Transitional Justice
(complementarity and the impunity gap)
In periods of transition, particularly where there have been widespread violations of human rights or after an armed conflict characterised by violations of international criminal law, there is a need to address the wrongs of the past, in order to recognise the suffering of the victims, to promote re‑establishment of the rule of law and to maximise the potential for reaching sustainable peace, which is crucial for economic and developmental progress.
In this respect, accountability mechanisms have an important role to play during a reconstruction or transitional phase, by providing a framework within which past wrongs can be identified, discussed and dealt with. There are many ways societies can address the need for accountability, including through judicial, non‑judicial, quasi-judicial or neo-traditional methods at the local, national or international level, or combinations thereof. The potential and limitations of each accountability mechanism will be important in determining which accountability mechanism to use, be it judicial or otherwise in nature; in determining whether the appropriate approach is local, such as the Rwandan Gacaca system; national, such as national prosecutions or truth commissions; or international, such as the International Criminal Court or the Special Court for Sierra Leone; and in developing principles for how it will operate.
Particularly where violations have been widespread, it may be appropriate for there to be more than one type of accountability mechanism, depending on the needs and aspirations of the society in question, the number of alleged perpetrators and their degrees of responsibility for the violations as a whole, and the gravity and severity of the crimes in question. Where more than one mechanism is selected, the various accountability mechanisms should operate in harmony, with each making a meaningful contribution to the success not only of its own endeavours, but also to other mechanisms set up to deal with the same situation.
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 fulfilment of each State’s responsibility to address these issues and to promote of 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 end impunity and promote the rule of law.
To address these gaps, there is a pressing need 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. This is the most effective way to enhance the effectiveness of efforts to ensure accountability, including through more effectively designed and operated mechanisms that promote, where appropriate, more effective integration of the roles of formal judicial institutions and non-judicial, quasi-judicial and neo‑traditional accountability mechanisms.
Three basic questions can be posed and answered by actors with experience in these issues to address this need:
(A) What is the current situation in each country and generally in the region;
(B) What should the situation in the country and the region be in the next 3-5 years;
(C) What steps need to undertaken and by whom including participants to get from point (A) to point (B).
To facilitate this process, there is an initial need to identify and analyse the contextual factors surrounding the establishment or operations of any given accountability mechanism, including:
Ø whether there has been a change of leadership in the area/country and its impact, if any, on the accountability mechanism;
Ø what percentage of the population was affected by the violations to be addressed through the accountability mechanism;
Ø how many years have gone by since the violations were committed or are they ongoing;
Ø has there been an official amnesty;
Ø what sort of laws exist, if any, to address the violations.
These contextual elements form a useful backdrop for the elaboration of answers to the following types of questions about various non-judicial, quasi-judicial or neo‑traditional accountability mechanisms:
v what are the ingredients and components of the mechanism, such as:
Ø who selects the members and with what method;
Ø can they recommend prosecutions;
Ø does it hold public hearings and/or closed hearings;
Ø does it have subpoena powers;
Ø does it work mainly in the capital or does it have regional or itinerant components;
Ø what sort of outreach strategy does it have;
v what were these mechanisms designed to achieve, such as:
Ø confidence in the rule of law;
Ø redress for victims;
Ø individual or systemic accountability;
Ø preventing the involvement of the courts;
Ø "closing the chapter";
Ø preventing repetition of the crimes;
Ø insulating current and future governments from other claims from victims;
Ø determining who should be excluded from running for public office;
v does the mechanism have a limited life span?
v was it intended to comply with rule of law?
v was the rule of law part of its purpose?
v did the mechanisms achieve what their objectives or something better/worse?
v did the mechanisms work? If so, how? If not, why not?
v what impact did the mechanisms have on victims and on the population in general?
A comparative analysis of these issues, particularly when undertaken on a global level, 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 whether and how they can provide examples for future reference by other societies.
This process is also the starting point for an assessment of whether, how and to what extent national accountability mechanisms could or should interact with international criminal proceedings, which is becoming increasingly critical due to the establishment of a permanent International Criminal Court. The Rome ICC 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. As such, there is a need for positive complementarity, namely to ensure that national systems have the capacity to deal with serious crimes under international law. In addition, even in cases where the ICC has jurisdiction, the number of people it could potentially prosecute will be limited, thereby running the risk that numerous alleged perpetrators will not face any form of justice or accountability, which can be detrimental to the restoration of the rule of law and the achievement of sustainable peace. How to narrow this “impunity gap” has become increasingly pressing, particularly since the ICC Prosecutor has indicated a policy focus only on those who bear the greatest responsibility.
The results of this comprehensive global analyses will contribute to the effectiveness of national accountability mechanisms in implementing ICC complementarity; and promote local efforts to narrow the impunity gap designed to strengthen the rule of law, including through more effectively designed and operated national accountability mechanisms, thereby promoting positive complementarity by more effective integration of the roles of formal judicial institutions and non-judicial, quasi-judicial and neo-traditional accountability mechanisms
