http://humanrightshistory.umich.

edu/accountability/ Resolving the Problem Alison des Forges Justice Cascade

Accountability for Human Rights Abuse
 One major policy question in the area of human
rights centers on accountability.
 As political philosophers commonly observe, the
notion that some actors hold rights implies that
others have duties.
Right Holders
Within a universal and global human rights
framework, individual human beings are the assumed
rights holders.
Duty bearers
1. State actors
As the dominant actors in global politics, states
were the presumed duty bearers, with primary
responsibility for protecting and fulfilling
international human rights norms.
Human rights violation
It is reserve to describe abuses committed by
states.
Some specialists with sensitivity to nuance
nevertheless prefer to use the generic term
human rights abuse to describe offenses by non-
state actors while reserving the term human
rights violation for state-originated offenses.
Abuses in a context of conflict may be referred to
as war crimes, whether committed by
government troops or rebel forces.
Abuses directly attributed to government
authority
1. Rumped-up charges and unfair trials for
political dissidents
2. Imprisonment
3. Torture
4. Capital punishment
5. Enforced disappearances
6. Political assassinations
2. Non-state actors
By the 1970s, human rights practitioners
commonly observed that states were not the
only actors who dirtied their hands in torture,
disappearance, assassination, and enslavement.
Government Obligations
 The responsibility of national governments to
uphold and implement international human
rights standards is not in doubt.
 International human rights law is a subset of
public international law, and as such, it engages
the commitment of nation states.
 There is, however, considerably less clarity about
the nature of government obligations.
Three-fold Responsibility of the States
Over the past two decades a consensus has emerged
that with respect to international human rights states
have a threefold responsibility:
1. to respect,
2. to protect, and
3. to fulfill their obligations
As expounded by the Office of the UN High
Commissioner for Human Rights
Policy analysis based on this tripartite understanding
of duty bearer responsibilities is commonly known as
a “human rights based approach” (HRBA).
Obligation to respect
Means that States must refrain from interfering with
or curtailing the enjoyment of human rights.
Obligation to protect
Requires States to protect individuals and groups
against human rights abuses.
The obligation to fulfill
Means that States must take positive action to
facilitate the enjoyment of basic human rights.
Armed Insurgent Groups and Other Non-State Actors
As time progressed, some governments began to
distance themselves from abusive acts by employing
paramilitary proxies, and at the same time, abusive
acts by insurgent groups became more difficult to
ignore.
Changing circumstances and changing perceptions
challenged practitioners to re-think an exclusive focus
on the state as perpetrator of human rights violations.
Human Rights Watch
That the problem is resolved by invoking standards
of international humanitarian law, applicable to
both state and non-state actors in times of conflict.
Amnesty International
That the solution proposed by HRW was not
immediately workable, as the organization was not
oriented toward abuses that transpired in times of
war.
Non-governmental Entity (NGE)
Term designated to a political actor that, while not
recognized as a sovereign government,
nevertheless acted like a government in exercising
authority — and engaging in abusive behavior.
That such groups, like bona fide governments, are
subject to provisions of international human rights
standards and must be held accountable to them.
This term was developed by Amnesty International. The specific
term non-government entity never gained much currency
beyond Amnesty International circles, and today it has largely
been replaced with the term non-state actor (NSA).
The principle that extends from AI’s work on NGEs, however,
has been widely embraced.
Individual Criminal Accountability
Justice Robert Jackson
We do not accept the paradox that legal
responsibility should be least where power is the
greatest.
A message to US Pres. Harry Truman
The Nuremberg (1945 military tribunal) and Tokyo
tribunals
 Principally concerned with prosecuting crimes
against the peace,
 They created a precedent that individuals –
state leaders – could be held criminally
accountable for war crimes and crimes against
humanity.
This development represented an explicit rejection
of the doctrine that a head of state should be
considered immune from legal liability.
United Nations
 Established a committee to draft a statute for
a permanent international criminal court.
 However, negotiations stalled and the
international community failed in that initial
attempt to create a set of binding
international legal norms on individual
criminal accountability.
 Nonetheless, the Nuremberg experience
advanced some international legal concepts
and set in motion a process for developing
international criminal law that would be
pursued within the UN’s International Law
Commission (ILC) over the next several
decades.
Ad Hoc Tribunals
Yugoslavia
Committed ethnic cleansing and other human
rights atrocities.
Helsinki Watch
 A human rights watch
 Conducted an investigation on summary
execution of civilians and other atrocities in
Yugoslavia
 Issued a two-volume detailed and
documented analysis of IHL violations
 It called for establishment of a criminal
tribunal and prosecution.
International Criminal Tribunal for Yugoslavia (ICTY)
 Established by UN Security Council thru
Resolution 827.
 The first international court established by the
UN
 The first international war crimes tribunal
since Nuremberg.
 In response to the crisis in Yugoslavia
 To put in trial those individuals most
responsible for grave breaches of the Geneva
Convention and crimes against humanity.
International Criminal Tribunal for Rwanda
 Established by UN Security Council
 To prosecute individuals responsible for
genocide and other serious violations of
human rights and humanitarian law in
Rwanda.
 A human rights watch researcher
 She documented the genocide in Rwanda
 The report was called Leave None to Tell the
Story. (800 page report.)
 She testified as an expert witness and her
report featured prominently as evidence in
several trial proceedings.
Other Tribunals
Over the next decade the UN Security Council would
authorize three additional international or hybrid
tribunals to carry out similar prosecutions.
Creating a Permanent International Criminal Court
 Due to the pressures mounting at the time the
Court for Yugoslavia was operational.
 In 1992, the UN General Assembly charged the
International Law Commission to begin drafting
a statute for such a court.
 In 1994 a draft statue for the court was issued
by the ILC.
June 1993 World Conference on Human Rights in
Vienna
Representatives of the largest human rights
organizations discuss the idea of a permanent
criminal court and begin to lay some joint plans.
Coalition for an International Criminal Court
 It was formed by the World Federalist
Movement (WFM) together with prominent
NHOs.
 It includes 2500 civil society organizations, and
among the initial members of its international
steering committee were:
1. WFM
2. Amnesty International
3. Human Rights First
4. Human Rights Watch
5. Fédération International des Droits de
l’Homme
6. International Commission of Jurists
7. No Peace Without Justice
The CICC’s work over the next three years helped
shape the terms of the debate and ultimately led to
important changes in the Statute’s final text.
Human Rights Organizations
Human rights advocates contributed substantially to
 developing the list and definition of crimes
(including crimes against humanity, and gender
crimes),
 articulating the principle and mechanisms of
complementarity between the ICC and national
courts; and
 identifying the mechanisms that would trigger
ICC engagement in a situation
Ending the Culture of Impunity
For human rights organizations the quest for the
court was primarily about ending a culture of
impunity.
Culture of Impunity
The idea that individual leaders could escape being
held accountable for the human rights abuse they
had ordered.
“Impunity” had become part of the human rights
lexicon.
The Rome Statute
 Establishes a permanent international court
with jurisdiction over the:
1. crimes of genocide
2. war crimes
3. crimes against humanity and aggression
 It was adopted by an overwhelming majority of
states
 The International Criminal Court (ICC) entered
into force in July 2002.
 More than 120 members have ratified the
Rome Statute.
 By 2013, the court had issued 30 indictments
for crimes under its jurisdiction.
Truth Commissions and Transitional Justice
Domestic Settings
Greece and Portugal
In the 1970s, each initiated domestic trials to hold
their own leaders criminally accountable for human
rights violations,
Argentina
In 1985, Argentina established the first
contemporary “truth commission,” to prosecute
members of the military Junta (1976-1982) for
human rights violations committed during the Dirty
War.
A shift in the legitimacy of the norm of individual
criminal accountability; a dramatic increase in
criminal prosecutions.
The central idea is that violations of human rights
cannot stand as legitimate acts of state. Therefore,
they must be considered as criminal acts, committed
by individuals who can and should be prosecuted in
criminal proceedings.
Termed by human rights scholars Ellen Lutz and Kathryn Sikkink.
Foreign prosecution
 This arise because human rights trials were
blocked by domestic courts.
 The most famous attempt at such a foreign
prosecution was the indictment of Chile’s
General Pinochet for human rights violations by
a Spanish Court.
Though foreign prosecution failed, the
indictment and arrest abroad changed the
domestic political context within Chile and
Pinochet was eventually indicted for human
rights violations in the Chilean courts, though
he died before the conclusion of the
proceedings.
 More than 40 heads of states have been
prosecuted domestically or internationally for
human rights crimes including among others,
1. Slobodan Milosevic (former Yugoslavia),
2. Charles Taylor (Liberia prosecuted for
crimes in Sierra Leone),
3. Jean Kambanda (Rwanda),
4. Jorge Videla (Argentina)
Rios Montt
In 2013 former Guatemalan dictator Rios Montt
(1982-1983) was convicted by a Guatemalan court
of genocide and crimes against humanity, though
Guatemala’s Constitutional Court revoked the
conviction a few weeks later on procedural grounds.
Corporate Accountability
Corporate activities touch on a wide range of human
rights concerns
While the discussion is often pursued under the
rubric of corporate social responsibility, human
rights advocates prefer to speak of corporate
accountability. The issue is not merely a semantic
one.
Corporate social responsibility generally
Refers to voluntary actions / willingness to
contribute to society and human welfare.
Corporate accountability
 Formal duties and obligations, and eventually
liabilities.
 A corporate accountability approach positions
corporations as “duty-bearers” within a human
rights framework.
 In 2008, the Special Representative proposed a
three-pronged Protect-Respect-Remedy
approach to business and human rights
Protect-Respect-Remedy Framework
 Adopted by the UN Human Rights Council and
today serves as the principal international
policy framework for issues related to Business
and Human Rights.
 Reaffirming the state’s duty to protect against
human rights abuse by third parties;
 Emphasizing corporations’ responsibility to
respect human rights and comply with all
applicable laws; and
 Asserting that remedies must be available when
rights have been breached.
In 2011, the Council created a UN Working Group on
Business and Human Rights with a three-year
mandate to implement and disseminate the UN
Guiding Principles on Business and Human Rights.
The Unocal case (1996-2005)
 In 1996 a group of Burmese villagers,
represented by EarthRights, charged that
Unocal was complicit in abuses that they
suffered by Myanmar (Burmese) military –
including forced labor, murder, and rape in
conjunction with the construction of Unocal’s
pipeline project.
 In 2005 Unocal agreed to settle the claims in
Doe v. Unocal and compensate the villagers.
Women’s Rights: Due Diligence, Private Actors, and
Domestic Violence

Bedrocks of Int’l HRs Law

 The rights of women and The Rights of men –
are set forth in the Universal Declaration of
Human Rights
 These two Covenants that provide the legal
bedrock of international human rights law.

Assertions of the Covenants

That State Parties have responsibilities to ensure
that men and women have an equal right to the
enjoyment of all rights.

Convention to Eliminate All Forms of Discrimination

Against Women (CEDAW)
 Where women’s rights are further elaborated.
 Including the right to participate in the
workplace and in public life, to freely choose a
marriage partner, and to benefit from public
health and education.
 However, these treaties are silent about
domestic violence, the most pervasive and
damaging form of physical and pyschological
abuse suffered by women around the world.

Domestic Violence
For many years, domestic violence was considered
outside the bounds of human rights concerns
because the direct perpetrators were private parties
rather than agents of the state.

Problems of DV
 During the initial period of human rights
standard-setting, human rights norms and laws
were applied only to governments.
 Government agents rarely abuse women in
ways comparable to domestic violence; hence,
it is not regarded within the human rights
paradigm.

Due Diligence Argument

 A due diligence approach to women’s human
rights underscores the government’s
responsibility to prevent, investigate and
punish acts of violence against women,
whether those acts are perpetrated by the
State or by private persons.
 It radically altered the perspective that DV is not
within the HRs paradigm.
 A government, thus, is responsible not only for
the actions of its own agents but it is also has a
duty of diligence to create and enforce laws
that will reduce the risk of abusive behavior.
 A government that fails to take such measures
may be derelict in its human rights duties – or
worse, complicit in human rights abuse.
 Due diligence has become the prevailing legal
standard for assessing the adequacy of
government action.
 It has likewise been used to establish
government responsibility for the continuing
practice of female genital mutilation (FGM).
 In 2013, the annual report of the UN Special
Rapporteur on Violence Against Women will
focus on state responsibility for eliminating
violence against women.