The not so Universal Notion of Impunity in the UN Principles to Combat Impunity and in the Transitional Justice Model

Andrea TrigosoIntroduction

The UN principles to Combat Impunity established a universal model to fight against impunity in Transitional Justice societies. The question that this model rises is whether it is possible to have a universal notion of impunity and, therefore, a universal model to combat it.

The universal notion of the model is based on the idea of cosmopolitanism, which claims that there are moral obligations owed to all individuals based on humanity and that human beings from everywhere should be our primary concern. This concept is the foundation for contemporary human rights discourses that claim that all individuals are right bearers given their human nature, and also the rationale for the establishment of the International Criminal Court (ICC), whose Statute holds that there are atrocities that deeply shock the conscience of humanity and that concern the international community as a whole.

The UN principles to combat impunity adopted the idea of cosmopolitanism to develop the Transitional Justice (TJ) model that consists of four pillars  that are translated into four rights: the right to justice, right to truth, right to reparations, and right to new organized and accountable institutions. Thus, the idea of human rights as strong entitlements permeates this document, making sure that there are concrete rights whose protection can be enforced, and that in case of violations, the consequences can be effectively addressed.

Nevertheless, it is at least debatable that a universal model could apply to every TJ context. One of the angles to question this universality is the notion of impunity that is transversal to the four pillars and that the model presupposes is universal too. This post will briefly revise how impunity has been understood in the evolution of TJ, and the application of this notion in three specific TJ scenarios: The Truth and Reconciliation Commission in South Africa,(TRC), the Acholi rituals in Uganda, and in the normative framework of the ICC.

The question of Accountability

As a general understanding, impunity is the opposite of accountability. The question that follows is, what is accountability?

The UN principles to combat impunity define impunity as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account- whether in criminal, civil, administrative or disciplinary proceedings.”However, this broad concept of impunity is not the one that fostered the evolution of TJ and the debates around the fight against impunity.

When referring to the evolution of TJ, the discussion of impunity, as opposed to criminal justice, was at the center of the issue. The identification of the Nuremberg Trials, and the more contemporary international tribunals such as the ICC and the UN Ad-hoc tribunals for the Former Yugoslavia and Rwanda with the evolution of Transitional Justice are proof of that.

Moreover, the academic debate that shaped TJ in its origins, and that took place in the frame of the anti-impunity movement by Carlos Nino and Diane Orentlicher, was focused mainly on criminal accountability and the duty to punish.Consequently, despite the discussions of other measures in TJ, it appears that accountability, as opposed to impunity, has been mostly identified with criminal accountability, even for TJ purposes. Such identification results problematic at the moment of implementing mechanisms of TJ, in particular, when criminal accountability is affected in any manner.

Accountability in a domestic TJ mechanism

An example that illustrates the above-mentioned problematic definition of accountability in a TJ mechanism at a domestic level is the case of the South African Truth and Reconciliation Commission. There was a conditional amnesty scheme put in place that entailed the exemption of criminal responsibility when the perpetrators voluntarily decided to confess their actions before the commission. However, is it possible to conclude that the country did not deal with impunity?

From the notion of criminal accountability, the answer would be affirmative. Crimes that can be classified as core crimes under international law were subject to amnesty in South Africa, and thus no prosecution was put in place for those who received amnesty. Nonetheless, after the experience of the TRC and the conditional amnesty scheme, it is very difficult to conclude that there was no accountability at all.

The amnesty scheme required full and public disclosure of the perpetrator of their political crimes, which entailed a call to account that required applicants to provide explanation of their past conduct in a public forum where they were confronted with evaluation of their conduct as wrong. This process can be considered a “rite of passage” into citizenship for those who wanted to commit to a new political order, where the full disclosure turned the conditional amnesty into a tool for accountability, although this latter remained partial.

Besides thispolitical individual accountability, there was also a  collective accountability in South Africa, because the crimes committed were placed as contributions to collective political endeavours, which involved the institutions behind the perpetrators that provided them with the legitimating framework for the crime, and that also bear political responsibility for the perpetrator’s actions. Therefore, the conditional amnesty scheme in South Africa implied an individual and collective accountability process, that had a political nature. This political accountability escapes to the identification of impunity as a lack of criminal accountability or any other accountability contained in the UN principles to combat impunity. It also  adds one more layer to the discussion of a universal concept of impunity applicable to TJ contexts.

Accountability in community-based in TJ mechanism

Another example of the difficulties of the universalization of the concept of impunity based on the accountability notion is the community-based initiatives. In a TJ context, governmental authorities not always can reach out to all the affected communities, and traditional practices might be put in place.

In Uganda, the Acholi community celebrated traditional rituals based on restorative principles and reconciliation with former members of the Lord’s Resistance Army (LRA). These cleansing rituals included the Mato Oput ceremony, where rebels confessed their crimes to their families, ask for forgiveness, and pay the damages caused.

The Acholi rituals allowed former rebels to be accepted into the Acholi society because in the view of the community, the former LRA members accounted for its deeds. Therefore, these traditional rituals, as in the case of South Africa, entailed a “rite of Passage” into a renewed citizenship for the perpetrators, but without the intervention of the government.This community-based mechanism, similar to the previous example, falls outside the scope of the concept of impunity developed in the UN principles, especially the concept of criminal accountability, which entails a formal mechanism with governmental authority. However, is it possible to conclude that the former LRA members were not held accountable for their crimes in the Acholi community?

Accountability in an International TJ mechanism

One last example of the difficulties around the universality of the impunity concept is brought by the ICC. The court has jurisdiction over four core crimes, and its subject matter jurisdiction makes its scope of action framed in TJ contexts. The preamble of the Rome Statute includes as its objectives “to put an end to impunity,” which in this case would seem obvious that it refers to criminal accountability. However, two provisions in the Statute question this notion of impunity.

First,  the complementarity clause in Article 17  rules on admissibility and establishes that the case will be admissible when the State is unwilling or unable to investigate or prosecute. In this provision, the discussion of the notion of impunity is set in situations in which the investigative mechanisms that are put in place would not necessarily lead to prosecution, like the conditional amnesty in the TRC model of South Africa. In such a case, is the requirement for investigation of Article 17 fulfilled? The second problematic provision is Article 53 of the Rome Statute that enables the Prosecutor to decide not to pursue an investigation based on “the interest of justice.” This is an open clause that leaves room for the Prosecutor to not investigate in places where mechanisms that do not entail criminal accountability are taking place, including amnesties or other exemption measures.

If these two provisions serve the purpose of “fighting against impunity,” then even in a document of criminal accountability, such as the ICC Statute, that was ratified by 122 States, the concept of impunity is unclear and the universality of it as well.

Conclusion

After reviewing the concept and evolution of impunity and the interlinked notion of accountability in TJ, as well as its consequences in three different domestic, community-based and international TJ mechanisms, it is possible to conclude that there is no universal definition of  impunity, which at the same time questions the universality of the UN TJ model.

On the one hand, in the debate and evolution of TJ, impunity was mainly identified as criminal accountability. On the other hand, in practical examples of TJ , the concept of impunity acquires new nuances that go beyond criminal accountability, even in a treaty whose purpose is to set up an international criminal accountability system.

Additionally, the definition of accountability provided by the UN principles to combat impunity is problematic for two reasons. First, it enlarges the concept of accountability by extending it to  more than  criminal accountability, which was the subject of debate in the evolution of TJ and the anti-impunity movement. Second, paradoxically, despite this extension in the concept, the definition of accountability of the UN principles falls short when facing political accountability and when assessing impunity at a domestic level from an international court.

Finally, this lack of universalization in the conceptualization of impunity questions the universality of the UN model for TJ, and makes it very difficult to rigidly apply the four-pillar model in every scenario. Although the UN principles to combat impunity is definitely the most important institutional document on Transitional Justice, the different understandings of impunity demonstrate that in TJ societies, there is no one-size-fits-all formula to address accountability.

Andrea Trigoso is a Peruvian qualified lawyer. She holds an LLM in International Crime and Justice and is currently pursuing a MAS in Transitional Justice, Human Rights and Rule of Law.  She has worked as a civil attaché at the Embassy of Peru in the Netherlands, where she was in charge of the matters related to the International Court of Justice, and had previous experience on International Criminal Law in the ICC, STL and as a campaign manager of the Peruvian ICC judge in the 2017 elections. Twitter: @andreatrigoso