This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.
An impunity gap can manifest itself in several ways:
- There are no genuine international or national justice measures and/or there is a blanket amnesty.
- There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
- There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)
Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.
Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.
The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.
If impunity is defined as ‘an exemption or freedom from punishment, harm, or loss; with no care or heed for such consequences,’ would not a gap of impunity imply that there is a lack of the negative thing you criticize? An impunity gap infers that there is a space/hole located where there should be an exemption or freedom from punishment. Hence, based on your proposed concept, an impunity gap might actually refer to transitional justice mechanisms such as prosecutions, truth commissions, or some form of accountability measure for those charged with a violation of human rights. Your manifestations in fact are the exact opposite: they include ‘no genuine international or national justice mechanisms and/or blanket amnesties, etc. What you are really describing are accountability gaps.
I do not address this to be petty, but because the ethnographic work conducted by transitional justice scholars and practitioners in the field have revealed that 1) justice develops in multiple spaces and 2) people’s perceptions of what constitutes “justice” can vary; particularly regarding the subject of prosecutions and amnesties. When you introduce a term that (at least to me) infers the opposite of what you are actually conceptualizing, the assessment of transitional justice practices (or lack thereof) just became fuzzier.
If we want to examine the presence of impunity gaps, then we might start by defining these acts as phenomena that might not quite constitute the full existence of judicial practices of transitional justice (i.e. prosecutions), but rather the initiation or developing practice of addressing the presence of impunity. Hence, these acts may not be considered fully-realized transitional justice measures, but rather the blossoming of practices that could become institutionalized and accepted within a given state and society. I would even consider your example of either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. Something is there, but it is certainly not developed to the full extent as expected by those initiating and engaging with the transitional justice process. While I’m sure you are just using the term to be creative with your title, I actually think the concept “impunity gap” can actually be analytically helpful in describing those transitional justice mechanisms that are present, but not fully established. Shouldn’t it be better to use “accountability gap”?
To be fair, I am aware that Human Rights Watch also uses the term impunity gap (see their 2007 report entitled ‘Narrowing the Impunity Gap,’ but I still think there is some conceptual ambiguity that could be tightened to be analytically helpful within the field of transitional justice.