International criminal law

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

/ Ananya Mukherjee / Leave a comment

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

Prosecuting Environmental Crimes at the International Criminal Court – Is a Crime of Ecocide Necessary?

/ Rachel Killean / Leave a comment

On the 22nd of June 2021 a group known as the ‘Independent Expert Panel for the Legal Definition of Ecocide’ officially launched what they described as a ‘practical and effective definition of the crime of ecocide.’ The twelve members – lawyers from around the world with backgrounds in criminal, environmental, and climate law – expressed their hope that the ‘proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court.’ As they argued, ‘the time has come to extend the protections for serious environmental harm.’ Ecocide, as they envisioned it, would form a new distinct international crime, defined thus:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The work of the Independent Panel builds on years of campaigns to criminalise ecocide and their definition is not the first to be offered up as a possible addition to the Rome Statute. The framing of environmental harm as ‘ecocide’ can be traced to the 1970s, when it emerged in response to the environmental atrocities caused by the use of herbicides such as Agent Orange in the Vietnam War. Since then, notable attempts to respond to large-scale environmental destruction have included Professor Richard A. Falk’s draft of an International Convention on the Crime of Ecocide in 1973, debates over whether to criminalise environmental destruction in the Draft Codes of Crimes Against Peace and Security of Mankind in the 1990s, and Polly Higgins‘ proposal for a crime of ecocide to be added to the Rome Statute in 2010. While definitions have differed, proponents of a specific crime of ecocide have been united by a belief that existing criminal laws are insufficient as a framework for addressing environmental crimes.

Following the release of the Independent Expert Panel’s definition last week, commentators have been offering their initial reflections on its wording, its practicality and on whether such a crime is necessary. In his recent post on EJIL: Talk, Kai Ambos opined:

it is doubtful whether a new, stand-alone core crime is needed to better protect the environment. It is arguably more sensible, especially from a practical point of view, to further develop in case law those elements in the existing international core crimes which have an environmental ingredient…

Given the likely political challenges associated with actually introducing and implementing a new crime to the ICC’s mandate, Ambos’s second point is fair. It is not straightforward to amend the Rome Statute. As I have explored elsewhere, it makes sense to work with the tools we have. In fact, there have been previous signs that the ICC’s Office of the Prosecutor (OTP) might be willing to use the existing core crimes (genocide, crimes against humanity, war crimes and the crime of aggression) to prosecute environmental harm. Policy Papers released in 2013 and 2016 indicated that ‘environmental damage,’ ‘the destruction of the environment’ and ‘illegal exploitation of land’ could be relevant considerations when conducing preliminary examinations and selecting cases.

However, while there are certainly possibilities for prosecuting environmental harms under the existing core crimes, Ambos’s latter point does not prove the former. Before dismissing the necessity of a new crime of ecocide, is worth reviewing the extent to which the core crimes can be considered as having an ‘environmental ingredient’, and where gaps in environmental protection emerge.

War Crimes

Only one of the four existing core crimes refers directly to the natural environment. Dubbed as the first ecocentric war crime, Article 8(2)(b)(iv) prohibits:

intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Commentators have flagged four key issues regarding the practicality of this Article. First, commentators have noted that the ‘operative core’ of the Article imposes a triple and cumulative standard of ‘widespread, long-term and severe’ that must be met before environmental damage is prohibited (it is notable that the Independent Panel of Experts adopted this language but removed the cumulative standard in their definition of ecocide). Second, the reference to damage that is ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’ introduces an expansive proportionality test, determined on the basis of the information available to the perpetrator at the time of launching the attack. Third, the mens rea requires that the potential offender had the intent to commit the attack in the knowledge that it would cause ‘widespread, long-term and severe damage.’ Fourth, the Article is only applicable to crimes perpetrated in the context of an international armed conflict. As argued by one commentator, the provision cannot therefore be applied, ‘neatly and directly, to many of the worst assaults on the natural environment – whether degradation of forests, poisoning of rivers, or extinction of animal species,’ most of which occur in peacetime. These issues limit the usefulness of Article 8(2)(b)(iv) – indeed, to date no successful prosecutions have been brought using this crime.

Genocide

It is certainly possible to envision environmental destruction being prosecuted under the rubric of genocide – many scholars have explored the frequently interconnected perpetration of ecocide and genocide (or the ‘genocide-ecocide nexus‘). There is even some limited precedent for this – in 2008 the ICC prosecution charged Omar Al-Bashir with genocide under Article 6(c), noting the connection between genocide and the deliberate destruction of the environment by systematically destroying properties, vegetation and water sources and repeatedly destroying, polluting or poisoning communal wells or other communal water sources by the militia and Janjaweed in Darfur.

Nonetheless, the limits of genocide as a means of protecting the environment arise from its anthropocentric focus – by definition, genocide involves ‘acts committed with the intent to destroy, in whole or in part, a national, racial or religious group.’ As such, this crime is applicable only to the extent that environmental destruction can be linked to the specific intent to perpetrate harm against a group of human beings.

Crimes Against Humanity

While none of the acts listed in the Elements of Crimes contain an ‘environmental ingredient’, it is possible that crimes against the environment could fall within four categories of acts that constitute crime against humanity. First, the prohibition of ‘extermination, or intentional infliction of conditions of life…calculated to bring about the destruction of part of the population’. Second, the deportation or forcible transfer of a population. Third, persecution through the intentional and severe deprivation of fundamental rights contrary to international law. And fourth, it could be considered an example of ‘other inhumane acts’, provided the destruction occurred ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Again, in the situation of Darfur referenced above, the OTP found that the same behaviour highlighted above in the context of genocide, which also incorporated the forcible displacement of populations, could constitute a basis for crimes against humanity charges.

However, we come up against the limits of a crime centred around human suffering – crimes against humanity must be directed at a civilian population, and the framing of crimes against humanity has been accurately described as ‘anthropocentric, putting mankind centre stage.’

The Crime of Aggression

Finally, it is theoretically possible to frame environmental crimes as a crime of aggression, or the ‘use of armed force by a State against the sovereign territorial integrity or political independence of another State.’ There is again some limited precedent – the initial inquiry into NATO’s bombing campaign against Serbian military positions in 1999 examined aggression-related environmental harm, although no criminal case against followed.

Although not anthropocentric in quite the same way as genocide and crimes against humanity (i.e. explicitly based on human suffering), the crime of aggression is nonetheless based on the harms humans perpetrate against each other – in this case acts carried out by senior political and military state actors against another state. This focus on state sovereignty, territorial integrity and inter-state conflict again limits the scope of this crime as a means of addressing environmental destruction.

Is a Crime of Ecocide Necessary?

While there are certainly opportunities to prosecute environmental harms using the existing core crimes contained within the Rome Statute, it is arguable that the anthropocentric limitations of the existing crimes create a gap in international criminal accountability. The addition of a crime of ecocide to the ICC’s mandate might address this gap. Notably, the definition offered by the Independent Panel enables ecocide to be prosecuted in times of peace, a significant shift away from the limits of Article 2(b)(iv) and recognition of the fact that the devastation sown by some human activities under the cover of ‘peace’ is often far greater than that caused in ‘war’. It does not require a connection to the destruction of a group, nor an attack on a civilian population, nor an act against the territorial integrity of a state. While the Independent Panel did not manage to divorce themselves from anthropocentrism entirely (see this critique by Kevin Jon Heller), the proposed crime recognises that environmental harm, in itself, is worthy of being classified as a crime that ‘shocks the conscience of humanity’.

There are certainly theoretical and practical issues with the definition offered by the Independent Panel that require further consideration, and as I mentioned above, it is not an easy process to introduce a new crime to the Rome Statute. Furthermore, it would be a mistake to assume that criminalisation will offer a meaningful response to environmental destruction by itself. As I have argued previously, too great a focus on individual responsibility risks diverting energy away from the reforms and systemic changes that are essential to protecting and repairing the natural world.

Nonetheless, I would argue that rather than dismissing the crime as ‘not needed’, the introduction of a crime of ecocide should be seen as an an opportunity for the ICC State Parties to make a strong declarative statement that harm against the environment is one of the ‘most serious crimes of concern’ to the international community. In doing so, they would be contributing to a growing consciousness of the need to rethink our relationship with nature and meaningfully address the harms already perpetrated against the natural world. Indeed, the urgent environmental challenges facing our planet, the failure of environmental regulation to prevent widespread destruction, and the normative expressive value of prohibiting the loss of ecosystems all make the call for a crime against the environment compelling.

Interview with Professor Mark Drumbl (Part-2)

/ Prerna Tara / Leave a comment

4. The recent reparations order in the Ntaganda case mentions that collective reparations will be provided through the Trust Fund for Victims. Do you have any suggestions in mind with regard to how the Trust Fund for Victims can deliver reparations efficiently and in a time-bound manner?

One of the major problems is resources. The trust fund is undercapitalized. Now we have Ntaganda, and we had quite a significant amount of reparations awarded in Al- Mahdi. The Trust Fund has made awards in the past, at times unrelated to actual convictions like in Uganda. I remember speaking to a reporter about Ntaganda and it almost seems to me that reparative awards are going in the direction of symbolic justice. This may not intrinsically be a bad thing but then it should be described as such, which it is not. I cannot help but wonder if the entire reparative structure of international criminal justice would be better served by creating an independent commission apart from the ICC.

My other concern with reparative justice at the ICC is that, fundamentally, the ICC is a penal organization and reparative justice has been added on to it in the form of the Trust Fund and proceedings related to reparations. The norm is punitive justice and then you have this add-on. Add-ons are always subjacent and the second priority.

We do not need scattered penal judgments to tell us which societies are in need of reparations to deal with mass victimization.

Another concern that I have is the existence of the Trust Fund which might divert attention from the fact that through other forms of foreign aid which I would prefer to call our cosmopolitan duty we can inject large amounts of funds into places that have witnessed mass atrocities with the view to societal reconstruction. Why does it have to be connected to guilt or innocence of a small number of perpetrators who for reasons of absolute coincidence just happen to fall into the custody of ICC? I worry about that as well. The more we talk about Trust Funds, the less we feel we need to talk about the fact that reparations do not require a courtroom to be given.

5. What are your opinions about considering ecocide as an international crime?

I have written about ecocide in the past. I am skeptical that this is something that should fall within the framework of the ICC. I do not think it has the resources. I am not certain what kind of awards the Court can issue that would actually in this instance be reparative. I think for crimes such as environmental crimes the push should be for greater consciousness at the national level. The total amount of environmental damage worldwide that is created by individuals purposefully acting malevolently is quite small. The greatest challenge that the younger generation faces are things like climate change where the contribution to the problem are not mens rea crimes. They are not intentional acts to deliberately emit greenhouse gases. They are generally ordinary, lifestyle choices that are made every day to commute to work, to cool or heat a home, to develop economically, or general policy of corporate negligence. All of those are very difficult to fit in the mens rea frame and of course, ecocide carries the term genocide which would then rhetorically at least require to have a very high special intent which would capture a tiny fraction of environmental harm. I think we are much better of thinking creatively about how to deal with climate change and that would not be by creating penal institutions that do not do much work in that area because they cannot. Your generations’ challenge also is to deal with public health atrocities. The percentage of people who deliberately spread COVID is diminutive. COVID is spread through carelessness, ignorance, desperation, poverty. I think your generation’s challenge is to develop institutions that focus on harm as opposed to intent.

6. What can be done to include more feminist voices in the international justice arena?

This is an area in which I find there are discursive gaps. I have last month published a piece along with a colleague, Solange Mouthaan, who is a feminist scholar at University of Warwick. In that piece, we looked at the trial of a woman named Ilse Koch who was a concentration camp guard in World War II. She was prosecuted by an American Military Tribunal and then prosecuted by a West German court. Koch was convicted in both trials and sentenced to life for war crimes by the West German Court and then she committed suicide at the age of 60. This trial to me is illustrative as an answer to your question.

One thing that must happen for a discursive equitable playing field level is that the predominance of paternalistic, patriarchal gender-based tropes involving pejorative narratives become removed from public discourse. Koch’s trial brought forth the gender-based stereotype that she was so evil because any woman who would commit this kind of violence would have to be absolutely sadistic as this is not a ‘womanly act.’ I have seen that in discursive frames about women perpetrators — a sensationalism often arises. In this article, Solange and I also observe another equally wincing gender-based stereotype, which is to say that Koch only did it because of her husband or that her husband made her do that. It is portrayed that the act is solely a result of the patriarchal society and her overbearing husband, not an act of her own. She is presented as helpless.

What I think has to emerge for inclusion for a progressive feminist analysis is that neither of those two tropes become the dominant narrative, because what was completely lost in the Ilse Koch trial was her own real story. How did she come to be who she was? What did she do? Why? And also, what do her victims and survivors have to say about her as a perpetrator? All of that becomes marginalized and occluded through the force of these assumptive stereotypes. To me that is very important and I think that means when one rethinks the history of exclusion of women in post-  conflict reconstruction that a full lens needs to be adopted. A vibrant conversation arises about the role that women played in the Nuremburg Trials or in the post- World War II process of justice. Almost all of that conversation focuses on women who helped, assisted, supported or determined the process or defined the law. One of the biggest omissions in a feminist history of Nuremburg is the discussion of women perpetrators. Solange and I argue in this article that promoting true gender equality means fully recognizing the agency of women in the cataclysm of atrocity and the ensuring social repair.

The second crucial move that I really hope happens is a far more active inclusion of feminist voices from the Global South and a recognition that there is not one feminism. There is not ‘a’ feminist perspective. There are feminisms. I think voices from the Global South in feminist theory and justice are under appreciated and under recognized at the moment. This maps onto another broader theme that I think would really suit international criminal law well and add more candor and more honesty. Greater inclusiveness and sharing in context of people that one listens to may mean accepting ideas that are not exactly the same as what the listener hopes to hear. To me, it is the ultimate form of discursive colonialism when those in power seek to include others only on the condition that what they say matches the expectations of those in power about what the disempowered are supposed to say. I worry about that, too. I know I have shared many worries, and really, I am not a chronic worrier, but the point remains that there cannot be any growth without self-reflection.

Interview with Professor Mark Drumbl (Part-1)

/ Prerna Tara / 2 Comments

Professor Mark Drumbl serves as Director of the Transnational Law Institute of Washington and Lee University, USA. He has held visiting appointments and has taught at Queen’s University Belfast, Oxford University (University College), Université de Paris (Panthéon- Assas), VU Amsterdam, and various other prestigious universities throughout the globe. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. Professor Drumbl’s articles have appeared in the NYU, Michigan, Northwestern, George Washington, Tulane, and North Carolina law reviews, many peer-review journals, including Human Rights Quarterly, with shorter pieces in the American Journal of International Law and numerous other periodicals.

Professor Drumbl’s first book, Atrocity, Punishment, and International Law, which was published by Cambridge University Press, has received critical acclaim. Later on, he went on to write or edit two more books titled Reimagining Child Soldiers in International Law and Policy (OUP) and Research Handbook on Child Soldiers (Edward Elgar Press) in 2012 and 2019 respectively. He is co-authoring a book on informers and transitional justice to be published by Oxford University Press in 2022. His work on Rwanda has been reviewed as “exemplary” in its treatment of “the possibilities of the coexistence of victims and survivors within the same society after the event” by the Times Literary Supplement in its Learned Journals review.

I had the honor of interviewing him. I thank him for the interesting conversation that touched upon various topics from child soldiers to ecocide. The transcribed version of the interview is available below.

1.What interested you to take up international law as your study in college times?

When I was an undergraduate student, I studied political science and philosophy. Then, I did some graduate work in comparative politics; and, from then, I went on to law school. Actually, when I was in law school, I did not take many public international law classes. I took corporate and business law classes. Then I worked for a number of years at large law firms doing arbitration and corporate law work in New York and Toronto. In that context, I specifically developed an interest in transnational and international disputes and arrangements. One coincidence that occurred – I had an opportunity to work on a pro bono file that involved investigations of wrongdoing by the Canadian Army and peacekeepers. In peacekeeping work, the Canadians were implicated in the United Nations’ mission in Somalia, which led to a major public enquiry and I along with the senior partner of the firm I was working at became involved with that. It related to questions of war crimes and peacekeepers. At that point, I became quite interested in the role of law and public enquiries as a deterrent to human rights abuses.

During my work as a practitioner, I decided to pursue the goal of becoming a professor. When I started my doctoral work at Columbia University, I was interested in international economic law. I actually started off on that note. By absolute coincidence and serendipity, I unexpectedly had a last second opportunity to go to Rwanda and do defense work in genocide trials several years after the genocide against the Tutsi. I jumped at the opportunity at the last second, took time off from my graduate work and went to Rwanda. When I arrived there, I was so excited about how proper criminal trials could encourage processes of national reconciliation. I had about 250 clients while working in Rwanda, and I left with a much deeper sense of skepticism about the potential and possibility of international criminal law. I came back to New York and wrote an article based on my experience. I found it so gripping to write that piece that I changed the entire focus of my doctoral programme to international criminal law. Two decades later, I work and teach in the same field. That interest stuck for me. The bottom line is that a completely serendipitous opportunity presented and re-routed all my interest. Hence, I highly recommend younger folks to be very open to coincidences and randomness because sometimes things ‘just happen.’

2. What were your thoughts after reading the Ongwen judgment? Were there instances in the judgment that could have been reconsidered in terms of the sentencing or any other aspect?

One of my major academic interests for many years has been to think about the role of ordinary people, compromised people, and victims who despite their victim status – their meekness and weakness – in turn may come to victimize others. In other words: how to speak of ordinary people who inflict tremendous pain on others? That has led me to a sustained academic interest to these kinds of characters such as very low-level perpetrators in Rwanda, child soldiers, collaborators and informers to name a few. All this brings me to Ongwen and my interest in that trial. For me, Ongwen comes under the category of victims who victimize. Ongwen was probably nine years old, kidnapped on his way from school into the LRA, brutalized and beaten. He was socialized into one of the most violent organizations and it is heartbreaking to say that his deployment of violence was a skill that he developed so as to not only survive in the LRA but also thrive as he rose to a high-level position of Brigadier Commander. Throughout his journey in the LRA, he moved from a powerless victim to a powerful victimizer. Just the other day, the ICC sentenced him to twenty-five years’ imprisonment.

When I think about the criminal process against him, what I see and think to some extent is an individual scarred by his socialization into violence as a young boy — how does that figure or compute in conversations about this criminal responsibility? My main reaction after the Ongwen trial is that the criminal process does not deal well with these tragic, imperfect victims. The prosecution vastly overstates his free will, his intentionality and tends to downplay his socialization. The defense overstates his infirmity, weakness and malleability. In the Ongwen trial, the prosecutorial narrative dominated and he was presented as one of the most serious persons responsible for tremendous violence. My major concern is if law is going to deal with an enormous condition precedent to mass atrocity, namely the involvement of tragic figures such as Ongwen, I think we have to have a more candid conversation about the actuality of the perpetrator. I also think we need to have a more candid conversation about the imperfect nature of the ICC and the act of prosecuting. Ongwen would never have been prosecuted unless the prosecution skirted the violence of the Ugandan Government. The ICC has seemed to develop a specialty of prosecuting mid-level rebel leaders whose rebellions fail against governments. I cannot help but wonder whether international criminal law would do better and be more inclusive and effective if we recognized all around that those who deliver justice sometimes have to compromise and those who inflict tremendous pain may themselves be compromised souls.

3. Do you think transitional justice should be considered as important as prosecuting and imprisoning the accused in the international justice system? How much progress have we made towards the same?

I have long believed that mechanisms other than criminal trials are crucial. Truth commissions, commemorations, local ceremonies, education, constitutional reforms and so on. I think all of those can serve transformative goals. Unfortunately, I think the dominating narrative of international criminal justice and accountability has actually    become colonized by the courtroom and adversarialism. I think that process needs to become more inclusive of alternate mechanisms. While working on issues of abuse and gender, one thing that I have noticed is that societies in which international criminal trials have been brought as methods of post-conflict reconstruction are not necessarily more equitable, more inclusive, more embracing of cultures, juvenile rights, gender equality and equality such as that based on such as physical or perceived physical ability, identity, and I am left with a lingering sense that perhaps alternate justice mechanisms may not only deliver accountability for the past but may actually embed a more just society in the future. That is a very important goal to me.

To be continued…

Why I Do International Criminal Defence Work

/ Beth S. Lyons / Leave a comment

Introduction

Most criminal defence attorneys are asked, at least a few times in the course of their careers, How can you do what you do?  How can you defend “x”?  How can you defend someone charged with “y”?   The query may be made by a friend or relative or even, sometimes, a colleague who practices in another area of law.

In 2006, I had just finished Simba, my first case at the International Criminal Tribunal for Rwanda (ICTR) in Arusha and wrote about my experiences as a defence attorney at the ICTR. The article is entitled:  “The Evolution of a Partisan:  Observations of a Criminal Defence Attorney at the ICTR,” and is available at Bepress – Evolution of a Partisan.

In 2014, I again wrote about defence work in an article, entitled “Litigating for Justice: Defense Work at the International Criminal Tribunal for Rwanda (ICTR),” available at Litigating-for-Justice.

And it is now 2021, and I am still defending persons accused of international crimes.

The query of why I do international criminal defence work elicits the same responses today as it did years ago… but I have come to the realization that the question I am really answering is:  how can I not do this?  Especially based on what I have learned over the last fifteen plus years about the nexus of law and politics, through defending clients charged with crimes in international courts and tribunals.

I was ready to “see” political forces at work at the ICTR when I first arrived in Arusha in 2004.  I did not have to be convinced that the reality of the Tribunal’s workings was about the relationship between law and politics.   But, what I was not prepared for (and experienced once I actually started to do work on my case in Rwanda) was the extent of overt State political intervention by Rwanda in the ICTR cases in Arusha.

The most important lesson I learned at the ICTR is that a State Party in a conflict can exercise power over the judicial mechanism, notwithstanding the intentions of jurists and staff to be impartial and adhere to the rule of law.     

                                                                        ***

My background had provided me with a prism with which to view and analyze how law and politics interacted.  I was a student activist, and my politics were formed in the struggles of the late 1960’s in the U.S.   I entered law school when I was 35 years old after more than a decade as a union activist.  I have now been involved in the struggles of peoples for the right of self-determination, for equality and against discrimination for a little more than half a century.

I understood politically that the world is divided into the “haves” and the “have nots,” the oppressor and the oppressed (and similar constructs) based principally on race and class and gender, and also sometimes influenced by other categories.  Law reflected these divisions, and the challenge was to use the system – if possible – to level the playing field so that the rule of law was applied with equality to all.      

I initially decided to focus on criminal defence because I wanted to talk to juries.  (I was trained and practiced in the U.S.)  Pre-lawyer, I was a labor organizer, and – in my mind – talking to juries was close to organizing.  It involved thinking about how an ordinary person, i.e. a non-lawyer, might react to the defendant, respond to the allegations, analyze the evidence, etc.  In essence, I saw part of my Defence task as  “organizing the jury” to rally to the Defence narrative or view….whatever that was in a particular case.

Being a prosecutor never even crossed my mind.

So, when I became a lawyer and started at Legal Aid in New York City, there was no question as to which side I would represent.  My focus was on making sure the client got a “fair shake” in the criminal justice system.

Getting a “fair shake” required making a critique of the criminal justice system.  It meant  starting from the premise that the courts and justice are not ensconced in a cocoon, free of “outside” political influence.  In fact, the workings of justice itself reflected the power relations and systemic racism of society.  One simply had to work (or even watch) arraignments in AR-1 or AR-2 in the middle of the night at 100 Centre Street, Manhattan (or any other time of day) to get a quick lesson in how class and race interact with “justice.”  It is immediately obvious, even to the most avowedly “apolitical” Legal Aid lawyer, that getting a “fair shake” was inextricably linked to the politics of the justice system.

Probably all of my cases at Legal Aid were not political cases based on the charges, but  the social and political contexts in which they occurred were generally determined by systemic racism, poverty and drugs.

The Nexus of Law and Politics at the ICTR

What immediately struck me about the ICTR cases was that they were – in the first instance – political cases.  Politics was written all over them:

  • from the Rwandan government’s official narrative of the events of 1994 repeated in every ICTR indictment to
  • the fact that not one of the 93 persons prosecuted at the ICTR was a Tutsi, or a member of the RPF, despite the findings and reports of international commissions of systematic crimes against the Hutus.

The ICTR courtroom was an important battlefield of the Rwanda Patriotic Front’s (RPF) war, starting from its 1990 invasion against the Hutu leadership in Rwanda.  This applied not only to the selective prosecution of the former Hutu government and military leadership by the ICTR.  It also permeated all aspects of the Defence work on the case, including investigations and other preparations for trial, and even more dangerous, the threats to Defence witnesses by the Rwandan government and its agents.

Rwanda’s Interference with Defence Investigations and Witness Appearances

It is important to read the Trial Chamber’s section in the Simba Judgment, at paras. 41-53.[1] And, it is crucial to ask yourself – even if only a fraction of the Defence’s allegations were true – was the defendant given his right to due process by the ICTR.  The answer, in my view, is “no,” based largely on Rwanda’s State interference with the ICTR.

Rwanda implemented a “witness as hostage” policy in its dealings with the ICTR, which was operational before the Simba case started in 2004.  In 2003 and 2004, for example, witness interference was identified in US State Department reports as a tactic of the Rwandan government.[2]  At that time, Rwanda withheld witnesses from the ICTR by refusing to issue travel papers to any witness (Defence or Prosecution).  This resulted in the disruption of three trials.

Rwanda’s policy was in retaliation for two events:  (1) ICTR Prosecutor Carla del Ponte’s “Special Investigations” into the alleged crimes of the RPF and (2) the Trial Chamber’s decision in the Barayagwiza case.

In 1999, del Ponte had opened “Special Investigations” into the alleged crimes of the RPF, and was about to issue indictments in 2002-2003.[3]  Rwanda adopted the tactic of threatening to withhold witnesses from the ICTR, as a demonstration of its displeasure with the investigation.  At some point in  2002, the “Special Investigations” were suspended,[4] and in September 2003, the Security Council relieved del Ponte of her assignment at the ICTR and replaced her with Justice Hassan Bubacar Jallow, a Gambian jurist.

The second event for which Rwanda sought “payback” was the ICTR Appeals Chamber’s decision in late 1999, dismissing the charges against Barayagwiza and ordering his release, with prejudice to the Prosecutor, based on the “egregious” conduct of the Prosecutor and the numerous due process violations.[5]  Not even five months later, the Appeals Chamber reversed its decision to release Barayagwiza, based on “new facts.” It held that the remedy for the  violation of the defendant’s rights should be determined at the end of the trial, at the time of judgment –if he is found not guilty, there should financial compensation, or if he is convicted, there should be a reduction in sentence for violations of his rights.[6]

In sum, the confluence of the initial Trial Chamber decision to release Barayagwiza and the inception of “Special Investigations”  was viewed by Rwanda as  a threat to its political agenda.   And  Rwanda was correct.  Rwanda – the only country which voted against Security Council Resolution 955 (1994) establishing the ICTR,[7]  repeatedly tried to disrupt and obstruct the ICTR – making effective Defence investigations difficult and sometimes impossible, threatening Defence witnesses and violating defendants’ fair trial rights, guaranteed under the ICTR Statute and other international instruments.    Rwanda’s policy continued, in different permutations, throughout the ICTR’s existence.  Not only had Rwanda’s political agenda permeated the ICTR’s judicial process, but it succeeded in  effectively controlling the proceedings at the ICTR.

Rwanda’s “witness as hostage” policy, in addition to halting the ICTR trials at the time,  had another important aspect:  witness intimidation.   This intimidation of Defence witnesses often started long before anyone’s name even appeared on an official witness list in court.  For example, the Simba Trial Judgment reveals that there was evidence presented by Defence prisoner witnesses that persons who had been interviewed by the Defence were instructed by the Rwandan prosecutor’s office to write down what had been discussed with the Defence, and that some potential witnesses were moved to a different prison where they were put in isolation cells, upon the order of the Rwandan prosecutor’s office.[8]   The Simba case is also cited by Professor Nancy Combs as an example of defence allegations of how Rwanda impeded Defence investigations.[9]

The aim of the Rwandan policies of obstruction was to prevent the prisoner and civilian witnesses from testifying for the Defence in Arusha.  In Simba, threats to the security of the only witness (BJK1) who could corroborate Simba’s alibi throughout the entire time period of the charges resulted in his refusal to appear in court.   And, the same Trial Chamber refused to accept the alibi statements of this witness, which he had made to both the Defence and the Prosecution.[10]

In Simba, in response to multiple Defence allegations of witness intimidation, the Trial Chamber denied that the intimidation existed, except for one person who “may have been dissuaded” to attend the trial.[11] But, three paragraphs later, it negated its ruling, by holding that this intimidation did not materially prejudice the defendant.[12]

Lastly, the flip side of Rwanda’s witness interference and intimidation of Defence witnesses was its organized preparation, within its State structures and organizations, of the Prosecution witnesses for the ICTR.  It is well-known that organizations such as IBUKA or AVEGA[13] prepared their members to testify for the Prosecution.   Within the prisons, the prisoners who would testify for the Prosecution were kept together in the “Arusha Aisle,” where they underwent preparation for Arusha.  As I recall, this evidence was elicited in the “Military 1” case.  I tried to question a Prosecution prisoner witness about this in the “Military II” case.  Unfortunately, I was unsuccessful.  But the existence of an “Arusha Aisle” and State-led organizations of victims is not so surprising.  Rwanda is a society which has perfected the molding of a collective memory based on the RPF’s version of history, and has institutionalized this in its “re-education camps”[14] and laws on “genocide deniers.”

Fighting for Fair Trial Made Me a Political Partisan

Notions of law and justice, of course, played some role in the courtroom.  But this role was overshadowed and often overwhelmed by Rwanda’s unrelenting, planned efforts to make the ICTR, whose establishment it had opposed, serve its own political ends.

Every Defence request to implement the client’s fair trial rights was tantamount to being seen by the Prosecution (and treated by the Rwandan press and government) as a hostile act  against the Rwandan government.  This adds substantial dimension to the notion of “criminal transference” generally experienced by defence attorneys in many jurisdictions.[15]   There was simply no “independent” position of the Prosecution, which was routinely advised by Rwandans who identified with the RPF.

It was almost inevitable, then, that fighting as a Defence attorney to “level the playing field”  – whether it was in conducting investigations in Rwanda or requesting withheld exculpatory material – made the Defence attorney a partisan in the events of 1994.  

The notion of  a “fair trial” for ICTR defendants was an impossibility where the ICTR became a battleground for Rwanda’s leadership under the RPF to assert and re-affirm its political power.  As Avigdor Feldman, a leading Israeli human/civil rights lawyer, and founder of B’Tselem, has stated in the film The Advocate (about the work of Lea Tsemel, an Israeli attorney who represents Palestinians),

“A fair trial means giving both sides an equal chance.  But since the balance of power is a priori unequal, a fair chance is never given [referring to Palestine side in the Israeli Occupation].”

In an ICTR courtroom, there were two sides:  the Prosecution and the Defence.  But the weight of Rwanda on the Prosecution side guaranteed that the Defence did not have an “equal chance,” rendering fair trial illusory and unattainable.

I quickly came to the powerful realization that struggle in the courtroom is as much about the historical narrative as it is about culpability.  At the ICTR, its judgments are a historical narrative of the events of 1994. This is the reason that the government of Rwanda has so tenaciously tried to exercise control over the ICTR, especially the Prosecution. As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[16]

The result was that the historical record produced by the ICTR was marred by its selective prosecution of only Hutus, and its failure to hold include the RPF accountable for its well documented crimes in the conflict.  As Wilson has pointedly stated, “Unless this changes, we can conclude only that the historical record produced by the ICTR is a partial one, as it has rendered an account of the crimes of just one side in the conflict, the losers.”[17]

This purpose of writing the historical record – from the perspective of the victors – means that notions of justice and fairness are submerged within the judicial process.  The struggle for defence attorneys is to pull these notions out of the political morass which is inevitable in the cases in international courts and tribunals.  So, if you want to make sure your client has a “fair shake,” you try to extricate fairness and justice from the sometimes muck of political conflict.  Not an enticing image, but probably an accurate description of the work I do as an international criminal defence attorney.

[1] There are also a number of law review articles, which can be found through Google, citing Simba as an example of  Rwanda’s witness intimidation and interference in ICTR cases.

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[2] The 2003 US Department of State Country Report for Rwanda states:

The International Criminal Tribunal for Rwanda (ICTR) experienced its most troubled year to date. Shortly after Prosecutor Carla Del Ponte announced her intention to indict RPF soldiers for war crimes committed in 1994, a part of the mandate established for the ICTR, Rwandan genocide survivor organizations in January called on prosecution witnesses to boycott the ICTR for a number of reasons, including alleged mistreatment of witnesses. In June the government imposed new travel restrictions on prosecution witnesses that disrupted three trials, and refused to provide access to documents needed by the prosecution. In July Del Ponte informed the U.N. Security Council about these obstructions.

In the 2004 Rwanda Country Report on Democracy, Human Rights and Labor, February 28, 2004, the US Department of State acknowledged that “ government authorities sporadically prevented witnesses from attending and giving testimony at the ICTR, which delayed the judicial process.”

See also Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), pp. 43-44.

[3] The mandate of SC Resolution 955 was to prosecute both sides of the Rwandan conflict.

[4] See Human Rights Watch letter to Security Council, 25 October 2002.

[5] Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Appeals Chamber, Decision, 3 November 1999, paras. 106-108.

[6] Ibid., Decision, 31 March 2000.

[7] Minutes, Security Council Meeting, 8 November 1994 (S/PV.3453)

[8] See, Prosecutor v. Simba, Judgment and Sentence, 13 December 2005, fn. 54.

[9] Combs, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010), p. 147.

[10] See, Beth S. Lyons, “Enough is enough:  the illegitimacy of international criminal convictions:  a review essay of Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,” in Journal of Genocide Research (2011), 13(3) pp. 293-295, especially fn 70.

[11] Judgment, para. 50.

[12] Judgment, para. 53.

[13] See discussion of Prosecution witnesses who alleged that they were asked to give false testimony by IBUKA in the “Media case” at the ICTR, Combs, pp. 155-156.

IBUKA, formed in 1995, is an organization of genocide survivors.  It has played a leading role in propagating the Rwandan government’s view of the genocide, including its fundamental view that anyone who believes that there was a genocide against both Tutsis and Hutus, is guilty of the crime of genocide denial, or negationism.  See, for example, IBUKA’s “Open Letter to United States Congress Regarding HR#1426,” 17 June 2010, stating that Professor Peter Erlinder is a genocide denier, at www.businesswire.com.  IBUKA has also been the instrument, along with AVEGA, the organization of genocide widows, through which the Rwandan government has implemented its retaliatory policies of non-cooperation to obstruct the workings of the Tribunal.  Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal,” Fordham International Law Journal, Vol. 33, No. 4, April 2010, pp. 1221-1277 points out that a member of the RPF’s central committee was appointed as president of IBUKA in 2000, “the same year that several Tutsi survivors critical of the RPF’s policies were effectively neutralized,” pp. 1231-1232.  On AVEGA’s website, www.rwanda-genocide.org, it states that the association was approved by ministerial decree No. 156/05 on October 30, 1995.

[14] See, Thomson, Susan.  “Re-education for Reconciliation:  Participant Observations on Ingando.”  See also,  Mgbako, Chi, “Ingando Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,” Harvard Human Rights Journal 18, (Spring, 2005), pp. 201-224.

[15] At Legal Aid in NYC, I have experienced the occupational hazard of being the object of criminal transference where, in court, the judge (and/or the prosecutor) transfers his or her attitude about the crimes charged against the defendant to the defence attorney. Both defendant and defence counsel become identified with the criminal acts alleged.  At the international courts and tribunals, particularly at the ICTR, a defence attorney (especially in military and other high profile cases) was often viewed with similar transference:  the crimes alleged against a defendant were imputed to the defence counsel….simply because s/he was defending someone and fighting for a fair process.  So, the line between fighting for a client’s rights and being viewed as a supporter of the client’s side in the conflict was, at best, blurred and more often, non-existent at the  ICTR.

[16] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.

[17] Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), p. 46.

The Travesty of Justice Continues….The Forgotten ICTR Acquitted in Arusha

/ Beth S. Lyons / Leave a comment

This year – 2020 – Major Francois-Xavier Nzuwonemeye, the former Commander of the RECCE (Reconnaissance) Battalion in Rwanda in April 1994, has completed his full sentence of twenty years, rendered by the Trial Chamber II of the ICTR in 2011, for crimes for which he was acquitted on appeal in February 2014. And he still is not free – he has lived in a “safe house” in Arusha, Tanzania since his acquittal – now for six years.

It is obvious there is something fundamentally wrong here.

In my paper, “The Treatment of the ICTR Acquitted, the ‘Achilles Heel’ of International Criminal Justice,” available here I discuss this situation and identify proposals towards its remedy.  I originally wrote this paper for the 2017 IntLawGrrls 10th Birthday Conference in March 2017, and updated it in 2019 with additional information on the acquitted at the ICC (as of early June 2019).

I’ve also written on this blog in 2015 at https://ilg2.org/2015/11/21/litigating-compensation-for-the-acquitted/ about efforts (unsuccessful) to win compensation for Major Nzuwonemeye.  Chief Charles A. Taku and I represented the client at trial and on appeal, and in his request for compensation.  Defence Counsel Peter Robinson has represented him in other post-acquittal relief.

Unfortunately, there are still acquitted persons (and those who have completed their sentences) in the “safe-house” in Arusha and this travesty of justice continues.  This is a constant reminder that international courts and tribunals need to have the political and legal will to implement the acquittals which they render.

The Failure to Protect International Law & Human Rights in the U.S.-China Trade Talks

/ Sara Ochs / Leave a comment

Recent weeks have featured developments in yet another high-profile international crisis in the White House.  The Trump Administration has continued its negotiations with China in an effort to reach a long-awaited trade deal.  Yet, during round table discussions in May, White House officials willfully ignored the elephant in the room: China’s ongoing mass human rights violations and persecution of minorities.  Despite growing media coverage depicting China’s inhumane treatment of its minority Uighur Muslim population, the U.S. has steadfastly refused to take effective action to leverage its trade position to combat China’s violations of international law.  This simply marks the latest in the U.S.’s retreat from international law, closely following its bullying of the ICC into closing its investigation into Afghanistan.

Recent years have sparked increased persecution of the Uighurs, a largely Turkic-speaking Muslim minority based in Xinjiang, an autonomous region within China. China has targeted the Uighurs through its “Strike Hard Campaign against Violent Terrorism.”  Under the auspices of national security and counter-terrorism, the Chinese government has arbitrarily arrested large numbers of Uighur Muslims throughout Xinjiang, placing many in detention centers and prisons, and forcing others into hundreds of political “re-education” camps.  Many of the detainees are not charged with crimes and have been deprived of due process rights to challenge their detentions.  Pursuant to research by the Council on Foreign Relations, Uighurs detained in the re-education camps are forced to renounce Islam, learn Mandarin, and praise communism. Reports of forced self-criticism, psychological and physical beatings, and torture have also emerged from the camps.

To easily identify and monitor Uighurs, the Chinese government has implemented a mass surveillance system throughout Xinjiang and other Chinese provinces. China’s use of facial recognition software, police checkpoints, and cell phone monitoring has effectively turned Xinjiang into a surveillance state. China uses this surveillance to identify those in violation of restrictive laws against Uighur Muslims, including the banning of long beards and the use of Muslim names for newborn children.

While the exact number of Uighurs detained is unknown, officials within the Trump Administration have estimated that the figure falls between one and three million.  These conditions, disturbingly reminiscent of the concentration camps employed by Nazi Germany, have prompted widespread charges that China is actively engaging in ethnic cleansing.  In fact, China’s targeted attack on the Uighurs encompasses violations of various international human rights treaties to which China is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, China’s mass detention, torture, and enforced disappearances of Uighurs could constitute crimes against humanity or even genocide under international criminal law.

International human rights organizations, legal scholars, and state governments have vocally condemned China’s international crimes and human rights violations, yet minimal practical action has been taken against the Chinese government.  While calls have been made for the U.N. to commence an investigation into China’s treatment of the Uighurs, at this point, none has been ordered.  In fact, the practical impact of any potential investigation is uncertain.  In its role as a permanent member of the U.N. Security Council and a non-party to the Rome Statute, China enjoys a substantial level of protection against sanctions and ICC prosecution.  

The U.S. has been aware of China’s ongoing human rights violations for years.  Members of Congress have repeatedly requested that the Trump administration impose sanctions on high-ranking Chinese officials in response to growing evidence of Uighur mistreatment.  In a July 2018 op-ed, Secretary of State Mike Pompeo recognized China’s mass detention of Uighurs, while applauding the “Trump administration’s [passion for] promoting and defending international religious freedom.” Yet, while the U.S. government apparently considered issuing sanctions, it has failed to effectively act to halt China’s persecution of the Uighurs.

In early April, a group of 43 bipartisan member of Congress wrote to Secretary of State Mike Pompeo, Secretary of the Treasury Steven Mnuchin, and Secretary of Commerce Wilbur Ross, again formally requesting economic sanctions be imposed against China for its gross human rights violations against the Uighurs. Yet, despite growing publicized condemnation and concern, the current administration’s conduct indicates it will do little to bring China into compliance with international law.  The ongoing trade talks with China present the perfect opportunity for the current administration to call for China to end its persecution of the Uighurs under threat of sanctions.  Yet, as the New York Times reports, the U.S. has not raised the issue of China’s international crimes at any time during the trade talks, viewing it as a potential impediment to negotiations.  Instead, in mid-May, following failed U.S.-China round table trade talks, President Trump issued an executive order declaring a national economic emergency and empowering the U.S. government to ban the use of technology of “foreign adversaries” deemed to pose a risk to national security. Nearly immediately thereafter, the U.S. Department of Commerce placed Huawei Technologies, the company responsible for creating many of the surveillance tools used to monitor the Uighurs, on a “trade blacklist,” thereby greatly obstructing its ability to conduct business with U.S. companies.  Yet, in failing to publicly address China’s mistreatment of the Uighurs and Huawei’s complicity in the Uighur surveillance while taking such action, the Trump administration fell significantly short in defending international law and human rights.

As a world power and a permanent member of the U.N. Security Council, the U.S. bears responsibility to bring an end to China’s ongoing international crimes.  The Trump administration’s failure to effectively leverage its trade position to bring China into line with international law not only undermines the U.S. policy of promoting global freedom of race and religion, but also prioritizes its commitment to capitalism and financial profit at the expense of human rights. 

In passing: Judge Patricia Wald (1928-2019), IntLawGrrls contributor and inspiration

/ Diane Marie Amann / Leave a comment

Over the last decade it was my honor on occasion to invite Judge Pat Wald to join in a project, to contribute a writing or to speak at an event. Invariably she accepted with the same wry caveat: “Yes, if I am still here by then.” Happily she always was still “here,” enlivening every project to which she contributed. But now she is not. News media reported that Patricia Anne McGowan Wald died in her Washington home yesterday, having succumbed at age 90 to pancreatic cancer.

Many obituaries will focus on her prodigious and inspiring career in the United States: her journey, from a working-class upbringing in a single-parent family, to practice as a lawyer on child rights and in the Department of Justice, to service, in the District of Columbia Circuit, as the 1st woman Chief Judge of a U.S. Court of Appeals, and quite recently, as an Obama appointee to the Privacy & Civil Liberties Oversight Board.

We international lawyers also will recall Wald’s fierce service as a judge on the International Criminal Tribunal for the former Yugoslavia. There, she took part in noted judgments, among them a genocide conviction in Prosecutor v. Krstić and a “turning point” appellate ruling in Prosecutor v. Kupreškić.

Even after retiring from the ICTY, Judge Wald championed international criminal justice, placing particular emphasis on women. It was my privilege to welcome her interventions on these subjects, and at times to aid publication of her contributions (Pat’s computer savvy was, it must be said, rudimentary).

Just last year, the Georgia Journal of International & Comparative Law was honored to publish Pat’s essay “Strategies to Promote Women’s Participation in Shaping International Law and Policy in an Era of Anti-Globalism,” based on remarks she’d given here at my home institution, the University of Georgia School of Law Dean Rusk International Law Center. They were a highlight of our 10th birthday conference for IntLawGrrls blog, not least because Pat referred to us assembled scholars and practitioners as “you ‘young people’ in the room.” She traced the beginnings of international criminal justice, then said:

“I do not suggest that the process of integrating women as upfront participants in international courts, let alone the inclusion of the crimes most commonly committed against women as worthy subjects of international criminal law jurisprudence, has been completed. More accurately, these developments had just gotten off to a reasonable start at the moment that global politics seem to have begun to shift toward a so-called anti-globalist populism. My central point, therefore, is that we must strategize in the face of a desired, yet elusive future.”

Her strategies: ally to strengthen international law, international legal education, and global-mindedness in many sectors, including the arts; “protec[t] the venues in which women have had significant impact,” including the International Criminal Court and related forums; and work globally to raise women’s awareness “about educational opportunities, rights to land ownership and profits, how to start a small business, how to farm efficiently, how to participate in voting or run for office, and about legal rights to divorce or separation.”

Issues like these were prominent in a special issue of the International Criminal Law Review, “Women and International Criminal Law,” dedicated to the Honorable Patricia M. Wald, for which I served as a co-editor along with Jaya Ramji-Nogales, Beth Van Schaack, and Kathleen A. Doty. Wald herself wrote on “Women on International Courts: Some Lessons Learned” for vol. 11 no. 3 (2011). And as shown in that issue’s table of contents, additional contributors included many whom Judge Wald’s life and work had touched: Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow, along with Kelly Askin, Karima Bennoune, Doris Buss, Naomi Cahn, Margaret deGuzman, Katharine Gelber, Laurie Green, Nienke Grossman, Rachel Harris, Dina Francesca Haynes, Jennifer Leaning, David Luban, Rama Mani, Jenny Martinez, Fionnuala Ní Aoláin, Katie O’Byrne, Lucy Reed, Leila Nadya Sadat, and David Tolbert. The issue stemmed from a 2010 roundtable (pictured below) that then-Executive Director Elizabeth “Betsy” Andersen hosted at the American Society of International Law, an organization Judge Wald long supported.

Pat’s support for IntLawGrrls predated this event. In 2009, she had contributed a trilogy of essays to the blog: 1st, “What do women want from international criminal justice? To help shape the law”; 2d, “What do women want? Tribunals’ due attention to the needs of women & children”; and 3d, “What do women want? International law that matters in their day-to-day lives”.

In keeping with the blog’s practice at that time, Pat dedicated her IntLawGrrls posts to a transnational foremother, “a wonderful German/Jewish woman, Gisela Konopka,” a University of Minnesota social work professor with whom Pat had collaborated in a lawsuit against the Texas Youth Authority. In her lifespan of 93 years, Konopka, Wald wrote, “fought in prewar Germany for children’s rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.” Explaining how Konopka had influenced her, Judge Wald penned a sentence that today does service as her own epitaph:

“She inspired me as to what an older woman can do right up to the point of departure to help those behind.”

(Cross-posted from Diane Marie Amann)

Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 1 of 2)

/ Marie-Laure Tapp / 1 Comment
Credit: Lynsey Addario

As of July 2018, more than 500 000 people had been killed as a result of the conflict in Syria, according to the British-based Syrian Observatory for Human Rights. With the UN Special Envoy for Syria having recently resigned, signs of hope seem dire for many Syrians and their supporters, there and abroad.

A side-event held today, on Day 3 of the 17th Assembly of State Parties (ASP) to the International Criminal Court, brought distinguished panelists together to discuss the role of prosecutions held in Europe through universal jurisdiction for international crimes, using Syria as an example. More than only about accountability, the resounding message about these prosecutions was that their role was to give out and to inspire the people to be strong, fight for justice and, maybe, eventually, be able to move on.

Earlier this week, during a keynote address at a reception held before the launch of the ASP, Ms.Catherine Marchi-Uhel aptly said that the ICC is the center piece of the international justice system. However, she also reminded the audience that the role of the international jurisdiction as a springboard for national prosecutions is often overlooked.

Yet, despite the hopes, symbolism and assistance to the rebuilding of judicial institutions that national prosecutions can bring (as I mentioned in my previous blog post on Quid Justitiae in the context of the present ASP), the political context may simply not allow it and, in the case of Syria, there is obviously no need to elaborate on why prosecutions at the national level are not possible.

In the case of Syria, one of the worst situations since World War II, as Ms Marchi-Uhel underlined, the pathway to the ICC is blocked, as a UN Security Council (UNSC) resolution to refer the case to the ICC was vetoed in 2014. With the ICC option gridlocked, Marchi-Uhel said that the international community needed to be creative to find new strategies to supplement the Rome Statue system: there was a need to think outside the international justice box. This is why, in 2016, the UNGA decided to create the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011 (IIIM) to collect and analyse evidence of international crimes committed in Syria (see the IIIM official website here). Not a court or tribunal, it is “a building block for comprehensive justice” and can “turn limitations into opportunities”. This was definitely a smart move, as the call for Syria to be referred to the International Criminal Court by the United Nations Secretary-General Antonio Guterres did not seem to have resonated any more than previous attempts made through the UNSC.

Continue reading →

The international criminal justice project through the lense of Narrative Expressivism

/ Anette Bringedal Houge / 1 Comment

In a recently published article in Criminology and Criminal Justice, I set out a framework through which we can address the stories and truths that the international criminal justice (ICJ) project produces about violent pasts, conflicts, perpetrators, victims, crimes, causes and consequences.

By the term ”the international criminal justice project”, as opposed to internatioanl criminal law institutions, I refer both to these institutions (the courts and tribunals, and the stories produced within by prosecutors, judges, counsels, defendants, experts, victims and so on) – but also to the epistemic communities surrounding these courts, enabling them, pushing for them, advocating fortheir existence, for different parties, campaigning for their creation or continued funding, doing research on their work – that is, everyone engaged with the ICJ project in some way or the other.

I call this framework narrative expressivism. Narrative expressivism is situated at the juncture of insights from the analytical and theoretical framework provided by narrative analysis; as well as the body of literature that caters to the quality of the historical record produced by international criminal trials; and as the name also implies, expressive theories of international criminal law.

From narrative theory, and particularly narrative criminology, narrative expressivism sees stories of the past as important for the future, appreciating that stories affect “the way we perceive the social and material worlds“ (Autesserre 2012: 206). And further, the way we perceive the world “orient how we act upon our environment.” That is, “stories animate human life”. The stories available to us affect our perceived maneuverability for action in given situations, whether or not the stories are true.

From the body of literature engaging an expressive argument for international criminal justice, comes the emphasis on courts as didactic, or educative – communicative – to the wider society.

In my article, which builds on a four-year case study on the ICTY as a site for explaining and managing collective violence – I ask what stories and understandings of international crimes the criminal justice framework allows for and what it means when knowledge from and for court proceedings is used to describe and understand a social phenomenon outside of it.

What I suggest we do, is to look at the ways in which criminal law conceptualizations of the past affect the ways in which we are able or willing to deal with collective violence as societies and communities on the one hand, and as individuals – either politicians or potentially ordinary fighters on the ground, maneuvering possibilities for action in the face of violent profusions.

In my own research in particular, I have focused on defendants and how they are re-presented, and how conflict-related sexual violence specifically, is constructed as a problem of law – what ideas and subjects are called into service for criminal law’s operation through court narratives, as well as in policy and advocacy actors’ framing of conflict-related sexual violence, in order to push criminal prosecutions

Narrative expressivism theorizes international criminal justice as an empirical field for knowledge construction and sees criminal justice as a potent source of information about past crimes – yet also, as a site that impacts on present and future societal understandings of mass violence, promoting a particular structuring of thought. That is, it theorizes the juridification of societal and political understandings of complex collective and social problems.

The whole process of campaigning for the establishing of courts and cases, of adjudicating guilt and innocence, of evaluating evidence, hearing, challenging and sorting stories, establishing facts – the process of ordering chaos through a legal model that streamlines causality, draws individuals out of collectives, and categorizes both them, acts, victims, and contexts – makes a less complex and more comprehensible narrative of what was, through means and under influence of what constitutes legally relevant arguments and according to the courts’ binary logics. Such legal understandings are appealing. As Tallgren (2002: 594) states, “[b]y focusing on individual responsibility, criminal law reduces the perspective of the phenomenon to make it easier for the eye … It reduces the complexity and scale of multiple responsibilities to a mere background.”

What law, and particularly judgments, construct is not an objective history of the past, but the events anew, formed by these constraints and possibilities of the legal framework

Narrative expressivism caters to this reduction, to the processes of inclusion and exclusion of different voices, and to the leveraging and silencing of some stories over others during proceedings and in the epistemic community surrounding ICJ institutions.

Importantly, this way of seeing ICJ, emphasizes all the expressive, or communicative, work courts do or facilitate. This includes all the narratives that the international criminal justice project produces about acts charged as international crimes – either from the inside of its institutions or from the outside by its proponents – whether the narratives morally condemn or deny mass violence, and, importantly, whether they strengthen or challenge the legitimacy and authority of international criminal justice institutions.

While courts through judgments produce normative evaluations of international crimes, leveraged through the authority of criminal law, international criminal courts also provide international, public platforms for protest – as evidenced by the defiant defendants ‘performances’ at the very final proceedings of the ICTY last year.

This way, the common expressive understanding of law changes significance from being primarily a normative theory or argument of purpose (legal expressivism) to a descriptive theory of its function as storyteller and narrative conveyor, weighting the explanations of problematic social phenomena and mass harm and the role of law that it produces (narrative expressivism).

With public proceedings and transcripts, and the access to its goldmine archives for research, the trial at international criminal law institutions becomes a public theatre of different and contesting ideas – a place to test and rename, pronounce and project, and also, establish history about mass harms. Herein is an acknowledgement that “not only is knowledge power, but power is knowledge too”, as Ayoob (2002: 29) has stated. Focusing on power in its discursive forms, involves attention to how specific sets of logics organize and produce knowledge.

Narrative expressivist approaches to international criminal justice would, thus, concern how law and ICJ communities, act as central contributors to “[t]he wider politics of representation.” At the very least, this necessitates attention to questions such as “whose representations are these, who gains what from them, what social relations do they draw people into, what are their ideological and political effects, and what alternative representations are there?” (Fairclough, 2013: 549–550).

This take on ICJs influence on our understanding of collective and political violence may appear at first as at odds with recent, and oftentimes well-addressed, critique of the effectiveness and legitimacy of ICJ institutions and selectivity. However, there is a difference between what is understood as and expected from international criminal justice on the one hand, and the realitites that international criminal justice describes when handling crime, ie., the structuring of thought that the criminal law frame feed our understanding with – whether or not it succeeds with its prosecutions.