Individual Criminal Accountability

The most dominant international legal norm associated with the theory and practice of transitional justice is the norm of individual criminal accountability. This norm first found form in the context of the Nuremberg and Tokyo trials at the end of World War II. Where once officials of the state had routinely enjoyed impunity for large-scale human rights violations (Sikkink 2011: 14), the Nuremberg Model sought to remove the protections afforded by state sovereignty to individuals accused of committing acts of ‘gross misconduct’ such as crimes against humanity (Cassese 2008: 30-31). For the first time, the Tokyo and Nuremberg tribunals held individuals criminally responsible for their actions insofar as they were accused of crimes against peace, war crimes, and the newly defined infraction, crimes against humanity.

By the end of 1946, the United Nations General Assembly had ‘affirmed’ the principles of international law recognized by the Charter of the Nuremberg Tribunal (Resolution 95(I)) and agreed to have them codified by the International Law Commission. In 1950, the International Law Commission presented its ‘Principles on International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal,’ the first of which states that ‘any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.’ By then, however, the list of crimes recognized under international law had expanded significantly to include genocide (Genocide Convention 1948) and a range of acts deemed ‘grave breaches’ of international humanitarian law in the Geneva Conventions IV (1949).

Despite its origins in the 1940s and development in the 1970s, it was not until the 1990s that the individual criminal accountability model became ‘embodied in international law, in international and domestic institutions, and in the global consciousness’ (Payne and Sikkink 2014: 35). Most prominently, this embodiment found form in the establishment of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), both of which held that individuals would be held criminally responsible for the range of crimes they were mandated to prosecute (Statute of the ICTY, Article 7; Statute of the ICTR, Article 6). The ICTY and ICTR were followed by the institution of a series of hybrid tribunals, which combined elements of international and domestic law and expertise, in cases such as Timor-Leste (the Serious Crimes Special Panels), Cambodia (the Extraordinary Chambers in the Courts of Cambodia), and Sierra Leone (the Special Court for Sierra Leone), as well as the establishment of the International Criminal Court (ICC). Of particular significance is the Rome Statute (1998), which established the ICC and sought to consolidate the body of international law relating to the ‘most serious crimes’, namely, the crime of aggression, genocide, war crimes, and crimes against humanity, in a single instrument (Articles 5-8). Here too, the nature of individual criminal responsibility for these crimes is established and elaborated (1998: 25(3)).

While this body of international law has been accompanied by a significant rise in prosecutions of individuals accused of serious violations of international human rights and humanitarian law, including several high- profile cases such as those of Slobodan Milosevic (ICTY), Kaing Guek Eav (Extraordinary Chambers in the Courts of Cambodia), and Charles Taylor (Special Court for Sierra Leone), not all of this increase can be attributed to the establishment of international tribunals. Rather, as Hun Joon Kim and Kathryn Sikkink note, the most common form of human rights prosecutions has taken place at the domestic level (2010: 949; Sikkink 2011: 5). This too is reflected in the Rome Statute. Founded on the principle of complementarity, the ICC does not replace the prosecution of human rights crimes by domestic jurisdictions. Rather, a case is only admissible before the ICC if ‘the State is unwilling or genuinely unable to carry out the investigation or prosecution’ (Rome Statute 1998: 17(1)(a)). That is, the ICC’s jurisdiction is ‘complementary to national criminal jurisdictions’ (Rome Statute 1998: 17(1)(a)).

In large part, the principle of complementarity reflects the idea that states have an obligation to prosecute and punish perpetrators of human rights crimes: only if and when they are unable to fulfill that obligation does the ICC provide a legitimate avenue for justice. Although it remains a disputed principle (Scharf 1996; Lessa and Payne 2012: 6), the customary norm that maintains that states have an obligation to prosecute and punish (Orentlicher 1990-1991: 2595) is established in numerous ‘widely ratified international human rights and humanitarian law treaties’ (OHCHR 2009: 11). These include, to varying degrees, the Genocide Convention (1948: 1), the Convention Against Torture, and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984: 4(1), 4(2), 6(2) & 7(1)), the American Convention on Human Rights (1969: 1(1)), and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights (Ireland v. United Kingdom 1978: 239).

Together, this set of international accountability norms establishes that perpetrators are to be held individually criminally responsible for violations of international law pertaining to serious crimes, including genocide, crimes against humanity, and war crimes, and, further, that states have an obligation to undertake the prosecutions that will achieve that accountability. Despite its broad acceptance, however, its universal applicability remains a matter of some dispute. In the early 1990s, scholars and practitioners alike questioned ‘whether it was prudent to press fragile democracies to mount prosecutions that they may not yet have sufficient power to survive’ (Orentlicher 2007: 12-13; Malamud-Goti 1990: 5). Since then, pragmatists have continued to argue that the pursuit of justice should be subordinate to the establishment of peace, at least in the early post-conflict phase. Pragmatists maintain that ‘an insistence on criminal prosecutions “can prolong...conflict, resulting in more deaths, destruction and human suffering”’ (Scharf in Goldsmith and Krasner 2003: 51). Only once ‘a peaceful political order’ has been established, they suggest, is it possible to build a credible and effective justice system founded on the universal application of the rule of law. That is, pragmatists such as Snyder and Vinjamuri argue that ‘[j]ustice does not lead; it follows’ (2003: 6). For them, peace is more likely to be established by granting amnesties than by pursuing prosecutions.

As we will see in Chapter 5, in the aftermath of the Tensions, the Solomon Islands found itself trapped between global demands for perpetrators of human rights violations to be prosecuted for their crimes, and the pragmatic decision to purchase peace through the institution of amnesties. While the Townsville Peace Agreement included a wide-ranging amnesty, in the immediate post-conflict period, a significant number of individuals who believed they were covered by the amnesty provision were prosecuted for crimes committed during the conflict. As illustrated in Chapter 5, this course of events has served to foster mistrust in the transitional justice and reconciliation process among many former combatants in the Solomon Islands.

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