Definitions

Accountability: The principle and practice of holding individuals responsible for violations of domestic and international law, particularly in cases involving atrocity crimes and serious human rights violations.

Goals of Accountability

The goal of accountability in a post conflict transition is to address injustices and crimes committed during a conflict and prosecute those responsible. Accountability may serve to:

• Prevent future atrocities: Accountability demonstrates that perpetrators of serious crimes shall not enjoy impunity.
• Establish the truth: Court judgements help to document and establish a truthful account of events—preventing denial or revisionism.
• Justice: Provide a sense of justice, closure, and acknowledgment for victims.
• Individual responsibility: Ensure that responsibility is placed on individuals rather than entire communities or groups, preventing collective guilt.
• Foster peace and healing: Addressing past grievances through lawful means contributes to reconciliation among affected communities and lays the groundwork for a more just and stable society.

Why Include This Chapter

The inclusion of an Accountability Chapter in a peace agreement may serve to:

• Define domestic structures that are to be relied upon for prosecution of human rights violations and crimes;
• Acknowledge ad hoc accountability mechanisms established by the international community;
• Set out the establishment of new (domestic, international, or hybrid) mechanisms to prosecute those responsible for committing human rights violations and international crimes;
• Refer crimes to existing international courts such as the International Criminal Court, if applicable, to utilize existing mechanisms.

Core Issues Addressed

Parties to peace negotiations have a wide variety of options when seeking to integrate accountability into the peace agreement.

The domestic legal system and the scope and nature of the conflict are factors that parties will consider to determine the most appropriate avenues for accountability. Jurisdiction for conflict-related domestic and international crimes may already be provided for in domestic criminal courts, and parties might decide to pursue accountability through these courts provided the integrity of the judicial system has remained intact. Through provisions in the peace agreement, parties may also opt to establish a special chamber in the domestic courts tasked to address conflict-related domestic and or international crimes or a new hybrid court that combines international and domestic judicial processes. Provisions in the peace agreement might also provide for a jurisdictional path for the International Criminal Court (“ICC”) to investigate and prosecute alleged perpetrators. Parties may also employ a combination of these accountability mechanisms.

Most peace agreements address the following core issues in a Chapter on Accountability Mechanisms:

• Commitment to Accountability: This section provides a general statement of commitment to accountability processes as part of a more comprehensive framework aimed at promoting justice, peace and reconciliation.
• Domestic Courts: This section discusses how and which domestic courts will be responsible for prosecuting the conflict-related crimes. The section defines the scope of domestic jurisdiction and provides for fair trial rules. This section discusses:
• Domestic Judicial Proceedings: focuses on the establishment of judicial systems of accountability.
• Special Domestic Courts: addresses whether a new court or set of chambers will be established to try perpetrators of specific crimes or crimes related to specific events. This section would include defining the mandate and scope of jurisdiction of these special domestic courts.
• Use of Existing National Courts: defines whether and which existing national courts will be relied upon for prosecution of crimes.
• Fair Trial Guarantees: acknowledges that fair trial rights will be observed during the trials, including the rights of the defense.
• Victim and Witness Protection: establishes victim and witness protection schemes to ensure the safety of all those part of the proceedings.
• Ad Hoc International Tribunal: If applicable, this section recognizes an ad hoc international tribunal’s jurisdiction in situations where the international community has already established one. This section can also include provisions acknowledging the parties’ commitment to cooperate with such a tribunal. This section discusses:
• Recognition of the Tribunal’s Jurisdiction: recognizes the established tribunal and commits the parties to comply with its mandate.
• Hybrid Court: If applicable, this section outlines provisions committing the parties to establish a hybrid court, including the possible mandate this hybrid court would have, where it would be seated, its composition, and the parties’ commitment to cooperate and support the court. This section discusses:
• Establishment: commits the parties to establishing a hybrid court.
• Mandate: outlines the mandate that the hybrid court will have, including the crimes it will address and the laws it will apply during trials.
• Location: outlines where the hybrid court would be located and conduct trials.
• Composition: provides for the composition of the court’s staff, focusing on whether and how many of the judges will be international or domestic.
• Cooperation and Support: commits the parties to cooperate and support the hybrid court in the execution of its mandate.
• International Criminal Court: This section discusses the role of the ICC in post-conflict accountability. The purpose of this section is to commit the parties to refer the situation to and or cooperate with the ICC in the prosecution of crimes. This section discusses:
• Ratification: encourages or commits the parties to undertake steps toward ratifying the Rome Statute and aligning domestic legislation with its obligations.
• Referral: includes provisions for parties to refer the situation to the ICC, if the ICC has not already opened such an investigation.
• Scope of Jurisdiction: defines the temporal and geographic scope of jurisdiction the ICC could have.
• Cooperation: commits the parties to cooperate with the work of the ICC, including by providing access to evidence and witnesses.
• Extradition of Indictees: commits the parties to extradite persons indicted by the ICC for trial.

Commitment to Accountability

Note to Drafters: While accountability is perhaps one of the most commonly expected trajectories of post-conflict plans, the majority of peace agreements do not explicitly mention accountability and if they do, they use vague language to emphasize their commitment to justice without providing further details. Often they combine accountability with other transitional justice tools, such as amnesty, to emphasize its limited scope. In other cases, parties may have specific plans for accountability mechanisms, such as domestic, hybrid, or international proceedings.

All Parties shall comply with their obligation to cooperate in the investigation and prosecution of serious violations of international humanitarian law.

All Parties agree that criminal proceedings shall be instituted against perpetrators of the most serious crimes, as set out in applicable laws.

Individuals who are not granted [pardon / amnesty] through the legal instruments in force [amnesty law], may be investigated and prosecuted according to the applicable laws.

The [state] shall apply the rules for criminal prosecution against the criminal individuals and organisations and conduct that are the subject of this agreement, with respect for human rights in all of its acts.

Domestic Prosecutions

Note to Drafters: Although societies emerging from conflict sometimes lack the political will and legal capacity to hold domestic prosecutions, there are instances where the local judicial system will be effective enough to support domestic prosecutions of alleged perpetrators. States can commence domestic prosecutions separately or in conjunction with international prosecutions.

The Parties agree that individuals responsible for [specific crimes, e.g., human rights violations, political crimes, property damage, etc.] shall be subject to investigation and prosecution before the competent domestic judicial authorities of [state], including, where appropriate, [national courts] / [specialized chambers within the national judiciary] / [military courts] / [customary or traditional courts] / [a newly established special or transitional justice court].

Domestic judicial proceedings shall be conducted in accordance with applicable national and international legal standards and shall complement the work of [the International Criminal Court] / [an ad hoc international tribunal] / [a hybrid court], in accordance with the principle of complementarity.

Special Domestic Courts

Note to Drafters: Due to the high number of violations and crimes that typically occur in conflict situations, parties sometimes choose to establish special domestic courts or a chamber within domestic courts to address all the conflict-specific violations without overburdening regular courts. Parties may also establish mobile courts to facilitate access to those living in remote areas. Mobile courts have been used in other post-conflict contexts to increase reach and effectiveness.

In recognition of the need for accountability for serious crimes committed during the conflict, the Parties agreed to establish a specialized [Domestic War Crimes Court] within the national judicial system. The Court will operate in compliance with national legislation and international human rights standards.

In recognition of the need for accountability for serious crimes committed during the conflict, and the importance of ensuring access to justice in all affected areas, the Parties agree to establish specialized mobile courts within the national judicial system. These mobile courts shall be mandated to hear cases related to conflict-related crimes and shall operate in compliance with national legislation and international human rights standards.

Mobile courts may be deployed to areas where the regular judiciary is not fully functional or accessible. The composition, mandate, and procedures of the mobile courts shall be determined in accordance with national law and developed in consultation with affected communities and relevant justice sector actors.

Mandate

Note to Drafters: The special domestic court can have a wide variety of mandates: (1) it can be mandated to address all conflict-related violations; (2) only the most serious violations (similarly to hybrid and international courts, if one is not established); or (3) prosecutions of mid- and lower-level officials reserving the prosecution of the higher level officials and serious crimes to international courts, such as the ICC, or a hybrid court.

The [domestic war crimes court] shall have the mandate to investigate and prosecute all conflict-related violations, including but not limited to [war crimes, crimes against humanity, genocide, sexual and gender-based violence, environmental crimes, corruption, and other violations]. The Court shall exercise full jurisdiction over all persons responsible for these violations, regardless of rank or affiliation, in accordance with international legal principles.

The [domestic war crimes court] shall prosecute only the most serious violations of international humanitarian and human rights law, including [war crimes, crimes against humanity, and genocide]. This Court shall focus on those bearing the greatest responsibility for these crimes, in accordance with international legal principles.

The [domestic war crimes court] shall be tasked with prosecuting mid- and lower-level individuals responsible for conflict-related crimes. This Court shall complement the work of [the ICC] / [international criminal tribunal] / [hybrid tribunal].

Scope of Jurisdiction

Note to Drafters: The Parties can include specific language on the geographical or temporal scope of the Court’s jurisdiction. This is used to ensure that the Court’s jurisdiction remains focused and does not become unfeasibly broad.

The [domestic war crimes court] shall be empowered to prosecute crimes committed during [time period] in [geographical area].

Use of Existing National Courts

Note to Drafters: Some parties choose to rely on the regular national courts for the prosecution of conflict-related violations. In this instance, parties may decide to agree to contribute resources to strengthening the existing national courts and empowering them to address the conflict-related violations.

Domestic courts within the national judicial system of [state] shall have jurisdiction to prosecute individuals who committed crimes within [timeframe] in [state] / [geographical area].

The Parties commit to strengthening the capacity of the national judiciary by [specific measures, e.g., training judges, prosecutors, and defense lawyers, reforming legal procedures, ensuring adequate resources, etc.], to effectively handle investigations and prosecutions related to the conflict.

Fair Trial Guarantees

Note to Drafters: To ensure legitimacy of domestic trials, parties can incorporate provisions acknowledging the maintenance of fair trial guarantees during these proceedings, as well as refer to specific human rights conventions that will be followed during the prosecution of conflict-related violations.

Domestic prosecutions shall be conducted in accordance with [relevant legal standards, e.g., national law, international human rights law, constitutional provisions], ensuring adherence to fair trial standards and due process.

Victim and Witness Protection

Note to Drafters: To ensure the protection of victims and witnesses during domestic trials, the parties can incorporate provisions establishing a robust framework for victim and witness protection. This can include measures such as secure testimony procedures, anonymity where necessary, and physical protection to prevent retaliation. Additionally, provisions for psychological and legal support can ensure that victims and witnesses are treated with dignity and respect throughout the judicial process.

The Parties agree to establish a comprehensive Victim and Witness Protection Program, which will include [secure testimony procedures], [anonymity], [relocation services], and [physical protection] to ensure the safety and security of those participating in the prosecution of conflict-related crimes.

In addition to physical protection, the Parties commit to providing psychological and legal support to victims and witnesses, with special provisions for [vulnerable groups], [women], [children], [former child combatants], [defectors], to ensure their participation in the justice process without fear, intimidation, or harm.

[In cases of sexual and gender-based crimes, additional safeguards may be applied, such as [closed-door hearings], [gender-sensitive interview protocols], [the option of same-gender counsel], and [other procedures to prevent re-victimization].]

Ad Hoc International Tribunals

Recognition of the Tribunal’s Jurisdiction

Note to Drafters: Ad hoc international tribunals are judicial venues that the international community has established to prosecute alleged perpetrators under international law. While parties cannot themselves establish an ad hoc international tribunal, when one is established, they can affirm the tribunal’s jurisdiction and commit to cooperate with this tribunal. The parties can also explicitly acknowledge that any amnesties or domestic laws adopted following the conflict will not hinder the work of the tribunal.

The Parties acknowledge the jurisdiction of the [name of the ad hoc tribunal or specific tribunal] as established by [UN Security Council resolution or relevant international agreement].The Parties affirm their commitment to respect the Tribunal's mandate, decisions, and processes.

The Parties agree to cooperate fully with the Tribunal in accordance with its rules and procedures. This cooperation includes, but is not limited to, the investigation, arrest, and transfer of individuals indicted by the Tribunal, the provision of evidence and documentation, and facilitating access to witnesses.

The Parties acknowledge that the provisions of this Agreement shall not diminish, restrict, or impair the independent jurisdiction and authority of the Tribunal. Any domestic laws, amnesties, or agreements adopted by the Parties shall not absolve individuals from prosecution by the Tribunal for crimes within its jurisdiction, including genocide, war crimes, and crimes against humanity.

The Parties agree to implement necessary legal and administrative measures domestically to ensure compliance with the Tribunal’s orders and to facilitate cooperation in accordance with international law.

Hybrid Courts

Establishment

Note to Drafters: As opposed to entirely domestic courts, hybrid courts are special courts that incorporate international and domestic elements, including both international and domestic laws as well as staff. During peace negotiations, parties can agree to establish a hybrid court that will combine international and domestic elements. Generally, hybrid courts focus on prosecutions of the most serious crimes.

The Parties agree to establish the [name of the court] to investigate and prosecute individuals responsible for serious crimes committed during the conflict in [state] during [specific timeline].

Mandate

Note to Drafters: The mandate for a hybrid court defines its authority, including the types of crimes it will address, the scope of its jurisdiction, and the legal frameworks it will apply. Parties often outline that the tribunal will integrate international and domestic legal standards to ensure effective and fair adjudication of serious crimes. The specific application and substance of the law, however, is generally provided for in the statute of the court. This statute can specify whether the court will follow common law, civil law principles, or a specific mixture of various legal traditions, and whether domestic law or international law will be prioritized in trials, among other concrete aspects.

The [name of the court] shall have the mandate to prosecute individuals responsible for [serious crimes] / [international crimes] committed during the conflict including [designate specific crimes] and [specified timeline].

The [name of the court] shall apply both substantive domestic law and substantive international criminal law. The [name of the court] shall also apply a combination of procedural domestic and international law, to be defined by the court’s implementing legislation.

Location

Note to Drafters: A hybrid court can be located either in the state where the conflict occurred or outside the territory, depending on the interests of the parties, security considerations, fair trial guarantees, local involvement, political optics, or institutional capacity. Temporary offices can be established in other locations as necessary.

The [name of the court] shall be located in [city] / [state].

Composition

Note to Drafters: Hybrid courts typically consist of both international and domestic legal professionals. Hybrid courts can appoint both international and domestic judges on the panel in equal roles or international professionals can be appointed only in support and advisory roles for the domestic legal judges, prosecutors, and defense counsel.

The [name of the court] shall be composed of [number of] domestic judges and [number of] judges appointed by [the United Nations] [another recognized regional or international institution]. All judges shall hold equal status and have identical conditions of service, ensuring balanced representation and decision-making in the Court’s proceedings.

Judges shall be appointed based on merit and professional competence, with due consideration given to experience in relevant areas of law, including international criminal law, international humanitarian law, and human rights law. All appointees must possess high moral character, demonstrated impartiality and independence, and a strong commitment to the rule of law and fair trial standards.

The [name of the court] shall comprise judges, prosecutors, investigators, and defense counsel of [state] nationality. International experts will be appointed to the Court in advisory and support roles, providing specialized international legal expertise to enhance the Court’s capacity while the primary judicial functions remain under the purview of domestic professionals.

Domestic personnel shall be selected in accordance with national procedures, ensuring that appointees demonstrate professional competence, integrity, and independence in the exercise of their duties. International experts shall be chosen based on their experience in relevant legal fields and their capacity to support and strengthen domestic judicial processes through technical guidance and knowledge transfer, in line with international standards.

Cooperation and Support

Note to Drafters: Cooperation and support for the hybrid court are essential for its effective operation. Parties typically outline their commitments to provide support to the tribunal and seek the help from international actors to secure resources, including financial, logistical, and technical support.

The [name of the court] will be funded by contributions from [national resources], [international donors], [list other sources of funding].

The Parties shall cooperate with the [name of the court] in the execution of its mandates, including facilitating access to evidence and witnesses.

International Criminal Court

Referral

Note to Drafters: The International Criminal Court (ICC) is an independent, permanent court located in The Hague, Netherlands. The Court was designed to try individuals accused of the most grievous atrocity crimes, including crimes against humanity, genocide, war crimes, and more recently the crime of aggression. There are a number of ways that parties to a peace negotiation can seek to provide the ICC with jurisdiction and language included in the peace agreement may vary depending on that.

The Parties acknowledge that [state], being a State Party to the Rome Statute of the International Criminal Court (ICC), has accepted the jurisdiction of the ICC in accordance with the Rome Statute. In line with this recognition and pursuant to Article 13(a) of the Rome Statute, The Parties hereby agree to refer the situation arising from the conflict to the Prosecutor of the ICC. This referral concerns alleged crimes within the ICC’s jurisdiction committed in [geographical contours of "the situation"].

The Parties agree that [state], while not currently a State Party to the Rome Statute of the International Criminal Court (ICC), will take immediate steps towards ratifying the Rome Statute. This process shall be completed within [specified timeframe], ensuring [state] fully adheres to the obligations and jurisdiction of the ICC.

In anticipation of the ratification of the Rome Statute, the Parties agree that [state] shall refer the situation arising from the conflict to the Prosecutor of the ICC in accordance with the Declaration of acceptance of the jurisdiction of the Court. The Parties further commit to cooperating fully with the ICC, both before and after the ratification, in accordance with the principles and obligations enshrined in the Rome Statute.

The Parties acknowledge that [state] is not a State Party to the Rome Statute of the International Criminal Court (ICC). The Parties nonetheless agree to refer the situation arising from the conflict to the Prosecutor of the ICC and submit a formal declaration under Article 12(3) of the Rome Statute accepting the jurisdiction of the ICC over alleged crimes committed on [territory] from [specified timeframe]].

The Parties acknowledge that the Security Council has referred the situation in [state] to the ICC. The Parties commit to fully cooperate with the Court in its effort to prosecute perpetrators of atrocities.

Scope of Jurisdiction

Note to Drafters: If the relevant state is a state party to the ICC, the parties, when referring a situation to the ICC, can specify the geographic, temporal, personal, and subject matter scope of the referral. Nonetheless, the ICC Prosecutor retains the power to expand the scope of the investigation within the contours of the Rome Statute.

The referral to the ICC will specifically note the jurisdiction of the Court. The referral will note that the ICC has jurisdiction over [crimes against humanity], [genocide], [war crimes], and [the crime of aggression] committed in [designate the geographic location]in [state] from [designate the start date] until [designate the end date].

Cooperation

Note to Drafters: The ICC work is limited by the cooperativeness of states over which it has jurisdiction. Generally, the ICC will only be able to fully investigate and try crimes committed in a specific state or territory when it can obtain the cooperation from the respective state for accessing evidence and extraditing the accused. For this reason, the parties can specify their commitment to cooperate with the ICC.

When including provisions on the cooperation with the ICC, parties can explicitly refer to the Rome Statute’s Part 9 on International Cooperation and Judicial Assistance. It outlines the legal framework for how states are expected to cooperate with the ICC to ensure that it can effectively investigate, prosecute, and adjudicate cases involving genocide, war crimes, crimes against humanity, and other serious international offenses.

The Parties acknowledge that they are under a stringent obligation to cooperate with the ICC and to render judicial assistance by providing access to relevant evidence and facilitating the ICC's investigations, prosecutions, and arrests as requested. This cooperation shall include supporting the ICC’s efforts to protect and assist victims and witnesses and responding to the Court’s requests and orders in a timely manner.

The Parties shall not interfere with the investigations and trials conducted by the ICC and shall ensure the protection and safety of all prosecutors, defense counsel, defendants, victims, and witnesses.

In facilitating the work of the ICC, the Parties express their commitment to the provisions listed in Part 9. International Cooperation and Judicial Assistance of the Rome Statute.

Extradition of Indictees

Note to Drafters: Similarly as with investigations, the ICC requires the cooperation of states to arrest and extradite indictees. When acknowledging their commitment to the extradition of indictees, the parties can refer to Article 89 “Surrender of persons to the Court” of the Rome Statute, which requires states parties to arrest and surrender individuals to the ICC if a valid arrest warrant has been issued, ensuring the transfer of suspects to the Court’s custody for trial.

The [state] shall permit and facilitate the extradition of those summoned and accused in ICC investigations.

The [state] shall act in compliance with Article 89 “Surrender of persons to the Court” of the Rome Statute.

Further Readings

• International Committee Of The Red Cross, Ad Hoc Tribunals
• Democratic Progress Institute, Accountability and Reconciliation in Peace Processes
• Dr. Paul R. Williams, Lawyering Peace: Infusing Accountability into the Peace Negotiations Process
• Establishment of the Court, International Criminal Court