Accountability: Prosecuting and punishing gross violations of human rights and serious violations of international humanitarian law in the context of transitional justice processes
The Special Rapporteur shares the following recommendations:
(a) States should bring alleged perpetrators of gross human rights violations and serious violations of international humanitarian law to judgment and impose appropriate, effective penalties that are proportional to the gravity of the acts in question while ensuring that no obstacles are placed in the way of access to justice or accountability;
(b) States should refrain from having recourse to legal, judicial or de facto obstacles to accountability, such as immunities, total or partial amnesties, pardons, the application of statutory limitations or of provisions of non-retroactivity in criminal law, ne bis in idem or res judicata, or dispensations or remissions that are at odds with the determination and execution of a quantum of the sentence, since they run counter to international law;
(c) States should refrain from having recourse to exemptions that shield perpetrators from criminal punishment such as: the rule of due obedience, which is not a legally valid defence; the doctrine of command responsibility, which would prevent the judgment of hierarchical superiors that should be held legally liable for violations committed by persons acting under their effective control; or the legal concept of repentance involving the telling of the truth or the recognition of responsibility;
(d) States should remove any barrier that could result in immunity or legal protection for Heads of State and other civil servants who are authors of, or linked to, serious violations of human rights and international humanitarian law, including State or diplomatic immunity or any other form of judicial protection;
(e) Dispensations or remissions of sentence (including sentence reductions, conditional release and early release) for persons convicted of crimes against humanity should never, under any circumstance, be greater than those granted to persons convicted of ordinary offences and should be in accordance with the criteria established in the Rome Statute for the reduction of sentences for the offences specified therein;
(f) Pardons on humanitarian grounds should be permitted only in cases of terminal illness of imminent resolution;
(g) The use of house arrest on humanitarian grounds or for health reasons should be granted only when no viable option within the designated place of incarceration exists and then only as a temporary measure until the emergency situation has been resolved;
(h) States should not invoke their national laws or any legal lacunae therein as a basis for failing to conduct or for impeding criminal investigations and a rendering of account. If the legal definitions of the relevant offences do not meet international standards, then the necessary and proper legislative amendments should be introduced without delay. In the interim, States should prosecute, investigate and sentence perpetrators on the basis of the legally defined offences that most closely correspond to the punishable acts in question, having recourse to the concurrence of offences where appropriate and applying the greater penalties permitted on the basis of aggravating circumstances;
(i) Alleged perpetrators may be brought to trial in national criminal courts, in ordinary, mixed or hybrid criminal courts, or in special transitional justice courts;
(j) Military courts should not be permitted to try cases in which the defendants are members of the military or police force, agents of intelligence services or members of paramilitary forces and are accused of committing or participating in serious violations of human rights or of humanitarian law;
(k) Judicial proceedings should observe international legal standards of due process for all parties to the proceedings in order to avoid any possibility of annulment that could interfere with justice being done;
(l) Such proceedings should not be mere formalities intended to simulate fulfilment of the requirements of the criminal justice system and avoid the invocation of universal jurisdiction or the initiation of proceedings in other international criminal courts with subsidiary competence;
(m) Judicial impartiality and independence should be cross-cutting guarantees at all stages of the investigation, proceedings and sentencing. Evidence should be duly processed, the chain of custody should be carefully documented, and confidentiality should be maintained. This entails effective protection programmes for witnesses, victims and their families, which will require inter-agency and, in some cases, international cooperation. States should provide protection for legal counsel, officers of the court and judicial staff;
(n) States should provide their full cooperation at the international level in seeing to it that the national criminal court or, alternatively, the international criminal court fulfils its duty of accountability by standing ready to hand over or extradite accused or convicted persons who are in their territory, providing documentation for any and all types of evidence that may be required and furnishing visas and permits so that witnesses may appear in court;
(o) States should not provide asylum or protection to persons who have committed or who are accused of having committed serious violations of human rights or humanitarian law in order to shield them from criminal prosecution; if a State does not hand over such a person on the basis of the principle of non-refoulement, the State should put the person on trial in accordance with the international standards identified in this report;
(p) Victims should be allowed to participate fully in legal proceedings as complainants and petitioners for comprehensive reparation and in that respect should have untrammeled access to justice;
(q) Psychosocial and legal support appropriate to the circumstances in each case should be offered by States to victims and their families before, during and after the proceedings;
(r) If violations have been directed at certain persons because they belong to a specific vulnerable group, all the authorities involved in the case should apply a crosscutting rights-based approach that embodies international standards of effective access to justice and the determination of justifiably differentiated reparations;
(s) In order for access to justice to lead to effective accountability, States should promote a wide-ranging, transparent process for the dissemination of information to the public about relevant criminal proceedings in order to ensure that the population is aware of these kinds of proceedings, their structure and their possible benefits for victims, their families, communities and society;
(t) The international community, including international organizations and donors, should ensure that countries undergoing transitional justice processes fully discharge their obligation to see to it that the persons responsible for serious violations are held fully accountable and should provide the necessary support to that end;
(u) States should consider establishing the principle of universal jurisdiction in their national legal frameworks and/or permitting the exercise of such jurisdiction in their national courts.