Interview with Professor Mark Drumbl (Part-2)

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)

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

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] SeeProsecutor 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

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

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

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)

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.

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The international criminal justice project through the lense of Narrative Expressivism

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.

Commentary on John Bolton’s Speech Regarding New American Policy on the International Criminal Court

National Security Advisor, John Bolton, delivered remarks today on “Protecting American Constitutionalism and Sovereignty from International Threats.”  In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court).  According to Bolton, the ICC “has been ineffective, unaccountable, and indeed, outright dangerous.”  While Bolton, and others in the Trump Administration, are certainly allowed to express their opinion and to craft new policies, it is important that such policies be based on accurate (and not alternative) facts.  The purpose of this post is to highlight some of the most egregious factual errors from Bolton’s remarks.  Any government policy based on inaccurate information and “advertised” through reliance on misleading and inaccurate claims is “ineffective, unaccountable… and outright dangerous.”  In addition, this post will criticize some of Bolton’s arguments as misguided and contrary to the United States’ interests.

Bolton argues in his speech that “[t]he ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States.”  It is incorrect that the ICC and its Prosecutor have “enormous” or “unaccountable powers.”  The ICC’s jurisdiction is limited temporally as well as rationae materiae (the court can only exercise jurisdiction over genocide, crimes against humanity and war crimes – and in very limited instances, aggression); the court is also constrained by the application of principles of gravity and complementarity.  Moreover, the Assembly of States Parties is an important accountability mechanism over the court – as many readers know, judges can be removed by a two-thirds vote of states parties to the Rome Statute, and a prosecutor can be removed by a majority vote of states parties. Thus, to claim that the ICC somehow wields Harry Potter-like powers which transcend any accountability is simply false.  And, it is unclear why the establishment of the ICC constitutes a constitutional and sovereignty assault against the United States.  The ICC is a treaty-based body; any state, including the United States,  is free to join or not to join this treaty.  If the United States chooses to join the ICC, or any other treaty, potential conflicts with the U.S. Constitution would be resolved through the Supremacy Clause, which establishes the primacy of the Constitution over any inconsistent treaty obligations.  Thus, it is surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.

In addition, Bolton argues that “the Court’s structure is contrary to fundamental American principles, including checks and balances on authority and the separation of powers…..The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch—the Office of the Prosecutor—is an organ of the Court. The Framers of our Constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. ”  This is a curious argument: while it may be true that the ICC does not espouse the same separation of powers structure that the United States government does, the United States cannot possibly expect that every treaty-based organization adopt American governance principles.  Multilateral treaties bind multiple nations together and often adopt compromise positions and the “lowest common denominator” of norms; it is not reasonable to expect that treaties would replicate Unites States’ constitutional structures.  And, such replication is not constitutionally mandated.  The United States can become a member of various treaty-based bodies, so long as its obligations under such treaty mechanisms do not directly conflict with the Constitution.  Nothing in the ICC Statute would create such a constitutional conflict.  Thus, Bolton’s argument here is both surprising and unsupported by the Constitution.

Bolton also argues that the ICC “claims ‘automatic jurisdiction,’ meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.”  This is not true either: the ICC does not have automatic jurisdiction, and Article 12 of its Rome Statute posits that a precondition to the court’s exercise of jurisdiction is that the alleged crimes be committed by a national of a state party, or on the territory of a state party (or if a state accepts the court’s jurisdiction).  Thus, while the ICC may be able to prosecute nationals of a non-party state, this situation is far from automatic, and may only occur if such nationals commit crimes on the territory of a state party.

Bolton claims that the ICC Prosecutor’s request  to investigate Americans for alleged detainee abuse in Afghanistan is “an utterly unfounded, unjustifiable investigation.”  This investigation is not unfounded in and of itself; the investigation will permit the Prosecutor to ascertain enough facts to decide whether to go forward with any possible prosecutions.  Moreover, the investigation is not unjustifiable, as it falls within the Court’s mandate, and as potential prosecutions would satisfy the Court’s temporal and subject-matter jurisdiction.

Bolton proceeds to criticize the ICC because it “claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the Court’s unfettered powers.  The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC.”  This claim is inaccurate: the ICC Statute specifically defines the crimes over which the Court has jurisdiction, and the interpretation and application of these definitions is appropriately left in the hands of the Court’s judiciary, in the same manner that the interpretation and application of domestic statutes is bestowed upon domestic judiciaries.  In addition, Bolton then argues that the ICC would somehow claim universal jurisdiction.  “The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats.”  There is nothing in the ICC’s Statute to support this conclusion, and while the Rome Statute negotiating record reveals that different states held different views regarding the Court’s reach and structure, it is false to claim that any serious intentions existed to provide the Court with universal jurisdiction over “anyone” or over “vague crimes.”

Finally, some of Bolton’s claims are, while not completely factually inaccurate, misguided and contrary to United States’ interests.  First, Bolton claims that the ICC is ineffective, as it has spent too much money, has prosecuted few individuals, and has not deterred the commission of atrocities in places such as the DRC, Sudan, Libya, or Syria.  This may be a fair criticism of the Court, but accepting such criticism could lead one to adopt a pro-ICC policy, to support the Court, and to ensure that the Court has better funding and better opportunities to truly deter the commission of atrocities, through its investigative and prosecutorial mechanisms.  This approach would benefit both the Court and all states which are committed to principles of accountability and individual criminal responsibility (United States should be positioned as a leader within this group of countries).  Second, Bolton believes that the ICC is superfluous, because of superior United States’ judicial and ethical standards.  According to Bolton, we do not need the ICC because the United States can handle its own investigations much better.  Bolton argues that the ICC’s application of the complementarity principle is “farcical” and  that the Prosecutor will decide which investigation to pursue based on political motives.  While the ICC has been criticized on complementarity grounds (in the Libya case in particular), there is nothing to suggest that the Prosecutor does not consider complementarity issues seriously, in each case that has been initiated with the Court.  And, even accepting that the United States’ judicial system is superior to the ICC, one could imagine a situation where the United States is unwilling to investigate its own wrongdoing; the ICC’s role is to act in such situations and to provide justice and accountability against perpetrators whose home countries choose to shield them.

Last but not least, most troubling is Bolton’s threat against those who cooperate with the ICC.  “We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”  It is absolutely within the United States’ sovereignty to refuse to issue visas/entry to ICC officials who may be foreign nationals (although this would be terrible policy).  However, it is simply unbelievable to announce that the United States would prosecute ICC officials, and other companies or states who assist the ICC, in the U.S. domestic system.  ICC officials are highly respected experts in international criminal law; judges, prosecutors, investigators, and other individuals who have committed their careers to the pursuit of international justice.  Those who assist or have assisted the ICC include our colleagues – the most prominent experts in international criminal law, who have provided advice and expertise to the Court.  What crimes have such individuals committed under United States law? And, how would such prosecutions (even if grounded in U.S. law) affect the United States’ role in international relations and in the world community? John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-a-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.

For other commentary regarding Bolton’s speech, see here and here.

 

New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading