The Rule of Law: The Security Council and Accountability
This is Security Council Report’s second Cross-Cutting Report on the Rule of Law. The entire report can be downloaded in PDF.
Even before the rule of law has become integral to the peacekeeping and peacebuilding efforts of the Security Council, the issue of accountability for serious human rights violations and international crimes has appeared regularly in the rhetoric of the Council. Transitioning from discourse to practice has not been simple, although the Council has expanded its toolkit of options to ensure accountability for such actions while discharging its primary responsibility for the maintenance of international peace and security.
The report focuses on Council practice regarding individual accountability for international crimes and human rights violations in the situations on its agenda. To do so, it first provides the legal context of the development of individual accountability under international law and tracks the historical background of pertinent Council practice. Against this background, the report explores eight case studies that illustrate how the Council has been dealing with issues of accountability in specific situations.
Overall, the report finds that despite its rhetorical commitment to accountability as a principle, and an understanding that accountability is a practical tool that can promote peace and security, the Council has been inconsistent in its approach to this matter. As several of the case studies demonstrate, the Council at times used the tools available to it to ensure accountability and had an impact on the ground as well as in long-term improvement in country situations. But it has been inconsistent in emphasising the importance of accountability mechanisms and measures, or following up on its own previous decisions regarding individual accountability. In some situations, when it has ignored issues of accountability, whether as a strategic decision in addressing a conflict or because it was divided or lacked the political resolve, the Council may have negatively impacted on the conflicts dealt with. While many variables are always at play in any given conflict, the cases examined show that at times, the willingness or unwillingness of the Council to back its own rhetoric with action can make a difference. Therefore, a more consistent approach by the Council, with an added emphasis on accountability issues, could have a positive impact on situations on its agenda and its effectiveness in maintaining international peace and security.
Among the conclusions of this Cross-Cutting Report are:
1. Council discourse and practice in the last two decades strongly suggest a general understanding that promoting accountability is an important tool at its disposal in discharging its primary responsibility for the maintenance of international peace and security and that–conversely–impunity and immunity can undermine international peace and security.
2. The Council has made great strides in recognising that accountability is integral to international peace and security and in advancing international criminal law. It has made accountability an integral feature of its work on country-specific issues and has regularly acknowledged the relevance of accountability to thematic issues other than the rule of law. It has also taken concrete steps to uphold individual accountability, such as ICC referrals and the establishment of ad hoc criminal tribunals, and imposing individual sanctions on perpetrators of human rights violations. Commissions of inquiry and fact-finding missions have become a tool used by the Council on numerous occasions since 1993.
3. The case studies show that the Council, at least rhetorically, considers individual accountability as integral to international peace and security. With the notable exception of Afghanistan (since September 2001), when addressing the situations examined in the present report, the Council has highlighted the importance of accountability. This has been in line with Council statements on the relevance of individual accountability to peace and security expressed in thematic debates and outcome documents on the rule of law.
4. However, Council practice is far more ambiguous, if not contradictory at times. A period of intense political attention to a certain situation or development resulting in the establishment of a tribunal or an ICC referral will be followed by periods of nothing but routine actions and little focus on the implementation of earlier accountability-related decisions, without maximising their impact. Conversely, there have been examples when focused Council attention has led to important accountability outcomes. But while the Council has at times demonstrated its resolve to hold perpetrators accountable, it has often subsequently failed to follow through, or in some cases, it has shown indifference to impunity. This was evident in several case studies.
5. At times, the Council has chosen to ignore issues of accountability altogether. What seems to be at play may be the belief that upholding accountability could be politically counter-productive in the short-term in the interest of peace. Although Council members are prompt to accept that peace and justice are complementary, in practice justice has at times been postponed or subordinated in the interest of peace.
6. This lack of consistency or attention regarding accountability may point to the fact that while paying homage to accountability rhetorically, the Council has not fully internalised the relationship between accountability and peace and security. When weighing political or financial considerations against accountability, it may often opt for ignoring accountability in favour of short-term political conciliation, short-term cessation of violence or cutting back on expenses. Or, it may simply take no action at all, even if accountability is a clear and important factor in the situation at hand. In hindsight, this has prolonged conflicts and increased costs, both in terms of lives lost and financial resources spent.
7. At times, however, the Council has served the interest of accountability in deciding not to take action, as has been the case with the Article 16 requests regarding Sudan and Kenya. In the case of Sudan, the Council has resisted political pressure from the AU and the Arab League to defer the situation from ICC jurisdiction, allowing the prosecution procedures to continue. In the case of Kenya, the Council chose not to act on its AU-backed request to defer jurisdiction from the ICC, again allowing the Court to continue to pursue the cases. Despite the positive end result, in both cases the Council has missed out on opportunities to clarify that it has not acted on these requests, in the interest of accountability.
8. The case studies highlighted different options available to the Council. One conclusion that applies across the board is that addressing accountability is key to successful engagement in conflict and post-conflict situations, and the Council cannot afford to be inconsistent if it is to successfully address these situations. The Council could resolve to consistently keep track of specific developments on the issue of accountability in situations under its consideration, for example by deciding to consider accountability more systematically during briefings and consultations and inviting experts with knowledge of the issue to brief it regularly. Informal meetings, such as “Arria formula” meetings focusing on accountability, may also help the Council to keep its focus on this issue. Maintaining focus on the issue would then lead to consequent and appropriate action, applied in a consistent manner.
9. The case studies suggest that ignoring accountability in the name of peace often leads to the opposite results, as conflict thrives on impunity. This short sighted treatment of accountability not only denies justice to the population in a given conflict zone, but by delaying the establishment of lasting peace, it is also counterproductive to the interests of other states, including states in the region.
10. While the Council has considerably advanced its accountability agenda over the course of the last two decades, there is still ample room for it to strengthen its commitment to accountability for international crimes as an important and efficient tool in discharging its task of promoting and maintaining international peace and security.