Professeur William A. Schabas, Directeur du Centre Irlandais des Droits Humains

Impunity and Human Rights Defenders

by William A. Schabas

Paper presented at the FrontLine Conference, Dublin, 17 January 2002

Over the past decade or so, the human rights movement has become increasingly preoccupied with the importance of punishing those responsible for gross violations of fundamental human rights. Troubled by massive breaches of human rights, and the failure or outright refusal of governments to prosecute offenders, attention has turned to repression through criminal courts. The most dramatic manifestation has been the growth of international criminal jurisdictions, first the ad hoc tribunals for the former Yugoslavia and Rwanda, then the International Criminal Court, whose creation is expected within a few months of this conference, following the deposit of the sixtieth ratification of the Rome Statute. But the struggle against impunity has also taken the form of an insistence upon measures of accountability during transitional periods. In the past, such transitions were in many cases accompanied by blanket amnesties. Sometimes this was predicated on a well-intentioned belief that it was best to forgive and forget. Often, though, the motivation was more cynical, a deal cut with former tyrants in return for their graceful (and peaceful) departure. One of the favoured non-judicial mechanisms of accountability is the truth commission. Transitional justice is also characterised by a growing internationalisation, in the institutional participation of the United Nations in criminal courts as well as the focus on international crimes – genocide, crimes against humanity and war crimes – as the normative framework for prosecutions. International involvement is currently underway or anticipated as part of approaches to prosecution in Cambodia, Sierra Leone, East Timor, Kosovo and Burundi, and the establishment of “mixed tribunals” under national legislation but whose personnel, budget and applicable law depends at least to some extent on involvement of the United Nations seems destined to increase. Another dimension of the battle against impunity is the increasing willingness of States to exercise universal jurisdiction in cases where those states with territorial or personal jurisdiction over the offender have failed to act. Although this has attracted a great deal of public attention, with prosecutions taken against such tyrants as Augusto Pinochet, Ariel Sharon and Hissan Habré, the success of this approach to battling impunity has, to date, been rather modest. The human rights movement was not always so eager to combat impunity. In an earlier time, it tended to view the criminal justice system not as a tool for the enforcement of human rights but rather as an instrument of repression by evil regimes. Rather than challenge amnesties, as it does today, it essentially glorified them. Human rights activists took sides, as a general rule, with the defendant and with the prisoner, and held an undisguised contempt for prosecutors and jailers. One of the defining moments in the transformation of the human rights movement was the Velasquez-Rodriguez case of the Inter-American Court of Human Rights, one of that institutions very first contentious decisions. Manfredo Velasquez was “disappeared” by a paramilitary group widely believed to be associated with the authorities. Faced with the difficulty in proving any direct link between the killers and the State, the Inter-American court turned to the suspicious failure of police and judicial officials in Honduras to properly investigate the crime and to bring the perpetrators to justice. Henceforth, this “horizontal” dimension of human rights law became increasingly predominant. Again and again, in rulings of the European and Inter-American Courts of Human Rights, the European and African Commissions, and the treaty bodies or committees established under the relevant United Nations instruments for the protection of human rights, it was held that the State had a positive duty to investigate crimes and to bring those responsible to justice. In March 2001, the European Court of Human Rights affirmed that the European Convention on Human Rights “implies a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences which endanger life, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions”. As recently as 20 October 2001, the Inter-American Court of Human Rights, in the case of four human rights lawyers working for Mexico City’s Miguel Agustín Pro Juárez Human Rights Center (PRODH), ordered Mexico "to adopt, without delay, all measures necessary" to protect the life and safety of these human rights defenders, and to investigate the threats and attacks against the PRODH in order to identify and sanction the perpetrators. These were “protective measures issued pursuant to article 63 of the American Convention on Human Rights, and are issued only in "cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons". Although the human rights movement had not really treated the issue of impunity as a priority until the 1990s, anti-impunity components of human rights law had been present from the beginnings of the discipline. Accordingly, the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations only hours before the Universal Declaration of Human Rights, pledged States parties “to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide”. Subsequently, the Apartheid Convention required States parties “[t]o adopt any legislative or other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar segregationist policies or their manifestations and to punish persons guilty of that crime”. But for many years, these provisions and other like them were not given the attention they required, perhaps due in part to the historic unease and discomfort of the human rights movement with repressive criminal law. It has become clear that the protection of human rights defenders from attack and persecution, particularly at the hands of paramilitaries and non-state actors, requires an insistence upon the effective deployment of mechanisms of criminal justice. When human rights defenders are attacked, all too often State authorities fail to take action with a view to prevention, investigation and prosecution. This may be out of complacency, indifference, lack of resources and, in many cases, tacit support for the perpetrators. The campaign against impunity becomes therefore one of the pillars of the protection of human rights defenders. As the Special Representative on Human Rights Defenders has observed, “States have the primary responsibility and duty to protect, promote and implement human rights. Nevertheless, groups and individuals, whether armed or otherwise, who violate or threaten the rights recognized by the Declaration also have an obligation to respect them. This respect can be ensured by the adoption of the necessary legal policies and administrative measures for the effective protection of human rights defenders by States within whose jurisdiction these groups operate.” The 1999 Declaration entrenches the significance of the struggle against impunity within the context of the protection of human rights defenders. The central provision in this respect is article 9, of which paragraph 5 is probably the most important:

Article 9

1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights.

2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay.

3. To the same end, everyone has the right, individually and in association with others, inter alia:

(a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay;

(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments;

(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.

4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms.

5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.

Other relevant provisions of the Declaration include article 2(2), which requires States to “adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed”. In her comments on the Declaration, the Special Representative has stated:

Article 9 of the Declaration affirming the basic right of everyone to benefit from an effective remedy in the case of any violation of human rights, and to be protected in the event of such violation must be read in the context of the applicable international human rights standards. Importantly, article 9 (3) of the Declaration is non-exhaustive, using the term “inter alia”, and applies to everyone, “individually” and “in association with others”, meaning that “effective remedies” in the context of the Declaration must be read broadly.

The Special Representative on Human Rights Defenders has addressed the issue of impunity in her recent report, under the subheading: “The issue in context/ The importance of the fight against impunity for Human Rights Defenders / Protecting human rights defenders and others at risk by ending impunity for human rights violations.”

9. [The culture of impunity] is also a significant factor in enhancing the risks attached to the work of human rights defenders.

10. Exposing human rights violations and seeking redress for them is largely dependent on the degree of security enjoyed by human rights defenders. Addressing the issue of impunity with respect to defenders is therefore a critical element in the promotion and protection of human rights.

11. The Special Representative notes with concern that Governments have, in general, either failed or neglected to investigate complaints of attacks and threats against human rights defenders and to punish the perpetrators. Cases of threats, attacks and acts of intimidation against defenders are frequently reported and complaints have generally been filed for these violations with the authorities. Despite this, there is a lack of action in a majority of cases.

12. The fact that extrajudicial killings and death threats are not investigated is of great concern to the Special Representative. In this regard, since the beginning of her mandate, the Special Representative has transmitted to various Governments 31 cases of death threats as well as 11 communications concerning the issue of impunity. The response of Governments in cases brought to their attention by the Special Representative has not been satisfactory. It is only in very few cases that results or even encouraging progress can be reported to date.

13. In one case brought to the attention of the Special Representative, it was alleged that a prominent human rights lawyer was subjected to an assassination attempt by three masked men and that his wife and eight-year-old child were attacked by an unknown assailant later on. It was indicated that the police have done little to investigate these attacks and have not provided effective security to the family. In another case, a member of a human rights organization was reportedly killed by two unidentified men. It was claimed that despite repeated appeals, the Government has refused to order a judicial inquiry into allegations that the police were actively involved in the murder through the hiring of ex-members of an armed group.

14. While structural problems and the lack of resources may be a constraint in pursuing such cases, in reality it is the absence of political will on the part of Governments that allows impunity for human rights violations to prevail. In cases where agencies of the State are directly responsible, there is even less expectation of identifying or bringing perpetrators to justice. Human rights defenders, often targeted for their criticism of government action or omission leading to human rights violations, are afforded the least protection of the law.

15. The lack of transparency and accountability in the functioning of State institutions has added to the culture of impunity. It has been observed that, in particular, violations committed by the military and other security forces are seldom investigated or punished. Even where there have been prosecutions, sentences have been light.

16. Human rights defenders are being targeted increasingly by non-State entities, either linked directly or indirectly to the State or private groups benefiting from the inaction of the State. The inability or unwillingness of States to call these entities to account for action against human rights defenders has increased their vulnerability and has strengthened public perception that human rights can be violated with impunity.

17. In these circumstances it is difficult to expect that human rights defenders can perform their role with any degree of security or enjoy the rights recognized in the Declaration. Commitment to the protection and promotion of human rights is incomplete without ending the culture of impunity. Human rights groups, NGOs and individual defenders have pointed to impunity as a major source of consternation for them. Many defenders have been especially targeted for voicing their protest against exemption from punishment for past and current violations of human rights.

18. In this regard, the Special Representative draws attention to article 9 of the Declaration,5 which addresses the issue of impunity. She also recalls the reports submitted by Louis Joinet and El Hadji Guissé to the Subcommission on Prevention of Discrimination and Protection of Minorities, pursuant to its decisions 1996/119 and 1996/24, respectively, on the question of the impunity of perpetrators of violations of civil and political rights (E/CN.4/Sub.2/1997/20/Rev.1) and of economic, social and cultural rights (E/CN.4/Sub.2/1997/8). The Special Representative sees the progress towards the establishment of the International Criminal Court as a positive development towards ending the climate of impunity. The report of the Secretary-General on impunity (E/CN.4/2001/88 and Corr.1), submitted to the Commission on Human Rights at its fifty-seventh session pursuant to its resolution 2000/68, contains replies received from some States providing information on legislative, administrative or other steps they have taken to combat impunity for human rights violations. The Special Representative appreciates the steps that are proposed or have been taken for the promotion and protection of human rights through action to combat impunity.

19. It is, nevertheless, a reality that the mere existence of legislation or administrative procedures has not necessarily been a guarantee against impunity for human rights abuse. Stronger political will to tackle impunity must complement these measures. The Special Representative urges States to give due attention to this serious human rights problem and to take effective measures to address both structural and political problems that are causing impunity for human rights violations to prevail.

In the 2000 report, the Special Representative described military tribunals as “the cornerstones of impunity for perpetrators of human rights violations”, noting that they impose unacceptably light sentences for gross violations of human rights and “strengthen the perception that there is a deliberate design to conceal atrocities and shield members of the armed forces accused of committing them”. See continued:

48. Even when civilian authority has been established or re-established, military presence still dominates the structures of authority and democratic culture becomes difficult to promote. It has been noted that in some countries national human rights institutions have not been given powers to investigate allegations of excesses committed by members of armed forces. There are also reports of armed forces systematically failing to comply with court orders concerning arbitrary actions that violate human rights. The military’s continued lack of accountability is being questioned and there is a greater demand for transparency and public scrutiny of cases of human rights violations. In view of the adverse effects of militarism on the capacity of civil society to develop, there is an urgent need to remedy this lack of accountability. 49. The Special Representative acknowledges that measures have been adopted by some States for providing better protection to human rights defenders working in an environment of tension or conflict. It is expected that the creation of mechanisms for fighting impunity will also contribute to lessening the adverse effects of militarism on the situation of human rights violations. This will become possible only if the measures and mechanisms allow comprehensive monitoring of actions and operations of military and security forces in order to prevent human rights violations. The Special Representative emphasizes that respect for human rights and fundamental freedoms is not subject to conditions and circumstances. The absence of peace or security does not therefore excuse non-compliance with human rights principles.

The High Commissioner for Human Rights has also addressed the issue of impunity within the context of the protection of human rights defenders. According to her recent report:

71. An effective protection of civilians requires a commitment to tackling the issue of impunity at all stages of conflict. The Secretary-General’s position that there can be no granting of amnesty to those who commit serious violations of international criminal law such as genocide, war crimes and crimes against humanity provides an essential guidance for the United Nations in this regard.5 Ending impunity for genocide, war crimes and crimes against humanity, whether committed by State agents or non-State actors, is an important objective for the international community. The often ground-breaking jurisprudence of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda provides an important impetus to the application of international law in this crucial area. The message that the international community will no longer tolerate impunity for acts that offend the conscience of humankind needs to be systematically and credibly dispatched. Attention by the principal organs of the United Nations to grave violations of humanitarian and human rights law can only serve as a deterrence to those who think that they can act with impunity. The establishment of the International Criminal Court will significantly enhance efforts in this regard. In this context, it is encouraging that, as of 31 August 2001, 37 States have become party to the Rome Statute of the International Criminal Court and 139 States have signed it. Even before the Court’s establishment, the Statute has proved to be an invaluable tool in the struggle against impunity. The Statute codifies crimes against humanity for the first time in a multilateral treaty and it enumerates certain acts as war crimes when committed in non-international armed conflicts. To encourage the fight against impunity, the General Assembly could consider pronouncing 17 July, the day of the adoption of the Rome Statute, as a day for international justice.

72. Another complementary means for the implementation of international criminal jurisdiction is the domestic application of the principle of universal jurisdiction. This principle is based on the notion that certain crimes are so harmful to international interests that States are entitled, and even obliged, to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim. Human rights abuses widely considered to be subject to universal jurisdiction include genocide, crimes against humanity, war crimes and torture. While the principle of universal jurisdiction has long existed for these crimes, it is rapidly evolving at the present time as a result of significant recent developments.

73. Truth and reconciliation efforts are also important components of an effective response to systematic violations of human rights law. These mechanisms should not however be a substitute for individual prosecution, but rather complementary mechanisms, intended to ensure comprehensive accountability and to promote the healing of torn societies. In Sierra Leone, for instance, OHCHR is preparing the establishment of the Truth and Reconciliation Commission, clarifying the relationship between the Commission and the planned Court, seeking appropriate solutions in the area of juvenile justice and empowering NGOs.

Issues relating to impunity and the work of human rights defenders have also been assigned to several of the special rapporteurs as part of their mandates. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has been requested to “To pay special attention to extrajudicial, summary or arbitrary execution where the victims are individuals carrying out peaceful activities in defence of human rights and fundamental freedoms”. In the resolution for the Special Rapporteur on the right to freedom of opinion and expression, the Commission on Human Rights appealed to all States, when the relevant rights are violated, to “to take the appropriate steps to ensure the immediate cessation of these acts and to create conditions under which these acts may be less liable to occur”. The Commission has encouraged the Working Group on enforced or involuntary disappearances “[t]o pay particular attention to cases of disappearance of persons working for the promotion and protection of human rights and fundamental freedoms wherever they occur, and to make appropriate recommendations for preventing such disappearances and improving protection of such persons”.

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This brief overview began with an attempt to comprehend the evolving attitudes of human rights law and practice to the role of criminal justice. Essentially a repressive arm of the State, it was traditionally viewed with suspicion by human rights defenders, who all too often found themselves confronted with arrest, prosecution and detention. More recently, with the heightened awareness of the importance of combating impunity, the approach to the criminal justice system has become more nuanced. We protest when it is used to attack human rights defenders, yet call for its effective action, especially when human rights defenders are attacked by paramilitaries or non-State actors. The complexities involved in the interface between criminal law and the protection of human rights defenders can be appreciated with reference to the “Guidelines for Submissions” that have been prepared with respect to submission of allegations to the Special Representative. If violations of the rights of human rights defenders involve arrest or imprisonment, information is sought on the identity of the authority involved, details of the arrest and trial, potential penalties, place and term or detention and so on. Yet the “Guidelines” also request information on “[s]teps taken by the concerned authorities”, including whether or not there has been an investigation or inquiry, whether it has resulted in charges or other legal action, and why the result of such activity is unsatisfactory. Critics might conclude that human rights law has become confused. The reality, however, is that it has become more sophisticated. Issues relating to the protection of human rights defenders have helped to drive the agenda, and to clarify the duality of criminal justice, which can be both friend and a foe. The challenge, and it is not an easy one, is to see that it works to protect human rights defenders, that it treats offenders in a generous and humane manner consistent with fundamental principles of human rights, and that it is not perverted and transformed into a weapon of arbitrariness.