PURSUING JUSTICE: FOR ALL RIGHTS, FOR ALL PEOPLE
Amnesty International, Secretary General (interim) / Claudio Cordone
Between January and May 2009, some 300,000 Sri Lankans were trapped on a narrow strip of land between the retreating Liberation Tigers of Tamil Eelam (LTTE) and the advancing Sri Lankan military. As reports of abuses by both sides increased, the UN Security Council failed to intervene. At least 7,000 people were killed – some have put the figure as high as 20,000. The Sri Lankan government dismissed all reports of war crimes by its forces and rejected calls for an international inquiry, while failing to hold any credible, independent investigations of its own. The UN Human Rights Council convened a special session, but power plays led to member states approving a resolution drafted by the Sri Lankan government, complimenting itself on its success against the LTTE. By the end of the year, despite further evidence of war crimes and other abuses, no one had been brought to justice.
One would be hard pressed to imagine a more complete failure to hold to account those who abuse human rights.
Thinking about it, I remembered the foreword to the Amnesty International Report published in 1992. Entitled “Getting away with murder”, it highlighted many countries where political and military leaders responsible for ordering or condoning killings, enforced disappearances, systematic rape and other torture, faced no threat of being held to account. Sri Lanka figured prominently as an example, its then government having failed to bring to justice those responsible for tens of thousands of extrajudicial killings and enforced disappearances in the violent 1988–90 suppression of an internal insurgency.
So the obvious question is, has anything changed over the last two decades? And looking at Sri Lanka in 2009, or indeed at the situations in Colombia or Gaza, it would be easy to conclude, not really; and if not, why pursue accountability at all? But that would be to overlook the significant progress that has been made in less than 20 years – despite old and new challenges – which ensures it is now harder for perpetrators to secure impunity.
Yes, the law’s reach is still far from complete. Some situations evade scrutiny altogether; in others, justice simply takes too long. But there is progress. Moreover, the demand for accountability has extended beyond the familiar territory of redress for killings or torture, to the denial of basic human rights to food, education, housing and health, which we all also need to live our lives in dignity.
Accountability – the achievements
To be accountable is to be held responsible for an action you have taken, or failed to take, that has a direct consequence on others. It is a broad concept: one can speak of political accountability, tested, for example, in elections; or moral accountability, measured perhaps by a society’s values.
International human rights standards are focused primarily on establishing legal accountability. People have rights that must be set out in and protected by law; those in power have duties, also established in law, to respect, protect and fulfil individual rights.
Ensuring accountability is important because, first and foremost, those who have suffered harm have a right to truth and justice. Victims and their relatives must have the wrongs done to them acknowledged and see those responsible brought to account. If victims are to receive reparation, finding out what happened, by whom and why, is as important as bringing to justice those responsible for abuses.
Accountability also allows us to look ahead. It provides a measure of deterrence for those who might commit crimes, and it provides a basis on which to build reforms of state and international institutions. Efficient and effective mechanisms for accountability can help states make better policies and laws, and monitor their impact on people’s lives.
During the past two decades, a global campaign has succeeded in establishing a role for international justice. Its achievements include the establishment in 1998 of the International Criminal Court (ICC) built on the foundations of international tribunals that dealt with genocide, crimes against humanity and war crimes in the former Yugoslavia and Rwanda.
2009 was a watershed year, when a sitting head of state, President Omar Al Bashir of Sudan, was named in an arrest warrant by the ICC on five counts of crimes against humanity (murder, extermination, forcible transfer of population, torture and rape) and two counts of war crimes (for the targeting of civilians).
By the end of 2009, the ICC Prosecutor had opened investigations in three situations referred by the states where the crimes occurred – Uganda, Democratic Republic of the Congo (DRC) and Central African Republic (CAR) and one where the Security Council referred the situation (Darfur, Sudan). He also requested authorization from the Pre-Trial Chamber to open another investigation (Kenya). The ICC has summoned a leader of an armed group in Darfur, and issued arrest warrants for a militia leader, a senior government official and the President in Sudan, and issued arrest warrants for leaders of armed groups in Uganda, the DRC and CAR. These are important steps to implement the principle that all those committing war crimes or crimes against humanity should be held equally to account, whether they belong to government or other forces.
In recent years, the ICC Prosecutor has expanded the geographical scope of his work by beginning preliminary examinations of four situations outside Africa – Afghanistan, Colombia, Georgia, and the 2008–09 conflict in Gaza and southern Israel.
The process whereby states (110 by the end of 2009) ratify the Rome Statute of the ICC has spurred national legal reform so that national courts are being given jurisdiction over crimes under international law, allowing suspects to be brought to book abroad when – and crucially only when – they enjoy impunity at home. Despite some setbacks in the development of universal jurisdiction in 2009, such as the enactment of legislation restricting its scope in Spain, lawyers have initiated cases and some were advancing before national courts across the Americas, Europe and Africa. In South Africa in December, two NGOs challenged in court the decision by the authorities not to open investigations under South Africa’s universal jurisdiction law into alleged crimes against humanity committed in Zimbabwe by individuals known to travel to South Africa. By the end of the year more than 40 states had enacted legislation since 1998 maintaining or strengthening universal jurisdiction over crimes under international law, helping fill a small part of the global justice gap.
Such investigations and prosecutions have transformed the way governments and the general public see crimes under international law. More and more, these cases are seen for what they are: serious crimes to be investigated and prosecuted, as opposed to political issues to be resolved through diplomatic channels. Having campaigned hard with my colleagues to hold former Chilean President Augusto Pinochet to account following his arrest in London in 1998, I am particularly encouraged by this shift in perception.
Throughout Latin America, national courts and governments are re-opening investigations into crimes long shielded by amnesty laws. These developments show how even decades after the events, with numerous amnesties and other measures of impunity designed to block prosecutions, civil society will still fight to tear down barriers to truth, justice and reparation.
Among a number of landmark judgments was the conviction in April 2009 of former President Alberto Fujimori of Peru for crimes against humanity, which brought some closure for the relatives of those kidnapped, tortured and extrajudicially executed by military death squads in three cases in the early 1990s. In October, the Supreme Court of Uruguay found that the amnesty law enacted to provide impunity for gross human rights violations in the late 1980s was null and void because it was inconsistent with Uruguay’s obligations under international law. And as 2009 drew to a close, Argentine prosecutors began presenting evidence in one of the most important trials since the demise of the military government (1976–1983) involving 17 members of the armed forces and police charged with torture, enforced disappearance and murder at the notorious Escuela Superior de Mecánica de la Armada (Naval Mechanics School).
The pursuit of justice extended far beyond Latin America. Sierra Leone, for example, came closer to reconciliation with its past in 2009 as all trials in the Special Court for Sierra Leone were concluded apart from that of former President of Liberia Charles Taylor, which was ongoing. And in Asia, one of Cambodia’s most notorious Khmer Rouge commanders finally faced trial for war crimes and crimes against humanity committed more than 30 years ago.
Kaing Guek Eav, also known as Duch, was the commander of Security Office S-21 where at least 14,000 people are believed to have been tortured and then killed between April 1975 and January 1979. It was the first trial by the “Extraordinary Chambers in the Courts of Cambodia” – such a temporary tribunal must give way to a functioning national justice system as soon as practical, but at least it allowed survivors to have their suffering acknowledged.
In 2009, even powerful states found they could not always hide from the law. While some European states were lukewarm in pursuing violations within the context of the US-led “war on terror”, an Italian court convicted 22 CIA operatives, one US Air Force officer and two Italian military intelligence agents in November for their involvement in the 2003 abduction of Usama Mustafa Hassan Nasr (Abu Omar) from a street in Milan. Abu Omar had then been rendered to Egypt, where he was held in secret for 14 months, and allegedly tortured. The trial took place largely because the Milan prosecutor’s office was determined to enforce the law, despite pressure from its own government to drop the case, and although none of the US agents was ever arrested, or physically present in court.
The existence of the ICC has inspired more serious attention to the issue of accountability even in states where those responsible might otherwise have felt immune because they have not formally accepted the court’s jurisdiction. The UN Human Rights Council created an independent fact-finding mission led by South African judge Richard Goldstone, previously Prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia, to investigate alleged violations during the 22-day conflict in Gaza and southern Israel that ended in January 2009. The Goldstone report found that both Israeli forces and Hamas (and other Palestinian groups) committed war crimes and, possibly, crimes against humanity. This echoed the findings of Amnesty International’s field missions to Gaza and southern Israel during the conflict and in its immediate aftermath.
The Goldstone report stated that “[t]he prolonged situation of impunity has created a justice crisis”. It recommended that if the two sides failed to carry out investigations and ensure accountability, the Security Council should exercise its authority and refer the situation to the ICC. In November 2009, the UN General Assembly gave Israel and the Palestinian side three months to show they were willing and able to undertake investigations that met international standards.
In an example of prompt response by the international community, the UN set up an International Commission of Inquiry to investigate the events of 28 September in Conakry (Guinea), where more than 150 people were killed, and women were raped in public, when security forces violently repressed a peaceful demonstration in a stadium. The Inquiry found in December that crimes against humanity had been committed and recommended a referral to the ICC, which initiated a preliminary examination.
Finally, the last two decades have seen an exponential growth in “transitional justice” mechanisms, with many countries emerging from prolonged armed conflict or political repression to confront their past with different models of accountability. During 2009, truth and reconciliation processes and their follow-up were in progress in Liberia, the Solomon Islands and Morocco/Western Sahara – the only country in the Middle East and North Africa Region to have confronted past abuses in such a way, although without including a criminal justice component. As we gathered Amnesty International’s relevant records to assist that process, covering decades of research on individual cases, it was clear to all of us that accountability must accompany truth-telling if reconciliation based on justice is to be achieved. The temptation remains to ‘let bygones be bygones’, but experience has shown that allowing perpetrators, literally, to ‘get away with murder’ can make for a precarious and often short-lived peace.
Power and politicization – obstacles to justice
While legal accountability for crimes under international law is more of a possibility today than ever before, events in 2009 confirmed that two formidable obstacles stand in the way. These must be addressed if we hope to spread meaningful accountability across the full spectrum of rights. The first is the fact that powerful states continue to stand above the law, outside effective international scrutiny. The other is that powerful states manipulate the law, shielding their allies from scrutiny and pushing for accountability mainly when politically expedient. In so doing, they provide a pretext for other states or block of states to politicize justice in the same way.
Although 110 states ratified the Rome Statute to the ICC by the end of 2009, only 12 out of the G20 countries had done so. Among others, China, India, Indonesia, Russia, Turkey and the USA have stood aside from, if not deliberately undermined, international justice efforts.
Having excluded itself from the jurisdiction of the ICC, the USA faces less external pressure to address its own abuses committed in the context of its counter-terrorism strategy. When President Barack Obama took office and ordered the closure of the Guantánamo Bay detention facility within a year, as well as the end of the secret detention programme and the use of so-called “enhanced interrogation techniques”, the signs were promising. However, by the end of 2009 the Guantánamo detentions were still ongoing and little progress had been made in holding anyone accountable for the violations there and in the other aspects of the US-led “war on terror”.
China too shields its actions from international scrutiny. In July 2009, violent riots followed a police crackdown on an initially peaceful protest by Uighurs in Urumqi, Xinjiang Uighur Autonomous Region. The Chinese government restricted access to information, arrested non-violent protesters, and set up quick, unfair trials, sentencing many to death and executing nine within months of the violence. In December, a further 13 were sentenced to death, and 94 more arrested. The short and controlled access journalists were allowed after the violence is no substitute for proper international scrutiny – China failed to respond to a request from the UN Rapporteur on torture to visit the area. Any claim by the government that it is ensuring accountability is not credible when the supposed accountability is cloaked in secrecy and a rush to executions.
Despite an EU-commissioned independent inquiry that concluded that all sides in the 2008 Georgia-Russia conflict were responsible for violations of international humanitarian and human rights law, neither Russia nor Georgia had brought anyone to account by the end of the year, and 26,000 people were still unable to return home.
It was increasingly clear that Russia would use its power to shield both its own soldiers and Georgia’s breakaway regions of South Ossetia (and Abkhazia) from international scrutiny. Specifically, Russia opposed the extension of the mandates of two crucial international monitoring missions in Georgia belonging to the Organization for Security and Co-operation in Europe and the UN. This left the European Union Monitoring Mission as the sole international observer body operating in Georgia, with no access to areas controlled by Russia or the de facto South Ossetian and Abkhazian authorities in the post-conflict zone.
Indonesia, another financial heavyweight with membership of the G20, has for more than 10 years failed to ensure accountability for the victims of human rights violations committed during Timor-Leste’s 1999 UN-sponsored independence referendum and the previous 24 years of Indonesian occupation. Despite various national and internationally sponsored justice initiatives over the last decade, most of those suspected of having committed crimes against humanity in 1999 are still at large. Of those who have been prosecuted in Indonesia, all have been acquitted.
The second obstacle – the politicization of international justice – makes the pursuit of accountability subservient to a political agenda of supporting allies and undermining rivals. The USA, for example, and European Union states, used their position within the UN Security Council to continue to shield Israel from strong measures of accountability for its actions in Gaza. In a display of counter political bias, the UN Human Rights Council, initially resolved to investigate only alleged Israeli violations. To his credit, Judge Richard Goldstone, subsequently appointed to lead that investigation, insisted that the UN Fact-Finding Mission should examine alleged violations by both Israel and Hamas. Also at the UN Human Rights Council, not a single Asian or African state voted against the resolution that applauded the Sri Lankan government’s conduct of the war against the LTTE.
The unwillingness of the powerful to apply the same standards to themselves and their political allies plays into the hands of others who can then justify their own double standards, sometimes placing a misguided notion of “regional solidarity” above solidarity with the victims. Nowhere can this be seen more clearly than in the initial response of African states to the ICC’s arrest warrant for President Al Bashir. Despite the seriousness of the crimes alleged, in July the Assembly of the African Union (AU), chaired by Libya, reiterated a request to the UN Security Council to suspend the proceedings against the Sudanese President, decided that AU member states would not co-operate with the ICC in his arrest and surrender, and requested the African Commission to convene a preparatory meeting to discuss amendments to the Rome Statute to be submitted to the 2010 Review Conference.
After travelling freely around countries not party to the Rome Statute, President Al Bashir was then invited by Turkey, Nigeria, Uganda and Venezuela. After an outcry from civil society, however, the tide began to shift. South Africa said it would fulfil its obligations as a party to the Rome Statute, and Brazil, Senegal and Botswana made clear their readiness to arrest him if he arrived. Nevertheless, at the end of 2009, President Al Bashir was still at large, and still alleging that the effort to prosecute him was politically motivated and biased against Africa. For hundreds of thousands of displaced people in Darfur, the nightmare of further violence and abuses continues, with the prospect of the war in Southern Sudan resuming and the hardship intensifying.
Challenges ahead – accountability for all rights
The obstacles to implementing accountability for mass atrocities in conflicts or political repression are real, but the debate at least has been won: no one denies the principle that war crimes or crimes against humanity or enforced disappearances should be punished. Yet when it comes to the mass abuses of economic, social and cultural rights, there is no comparable effort to bring law and accountability to bear. Not the same thing, many will say. And true enough, massacring civilians is different from denying a population its right to education. But such denials are still flouting international law and impacting adversely on people’s lives. They must, therefore, be pursued through international accountability.
The task is to convince world leaders that, no less than the conflict in Darfur, the problem is a human rights crisis.
Consider the right to health, and specifically the scourge of maternal mortality. Every year, more than half a million women die from pregnancy-related complications. Maternal mortality rates for women in Sierra Leone, Peru, Burkina Faso and Nicaragua – to name a few countries on which Amnesty International focused in 2009 – are directly affected by human rights abuses. As I witnessed personally in Sierra Leone and Burkina Faso, the governments in these countries acknowledge the problem and are taking steps to tackle it. But they – along with civil society – need to make greater efforts to address the key human rights issues that contribute to the high rates of preventable deaths, such as gender discrimination, early marriage, the denial of women’s sexual and reproductive rights, and barriers to accessing essential health care. In this, they must be supported by the international community.
Human rights law recognizes that adequate resources are a crucial condition for the realization of some aspects of economic, social and cultural rights and so demands “progressive realization” of those aspects “to the maximum of available resources”.
But governments cannot simply use the issue of resource constraint as an excuse. The existence of preventable maternal mortality in a country is not just a simple reflection of how poor or rich a country is. Angola, for example, has a much higher maternal mortality ratio than Mozambique, despite the fact that Mozambique is much poorer. Or take Guatemala, with a GDP per capita nearly double the size of Nicaragua, but higher maternal mortality ratios.
Consider also the right to housing. In 2009 Amnesty International addressed the plight of tens of thousands left homeless in N’Djamena, Chad, after forced evictions, as well as that of the inhabitants of slums in Cairo, Egypt, who remained at risk of being killed by landslides or other hazards, due to the authorities’ failure to provide adequate housing. In Nairobi, Kenya, Amnesty International marched with inhabitants from Kibera, the largest slum in Africa, and other slums to demand their right to adequate housing and services. In Gaza, one of the consequences of the 2008–09 conflict highlighted by Amnesty International has been the extensive destruction of houses coupled with a continuing blockade which prevents construction materials from entering Gaza. The blockade, which amounts to collective punishment, a crime under international law, hits hardest the most vulnerable.
What the people in the situations mentioned above have in common more than anything else is their poverty. It is the poor who are most discriminated against and where the need for protection of all the rights in the Universal Declaration of Human Rights is most evident. Discrimination is a key driver of poverty, and is often reflected in the allocation of government spending and policies. And most of the people living in poverty in the world, and the ones suffering most discrimination in law and practice, are women. Safe pregnancies, safe homes, safe routes to school or work – none of these should be the preserve of men or of the wealthy.
There are some positive steps towards ensuring legal accountability for the denial of basic economic, social and cultural rights. Increasingly, national courts are intervening to protect these rights and to demand changes to government policy so that minimum rights to health, housing, education and food do not go unfulfilled. And they are being spurred to go further by international mechanisms.
In a ground-breaking decision in November 2009, for example, the ECOWAS (Economic Community of West African States) Community Court of Justice in Abuja declared that education is a human right to which all Nigerians are entitled. The Court said that the right to education can be enforced legally and dismissed all objections brought by the government that education was “a mere directive policy of the government and not a legal entitlement of the citizens”.
In another example, in Miercurea Ciuc, Romania, a Roma community which has been living in metal cabins and shacks next to a sewage treatment plant since 2004, after being forcibly evicted from a crumbling building in the centre of the town, lodged an appeal in December 2008 with the European Court of Human Rights. The community, supported by local NGOs, had exhausted national remedies for reparations when rulings in their favour by national courts amounted to nothing in practical terms.
The possibility of international accountability in this field took a leap forward in September 2009 with the opening for signature of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Protocol establishes, for the first time, an international mechanism for individual complaints. It will also support efforts within countries to ensure that effective remedies are available to victims.
Increased accountability for the denial of basic economic, social and cultural rights has become ever more important in view of the combined effects of the food, energy, and financial crises which are estimated to have pushed many million more people into poverty. The respect for all human rights, including economic, social and cultural rights, must be an integral part of all national and international responses to the crises.
But governments are not the only actors contributing to such a crisis. Global business is growing in power and influence. Decisions companies make and the influence they wield can profoundly impact people’s human rights. Too many companies exploit the absence of effective regulation or work hand in glove with abusive and often corrupt governments, with devastating consequences.
Over the past 15 years, we have seen the expansion of law to protect global economic interests, through a range of international investment and trade agreements backed by enforcement mechanisms. But while economic interests have been able to make the law work for them, those harmed by their operations have often seen the law recede in the face of corporate power.
December 2009 marked the 25th anniversary of the catastrophic leak of deadly chemicals from Union Carbide’s pesticide plant in Bhopal, India. Thousands died and an estimated 100,000 people are still suffering the health consequences of that leak today. Despite efforts by survivors of the Bhopal disaster to pursue justice through courts in India and the USA, a quarter of a century after the leak, rehabilitation is still far short of what is needed and no one has ever been held to account for the leak or its aftermath.
Meaningful accountability for corporations remains rare. Attempts to secure justice are thwarted by ineffective legal systems, lack of access to information, corporate interference with legal and regulatory systems, corruption and powerful state-corporate alliances. Although transnational businesses, by definition, operate across borders, the legal and jurisdictional obstacles to bringing court actions against companies abroad remain significant. Global business operates in a global economy but in the absence of a global rule of law.
Yet, despite the enormous challenges, individuals and communities affected by transnational companies are increasingly bringing civil actions in an effort to both hold companies to account and gain some form of remedy. In Nigeria, the oil industry has operated for 50 years without effective regulatory controls. The consequence has been widespread damage to the environment and human rights. Justice in Nigeria has proved elusive for most of the communities whose lives and livelihoods have been damaged. In December 2009 a Dutch court agreed to proceed in a civil case against Shell brought by four Nigerians seeking compensation for oil-spill damages to their livelihood.
In a high-profile civil action in the UK in 2009, the oil-trading company Trafigura agreed a US$45 million out of court settlement with some 30,000 people affected by the dumping of toxic waste in Abidjan in Côte d’Ivoire. The waste was brought to Abidjan in 2006 on board the ship Probo Koala, which had been chartered by Trafigura. The waste was then dumped in various locations around the city. More than 100,000 people sought medical attention for a range of health problems and there were 15 reported deaths.
Such out of court settlements may bring a small measure of justice for victims, but they often involve serious limitations and do not offer full reparation or accountability.
In the Côte d’Ivoire case, critical aspects of the human rights impact of the toxic waste dumping remain unaddressed. Far more needs to be done to address the legal and jurisdictional gaps that currently facilitate corporate impunity. Companies which in increasing numbers profess commitment to human rights should actively promote such efforts.
The next global plan – accountability for all rights
World leaders will gather at the UN in September 2010 to review progress on their promises to improve the lives of the world’s poor, set out in the Millennium Development Goals (MDGs). On the evidence available, we are falling far short of the goals set for 2015. The cost of this failure is to deprive hundreds of millions of people of their right to live in dignity – not just to enjoy their political freedoms, but also to have access to food, housing, health care, education and security, as enshrined in the Universal Declaration of Human Rights. Freedom from fear, and freedom from want – that remains the goal.
There must now be a comparable effort to harness the same energy used to set up the ICC and the international mechanisms for justice, to bring more accountability to a global economic and political order that fails to take all human rights into account. New thinking is needed. The MDG targets cannot simply be just promises. They must be based on the legal commitments governments have made to meet basic human rights, and as such there must be mechanisms to hold governments to account to meet these commitments. There must be effective remedies when states fail to do so.
Accountability would be enhanced if efforts to meet the MDGs took full account of the views of those living in poverty. Individuals have the right to participate in and to have free access to information about decisions that affect their lives. There has been little genuine participation of rights holders themselves in the MDGs. And the MDG process must also ensure proper scrutiny of those governments who pursue national policies – including those with international effect – that undermine the realization of the basic rights embedded in the Goals. All governments, but especially those of the G20, which claim a greater role in global leadership, should be held accountable for whether their policies translate into tangible improvements in the lives of the world’s poor.
In this effort to secure the delivery of all human rights for all people, states and non-state actors should be constantly reminded of their legal obligations and responsibilities. More than ever before, human rights activists, community organizations, lawyers and others are joining together to do so, working with those in power when sharing common objectives, but otherwise challenging them by seeking institutional and individual measures of accountability. The human rights movement is itself becoming more global and diverse, connecting ever better across borders and disciplines in pursuit of a comprehensive human rights project.
As we enter the second decade of the millennium, Amnesty International is working alongside partners in such a global movement, seeking to reassert the value of universal human rights; to show how they cannot be divided up or parcelled off, and how they are directly relevant to people’s full life experience. In so doing, we recommit ourselves to a vision of human rights whereby – beyond states, armed groups and companies – each individual is an agent of change, with rights as well as responsibilities. Each of us has rights to demand respect, protection and fulfilment from the state and society, but also responsibilities to respect the rights of others and act in solidarity with each other to fulfil the promise of the Universal Declaration.