The reach and the grasp of international criminal justice - how do we lengthen the arm of the law?

• Author: Rapp, Stephen J.

Thank you very much, Dean Lawrence Mitchell and Professor Michael Scharf, and thank you to Case Western and the Cox Center for International Justice and Law. It is a great honor for me to be here and to be receiving this award from the Cox Center because of all that it does to advance international criminal justice in the world today and to train the leaders who will advance it and bring it to greater success in the future. This is brought home to me, every couple of weeks, when I open my e-mail and I see the War Crimes Prosecution Watch (1) which is published by the Cox Center and the Public Interest Law and Policy Group. Just in the last issue, there were reports on prosecutions in thirty countries around the world in which there have been violations past and present.

As Dean Mitchell said, we only have to look at the newspaper at the developments in Syria today where we have seen thousands of innocent civilians killed by bombardment. I was on the borders of Syria last week, and we are now receiving reports of even worse crimes--men, women, and children being slaughtered, hacked to death with knives in villages around Horns and Daraya. The level of atrocities, if anything, is increasing. (2) We see developments in South Kordofan and Blue Nile that frankly do not receive enough press attention, other than when George Clooney was arrested last week in a demonstration at the Sudan embassy, but horrendous atrocities are being committed against the people in the Nubian Mountains. (3)

Those who follow the news of international diplomacy see how these issues are playing out at the highest levels. Many of you saw the news on Saturday of the arrest in Mauritania of Abdullah al-Senussi, the for Iner head of Libyan Security. (4) Now the question has arisen, will he go to the International Criminal Court (ICC) pursuant to the arrest warrant issued by the ICC last June? Will he go to France, which has tried him in absentia, (5) but under the European Convention would have to try him again for the murder of 170 people in that UTA Air flight that exploded over Niger in 1989? (6) Does he go to Libya where he committed atrocities against his own people over the course of thirty years? Will American law enforcement have an opportunity to talk to him about the bombing of Pan Am 103 and other acts?

Everywhere we see the reach of international justice. But at the same time, there are doubts as to whether it has the grasp to accomplish the goals that it has set for itself: of having an effective system of accountability for the worst crimes known to humankind; a system that offers the prospect that the victims of past crimes can receive justice in courts now; a system that is strong enough to deter those crimes from occurring in the future and to prevent others from becoming victims. Certainly in these last twelve months, we have seen examples of where there has been that grasp, where there have been successful results. Most notably with the International Criminal Tribunal for the Former Yugoslavia (ICTY), established now eighteen years ago, (7) at a time when the world had relatively low expectations, having watched as nothing effective had been done to prevent atrocities in the Balkans. There was not the will to send in effective peacekeepers or civilian protection forces, but instead the decision was made to send in lawyers and judges and establish a tribunal. Initially, there was little hope that it would ever charge and arrest people at a high level. Now after having seen President Slobodan Milosevic brought to justice in 2001, we have seen in the last year the arrest of the last two fugitives, General Ratko Mladic, who was the military leader at Srebrenica, where the genocide of eight thousand men and boys was committed in 1995, (8) and Goran Hadzic, alleged to bear responsibility for atrocities against Croatians including the hundreds taken from Vukovar Hospital and killed in 1991. (9)

A hundred and sixty-one people were charged by the ICTY. (10) Every one of those one 161 was brought to the bar of justice. Even when I was U.S. Attorney in Northern Iowa, I do not think I ever charged 161 people over a period of time and saw them all arrested and brought to court. At the Rwanda Tribunal (ICTR) where I worked for six years, eighty-three of the ninety-two indictees have been brought to justice--many of them of very high rank. (11) During this last year, many of the complex, multiple-accused trials of the military and political leaders alleged to be responsible for the genocide of 800,000 men, women, and children in Rwanda in only 100 days in 1994, have come to their conclusions with historic judgments rendered.

In Cambodia, I was present on February 2-3 at the Extraordinary Chambers of the Courts of Cambodia (ECCC) for the appeals judgment in the case of Kang Kek Iev, known at Duch, the leader of the S-21 torture center--where at least 12,000 people were brought to be tortured until they confessed, and were then executed with fewer than a dozen surviving. The Duch case, having gone through trial and now appeal, resulted in a conviction for crimes against humanity and a life sentence. Another trial is now underway for the three surviving leaders of the Pol Pot regime, allegedly responsible for the deaths of almost two million men, women, and children in 1975-1979. (12) Dean Mitchell mentioned that the trial judgment will be pronounced by the Special Court for Sierra Leone (SCSL) in the Charles Taylor case on the 26th of April. (13) In the Kenya cases before the ICC, six political leaders, including two who are leading candidates for the presidency of Kenya in the coming elections, have been voluntarily coming to court under orders to appear. There have been hearings that resulted in four of them having the charges against them confirmed. The impact of these cases continues to resonate in Kenya and across the region. (14) Finally, of course, just in the last five days, we have seen the first trial judgment by the International Criminal Court in the case of Thomas Lubanga. (15)

So there have been an amazing number of recent developments in the world that are positive and that indicate that this project can achieve success. On the other hand, the situation with Syria, that both the Dean and I mentioned, is the one that continues to challenge us. There is no prospect of achieving justice at the national level unless that regime were to change, and the prospect of its leaders being brought to justice at the international level in the ICC is blocked by an expected Russian veto in the UN Security Council.

As to the performance of the ICC itself, we have to recognize that even after this court has been in active existence for eight or nine years, only five individuals are in fact under arrest and in detention, (16) while some nine other living individuals subject to public arrest warrants remain on the lam. We also have to acknowledge that we are at the end of the era of ad hoc international tribunals, the ICTY and ICTR, and of an internationalized special court, the SCSL. At the height of their work there were forty-three judges serving the ICTY and ICTR and twelve at the SCSL. They will not be actively serving in the future and the quantity of decisions and actions in the area of international criminal law will diminish. We will left with such other courts as might be created by agreement at the regional level, with hybrids or mixed courts integrated into national systems, with national systems themselves, and with the ICC, of which the United States is not a member. Later I will be glad to answer questions about the U.S.-ICC relationship.

Today, some 120 countries are members of the ICC; seventy-two are not. (17) Many of the major conflict zones of the world are outside its territorial jurisdiction and even in the cases where there is territorial jurisdiction, the crimes have often occurred in places in which the states themselves do not have effective control. This makes it hard for an institution that acts through state cooperation to be effective.

And of course, when it comes to the UN Security Council referring cases arising outside of ICC territory, we have 1) the difficulty of getting past a veto, in situations such as Syria; and 2) the difficulty of achieving cooperation with states that have not accepted the ICC treaty. And at the national level, where both ICC and US policy recognize the primary responsibility to prosecute these cases lies--there are questions about capacity, particularly where the inadequacy of justice systems may have precipitated the conflict, and where the conflict itself may have devastated judicial institutions. If the national systems do have the capacity, the authorities may not have the will to pursue these cases except against those that have lost the conflict. Much remains to be done to strengthen capacity and will at the national level.

But today I want to pose the question of whether international criminal justice, even in its present incomplete form, is beginning to have an effect on the commission of these crimes. I think all of us know that in any system in criminal justice, the prospect that people will be arrested and convicted is uncertain, but nonetheless, the risk to one's future of such consequences deter many people from committing crimes. Today we have a situation in the world where the risks have risen. Certainly if one is within the territory of an ICC member state, the potential consequences are quite apparent. There could be an arrest warrant with your name on it. Indeed, the possibility of such a warrant may be the subject of media and public discussion within days of the first reports of atrocities. Even outside ICC territory, there is the risk that the Security Council might find the will to refer the case, and even if it does not, other mechanisms could be established to bring individuals to justice. We have also seen states taking the initiative to pursue...