27th session, Human Rights Council
Interactive dialogue with the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence
The International Committee of the Red Cross (ICRC) compliments the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence on his report dealing with prosecutorial strategies in the aftermath of situations of violence. The ICRC believes that the report provides valuable avenues for developing such strategies and it supports the victim-oriented approach proposed by the Special Rapporteur. We would like to make further suggestions concerning the normative framework and the importance of addressing the needs of victims.
Any prosecutorial strategies aimed at prosecuting gross human rights violations and serious violations of international humanitarian law following situations of violence, including armed conflicts, should be cognizant and respectful of the broader framework of States' obligations into which these strategies fit. This framework encompasses rights and obligations stemming from various branches of international law, including international human rights law and international humanitarian law. Prosecutorial strategies should be designed to respect that framework and respond to the needs expressed by victims.
A prosecutorial strategy should be based on a systematic mapping of serious violations of international humanitarian law and gross human rights violations. International humanitarian law requires national authorities to investigate and prosecute the alleged perpetrators of serious violations. The ICRC considers that, in the aftermath of situations of violence, domestic prosecutorial strategies should strive to give life to the principle of equality and seek to cover all alleged perpetrators, irrespective of the group to which they belong. This is not to say that perfect symmetry should be achieved. Rather, this means that transparent and publicly known criteria and safeguards should be developed to ensure that violations by all parties can be investigated. No prosecutorial strategy should include amnesty for international crimes or any element capable of minimizing or trivializing the seriousness of such crimes and the penalties attached thereto. The ICRC is convinced that such amnesties and any similar obstacles to prosecution are counterproductive, are likely to fuel the cycle of violence, and fail to prevent the recurrence of the violence.
Nonetheless, the ICRC recalls that Article 6, paragraph 5, of Additional Protocol II, applicable to situations of non-international armed conflict, encourages the authorities, at the end of hostilities, to grant the broadest possible amnesty to persons who have participated in the armed conflict, with the exception of persons suspected of, accused of or sentenced for international crimes. This provision aims to guarantee that those who participated in hostilities but respected international humanitarian law will not be prosecuted for their mere participation. On paper, it sounds simple. The reality reveals that political charges are often brought against former enemies, regardless of their respect for humanitarian law, thus helping to fuel their hatred and hampering any prospect of a sustainable reconciliation process.
The ICRC agrees with the Special Rapporteur that victims should be recognized as rights holders and that their multifaceted needs – socio-economic, legal, administrative, psychological and psychosocial, as well as the need for recognition and acknowledgement of their suffering – should be taken seriously. We would add that prosecutorial strategies should seek to respond to victims' varied needs as part of the prosecution's duty to protect the public interest.
In the specific case of enforced disappearance, one of the most pressing needs expressed by the relatives of missing persons is for an individualized response concerning the fate and whereabouts of the disappeared. Prosecutorial strategies should seek to address this need for an answer and thus contribute to the full realization of the right to know. More particularly, prosecutorial strategies should be an occasion for institutionalizing the participation of victims, as noted by the Special Rapporteur. By taking into consideration the views of the victims and making sure that they are heard and that their multiple and varied needs are addressed, prosecutorial strategies would reflect a truly holistic approach to transitional justice. Also, in searching for individual answers, the availability of forensic competence, combining both a humanitarian and a criminal investigation perspective, often proves essential and should be further explored, including within specialised units mentioned by the Special Rapporteur. Capacity-building, as carried out in this domain by the ICRC, should be promoted and supported accordingly.
In closing, the ICRC stresses its commitment to and support for the work of the Special Rapporteur. We will continue to follow with interest the discussions relevant to his mandate in the Human Rights Council and the United Nations General Assembly. The ICRC is available to exchange further views on these matters with States or groups of States, and stands ready to contribute to any future discussion on this issue.