Impunity

Generally speaking, impunity refers to an offender escaping punishment for an offense that involves a particular form of harm inflicted on an offended party. Such an outcome often is due to the same conditions contributing to the offensive act in the first place. A favorable vantage ground enables a perpetrator not only to commit an offense but also to elude punishment. The related vulnerability of the victim is part of the same equation. However, when transposing this portrayal to the level of intergroup conflicts capable of culminating in crimes against humanity and genocide, a paradigm of impunity becomes discernible. The relationship of the favorable vantage ground of the offender to the vulnerability of the victim yields the principle of disparity in power relations. Within this framework, the offender, seen as relying on his power advantage, seeks and often attains impunity through the artful exercise of power politics. The methods used may include an assortment of tactics of outright denial, blame transfer, trade-offs through deal-making, intimidation, suppression of evidence, manipulative persuasion, and manipulative dissuasion. Closely related to this practice is the incidence of a culture of general indifference to the offenses at issue that is sustained by growing multitudes of bystanders. Impunity is, accordingly, seen here as intimately connected with the phenomenon of inaction that is being indulged in face of and in the wake of crimes against humanity and genocide. Accordingly, two areas emerge as of paramount importance for the understanding of the consequences of such impunity.

In the area of social psychology these consequences are related first of all to the lingering plight of the victim population and over time to their progeny. At issue is not only the matter of denial of justice that impunity implies, but also problems of residual collective trauma, frustration, bitterness, and even a pathos for revenge. Equally important, however, are the social and psychological effects of impunity bearing on the perpetrator group and those identified with it. Free from the claws of punitive justice and/or the onus of general public condemnation, these people tend to become sufficiently emboldened to twist the facts by redefining at will their offenses. Accordingly, the offenses are suppressed by a variety of methods, rationalized, minimized, or dismissed altogether. The resulting denial complex in extreme cases may also include rebutting the right of others either to question the denial or to condemn it. Inherent in this frame of mind is the tendency to perpetrate in the future similar and perhaps even more grave offenses involving genocidal violence.

The most severe consequences implicit in impunity in this respect are likely to materialize, however, when inaction incrementally becomes part of a political culture in certain areas of international relations and therefore becomes predictable. Historically speaking, this practice of predictable inaction often served as a signal for permissiveness in default. The Sultan Abdul Hamit–era Armenian massacres in the period from 1894 to 1896, their sequel, the 1909 Adana massacre, and the progressive escalation of the tempo and scope of these episodic massacres that culminated in the World War I Armenian genocide epitomize this fundamental fact. Devoid of requisite inhibitions and lacking a weighty sense of remorse, successive Ottoman governments, armed with a legacy of impunity, proceeded to decimate and ultimately destroy the bulk of their subject Armenian population.

Still, acts of genocide rarely manage to eradicate completely the targeted victim group. More often than not the survivors and their progeny remain hostage to the post-genocide incubus of haunting images and memories. The persistent tensions and animosities obtaining between Armenians and Turks, for example, remain fertile soil for the eruption of new cataclysms. Such a possibility is due to the negative reward of impunity accruing to the perpetrators of the Armenian genocide and indirectly to their heirs identified with modern Turkey.

The mitigation, if not elimination altogether, of the problem of impunity through the initiation of institutional remedies involving legal-criminal procedures is therefore of utmost relevance. Of particular concern in this respect are the matters of prevention and punishment of crimes against humanity and of genocide. Impunity as a factor can be reduced to irrelevance when a culture of punishment becomes established and its successful practice functions as a deterrent, thereby paving the ground for prevention. Institutionalized retributive justice is seen here as a principal instrument of remedy against impunity. Yet existing systems of such justice in the past have been handicapped by a whole gamut of problematic subsidiary instruments.

Notable in this respect is the lack of appropriate legislation establishing codes relative to crimes against humanity and genocide; an international criminal court competent to deal with these offenses and administer appropriate justice; operative connectedness between international laws as embedded in certain treaties, and national municipal laws.

These and other inadequacies were cast in stark relief in a series of post–World War I criminal proceedings launched against a whole series of Turkish and German offenders charged with offenses akin to crimes against humanity and genocide. As a result, the national (or domestic) criminal trials in Istanbul (1919–1921) and Leipzig (1921–1922), initiated under the pressure of the victorious Allies bearing down on defeated Turkey and Germany, proved nearly total fiascos. Moreover, rejecting the legal grounds of competence of the courts involved, Holland and Germany refused to extradite Kaiser Wilhelm II and Talaat, respectively, the latter being the architect of the Armenian genocide. The general atmosphere surrounding these legal undertakings became even more clouded when many defendants sought impunity by invoking the principle of immunity. Specifically put forth in this respect were such claims of defense as act of state, superior orders, and sovereign immunity.

Following World War II, these and other technical impediments were gradually cast away through a series of criminal proceedings against offenders charged with not only aggression and war crimes but, above all, crimes against humanity and genocide. By enunciating the Nuremburg doctrine, the Nuremberg International Military Tribunal pioneered in this respect. Its Article 6c codified the new legal precept of "crimes against humanity," which included the companion legal precept of "genocide." This was achieved by adopting and incorporating the May 24, 1915 declaration of the Allies who, for the first time, publicly and formally enunciated that principle of "crimes against humanity" in warning the Ottoman-Turkish authorities in connection with the then unfolding Armenian genocide that after the war they would be prosecuted and punished. The subsequent promulgation of the 1948 UN Genocide Convention further codified these twin legal norms in a new body of international law. Pursuant to this convention, two ad hoc tribunals were instituted to deal with new crimes encompassing, in different combinations, genocide, aggression, war crimes, and crimes against humanity: the ICTY (International Criminal Tribunal for the Former Yugoslavia), in July 1994, and the ICTR (International Criminal Tribunal for Rwanda), in December 1994.

The inauguration in July to October of 1998 of the ICC (International Criminal Court) in Rome marks the apogee of this series of legal endeavors to substitute an international system of retributive justice for the pernicious practice of impunity. When defining crimes against humanity in Article 7, for example, the framers of the statutes of this new court deliberately provided a broad scope for interpreting such crimes. They thereby discarded two major defects in the body both of the Nuremberg Charter and of the UN Convention on Genocide. These defects involved (1) limiting the victim civilian population only to "national, ethnical, or religious" groups; and (2) insisting on the presence of genocidal "intent" in the motivation of perpetrators of genocide. However, the ICC is binding only for those nation-states that are signatories to the international treaty the ICC statutes represent. As of April 2004, 139 states had signed the treaty and there were 92 ratifications. Because only 60 ratifications were required, the treaty came into force as of July 1, 2002.

Unless administered with consistency and optimal results, no criminal justice system, whether domestic or international, can be considered meaningful and functional. Given the vagaries incident to international relations and the sway of a culture of political expediency in the handling of post-conflict situations, there is no certainty that an international criminal court armed with the best available criminal statutes can under all circumstances militate against impunity and deliver appropriate justice. The treatment of the Armenian case in Lausanne in 1923 is illustrative. Through a provision of general amnesty embedded in the respective peace treaty, the first major genocide of the twentieth century was nonchalantly consigned to oblivion. This was repeated with the amnesty the Truth and Reconciliation Commission in South Africa accorded to "politically motivated" perpetrators in exchange for their willingness to provide "truthful" testimony. It appears that the intrusion of expedient politics in the administration of retributive justice will remain an abiding factor impeding the enforcement mechanisms and thereby handicapping the quest for predictable justice.

SEE ALSO Perpetrators

BIBLIOGRAPHY

Bassiouni, M. Cherif (1997). "From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court." Harvard Human Rights Journal 10:11–56.

Bassiouni, M. Cherif (1999). Crimes against Humanity in International Criminal Law, 2nd revised edition. Boston: Kluwer Law International.

Bassiouni, M. Cherif (2002). Post-Conflict Justice. Ardsley, N.Y.: Transnational.

Beigbeder, Yves (2002). Judging Criminal Leaders: The Slow Erosion of Impunity. The Hague: Nijhoff.

Burke-White, William W. (2001). "Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation." Harvard International Law Journal 42:467–533.

The Crowley Program (1999). "Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders of Turkey." Fordham International Law Journal 22:2129–2269.

Dadrian, Vahakn, N. (1997). "The Turkish Military Tribunal's Prosecution of the Authors of the Armenian Genocide: Four Major Court-Martial Series." Holocaust and Genocide Studies 11:28–59.

Dadrian, Vahakn, N. (1998). "The Historical and Legal Interconnections Between the Armenian Genocide and the Jewish Holocaust: From Impunity to Retributive Justice." Yale Journal of International Law 23:503–559.

Dadrian, Vahakn, N. (2003). History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, 6th revised edition. New York: Berghahn.

Griffin, Mary (2000). "Ending the Impunity of Perpetrators of Human Rights Atrocities: A Major Challenge for International Law in the 21st Century." International Review of the Red Cross 82:369–389.

Grigorian, Meher (2003). The Role of Impunity in Genocide: An Analysis of War Crimes Trials within the Context of International Criminal Law, ed. C. Tatz. Blackheath, Australia: Brandl and Schlesinger.

McGoldrick, Dominic (1999). "The Permanent International Criminal Court: An End to the Culture of Impunity?" Criminal Law Review (August):627–655.

Roht-Arriaza, Naomi (1995). Impunity and Human Rights in International Law and Practice. Oxford: Oxford University Press.

Schabas, William A. (2002). Genocide and International Law New York: Cambridge University Press.

Sears, Jill M. (2000). "Confronting the 'Culture of Impunity': Immunity of Heads of State from Nuremberg to ex parte Pinochet." German Yearbook of International Law 42:125–146.

Vahakn N. Dadrian