Under international law it has been agreed that impunity concerns the lack of judicial or other prosecution following serious human rights violations such as torture, extra-judicial executions, enforced disappearances and slavery. This implies a limit to those four types of violations for all instruments that can be invoked under international law. It means also that diplomatic interventions will be limited to impunity after those four types of violations (usually called integrity rights, because the violate the integrity of the body).However there are human rights violations that go beyond these integrity rights, but are also serious in their impact and number of people affected. There are hardly any criteria by which it can be decided how serious is serious. Apart from the human rights violations that have been documented under the heading of "documentation" it could be considered to also include violations of civil and political rights like the closure of several printed media in 1984 and the attack on the office of a political party in 1996.
Among the Indonesian human rights community there is the awareness that there are several serious violations of social and economic rights that they regard as going with impunity. The international debate on fighting impunity has been hampered by the States' unwillingness to be confronted with strict measures. Impunity can be found in many countries and the United Nations is of course functioning as a meeting of culprits as well as taking the role of the international policeman. This dilemma pops up also in the debate on the Rome Statute and the International Criminal Court. This may be the reason that the Updated Set of Principles by Prof. Orentlicher never progressed beyond a list of good intentions.If impunity is given a wider scope in the direction of violations of all human rights, additional analysis is necessary to find who has been responsible - a much more difficult matter of truth finding as a first step, because there will be policy-makers, politicians and local authorities be involved. Only after that the following steps as doing justice, realizing rehabilitation and guaranteeing non-recurrence can be taken. However, in violations of civil and political, and social and economic rights the responsibility or the line of command is even more difficult to establish than in the earlier mentioned integrity rights.
This page presents four sides of the international context of impunity:
- the international definition of impunity,
- its limits as to which human rights violations are involved,
- its limits as to which perpetrators are accountable,
- the underlying principles.
Views about impunity differ widely in place and in time. The international discourse on impunity only started after the break‐down of the bipolar world order in 1989. The expression is associated with situations of gross human rights violations created or condoned by the State or created by a breakdown in the authority of the State and its institutions. The expression could also apply to any situation in which a violation of human rights goes unredressed.
The main analysis of impunity was made by Prof. Louis Joinet in his reports for the Sub‐Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights (UNCHR) in 1996 and 1997 (Joinet 1996‐1997) and in the resulting Set of Principles that was approved by the Commission in 1997.
In April 2005 the issue of impunity was on the agenda of the 61st session of the UN Human Rights Commission. It approved the revised Set of Principles drafted by the Independent Expert Prof. Diane Orentlicher. It contains a new definition of impunity and defines its limits with regard to shich human rights violations are involved, which perpetrators can be held accoauntable and what consequences should be included. You can read the whole report here.
With regard to international prosecution, succesful cases are rare. In the U.S. Alien Torts Act case, a court handed down a $14 million judgment against Maj. Gen. Sintong Panjaitan to the mother of a victim of a 1991 massacre in which an estimated 200 civilians were killed in Dili, East Timor. However, this judgment can only be enforced if he enters the US jurisdiction. In the UN-sponsored trials in Timor-Leste regarding the violence in 1999, 55 trials resulted in 84 convictions during the same period as the total failure of the ad hoc process in Jakarta concerning the same events. (ICTJ - KontraS 2011, p. 5). Prosecution in the context of the UN Rome Statute of the International Criminal Court in The Hague is not foreseeable in the near future. Indonesia has not yet ratified the Rome Statute.
Additionally there are a number of non-judicial international accountability procedures, such as:
- Reporting procedure under the UN Covenant of Civil and Political Rights
- Individual Complaint Procedure under the UN Covenant of Civil and Political Rights
- Reporting Procedure under the UN Convention Against Torture
- Universal Periodic Review by the UN Human Rights Council
- Special Procedures of UN Special Rapporteurs (on Fair Trial, on the Independence of the Judiciary, on Extra-judicial Executions, on Torture, etc.)
1. International definition of impunity
Impunity is ʺthe impossibility, de jure or de facto, of bringing the perpetrators of violations to account ‐ whether in criminal, civil, administrative or disciplinary proceedings ‐ since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.ʺ (Orentlicher 2005: p.6)
From the perspective of the Statesʹ obligations she describes impunity as follows:
ʺImpunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.ʺ (Orentlicher 2005: p. 7)
This definition of impunity implies that there are no time limits to the obligation of the State to realise a process of accountability. After a change of government the new leaders have the same obligation to bring their predecessors to justice, as they have for their own functionaries. Impunity is a failure of the State as such.
2.Which human rights violations are involved?
The violations mentioned above refer to ʺserious crimes under international lawʺ and ʺencompass grave breaches of the Geneva Conventions of 12 August 1949 and of Additional Protocol I hereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.ʺ (Orentlicher 2005: p.6)
This recent definition allows for a broad scope of impunity, broader than was the case in the Revised final report prepared by Prof. Louis Joinet pursuant to Sub‐commission decision 99/119, submitted to the UNCHRʹs Sub‐commission on Prevention of Discrimination and Protections of Minorities, when the violations in question were meant to ʺcover(s) war crimes, crimes against humanity, including genocide, and grave breaches of international humanitarian law.ʺ (Joinet 1996: p. 17 ).
Orentlicher (2005: p. 6‐7, para 13) explains the broader scope (ʺcrimes under international law and/or which international law requires States to penalize...ʺ) by referring to recent jurisprudence. Additionally, she refers to the General Comment No. 31 (2004) of the UN Human Rights Committee (2005: 22, footnote 21): “Where [investigations required by Article 2, paragraph 3] reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (art. 7), summary and arbitrary killing (art. 6) and enforced disappearance (arts. 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations ... may well be an important contributing element in the recurrence of the violations” (para. 18).
Orentlicher continues in the same, important footnote: ʺSimilarly, the Inter‐American Court of Human Rights has interpreted the American Convention on Human Rights to require States parties to investigate and punish “those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance”. Barrios Altos case (Chumbipuma Aguirre et al. v. Peru), judgement of 14 March 2001, para. 41.ʺ
It should be noted that it is questionable whether inclusion of slavery as an internationally agreed punishable human rights violation is appropriate. Orentlicher does not use her listing of violations in an exhaustive way, and does include slavery, though others, such as the Human Rights Committee in its general comment no. 31 (2004) not being exhaustive either, do not (Orentlicher 2005: fn 21).
For the case of Indonesia it is important to come to a definiton that confirms that the longstanding, massive detention with forced labour on the island of Buru should be included as being slavery.
During a workshop discussion in May 2006 with Indonesian human rights activists this limitation to the four internationally indictable crimes was debated as being too narrow and it was suggested that impunity should also relate to perpetrators of serious violations of economic, social and cultural rights. Examples were mentioned of individual responsibility for the forced evictions around Kedung Ombo (1985-1989) and other such cases that should lead (or rather have led) to prosecution.
3. Which perpetrators can be held accountable?
Based on jurisprudence of the International Criminal Tribunal on Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Court of Justice and on the agreements in the Rome Statute on the International Criminal Court, it is now accepted that presidents and ministers could only on procedural grounds be exempted from prosecution, as long as they are in function or ‐ after that ‐ if protected by their domestic laws. In 2002 the debate on immunity was touched upon by the International Court of Justice in the case of an incumbent Minister of Foreign Affairs (of the Democratic Republic of Congo, DRC) against whom an arrest warrant had been issued by the Belgian prosecution because of war crimes and crimes against humanity. The Court ruled that ʺJurisdictional immunity might well bar prosecution for a certain period or for certain offences; it could not exonerate the person to whom it applied from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs did not represent a bar to criminal prosecution.ʺ (ICJ 2004: 174)
Developments in the realm of universal jurisdiction go fast, and concepts of immunity that were an obstacle a few years ago, are changing.
4.The underlying principles
Orentlicher (2005) has taken the conceptual framework of Joinet (1997) as underlying principles to combat impunity, as her point of departure. Joinet distinguishes
- the right to know
- the right to justice
- the right to reparation
- the guarantee of non-recurrence
Orentlicher elaborates in her report on several ways that can contribute to the implementation of the right to know: truth commissions, commissions of inquiry, and the preservation of and access to archives (p. 11-12). The right to justice she elaborates on with an eye on national jurisdiction and international jurisdiction and all mixed strategies between those two. Of course this field has changed enormously since she wrote the report. Those interested can consult the website of the International Center for Transitional Justice for more information. Aspects of reparation and remedy have been elaborated and agreed by the UN General Assembly in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (December 16, 2005). The guarantee of non-recurrence is the main policy oriented one of the principles, and focuses on prevention rather than redress. Still, this part is open for improvement and should contain criteria that facilitate an assessment of preventive measures by NGOs in their own country.
It is striking that these rights to the truth, to justice and to rehabilitation are not included in the "bill of rights", but are much more loosely indicated as principles.
1. Reporting procedure under the UN Covenant of Civil and Political Rights
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All UN Member States that have ratified the UN Covenant of Civil and Political Rights are obliged to report on the progress made every four years. Although the rights to the truth, to justice and to rehabilitation, and the prevention of impunity as such are not guaranteed in the Covenant, several articles can be taken as a point of departure, such as the right to a fair trial (art. ,,), the
2. Reporting Procedure under the UN Convention against Torture
All UN member states that have ratified the Convention against Torture have to report
3. Universal Periodic Review
One of the important mechanisms to put pressure on the Indonesian Government to comply with international standards of human rights, is the United Nations Universal Periodic Review, every four years. It is considered as a peer review of a human rights situation in a country as examined by other countries. The country involved has to draft a State Report, and NGOs can submit shadow reports. Submissions from NGOs and member-states are considered first by a troika of three HRC members prepare the dealings and other HRC members give input in the form of recommendations. The state under review has to indicate which recommendations it wants to accept and implement, and which not. The (lack of) implementation is the starting point for the nex round, four years later. More information on the UPR and all submissions are to be found on www.upr-info.org/.
The Asia Legal Resource Centre (ALRC) and KontraS did a joint submission on Indonesia in 2011 for the session in 2012 (Joint Statement No 2). Read the whole statement here.
The next UPR procedure will require that NGO-submission are available by June 2016; the debate in the Human Rights Council being planned for January 2017.
4. Special Procedures of the Human Rights Council