The International Criminal Court (ICC) was created to put an end to the presumption of impunity for the powerful. But in practice, the court’s ability to deliver justice free of politics has been limited, and its reach is not universal. Atrocities that occur on the territory of states that haven’t joined the ICC remain an extremely tough case for the pursuit of accountability, especially when committed by state actors.
It is a truism that perpetrators of mass atrocities don’t prosecute themselves. For states that have joined the ICC’s treaty regime, the chance of justice for international crimes, even when perpetrated by state actors, is potentially improved. The court can initiate its own prosecutions or use the threat of action to incentivize the state to act domestically. But for states that have not signed the treaty, a UN Security Council resolution referring the situation to the ICC is required to engage either of these mechanisms. And because such a resolution requires the support (or abstention) of all five veto members, referrals are rare.
If governments that have committed atrocities won’t prosecute themselves, and ICC action isn’t on the table, is impunity in these cases a foregone conclusion?
Does this mean efforts to pursue justice in these cases are a lost cause? This question is not academic. While 123 states have signed on to the ICC, a significant percentage of the world’s territory remains exempt from the court’s jurisdiction. Not coincidentally, the holdouts include numerous states that have unleashed devastating violence against civilian populations. If governments that have committed atrocities won’t prosecute themselves, and ICC action isn’t on the table, is impunity in these cases a foregone conclusion? What can advocates of accountability do?
Recent debates over post-conflict justice in Sri Lanka provide an example of what happens when international audiences push for accountability for atrocities outside of the ICC’s jurisdiction. Sri Lanka’s long civil war against the Liberation Tigers of Tamil Eelam was devastating for civilians, with serious abuses committed by both sides. Following its cataclysmic end in 2009, evidence emerged of war crimes and crimes against humanity committed on a massive scale by the Sri Lankan military during the final months of the conflict. But despite increasingly insistent demands from members of the international community as well as representatives of the victim population, the government refused to investigate or prosecute the authors of these alleged atrocities.
For five years, the ruling Rajapaksa regime (itself implicated in ordering atrocities) fended off international pressure with a double-pronged strategy. On the one hand, they responded to demands from human rights advocates, international organizations, and foreign governments with hostility and flat denials of war crimes. But at the same time, they advanced an equally vehement claim that the international community must defer to domestic accountability proceedings. Whenever international pressure escalated, the regime made gestures in the direction of accountability, creating institutions tangentially linked to post-conflict justice (e.g. a commission on reconciliation, one on disappearances, and an army “court of inquiry”) deploying rhetoric about the primacy of domestic processes over international efforts. But none of these mechanisms actually addressed the question of criminal responsibility for mass atrocities, and whenever international attention waned, progress on each evaporated.
By March 2014, a critical mass of the international community was fed up with these tactics. The UN Human Rights Council requested an international investigation be undertaken by the Office of the UN High Commissioner for Human Rights, whose report was due to be presented last month in Geneva. But then things in Sri Lanka took an unexpected turn: Mahinda Rajapaksa was voted out of office in January 2015. The new government, which still includes high-ranking officials implicated in international crimes, has taken a more conciliatory approach to the international community and promised real progress on accountability. In response, the Human Rights Council agreed to a one time six-month delay in the release of the report.
It’s not yet clear how Sri Lanka will use the reprieve. Members of the new administration have stated that a domestic probe is in the works and signaled that international assistance will be welcome. And encouraging (albeit slow) steps have been taken towards releasing political prisoners and restoring military-held land in the former war zone to its rightful owners. But the fact remains that true accountability will be a tough sell domestically.
In many ways, Sri Lanka is a typical “hard case” example of a state dealing with the aftermath of mass atrocity. International crimes were committed by states forces against a vulnerable minority population in the context of a civil war. The majority ethnic group denies that these crimes occurred, making domestic investigation and prosecution politically risky. And, individuals suspected of ordering atrocities remain in high office.
Flickr/trokilinochchi (Some rights reserved)
Refugees flee from their homes in northern Sri Lanka following a 2009 military offensive.
This case therefore underscores some important issues for future efforts to pursue accountability outside of the ICC in similar contexts. First, and most obviously, without the threat of international prosecutions or other serious sanction, it is very difficult to compel domestic prosecutions. But second, all but the most intransigent governments are conscious of their international reputations and therefore sensitive to pressure. And third, international audiences can exploit this sensitivity to move governments incrementally in the direction of accountability.
It’s worth paying attention to inadequate domestic efforts at accountability, even when they are obviously disingenuous. If we think of accountability (and compliance with human rights norms more generally) as a continuum, rather than something that is either wholly present or wholly absent, we can see that international pressure can have important effects even when it doesn’t produce the desired result of criminal trials of those most responsible for atrocities.
Although Sri Lanka never faced serious risk of an international prosecution, it was nevertheless motivated to respond to international demands for accountability with the creation of a series of minimally empowered domestic institutions. The last of these, although still anemic and insufficiently independent from the executive, was explicitly tasked with investigating responsibility for international crimes. That matters, because whatever the new government chooses to do, it will have to improve upon the best efforts of the prior regime. So while prosecutions of those most responsible for the most serious crimes remain unlikely, a robust truth commission or even limited trials of lower-ranked perpetrators may now be on the table.