In Hindsight: The Security Council’s Quest for Accountability
Over time, the Security Council has come to view upholding individual criminal accountability as integral to its responsibility for maintaining international peace and security. In some situations, the Council has approached this accountability as a practical tool that can have impact on the ground, aware, as well, that persistent impunity for gross violations of human rights and international humanitarian law may hamper its own ability to maintain or restore international peace and security.
The Council has proven innovative and decisive at several critical moments—establishing two ad hoc criminal tribunals in response to atrocities committed in the Balkans and Rwanda, the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. In resolution 1315 (2000), the Council requested that the Secretary-General negotiate an agreement with Sierra Leone on the establishment of a Special Court to try those bearing the greatest responsibility for crimes against humanity and war crimes committed in the country. A nimble Council sidestepped complex domestic political difficulties when it adopted resolution 1757 (2007) to bring into force the agreement between the UN and Lebanon on the establishment of the Special Tribunal for Lebanon. It also took advantage of its authority under the ICC Statute to refer the situations in Darfur and Libya to the Court in resolutions 1593 (2005) and 1970 (2011), respectively.
Even as it has grown increasingly difficult for Council members to agree to impose accountability measures in recent years, there have been advances, including headway on the chemical weapons track in Syria when it established the Joint Investigative Mechanism (JIM) in resolution 2235 in 2015, a rare moment of agreement on accountability between Russia and the US. Though the Council has been partially successful in removing Syrian stockpiles of chemical weapons, its actions ultimately fell well short of stopping chemical warfare in Syria and holding perpetrators of these attacks accountable. Russia eventually acted to terminate the JIM, sparing Syria and its officials, for now, from being held accountable for such crimes. Most recently, the broad consensus around the Islamic State in Iraq and the Levant permitted the establishment of the UN Investigative Team to promote accountability for crimes committed by Da’esh in 2017 in resolution 2379.
Although the Council’s record includes these noteworthy steps, it has at other times ignored accountability issues, whether as a strategic decision in addressing a conflict, or because it was divided or lacking in political resolve. The Council has also been inconsistent in following up on compliance with its accountability decisions. It did not adopt measures to secure member state cooperation with the ICTY, for example, in the face of persistent refusal by the Former Republic of Yugoslavia to cooperate with the Court, described by the ICTY president as “an affront to the Security Council”. It shifted the financial burden of its ICC referrals from the UN to the ICC, despite the Rome Statute specifying that the UN should finance any referrals from the Council.
In several recent situations of devastating conflict or acute violation of human rights, the Council has been unable to move beyond general rhetoric on the importance of accountability, mainly due to Council divisions over the ICC. The Council has not acted on recommendations by the High Commissioner for Human Rights and the Human Rights Council’s Independent International Fact-Finding Mission on Myanmar that the Council refer the situation in the country to the ICC (in July and August 2018, respectively). Despite support from several Council members, discussions on referring the situation in the Democratic People’s Republic of Korea in April 2014 did not lead to action. Successive HRC resolutions, the HRC’s Commission of Inquiry, and several High Commissioners for Human Rights have repeatedly and consistently called on the Council to refer the situation in Syria to the ICC, starting with High Commissioner Navi Pillay in August 2011. The Russian and Chinese veto of a Syrian ICC referral is perhaps the strongest example of the lack of shared Council resolve on accountability.
An area where Council members have in some cases advanced prevention of impunity is targeted sanctions. Though not a punitive measure, targeted sanctions, such as a travel ban or assets freeze, create a cost to perpetrators, possibly deterring them and incentivising a change in behaviour. One advantage for Council members in sanctions, as opposed to lengthy judicial mechanisms, is these measures’ potential for immediate impact. During the violent crisis in Côte d’Ivoire in 2010-2011, the Council imposed targeted sanctions on President Laurent Gbagbo in resolution 1975 of March 2011, while the ICC issued a warrant for his arrest eight months later, in November 2011. Sanctions also allow Council members to take a carrot-and-stick approach, as they can relax or tighten the measures as appropriate. The Council began adding serious violations of human rights and international humanitarian law to the designation criteria of sanctions regimes over the last 15 years or so, starting with the Côte d’Ivoire sanctions regime in resolution 1572 (2004). In some instances, listing criteria explicitly referred to acts involving sexual and gender-based violence, including, most recently, in resolution 2444 of November 2018 renewing the Somalia sanctions regime.
Consequently, the Council—both in resolutions and through its sanctions committees—has listed individuals for perpetrating crimes, for example in resolution 2428 of July 2018 on South Sudan, when in an Annex to the resolution it listed two individuals for human rights violations, one of them specifically for sexual and gender-based violence.
Overall, the Council’s use of sanctions to tackle impunity for perpetrators in situations on its agenda has been inconsistent, and the use of individual sanctions remains relatively rare: in Mali, for example, despite the fact that resolution 2374 (2017) contains the commission of human rights and international humanitarian law violations as a listing criterion, the list remains unpopulated.
Where the Council has been unable to bring justice to victims or seriously affect the course of conflicts, other actors have responded more assertively. The HRC and the OHCHR continued to be highly active in collecting evidence and seeking accountability, and establishing mechanisms such as commissions of inquiry on Syria and Myanmar. The Council has at times avoided receiving briefings from these commissions in formal meetings. On 19 March 2018, in a procedural motion, only eight Council members—one short of the required nine—voted in favour of receiving a briefing on Syria from the High Commissioner for Human Rights, who eventually briefed interested Council members in an Arria-formula meeting.
The General Assembly and other international actors have also stepped up. In December 2016, the General Assembly established the International, Impartial and Independent Mechanism to collect and preserve evidence of crimes committed in Syria for future prosecutions. When the Council was unable to adopt a resolution on the downing of Malaysian Airlines flight MH17 in Ukraine in July 2014, an international investigative mechanism, the Joint Investigation Team (JIT), put together by interested states, worked to identify the perpetrators of the attack. After the JIT concluded that the Russian military was responsible for downing MH17, several Council members called on Russia to accept its responsibility for the events in a Council meeting in May 2018.
While the General Assembly, the Human Rights Council, OHCHR and consortia of concerned states have a significant role to play in fighting impunity, they cannot substitute for the Security Council, which has the power to create binding obligations on the relevant states and on the wider UN membership to cooperate with international criminal mechanisms, and the authority to enforce its decisions.
Where the Council has upheld accountability, it has advanced the rights and expectations of victims of human rights violations and their families to see justice done, provide a remedy for past wrongs, and contribute to restoring their dignity. Beyond justice, these elements are also important for long-term stability and national, individual and historical reconciliation after brutal and divisive conflict. For the Council, continuing to come up with meaningful approaches to accountability could enhance its legitimacy in exercising its responsibilities under the UN Charter for maintaining international peace and security.
For more analysis and options regarding accountability, please refer to Security Council Report’s research report to be published in early 2019.