Guest Post By Jennifer Trahan, Clinical Professor, NYU Center for Global Affairs
Milena Sterio has already blogged about two of the side-events held, and Valerie Oosterveld has provided an update on the progress made during various days of the ASP. This blog post will provide an update on a few issues covered during the ASP, and on the hearings held simultaneously (December 4-6) at the International Criminal Court regarding the appeal of the rejection of the Prosecutor’s application to proceed with the Afghanistan investigation. I was able to attend both the ASP as well as segments of the Afghanistan hearing, and also serve as an amicus on the Afghanistan appeal.
The ASP, chaired by ASP President Judge O-Gon Kwon, culminated in the adoption of seven resolutions by consensus on: amendments to article 8 of the Rome Statute (adding starvation as a war crime when committed in non-international armed conflict), cooperation, the nomination and election of judges, the proposed programme budget for 2020, the remuneration of judges, review of the International Criminal Court and the Rome Statute system, and strengthening the International Criminal Court and the Assembly of States Parties (a/k/a the “omnibus resolution”). The Assembly also elected six members of the Committee on Budget and Finance and a member to fill a vacancy, and a member of the Advisory Committee on nominations of judges. In addition to the General Debate, there were thematic plenary sessions on cooperation and the review of the Court, and a large number of civil society and State Party-sponsored “side-events.” (Press release, ICC-CPI-20191206-PR1505.)
The Review Process
One of the aspects that made this ASP different from past ASPs was the creation of a review process for review of the work of the Court and the Rome Statute system. Calls for the creation of such a process came after the launch of politically-motivated attacks against the Court, as well as a motivation to strengthen certain aspects of the ICC’s work. After many drafts this fall of the terms of reference for an independent expert review, it was determined that the review would focus on three areas: (1) governance, (2) judiciary, and (3) prosecution and investigation. After submissions to the ASP President of nominations of the names of over 60 experts, President Kwon selected the final list of names, with three experts nominated under each category. This list was then approved at the final ASP session. This review process will run in parallel with certain review efforts to be addressed directly by the ASP. There was debate both during the ASP about how the expert review would be implemented, and at least some concern that not all states necessarily seem to fully share the goal of strengthening the ICC. It was noticeable that some states during the ASP and this past fall were calling for a “reform” process, whereas most agreed that the process was to be a “review” process aimed at strengthening the Court. NGOs and States Parties have also undertaken to strengthen the process for the nomination and election of ICC judges, with some modest progress made in a resolution adopted on the topic.
The Afghanistan hearing
Prosecutor Fatou Bensounda and ICC President Chile Eboe-Osuji had opened the ASP Plenary Session on December 2 with frank calls about the need to support the ICC as it faced politically-motivated attacks against its work, with the Prosecutor expressing her firm commitment to proceeding notwithstanding. The timing was such that the ICC Appeals Chamber would simultaneously during the ASP conduct hearings on the appeal of the dismissal of the Prosecutor’s request that the Afghanistan preliminary examination proceed to the investigation phase.
The Pre-Trial Chamber had on April 12, 2019 determine that the Afghanistan preliminary examination met the grounds to proceed under Rome Statute Article 15—that there was a “reasonable basis to believe that the incidents underlying the [Prosecutor’s] [r]equest occurred” and “may constitute crimes within the jurisdiction of the Court” (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ of 12 April 2019, para. 60). Yet, the Pre-Trial Chamber notwithstanding held that it was not “in the interests of justice” under Rome Statute Article 53 (1) (c) to open the investigation based on the Pre-Trial Chamber’s de novo assessment of the application of that phrase (paras. 91-96).
The first day of the appeals hearing (December 4) focused on two procedural questions – whether “victims” had standing to be part of the appeal, and whether the appeal was one related to “jurisdiction.” The second two days (December 5 and 6) focused on the merits of the argument—what the phrase “the interests of justice” was meant to address, and whether the Pre-Trial Chamber properly assessed the issue, and whether it properly construed the factors by which to evaluate application of the phrase. This blog post won’t cover all the arguments, but on the day I attended (December 6), the amici present presented extremely persuasive cases that the Pre-Trial Chamber erred in its assessment, including a strong presentation by former US War Crimes Ambassador David Scheffer.
The Appeals Chamber’s ruling is extremely significant not only as to whether the Afghanistan investigation—involving alleged crimes by the Taliban, Afghan authorities, as well as US nationals—may proceed, but some of the criteria utilized by the Pre-Trial Chamber in evaluating whether to open the investigation represent extremely unworkable ones that potentially could jeopardize whether many of the ICC’s preliminary examinations are able to proceed. Thus, the ruling has potential importance far beyond the Afghanistan situation. I was privileged to submit a written amicus brief—as amici were asked to present either a brief or to present oral arguments. All the written amicus submissions addressing “the interests of justice” agreed that the Pre-Trial Chamber had erred in its assessment.
The release of the annual report on Preliminary Examinations
While Valerie Oosterveld has already blogged about the Prosecutor’s release on Thursday, December 5, 2019, of her office’s annual Report on Preliminary Examination Activities, I will just note that the report has a new section covering “Phase 1” of Preliminary Examinations. The Report (para. 23) explains that during “Phase 1”, the OTP analyzes all communications received pursuant to Article 15 of the Rome Statute using the following criteria:
whether the allegations contained therein concerned: (i) matters which are manifestly outside of the jurisdiction of the Court; (ii) a situation already under preliminary examination; (iii) a situation already under investigation or forming the basis of a prosecution; or (iv) matters which are neither manifestly outside of the Court’s jurisdiction nor related to an existing preliminary examination, investigation or prosecution, and therefore warrant further factual and legal analysis by the Office.
This new section contains discussion of: North Korea (dual nationals), North Korea (overseas laborers on the territories of States Parties), and Philippines (South China Sea).
At the Prosecutor’s accompanying briefing on Friday December 6, 2019, many representatives of States Parties and members of civil society were present. Civil society members voiced several extremely heartfelt pleas for the OTP to make more progress in various of the situation countries. While being sensitive to these interventions, the Prosecutor also explained the reality that the current budget and the limitations it imposes will force her office to “prioritize,” thereby delaying the OTP’s work in some situations.
The impressive number and diversity of side-events & civil society engagement
While a few side-events have already been covered by prior blog posts, the sheer number of events (related to justice in Myanmar, Darfur, Syria, and many, many more) was extremely impressive. My only regret was that (with the ASP shortened to 5 actual and 6 scheduled days), it was impossible to attend many of the side-events as a number occurred simultaneously. The ASP has become quite a gathering place for civil society members from around the world and States Parties interested in advancing (through many different approaches) the pursuit of international justice as well as prosecution of core crimes within national court systems.
The participation of civil society in large numbers at each ASP is largely attributable to the tireless work of the Coalition for the International Criminal Court (“CICC”). The CICC was ably convened this year by Melinda Reed as Acting Convenor following the retirement of William R. Pace.
The Rome Statute and Cyberwarfare
While many side-events deserve their own blog posts, I will call attention to one that addresses a relatively new area (for ICC followers at least). It was a side-event held Monday December 2 entitled “The Application of the Rome Statute to Cyberwarfare: The International Criminal Court’s Jurisdiction over the Crime of Aggression.” The panel featured Stefan Barriga (Minister and Deputy Ambassador, Liechtenstein Embassy in Brussels) as moderator, and myself and Don Ferencz (Convenor of the Global Institute for the Prevention of Aggression) as panelists. It was sponsored by Argentina, Austria, Belgium, Liechtenstein, and The Global Institute for the Prevention of Aggression.
The discussion focused on how a cyberattack (if it reached a certain threshold of gravity) could potentially be covered by the ICC’s crime of aggression, particularly if launched by a state actor, and how a cyberattack by a non-state actor potentially could be covered by Article 8 war crimes and Article 7 crimes against humanity. These issues will be pursued further in meetings of the newly formed Council of Advisors on the Application of the Rome Statute to Cyberwarfare, co-sponsored by Argentina, Austria, Belgium, Estonia, Liechtenstein, Luxembourg, Spain, Switzerland, and The Global Institute for the Prevention of Aggression, and Chaired by Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations. Focus on the application of the Rome Statute to cyberwarfare illustrates one of the ways that the Rome Statute is potentially broad enough to address new challenges and new forms of warfare, and presents an area that should be of interest to many states that are increasingly facing such attacks. It might even persuade some States Parties that have not yet ratified the ICC crime of aggression amendment, to see it in a potentially new light.
With a huge number of preliminary examinations and investigations, the ICC has much work facing it, and it will be a challenge how much can be accomplished both due to budgetary limitations but also a frequently hostile political landscape. For example, when both the Philippines and Burundi withdrew from the Rome Statute, while those countries are supposed to have continuing obligations to cooperate with the ICC, for the OTP to move forward most certainly becomes much more difficult. While the reasoning contained within the Pre-Trial Chamber’s decision dismissing the OTP’s request to proceed with the Afghanistan investigation seems weak, if the Appeals Chamber reverses the decision and the Court proceeds, there undoubtedly will be significant hurdles to face. Yet, at the end of the day, that seems exactly what the Court was designed to do: to pursue difficult cases, particularly against high-level accused, where national systems are unwilling or unable to do so—remembering that there is always the initial choice for national authorities to conduct their own investigations and/or prosecutions, obviating the need for the ICC to play any role. Additional challenges will be to ensure that at the conclusion of the review process, the ICC and ASP ensure that recommendations designed to strengthen the Court are effectively implemented.
By Belinda Cooper and Jennifer Trahan
The one part of our trip (see Parts I and II for prior travels) that participants are unlikely to forget is a day spent in and around the massacre site of Srebrenica, where 8,300 men and boys were executed in the days starting on July 11, 2005. As we drive to Srebrenica and admire the beautiful mountain scenery and picturesque small farms, it is hard to fathom how ethnic tensions reached that horrible nadir of inhumanity.
Memorial to Serb Victims
Our first visit brings home with great force the stark contrast between Muslim and Serb versions of historical truth—a central concern of transitional justice that most of our students have likely encountered only in the abstract until now. It involves a brief stop at the location of a mass atrocity: the Kravica warehouse, where an estimated 1,000–1,500 Bosnian Muslims were murdered. Because, at that point, we are deep in the territory of Republica Srpska, not a sign marks the spot. Indeed, last summer, the 20th anniversary of the massacre, this site of horror was covered with posters of Vladimir Putin, meant as an anti-EU protest and a call for Russia to veto an upcoming UN resolution on the Srebrenica genocide. By contrast to the lack of commemoration at this site, nearly across the street a large cross looms over a memorial to Serb victims of past wars. Our Bosnian guides always advise caution when we seek to photograph these sites, but last year, due to the tensions unleashed by the 20th anniversary commemorations, we were told not to even leave our bus.
In Bratunac, we pass Hotel Fontana—the command headquarters of General Mladic, currently on trial in The Hague, who led the assault on Srebrenica. We have also been able to visit another memorial in Bratunac, this one to Serbs, mainly soldiers, killed around Srebrenica—a further disconcerting example of contrasting “truths” as well as denial on the part of perpetrator societies. The actual town of Srebrenica, where we stop for lunch, is so small that it is hard to imagine it swollen with 40,000 desperate Bosnian Muslim families seeking sanctuary in the so-called UN “safe haven,” which turned out to be neither “safe” nor a “haven.”
At the Potočari memorial (whose creation was mandated by the international community, since we are still in Republika Srpska, which would have created no such memorial), we lay a wreath to the victims and walk silently among the graves. In the battery factory where men and boys were separated from the women, we tour the memorial room, including the last effects of some of the victims, and read VRS (Army of Republika Srpska) wire intercepts regarding the disposal of “packages” (cynical code for bodies). The use of the word “genocide” throughout the memorial site brings home one powerful legacy of the ICTY: its determination that the massacre at Srebrenica met the legal definition of genocide. The preserved UN (“DUTCHBAT”) barracks, complete with the peacekeepers’ sometimes racist graffiti, provides a graphic reminder of the UN’s powerlessness to prevent that genocide.
As if our visit isn’t devastating enough, we listen spell-bound to a survivor of the column of men who tried to escape the Srebrenica executions by walking through miles of hostile territory. He was one of the few who made it to the Free Territory of Tuzla. We have also had the chance to meet with one of the “Mothers of Srebrenica” who lost all the male members of her family, including her two sons. She returned to Srebrenica, she says, unlike many other Muslims, in order to be reminded of her children by two trees planted in her front yard when they were small. At this point, there is hardly a dry eye in the room–and students begin to understand on a much more fundamental level what, exactly, we are seeking justice for.
By Belinda Cooper and Jennifer Trahan
After experiencing the Hague tribunals (see Part I of this post), we travel to the region itself, starting in Sarajevo, Bosnia and Herzegovina—the city that was besieged from 1992-1995. From the moment we arrive and begin to pass buildings covered in bullet holes, students are confronted directly with the reality of a conflict that ended barely 20 years ago. Interaction with survivors of that conflict begins almost immediately: the guide who tells us about the tunnel under the airport that was used to bring in supplies during the siege was involved in building it; the staff at the hotel we stay in, as well as many people we meet in interviews and casual conversation, lived through the siege and lost family members during it. These discussions and conversations heighten the impact of our more official meetings.
We visit the International Commission for Missing Persons (ICMP), which conducts forensic analysis to identify persons killed in the war. Visiting the DNA labs is always fascinating in itself, but we are particularly interested in the crucial role forensics plays in both international and transitional justice. Where private individuals and government officials deny or minimize the number of people killed at Srebrenica, forensic proof of the number of victims and how they were killed becomes a crucial component of criminal trials, as well as one way of establishing the truth and combatting denial. Also, for families whose loved ones went missing, return of the bodies for burial is critical in seeking some level of closure.
Our visit to the ICMP, as well as meetings with other NGO representatives, leave students feeling that much positive work is being done in Bosnia. But they are very quickly confronted with fundamental political problems that defy solution. In our meetings with journalists, academics, survivors, and ordinary people, we hear repeatedly that Bosnia is not a functional state—that it is mired in the regime created by the Dayton Peace Accords, which was never meant as a permanent solution. The two entities that comprise the state—the Muslim and Croat “Federation” and Republika Srpska—coexist uneasily, with very little sense of unity. The pessimism this creates extends to the existing mechanisms of international justice, which were once heralded as at least a partial solution to the region’s problems.
Thus we encounter great skepticism about the ICTY and its role in the region on the part of Bosniaks, who were the main victims of the war. After seeing the courts in The Hague, meeting their committed staff, and learning about their achievements, it can be disconcerting to discover how deeply the hopes they once raised have been disappointed. From our perspective as professors, however, it is very useful for the students to be so directly confronted with the limits of international justice and perhaps take away some important lessons for the future. Importantly, too, despite the often pessimistic and critical responses, no one has suggested that the region would be better off without the ICTY. Those we speak with may be frustrated that the ICTY has not proved to be a panacea for all the region’s ills—for instance, it cannot try a low-level perpetrator who may still live down the block—but ultimately, they admit that things would be far worse had the ICTY never existed.
By Belinda Cooper and Jennifer Trahan
Students of international affairs or international law can learn about the field of international justice through textbooks, films, discussions and lectures in the classroom, but an additional depth of understanding comes from traveling to the locations where crimes occurred, observing tribunals adjudicating those crimes, and meeting in the field with court officials, NGOs and victims.
Each year, we lead a group of master’s degree students from NYU’s Center for Global Affairs on a trip to The Hague, Bosnia, and Serbia to learn about war crimes prosecutions and issues surrounding international and transitional justice. We both work in the international justice field, and over the course of years have built up networks of contacts in both The Hague and the Balkans region; we are thus able to introduce students to a broad variety of actors and institutions and thereby expose them very directly to the controversies and pitfalls, as well as successes, of international and transitional justice.
While still in New York, we hold a number of class sessions that provide basic background on the wars in the former Yugoslavia and the ways in which judicial systems and societies deal with the aftermath of mass atrocity crimes. But the trip really begins in The Hague, which puts us on the doorstep of international institutions, even in the literal sense: our hotel is next door to the International Criminal Tribunal for the former Yugoslavia (ICTY). That tribunal has been the focus of our Hague visit, but we also bring students to the International Criminal Court (ICC) and on occasion the Special Tribunal for Lebanon.
To provide some insight into the history of the movement for international justice, we spend some time at Andrew Carnegie’s imposing Peace Palace, the home of the International Court of Justice and the Permanent Court of Arbitration. Whenever possible, we sit in on trials at the ICTY and ICC; in past years, student have had the chance to view the Karadžić and Mladić trials, Haradinaj, Bemba, and others. Sitting barely feet away from accused war criminals and hearing lawyers, judges and witnesses speak brings home the drama—and sometimes the tedium—of international criminal trials.
In addition, we organize substantive meetings with a wide variety of people involved in the courtroom process: these include the various offices of the ICTY (prosecution, defense, judges, outreach, registry) and the ICC, as well as journalists covering the tribunals. Highlights of past years have included ICTY Judge Theodore Meron, ICC Judge Hans-Peter Kaul, Karadžić defense advisor Peter Robinson, SENSE news chief Mirko Klarin, and many others. Sometimes serendipity takes a hand: this year, the chief prosecutor of the ICTY, Serge Brammertz, passed our students as they waited to enter the building and began a conversation with them. At these meetings, students gain insight into the mechanisms of international justice, and profit from speaking directly to people involved every day in the nitty-gritty of preparing and carrying out trials of major war criminals.
The impression they receive is an understandably positive one of successful, if not always perfect, institutions staffed by dedicated, skilled, and often idealistic professionals. But questions about the efficacy of the tribunals on the ground in former Yugoslavia already arise in our discussions about the ICTY’s reception in the region, its outreach program, and its perceived legacy. These concerns increase in immediacy and intensity once we arrive in the region, and they become a central focus of our discussions. (To read more, see Part II.)
It’s our great pleasure today to welcome Jennifer Trahan back as an IntLawGrrls contributor. Jennifer is Associate Clinical Professor of Global Affairs at NYU, where she teaches International Law, Human Rights in Theory & Practice, International Justice, Transitional Justice, U.S. Use of Force & the “Global War on Terror,” and a field intensive on “War Crimes Prosecutions in the Former Yugoslavia” that travels to The Hague, Bosnia and Serbia. She has served as counsel and of counsel to the International Justice Program of Human Rights Watch; served as Iraq Prosecutions Consultant to the International Center of Transitional Justice; and worked on cases before the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda. Jennifer is the author of “Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda” (HRW 2010), and “Genocide, War Crimes and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the formerYugoslavia” (HRW 2006). The latter book was released by Universidad Iberoamericana in Spanish, and her earlier books have been translated by the U.N.D.P. into Bosnian-Croatian-Serbian, and by Human Rights Watch into French. She is also the author of numerous law reviews, including “Why the Killing in Darfur is Genocide,” “The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference,” as well as several articles about the work of the Iraqi High Tribunal, including “A Critical Guide To The Iraqi High Tribunal’s Anfal Judgment: Genocide Against The Kurds.”
Jennifer has also served as an observer for the Association of the Bar of the City of New York to Meetings of the International Criminal Court’s Special Working Group on the Crime of Aggression, as Chairperson of the American Branch of the International Law Association’s International Criminal Court Committee, as a member of the American Bar Association 2010 ICC Task Force, and as a member of the New York City Bar Association’s Task Force on National Security and the Rule of Law. She was an NGO observer at the ICC Review Conference in Kampala, Uganda. She has also taught at Columbia University, Fordham Law School, Brooklyn Law School, The New School, and lectured at Salzburg Law School’s Institute on International Criminal Law. Earlier in her career, she spent 10 years in private practice as a litigator at a large New York City law firm. She holds an A.B. from Amherst College, a J.D. from N.Y.U. School of Law, and an LL.M from Columbia Law School, specializing in international law. Jennifer’s first post will discuss her experience in Rwanda. Heartfelt welcome!