Monday, July 24, 2017

The Office of Global Criminal Justice: Why it matters.

On 17 July 2017 there were strong indications that the US States Department was planning to either close the Office of Global Criminal Justice (GCJ) entirely, or to reassign its staff and responsibilities to the Bureau of Democracy, Human Rights and Labor (the Bureau). There is no official statement yet, but the reassignment of Todd Buchwald, acting head, makes its impending close appear very likely. The purpose of this blog post is to explain why the closure of an independent GCJ matters to those interested in the International Criminal Court and the values it upholds. The GCJ has been the office responsible for the official US relations with the International Criminal Court (ICC).

Todd Buchwald, Acting Head of the Office of Global Criminal Justice
US State Department Photo

The principles enunciated by the GCJ has its origins in a fundamental shift in US foreign policy during the Carter Administration. Carter’s election symbolized a move was away from acknowledging human rights, to actively pursuing the cause. In 1977, his inauguration speech explicitly stated “Because we are free, we can never been indifferent to the fate of freedom elsewhere.” Twenty years later, this commitment led Madeleine Albright to create the Office of War Crimes Issues (now GCJ) within the States Department.

The GCJ has been in operation twenty years, and its achievements have been great in dealing with atrocities around the world.
  •          Continued campaigning to ensure foreign Governments do not extend diplomatic invitations to Sudanese officials that are wanted by the ICC, including incumbent President Al-Bashir;
  •          Negotiations and fund-raising to assist the creation of the AU-Senegalese Court;
  •          Continued technical support to the government and people of Colombia in their transitional justice process;
  •       Obtained and released 30,000 Caesar photos from Syria, exposing the recent atrocities committed under the current Bashar al-Assad regime;
  •           Assisted the State Department in assisting the African Union to set up a hybrid court to prosecute international crimes within Africa;
  •           Provided active support to the International Criminal Tribunal for the Former Yugoslavia;-          Seconded staff to the European Union’s Special Investigative Task Force;
  •           Drawn attention to the ongoing conflict in Burundi, including assisting the Atrocity Prevent Board’s mission in the region; and
  •           Raising American and global awareness of the Yazidi genocide in Iraq, perpetrated by the international terror group IS.

Beyond its commitment for accountability and against impunity, the GCJ also runs an active War Crimes Rewards Program. This has been in operation since 15 January 2013, and offers up to $5million USD to individuals who provide information regarding designated defendants who have been charged with the commission of international crimes. This program has been effective, in securing fugitives subject to arrest warrants from the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda. More recently, the Program has assisted in detaining Dominic Ongwen, Ladislas Ntaganzwq and Jean Bosco Ntaganda; Ongwen and Ntaganda being ICC defendants. The program is currently seeking information to aid the capture of other perpetrators such as Joseph Kony. 


The importance of the GCJ is evident from these achievements. The GCJ is a continued demonstration to the world that the United States is committed to ending impunity and bringing those responsible for grave atrocities to justice. Although the functions of the GCJ may remain when the Office is subsumed under the Bureau; there is a reasonable concern that its integration may come at the cost of a specific focus on war crimes and international justice. The values of the Bureau are to promote freedom, democracy and protect human rights. Although a focus on international criminal law may be inferred by the nature of the Bureau’s objectives, issues of criminal justice are unlikely to be at the forefront. The consequences may be that the US may appear to have backed away from its commitment to end impunity, and international criminals may conclude that they will not be held accountable for their crimes. 

Written by Ally L. Pettitt

Wednesday, June 14, 2017

A Supportive US Statement, a Divided Security Council: Analyzing Statements on the Darfur Situation


On Thursday, June 8, 2017, the Security Council met to hear ICC Prosecutor Fatou Bensouda’s briefing on the Darfur situation. The situation had been referred to the Office of the Prosecutor (OTP) by the Security Council through resolution 1593 (2005).

The ICC Prosecutor discussed the outstanding ICC arrest warrants in the Darfur Situation and asked for support in getting states to uphold these warrants, or at least for the Security Council to act upon her office’s referrals of states for non-compliance and non-cooperation. She emphasized the case of Sudanese President Omar al-Bashir, who has repeatedly made headlines for traveling to other states despite an outstanding ICC arrest warrant against him for genocide, crimes against humanity and war crimes in Darfur. Prosecutor Bensouda also mentioned that they were considering more individuals and new arrest warrants.

The statements of Security Council member states were divided. While the meeting began with a supportive statement from the UK,  the following statement from Ethiopia criticized the ICC’s handling of situations in Africa and called for the suspension of the case against Bashir. Egypt also called for such a suspension. Uruguay was extremely supportive of the Court’s work and encouraged ratification of the Rome Statute. The US called for accountability for the war crimes, genocide, and crimes against humanity in Darfur. Japan highlighted the obligations of States under resolution 1593 (2005). Ukraine criticized non-compliance with the court, followed by Italy which called for cooperation with the Court. However, then China said that the African Union’s criticism of the ICC, was reasonable and Russia argued that the meeting and its subject matter was inappropriate for the UN Security Council.  Sweden and France followed with supportive statements that called for cooperation with the ICC and obligations to uphold arrest warrants under the resolution. Sudan, which is not a member of the Security Council, was the last to speak. It denied genocide in Darfur, attacked the prosecutor and insisted that there was not enough evidence.

UN Photo


Division at Security Council

A similar division had arisen during the Prosecutor’s briefing on the Libya situation to the Council last May. Given the sizable body of opposition at the Security Council towards the ICC’s work and the geopolitical climate related to the ICC and situations of atrocities, it is doubtful that the Security Council will refer any more situations to the ICC. Similarly, despite Prosecutor Bensouda’s calls for Security Council action against non-compliance and non-cooperation, it may be unlikely that such actions will be taken in the immediate future. There are several countries who criticize the actions of the Court; so, it is possible that an enforcement attempt would not receive enough “yes” votes from the Security Council members. Russia and China’s opposition to the Court’s work and their economic and political ties could also turn into vetoes of future ICC-related referrals. That said, many actions to help end the conflict in Sudan have been taken by the Security Council in the past year: they renewed the 1591 Sudan Sanctions Committee Panel of Experts, sanctions, and UNAMID’s mandate. So, there could be the possibility of some action that indirectly helps the OTP’s work in Darfur. Yet, statements at the Security Council last Thursday suggest that some states have been alarmed the ICC’s efforts to get Bashir, a head of state, to The Hague.

Although there is too much opposition for the Security Council to act in support of the ICC’s work, it is highly unlikely that the Security Council will act with hostility against the Court. The verbal support for the ICC’s work from the majority of states at the Security Council, including the UK, France, and, often, the US, should provide a buffer against any efforts to undermine the Court’s work, including through resolutions deferring cases from investigation by the OTP and trial at the ICC. Such a deferral would bind the OTP from working on a case or situation under Rome Statute Article 16, and it could undermine the Court’s work.

However, deferrals are a possibility, and the Security Council has agreed on deferrals in the past. For example, during the Bush administrations’ political attack against the Court in the early 2000’s, it pressured the Security Council to pass Resolution 1422, which deferred ICC investigation and prosecution of peacekeepers.  It used its veto powers against resolutions renewing UN peacekeeping operations’ mandates until the Security Council agreed to do so. 

Therefore, for the continued success of the Court, the Security Council’s assistance, cooperation, and support will be vital. Supporters of the ICC who are nationals of Security Council member states must strategically demonstrate the public’s support for the Court and find new avenues to maintain, strengthen or induce their government’s political support for the Court.

The US Statement

Ambassador Michele J. Sison, the US deputy permanent representative to the United Nations spoke on behalf of the US delegation.  She stated:

“Having referred the situation in Darfur to the ICC over ten years ago, we must continue to demand Sudan’s compliance with this Council’s decisions. While victims have not yet seen justice, and refugees and internally displaced persons continue to struggle years after the conflict began, it is unacceptable that President Bashir still travels and receives a warm welcome from certain quarters of the world– and unacceptable that none of the Sudanese officials with outstanding arrest warrants have been brought to justice.”

This is not the first official statement that the US has made under the Trump administration about the Darfur situation. Last month’s press release from the US Embassy in Khartoum was more strongly worded. It opposed not only Bashir’s travel but travel of all individuals with outstanding ICC arrest warrants. Similarly, in May, the US expressed its support for the ICC’s work in Libya and called on states to transfer, to The Hague, individuals with outstanding ICC arrest warrants from the Libya situation.

Admittedly, there is only so much that can be derived from US statements at the UN or a US embassy. Neither of the statements came directly from Washington, and US officials’ statements on foreign policy issues have been lacking consistency—even at the highest levels. For example, recently Donald Trump and Rex Tillerson made news for making opposing statements about the diplomatic crisis between Qatar and other Middle Eastern countries. So, it is difficult to ascertain if the sentiments and policies set forth by these statements will reflect future actions and positions of the US government.

However, it is encouraging that, during the Trump administration, the three official US statements on the ICC were supportive of the Court. Even if the statements were not directly delivered by Washington,  supportive statements from the US mission at the UN Security Council and from a US embassy is better than a hostile reaction to the Court. 

The statements were consistent with the policy of constructive engagement, which was adopted under the Obama administration. Since no new policy has been publicly announced under the Trump administration, US officials may simply be following the old policy. Or, the supportive statements could be an intentional decision by the administration because changing the US policy on the ICC is not a top priority of the administration or because it felt that the policy was compatible with their goals. It is also possible that the administration simply has not paid attention to the ICC yet, and these offices are just echoing preceding statements and acting outside of Washington’s radar. So, it is likely, that the administration either doesn’t yet care about the ICC policy or the administration is at least neutral or in favor of the preceding policy. In either case, there is a chance that the US policy on the ICC will not change for some time.


Tuesday, June 06, 2017

Reviewing "Détente scoffs at talk of International Criminal Court probe"




Recently, news outlets have speculated on potential ICC charges against the Philippines President Rodrigo Duterte for crimes against humanity. The recent Washington Post article “Duterte scoffs at talk of International Criminal Court probe,” by Emily Rauhala, correctly notes that bringing charges against Duterte would take time. However, it also observes that if the OTP were to begin a preliminary examination into the situation in the Philippines—the first step in the process, the examination could have a significant impact. The Washington Post article also poses some interesting questions about the impact that charges for crimes against humanity could have on the US relationship with the Philippines. A few of the points made in this article deserve attention for AMICC’s advocacy.

Language check:

As is the case in most press coverage about the International Criminal Court, some inaccurate language conveyed common misconceptions about the Court. Some clarification might be needed when discussing the article

• First, referring to the Rome Statute, Emily Rauhala says that the US “never signed the treaty.” Yet, the US did sign the treaty on December 31, 2000, under the Clinton Administration, although Clinton did not send it to the Senate for ratification, and the Bush administration deactivated the signature in its first term.

• Similarly, the article says that Russia “withdrew” from the pact last year; however, more accurate terminology would be to say that it “deactivated” its signature.

• Rauhala writes that the “complaint” against Duterte “accuses the president and 11 associates of mass murder and crimes against humanity.” However, mass murder is a type of crime against humanity.

• South Africa, Gambia and Burundi have not merely “at various times, threatened to withdraw” from the ICC. All three announced their withdrawal last Fall and informed the UN of their decisions, which is necessary to leave the Court. South Africa and Gambia are no longer set to leave the Court, and only Burundi is set to leave.

Impact on The United States Relationship

Rauhala correctly pointed discussion in the article to the impact charges at the ICC will have on US-Philippines relations. Indeed, in the past, the US has shied away from allowing its leaders to shake hands with those accused of crimes by the ICC. Last month, the media was thrown into a frenzy with reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the same summit in Saudi Arabia. The speculation and criticism were not missed by the US government, and the US embassy in Khartoum released a strong statement against Bashir’s attendance: "the United States has made its position with respect to Sudanese President Omar al-Bashir’s travel clear. We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir.” If an arrest warrant is issued for Duterte for crimes against humanity charges, the PR optics of US officials meeting with the President might make such meetings increasingly unlikely.

ICC as the last hope

The article quotes Sen. Leila de Lima as saying that the ICC is “the last hope for the Philippines to see an end of killings.” Indeed, the ICC is a court of last resort. The framers of the Rome Statute intended for it to be so; it is not meant to get involved in situations where local or national institutions are already able and willing to execute the rule of law. Correctly explaining the principle of complementarity—although without using the term—Rauhala writes that the ICC “can assert… jurisdiction only if it is clear that local authorities have failed to investigate or prosecute crimes.” The article aptly explains that it does not appear that there is any movement in the Philippines for investigation or accountability for the extrajudicial killings and that institutions have been “kept” from doing so under Duterte.

Point of Contention: Political Pressures on the Prosecutor

Writing about “political considerations” as Rauhala did in the article may be appropriate journalism. However, it would be imprudent and unprofessional for the prosecutor to proceed or dismiss the complaint based on political pressures or fears. The framers of the Rome Statute intended for the Court to stay apolitical in its decisions to prosecute, and the prosecutor has repeatedly stated that she is committed to making decisions about prosecutions following her mandate rather than political tides. That being said, it is difficult for the prosecutor to completely fulfill her mandate without the necessary budget to do so. The article points to the relatively small resources at the Court's disposal given their caseload. While it is best that the Prosecutor remain committed to her mandate without political judgments involved; limited resources may forces the prosecutor to make choices between situations for the ICC to bring to a preliminary examination or investigation even if both situations fall under her mandate. 

The Washington Post should continue to educate its readers about the ICC and potential charges of crimes against humanity. The article does an excellent job of explaining the significance of the complaint and any potential preliminary examination or subsequent charges that might result from the complaint. However, better knowledge and understanding of how the court works is needed by news outlets to avoid contributing to the problem of misinformation about the Court.

Written and researched by Taylor Ackerman, AMICC Professional Associate (unpaid)


Monday, May 22, 2017

An Update on the Trump Administrations’ Approach to the ICC

The current administration has not set a new policy for the ICC; predictions about the future US-ICC relationship cannot be based on clear statements from the administration, because there are none. However, the strongest and most hopeful clues about future US-ICC relations came in the form of a statement from the US Deputy Legal Advisor, Stephen Townley, at the UN Security Council meeting on May 8th, 2017 and a statement from the US Embassy in Khartoum in Sudan. Yet, even logical deductions from those statements cannot be turned into predictions about the future position of the Trump administration on the ICC.


Security Council Statement on the Libya Situation

The United States’ statement at the Security Council praised the ICC Prosecutor Fatou Bensouda's work on the Libya situation, and, implored states to extradite individuals under ICC arrest warrants to The Hague for trial. The United States also expressed support for accountability of those responsible for crimes in Libya. It did so because the United States recognizes the necessity of accountability and justice to secure peace and stability. This was a powerful and commendable statement by the United States.

Although, it is a positive statement that the UN mission was consistent with past policy; the statement could have resulted from a variety of situations. The statement indicates that the Trump administration’s policy on the ICC could resemble the Obama administration policy or the policy of the second half of the Bush administration. However, it is also possible that the statement about Libya originated from the UN mission, and might not represent thinking in Washington. It could also mean that no new policy has formed. In fact, the “International Criminal Court” page on the State Department’s website still states that the “May 2010 National Security Strategy summarizes current US policy.” It is possible that no one in the Trump circles has really thought about the ICC or that changing the policy is not a priority for the administration. If the Trump administration does plan to follow the policy, it should continue to show a strong push for international criminal justice in situations where it fits US national interests, such as in Libya.


US Embassy Statement on Bashir

So far, the biggest test of the US-ICC relationship under the Trump Administration came in the form of reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the Islamic-American Summit. The ICC issued an arrest warrant for Bashir for charges of genocide, crimes against humanity and war crimes. Fortunately, for the administration, it was announced that Bashir would no longer be attending the meeting on Friday, May 19th. The preceding Wednesday, May 17th, the US Embassy in Khartoum, Sudan had stated:
"We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir."
The statement not only referred to Bashir but stated US position towards “any person subject to… (ICC arrest warrants.” It was a strong statement in support of upholding the ICC arrest warrants and the travel of Bashir, which has been a continuous problem for the Court. However, like the Security Council statement, the Embassy statement may have been derived from a wider State Department agenda, or it may have merely originated from inside the Embassy. It may have reflected a variety of situations in Washington.

Furthermore, given the existing global press attention and the potential image problem, if Trump had attended the summit with Bashir, it would have been a stronger demonstration of US commitment to accountability if a statement came directly from Washington. During the previous two administrations, high-level officials gave numerous statements of US support for the Court’s efforts in Darfur and called for the transfer of Bashir to The Hague after the Court issued an arrest warrant for him. It is more important than ever that the United States show a commitment to accountability in Darfur, and demonstrate that the United States does not condone impunity for those who committed atrocities. It should encourage its allies to work with the ICC to transfer those under ICC arrest warrants instead of enabling those individuals to travel to their country with impunity.

Another cause of concern for how the Trump Administration will treat the ICC situation in Darfur can be found in the March 2017 US Bureau of African Affairs’ fact-sheet on US-Sudan relations failed to mention the ICC, genocide, accountability or justice. The US has done very little on the issue of Darfur under the Trump Administration, and the fact sheet could reflect a potential shift away from the approach taken by Trump’s predecessors. However, the fact sheet also does not mention any individuals who face arrest warrants from the ICC, and the ICC tries individuals, not states. Perhaps it could be reasoned that since the fact sheet was about the US relationship with Sudan, the state and not with its officials, it does not represent a shift in approach.


Room for Concern

There is further room for concern about the future US-ICC relationship. The Prosecutor is considering allegations that the US and other NATO personnel committed war crimes against detainees in Afghanistan. While charges at the ICC against US nationals could have negative consequences for US-ICC relations, there is hope that it might be an impetus for the administration to procure justice for war crimes. The Administration could be encouraged to hold domestic trials of its nationals alleged to be most responsible for war crimes. There are reasons to do so. It would be a signal to the rest of the world and to the American public, that the United States does not condone or provide impunity for those who commit atrocities and violate American commitments. As a result, our global image might be reshaped as a state committed to human rights, the rule of law, and justice. Plus, prosecutions might mend the dissonance between Americans calling for accountability of foreign officials responsible for atrocities while allowing American nationals to enjoy impunity. Following the principle of complementarity, the ICC would refrain from trying Americans where the US has proceedings under way to uphold accountability and the rule of law, and this, in turn, could relieve many American fears about the ICC.

The Trump administration has asserted opposition to international organizations, which may be an indicator that the Trump administration will oppose the ICC, but it is unlikely that the Trump administration would oppose the existence of all international organizations. Previous AMICC blogs have pointed out that numerous international organizations do essential work. For example, without US participation in international organizations, Americans would be unable to safely fly internationally. Certain objectives can only be procured through international cooperation. The US mission at the UN has already recognized the importance of the ICC for securing accountability in Libya. The ICC’s commitment to justice and accountability for atrocities is particularly attractive to the United States, and it serves an essential role in securing justice in many situations. Additionally, the US is not a state party to the Rome Statute, has very few obligations to the ICC, but is interested the Court’s success.

Likewise, there were initial concerns about a draft executive order that included a provision about a committee recommending the United States defund the ICC. The committee would make recommendations on defunding international organizations, and the draft order included an extensive list of organizations for the committee to consider. The ICC is one of them. However, the provision of the draft executive order has yet to be signed by the president, and it would have no effect on US-ICC relations since it is already illegal under domestic law for the United States to fund the ICC.

Ultimately, there are numerous indicators, but they lack clarity. Even the statement by the US delegation at the UN cannot confidently be asserted as a forecast of future Trump administration policy towards the Court. In some respects, it might be better that the Trump administration avoid the topic of the Court altogether. The administration has yet to alter the inherited Obama policy towards the Court, and they have yet to criticize or attack the Court as the early Bush administration did. While a formulated approach by the new administration could follow the path of the Obama Administration or the late Bush administration, there is also the possibility that the administration would adopt the attitudes of the early Bush administration. On the other hand, there are cases where US political and tactical support have been extremely beneficial to the Court’s. It might be best to simply hope that the Trump administration provide support for the Court on a case-by-case basis—expressing its approval and offering its help in cases it finds attractive and staying mostly silent in other situations.

Friday, May 12, 2017

US-ICC Advocacy Points from the ASIL Annual Meeting


At 9 AM, on April 13th, 2017, in the Hyatt Regency Capitol Hill, a panel for a session titled “International Law and the Trump Administration: National and International Security” was faced with a complicated question. It was not the last discussion about  the future of the International Criminal Court (ICC) at the 111th American Society of International Law (ASIL) Annual Meeting. Many more questions and answers were posed during the meeting, as international criminal law experts looked into their crystal balls and made predictions about the Court’s future.  The Annual Meeting featured a significant number of panels on the subject of ICC. Even in panels not directly about international criminal law, legal experts were quick to bring up the subject of international criminal law and the ICC.
The increased focus on the ICC at the ASIL  2017 Annual Meeting is a heartening development for supporters of the ICC, in the United States and around the world. This increased attention appears to reflect a demand for more information on the ICC, which the current administration’s scorn for international institutions may have sparked. The future of international criminal justice and the Court, itself, were topics of discussion at ASIL, reflecting widespread concern for the ICC’s future within the American and international legal community.
Some of the key topics were the US-ICC relationship, the role of victims in international criminal justice, and the ICC’s relations with African states. While recurring concerns about the ICC surfaced across the panels, notable figures like ICC prosecutor Fatou Bensouda addressed these concerns about the Court’s efficacy or costs by looking at its successes and the costs of conflict. Most of the discussions were solution-oriented.  
The critical yet future-oriented nature of these panels is extremely relevant to AMICC’s advocacy. The panel on “Building Trust in International Law and Institutions” is especially pertinent for the United States’s relationship with the Court in light of controversial preliminary examinations in Afghanistan.  This panel on fostering trust started with the most basic question: whose trust is it? This existential question is inextricably linked with the values and purposes of international law and its institutions.
The panel on whether the ICC should privilege global or local justice raised important questions on whether global and local goals are at odds, and to what extent global justice truly addresses local needs. One matter was inescapable. The question that no panelist could ignore: what comes next? There is widespread discussion on the ICC’s role going forward. This daunting question was broached more generally in the panel on “International Law and the Trump Administration” and more specifically in the “Future of International Criminal Justice” panel.
In the “Future of International Criminal Justice” panel, the panelists approached the topic from a variety of angles. Prosecutor Fatou Bensouda, Theodor Meron, and UN Assistant Secretary General for Legal Affairs Stephen Mathias all addressed the concerns of high costs and inefficiency, and that the resolution of these structural challenges is essential to ensuring a bright future for institutions like the ICC. Susana SáCouto on the other hand chose to focus on the current role of victims in international criminal justice, where she believes the system has fallen short.
TOO EARLY TO TELL: REFLECTING ON BELLINGER’s REMARKS ABOUT THE TRUMP ADMINISTRATION’S FUTURE APPROACH TO THE ICC


The question asked at the “International Law and the Trump Administration” panel referred to reports from earlier in the week that the Trump Administration endorsed the ICC; speculation over future Trump policy towards the Court ensued. Yet, the potential “endorsement” was only a convoluted interpretation of a response by Sean Spicer at the White House Press Briefing on April 10, 2017. Yet, this speculation over Trump’s future approach to the ICC came at a time when few indicators exist.
“Q: Thank you, Sean.  President Trump has spoken out extensively about the crimes of Bashar al-Assad in Syria.  Does the President consider Assad a war criminal?  And does he believe Assad should eventually appear before the ICC?”
“MR. SPICER:  I think right now the focus is twofold.  One is defeating ISIS, and the second is creating the political environment necessary for the Syrian people to have new leadership there.  I don't think that there’s -- I can't imagine a stable and peaceful Syria where Bashar al-Assad is in power.  I think we all recognize that that happens -- and there can be a multipronged approach; we are ensuring that ISIS is contained and that there’s a de-escalation of the proliferation of chemical weapons, at the same time, creating the environment for a change of leadership.
Q    Does the President believe Assad has committed a war crime?
“MR. SPICER:  I think that there is a court that decides those things.  And obviously, there’s a reason that -- well, I clearly -- the actions -- when you take an action against the people that he has, and I think we feel unbelievably confident in the intelligence that we have.  But again, that would be something for a court to decide.”
John Bellinger, the former legal advisor to the Bush administration, answered the question. His underlying argument: it is too early to predict the nature of the Trump administration's’ relationship with the ICC. Bellinger did not view Spicer’s remarks as an endorsement. This seems to be an accurate assessment, particularly given the remarks by Sean Spicer, which revealed little evidence of a Trump policy towards the ICC. At first, when asked about whether Trump thought that Assad should go to the ICC, Spicer said nothing about the ICC—neither indicating favor nor opposition. When asked, whether the President thought Assad committed a war crime, Sean Spicer, responded: “I think there is a court that decides those things.” The speculation of whether Spicer indicated endorsement from the administration results from the remark “that would be something for a court to decide.” However, Spicer did not directly address the ICC in his response; when speaking, he refers to “a court,” not a particular court like the ICC. He may not want to discuss the ICC directly, or he may not know or understand what the ICC is.  Spicer may not know the Trump administration’s attitudes on the ICC because the administration has not yet formulated an approach or has not prioritized the Court.
While the remark is unlikely to mean endorsement of the Court, the remark does reveal that, at least to Spicer’s knowledge, the ICC has not received significant internal attention from the administration. The Office of the Press Secretary is not gearing up to deliver messages about the ICC. No impending action is ready. If they were getting ready to take action against the ICC, it would be ill-advised for Spicer to say, “that would be something for a court to decide.”
Bellinger does not dismiss the chance that there could be “a roll-back” to the approach of the Bush administration in its first term. Bellinger remarked that there were some indicators: Trump has blatantly expressed his dislike of international institutions, and we can recognize an impulse in this administration to attack these institutions with little to no understanding of what or how these international institutions operate. He referred to the draft executive order; which if it had come to fruition would have set up a committee to provide Trump recommendations on funding cuts to some international institutions, including the ICC, which the US does not fund. The inclusion of the ICC represents a negligent misunderstanding of the US-ICC relationship, but it also indicates that some anti-ICC sentiment, however small and misinformed, might be residing in the White House.
Such misinformed decisions could continue. The panelists lamented earlier in the panel that Trump was showing a disregard for international law and Bellinger remarked that pictures show the absences of lawyers in the room during major decisions. Yet, this should be expected given that, like many key state department positions, the top legal advisor positions have yet to be appointed. However, Bellinger also emphasized that the administration's’ approach may be determined by the individuals in his administration. So, until the vacancies for some the officials in charge of ICC policy are filled by the Trump Administration, it might be difficult to determine what voices and opinions Trump will be listening to. In the meantime, it may depend on Secretary of State Rex Tillerson; but the individual who is appointed as the Trump Administration’s legal advisor will have an incredibly important role in determining the administration’s approach to the ICC. It appears that the individual appointed might not be in complete opposition to the ICC and could be a positive influence on Trump policy: Earlier in the panel, Bellinger noted that “centrist lawyers” were filling spots in the administration, and later Bellinger noted that there are conservatives in Congress who support the ICC’s work. There is, as was stated at the beginning, “a ray of hope.”
THE PROSECUTOR ON PROCURING UNIVERSALITY: FOLLOW THE MANDATE
At the end of a panel on the future of international criminal justice, came a question relevant to the future of the International Criminal Court and AMICC’s advocacy: How does the Court procure universality?
Prosecutor Fatou Bensouda responded that she hoped the Court’s credibility would lead states to join.  Her role in credibility-building: fulfilling and strictly following her mandate. She explained that there can be “no room for fear or favor” when prosecuting Rome Statute crimes. The Court would respect the principle of complementarity and she would not prosecute individuals who already were under the jurisdiction of national courts willing and able to prosecute them.
The answer comes at an interesting time. The preliminary investigation in Afghanistan has led the prosecutor to US nationals for the torture of detainees. If an investigation is opened against United States military or intelligence officials, this would be the first instance of the Court pursuing American nationals. If the prosecutor responds “without fear or favor” to evidence of torture by the United States, as her mandate dictates, what will be the outcome?
        Prosecutor Bensouda also emphasized the importance of future universality for addressing concerns about the lack of jurisdiction over Rome Statute crimes committed in non-party states by non-party state nationals . The prosecutor expressed concerns about the criticism of the Court for its lack of jurisdiction because some mistook it as a double-standard without understanding that the Court has limited jurisdiction according to the statute. As we know, with the exception of Security Council referrals, the Court cannot exert jurisdiction over a non state party’s territory unless it involves crimes committed by state party nationals. Hence, as certain states, like the United States, refrain from joining the Court, impediments to jurisdiction will continue to exist. The prosecutor’s emphasis on universality motivates AMICC to continue advocating for the United States’ full support of the ICC.
This misconception reflects another reason for our advocacy: the wider problem of misinformation about the Court. The issues that many perceive as deficiencies of the Court are actually caused by state omissions. Yet, in today's clash of fake news and alternative facts, civil society organizations like AMICC must diligently dispel misinformation that would lead to anti-ICC sentiment. The global populace needs to be better informed about the ICC in order to better support its efforts against impunity.

Written by Taylor Ackerman and Meredith Sullivan

Friday, March 31, 2017

Syria: When Atrocity Bears No Consequence

Written by Kalila M. Jaeger


The founding of the International Criminal Court (ICC) was based on one simple precept: never again. The Nuremberg Trials, conducted in the first international justice tribunal, set a powerful precedent for the international Criminal Court (ICC), a permanent court for the criminal prosecution of atrocities whose entry into force was only realized in 2002. Yet despite broad international support for the ICC, despite the fact that it has accomplished landmark victories and convictions in the last few years, the court has not been able to act against the horrors of the Syrian Civil War. Why isn’t more being done, and is there any way to hold the perpetrators of atrocities in Syria accountable?

Limits on the Court’s Powers


The Court’s founding Rome Statute provides specifically how cases can and cannot be referred to the Court. The Prosecutor does not have the power to pursue just any case: it must fall within the ICC’s jurisdiction; it must have been committed on the territory of a country that has ratified the Rome Statute or by one of its nationals. Those nations that have ratified are referred to in the Statute as State Parties. The Court’s founders included an additional integral provision in the jurisdiction guidelines: in cases where extreme atrocities are committed in a non-member state, atrocities that are determined to represent a threat to international peace and security, a referral from the UN Security Council would override other jurisdiction rules and trigger an investigation by the Court. Any of the permanent members of the Security Council, (China, France, Russia, the United Kingdom and the United States), however, have the right to veto Security Council decisions. A single veto vote nullifies all others, a fact which has prevented the Security Council from referring the Syrian situation to the ICC due to Russia’s allegiance to the Syrian President Bashar Al-Assad.

The Syrian Civil War has raged on six years now, and many have questioned why the ICC isn’t playing a more active role in helping to end the seemingly endless human rights violations. Assad’s government has a discouraging number of allies, and the conflict in Syria has long ago escalated from a battle between Assad loyalists and anti-Assad rebels into something much larger and more chaotic. Before we can fully understand paths to legal accountability, we must gain an understanding of each major player in the fight and their goals.



How did the Syrian Civil War begin?


Like other uprisings in the Arab Spring of 2011, rebellions in Syria sprang up that year over lack of civil liberties and from pushback against oppressive economic conditions (Lanza, 2011). Extreme drought from 2007-2010 had forced millions to migrate from rural areas into cities, intensifying poverty, overcrowding and general social unrest in the cities (Blanchard et. al, 2014). Brutal crackdowns on the protesters served to further inflame the public, and because much of the Middle East region was engulfed in pro-democracy uprisings, some of which, like those in Egypt and Tunisia, were ultimately successful, the protest movement gained massive momentum. Importantly, though, not all those opposed to Assad’s regime were aligned ideologically; there was no consensus among protesters as to an alternative (Blanchard et. al, 2014). As clashes between government forces and protesters continued and escalated into armed conflict, sectarian divisions between different groups of protesters became more apparent, and friction between them intensified. Intervention from foreign powers escalated the conflict further, into what many view as a proxy war reminiscent of the Cold War era. Infighting and violent struggles for political and religious authority have devolved into the worst display of human rights violations and atrocities of the 21st century. We are inundated with imagery of cities on fire, under siege, drone strike after drone strike, starvation, torture and enforced disappearances of half a million people. Twelve million Syrians are internally displaced from their homes or teeming at the borders of the European Union begging for refugee status. The perpetrators of the Syrian Civil War must be held accountable now. But who are they?


Who’s responsible for human rights violations in Syria?




  1. Bashar Al-Assad and his domestic loyalist forces
Bashar Al-Assad has been the President and Commander in Chief of Syria since the year 2000, a role which he came to fill following after his father through dubiously “democratic” elections.The regime calls itself secular, but the manipulation of sectarian conflict in the country, between Sunni and Shiite Muslims, has long been a tool of political power by the Assads. The Alawite Shia minority religious group, of which Assad is a member, has been a bastion of support for him throughout the conflict. Although Syria is majority Sunni, the country’s security establishment has historically been dominated by the Alawites (Mallat, 1988). As such, most anti-Assad fighters are Sunni, whether domestic or international, and most international powers who support Assad have historically been aligned with Shiite interests.

Since the uprisings in 2011, Assad has ruled with an iron fist, intensifying his crackdowns on rebel groups exponentially and using the Syrian state army to carry out his bidding with excruciatingly brutal tactics, resulting in the worst massacre the world has seen in half a century. Assad will seemingly stop at nothing to retain his power over Syria, and the willingness of foreign powers, notably Russia and Iran, to assist him has made a deposition nearly impossible. Next to ISIL, Assad and his loyalist forces are the most brutally violent players in the Syrian conflict with the most innocent blood on their hands (Bhardwaj, 2012).

  • Main goals: to remain in power and stamp out opposition, defeat ISIL.
  • Allegations of human rights abuses: The UN confirms at least nine intentional mass killings since the start of the war, with the Syrian government and its allies responsible for eight of them. War crimes include use of chemical weapons, indiscriminate bombing of civilians and aid workers, non-military targets, enforced disappearances, attacking towns, villages, and non-military targets, use of starvation of civilians as a method of warfare, use of rape as a weapon of war, deaths in custody of government officials, and the prevention of medical aid to civilians and children. He is also responsible for crimes against Humanity for the use of torture (Human Rights Watch, 2015).

  1. Iran
As a majority Shia nation and a regional neighbor, Iran backs Assad’s regime, and sees the continuance of the Assad’s political power as instrumental to Iran’s interests in the region. Iran’s Supreme Leader, Ali Khamenei, vocally supports Assad, and the nation has provided arms, technology and military training to loyalist forces since the start of the conflict. According to the UN convoy, Iran spends approximately 6 billion dollars annually supporting the Assad regime. Iran has lost over 1,100 troops in the fighting since 2013. Many of the soldiers it deploys, who work closely with Assad’s loyalist forces and with Hezbollah forces are Afghani and Pakistani refugees who agree to serve in Syria in exchange for salaries and Iranian citizenship. Of the 1,100+ fallen Iranian troops, over 750 are refugee mercenaries.

  • Main goals: keep Assad (major ally in the region) in power, prove to the US that the nuclear deal did not de-fang Iran, defeat ISIL.
  • Allegations of human rights abuses: Iran is accused of the coercion of undocumented Afghans to fight in Syria. As one of the main financial backers of Assad’s government, the atrocities committed in his name are partly Iran’s responsibility.

  1. Russia
Russian intervention in Syria began in earnest in 2015 when Assad requested military aid from Putin to fight rebels and Jihadists. In response, Russia stationed military advisors and special operations forces in Syria, and launched airstrikes against rebel and Jihadist targets in the South. Although Russia’s aim to eradicate Jihadist militant groups like ISIS aligns with US goals of the same nature, its willingness (and apparent eagerness) to strike anti-Assad forces-- even those who are considered “moderate”--  is fundamentally at odds with US objectives. Most pundits agree that this is part of a larger attempt by Russia to rebuff US influence in the region (Allison, 2013). Russia has claimed that allowing Assad’s forces to fall would enable terrorist groups to consolidate and seize control of the region. The Syrian Observatory for Human Rights has said that in the first year of the Russian intervention, between September of 2015 and February of 2016, Russian airstrikes had killed 1,700 known civilians, over 200 of whom were children. Syrian Network for Human Rights estimates casualties even higher; reports show that Russian airstrikes have killed more civilians than either ISIS or Syria’s loyalist army.

Russia stands accused of major human rights violations stemming from their participation in the conflict, including the bombings of civilians and a United Nations aid convoy driven by aid workers and carrying food and medical supplies in the fall of 2016 (Borger, 2016). Russia initially claimed that the reports of the attack were fake, and, after eventually acknowledging its occurrence, that they had had no part in it: that the convoy had been attacked from the ground by another coalition. However substantial photo, video and eyewitness documentation have proven this tacitly false and have shown that Russian and Syrian forces were in fact the perpetrators of this terrible crime. Regardless of whether the bombing of humanitarian aid workers and civilians were committed with criminal intent, though many strongly believe that they were, the bombings were at the very least “reckless” and “indiscriminate”, and, as such, constitute war crimes under the Rome Statute. Furthermore, some evidence showed that the planes had dropped non-precision bombs and/or incendiary weapons. If the latter is proven to be true, Russia will be in violation of the 1980 UN Convention on Certain Conventional Weapons, to which the Russian Federation signed on as a state party (Hokayem, 2013).

  • Main goals: keep Assad in power, rebuff US influence in the region, end European sanctions.
  • Allegations of human rights abuses: Russia stands accused of violations of the UN Convention on Certain Conventional Weapons, and bombings of civilians and aid workers.


  1. ISIL
The Islamic State of Iraq and the Levant is a Salafi Jihadist group, or unrecognized state. They operate mostly as a military group, and are followers of the most extreme form of Wahhabi Islam. ISIL rose to notoriety in 2014, following its massive offenses in Iraq, the Sinjar Massacre and the capture of Mosul, during which time it made a name for itself through the use of extreme terrorist tactics and its widespread publishing of videos of beheadings (Ahram, 2015). Recognized by most nations as a terrorist organization, ISIL has deep historical roots in the regions, stemming from Al Qaeda affiliates in 1999, and participating in Iraqi insurgency in 2003 against American forces (Hegghammer, 2011). The group claims to be a state and a caliphate and, as such, to have moral, religious and military authority over all Muslims. The group has been roundly rejected by nearly every Muslim group and coalition, but still holds immense power in the Iraqi region and has managed to launch large scale terror attacks against opposition parties and foreign governments over the last few years. The presence of operatives in foreign countries and it's frightening capability with digital technology have made ISIL a frightening adversary indeed, but most reports show that the group is losing traction and territory consistently at this point (Ahram, 2015).

  • Main goals: Seize as much regional territory as possible, execute opposition, practice and spread extremist interpretations of Wahhabi Islam
  • Allegations of human rights abuses: War Crimes: killings of civilians on a massive scale killings of hundreds of prisoners of war, summary executions, rape as a weapon of war, sexual slavery, use of child soldiers, use of chemical weapons, Crimes against humanity: systematic persecution of religious minorities (forced conversions), sexual slavery, mass executions and beheadings, destruction of cultural and religious heritage, Genocide: ethnic cleansings in Northern Iraq on an “historic scale” (Ahram, 2015)

  1. Saudi Arabia
Since the summer of 2013, Saudi Arabia has made a name for itself as the single largest financier of Syrian rebel groups, and as the largest provider of arms and ammunition, especially Balkan-made, heavy artillery weaponry. These large scale deliveries of arms began in 2012, and were said to have been given in an effort to counter the effects of the massive influx of finances and arms from Iran to the Syrian government forces. Like Qatar, the funds have reached groups across the full spectrum of anti-Assad forces, including Army of Conquest and its Al Qaeda affiliates. A number of political conflicts between Saudi Arabia and its neighbors resulted in the arrangement of Saudi-funded training facilities being established in Jordan. Saudi Arabia’s intelligence agency was instrumental in 2012 in convincing the United States to take seriously the claims that chemical weapons were being utilized in the fight. It was also revealed in 2013 that the Saudi government had forced death-row inmates to fight against Assad’s forces to avoid beheading. The capital and stronghold of ultra-orthodox Wahhabi Islam practice, the use of traditional capital punishment in Saudi Arabia is widespread and often practiced extrajudicially. Collaboration in Middle East conflicts like this one, along with an addictive, oil-soaked alliance have made breaks with the Saudi government over human rights violation (which are extremely well documented) extremely rare and very politically challenging.

In 2015 after two rounds of negotiations in Vienna, Saudi Arabia hosted a conferences for the multitude of Syrian opposition groups, both political and military, though it notably excluded Kurdish factions. The goal was to come to an agreement about a common political platform, in order to initiate negotiations with the Syrian loyalists, and by the end of the conference a military alliance between approximately 30 Muslim states was established in opposition Assad, though pundits question the efficacy of this group in practice.

  • Main goals: Remove Bashar al-Assad from power and destroy ISIL through common Muslim coalition, eliminate threats to the oil market such as ISIL capture of oil resources
  • Allegations of human rights abuses: forcing of death-row prisoners to participate in battle



Paths to Accountability


With so many egregious violations of human rights principles, it is despicable to imagine that the participants in this conflict could simply walk away freely. Yet with a devilishly complex and tangled web of players, and with such specific ICC regulations about case referrals, it is proving difficult to bring the perpetrators of these crimes to justice. Without a unanimous referral by the UN Security Council, the ICC cannot take on the case of crimes committed in a non-member state. Other mass atrocities have been tried and perpetrators have been convicted in the past; we know that when the international community comes together with a determination to bring justice, it can be accomplished. Still, no two cases are the same, and every time the process takes an enormous amount of political goodwill and cooperation, collaboration structurally and financially between a wide array of countries, often overlooking political alliances and tensions for a greater cause. What is unique in Syria’s case and what are some possible paths towards accountability?





International Criminal Court


The sad truth is that unless Russia and China have a major change of heart, there is little hope for ICC involvement in Syria at the present time. Without a referral from the security council, the most the ICC would be able to do is to prosecute participants in the conflict who are nationals of ICC member states, such as Jordan, France, the United Kingdom or Tunisia, an action which Prosecutor Bensouda has actively threatened to take (ICC, 2015). Based upon most investigations, however, it does not appear that the foreign fighters the international intelligence community has been able to identify are high enough up in their ranks to be considered by the ICC as viable defendants. It appears that, for now, the ICC’s hands are tied from every angle.
Russia’s alliance with the Syrian government is probably the biggest complicating factor in terms of prosecution because they hold a great deal of power internationally in arenas like the UN. However, if the Syrian conflict continues on in this way for much longer, the political and economic costs of supporting Assad’s government will likely at some point overtake the benefits for Russia, and at that time it may eventually be possible to pry the Kremlin’s grip off the Security Council veto. Still, most countries would rather not see cases brought to the ICC that are likely to result in verdicts of their own culpability. Some suggest that Russian officials could be offered immunity, or even that Russia could be offered state immunity in the proceedings if it would enable the ICC to move forward, but these suggestions are on dubious legal footing and a path forward from there is unclear.

Alternatives to ICC Trials


In the past, there has been success in trying perpetrators of human rights violations with temporary tribunals, such as those in the former Yugoslavia, in Rwanda or in Timor-Leste. However, these tribunals are extremely costly and difficult to establish, and the ICC was developed specifically to replace these temporary courts with a permanent institution. Nevertheless, if the establishment of an ad-hoc tribunal would enable the trial of perpetrators of atrocities, it is a path worth considering. The tribunal would have to be established by agreement between the UN General Assembly and Syria, or by some regional organization. Some experts have even mapped out a blueprint of how to organize it.

There are a few distinct advantages to the tribunals: they are usually directly on-site, rather than isolated in the Hague, (which can make evidence-gathering more streamlined), most are hybrids (including both local and international judges and other personnel who may be more responsive to and aware of local conditions) and, most importantly, they do not require the consent of all major world powers, like agreements made through the UN Security Council do. Russia and China would not have to be consulted.
However, tribunals also have major drawbacks. They are expensive to establish and maintain, (the proceedings last years and inevitably take longer than planned), and very difficult to recruit for; because they are by nature temporary, they offer no career or future to those judges and personnel who agree to lend their talents.

The establishment of a temporary criminal court is an option, but certainly not an easy one. It is difficult to imagine how it would unfold in Syria; likely we would have to wait for a successor regime before attempting to move forward, as was done in Cambodia. Perhaps the indictments of some, if not all, of the players in the war could begin sooner, and in a time of greater international cooperation the tribunal could continue on to the more controversial and complex indictments. As we know from Yugoslavia and Rwanda, these processes tend to take a decade or two at least, so there would be time to wait out the Trump administration and perhaps the Assad regime while the start of the tribunal was underway.


Reasons for Hope



Although it is easy to view Syria as a lost cause from an international justice perspective, there is reason for optimism moving forward. The search to identify foreign nationals who have participated at top levels in the Syrian civil war is by no means over; the Prosecutor of the Court has made this clear. Furthermore, a discussion is beginning among international law experts regarding Assad’s former life in London, where he worked as an ophthalmologist for six years between 1988 and 1994, before his return to Syria and his involvement in politics. Some experts wonder whether this fact could possibly be a foothold in the fight against impunity; what was Assad’s legal status as a resident of London? In order to hold medical certification, most countries require some kind of permanent status in the nation. The British, as citizens of a country who has ratified the Rome Statute are eligible to be tried by the ICC. Did Assad’s ophthalmology license give him anything close to nationality? Serious investigations are underway to seek answers for questions like these, and we can only hope that their results with arm us with tools to proceed.

The other good news is that there is no state and very few parties that would protest an indictment of major ISIL commanders. Their determination to annihilate and alienate all major world powers may in the end be their undoing. Assad has continually claimed that to cease fire on the rebel groups would enable terrorist groups like ISIL to set deeper roots in the region. This may or may not actually be his motivation for such brutality against the Syrian people, but if we take him at his anti-ISIL word and assume that Russia and China plan to uphold their loyalty to him as well, there may actually be a chance at achieving a Security Council consensus to refer ISIL’s war crimes and crimes against humanity to the ICC. They are by no means the only perpetrators of large-scale atrocities in Syria, but seeing them brought to justice is a goal that almost every country, powerful or not, can agree on. If nothing else, there is likely a path forward there.
We will not likely see justice brought to all perpetrators of human rights violations in Syria any time within the next few decades, but there will come a time when the administrations of the major international powers are more amenable to cooperation with the international justice community and the ICC can proceed in earnest. In the meantime we must never let the people of Syria forget that the world is watching, and that the crimes committed against them will not go unpunished. The evidence and testimony exist and the Court is in place to hear it, no matter how long that takes to come to fruition. Someday these factors will combine, and perpetrators will be held accountable. If there is a way to indict ISIL, the international community will demand it. Until that day, we have an obligation to maintain intense pressure on our national and international institutions and demand that they invest in and work towards initiatives to bring relief to the Syrian people. What is happening in Syria is simply too horrific to be disregarded by the international community, and we have faith that, ultimately, these atrocities will not go unpunished.


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