By Maura Sokol

Picture: Globe License: Public Domain

2017 marked the end of the International Criminal Tribunal for the former Yugoslavia (ICTY), which closed out its existence with high profile convictions. Although international justice may have been achieved in these cases, a number of international crimes were committed across the globe in 2017, many of which will remain a threat in 2018.

International Criminal Tribunal for the former Yugoslavia

In November, the ICTY Tribunal in the Hague brought its prosecutions to a close. The ICTY was first created in May 1993, under Resolution 827 by the United Nations Security Council to prosecute international crimes committed during the Yugoslav Wars. This creation of an international, ad hoc tribunal has left an enduring legacy on international criminal law. During its 25 years of existence, 161 individuals have been charged with crimes and 151 have faced trial, with 90 convictions that included major generals and political leaders. All unresolved cases will now be handed over to another ad hoc criminal court, the Mechanism for International Criminal Tribunals (MICT).

General Radko Mladic, the former Bosnian Serb army chief known as the “Butcher of Bosnia” was one of the last war criminals convicted in the ICTY. In November, the tribunal sentenced him to life in prison for genocide, crimes against humanity, and war crimes. Mladic was responsible for thousands of deaths, engaged in ethnic cleansing, and was responsible for the 1995 genocide of Srebrenica and the three-year siege and bombardment of Sarajevo.

During the last hearing of the ICTY, the convicted Bosnian Croat war criminal Slobodan Praljak drew much of the media’s attention by committing suicide in the courtroom after ingesting potassium cyanide. The hearing had been part of an appeal by six Bosnian Croat political and military leaders who were convicted in 2013 of persecuting, expelling and murdering Bosnian Muslims. Praljak ingested the cyanide after the tribunal announced he had lost his appeal. Praljak had been sentenced to 20 years in prison.

Genocide in Myanmar

The government in Myanmar, once known as Burma, committed horrific violence against the Rohingya, Myanmar’s minority Muslim population, in what the United Nations high commissioner for human rights called a “textbook example of ethnic cleansing.” Beginning on August 25^th, more than 626,000 Rohingya have fled Myanmar and an estimated 9,000 were killed by late September. Hundreds of villages have been destroyed or burned to the ground, and the Associated Press has reported a campaign of mass rape, robbery and torture. Despite widespread condemnation, there has been little action from the international community.

Syrian War Crimes

Efforts to investigate and bring to justice the many war crimes committed by Syrian President Bashar al Assad’s regimes continued throughout 2017. In November, Amnesty International published an extensive new report that detailed the regime’s massive campaign of sieges, unlawful killings, and forced displacement through use of “surrender or starve” tactics. The Islamic State has unlawfully killed civilians and used them as human shields, and the US-led coalition has also carried out attacks that led to the death of civilians, in violation of international humanitarian law. By the end of 2017, more than 400,000 people have died and more than 11 million people have been displaced.

Courts in Spain, Germany and Sweden have all attempted to bring individuals to justice for war crimes committed, and in October the first individual was convicted in the conflict and sentenced to eight months in prison in Sweden. 2017 also saw the beginning of the International, Impartial and Independent Mechanism (IIIM) to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes in Syria, which was established by UN General Assembly at the end of 2016.

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April 09, 2018

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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March 15, 2018

By Erika V. Suhr

Image: ICC Building License: CC BY-SA 4.0

On October 27, 2017 Burundi, a year after declaring its intentions, became the first country to withdraw from the International Criminal Court.  The timing of Burundi’s withdrawal coincides with a report released by the United Nations Commission of Inquiry. The report recommended that a criminal investigation on crimes committed in Burundi be initiated in response to evidence of torture, sexual violence, extrajudicial killings, disappearances, and illegitimate arrests and detentions sponsored by the regime of Burundi’s president, Pierre Nkurunziza.

At the time that Burundi announced its decision to withdraw from the Rome Statute, it seemed like it could be the leader in a wave of withdrawals by other African nations. Many nations in Africa have criticized the ICC as being a tool for post-colonial control of African nations and a proxy for Western-led regime change. The ICC came under fire around the time it chose not to pursue charges against William Ruto and Uhuru Kenyatta, Kenya’s deputy president and president, who were both accused of violence surrounding Kenya’s 2007 election, which resulted in over 1,100 deaths and disappearances. However, South Africa rescinded on its threat in March of last year after its High Court ruled that Parliamentary approval was required to carry out the measure. Gambia also backed down after a presidential election defeated the 22-year incumbent. These political events forestalled a potential exodus from the ICC by prominent African members.

Burundi’s exit is an illustration of what can perhaps be expected when the Court attacks sitting officials instead of the fringe rebel groups it has in the past. However, it might be a symptom of an underlying fatal problem. At the very least, it presents an opportunity to reflect on the future of the ICC, and how it will respond to its critics going forward.

For instance, the criticism cited by Burundi and other African countries is that Africa is unfairly targeted while other world conflicts, especially those in which Western countries are involved in, are ignored. The ICC’s record seems to support that notion to some extent. Presently, nine out of the ten formal investigations conducted by the ICC are Africa-related, and all of its trials have been against African defendants. Additionally, the glaring absence of three of the five Security Council powers from the Rome Statute (the United States, Russia, and China) rankles member states who see the ICC as a political instrument wielded against the Global South. A rebuttal to this criticism might be that of the nine African countries being investigated by the ICC, five have been referred to the Court by their own governments. In only two cases has the ICC’s prosecutor used her discretion to bring a case. Further, a look at the list of countries that are being examined by the ICC reveals a less Africa-centric perspective. Countries under “preliminary examinations” include Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece, Cambodia, and Ukraine.

Second, the argument exists that the Court is wildly inefficient. Since it began functioning in 2002, judges have issued only 31 arrest warrants. 25 cases have been heard before the Court and of those cases verdicts have been issued in six of them. Ultimately, nine people have been convicted and one was acquitted. Those results have cost over $1 billion since the Court’s inception, and today the ICC has an operating cost of $145 million per year. However, one might concede that investigations surrounding the gravest human rights violations are complex and time-consuming, as evinced by ad-hoc tribunals of isolated conflicts, such as the International Tribunal for the Former Yugoslavia. This is especially so when there is no cooperation from the country in which one is investigating.

There are tensions over the Court’s willingness in the coming years to test nonmember states and regions that it has historically not pursued. For instance, in its preliminary examination of Afghanistan, will it encompass United States actors in its inquest, or even Afghan state actors, or will it choose to go after dissident groups, like the Taliban, and count on some international cooperation? Russia has already blocked two Security Council resolutions to refer the Syrian crisis to investigation by the ICC. In face of this opposition, how aggressively will the ICC pursue allies of the Russian government, or the Russian government itself? Will it target the most culpable individuals?

Notwithstanding the criticisms and the setback of Burundi’s exit, one can say that some justice is preferable to no justice and that every incremental step forward in prosecuting human rights offenses is a victory and a testament to the better angels of our humanity.

As for Burundi, it is possible that it has not escaped the Court, despite its best efforts. Under the Rome Statute, crimes in nonmember states can still be referred to the Court for investigation by the UN Security Council. In this case, the commission did recommend a referral. The Court has stated that it would still claim jurisdiction over Burundi, but it might be difficult for them to do so. The status of Burundi’s case is a preliminary examination. For it to rise to an investigation, the ICC’s judges would have to grant the request of the Court’s prosecutor, and Burundi will most likely argue that there is no legal basis for them to do so now it is no longer a party. 

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February 11, 2018

By Olga Symeonoglou

On March 29 and 30, Georgetown Law is hosting a conference, Intersections in International Cultural Heritage Law. The conference is co-sponsored by the Cultural Heritage and the Arts Interest Group of the American Society of International Law and coincides with 

ASIL’s annual meeting March 30 – April 2.

There will be six panels: International Human Rights Law, Law of Armed Conflict, International Criminal Law, Extraterritorial Protection of Cultural Heritage, International Movement and Restitution of Cultural Artifacts, and World Heritage and the World Court.

There will be two keynote speakers. Professor Patty Gerstenblith, Distinguished Research Professor of Law and director of the Center for Art, Museum & Cultural Heritage Law at DePaul University College of Law will give a lunch keynote on March 29 on the Cultural Heritage of Syria and Iraq. On March 30, Sir Frank Berman, former Legal Adviser to the UK Foreign & Commonwealth Office and Roger O’Keefe, Professor of Public International Law at University College London will give the concluding keynote on the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand).

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March 16, 2016