“Hunger for Justice:” A Tale of Three Cities

 

Berlin, Germany—September/October 2007

It is the most indescribable feeling to walk on the same cobble-stoned streets where soldiers once marched to the cry of Heil Hitler! over sixty years ago as you make your way to the Berlin Parliament—the quietly grand and beautiful Abgeordnetenaus—to participate in a conference dedicated to the International Criminal Court’s (ICC) fight against impunity for the world’s worst crimes. It is nothing short of marveling awe as you recall the recent history of today’s breathtakingly diverse, bold, and beautiful Berlin—a city once torn in two with a divisive, glaring Wall separating East and West after World War II. It is simply astounding to see this city—once the headquarters of the Nazi government responsible for the calculated mass slaughter of millions—now the proud and deserving second home of international justice (IJ). For those of you who asked me why the conference on the ICC’s challenges and successes was being held in Berlin (as opposed to IJ’s first home—The Hague), I can only say that Germany’s capital city is living proof of the advancement of international law and justice.

And where are we—Americans—on the advancement of IJ? Has the U.S. shifted its reactionary and counterproductive policy toward a now adolescent ICC? That was, essentially, the topic of my speech at the Berlin Conference. Imagine trying to explain to a hall full of international organizations, civil society leaders, and German officials why the U.S. government, once responsible for the Nuremberg Trials prosecuting Nazis for their crimes, is now a challenge to a Court that is the natural and necessary evolution of Nuremberg. Not a simple task. Far less simple with only twelve minutes at the podium.

As promised, I emailed a number of you snippets of my speech. I will not regurgitate it here—I have made my position and supporting analysis of whether the U.S. is in fact shifting its policy toward the ICC clear in previous blog entries. Sufficed to say that my goal in Berlin surpassed a simple explanation of U.S. foreign policy. I was far more eager to articulate a fundamental truth that seldom makes it past the alienating foreign policies our government enforces in the IJ world: when it comes to the American public, there is majority support for the ICC. There is recognition of our moral backsliding, in particular in the years following September 11, 2001. And above all else, in the moving and eloquent words of ICC Judge Hans Peter Kaul on the last day of the Berlin Conference, there is a hunger for justice.

As I said in Berlin, I believe the American people are not only passionate but equally compassionate. We too are showing a ferocious appetite for peace, justice, and accountability. Engage us on the crises Darfur or Northern Uganda and you will experience our resolve and compassion. Galvanize us through targeted advocacy and you see our empathy and action. Challenge us and behold a people who are not willing to give up on their country’s once proud commitment to the rule of law. After trekking through the political analysis, I wanted the audience to know that if our current Administration has thus far failed to grasp the common goals and values that the United States has historically shared with those of the ICC, this has been far less the case with the American people, and increasingly, members of the 110th Congress who represent them.

Washington, D.C.—November 2007

Fall is by far the most beautiful season in Washington, D.C. One need only take in the rich colors of falling leaves amidst the dizzying aesthetic juxtaposition of national monuments, quiet, rowhouse-lined streets, a bustling downtown, and an ever calm Potomac River to see why this short lived season beats a universally admired, cherry blossom-adorned spring.

Never has there been a more exciting fall in D.C. for an IJ advocate. In Berlin I had announced to the audience that the 110th Congress was on fire. Upon my return to D.C., I was happy to see I had not overstated the case to my European peers. All year we have seen Congressional leaders push for a number of bills including but not limited to the Child Soldier Prevention Act, the Darfur Accountability and Divestment Act, and the Genocide Accountbility Act; introduce and co-sponsor a resolution calling for the recognition of the Armenian Genocide (more on this soon); and hold a slew of Congressional hearings tackling questions such as, why are such a large number of war criminals (that’s right—war criminals) living and prospering in the U.S.? (my guess: palm trees + no domestic laws to end impunity = great place to retire).

Regardless of which side of the Atlantic we’re on, it looks like this fall the prevailing trend is a renewed call to fight the good fight: the fight against impunity. In the equally eloquent words of Senator Dick Durbin who chairs the Senate Judiciary Committee’s Human Rights and the Law Subcommittee,

“Repressive regimes that violate human rights create fertile breeding grounds for suffering, terrorism, war, and instability. In our time, the world is a much smaller place, and the social ills caused by human rights abuses know no borders. We will never be truly secure as long as fundamental human rights are not respected.”

New York, New York—December 2007

Comprised of one delegation from each country that has joined the Court, the Assembly of States Parties (ASP) currently boasts 105 ICC member states and serves as the Court’s oversight body. Since the Court’s inception in 2002, the annual ASP meeting has been held in The Hague, Netherlands, where the Court sits. This year it’s being held in right here in the U.S., at the United Nations (U.N.) in another seminal IJ city: New York. For the next two weeks, my IJ colleagues and I will join government delegates from over 150 countries to participate in an ambitious agenda adopted by this 6th ASP. From the election of three new judges to kick-starting the work of the Trust Fund for Victims, preparing for the highly anticipated Review Conference to take place in 2009, and fittingly, addressing US-ICC relations, this ASP embodies the urgent energy we all feel as the Court grows, Americans prepare to vote, and the world waits to welcome a new year with the greatest promise of justice yet.

Before the holiday rush sets in and dinner parties take precedence over political will, I hope you take a moment and reflect on the significance of this past year. With the imminent arrival of 2008, we will once again have the opportunity to demand our voices be heard on Capitol Hill and at the White House. If we are sincere in our efforts to end the genocide in Darfur—if we are genuine in our outrage when we see children with amputated limbs in war-torn Congo—if we truly believe that the U.S. must contribute to future IJ successes, not challenges, then we need to ensure that this hunger for justice we feel does not fall to the wayside amidst the frenzy of elections and party politics next year. Many of the presidential candidates have made positive and promising references to justice, accountability, and the ICC—let’s make sure these references turn into an unwavering resolution to reunite us with the rest of the world on a cause that we should have been championing all along.

I wish you all a safe, peaceful, and beautiful fall.

 

 

 

 

 

 

 

 

 

 

Goose Bumps

We seem to hear the word “prosecutor” all the time here in the U.S. and our connotation of the word is seldom a positive one. Maybe it’s because names like Johnny Cochran, Kenneth Starr, and Mike Nifong end up on the six o’clock news on a far too frequent basis. But the often controversial reputations of individual prosecutors here in the States aside, being in charge of “putting the bad guys away” is not exactly easy. It’s even more challenging if, say, you’re a prosecutor in your early twenties and your very first case involves trying a group of war criminals for genocide. Or if you can’t picture that, imagine you know who the bad guys are, you have evidence of their crimes, and witnesses are eager to testify, but you don’t have a police force to actually arrest them. That would be like a Law and Order episode ending with the characteristically somber investigators walking away from the suspects they tried so hard to nab because the NYPD doesn’t answer to them. Tough job indeed.

Henry T. King Jr. is both an extraordinary and ordinary American.  He is extraordinary in that at 88 years of age, he is still the embodiment of the kind of fierce idealism that keeps us in humbling awe and admiration. And yet Mr. King is also incredibly ordinary—he is like every American who believes that rule of law, justice, and accountability are not just side issues that come and go with terms in office, but rather a core set of values upon which this country was built. Mr. King reminds all of us that sixty two years after the Nuremberg Trials, Americans still champion justice and accountability. This remarkable man is one of three surviving prosecutors who made history by trying Nazi criminals for the horrors of the Holocaust during World War II. That should get the hair on the back of your neck raised. Get ready for the rest of you.

Luis Moreno-Ocampo must wonder why a country that can boast of its Nuremberg legacy has taken such a bizarre, hyper-sensitive position vis-à-vis the International Criminal Court (ICC), where he’s employed as the Chief Prosecutor. A native Argentinean and the ICC’s first Prosecutor, Mr. Moreno-Ocampo has spent the last five years building cases against the leaders of the Lord’s Resistance Army in Northern Uganda, rebel warlord Thomas Lubanga Dyilo of the Democratic Republic of Congo, and two Sudanese suspects accused of perpetuating the Darfur genocide.

And Mr. Moreno-Ocampo remembers, like many international justice (IJ) advocates, a different (yet equally political) era where the U.S. didn’t make undermining the existence and functioning of the first ever international criminal court an actual foreign policy objective. But Mr. Moreno-Ocampo’s job is particularly hard—not because it’s a little difficult to gather evidence and interview survivors in four different countries. Or because the ICC is still young and there is too much to do with too little time, money, and staff to do it (notwithstanding their laudable efforts). No, Mr. Moreno-Ocampo faces a far greater challenge that would probably make most prosecutors retire to private practice: he doesn’t have a police force to execute the arrest warrants he issues.

What do I mean, you ask? Put simply, when the ICC’s treaty was negotiated back in 1998, the majority of countries (the U.S. included) decided that giving the ICC a police force would be conceding too much power. Instead, the ICC relies on member states and the international community at large to carry out arrest warrants of the world’s worst criminals. What happens if countries don’t step up or are committing the atrocities themselves? Well, then you get the sickening story of Ahmad Harun, the Sudanese Minister (of Humanitarian Affairs!), strolling through the same Darfur villages that he orders burned and their inhabitants raped, tortured, and killed.

Being an international justice nerd, I always wondered what it would be like if the world’s prosecutors—past and present—came together and said enough. Enough to genocide. Enough to pre-adolescent kids being forced to fight on the front lines as child soldiers. Enough to rampant sexual violence against women in conflict. And enough to time ticking as we all watch and do nothing. This past week, nine remarkable men with the toughest job in the IJ world did just that—they gathered at the First Chautauqua Conference in New York and issued the Chautauqua Declaration. So as to ensure my promise of goose bumps, I’ve taken the liberty of pasting (and bolding) the Declaration below (courtesy of the American Society of International Law(ASIL)).

The Assembled International Prosecutors, both Past and Present

Celebrating the 100th anniversary of the Hague Rules of 1907;

Remembering the legacy of our Nuremberg colleagues;

Recalling the principles of Nuremberg;

Noting the importance of the rule of law in facing down impunity;

Understanding the need for a family of nations united for peace;

Appreciating that the legal tools are now in place to prosecute those who bear the greatest responsibility;

Aware of the need to seek justice efficiently and effectively;

Noting that international humanitarian law still remains the cornerstone to controlling international and internal armed conflict;

Recognizing that both truth and justice create sustainable peace;

Highlighting that justice is not an impediment to peace, but in fact is its most certain guarantor;

Now do solemnly declare to the world  

That ending impunity by perpetrators of crimes of concern to the international community is a necessary part of preventing the recurrence of atrocities.  

That it is no longer about whether individuals agree or disagree with the pursuit of justice in political, moral or practical terms; now, it is the law.

That the challenge for States and for the international community is to fulfill the promise of the law they created; to ensure the arrest and surrender of individuals sought; and in that light;

That Ratko Mladic, Radovan Karadzic, Felician Kabuga, Joseph Kony, leader of the Lord’s Resistance Army in Uganda, Ahmed Harun,  the Sudanese Minister who organized the system of persecution and attacks against the civilians in Darfur, and all others not listed here and are sought by international justice, be arrested and  surrendered to the appropriate court, tribunal or chamber;

That States are reminded of the words of Martin Luther King Jr. that “the arc of moral justice is long but it bends towards justice.”

That the world community take note of the words of Justice Robert H. Jackson at Nuremberg: “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law.”

You’d have to be made out of stone not to feel the singular weight of this Declaration. It is the culmination of a century of international justice norms, mechanisms, and advocates. It captures the voices of three generations of hope, idealism, and an unwavering commitment to making “Never Again” a reality. True, the Declaration won’t make the Ahmad Haruns of the world appear in a cell in The Hague tomorrow. But something tells me if these nine men have anything to do with it, judgment day for the world’s most violent war criminals is a lot sooner than we think.  

But as remarkable and committed as the prosecutors are, they alone cannot fight and win against the kind of evil that leaves millions of innocent civilians in conflict displaced, starving, or dead. Thousands of miles away from the ICC and other international tribunals, we have to do our part too—it’s September and school isn’t the only thing back in session. The U.S. Congress will resume its legislative activities after the Labor Day weekend, and this fall is bound to be a flurry of activity on Capitol Hill. To that end, here are two quick and easy things you can do to stay informed, push for more constructive IJ policies, and make sure your voice is heard in D.C.:

1. Check out the website(s) of your presidential candidate(s) of choice and see if they support the ICC and core IJ laws such as the Geneva Conventions. If they don’t, send them an email—now is the time to get their attention on issues that matter.

2. Call your Representatives in the House and ask them to support the passage of the Genocide Accountability Act of 2007—a bill that will (finally) allow the U.S. to prosecute those who have committed genocide in other countries and are currently on U.S. soil. Click here for Senator Durbin’s summary of the Act and its implications if passed.

Some of these prosecutors are in their eighties. Some of them have stared into the eyes of the world’s most brutal war criminals. All of them still fight for a world free of war crimes, crimes against humanity, and genocide. So should we.

For news articles on the Chautauqua Conference and Declaration as well as Mr. King’s criticism of counterproductive U.S. policies on key IJ issues, check out IJ Wire.

U.S. and the ICC: Lukewarm is not warm

I’ve been an ICC advocate for almost seven years and there’s one question people ask that never seems to have a short answer: What’s the real deal with the current U.S. policy on the ICC? I am going to spare you the very long answer (in this blog, at least). But sufficed to say that characterizing U.S. policy on the ICC as one that is “warming up” these days would be, well, wrong. Don’t take my word for it though—take the word of the Secretary of State’s Senior Legal Advisor, John B. Bellinger III.

I gave a presentation on U.S.-ICC policy last November at the ICC’s fifth Assembly of States Parties in The Hague, and as tempting as it was to paint a rosy picture for the foreign officials, NGO representatives, and other stakeholders who were wondering about Washington’s mixed signals on the ICC, I refrained. When you’re a 29 year-old halfway across the world in a room full of diplomats and veteran ICC advocates, you remember your manners: Be attentive. Show respect by listening. Think before you speak. Don’t be overly confident. But I was there for a reason, and as one of (sadly) a handful of people who tracks U.S. policy on the ICC, I wasn’t about to misrepresent the facts on the U.S. side.

The reality was that I didn’t think the Administration was “warming up” to the ICC. Put another way, I didn’t believe that the recent congressional and presidential action was reflective of a deeper policy shift toward the ICC. Rather, the Administration was trying to triage the consequences of a policy that had been bad from the start: its Bilateral Immunity Agreement (BIA) campaign. More pragmatic voices inside the Administration had seemingly realized that the BIA campaign, which requires all ICC countries to sign blanket immunity agreements for Americans or face millions of dollars in aid cuts, was an ineffective policy at best. At worst (which in my view has come to pass), the BIA campaign has been a counterproductive policy that has burned much needed political capital with countries like Jordan (“our greatest Arab ally in the war against terror”), Kenya (“a linchpin of East African stability and security”), and a slew of Latin American countries (much to the delight of Venezuelan President Hugo Chavez).

For the last eight months, I’ve been hoping my assessment at The Hague was overly cautious. But Mr. Bellinger’s June speech in The Hague and July 12 interview with the Council on Foreign Relations (CFR) here in D.C. confirmed how lukewarm the U.S. government is when it comes to the ICC.

On June 6, Mr. Bellinger gave a speech titled “United States and the Law” in The Hague, the Netherlands. He opened his speech with this memorable line: “Some of you may think it rather bold of me to come to a city renowned for its institutions of international peace, justice, and security and talk about the United States’ commitment to international law.” (It’s no secret that our European friends are dumbfounded by U.S. policy toward the ICC, not to mention other issues like Guantanamo). He mentioned U.S. opposition to the ICC, saying that “we believe it important that ICC supporters take a…practical approach in working with us on these [international justice] issues, one that reflects respect for our decision not to become a party to the Rome Statute. It is in our common interest to find a modus vivendi on the ICC based on mutual respect for the positions of both sides.” (I put in the bold).

There’s no question that the U.S. is a sovereign country and as such can choose not to join the ICC. But this fact is precisely where he loses me—why doesn’t the reverse hold true for the U.S. government? Surely other sovereign countries have the same right to choose to join the ICC without fear of reprisal or strong-arming from us. This would be the “mutual respect” that Mr. Bellinger mentioned. But this has not been our policy. Mutual respect would not leave a country like Peru with a 2005 per capita GNI of $2610 with millions of dollars in aid cuts from the U.S. simply because it joined the ICC and doesn’t want to violate its own laws by signing a BIA.

In his July 12 interview with CFR’s Robert McMahon, Mr. Bellinger finally set the record straight: “I understand that this has been the view of many ICC supporters all along—that as long as the ICC as an institution continues to behave reasonably, the United States will warm to it. I don’t think that’s an accurate characterization” (my bold).

By the way, if you’re wondering why the U.S. is so opposed to the ICC, Mr. Bellinger described the Administration’s chief concern as the ICC having “purported jurisdiction over us.” I’m glad he used the word “purported”—sounds like he’s read the ICC Chief Prosecutor’s detailed communique in February 2006 explaining exactly why the ICC does not have jurisdiction over U.S. actions in situations like the war in Iraq. The communique wasn’t an isolated occurrence, either—ICC officials have stressed at every turn that in accordance with its treaty, the ICC is a court of last resort. This means each country’s domestic legal system has primary jurisdiction over its own nationals accused of committing war crimes, crimes against humanity, and genocide.

I understand Mr. Bellinger’s situation: to have a change of heart now would make the fiery rhetoric of opposition that the Administration and some members of congress have shown the ICC for the past seven years seem awfully silly. (My favorite is former Congressman Tom Delay’s characterization of the ICC as “Kofi Annan’s kangaroo court.” I should mention that the ICC is wholly independent from the U.N. and its Secretary Generals). Still, I really wish our officials were going about this differently. If the government has concerns about the ICC, which it has a right to do, it should go about expressing them in a much more constructive way. If you’re upset with someone, stewing in a corner and picking on others who speak to that person is only going to leave you angry and alone.

It’s recently been rumored that the State Department no longer views the BIA campaign as a priority. The reason? Apparently the Administration doesn’t consider the ICC as a threat anymore. Not exactly the warmth I was looking for. I’m having an increasingly difficult time letting Mr. Bellinger speak for me and other Americans. The fact is the majority of us in this country support the ICC—an international criminal court that is tasked with investigating and prosecuting the world’s worst crimes. The ICC isn’t about targeting the U.S. Characterizing the Court that way tells the millions of innocent civilians in Darfur, Democratic Republic of Congo, Uganda, and countless other places that we don’t care about ending genocide and impunity. Mr. Bellinger says our Administration shares the “overall ends” of justice and accountability, just not the ICC. It’s time for other American voices to be heard.

Japan comes in at 105th

As the newest member of the International Criminal Court (ICC), Japan had much to celebrate on July 17. Coming in at 105, Japan’s ratification of the ICC treaty makes it the 13th Asian country to join the Court and its top financial contributor, beating Germany with an annual contribution roughly equal to 19% of the ICC’s total budget of $124 million.

But the Japanese government can’t take all the credit. After all, governments rarely join international bodies without strong and consistent pushing at the local level. Enter Japanese civil society, and in particular, the Japanese Network for the ICC. I had a chance to speak with one of the Network’s representatives last November when I attended the fifth annual session of the Assembly of States Parties (ASP), the ICC’s legislative body, in The Hague, Netherlands. I was at Citizens for Global Solutions at the time and one of just a handful of American NGO representatives at the ASP (there were hundreds of NGO delegations from almost every country in the world in attendance). One evening after endless plenary sessions, NGO meetings, and interviews for the U.S. BIA analysis I was working on, I came across my Japanese counterpart.

I was curious—just two months earlier on September 12, the Japanese Foreign Ministry had announced Japan’s intention to join the ICC by July 2007, and I wanted to know if the two challenges facing ratification had been resolved: A Bilateral Immunity Agreement(BIA) with the U.S., and the hefty annual contribution that Japan would make to the Court based on its economy. Given the Foreign Ministry’s public announcement, it seemed that the financial issue was resolved. But the BIA issue was far less clear. (If you’re wondering what a BIA is, here’s the short version: it’s an agreement that the U.S. is requiring all countries to sign so it can immunize itself from the ICC. If countries refuse to sign, they have their aid cut every year. How much aid? Well, let’s just say more than the ICC’s annual budget of $124 million.)

Before I went to The Hague, there had been rumors that a BIA was already in place between the U.S. and Japan. While this was never confirmed, my new colleague did confirm that there was a lot of U.S. pressure to get Japan to sign a BIA.  Flash back to World War II for a minute. Do you remember which side Japan was on? Do you remember which side the U.S. was on? If I recall correctly, after WWII the U.S. was instrumental in providing justice for the millions of victims that had perished. And yet sixty years later, the leader of the Allied Powers is strong-arming an upstanding member of the international community—not to mention a key East Asian ally—to make sure the ICC doesn’t apply to Americans….?

Still, like clockwork, Japan joined the ICC this month—on International Justice Day to be exact. My Japanese colleague told me at the end of our conversation that the Japanese people marvel at the Americans’ insistence on BIAs. I told him that the Americans I knew—the ones who believed in justice and accountability—would never support U.S. exceptionalism.

There is a Japanese proverb that says, “after victory, tighten your helmet chord.” Japanese ICC advocates celebrated their victorious efforts to see their country join the ICC. But they know that more hard work lies ahead. Back here in the U.S. we have our work cut out for us too. The U.S. won’t be joining the ICC anytime soon (too many hyperlink options here, so just take my word for it). But we’re not off the hook: consistent U.S. polling shows that the majority of Americans favor the ICC, but our policymakers don’t represent our views when it comes time to legislate. I for one would at least like to put the helmet on. You too? More soon.