By Maura Sokol
Photo: Stephen J. Rapp License: CC BY-ND 2.0
On February 28th, the Georgetown Law Human Rights
Institute hosted a lecture by Ambassador Stephen J. Rapp, the Robert F. Drinan,
S.J., Visiting Professor of Human Rights for 2017-2018. Ambassador Rapp was the
United States Ambassador-at-Large for War Crimes Issues in the Office of Global
Criminal Justice under President Obama from 2009 to 2015. In the position,
Ambassador Rapp traveled the world extensively and worked with the Secretary of
State to formulate US policy regarding the prevention and accountability of
mass atrocities.
Ambassador Rapp began his lecture by acknowledging the
potential tension between criminal justice and human rights but asserted that
the effective pursuit of these two concepts is essentially the same and needs
to be the same. In both the United States and in international law, the
criminal justice process is only successful when it works with the trust of
victims and victimized communities. Criminal prosecution efforts must reinforce
norms against violence and abusive conduct.
Ambassador Rapp also explained some of the history behind
international criminal prosecutions and human rights. Historically, national
leaders did not have to worry about facing consequences for their crimes due to
the concept of sovereignty; even if they violated international treaties or
harmed individuals across borders, this concept kept them largely safe from
international action. Ambassador Rapp asserted that this all began to change at
the Nuremberg trials after World War II. The key to Nuremberg, he says, was individual responsibility, the
prosecution of men and not states or entities. This allowed for the
international community to hold individuals accountable for war crimes without
intruding on a nation’s sovereignty.
Another key to the Nuremberg trials was that they were
organized by all of the world’s great powers at the time, and justice was not
dictated by global politics. The support or lack thereof from all global powers
in international criminal justice has had a huge impact on its success or
failure. This helps to explain why the
Nuremberg efforts ended with the beginning of the Cold War, and not again until
the end of the Cold War was there a global effort to hold individuals
accountable for international crimes. This effort began again with a number of
tribunals, most notably the tribunals for Yugoslavia and Rwanda enacted through
the United Nations Security Council.
A third element that Ambassador Rapp believes was essential
to Nuremberg, Yugoslavia, Rwanda, and other tribunals, was extensive investigations
and fact-finding missions. The evidence gathered by these inquiries, sometimes
gathered while the crimes were being committed, was essential to the pursuit of
international criminal justice. It is useful on the one hand for linking crimes
at a low level to the powerful men at the top who keep their hands clean but
orchestrate the crimes. It is also useful because it provides the “big
picture”, which is important to establish the required proof of context and
intent for international crimes.
The global picture is very different in 2018: many of the
tribunals have closed or are in their final stages, the International Criminal
Court is on shaky ground, and gaps in justice have become more apparent. The
worst crimes being committed today are in places where international courts do
not have jurisdiction, and Russia and China will veto efforts to create
jurisdiction. Where Russia once only used their Security Council veto
strategically, Russia now uses the veto power to undermine efforts to promote
human rights everywhere. China argues that atrocities by countries are internal
affairs. Countries that have long respected the rule of law are moving in the
other direction, and increasingly leaders are elected who demonstrate a
disrespect for human rights.
So, what is positive and what is possible in this new world?
For one, the United Nations Human Rights Council has taken up many causes after
action is blocked in the Security Council. These efforts have been successful
for Syria, South Sudan, Myanmar, and many others. There are some vast
differences between “soft” human rights law and the process of prosecuting
international crimes, and progress must be made in efforts to bridge these two
processes. Evidence collection is still crucial, and there are too many
insufficiencies in inquiries and fact-finding missions that must be corrected.
However, in the absence of the support that was once there from some of the
great powers, if victims take up the cause and have the evidence, it is
possible to build the support on the international level.
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