Non-Judicial Accountability

 

The role of non-judicial accountability mechanisms in implementing complementarity and closing the impunity gap
 
Based on the Rome Statute’s principle of complementarity, national mechanisms and institutions are of critical importance to addressing impunity worldwide. They retain the primary responsibility for dealing with crimes under international law while the ICC stands as a court of last resort. 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 to be dealt with through national jurisdictions. This increases the chances of international criminal prosecutions acting as a deterrent to high-level decision-makers and can provide redress for the greatest number of victims. However, it also risks the majority of alleged perpetrators – those at the mid- and lower-levels of responsibility – not facing any form of justice or accountability, since national systems in conflict and post-conflict situations often lack either the willingness or the ability, or both, to put in place the necessary accountability processes. In many situations, most if not all of those mid- and lower- level perpetrators fall into an “impunity gap”. This hinders the restoration of the rule of law and the achievement of sustainable peace since it sends the message that acts of violence will have no consequences, a particularly harsh message for victims of crimes left unresolved.
 
How to narrow this impunity gap has become an increasingly pressing question. From 2007-2008, with the financial support of the European Union, NPWJ carried out extensive research on the role that non-judicial, quasi-judicial and neo-traditional accountability mechanisms can play in ending impunity conflict, post-conflict and transition countries. Roundtable discussions and advocacy activities were held in a range of situations that had experienced conflict or widespread violence after which they had implemented a variety of accountability processes, including Pakistan, Sierra Leone, Fiji, Morocco and Iraq. The events brought together people with knowledge and practical experience 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 were organised in the following countries:

 
The results of these discussions and complementary research fed into the production of a global report entitled ‘Closing the Gap’, which analyses the potential role for non-judicial, quasi-judicial and neo-traditional accountability mechanisms to contribute to implementing ICC complementarity, narrowing the impunity gap and promoting the rule of law. Closing the Gap was publicly launched in June 2010 at the ICC Review Conference in Kampala. It is intended as a lobbying and advocacy tool for the promotion of a range of accountability mechanisms, and a contribution to evolving considerations of the interplay between different mechanisms and their contribution to more effective accountability for war crimes, crimes against humanity and genocide.
Closing the Gap analyses systematically, within a consistent framework, how non-judicial accountability mechanisms work in practice in a variety of countries, and what impact they have had or could have. It identifies how the components of various accountability mechanisms relate to their objectives and provide examples for future reference in other countries.
The report’s analysis looks at the following common objectives for accountability processes and how these objectives are or are not met in the course of the implementation of processes in various situations.
 
Closing the Gap – Download the full report
 
Closing the Gap finds that non-judicial, quasi-judicial and neo-traditional accountability mechanisms are often designed without sufficient consideration of how they will contribute to ending impunity and promoting the rule of law in their own unique context. There is often a lack of consideration of how they interact with formal judicial institutions - non-judicial mechanisms can contribute to the mandate of judicial bodies but they also often have limitations that hinder collaboration. This lack of interaction however can inhibit the exchange of experiences, policy priorities and information, which prevents growth of capacity, political will and knowledge on how to implement ICC complementarity, narrow the impunity gap and promote the rule of law. 
 
Based on the findings of Closing the Gap, 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.
 
Research methodology
 
In researching Closing the Gap, NPWJ addressed three categories of variables about accountability mechanisms used or foreseen in a variety of countries. The first category of variables were the contextual factors or “external components” surrounding the establishment or operations of the accountability mechanism, for example:
 

  • whether there had 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 had gone by since the crimes were committed or whether they were ongoing;
  • whether there had been an official amnesty;
  • what sort of laws existed, if any, to address the crimes; and
  • whether “external” accountability systems were involved and, if so, to what extent.

 
The second category of variables related to the design of accountability mechanism(s), including the ingredients or “internal components” of the mechanism, for example:
 

  • who selected the members and with what method;
  • could the mechanism recommend prosecutions;
  • did it hold public hearings and/or closed hearings;
  • did it have subpoena powers;
  • did it work mainly in the capital city of the country or did it have regional or itinerant components;
  • what sort of outreach strategy did it have, if any;
  • dis the mechanism have a limited life span; and
  • what were the sources of funding.

 
The third category of variables related to the objectives – some stated and some un-stated, some pro-accountability and some pro-impunity – that these mechanisms were designed to achieve. For example:
 

  • to (re-)establish confidence in the rule of law;
  • to provide redress for victims;
  • to bring either individuals or systems/institutions to account;
  • to prevent the involvement of the courts;
  • to close a chapter of history;
  • to prevent the repetition of the crimes;
  • to insulate current and future governments from other claims from victims; and
  • to determine who should be excluded from running for public office.

 
By exploring the variables and the results of each of the accountability mechanisms assessed, the report analysises which “external components” and which “internal components” have the potential of achieving which results.
 
Related activities: