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Closing the Accountability Gap: Concrete Steps Toward Ending Impunity for Atrocity Crimes

  • Theodor Meron (a1)
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Abstract
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This article is written in the author's personal capacity. The author notes with gratitude the brilliant conceptual suggestions and editing by Willow D. Crystal and the thoughtful research and footnoting by Felipe Chahuan Zedan.

Footnotes
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1 See SC Res. 1503, UN Doc. S/RES/1503 (Aug. 28, 2003).

2 See Theodor Meron, A New Era of Accountability, Intersections Mag., Autumn/Winter 2016, at 7. See also Meron, Theodor, Reflections on the Prosecution of War Crimes by International Tribunals, 100 AJIL 551, 577–79 (2006).

3 There are, of course, a great many other prohibitions arising in international law that could be the subject of criminal proceedings, including most notably violations of international human rights guarantees. I will limit my focus in this piece to those violations of international law to which I have referred as atrocity crimes.

4 See Convention on the Prevention and Punishment of the Crime of Genocide, Art. V, Dec. 9, 1948, 78 UNTS 277 [hereinafter Genocide Convention]; Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Art. 146, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts. 2, 4, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 UNTS 85.

5 Parliamentarians for Global Action, Implementing Legislation on the Rome Statute, at http://www.pgaction.org/campaigns/icc/implementing-legislation.html. See also Parliamentarians for Global Action, Parliamentary Kit on the International Criminal Court, at 6–9 (June 2018).

6 See Parliamentarians for Global Action, Implementing Legislation on the Rome Statute, supra note 5.

7 See generally Rome Statute of the International Criminal Court, pmbl., Art. 88, opened for signature July 17, 1998, 2187 UNTS 90.

8 See Ferdinandusse, Ward, The Prosecution of Grave Breaches in National Courts, 7 J. Int'l Crim. Just. 723, 725–29 (2009).

9 But see, e.g., Roberts, Adam, The Laws of War: Problems of Implementation in Contemporary Conflicts, 6 Duke J. Comp. & Int'l L. 11 (1995) (discussing vulnerabilities in the aut dedere, aut judicare requirements).

10 See supra text accompanying note 4.

11 See generally, e.g., ICC, Report of the Court on Cooperation, Delivered to the Assembly of States Parties, ICC-ASP/16/16 (Oct. 26, 2017). See also Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09-267, Decision on the Non-compliance by the Republic of Uganda with the Request to Arrest and Surrender Omar Al-Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute (July 11, 2016); Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09-266, Decision on the Non-compliance by the Republic of Djibouti with the Request to Arrest and Surrender Omar Al-Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute (July 11, 2016).

12 See, e.g., Hall, Christopher Keith, Universal Jurisdiction: New Uses for an Old Tool, in Justice for Crimes Against Humanity 47, 5556 (Lattimer, Mark & Sands, Philippe eds., 2003); International Justice Resource Center, Universal Jurisdiction, at https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction.

13 Compare, e.g., Amnesty Int'l, Universal Jurisdiction: Strengthening this Essential Tool of International Justice, IOR 53/020/2012, at 23 (Oct. 9, 2012) with Ryan Goodman, Counting Universal Jurisdiction States: What's Wrong with Amnesty International's Numbers [Updated], Just Security, at https://www.justsecurity.org/4581/amnesty-international-universal-jurisdiction-preliminary-survey-legislation-world.

14 See Trial International, Make Way for Justice #4: Momentum Towards Accountability. Universal Jurisdiction Annual Review 2018, at 5, available at https://trialinternational.org/wp-content/uploads/2018/03/UJAR-Make-way-for-Justice-2018.pdf.

15 Genocide Convention, supra note 4, Art. VI.

16 See, e.g., Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 2006 ICJ Rep. 6, 32, at para. 64 (Feb. 3).

17 Rabinovitch, Ryan, Universal Jurisdiction in Absentia, 28 Fordham Int'l L.J. 500, 526 (2004).

18 See, e.g., Hudson, Andrew & Taylor, Alexandra W., The International Commission Against Impunity in Guatemala: A New Model for International Criminal Justice Mechanisms, 8 J. Int'l Crim. Just. 53, 6869 (2010); Scheffer, David, Closing the Impunity Gap in U.S. Law, 8 Nw. J. Int'l. Hum. Rts. 30, 37 (2009).

19 See, e.g., R v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 1), [2000] 1 A.C. 61 (H.L. Nov. 25, 1998) (holding that Pinochet was not entitled to immunity from criminal proceedings and could be extradited in a decision subsequently set aside on the base of an undisclosed conflict of interest); In re Extradition of Demjanjuk, 612 F. Supp. 544 (N.D. Ohio 1985) (the decision certifying the extradition of John Demjanjuk, a Nazi war criminal, to Israel). See also Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 ICJ Rep. 422 (July 20).

20 See generally, e.g., Theodor Meron, Judicial Independence and Judicial Impartiality, in Theodor Meron, The Making of International Criminal Justice: A View from the Bench. Selected Speeches 255 (2011).

21 See, e.g., Courts of Kosovo, UN Interim Admin. Mission in Kosovo, Reg. No. 2000/64 on Assignment of International Judges/Prosecutors and/or Change of Venue, UNMIK/REG/2000/64 (Dec. 15, 2000); Special Panels for Serious Crimes in East Timor, UN Transitional Admin. in East Timor, Reg. No. 2000/11 on the Organization of Courts in East Timor, UNTAET/REG/2000/11 (Mar. 6, 2000); War Crimes Chamber for Bosnia and Herzegovina, Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor's Office of Bosnia and Hercegovina, Official Gazette of BiH, No. 12/04 (Dec. 1, 2004).

22 See, e.g., Council Decision 2002/494/JHA, Setting Up a European Network of Contact Points in Respect of Persons Responsible for Genocide, Crimes Against Humanity and War Crimes, 2002 OJ (L 167/1) (June 13); Council Decision 2003/335/JHA, On the Investigation and Prosecution of Genocide, Crimes Against Humanity and War Crimes, 2003 OJ (L 118/12) (May 8).

23 The new Europol Regulation, which came into effect in May 2017, lists atrocity crimes as those that Europol should prevent and combat. See Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and Replacing and Repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, 2016 OJ (L 135) 53, Art. 3 (1), Annex I. With respect to Eurojust, see supra note 22.

24 See, e.g., Murungu, Chacha Bhoke, Towards a Criminal Chamber in the African Court of Justice and Human Rights, 9 J. Int'l Crim. Just. 1067 (2011); Max du Plessis, Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes, Inst. Sec. Stud. (Paper No. 235, 2012); Abass, Ademola, The Proposed International Criminal Jurisdiction of the African Court: Some Problematical Aspects, 60 Neth. Int'l L. Rev. 27 (2013); Amnesty Int'l, Africa: Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court, at 35 (Jan. 22, 2016).

25 While supporting regional accountability initiatives in general, I do not support those that, like the Malabo Protocol, recognize head of state immunity. See infra Sec. H.

26 See, e.g., Jackson, Miles, Regional Complementarity: The Rome Statute and Public International Law, 14 J. Int'l Crim. Just. 1061 (2016).

27 See SC Res. 2379, at para. 2 (Sept. 21, 2017); Letter from António Guterres, Secretary-General, to Mansour Ayyad, President of the Security Council (Feb. 9, 2018) (filed with the addressee), conveying Terms of Reference of the Investigative Team to Support Efforts to Hold ISIL (Da'esh) Accountable of Acts that May Amount to War Crimes, Crimes Against Humanity and Genocide Committed in Iraq, Established Pursuant to Security Council Resolution 2379 (2017).

28 See generally GA Res. 71/248, at para. 4 (Jan. 11, 2017).

29 See Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic Since March 2011, at paras. 4–12, UN Doc. A/72/764 (Feb. 28, 2018).

30 The use of evidence collected by NGOs, however, may pose certain difficulties. See, e.g., Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, at 3 (Sept. 2004).

31 See generally Brody, Reed, Bringing a Dictator to Justice: The Case of Hissène Habré, 13 J. Int'l Crim. Just. 209 (2015); Reed Brody, Victims Bring a Dictator to Justice: The Case of Hissène Habré. Updated Edition After the Final April 2017 Verdict 14 (2d ed. 2017).

32 See, e.g., Niyonteze, Tribunal Militaire de Cassation [Military Court of Cassation], Apr. 27, 2001 (Switz.), available at https://casebook.icrc.org/case-study/switzerland-niyonteze-case; R v. Payne, General Court Martial, Apr. 30, 2007 (U.K.); Kelly, Joshua, Re Civilian Casualty Court Martial: Prosecuting Breaches of International Humanitarian Law Using the Australian Military Justice System, 37 Melb. U. L. Rev. 342 (2013).

33 See generally, e.g., Frakt, David J. R., Applying International Fair Trial Standards to the Military Commissions of Guantánamo, 37 S. Ill. U. L.J. 551 (2013).

34 See generally, e.g., William A. Schabas & Patricia M. Wald, Truth Commissions and Courts Working in Parallel: The Sierra Leone Experience, 98 ASIL Proc. 189, 189.

35 See generally Hudson & Taylor, supra note 18, at 55.

36 A notable example is the Initiative for a New Treaty on Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes. See Ward Ferdinandusse, Improving Inter-state Cooperation for the National Prosecution of International Crimes: Towards a New Treaty?, 18(15) ASIL Insights (July 21, 2014), at https://www.asil.org/insights/volume/18/issue/15/improving-inter-state-cooperation-national-prosecution-international.

37 See generally Murphy, Sean D., Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission, 111 AJIL 970 (2018). The International Law Commission has decided to transmit the draft articles to governments and international organizations, inter alia, for comments. See id. at 978.

38 See, e.g., Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Art. IX, July 12, 1999, UN Doc. S/1999/777 (signed with a caveat by the UN Special Representative in Sierra Leone that the United Nations would not recognize amnesty for atrocity crimes, see UN Secretary-General, Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, at para. 7, UN Doc. S/1999/836 (July 30, 1999)). I note that amnesties are called for under Article 6(5) of Additional Protocol II to the Geneva Conventions, which recommends granting the broadest possible amnesty to persons who have participated in the armed conflict or were deprived of liberty for reasons related to the armed conflict. However, that provision, as interpreted by the International Committee of the Red Cross, is understood not to apply to amnesties for atrocity crimes. See Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law. Vol. I: Rules 612 (2005).

39 See, e.g., Office of the UN High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Amnesties, at 16, UN Doc. HR/PUB/09/1 (2009). See also Murphy, supra note 37, at 977.

40 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Art. 1, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279, 282. See also Robertson, Geoffrey, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial, 38 Cornell Int'l L.J. 649 (2005).

41 See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Arts. 11(1), 46A(bis), June 27, 2014; List of Countries Which Have Signed, Ratified/Acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Feb. 8, 2018), available at https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights. See also Werle, Gerhard & Vormbaum, Moritz, Creating an African Criminal Court, in The African Criminal Court. A Commentary on the Malabo Protocol 3, 13 (Werle, Gerhard & Vormbaum, Moritz eds., 2017).

42 See, e.g., the decisions on non-compliance in Prosecutor v. Al Bashir, supra note 11.

43 I note with satisfaction that Draft Article 7 provisionally adopted by the International Law Commission in 2017 lists atrocity crimes in respect of which immunity ratione materiae shall not apply. Int'l Law Comm'n, Report on the Work of its Sixty-Ninth Session, at 176, UN Doc. A/72/10 (Sept. 11, 2017). In its commentary on Draft Article 7, the Commission notes that “there has been a discernible trend towards limiting the applicability of immunity from jurisdiction ratione materiae in respect of certain types of behavior that constitute crimes under international law.” Id. at 178–79, quoted in Bradley, Curtis A., Introduction to the Symposium on the Present and Future of the Foreign Official Immunity, 112 AJIL Unbound 1, 2 (2018). Draft Article 7 has nonetheless been the subject of some controversy. See generally Symposium on the Present and Future of Foreign Official Immunity, 112 AJIL Unbound 1 (2018).

44 See, e.g., International Residual Mechanism for Criminal Tribunals, Assessment and Progress Report of the President of the International Residual Mechanism for Criminal Tribunals, Judge Theodor Meron, for the Period from 16 November 2017 to 15 May 2018, at para. 8, UN Doc. S/2018/71 (May 17, 2018). The Mechanism has, for example, adopted a judicial code of conduct in 2015 and, recently, a revision to that code to address alleged violations thereof. See International Residual Mechanism for Criminal Tribunals, Code of Professional Conduct for the Judges of the Mechanism, UN Doc. MICT/14/Rev.1 (Apr. 9, 2018).

45 Silvia Fernández de Gurmendi, President of the ICC, Keynote Remarks at Plenary Session of the 16th Session of the Assembly of States Parties to the Rome Statute on the Topic of the 20th Anniversary of the Rome Statute, New York (Dec. 13, 2017).

46 See generally, e.g., Panel of Independent Experts, Expert Initiative on Promoting Effectiveness at the International Criminal Court (Dec. 2014); ICC Press Release, Enhancing the Court's Efficiency and Effectiveness – A Top Priority for ICC Officials (Nov. 24, 2015). See also, e.g., Bosco, David, Discretion and State Influence at the International Criminal Court: The Prosecutor's Preliminary Examinations, 111 AJIL 395 (2017).

47 Compare, e.g., SC Res. 1966, Annex 1, Art. 8 (Dec. 22, 2010) with Law on Specialist Chambers and Specialist Prosecutor's Office, Arts. 2, 29, No. 05/L-053 (Aug. 3, 2015) (Kosovo).

48 See, e.g., Eurojust Press Release, 3rd EU Day Against Impunity (May 22, 2018), at http://www.eurojust.europa.eu/press/News/News/Pages/2018/2018-05-23_3rd-EU-Day-Against-Impunity.aspx.

49 I delivered remarks in this same vein in May 2018 at the UN Security Council Open Debate on International Law and the Rule of Law. See Security Council Meeting on Maintenance of International Peace and Security, SC, 8262d mtg., at 10, UN Doc. S/PV.8262 (May 17, 2018).

50 Cf. UN Secretary-General, Measuring the Effectiveness of the Support Provided by the United Nations System for the Promotion of the Rule of Law in Conflict and Post-Conflict Situations, at para. 68, UN Doc. S/2013/341 (June 11, 2013).

51 See, e.g., Parliamentarians for Global Action, PGA ICC Campaign for Effectiveness and Universality of the Rome Statute, at http://www.pgaction.org/campaigns/europe/campaigns/icc.

52 See Transparency International, Corruption Perceptions Index 2017 (Feb. 21, 2018), at https://www.transparency.org/news/feature/corruption_perceptions_index_2017.

53 See, e.g., UN Office on Genocide Prevention and the Responsibility to Protect, A Framework of Analysis for Atrocity Crimes: A Tool for Prevention (2014), available at http://www.un.org/en/genocideprevention/documents/publications-and-resources/Framework%20of%20Analysis%20for%20Atrocity%20Crimes_EN.pdf.

54 Justice Hassan B. Jallow, Prosecutor, UNICTR and UNMICT, Closing the Impunity Gap, at 6th INTERPOL International Expert Meeting on Genocide, War Crimes and Crimes Against Humanity, Kigali (Apr. 14–16, 2014).

55 See, e.g., Sikkink, Kathryn & Kim, Hun Joon, The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations, 9 Ann. Rev. L. Soc. Sci. 269, 280 (2013).

This article is written in the author's personal capacity. The author notes with gratitude the brilliant conceptual suggestions and editing by Willow D. Crystal and the thoughtful research and footnoting by Felipe Chahuan Zedan.

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