to provide victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violations.
2 Professor Orentlicher moved Article 18(1) up because it does not refer simply to the right to justice but to all the Principles, and because, while many of the Principles are framed in terms of rights belonging to victims/survivors or to society as a whole, it was (p. 48) important to establish that these rights have corresponding state obligations. The revision also explicitly includes the right to truth, although it does not make clear who exactly the rights holder is. The Principle now refers to state obligations vis-à-vis perpetrators, victims, and, implicitly, the society as a whole. The title also states what the goal is: states should take effective action to combat impunity.
3 It is not clear where the origins of ‘combating impunity’ as a framework came from. The initial Special Rapporteur, Mr Joinet, pointed to the conformation of victims’ networks and to conferences in Europe and Latin America in the early 1990s. His initial study was on the evolution of amnesty laws. The 1993 Vienna Declaration on Human Rights, in paragraph 60, reads: ‘States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law.’ Paragraph 91 endorses the then Commission on Human Rights’ efforts to study the issue.
4 The Principles were intended to restate existing law, not make new law. Principle 1 was by 2004 well established in international human rights law and the law on state responsibility. In 1988, the Inter-American Court on Human Rights (IACtHR), in the landmark Velásquez Rodríguez case, held that states had an obligation, as a corollary to their obligation to ensure rights, to investigate, and if warranted prosecute and punish, violations, and to provide remedies to victims.1 Since that time, the regional human rights courts and commissions, and the expert treaty bodies of the UN, have all reaffirmed the Principle as stated. For example, the European Court of Human Rights (ECtHR), while not going so far as to recognize victims’ rights to force prosecutions, does recognize the duties of states to investigate and prosecute serious rights violations.2 The International Law Commission (ILC) Draft Articles on State Responsibility, while excluding the responsibility of individuals from their ambit, recognizes the responsibility of states to provide reparation and satisfaction for breaches of international obligations.3 These obligations References(p. 49) are rooted both in states’ own failure to respect rights and in their failure to protect their inhabitants from violations by others, including private actors. Thus the duties to investigate and provide redress and reparation apply even in cases where a state’s own forces were not the only (or even principal) violators. They apply independently of state attribution for the underlying violation.
5 Parallel proceedings in the UN, especially the van Boven/Bassiouni Basic Principles and Guidelines on the Right to a Remedy and Reparation, and the Principles on Victims of Crime and Abuse of Power, reinforced and enriched the ideas in Principle 1.4 For example, the Principle refers both to remedies and, as a separate category, to reparations for harm, thus reinforcing the idea that there is both a procedural (access, right to remedy) and a substantive (reparation) aspect to redress for victims. It also refers to ‘effective’ remedies, thus importing into the Principle the international law on remedies surrounding the requirement of exhaustion of domestic remedies.5
6 The great merit of this introductory Principle, as of the revised Principles as a whole, is that it gives equal weight to the different aspects of necessary action in the aftermath of large-scale or systematic violations of human rights or international humanitarian law (IHL). As the Commentary puts it:
Satisfying one of their obligations, such as the duty to ensure prosecution of those responsible for serious crimes under international law, does not relieve States of their independent obligations, including those bearing on reparations, the right to know and, more generally, non-recurrence of violations.
7 The Principles thus embody what Juan Méndez, in a seminal 1997 article, described as four emerging international law principles, consisting of obligations and correlative rights:
These principles hold that a state is obliged to carry out a number of tasks in response to crimes against humanity. These tasks are:
4. to separate known perpetrators from law enforcement bodies and other positions of authority.6
8 This formulation helped shift the discussion from debates over the single best way to deal with the past—international or domestic courts, truth commissions, amnesties or whatever—to a recognition that the issue was one of multiple overlapping yet independent tasks, not of a single response. This is reflected in the UN Secretary-General’s 2004 Report on the rule of law and transitional justice.7 There, the UN’s official position reflects the evolution seen in the Principles. The Secretary-General writes: ‘Where (p. 50) transitional justice is required, strategies must be holistic, incorporating integrated attention to individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or an appropriately conceived combination thereof.’8 It is important to note that the Principles do not create hierarchies: each aspect is equally important, although not everything has to be done at once.
9 Principle 1, by linking the fight against impunity to a range of actions, suggests that the obligations to investigate, prosecute, find the truth, provide redress, and avoid recurrence are independent obligations of the state, which means they are not subsumed in the underlying crimes or rights violations. This becomes important, for example, when states have become parties to treaty regimes after the crimes or rights violations have taken place. Despite the fact that the underlying events cannot be the subject of international adjudication due to ratione temporis limitations, the continuing failure to comply with the obligations outlined in Principle 1 can still give rise to responsibility since they continue into the present.9
10 Since the Updated Principles were issued in 2005, the trends noted in the Commentary have continued, although not in a uniform manner. With respect specifically to the state obligations outlined in Principle 1, an important development was the ICJ decision in Belgium v Senegal. There, Belgium claimed that Senegal was failing to comply with its obligations under the 1984 UN Convention Against Torture, to extradite or prosecute former Chadian leader Hisséne Habré, who was living in Senegal. The ICJ found that the obligation to investigate and prosecute was absolute and had to be carried out without undue delay. Furthermore, the Court stated:
The choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight because, while extradition is an option offered to the State by the Convention, prosecution, on the other hand, is an international obligation laid down by the Convention, the violation of which is a wrongful act engaging the responsibility of the State …10
The Court notes that, while Article 7, paragraph 1, of the Convention does not contain any indication as to the time frame for performance of the obligation for which it provides, it is necessarily implicit in the text that it must be implemented within a reasonable time, in a manner compatible with the object and purpose of the Convention, which is why proceedings should be undertaken without delay.11
References(p. 51) 11 The UN has further developed its policies in line with the Principles. For example, a 2010 Guidance Note from the UN Secretary-General extensively cites the Principles, and states that the UN shall strengthen its transitional justice activities by, inter alia, ‘encouraging the parties to include commitments to protect and promote human rights, combat impunity, and pursue transitional justice in peace agreements’.12 Between 2006 and 2009 the UN developed a series of specific ‘Tools’ on aspects of Principle 1, for use by UN personnel and others.13 The UN Security Council, in resolutions and in presidential statements, has repeatedly referred to the fight against impunity.14 The UN Human Rights Council in 2011 established the mandate of Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence. The Special Rapporteur is tasked to deal with situations in which there have been gross violations of human rights and serious violations of international humanitarian law. The resolution emphasizes the need for a comprehensive approach to the four elements of the mandate.15
12 Other international actors are beginning to use the framework of the Principles. The European Union (EU) pledged to develop an anti-impunity policy in line with the Principles by 2014.16 On 16 November 2015, the Council of the EU adopted conclusions affirming the EU’s support for transitional justice, and approving the EU’s Policy Framework on support to transitional justice. That framework uses the categories set out in the Principles, while linking them to broader processes of peacebuilding and development.17 The African Union has also been developing a regional transitional justice policy, based on the four interconnected elements mentioned above.18
13 All three regional human rights systems have continuously found that the state has violated the obligation to ensure rights in cases where the obligations to investigate, prosecute, and redress have not been complied with. In a recent decision on the subject, the IACtHR reiterated its long-standing jurisprudence that impediments to serious investigation and prosecution in cases of gross violations like forced disappearances and killings (p. 52) are not permitted, adding a specific reference to the right to truth.19 The ECtHR and the African Commission on Human and Peoples Rights (AComHPR) have agreed.20 A number of countries in Latin America have advanced along all four of the obligations specified in the Principles. Decisions by national courts in Uruguay, Peru, and elsewhere have cited the Principles either for their definition of impunity, or to underscore the international obligation to combat it.21 In particular, the Principles underlay the Peruvian Supreme Court’s conviction of Alberto Fujimori for forced disappearances and killings.22
14 The Principles have been recognized as important sources of ‘soft law’ and as a useful analytical tool by both governments and non-governmental organizations (NGOs). For example, the Swiss Foreign Affairs Ministry designed its Dealing with the Past initiative explicitly around the Principles.23 The Dutch NGO Impunity Watch developed an instrument for analysing and evaluating degrees of impunity. It states:
[T]he research instrument is focused on identifying the root causes of impunity: obstacles to processes that have been designed to provide victims with information, criminal justice and reparations as well as obstacles to other measures aimed at avoiding the recurrence of past crimes. This focus follows the recently updated UN Principles.24
15 As already mentioned, the great strength of the Principles in general, and of Principle 1 among them, is their insistence on the multiple overlapping rights of victims, and thus obligations of states, in order to combat impunity. This has been very useful to combat the earlier emphasis on either amnesty or prosecution alone as the two possible poles around which responses to grave international crimes and serious human rights violations can oscillate. The very success of the Principles in broadening the scope of possible state action has also become their weakness, however. Despite continuous protestations and admonitions to the contrary, the rights and obligations detailed in the Principles became seen as a required international ‘toolkit’ in situations of end of conflict. Truth commissions and trials are viewed as something imposed in peace agreements in order to get foreign funds and a UN imprimatur, rather than as arising from deep, and autochthonous, social References(p. 53) processes. The perception (and often reality) of external imposition, in turn, makes such processes less likely to meet the goals espoused for them.
16 Principle 1 imposes very broad responsibilities on states. It does not tie those responsibilities to a showing that the violations are attributable to the state. Thus, even where non-state actors are the principal violators (of IHL, for example), the state retains obligations to ensure (although not necessarily provide) access to remedies and reparations, and access to the truth of the occurrences. This may place a substantial burden on weak states or those emerging from state breakdown. It is worth considering how these obligations intersect with the obligations of private actors (corporations, for instance) to provide remedies for their own violations.25
17 There are a number of weaknesses that are worth pointing out. The Principles are not strong on the interrelationships among the different rights proclaimed, although the Special Rapporteur is now working on this subject. How, for instance, can one balance the demands of extensive reparations against the broad changes required by guarantees of non-repetition, when both entail competing demands on scarce resources? This is perhaps inevitable, as these trade-offs will differ from place to place, yet it would have been helpful to reference some well-known synergies and tensions, for example the need to consider demobilization and reintegration of combatants alongside reparations to non-combatant victims.
18 There are some ambiguities in the text. For example, Principle 1 expresses a clear preference for criminal prosecution and punishment, yet the definition of ‘impunity’ refers to the de jure or de facto lack of investigation and sanction—whether in criminal, civil, administrative, or disciplinary proceedings. The definition seems to imply that it is the lack of preliminary investigation of some kind that precludes later criminal prosecution, but administrative or disciplinary proceedings do not necessarily lead to criminal charges, nor are such proceedings a necessary precursor of prosecution.
19 It is one of the hallmarks of the field that it evolves rather quickly. The Principles as a whole need to grapple with new issues that have come to the forefront since the last revision. Since 2005, for example, there has been much greater emphasis on the role, acceptability, and limitations of informal, ‘traditional’, or customary justice mechanisms, especially those that eschew imprisonment for other forms of punishment or atonement. These mechanisms, variants of which have appeared in East Timor, Rwanda,26 Uganda, and elsewhere, combine various aspects of truth-telling, punitive justice, and reparations, and can have connections to local reconciliation and to spiritual or religious practices. They do not fit neatly into the categories delineated in the Principles, although they may fulfil several of the same goals.
20 Along the same lines, the last ten years or so have seen a debate about how broad the contours of transitional or post-conflict justice should be, in particular around guarantees of non-repetition. In particular, debates abound on the extent to which socio-economic justice and ‘transformative’ justice for women, indigenous people, or (p. 54) the poor should be incorporated into, or simply aligned with, anti-impunity measures.27 The Principles take a modest approach, insisting only on broad public consultation on whatever measures are decided, and on vetting of state institutions, an end to emergency restrictions on liberties, and demobilization of paramilitary groups and child soldiers. This may be appropriate given the wide range of circumstances potentially covered, doubts about whether transitional justice mechanisms can fruitfully engage with wider social reform processes, and the need to remain at a high level of generality. However, current debates around the intersection of these mechanisms with broader security and development concerns indicate that, should the Principles be revised again, they would be more likely to address these issues in addition to others, like curricular reform, corruption, land restitution, and anti-discrimination measures, that have achieved greater play in the last decade.
21 Lastly, the Principles do not grapple with the complexities of trial and punishment that arise once initial barriers to prosecution have fallen away. Some of these are common to all prosecutions, and thus the subject of both hard and soft law on due process and fair trial. However, the question of what constitutes being ‘duly punished’ in cases of serious crimes under international law has become more urgent as prosecutions, for example in Latin America, have become more common. Can those convicted of serious international crimes be given conditional suspended sentences, or probation, or be imprisoned in luxurious conditions of confinement? If the right to truth and reparations is satisfied through other means, do these sentencing decisions violate international rules requiring proportional punishment for serious crimes, or do they provide permissible flexibility that nonetheless satisfies at least a modicum of victims’ aspirations? Is this a purely national decision given the great disparity in national sentencing practices, or are there guideposts? The Colombian experience, both with paramilitaries and more recently with the FARC insurgents, may provide interesting lessons here.
- Arbour, L, Economic and Social Justice for Societies in Transition (26 October 2006) <chrgj.org/wp-content/uploads/2012/07/WPS_NYU_CHRGJ_Arbour_-Final.pdf> accessed 18 November 2017.
- Fletcher, L and Weinstein, H, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573–639.
- McEvoy, K and McGregor, L (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Hart Publishing 2009).
- Méndez, J, ‘Accountability for Past Abuses’ (1997) 19.2 Human Rights Quarterly 255–82, 261.
- Roht-Arriaza, N, Impunity in International Law and Practice (OUP 2005).
- Roht-Arriaza, N and Mariezcurrena, J, Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (CUP 2006).
- (p. 55) Shaw, R, Waldorf, L, and Hazan, P (eds), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press 2010).
- Transitional Justice Institute, The Belfast Guidelines on Amnesty and Accountability (2013) <www.transitionaljustice.ulster.ac.uk/documents/TheBelfastGuidelinesonAmnestyandAccountability.pdf> accessed 12 January 2018.
- UN Office of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc S/2004/616 (24 August 2004).(p. 56)
1 Velásquez Rodríguez v Honduras (Judgment) IACtHR Series C no 04 (29 July 1988) para 174. This line of jurisprudence has been reiterated and consolidated in subsequent cases, including cases against Peru (Barrios Altos), Chile (Almonacid Arrellano), Brazil (Gomes Lund), Uruguay (Gelman) and El Salvador (El Mozote). Case of Barrios Altos v Peru (Judgment) IACtHR Series C no 87 (30 November 2001); Case of Luis Alfredo Almonacid Arellano et al v Chile (Judgment) IACtHR Series C no 154 (26 September 2006); Case of Gomes Lund et al (‘Guerrilha do Araguaia’) v Brazil (Judgment) IACtHR Series C no 219 (24 November 2010); Case of Juan Gelman et al v Uruguay (Judgment) IACtHR Series C no 221 (24 February 2011); Massacres of El Mozote and neighboring locations v El Salvador (Judgment) IACtHR Series C no 252 (25 October 2012). Orentlicher cites the UN Human Rights Committee’s General Comment no 31 to the same effect: Report of the independent expert to update the Set of Principles to combat impunity, UN Doc E/CN.4/2005/102 (18 February 2005) at fn 21.
2 Case of X and Y v the Netherlands App no 8978/80 (ECtHR, 26 March 1985); Case of Benzer and others v Turkey App no 23502/06 (ECtHR, 24 March 2014) (final) (violation of procedural aspect of Art 2 because no proper investigation was carried out in order to punish). See also African Commission on Human and Peoples’ Rights, Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication no 245/2002 (2006); UN Human Rights Committee, Observations on Algeria, CCPR/C/109/D/1874/2009, 7 January 2014, para 7.10; CCPR/C/108/D/1796/2008 (11 December 2013) para 8.10; Quinteros v Uruguay, Communication no 107/1981; see also General Comment no 31, CCPR/C/21/Rev.1/Add.13 (26 May 2004).
3 ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (fifty-third session, 2001). See, eg, Art 58(3) (where crimes against international law are committed by state officials, it will often be the case that the state itself is responsible for the acts in question or for failure to prevent or punish them); Art 41 (states must cooperate to bring to an end breaches of peremptory obligations, including the prohibition on genocide, torture, and war crimes); Art 37 (satisfaction); and Art 31 (reparation).
4 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res 60/147 of 16 December 2005; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UNGA Res A/RES/40/34 of 29 November 1985.
5 See, eg, IACtHR, Velásquez Rodríguez, n 1.
7 UN Office of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc S/2004/616 (24 August 2004).
8 Ibid, para 26.
9 See, eg, Moiwana Community v Suriname (Merits) IACtHR Series C no 124 (15 June 2005) para 43. See also Human Rights Committee, Communication no 491/1992, CCPR/C/45/D/491/1991, para 4.2. A particular application of this idea applies to continuing or permanent crimes like enforced disappearance; there the violation continues until the person or the body is located, up to the present day. See, eg, Supreme Court of Chile, Case of Miguel Angel Sandoval, Rol no 517-04, Penal Chamber (17 November 2004).
13 UN Office of the High Commissioner for Human Rights (OHCHR), The right to the truth (2008); OHCHR, Maximizing the legacy of Hybrid Courts (2008); OHCHR, Reparations programmes (2006); OHCHR, Truth Commissions (2006); OHCHR, Mapping the Justice Sector (2006); OHCHR, Monitoring Legal Systems (2006); OHCHR, Prosecution Initiatives (2006); OHCHR, Vetting: An Operational Framework (2006).
15 Res 18/7 of the Human Rights Council (29 September 2011). The mandate is to ‘ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law’. Pablo de Greiff is the first Special Rapporteur. His three-year mandate was renewed in 2014 for a further three years.
16 See Outcome 27(c) of the EU Strategic Framework and Action Plan on Human Rights and Democracy (2012), which calls on the EU to ‘Develop policy on transitional justice, so as to help societies to deal with the abuses of the past and fight impunity (truth and reconciliation commissions, reparations, criminal justice, link with ICC), recognising that such policy must allow for tailored approaches to specific circumstances.’ Available at <www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf> accessed 12 January 2018.
17 European Council, Council’s Conclusions on EU’s Support to Transitional Justice, 16 November 2015 <eeas.europa.eu/archives/docs/top_stories/pdf/the_eus_policy_framework_on_support_to_transitional_justice.pdf> accessed 12 January 2018. The Principles are cited at fn 20. Moreover, the conceptual structure follows that of the Principles.
18 See African Union Transitional Justice Framework (2014) <www.legal-tools.org/doc/bcdc97/pdf> accessed 12 January 2018; see also, eg, Centre for the Study of Violence and Reconciliation, Technical Experts’ Consultation to Review the African Transitional Justice Policy Framework (Atjf) Agenda (Nairobi, August 2013).
19 See cases cited in n 1; on the right to truth specifically, see La Rochela Massacre v Colombia (Judgment) IACtHR Series C no 163 (11 May 2007) para 195.
20 See, eg, Yeter v Turkey App no 33750/03 (Judgment) (ECtHR, 13 January 2009) para 70; AComHPR, Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication no 245/02 (Decision) (21 May 2006) paras 211 and 215.
21 From Uruguay, see Criminal Judge 19th court, Case ‘Condor Plan’ in Uruguay (José Nino Gavazzo Pereira et al), Sentencia 036, file 98-247/2006, 26 March 2009; from Peru, Constitutional Chamber, Habeas corpus submitted by María Emilia Villegas Namuche, File 2488-2002-HC/TC, Extraordinary Writ, 18 March 2004, at 6, 7.
23 ‘The concept of Dealing with the Past stems from the “Principles against impunity”, developed by Louis Joinet, which were approved in 1997 by the United Nations Commission on Human Rights in recognition of the rights of victims and the obligations of States in the fight against impunity when massive violations of human rights and international humanitarian law have taken place’. See Swiss Federal Department of Foreign Affairs, ‘Dealing with the Past’, available at <www.eda.admin.ch/eda/en/home/topics/peasec/peac/confre/depast.html> accessed 12 January 2018.
24 See Impunity Watch website <www.impunitywatch.org> accessed 17 November 2017.
26 East Timor’s Community Reconciliation Processes, for example, involved group hearings convened by the Commission for Reception, Truth, and Reconciliation alongside traditional local and religious authorities, where those seeking reintegration into their communities and an end to the threat of criminal prosecution could tell their stories and make reparation to their victims. The Gacaca courts in Rwanda were not an informal mechanism but a state-run institution, with some characteristics borrowed from informal dispute resolution.