“Complementarity and the impunity gap: the role of non-judicial,
quasi-judicial and neo-traditional accountability mechanisms”
Background concept note
The international criminal justice system operates according to the principle that there is individual criminal responsibility for the commission of war crimes, crimes against humanity and genocide. The most recent codification of these crimes can be found in the Rome Statute for the International Criminal Court, which reflects customary international law at least as of 1998, if not before. All States have an obligation either to prosecute individuals suspected of having committed such crimes or to extradite them for prosecution elsewhere, either because a State has become a party to a treaty that establishes that obligation, such as the Geneva Conventions (1949) and their Additional Protocols (1977), or through customary international law that is applicable to all States.
The Rome Statute provides a framework within which States Parties to the Rome Statute have agreed to establish an institution that can assist in the process of addressing crimes under international law, namely the International Criminal Court. The Rome Statute is founded on complementarity: the ICC can only act where States are unwilling or unable genuinely to investigate and prosecute crimes under its jurisdiction. The basis of this principle is that those crimes should be addressed at a national level wherever possible, with the ICC acting as a catalyst, as a guardian and as a last resort.
In addition, the ICC will only have jurisdiction over crimes committed in the territory of a State Party, unless a State that has not ratified the Statute refers itself to the ICC, or the Security Council makes a referral under Chapter VII of the UN Charter. Although non-States Parties are not otherwise subject to the jurisdiction of the ICC, the Rome Statute nevertheless provides a useful starting point for all States in relation to their obligations under general international law. Since the crimes outlined in the Rome Statute are crimes under customary international law, all States have an obligation either to prosecute individuals suspected of having committed such crimes or to extradite them for prosecution elsewhere, whether they are parties to the Rome Statute or not.
In addition to preventing impunity for violations of international criminal law, the responsibility for addressing violations of human rights lies with each State, whether through national prosecutions or through some other mechanism. In this context, the role of national mechanisms and institutions is of critical importance to addressing impunity worldwide, as the impetus and responsibility for dealing with crimes under international law must, in the first instance, lie at the national level for all States, whether parties to the Rome Statute or not. Thus non-judicial, quasi-judicial and neo-traditional accountability mechanisms play an important role in conflict, post-conflict and transition countries, aiming to promote peace, justice and reconciliation by narrowing the impunity gap through individual or collective accountability for war crimes, crimes against humanity and genocide.
However, formal judicial institutions sometimes claim to be mindful of other accountability mechanisms without fully understanding the potential they may have for contributing to their own mandate, and without appreciating their limitations. Similarly, accountability mechanisms are sometimes designed and operated without sufficient consideration as to whether, how and to what extent they can contribute to the implementation of ICC complementarity and promote the rule of law. The lack of interaction between institutions and individuals can inhibit the exchange of experiences, policy priorities and information, which prevents growth of capacity, political will and knowledge on how to integrate efforts to implement ICC complementarity, narrow the impunity gap and promote the rule of law.
It is therefore becoming increasingly important to give support to the practical operation of ICC complementarity and to promote local efforts to narrow the impunity gap designed to strengthen the rule of law, including an assessment of whether, how and to what extent other accountability mechanisms could or should interact with international criminal proceedings.
Recognising the significance of these issues, particularly at a time when the international community is increasingly debating how to address impunity in various situations, No Peace Without Justice (an international NGO), PILDAT (from Pakistan) and Manifesto 99 (from Sierra Leone) are cooperating in a 12-month project designed to take stock of the realities on the ground and ensure that discussions on these issues are shaped by the thoughts and experiences of actors with direct experience in non-judicial, quasi-judicial and neo‑traditional accountability mechanisms, particularly in conflict, post-conflict and transitional settings. The specific objectives of this project are to contribute to the effectiveness of national accountability mechanisms in implementing ICC complementarity, including through more effectively designed and operated non judicial, quasi-judicial and neo traditional accountability mechanisms, thereby promoting positive complementarity through more effective integration of the roles of formal judicial institutions and non-judicial, quasi-judicial and neo-traditional accountability mechanisms.
To that end, roundtable discussions are being organised to bring together those people with knowledge, experience and interest of the realities on the ground, first to identify what justice or accountability processes the country has experience with; and second, what systems are there or have there been to address accountability. An important component of these questions are the contextual factors surrounding the establishment or operations of the accountability mechanism, such as:
● whether there has been a change of leadership in the area/country and its impact, if any, on the accountability mechanism;
● what percentage of the population was affected by the crimes to be addressed through the accountability mechanism;
● how many years have gone by since the crimes were committed or are they ongoing;
● has there been an official amnesty;
● what sort of laws exist, if any, to address the crimes.
The information gathered and elaborated in response to the above will form the backdrop for participants in the roundtable discussions to discuss and debate the following types of questions about various non-judicial, quasi-judicial or neo-traditional accountability mechanisms:
● what are the ingredients and components of the mechanism, such as:
who selects the members and with what method;
can they recommend prosecutions;
does it hold public hearings and/or closed hearings;
does it have subpoena powers;
does it work mainly in the capital or does it have regional or itinerant components;
what sort of outreach strategy does it have;
● what were these mechanisms designed to achieve, such as:
confidence in the rule of law;
redress for victims;
individual or systemic accountability;
preventing the involvement of the courts;
"closing the chapter";
preventing repetition of the crimes;
insulating current and future governments from other claims from victims;
determining who should be excluded from running for public office;
● does the mechanism have a limited life span?
● was it intended to comply with rule of law?
● was the rule of law part of its purpose?
● did the mechanisms achieve what they were meant to or did they achieve something better or worse?
● did the mechanisms work? If so, how? If not, why not?
● what impact did the mechanisms have on victims and on the population in general?
The accountability mechanisms which may be discussed in the context of Pakistan include the Jirga system in the tribal areas of Pakistan such as the Federally Administered Tribal Area (FATA) in the North-western part of Pakistan; Punchayets in many rural areas of Punjab and Sindh provinces; and the Sardar-based accountability system in some parts of Balochistan, Sindh and southern Punjab.
It is anticipated that the elaboration and analysis of the answers to these questions will allow the identification of how the ingredients and components of the various accountability mechanisms relate to their explicitly declared, and/or non-declared objectives, and provide examples for future reference to other countries, such as in order to promote the rule of law, X, Y and Z have been useful, or not useful; in order to produce reconciliation, X, Y and Z were useful, or not useful; and so on.
The results of the discussions will feed into the production of develop a Global Report on whether, how and to what extent non-judicial, quasi-judicial and neo-traditional accountability mechanisms have, could or should contribute to implementing ICC complementarity, narrowing the impunity gap and promoting the rule of law rather than provide an alibi for impunity. The Global Report is designed to be a lobbying and advocacy tool and an impetus for more rigorous consideration of the interplay between different mechanisms and their potential contribution to integrated -and more effective accountability for war crimes, crimes against humanity and genocide.
