Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15^th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by the already existing concept of the Responsibility to Protect (R2P). R2P considers that the States have a primary responsibility to protect their own population against mass atrocities and the international community has also the responsibility to step in, if necessary. The R2P concept lays out different options available to the international community to put pressure on the State if it is unwilling to protect its own population. Similar options could be envisaged in the context of a duty to end impunity. Having said that, one cannot deny that R2P has its share of challenges and drawbacks and has often been subjected to criticisms. These include the fact that the R2P concept is not legally-binding and has been implemented with inconsistency, sometimes has even been abused. In addition to this, R2P is not specifically designed to end impunity for the perpetration of mass crimes as it makes little reference to the notion of accountability and only as a secondary purpose. Nevertheless, one could imagine that a similar structure to R2P could serve as a basis to a broad duty to end impunity having the primary objective of ensuring accountability and offering a wide range of measures to put pressure on States. A positive aspect of a structured framework for the duty to end impunity is that it would have clear legal bases and clear legal consequences.

The duty to end impunity could potentially be drawn from already existing legal obligations. The obligation to prosecute and to ensure accountability, broadly speaking, is underlying in International Law. One could find such obligations arising from the Genocide Convention or the Geneva Conventions, for example. These obligations would cover the accountability for genocide and war crimes and other conventions referring to the principle “aut dedere aut judicare” could also be applicable to a few specific acts falling under the scope of crimes against humanity, such as torture and other cruel, inhuman and degrading treatment. Likewise, issues related to these obligations to punish and prosecute arising from conventions have already been addressed in the case law. One could refer to the Genocide case before the International Court of Justice in 2007 and the case Belgium v. Senegal in 2012 before the same Court. This shows that there is a persistent obligation to ensure accountability for core international crimes in International Law although the States rarely face the consequences for not fulfilling this obligation.

The fact that the duty to end impunity could find legal bases in International Law means that mechanisms to ensure State responsibility could be triggered, including the whole set of possible measures that can be taken consistently with the Articles on the Responsibility of States for Internationally Wrongful Acts of 2001. Without going into too much detail, an approach based on State responsibility in the context of core international crimes may be difficult when the crimes are limited to the territory of one State with no injured State. In this regard, the possibility of using Article 48 should be explored further. Other forms of pressure on the State to fulfil its duty to end impunity may equally be envisaged, including, inter alia, countermeasures and sanctions taken by the Security Council or the States individually; diplomatic pressure, stigmatisation of the State at the international level or pressure from civil society, as demonstrated in South Africa. From the moment the duty to end impunity is recognised as an international obligation, many options may be considered to ensure compliance with this obligation.

More importantly, developing a duty to end impunity may be useful to include and synchronise the different approaches to responsibility for core international crimes towards the State, non-state actors and individuals. This would increase the efficiency of accountability measures in the same way that the R2P concept brings together a wide variety of measures and mechanisms to protect populations against mass atrocities. A question still remains: is the international community ready for a “duty to end impunity”? The solution to the lack of commitment of some States to end impunity may not be to impose an additional duty on top of existing obligations but to strengthen enforcement mechanisms to ensure compliance with these obligations.