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 Jack Mitchell*

The Temple of Bel, Palmyra, was destroyed in 2015 by the Islamic State.Photo: Wikimedia Commons/Bernard Gagnon

I

In 2012, at the UNESCO World Heritage site in Timbuktu, Mali, Ahmad Al Faqi Al Mahdi destroyed historic mausoleums, manuscripts, and even a mosque. Al Mahdi belonged to the Al-Qaeda-linked group, Ansar Dine. His subsequent conviction by the International Criminal Court (ICC) last year was covered in the mainstream press and art world publications as a “landmark” case, the first time the destruction of “cultural heritage” was prosecuted as a war crime in the ICC. In prosecuting and convicting Al Mahdi, however, the ICC did not create a new war crime for destroying “cultural heritage.” Rather, it invoked part of Article 8 of the Rome Statute that it had never used before. Under Article 8(2)(e)(iv) of the Rome Statute, intentionally “directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick are wounded and collected, provided they are not military objectives” is a war crime.

The Al Mahdi case was so lurid because it fit a grisly pattern of World Heritage and other significant cultural sites targeted by Islamist extremists, including the Islamic State of Iraq and the Levant (ISIL). ISIL has destroyed numerous historic sites in Syria and Iraq, including ancient Assyrian sites. When it obliterated the Temple of Bel and other ancient features in Palmyra in 2015, for example, the loss was as devastating as the 2001 Taliban bombing in Afghanistan of the Buddhas of Bamiyan.  So far, though, Al Mahdi’s conviction remains a significant but isolated precedent.  The destruction of the Bamiyan Buddhas was never subject to prosecution in the ICC because the Rome Statute had not yet entered into force.  The perpetrators of cultural heritage destruction in Syria also might elude prosecution in the ICC because Syria, like the United States, is not a party to the ICC, meaning that an ICC investigation and prosecution would require an unlikely referral from the UN Security Council.

But it’s not just terrorist groups. States and non-state actors have participated in recent cultural heritage destruction. According to Matthew Barber, former director of Yazda, ISIL’s campaign to exterminate the Yazidis went forward because KDP forces decided not to defend them. Similarly, the US has been mute as its ally Saudi Arabia bombs the UNESCO-listed Old City of Sana’a in Yemen.

II

First, principles about the law of cultural heritage are surprisingly unsettled. What is the difference between “cultural heritage” and the older term, “cultural property?” If cultural heritage is the more encompassing concept, what should its boundaries be? Second, how do we assess the gravity of cultural heritage destruction?

International criminal law would do well to focus on cultural property destruction as a war crime—as opposed to language and oral history, for example—because deeper efforts at “cultural cleansing” would possibly fit better under the umbrella of crimes against humanity.

Two key factors concerning when cultural property destruction should be prosecuted are military necessity and gravity of the crime. Military necessity, although the doctrine is controversial, is a kind of “affirmative defense” to cultural property destruction because an opponent’s use of cultural property or its status as a military objective can be used as justification for its destruction. This doctrine has sparked promising efforts to improve militaries’ awareness about where cultural property is located such as ICOM’s Red List and archeological inventories used to create “no-strike lists.”

The gravity of the crime question depends upon our purpose. Should cultural heritage law protect people or things? A “people” approach emphasizes what cultural property means to distinct groups of people. A “things” approach emphasizes its supposed intrinsic worth. Both approaches are flawed. The first might have to credit nationalistic myths. The second might entail using market value or the fallible judgment of UNESCO as a proxy for actual value. My trite but sincere belief is that international criminal law can adopt a flexible standard that recognizes that gravity is established for targeted, damaged, or destroyed cultural property both when it is especially meaningful to specific cultures and when it has internationally recognized importance.

*Jack Mitchell is a student at Georgetown University Law Center in the class of 2019. This blog post is the winner of the International Cultural Heritage Law Blog Post Competition that was co-sponsored by the American Society of International Law, the Georgetown Journal of International Law, the Lawyers’ Committee for Cultural Heritage Preservation, and the Georgetown Art Law Association.

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May 05, 2017

By Megan Abbot

The Sepur Zarco case, named after a military base in which widespread human rights abuses occurred against the civilian population, charges Lieutenant Colonel Esteelmer Reyes Giron, former commander of the base, and former military commissioner Heriberto Valdez Asig for their leadership of crimes of mass sexual violence and slavery.  The prosecutor is charging these crimes as violations of international humanitarian law, and thus as war crimes. Jo-Marie Burt reports for the International Justice Monitor that it is the first time that the Guatemalan court has prosecuted a crime of sexual violence from its decades-long civil war.  It is the first time that any court of any country is hearing crimes of sexual violence as crimes under international law.

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February 22, 2016

By Courtney Cox

Just one day after the U.N. Security Council rejected a resolution that would require the establishment within three years of a Palestinian state on lands occupied by Israel, the Palestinian Ambassador to the U.N. submitted letters of accession to the International Criminal Court (ICC). Al Jazeera reports that days later, the U.N. Secretary General Ban Ki-moon confirmed that Palestine will join the ICC on April 1, 2015. The ICC was created by the Rome Statute in 1998 and has jurisdiction over crimes against humanity, genocide, and war crimes. Palestinian President Mahmoud Abbas believes acceding to the treaty will facilitate the prosecution of war crimes committed by Israel. Israel has promptly responded by freezing the transfer of over $100 million in tax funds collected for Palestinians. The United States is also unsettled by Palestine’s new membership. A State Department representative asserted that the move would cause an impediment to permanent peaceful resolution.

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February 09, 2015

By Julie Inglese

The Times of India is reporting that the United Kingdom has agreed to vote in favor of an independent investigation into alleged war crimes in Sri Lanka at the upcoming U.N. Human Rights Council.

The U.S.-led resolution alleges that 40,000 civilians were killed at the end of Sri Lanka's separatist war despite the great progress that they have made in reintegrating child soldiers and reconstructing conflict areas. The United Kingdom said it strongly believes “that, without a credible investigation… it will be very difficult for the Sri Lankan people to move forward in the true spirit of lasting peace, reconciliation and unity…”

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March 31, 2014

By Katie Bacharach

Two former leaders of Cambodia’s Khmer Rouge regime denied responsibility for war crimes on the last day of their trial before the Extraordinary Chambers in the Courts of Cambodia (ECCC), according to the UN News Centre.

The ECCC was established in 2006 to try those most responsible for the crimes committed during the Khmer Rouge regime. Mr. Nuon Chea and Mr. Khieu Samphan are on trial for war crimes and both men denied responsibility and expressed remorse for those who suffered under the regime. The prosecution called for a life sentence, arguing that the two men were the masterminds of criminal policies that forced millions of people to march thousands of kilometers to unknown places in inhumane conditions and killed hundreds of former Lon Nol officials and soldiers.

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October 31, 2013