Impunity in international law and combating against it

Sohrab Mabadi

In recent decades, a lot of issues in law are not anymore national (or
domestic). The law is supposed to facilitate not only social relationships
into the borders of countries but also it feels such a responsibility to make
the life easier, more pleasant and delightful for people and other living
being in the world.

Human Rights and its norms, disregarding any important theoretical and
philosophical differences, are one of those instruments that are used as a
start point to achieve that goal. Some violations of human rights are
considered as universal matters. The violator must not be free of charge
from what they have done.

In this writing, we will discuss one of the most important problems to

respect and fulfill the fundamental rights and freedoms of people:
impunity. Part one considers introductory entrance into the meaning and
concept of impunity while part two shortly works on universal jurisdiction
in relation to impunity. Therefore, it remains for part three to look at the
concept of "duty to prosecute"due to influence of impunity and its
importance.

Part One: The concept

There is a deep link between notions such as rule of law and

accountability with impunity, immunity, amnesty and pardon. The
formersare considered to pave the way of fulfillment of human rights and

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democracy while the latters are the terms remained in international law
discourse from the principle of sovereignty and mostly viewed in breach of
human rights.
We can refer to impunity as "the total absence of accountability and [it] is
its antithesis". (Matwijkiw, 2009, p. 1)International human rights tribunals
have defined impunity as states' failure to prosecute any violation of the
fundamental rights of individuals protected by human rights treaties.
(Aldana-Pindell, 2004, p.607)
Impunity could be categorized de facto (this is the usual form: the state's
judicial machinery is simply manipulated to ignore the crime) or de jure
(the more notorious form: the state adopts formal legal means of
exempting those concerned from legal liability, for example, through an
amnesty). (Rodley S., 2000, p. 14) Ithas been defined as the impossibility,
de jure or de facto, of bringing the perpetrators of human rights violations
to account. (Eide, 2000, p. 1)

Three interrelated facets of impunity has been identified: (1) structural

impunitythe institutional structures of the state, such as constitutional
authority conferred on the army for internal security. (2) strategic
impunityspecific procedures and structures adopted to prevent criminal
investigation or prosecution, such as tampering with evidence and
thwarting investigation. and (3) political/psychological impunity
manipulation of fear, distrust, and isolation among citizens. (Opotow,
2001, p. 151)

In broad outline, we can talk about two forms of impunity. The impunity of
human rights abuses authors and the impunity for severe and permanent
violations of economic, social and cultural rights. (Rojas Baeza, 2000, p.
28)It worth to say that although economic, social and cultural rights are
known as human rights of people from the very beginning of establishing
the notion of human rights into international law and universal
instruments, state always use some kind of hidden argument for justifying
the impunity and immunity through using the word "progressive".

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Impunity is often linked to the denial of effective remedies for victims. As
early as the adoption in 1948 of the Universal Declaration of Human
Rights, the right to effective remedy for victims of human rights violations
has been held up as a basic right, but it is in many of the worst cases
often neglected or only partially met. Prevention of impunity is in practice
a necessary element in ensuring effective remedies for the victims of
grave violations. (Eide, 2000, p. 1)

During the last decade, significant efforts have been made to prevent
impunity. One major purpose is to reduce the likelihood of massive human
rights violations.Impunity for gross human rights abuses committed or
condoned by states constitutes one of the most persistent human rights
violations in many parts of the world. In recent reports, human rights
groups have highlighted impunity as one of the worst continuing human
rights problems. Similarly, inter-governmental human rights bodies have
reported that impunity, and the lack of trust in the rule of law generated
by it, continue to be among the most serious human rights challenges.
(Aldana-Pindell, 2004, p. 606)

The problem of impunity will appear its face more when states are
involved in violation of one of the universal norms and values that are
supposed to be defended through the terms jus cogens obligations of
states. As it is stated,Impunity for jus cogens crimes (aggression,
genocide, crimes against humanity, war crimes, slave-related practices,
and torture)is not permitted de jure; nor should it be permitted de facto.
Furthermore, it is practically impossible to obtain long-lasting peace in
circumstances where an impunity policy for jus cogens crimes is
implemented. (Matwijkiw, 2009, p. 2)

The International Covenant on Civil and Political Rights of 1966 declares

blanket amnesty laws and pardons are inconsistent with the Covenant
because they create a climateof impunity and deny the victims this right
to a remedy. (Opotow, 2001, p. 150) The human rights committee
mentioned the words "blanket amnesty" and "climate of impunity"
because these words can work against the whole human rights system

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and give the states an umbrella to violate human rights of people severely
and use this umbrella for escaping the responsibility. It brings them
freedom of committing gross violation of human rights.Gross violations of
civil and political rights should be prosecutable for "as long as necessary"
according to the Committee. In the case of Croatia, it recommended that
serious human rights violationshould not be amnestied. (Seibert-Fohr,
2002, p. 339)

The two main arguments raised against amnesties for human rights
violations are based on the right of the victims to an effective remedy
(article 2 para. 3 of Covenant) and the duty to respect and ensure the
Covenant rights (article 2 para. 1). As the Committee in its General
Comment on article 7 and the Concluding Observations on Chile pointed
out:

"Amnesties are generally incompatible with the duty of States to

investigate such acts; to guarantee freedom from such acts
within their jurisdiction; and to ensure that they do not occur in
the future."

According to the Committee, impunity as a result of an amnesty

undermines efforts to establish respect for human rights. (Ibid, p. 341)

We can also follow the importance of combating with impunity through

some acts of formal authorities of United Nations or international tribunals
and courts in their formal possessions.On 7 July 1999, the Special
Representative of the Secretary-General attached a disclaimer to the
Sierra Leone Peace Agreement saying:

"The United Nations interprets that the amnesty and pardon in

article nine of this agreement shall not apply to international
crimes of genocide, crimes against humanity, war crimes, and
other serious violations of international humanitarian law". (Gitti,
1999, p. 79)

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It is worth remembering the explanation given by the President of the ICTY
for the judges' decision not to grant immunity to low-level perpetrators in
exchange for their testimony against higher-level officials:

"The persons appearing before us will be charged with genocide,

torture, murder, sexual assault, wanton destruction, persecution
and other inhumane acts. After due reflection, we have decided
that no one should be immune from prosecution for crimes such
as these, no matter how useful their testimony may otherwise
be". (Ibid, p. 77)

Part Two: Universal Jurisdiction

Because of their nature, jus cogens crimes will mostly are committed in a
systematic way. Committing such crimes needs to use governmental
system or other similar systems using political,economic and cultural
power as same as army and police forces. As a result, preventing and
punishing such crimes need to have a strong universal system which can
go beyond the sovereignty of states. As we know this system is designed
through international tribunals and courts, mainly International Criminal
Court (ICC).

With special jurisdiction to accept especial crimes (namely jus cogens

crimes), ICC is determined to punish individuals who commit such crimes
using their power and competence while being in office as political, legal
or other governmental authorities.The decision to establish a permanent Court (ICC)
is the expression of the need to respond to crimes that are of concern to the international
community as a whole and whose treatment cannot be left to the unbridled freedom of the
States. (Ibid, p. 79)

ICC is expression of universal jurisdiction aimed to control states act in the era that
sovereignty will confront with universal norms and principles that are accepted by all
peopleand states (both through treatyand non-treaty systems). It is supposed to impose on
states a competence to prosecute and judge such important crimes as a third and impartial

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party between states, and what they have done as jus cogens crime(s), and individuals, as
citizens who now in the modern ages are, or are known to be, rightful
living being and citizens instead of duty based ones.

In so doing, ICC not only will combat with such crimes but it will
necessarily need to combat with every principle or rules and their
consequences which will nullify the goal and aim of establishing such
court and human rights instruments namely amnesty, immunity and
impunity as a results of state sovereignty principle.

To commit crimes with impunity, heads of state have historically relied on

the customary international-law principle of state immunity, ineffective
domestic court systems, and weak international institutions. It seems,
however, that the rules have changed. (Mandhane, 2011, p. 163) But due to rules
"inability and "unwillingness", that their definitions and aspects do not include in objectives
of this essay, the ICC, in the fight against impunity, will only be able to serve as a court of
last resort where justice cannot be achieved on a national level. These rules are known as
Complementarity principle. (Benzing, 2003, p. 599) This Complementarity is designed to
find a balance between the sovereign right of all states to exercise criminal jurisdiction over
acts within their jurisdiction and the interest of the international community in the effective
prosecution of international crimes, the avoidance of impunity and the deterrence of future
crimes within the jurisdiction of the Court. (Ibid, p. 632)

It can be said here that in the holistic view to the international community approach to
impunity and amnesty for sever and serious crimes used by states there is an attempt to
identify the approach disapproving amnesties for serious international
crimes with legalism. (Orakhelashvili, 2008, p. 222) as good examples,it
is helpful to mention shortly about some courts and their approach about
international jurisdiction in case of amnesty and impunity. One the most
important criminal case before ICC is the case known as Omar Al Bashir case. After ICC
issued a warrant for head of state of Sudan for committing crime against humanity. Omar Al
BAshir said ICC can eat its warrant. The summary could be the ICC warrant for Al
Bashir sends a clear message that no one who commits an international
crime within the jurisdiction of the ICC will now enjoy impunity. In support of
this view, it can be argued that the ICC confirmed that Al Bashir's official capacity as a sitting

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head of state does not exclude his criminal responsibility, nor does it grant him immunity
against prosecution before the ICC.If this would apply equally to all heads of states (not to a
certain category of heads of states), there is no doubt that this is a significant development in
holding everyone accountable for international crimes. In this respect, this would be a crucial
step toward challenging impunity. (Ssenyonjo, 2009, p. 417- 418)

ICC is not the only organization that took such a view about international jurisdiction; also,
some other ad hoc tribunals have taken such an approach. The Special Court for Sierra
Leone adopted the same approach with regard to international crimes.This
Special Court stands to reason that a State cannot sweep such crimes
into oblivion and forgetfulness which other States have jurisdiction to
prosecute by reason of the fact that the obligation to protect human
dignity is a peremptory norm and has assumed the nature of obligation
ergaomnes.(Orakhelashvili, 2008, p. 225)

The issue will not end here.There are some national courts which have
considered it, regarding international principles and instruments on
impunity and its function against human rights, as inapplicable law when
works against human rights and basic freedoms of people.

The Honduran Supreme Court, for example, found that an amnesty decree
did not apply to illegal detention and attempted murder committed by
security agents in the context of a number of forced disappearances and
assassinations. Lower courts in Chile and Peru have come to the same
conclusions, based in part on international law obligations to investigate
and prosecute violations. In the Chilean case of Uribe Tamblay and others,
a Chilean court found that the Geneva Conventions of 1949, the
Convention Against Torture, and the International Covenant on Civil and
Political Rights all prohibited application of the 1978 Chilean amnesty
decree. (Roht-Arriaza, 1996, p. 94)

Part Three: Duty to prosecute

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To make the universal jurisdiction effective in order to serve human rights and fight against
jus cogens crimes, international community needs to recognize one important obligation on
states and try to make states fulfill it. The Duty to prosecute means every state and
international courts and tribunals have the right to prosecute head and/or authorities of
another states who have committed juscogens through known law and regulation of
international law, international human rights law, and international humanitarian law.

Until now, however, State practice has hardly confirmed the existence of a duty to prosecute.
(Gitti, 1999, p. 75) However, ICC has considered it using complementarity principle as a
starting point for legalization of such a duty. The complementarity regime of ICC is designed
to protect two interests: first: the sovereignty of both State parties and third states. The
second interest, potentially rivaling with the concept of state sovereignty, is the interest of the
international community in the effective prosecution of international crimes, the endeavor to
put an end to impunity, and the deterrence of the future commission of such crimes. (Benzing,
2003, p. 595)

Indeed, the Preamble to the Statute [Rome Statute] reads as follows:affirming that the most
serious crimes of concern to the international community as a whole must not go unpunished
and that their effective prosecution must be ensured by taking measures at the national level
and by enhancing international co-operation. Determined to put an end to impunity for the
perpetrators of these crimes and thus to contribute to the prevention of such crimes. Recalling
that it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes.'' (Gitti, 1999, p. 75)

Once international law recognizes that certain crimes genocide, torture,

crimes against humanity, war crimes are outlawed in the community
interest and that their prosecution is required under the overriding jus
cogens, peremptory norms prevail over the very acts authorizing
amnesties contradicting these norms. An amnesty for international crimes
would contradict the peremptory norm requiring the prosecution and
punishment of war criminals, and hence it would be null and void.
(Orakhelashvili, 2008, p. 224) This duty [duty to prosecute] requires states
to conduct an effective criminal investigation and prosecution with the
aim of punishing those responsible for right to life and humane treatment

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violations, whether the crime was committed by state agents or private
actors. (Aldana-Pindell, 2004, 607)

In addition to duty to prosecute for states and international community members, there are
series of norms by which international community try to serve victims of gross violence of
human rights. The international victims' rights norms, along with the duty to
prosecute, apply equally to states whose criminal justice systems respond
commonly with impunity to state-sponsored crimes and states whose
record of impunity is less widespread.In order to curtail impunity,
international victims' norms propose to improve the effectiveness of
prosecutions for state-sponsored crimes by limiting prosecutorial
discretion while increasing victims' contributions to prosecutorial decision
making.

Again, we can find an approach to this duty in international courts and

tribunals. The international legal trend, however, has been to emphasize
the importance of prosecuting gross human rights violationsand to narrow,
both procedurally and substantively, the instances where immunity and
amnesties are validated.Specifically, the decisions of treaty-based human
rights tribunals and provisions in binding and non-binding international
human rights documents have evolved to consider effective prosecutions
an essential part of the remedy states must guarantee victims of right to
life or humane treatment violations. States not only have a duty to the
public but also to the victims to prosecute grave human rights abuses.
(Ibid, p. 611)

Not only duty to prosecute involves the states and international courts
and tribunals but also it may include the individuals through victims'
norms. Treaty-based international human rights tribunals have interpreted
certain provisions in comprehensive human rights treaties to prescribe a
victims' right to prosecutions. These provisions codify the right to access
justice or to be heard and the right to obtain an effective remedy. The
decisions interpreting these provisions have declared that states must
conduct effective prosecutions to remedy harm to victims resulting from
right to life and humane treatment violations committed against them,

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whether by the state or by private actors. These cases have been decided
by the European and American regional human rights systems, and a few
by UN treaty-based bodies.(Ibid, p. 622)

In its recent jurisprudence (the 1999 Colombia Report), the Inter-American Court of Human
Rights . . . has held that the States Parties have the duty "to investigate human rights
violations, prosecute those responsible and avoid impunity"; impunity that has been defined
as "the lack of investigation, pursuit, detention, prosecution and punishment of those
responsible for human rights violations". States must employ "all available legal means in
order to avoid this kind of impunity which allows for the chronic repetition of human rights
violations and leaves the victims and their families powerless". "States Parties, thus, cannot
invoke the application of their domestic law, in this case amnesty law, in order to disregard
their obligation to ensure the full and proper functioning of justice for the victims." (Gitti,
1999, p. 73)

The Inter-American Court of Human Rights also declared that the duty to conduct
an effective prosecution is independent and separate from the state's
duty to repair. The Inter-American Court explained that were states to
leave unpunished an offense at the request of the victim, they ultimately
would be violating their duty to guarantee the free and full exercise of the
rights of all persons under their jurisdiction. (Aldana-Pindell, 2004, p. 621)

Part Four: Suggestions and conclusion

Because combating against impunity needs a jurisdiction beyond the national jurisdictions of
states it is a complicated matter. Therefore, we need to answer it by using a system which
works efficient and be binding for states. This system as it is obvious per se cannot be only a
legal system. However, here we just consider legal ways, as we supposed to do so in these
pages.

Universal jurisdiction is the start point for combating impunity. If other states are able to
impose their jurisdiction to pursue jus cogenscrimes committed by other states and/or
authorities it may be known as we started the first step of fighting against impunity is such
important and unforgivable crimes. The ICC and some other tribunals have started it but it

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needs to be more recognized through states behavior to be a customary international law or
ergaomnes principle and norm.

Universal jurisdiction is good and seems to work. Nevertheless, every judicial decision needs
to be enforced. The way that the universal jurisdiction can enforce itself and combat against
impunity in jus cogens crimes is to have a power to prosecute perpetrators of such crimes.
This power will be given to the international courts and states courts to start the process by
their prosecutors and their investigations tools. To do so, it is necessary to give wider, does
not mean uncontrollable, power to the prosecutor of international courts such as prosecutor of
ICC.

In this regard, other organs and agency of United Nations can help and be more useful. For
instance, Human Rights Council, Security Council and even blue helmets can play better role.
All these changes need some essential changes in U.N system and functions, which are in
debate for years. These organs and agencies can play two kind of role. First, they hold the
position of international court and support it and when necessary act to enforce the judgment
against such perpetrators. Secondly, they can reaffirm and recognize the decision of national
court which pursued juscogens crime in a right basis in accordance with international law,
international human rights law, and international humanitarian law and in order to fulfill and
respect human rights of victims of such jus cogens crimes.

To sum this up, fighting against impunity although is mostly a non-legal title; it can be done
better using, empowering, and widely recognizing the rights to prosecute. Obviously, the
states are against this right and its consequences but it is the way to combat the old principle
of sovereignty and accordingly the impunity, immunity, amnesty and etc.

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