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Accountability for gross violations is an obligation - UN expert

12 October 2021

People participate in a protest against the approval of an amnesty bill to prosecute civil war crimes, in San Salvador, El Salvador February 27, 2020. © REUTERS/Jose Cabezas

"Accountability is a legal obligation of States, based on international human rights law. Therefore, neither political will nor State reason can be invoked to breach it," said the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli.

Salvioli was speaking at the Human Rights Council in Geneva where he presented his latest report, in which he examines the scope of the legal obligation to prosecute gross human rights violations and serious violations of international humanitarian law in the context of transitional justice processes. The report also analyses the constraints, gaps as well as opportunities in implementing that obligation in countries undergoing transitional justice processes.

Salvioli pointed out that several international agreements underline States' duty to investigate and punish serious violations of human rights and international humanitarian law, including brutal atrocities such as genocide, crimes against humanity and war crimes.

International human rights law, he added, further indicates that the punishment for such crimes must be proportionate to their gravity, and sets "limits to the imposition of legal obstacles to accountability for serious crimes," such as amnesties and statutes of limitation, even when the goal is to reach peace agreements or encourage national reconciliation.

"The early release of those convicted of serious human rights violations strengthens impunity," he argued. "Beyond legal imperatives, the requirements of life in society make clear the need to hold those responsible properly accountable. It is inconceivable that societies sanction common crimes to preserve the rule of law, while leaving the most heinous and atrocious crimes unpunished."

In his report, Salvioli explains that some countries have yet to define in terms that meet the relevant international standards crimes such as torture, enforced disappearance, genocide and crimes against humanity; those crimes are outlawed in criminal codes or special legislation in most States.

The report further highlights good practices, citing among other examples the revocation of amnesties by national courts such as the Constitutional Court of Peru that declared two amnesty laws unconstitutional in 2007; the design of prosecution strategies for gross violations, as in Argentina and Colombia; the removal of legal obstacles to criminal investigation and punishment; and the establishment of mechanisms to promote the participation of victims.

However, the report also points to omissions or insufficient actions, "which result in scenarios of total or partial impunity," and "none of which meet international human rights standards."

"At times, the urgency to achieve the cessation of the conflict or to achieve regime transition has had a negative impact on the quality of the accountability model and implementation", Salvioli said. "While the goal of achieving peace and democracy is imperative, hindering accountability - in addition to being contrary to international law - often entrenches a culture of impunity and violence, and fails to prevent the recurrence of further violations."

Salvioli further stressed that mechanisms that hinder criminal investigations and punishment in exchange for revelations of the truth re-victimize victims as they force them "to choose between satisfying their right to justice or to truth, imposing on them a disproportionate historical burden," adding that "in extreme cases, [victims] are forced to grant forgiveness to the perpetrators."

Salvioli reminded States that achieving lasting peace requires adopting processes that comply with the five pillars of transitional justice - truth, justice, reparations, guarantees of non-repetition, and memory - with the participation of victims and civil society.