Analysis of the role of Non-Judicial Accountability Mechanisms: complementarity and the impunity gap
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. As such, non-judicial, quasi-judicial and neo-traditional accountability mechanisms play an important role in conflict, post-conflict and transition countries, but can be designed and operated without sufficient consideration on their potential to contribute to the implementation of ICC complementarity and promotion of the rule of law. 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. 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 becoming increasingly important to give support to the practical operation of ICC complementarity and to assess whether, how and to what extent other accountability mechanisms are capable of contributing to its implementation. This is particularly relevant in light of moves in recent years to limit people tried in international criminal mechanisms to “those who bear the greatest responsibility”, leaving those with lesser degrees of responsibility either to national jurisdictions, or to some other form of accountability. This increases both the chances of formal international criminal prosecutions acting as a deterrent to high-level decision-makers elsewhere as well as the chances of providing redress for the greatest number of victims. However, it risks the majority of alleged perpetrators not facing any form of justice or accountability, which can be detrimental to the credibility of the process, and hence to the restoration of the rule of law and the achievement of sustainable peace. How to narrow this “impunity gap” has become increasingly pressing.
NPWJ’s specific objectives are to contribute to the effectiveness of national accountability mechanisms in implementing ICC complementarity; and to promote local efforts to narrow the impunity gap designed to strengthen the rule of law, including through more effectively designed and operated non-judicial, quasi-judicial and neo-traditional accountability mechanisms. An important component of these two objectives is to assess how such mechanisms could or should interact with international criminal proceedings.
To that end, roundtable discussions and advocacy activities are being organised in several countries, including Pakistan, Sierra Leone, Fiji, Morocco and Iraq, 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.
Roundtable discussions and advocacy activities are being organised in the following countries:
The results of the discussions will feed into the production of a Global Report analysing the potential role for non-judicial, quasi-judicial and neo-traditional accountability mechanisms in contributing 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.
By raising questions systematically within a consistent framework to analyse the answers on how accountability mechanisms used or foreseen in a variety of countries work, and what impact they have had or could have, the Global Report is designed to identify how the ingredients and components of various accountability mechanisms relate to their declared and/or non-declared objectives and provide examples for future reference in other countries.
The Global Report will address three categories of variables about accountability mechanisms used or foreseen in a variety of countries. The first category of variables relates to the contextual factors or “external components” surrounding the establishment or operations of the accountability mechanism, for example:
· 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;
· whether “external” accountability systems are involved and, if so, to what extent.
The second category of variables relates to the design of accountability mechanism(s) in theory and in practice, including the ingredients or “internal components” of the mechanism, for example:
· 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;
· does the mechanism have a limited life span;
· what are the sources of funding.
The third category of variables relates to the stated and un-stated objectives these mechanisms were designed to achieve, for example:
· 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.
It is anticipated that the elaboration and analysis of the variables and the results of each of the accountability mechanisms assessed will allow an analysis of which contextual elements or “external components”, together with which ingredients or “internal components”, have the potential of achieving which results.
The Global Report will focus on five countries selected as case studies, where consultations are being held, namely Afghanistan, Fiji, Iraq, Pakistan, Sierra Leone and the Maghreb sub region (with a focus on Algeria and Morocco). It will also include an analysis of several other countries, which are in the process of being identified but which will likely be selected from the following: Angola, Argentina, Australia, Bosnia, Cambodia, Central African Republic, Chile, Colombia, Congo, Cote d’Ivoire, Croatia, Germany, Guinea, Indonesia, Kosova, Liberia, Nicaragua, Rwanda, Serbia, Somalia, South Africa, Sri Lanka, Sudan, Tunisia, Uganda, Vietnam, the former Yugoslavia and processes in Former Communist Eastern Europe after the Fall of the Berlin Wall (e.g. Czechoslovakia).
