The Enforcement of International Criminal Law

The Enforcement of International Criminal Law 2009 Aegis Trust Aegis was established in 2000. The word Aegis means ‘Shield’ or ‘Protection’, reflecting the need to protect people against genocide and crimes against humanity. Aegis activities include: research, policy, education, remembrance, awareness of genocide issues in the media and humanitarian support for victims of genocide. It works to: • Research, advocate and campaign for policy reform to prevent genocide and crimes against humanity • Tackle the root causes of genocide and crimes against humanity by educating young people about the consequences of racism and exclusion • Support survivors, especially orphans and widows, by helping to rebuild individual lives and communities damaged by genocide The Aegis Trust is based at the UK Holocaust Centre, in Laxton, Nottinghamshire, where it runs education programmes for young people and professionals. It is also responsible for Education and Memorial Centres in Rwanda, which commemorate the 1994 genocide and play a vital role in educating a new generation about the dangers of ethnic division. Edited by Nick Donovan: Head of Campaigns, Policy and Research at the Aegis Trust. This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of the Aegis Trust and/or the authors and can under no circumstances be regarded as reflecting the position of the European Union. Table of Contents Foreword Justice Richard Goldstone 2 1 Introduction: Enforcement of International Criminal Law Nick Donovan 3 2 The Politics of Ending Impunity Caroline Flintoft and Nick Grono 16 ‘Architecture’ 3 The Crimes Against Humanity Initiative Leila Sadat 21 4 Genocide and Universal Jurisdiction: A Proposal Sudhanshu Swaroop 23 ‘Plumbing’ 5 Arresting the “Big Fish”: Lessons on State Cooperation for the International Criminal Court Tracey Gurd 27 6 Ending the Culture of Impunity: The Establishment of Specialized ‘War Crimes’ Units Jürgen Schurr 35 National Contexts 7 Crimes Against Humanity: A Legislative Agenda for the United States Diane Orentlicher 43 8 Strengthening UK Law on Genocide, War Crimes and Crimes Against Humanity Anna Macdonald 47 THE ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW 1 FOREWORD Justice Richard Goldstone1 This is a very timely collection of essays. I commend the It is a matter for regret that only one member of the Arab thoughtful piece written by Nick Donovan that is too modestly League, Jordan, has ratified the Rome Treaty. And, there are called an “Introduction”. It calls attention to some of the key too few from Asia. The most populous democracy, India, is issues facing international criminal justice today. notably absent. There are still important political hurdles to be The theme that runs through all the contributions is the overcome and much work remains to be done. importance of the politics of international criminal justice. NGOs are entitled to claim credit for many of the successes International courts, like other international bodies, require the of international criminal justice. In particular they played a key cooperation of states to make them function efficiently and, in role at the Rome conference and many important provisions in some cases, at all. If the political will is absent they will the Rome Treaty resulted from their lobbying. They continue founder. to actively support the ICC. Their pressure on governments The topics covered demonstrate how rapidly international cannot be over-emphasized. Some of the directions for future criminal justice has developed in the past 15 years since the efforts emerge from this collection of essays. establishment by the Security Council of the UN Criminal I salute the Aegis Trust for its continuing support for human Tribunals for the former Yugoslavia and Rwanda and the rights and international justice. It has played an important role Special Court for Sierra Leone. Adopting the terminology of in withdrawing impunity from war criminals and bringing Nick Donovan, the architecture and plumbing of the justice and acknowledgement to victims. International Criminal Court (ICC) is taking shape and becoming effective. However, the main structure has to be consistently and efficiently maintained, supported and improved. That will require political will on the part of the major nations that support the Court. The role of the United States has been a complex one. Without its political and economic power, the UN tribunals would not have been established and would not have succeeded to the extent to which they did. That support continued throughout the Bush Administration. It is highly unlikely that Kofi Annan, the then UN Secretary-General, would have called the Rome diplomatic conference of 1998 without strong US support. Shortly before the conference began, a change in US policy towards the ICC became apparent. It is important to recognize that the ICC has made important strides and is now operating impressively notwithstanding the best efforts, during the early years of the Bush Administration, to strangle it at birth. I am optimistic that the policy of the US has already changed with offers from the Department of State to assist the Prosecutor in areas consistent with US interests. I am optimistic that such cooperation will increase as the new Obama Administration comes into office. The record of the African states to the ICC is a mixed one. More members of the African states have ratified the Rome Statute than any other region. Three of the four situations accepted by the ICC were referred to the Court by governments. Yet, when an arrest warrant is sought against an African head of state, President Omar Al-Bashir of Sudan, leading African states, with the support of the African Union, have been seeking an order from the Security Council, under Article 16 of the Rome Treaty, to suspend the proceedings relating to the situation in Darfur. Fortunately, in the face of opposition from the US and from major European nations, that appears unlikely to happen. The African Union, some two 1. Justice Richard J. Goldstone is a former Chief Prosecutor of the years ago, requested Senegal to prosecute the Chadian International Criminal Tribunals for Rwanda and the former dictator, Hissène Habré. That notwithstanding, the Senegalese Yugoslavia, and was the Chair of the Commission of Inquiry authorities appear to have taken no action to do so yet. Regarding Public Violence and Intimidation in South Africa. 2 THE ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW INTRODUCTION: ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW Nick Donovan,1 Aegis Trust towards each of these goals. Take one example: deterring Introduction future perpetrators. In the standard theory of deterrence, derived from studies of national criminal justice systems, three In December 1948, the United Nations General Assembly elements, when combined, are expected to deter future adopted the Convention on the Prevention and Punishment of criminals: the probability of arrest, the probability of the Crime of Genocide. The sixty year anniversary provides an conviction, and the severity of punishment. The studies opportunity to focus on the punishment* of genocide and suggest that the perception of a high chance of getting caught other mass atrocities. weighs more heavily on a potential criminal’s mind than the Until recently, the emphasis of the international community severity of the punishment.7 This is not just a theoretical has been on developing the ‘architecture’ of international law: proposition: there is some evidence that trials can deter future treaties and tribunals, conventions and courts. By contrast, the violations. Statistical analysis of domestic prosecutions of state ‘plumbing’, those unfashionable tasks of training militaries and officials for human rights violations in times of transition and judges, police work, apprehension and enforcement, has been civil war in a wide number of countries has found that trials neglected. The result is a reasonably comprehensive set of have a positive effect on human rights outcomes.8 For international penal codes, a nascent system of courts and international criminal law to have any deterrent effect, or for it tribunals, but relatively few convictions. to achieve any of the other goals of justice, far more attention needs to be paid to enforcement. One might ask: few convictions relative to what? How many suspected war criminals and génocidaires are there? A definitive answer is impossible. Yet some rough, back-of-an- What is to be done? envelope calculations are available. One estimate of the Improving the rate of conviction of suspected war criminals is a numbers of perpetrators in the Rwandan genocide was decades-long task which will require effort in the following areas: 200,000.2 Perhaps 20,000 janjaweed militiamen and military personnel were involved in the killings in Darfur.3 The late First, further reforms to the legal architecture including: 2008 crisis in the eastern Democratic Republic of Congo (DRC) - Further broadening the conceptual coverage of featured an estimated 6,000 members of General Nkunda’s international customary and treaty law regarding CNDP militia, 6,000-7,000 FDLR Hutu-extremist militia atrocity crimes, immunities and extra-territorial members, approximately 3,500 pro-government Mai-Mai jurisdiction; militia, and thousands of DRC government troops.4 When - Expanding the geographical coverage of international these numbers are considered alongside those involved in criminal law; including,

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