THE INDEPENDENT MAGAZINE FOR LEGAL PROFESSIONALS
feature archives



 

 


Impunity - The Good News And The Bad

By Kate Allen, Amnesty International UK Director


Recent history records the murder and suffering of millions of victims of the most serious crimes under international law: genocide, crimes against humanity and war crimes. Shamefully, the enormous scale of such crimes has been fuelled by impunity, with the perpetrators allowed to plan and commit these acts secure in the knowledge that it is extremely unlikely they will be held accountable.

The establishment of the International Criminal Court represents an historic step forward by the international community against impunity, after years of campaigning by human rights organisations. Specific, ad-hoc International Criminal Tribunals in Rwanda and the former Yugoslavia have been in operation, brining to trial people accused of crimes under international law in those countries. There have also been significant developments in the Americas to bring perpetrators of the most serious crimes to justice. And while some of these developments have been welcome, others have not.

Impunity not only denies justice to victims of human rights abuses and their families, it sends out a message to others that they will not be brought to trial for some of the worst crimes known to humanity. Hence it leads to a climate in which more of these crimes are committed, and where the law is seen to protect the perpetrators of the crimes, not their victims.

Over twenty thousand people in Argentina were tortured, murdered or 'disappeared' during the period of military rule from 1976 to 1983. Yet even after the military government ended and democracy was restored, those responsible for these horrific crimes were not brought to justice. So-called 'amnesty laws' meant that the military officials who had ordered the murder of the government's left-wing opponents would not face trial. Even the leaders of the military coup themselves, including former military leader General Galtieri, were officially pardoned after serving less than six years of their sentences.

Human rights groups including Amnesty International and relatives of the thousands who were murdered or 'disappeared' during Argentina's 'dirty war' have campaigned for many years for an end to impunity in Argentina. So all welcomed President Nestor Kirchner's recent moves to permit the trial of officers accused of such crimes, and the August declaration in the house of representatives that the amnesty laws protecting them were null and void.

Neighbouring Chile has its own dark history of past human rights abuses and, in the landmark arrest and attempts to put General Augusto Pinochet on trial, is inextricably linked with the fight against impunity. Chile's President Lagos recently announced his government's human rights plan following demands for justice and reparation from relatives of people who were "disappeared" and the thousands of victims of torture during the military government.

While Amnesty International welcomed the acknowledgement of the use of torture in Chile's past, and the promise of an investigation and reparation for victims, these reforms do not go far enough. The wide jurisdiction of military courts and the Amnesty Law of 1978 continue to hinder efforts to seek justice for past crimes. On the eve of the thirtieth anniversary of Augusto Pinochet's military coup, victims and their families, Chilean human rights organisations and the international community are still awaiting a true commitment to ending impunity.

In Peru, important steps towards justice are being taken, as the Peruvian authorities demand the extradition of former president Alberto Fujimori from Japan to face criminal charges of authorising abduction and murder by the Grupo Colina death squad. Despite extradition requests from Peru and Interpol, and a petition of over 20,000 signatures from Amnesty International, at the time of writing the Japanese authorities have still refused in proponents of the International Criminal Court, playing a leading role in the coalition of "like-minded" states that sought and achieved a workable Statute for an independent ICC. Kofi Annan described the agreement of this Statute as "the greatest recent single act of progress for justice, human rights and the rule of law" and "a giant step towards universalising the fight against impunity to include every country, every leader, every militia guilty of crimes against our common humanity". However, Canada's neighbour, the USA, is leading an effort to undermine the Court.

At the 1998 Rome diplomatic conference where the Statute was agreed, the USA was one of seven states to vote against its adoption. Nevertheless, one of President Clinton's last acts was to sign the Statute. However, last year, the current administration repudiated the USA's signature and embarked upon a diplomatic campaign to undermine the ICC.

The USA is working on two major fronts. At the multinational level, the administration seeks to remove references to the ICC from UN resolutions. It has also succeeded in winning two successive Security Council resolutions which exempt troops serving on UN authorised missions from the possible scrutiny of the Court.

Bilaterally, US Ambassadors around the world have been exerting enormous pressure on governments to enter into impunity agreements which commit them not to surrender any US national accused of genocide, crimes against humanity and war crimes to the Court.

The agreements are of dubious legality and not even backed up with a clear undertaking that the USA will investigate and prosecute persons covered by such agreements in its national courts. Indeed, in many cases it would be impossible as the US has not adequately defined these acts as crimes in US law. Despite threatening to withdraw military, economic and other assistance from states that refused to enter into impunity agreements, few parliaments of states that have signed such agreements are known to have ratified them. Around 50 governments have signed agreements, but in many cases they will meet strong resistance from national parliaments that will need to approve ratification. Amnesty International is urging members of parliament to refuse to ratify them.

The US government has voiced concerns that the Court will be used to bring politically motivated prosecutions against US nationals. Yet the fair trial guarantees and other checks and balances in the Rome Statute are so strong that such a situation would not arise. The ICC will only take action where there are serious breaches of the international law involving crimes against humanity such as war crimes, genocide or torture and the Court will operate a screening process to weed out frivolous and vexatious cases. If US citizens are accused in connection with such incidents the US will retain the right to try its own citizens. Furthermore, the Court will only take action where national authorities are unwilling or unable to do so.

It is imperative that the USA is not allowed to stand in the way of the ICC. The Court will enable justice to be done for thousands of victims and their families. It will prompt national prosecutors - who have the primary responsibility to bring those responsible for human rights crimes to justice - to do so, promoting the kind of moves against impunity proposed by President Kirchner in Argentina. And the Court's very presence will act as a deterrent to those planning to commit grave crimes under international law, showing that the international community will no longer stand for crimes against humanity but will act together to punish those responsible.

Despite the US campaign against the Court it is important to note that the Court is being established and is supported by the overwhelming majority of states. Already 91 states - almost half of the international community - have ratified the treaty and many more are in the process of doing so. The Court's judges and Prosecutor were elected earlier this year and the Court's Prosecutor has begun the first preliminary examination of reported crimes in the Democratic Republic of Congo.

States that have ratified the Rome Statute must go further and apply pressure on the US to abandon its diplomatic campaign against the ICC. It has, in the 1990s, supported moves against impunity, for example by supporting the tribunals in Rwanda and the former Yugoslavia. Hopefully it can be persuaded to do so again by supporting the ICC. Once the Court has commenced successfully prosecuting those accused of crimes against humanity, the arguments in its favour will be yet stronger.

Impunity is a world-wide issue, the continuation of which has regrettably been made possible by the actions, or failures to act, of many states. But the backlash against human rights around the world in the 'war on terror', where countries have curtailed civil liberties in order to pursue a largely US-led agenda, shows just how influential the US is in shaping the policy of other nations. Let us hope that the example of its southern neighbours prevails, rather than its own attempts to turn back the clock to the dark days of impunity.

Kate Allen.

 
   
Search WWW Search The Barrister