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December 2012, No. 4 Vol. XLIX, Delivering Justice?

Rule of law and institutional reform cannot start with a "clean slate". Understanding the patterns of past human rights violations and ending impunity for the worst violations are indispensable for successful transformative processes. At the core of any effort to establish accountability are three indispensable and interlinked rights: the right to truth, the right to justice, and the right to an effective remedy and reparation. In order to implement these rights, a comprehensive strategy is required that involves governments and civil society and addresses gaps of knowledge, capacity and political commitment.

Genocide, war crimes, crimes against humanity, and other gross violations of human rights undermine the fabric of entire societies. They can destabilize States and whole regions, threatening international peace and security. In the aftermath of such terrible events, it is essential to establish the truth about the international crimes and gross violations that took place. A people's knowledge of the history of its oppression is part of its heritage. Knowing the truth allows victims and relatives to gain a sense of closure and restores a measure of dignity.

Justice is the indispensable companion of truth. Accountability for crimes and gross violations, including individual accountability under criminal law, is key to reinstate public trust in justice and security institutions to rebuild the rule of law and sustainable peace. At the same time, we need to pay more attention to the victims. Everyone is aware of the tremendous physical, psychological and material price victims of armed conflict pay. However, efforts to end impunity have, unfortunately, not been accompanied by equally strong efforts to address the plight of victims. There is a clear need to rectify this imbalance so that victims can obtain effective remedies and reparation for the harm they suffered.

BUILDING THE KNOWLEDGE BASE FOR ACCOUNTABILITY

Today, no State can legitimately feign ignorance about the extent and causes of gross violations committed under its watch. This applies even if its own institutions do not pick up such violations, as they should. There is hardly a gross violation that is not documented by the universal system of independent human rights mechanisms composed of the United Nations Treaty Bodies, the Special Procedures of the Human Rights Council, Commissions of Inquiry established on an ad hoc basis, by my Office and our 58 United Nations human rights field presences across the world. Regional human rights mechanisms as well as domestic and international non-governmental organizations also play an important role in bringing key human rights challenges to the attention of States.

Efforts to document gross violations are becoming increasingly sophisticated and comprehensive. The Human Rights Council's Commission of Inquiry on Syria has worked now for over a year. Based on hundreds of interviews and review of other evidence, it has identified a number of senior government officials and military commanders, regarding whom there is reason to believe to be implicated in international crimes. In light of the long legacy of atrocities committed in the Democratic Republic of Congo (DRC), for instance, the Office of the High Commissioner for Human Rights (OHCHR) carried out a comprehensive mapping of the most serious human rights and humanitarian law violations that occurred between March 1993 and June 2003.

Even where gross violations are well documented, States often require technical advice to determine what combination of law, regulation and policy is best suited to address them. However, while decision makers may benefit from such advice and from knowledge about comparative experiences and lessons learned elsewhere, experience shows that accountability efforts must be nationally owned by the people concerned in order to be sustainable.

This is particularly important in the area of transitional justice. People who have been affected by human rights violations or conflict must be empowered to make informed decisions on how they can exercise their rights and obtain redress. A careful process of national consultations can be the most cost-effective way to informed choices and ensure national ownership of transitional justice mechanisms. This is no easy process and it may take time. Following the first democratic elections in 1994 in my home country, South Africa, it took 18 months of preparatory activities to set up the Truth and Reconciliation Commission chaired by Bishop Desmond Tutu. This long period allowed for a comprehensive discussion in Parliament and within South African society about the extent of the Commission's powers and laid the basis for the Commission's lasting legitimacy.

Building also on the South African experience, OHCHR and our field presences regularly provide technical advice and material support to national consultations carried out by governments, parties to peace agreements, national human rights institutions and civil society. Recent examples of national consultations supported by OHCHR include Togo, Burundi and Tunisia. When providing support, we place the emphasis on the participation of victims, including women and children, support to capacity-building, and the mobilization of financial and material resources.
We have also developed a series of policy tools addressing issues relevant for anyone involved in transitional justice processes, such as prosecutions, truth-telling, vetting, mapping and monitoring the justice system, reparations programmes, and national consultations. The entire series of the OHCHR Rule of Law Tools for Post-Conflict States is available at .

CAPACITY-BUILDING

Knowledge has to be combined with the capacity for implementation. Experience shows that inadequate capacity within domestic institutions is often a key factor that perpetuates impunity for the perpetrators of international crimes and gross violations of human rights.

It is fundamental that States develop or refine their own capacity to investigate and prosecute gross violations of human rights. In many cases, this means setting up new and specialized institutions that can handle international crimes and gross human rights violations. This is not a luxury, but an obligation. Any State which finds that violations or crimes may have been committed on its territory or otherwise in its jurisdiction must muster the resources necessary to carry out effective prosecutions, while guaranteeing the full judicial, prosecutorial and investigative independence of these processes. States also need to remove any obstacles to prosecuting international crimes and gross human rights violations, in particular, legal obstacles such as amnesties or statutes of limitations.

The United Nations has developed innovative mechanisms to assist national authorities in investigating, prosecuting and trying alleged perpetrators of such crimes and violations, for instance through training special police units to investigate sexual and other gender-based cases of violence. In the Democratic Republic of the Congo, the United Nations set up prosecution support cells that work hand in hand with Congolese prosecutors in cases involving war crimes or crimes against humanity.

For every perpetrator of an international crime, there are usually dozens, hundreds, if not thousands of victims. However, insufficient thought is often given to ensuring that victims´ rights take a central place in
any system of accountability for international crimes and other gross violations of human rights. Successful accountability processes must recognize the centrality of victims and their special status in the design and implementation of such processes. My Office can provide technical advice and assistance on setting up victim-sensitive procedures that guarantee safety and dignity, and the development of specific programmes to assist, support and protect victims and witnesses also have to be put in place.

Today, an increasing number of States are setting up national commissions of inquiry to respond to serious violations of human rights. Some are genuine efforts to break with the legacy of the past, while others serve mainly to deflect international scrutiny. OHCHR has carefully studied the experience of these commissions to see what determines the success of a national commission of inquiry. Our study concluded that true accountability can be achieved only if national inquiry mechanisms are credible, independent, impartial and transparent. They should have unfettered access to all relevant authorities, persons, places and information, as well as adequate financial and human resources. They must also be able to make their findings public. Central to any effective investigation and prosecution process is a successful witness protection programme that, if necessary, may also include international assistance to get witnesses out of harm's way.

POLITICAL COMMITMENT

Capacity and knowledge on their own will not suffice where a government lacks the political commitment to hold perpetrators of international crimes or other gross human rights violations accountable. The type of volatile political situations that ensue after international crimes and gross human rights violations are committed often mean that national advocates for accountability run serious political, if not physical risks. It is, therefore, important that the international community unequivocally support domestic accountability efforts.

However, where national authorities fail to fulfil their responsibility to punish those responsible for international crimes and other gross violations of human rights, international and hybrid criminal tribunals, as well as foreign tribunals relying on the principle of universal jurisdiction for international criminals, have played an important role in closing the accountability gap. International commissions of inquiry and fact-finding missions have also proven to be effective tools in drawing out facts necessary for wider accountability and transitional justice efforts.

Where States are unwilling or unable to address international crimes committed in their jurisdictions, the International Criminal Court (ICC) is well placed to play a complementary role. In case the State concerned has not yet ratified the Rome Statute, I have repeatedly called on the Security Council to use its power to refer the most serious situations (e.g. the current situation in Syria) to the ICC.

LEADING BY EXAMPLE

Knowledge, capacity and commitment gaps may also arise at the international level. The United Nations has to lead by example when it comes to ensuring accountability. In this regard, we have made progress in formulating a comprehensive United Nations strategy to eliminate sexual exploitation and abuse in United Nations peacekeeping operations and now have to implement the strategy diligently.

Support provided by the United Nations to non-United Nations security forces must also be grounded in respect for human rights and international humanitarian law to avoid complicity in violations. Building on our experience in the DRC, Secretary-General Ban Ki-moon has led the way and put in place the United Nations Human Rights Due Diligence Policy, which commits the United Nations to not provide support to security forces that are involved in and fail to address gross violations of human rights, international humanitarian or refugee law. I strongly support this policy and my Office is committed to assisting our United Nations partners in implementing it. I also support the ongoing efforts to ensure that any listing and delisting of individuals in the context of individualized sanctions imposed by the Security Council is subject to effective, clear and fair procedures.

Accountability for international crimes and gross human rights violations constitutes a central plank of the contemporary human rights agenda. Today, the question is no longer whether to ensure accountability, but when and how this is best achieved.