Strengthening Accountability and Justice for Serious Violations of International Law
Expected Council Action
In June, Albania is organising a high-level open debate on “strengthening accountability and justice for serious violations of international law” as a signature event of its presidency. Albanian Prime Minister Edi Rama is expected to chair the meeting.
The expected briefers are Joan E. Donoghue, President of the International Court of Justice; Michelle Bachelet, UN High Commissioner for Human Rights; and a representative of civil society.
Background
Accountability for serious violations of international law has received renewed attention from the international community following Russia’s invasion of Ukraine. Several reports of potential violations of international law in Ukraine have emerged in recent months. In a 3 April report, for example, Human Rights Watch documented a number of possible cases of Russian military forces committing war crimes against civilians in the Chernihiv, Kharkiv and Kyiv regions of Ukraine between 27 February and 14 March, including cases involving allegations of repeated rape, summary execution and unlawful violence.
These reports have led the international community to implement different measures that are designed to facilitate accountability for violations of international law committed in Ukraine. On 2 March, ICC Prosecutor Karim Asad Ahmad Khan announced that he had decided to proceed with an active investigation into the situation in Ukraine after receiving referrals from 39 ICC States Parties. After holding an “urgent debate on the situation of human rights in Ukraine stemming from the Russian aggression” on 3 and 4 March, the Human Rights Council (HRC) established the Independent International Commission of Inquiry on Ukraine (ICIU). The ICIU’s responsibilities include investigating “all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of aggression against Ukraine by the Russian Federation”, as well as preserving information, documentation and evidence of such violations and abuses in view of any future legal proceedings.
Accountability for violations of international law is also an important issue in several other files on the Council’s agenda. In Syria, parties to the conflict continue “to commit with impunity serious violations of international humanitarian law, including war crimes, crimes against humanity, and other gross human rights abuses”, according to Amnesty International. A May 2014 draft resolution that would have referred the situation in Syria to the ICC was vetoed by China and Russia.
While the Council has found it difficult to reach agreement concerning accountability for violations of international law and human rights abuses in Syria, other organs of the UN have established mechanisms that seek to hold perpetrators accountable. In August 2011, the HRC established the Independent International Commission of Inquiry into the Syria Arab Republic. Among other matters, its mandate includes investigating all alleged violations of international human rights law in Syria since March 2011 and, where possible, identifying those responsible with a view to ensuring they are held to account. In December 2016, the General Assembly created the International, Impartial and Independent Mechanism to Assist in the Investigation of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM). The IIIM is responsible for collecting, preserving, and analysing evidence of violations of international humanitarian law and human rights in order to facilitate fair and independent criminal proceedings.
The HRC has also created similar mechanisms for Myanmar, another country situation in which it has been difficult for the Council to achieve consensus concerning accountability. In March 2017, the HRC mandated the Independent International Fact-Finding Mission on Myanmar (IIFFMM) to establish the facts and circumstances of alleged human rights violations by military and security forces in Myanmar. In August 2019, the IIFFMM handed over the evidence it had gathered to the Independent Investigative Mechanism for Myanmar (IIMM), a body created by the HRC in September 2018 to collect evidence of the most serious international crimes and violations of international law in Myanmar and prepare files for criminal prosecution. The International Court of Justice is also hearing the case brought by the Gambia concerning alleged genocide against the Rohingya population of Myanmar.
Yemen is another file where the Council has been unable to take effective action on accountability. Council products on Yemen, for example, contain only limited language on accountability for violations of international humanitarian law and human rights law. Partly due to the lack of action from the Council in the face of apparent serious violations of international law, on 29 September 2017, the HRC created the Group of Eminent International and Regional Experts on Yemen. The Group was tasked with monitoring and reporting on the human rights situation in Yemen, as well as conducting a comprehensive examination of all alleged violations and abuses of international law committed by all parties to the conflict, among other matters. In October 2021, the HRC voted against extending the mandate of the Group, reportedly after lobbying by Saudi Arabia and coalition allies.
The Security Council has referred two situations to the International Criminal Court (ICC): the situations in Darfur, in resolution 1593 (2005), and in Libya, in resolution 1970 (2011). While imposing an obligation on parties to the conflict to cooperate fully with the ICC, the resolutions urged states other than Sudan and Libya to cooperate with the ICC but noted that they were under no obligation to do so.
National courts exercising universal jurisdiction are also playing a greater role in ensuring accountability for international crimes. In January, for example, a German court convicted Anwar Raslan, a senior official from the Assad regime, of crimes against humanity committed in Syria. International investigative mechanisms, including the IIIM, are increasingly working with national authorities to assist with these prosecutions. As at the end of January, the IIIM had assisted 13 jurisdictions with 143 discrete investigations into serious international crimes committed in Syria.
Albania has prepared a concept note ahead of the open debate. The concept note outlines several objectives for the meeting, such as drawing on past practices and current challenges to develop a strategy for the international community to enhance its role in holding perpetrators accountable for violations of international law; exploring ways to strengthen accountability mechanisms at the national, regional and international level; and bringing attention to the situation of victims. It also sets out questions to guide the discussion, including:
- What are the steps that the Council could take in order to strengthen and institutionalise international legal principles of accountability and the related mechanisms for them to have an impact in practice?
- What are some of the possible venues to enhance accountability, including through the creation of an accountability network between the ICJ, ICC, OHCHR and different legal regimes and other regional justice institutions?
- How can we ensure the right to appropriate reparation for victims so that they can obtain effective remedies for the harm they have suffered?
Key Issues and Options
Following the meeting, Albania could consider preparing a Chair’s summary that captures the ideas and suggestions generated during the discussion. Given the number of files on the Council’s agenda in which accountability for violations of international law is a major issue, Council members could create an Informal Expert Group on Accountability. This Group could push the Council to take a more consistent and concerted approach to facilitate accountability. It could also request a white paper from the Secretariat that makes recommendations as to how the Council could achieve this aim.
Council members could consider holding a closed Arria-formula meeting with legal experts to discuss ways in which accountability can be pursued in a complementary fashion with other aspects of transitional justice, such as reparations and truth-telling, in order to promote peace and security in post-conflict settings.
At a later date, the Council may also wish to consider requesting a briefing from a senior official from one of the investigative mechanisms, such as Catherine Marchi-Uhel, the head of the IIIM. This briefing could provide Council members with the opportunity to learn more about how the Council can support the work of these mechanisms.
Council Dynamics
Council dynamics concerning accountability for serious violations of international law are difficult. Council members have generally been unable to agree on a consistent approach to accountability across the different files on its agenda and tend to tailor their response to individual cases based on their broader strategic interests. In Ukraine, for example, the P3 and other like-minded members have regularly called for accountability for violations of international law that have allegedly been committed by Russia. On the Yemen file, on the other hand, some of these members, several of whom are customarily at the forefront of pushing for accountability measures, have been reticent to call for accountability for apparent violations committed by the Saudi-led coalition. Similarly, Russia has advocated for accountability for alleged international crimes committed by the US in Afghanistan while resisting the implementation of accountability initiatives in Syria and Ukraine. These dynamics are likely to persist in the future.
| Security Council Resolutions | |
| 17 March 2011S/RES/1973 | This resolution was adopted with ten votes and five abstentions and authorised all necessary measures—excluding an occupation force—to protect civilians in Libya and enforce the arms embargo, imposed a no-fly zone, strengthened the sanctions regime, and established a panel of experts. It also referred the situation in Libya to the International Criminal Court. |
| 31 March 2005S/RES/1593 | This resolution referred the situation in Darfur to the International Criminal Court. |
