26/03/2009 Legal Affairs and Human Rights
Strasbourg, 25.03.2009 – The dilemmas of temporary amnesties, the “turning point” in the fight against global impunity represented by the International Criminal Court, the impunity of Russian soldiers in Chechnya, and what to do when even the UN Security Council violates basic rights were among subjects tackled by parliamentarians, academics and experts during a major conference on impunity in Berlin on 23 March, organised by PACE’s Legal Affairs Committee and hosted by the German Bundestag.
Juan Méndez of New York’s International Center for Transitional Justice drew on his experience as the head of the Inter-American Human Rights Commission to outline how Latin American countries had dealt with impunity for major human rights violations in the 1970s. It was now “an emerging norm of international relations” that the international community would agree to step in when domestic jurisdictions were unwilling or unable to investigate, he said, and the advent of the International Criminal Court was a “turning point”. Amnesties to end conflicts – or “truth commissions” – need not mean that human rights violators escape punishment altogether, since with ingenuity it was possible to have both peace and justice.
Françoise Hampson, a human rights law professor at the University of Essex, said that impunity was able to develop when a gap between law and practice became generally accepted as part of the culture, for example soldiers or police who “cover up” for their buddies. Strictly speaking, “impunity” only occurs when a state accepts that human rights law applies in a given case, but says no violation took place. She called for greater efforts to “professionalise” the security services, and outlined new ways the European Court of Human Rights could tackle systemic practices which led to many similar violations, rather than case-by-case.
Vincent Berger from the Registry of the European Court of Human Rights drew on the Court’s case-law to give an overview of the causes of impunity, ranging from gaps in legislation to ineffective investigations and dysfunctional courts, over-long legal proceedings, states intimidating applicants or refusing to execute the Court’s judgments. Strasbourg could never be “a perfect bulwark” against impunity, he said, but it did what it could to protect human rights.
Tanya Lokshina from the Moscow office of Human Rights Watch said Chechnya provided “the starkest example of impunity one can possibly find”. Up to 5,000 people had disappeared there between 1999 and the present, yet only one single Russian serviceman had ever been convicted of abduction, she pointed out. There were now fewer abductions, but new abuses had evolved such as punitive torching of the houses of family members of alleged rebel fighters. Of the 83 rulings on Chechnya to date, in nearly every ruling the Strasbourg Court said Russia had failed to properly investigate. In non-Chechnya cases, however, there had been some progress, with Russia willing to adopt the measures called for by the Court.
Monica Macovei, a former Romanian Justice Minister, talked of how political corruption was going unpunished, and how those accused even appealed to human rights principles to protect themselves. “Politicians have the power in their hands, and when they feel endangered by investigations, they fight back.” She gave examples of ways in which “emergency” decrees were misused by politicians, public property moved mysteriously into private hands, high-profile corruption cases were endlessly postponed or headed off and immunity was improperly invoked. Highlighting the links between politicians, organised crime and business, she said some people were “submitting the institutions of their countries to their own interest”.
Dr Mark Livschitz, an anti-corruption lawyer based in Zurich, explained that only a tiny proportion of business corruption comes to light and successful prosecutions are only “the tip of an iceberg”. The main problem, he believed, was a corporate culture which tolerated corruption and the lack of resources to fight it, as well as political intervention and the trans-national nature of organised crime. He advocated incentivising businesses to set up their own procedures and carry out their own investigations, as is done in the US.
Professor Beate Rudolf of the Free University in Berlin spoke about impunity for violence against women. “Tolerating discriminatory violence brands a state deeply unjust and a society deeply unequal,” she said. Laws must be enacted, and enforced by judges and police, but public attitudes needed changing too: “If society does not condone this, people won’t do it.”
Professor Symeon Karagiannis of Strasbourg University tackled the question of how to curb international bodies when their decisions violated fundamental liberties – such as the UN Security Council’s blacklisting of individuals or organisations without the usual legal safeguards. In the absence of any judicial control, he suggested that at least the three Security Council states bound by the European Convention on Human Rights could cite their obligations to it when voting (or abstaining) in the Security Council. On the other hand, would they argue that maintaining international peace might sometimes involve violating the rights in the Convention? Comparing Strasbourg case-law with that of the EU Court of Justice, he concluded that “a little competition in how best to defend human rights is not such a bad thing”.
Nuala Mole, the Director of the AIRE centre in London who advises on cases before the European Court, asked whether European states could act with impunity when their soldiers were operating beyond Europe’s borders or for international organisations. The European Convention was not intended to exclude human rights violations perpetrated by European states “just because they happened to have marched their armies across borders to perpetrate them”, she pointed out. She cited two similar cases before the Strasbourg Court involving soldiers failing to warn children of unexploded mines – one where national troops were found in violation, while those acting for an international force were not accountable. New cases currently before the Court, involving people allegedly killed or injured in Iraq by British troops, would again pose this question. States were not usually trying to escape responsibility – since they were generally open to claims against their soldiers in national procedures – but seemed to fear being held internationally accountable.
Concluding the conference, Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, spelled out the work his office was doing to prevent impunity around the world for some of the worst crimes known to humankind. Referring to the Court’s most recent indited fugitive, he said it was the destiny of Sudanese President Omar Al Bashir to face justice. Parties to the ICC were under a legal obligation to arrest and surrender him to the Court, trace and expose his personal assets, and sever any non-essential contact with him. Strong leadership was needed to isolate Bashir and end his crimes. “Your voice can make a difference,” he told participants. “What is at stake is the life or death of 2.5 million people.”