7.7 Necessary Condition: Accountability to the Law
7.7.1 What is accountability to the law? Why is it a necessary condition?
Accountability refers to the processes, norms, and structures263 that hold the population and public officials legally responsible for their actions and that impose sanctions if they violate the law. Accountability is essential if systemic threats to the rule of law are to be corrected. This involves ensuring there are consequences for criminal behavior (which is addressed in Section 7.6); mechanisms to address impunity for past crimes; and horizontal accountability (state institutions overseeing the actions of one another) and vertical accountability (citizens overseeing the actions of the state). Without accountability, human rights will be denied, crime will flourish, and impunity for past conflict-related crimes will persist, undermining legitimacy and prospects for reconciliation. The concentration of power in any one branch, institution, or level of government often leads to abuse of power and corruption that horizontal and vertical accountability mechanisms can help prevent. Accountability also aims to mitigate against capture of justice institutions by political and economic spoilers that enables impunity, favoritism, and unequal application of the law.
7.7.2 Guidance for Accountability to the Law
Transitional justice aims to end impunity for past crimes associated with the conflict, including genocide, crimes against humanity, mass atrocities, and other war crimes. It is defined as the “full range of processes and mechanisms associated with a society’s attempt to come to terms with the legacy of past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”264 In order to make perpetrators accountable for conflict-related crimes, transitional justice mechanisms may be employed, such as tribunals, truth commissions, or traditional approaches. Inter- and intra-group reconciliation is addressed in Section 10.8.3.
See Trade-off: Section 7.10.3, Peace vs. justice.
7.7.4 Protect and preserve evidence. The gathering and preservation of evidence of genocide, crimes against humanity, and war crimes is essential if there is a decision to prosecute perpetrators. International military forces and civilian actors (including specialists like forensic anthropologists) should be involved in the protection and preservation of evidence. Make this an early priority as the host nation population is often eager to recover evidence and remains of relatives. Recovery by non-professionals can jeopardize the validity of the evidence. Evidence and physical sites (e.g., mass graves) must be protected from both well-intentioned as well as hostile interference and appropriately preserved for future analysis. For more on the protection on war crimes evidence, see Section 6.8.12.
7.7.5 Choose the most appropriate transitional justice options. Support a national dialogue on transitional justice, especially with victims and marginalized groups to look at the different options. Each transitional justice process must spring from the particular needs of the country and its religious, moral or cultural norms.265 The imposition of prepackaged solutions by the international community is not advised.266 The judicial and nonjudicial options below may be combined or used separately:
Special courts or tribunals. War crimes, genocide, serious human rights violations, and crimes against humanity are typically the purview of special courts. A special court may be purely host nation, purely international, or a hybrid of the two. In establishing special courts and tribunals, international legal professionals such as judges, prosecutors, and lawyers often work with host nation counterparts to co-administer justice. Successful courts and tribunals depend on political will of regional and international actors267 and significant international funding.
Truth and reconciliation commissions.268 Truth and reconciliation commissions are official, nonpermanent, nonjudicial, and investigative bodies that can be used to address conflict-related crimes and their impact on society. Their primary purpose is to allow a society emerging from conflict as a whole to understand what happened during the conflict as well as why it happened and to pursue communal resolution.
Customary or traditional approaches. When incorporating customary or traditional approaches into a rule of law framework, consult knowledgeable host nation actors.269 Analyze the advantages and disadvantages of incorporating each customary method. Confirm that suggested approaches are valid cultural elements and are not an attempt by factions to create new mechanisms of control. Consideration of international human rights standards and fair play are paramount.270 Long-standing customary mechanisms may be used as a form of transitional justice. In addition, customary mechanisms that have fallen out of use or completely novel non-state mechanisms may also be established. This may involve establishing new mechanisms or resurrecting those that have fallen out of use.
Reparations.271 Reparations include redress for harm suffered in the form of restitution, compensation, rehabilitation, and guarantees of non-repetition. They can also include public apologies, commemorations or days of remembrance, exhumation, reburial, erection of tombstones, return of the remains of deceased relatives, issues of death certificates, holding of ceremonies for the disappeared, and teaching school children about past abuses.
Lustration. Lustration bars a class of individuals from public employment, political participation, and the enjoyment of other civil rights based on involvement with a prior regime. Best practice lustration methods make individual determinations, do not treat the whole group as black and white, and establish an administrative system to adjudicate claims for exemption in an impartial and reasonably expeditious manner.272
Vetting. Vetting seeks to exclude individuals lacking integrity from public institutions. Integrity refers to a person’s ability to serve in accordance with fundamental human rights, professional, and rule of law standards.273 Vetting requires an administrative system to carefully determine who will be excluded.
International Criminal Court (ICC). A state can refer a case to the ICC for prosecution. Where a state has ratified the Statute of the International Criminal Court, and where it decides it will not prosecute, the ICC may nonetheless assume jurisdiction where a crime was committed by a national or on the territory of the state
See Trade-off: Section 10.9.7, Restorative vs. retributive justice.
Accountability of those in power can take many forms: it can either be horizontal, meaning state institutions oversee the actions of one another, or vertical, meaning citizens oversee the actions of the state. It may be proactive or reactive; it may be centralized or decentralized;274 and it may be formal (written in law) or informal.
7.7.7 Promote the separation of powers and judicial independence. The separation of powers, a core element of the rule of law, should ideally be articulated in a newly drafted or reformed constitution, along with judicial independence. The judiciary should function as a check on executive and legislative authority. In the immediate aftermath of violent conflict, the justice system is often the sole means for holding those in power accountable for criminal conduct. Matters such as judicial appointment, judicial qualifications, duration of terms, conditions of promotion, the transfer and cessation of their functions, and judiciary independence from the executive and legislative branches should be written into law and be consistent with international standards.275 Protecting judges from intimidation or harm and ensuring that judges are adequately remunerated276 helps prevent improper influence from those seeking to control or undermine the justice system. Medium- to long-term initiatives to strengthen judicial independence include (1) ensuring that there is a sufficient number of judges in relation to case loads and providing the courts with necessary support staff and equipment;277 (2) passing codes of conduct; (3) providing for self-governance where the judiciary can control its own administrative, oversight, and disciplinary functions through bodies such as a judicial council; and (4) providing for random and automated case assignments, simplified procedures to reduce undue delay, public court hearings, publication of court verdicts, and public information centers.278
7.7.8 Support the use of horizontal accountability mechanisms. A new constitution can establish such mechanisms but understand they require resources and long-term sustainment. Significant international assistance will be needed to establish and maintain many of these accountability mechanisms after conflict. This includes providing technical assistance in the drafting of related laws, facilitating the sharing of comparative experiences from other societies emerging from conflict, giving initial financial support for infrastructure, capacity building, and training and monitoring the performance of those engaged in these mechanisms. Horizontal accountability mechanisms can take many forms:279
Internal accountability through supervision, internal reviews of actions, code(s) of conduct, disciplinary systems, and performance reviews.
Executive accountability by the head of state, ministries, national justice advisory boards, or coordinating bodies through command authority, setting of basic policies, budget management, and power to investigate claims of abuse.
Legislative accountability by the parliament or parliamentary oversight bodies through hearings, budget approval, enacting laws, and visiting and inspecting facilities.
Judicial accountability by courts through adjudicating cases brought against justice actors, protecting human rights, monitoring the powers of justice officials, assessing constitutionality, providing remedies, and inspecting police or prison facilities.
Accountability by independent bodies (e.g., an ombudsman, national human rights institutions, audit offices, inspectors general) that receive complaints, raise awareness of human rights, investigate claims of failures and abuses, and ensure proper use of public funds and compliance with policy.280
7.7.9 Provide for vertical accountability mechanisms. Vertical accountability is typically undertaken by civil society and media with the support of the general population. It occurs through analyzing, being part of consultations on new laws, lobbying, providing alternative views to the population, investigative reporting, and monitoring of the justice system and other branches.281 Promote accountability through involvement in budget formulation, analysis, and tracking of justice sector and other government expenditures; the establishment of watchdog or monitoring functions; public interest litigation; and participatory performance monitoring of public service delivery. The population can support the accountability mechanism by filling out scorecards or surveys rating the performance of the justice sector and that of other government institutions. Vertical accountability requires a well-established civil society and independent media. See Section 8.8 for more on accountability through civil society and the media.
7.7.10 Consider international engagement as a necessary safeguard for accountability.282 The international community often plays an important role in creating effective accountability structures, including those for initial vetting, hiring, and disciplinary processes for criminal justice actors. The international role requires host nation invitation or an international mandate. If an international process is in place, engage host nation actors early and frequently. Consider the establishment of a hybrid international-host nation commission or a host nation commission with an international secretariat. For the transformation from impunity to accountability to take place, host nation members of these institutions must take increasing risks and responsibility for disciplinary action. Those who do so should not be abandoned by the international community. Rather, their success should be guaranteed by a long-standing commitment to ensure the ability of accountability structures to prevent impunity from reasserting itself.