Features

March 23, 2007

SPEECH: ICTJ President Urges Judicial Responses to Violence

International Judicial Responses to Violence
University of Pennsylvania
March 22, 2007

Intervention by Juan E. Méndez,
President of the ICTJ and Special Advisor to the Secretary General on the Prevention of Genocide

I am very grateful to the University of Pennsylvania for the invitation to speak at this important conference. I will do so mainly from the in-country perspectives of ICTJ programs in Uganda, DRC and Sudan, and also from my experience as the Special Advisor to the Secretary General on the Prevention of Genocide.

We believe very strongly that violence and mass atrocities cannot be effectively addressed without a serious attempt to break the cycle of impunity for human rights violations, especially if they are so widespread or systematic as to constitute war crimes or crimes against humanity. We also hold that accountability for such crimes must be comprehensive, balanced and holistic, meaning that policies and practices must address the need to discover and disclose the truth, to bring perpetrators to justice, to offer reparations to the victims, and to promote deep reforms in the institutions through which State power is exercise. While criminal prosecutions should not be the sole response to impunity, there is no doubt that they must play a central, indispensable role in any policy of accountability.

At the same time, at ICTJ we insist that domestic prosecutions represent the State's fundamental obligation to give victims access to justice. On the one hand, the international community must pay more attention to helping States live up to this obligation by building independent, impartial judiciaries that can prosecute mass atrocities with full respect for due process of law and fair trial guarantees. On the other, our support of the role of the International Criminal Court and other international criminal justice ventures must be oriented towards supplementing the absence of will or capacity to produce fair trials domestically, but also to help generate that capacity in the near future.

The situations in Sudan, DRC and Uganda are enormously instructive in terms of how an institution like the ICC should function in the real world. Operating a global Court is a complex exercise and all the challenges we are facing may not have been anticipated at the outset. It is a learning exercise for all of us.

The situation in Uganda has revived a debate which some of us may have hoped was more settled. To those who have followed the evolution of human rights in the last 25 years, the debate rings of earlier discussions as to whether fragile democracies could really afford to investigate and disclose - let alone prosecute - the major crimes of the preceding era. Always implicitly, but on a couple of occasions very explicitly, the citizens of those young democracies were asked to choose between justice and democracy (or between justice and the rule of law, to paraphrase a famous threat by Augusto Pinochet) because they could not have both.

The creation of the International Criminal Court in 1998 was the high point of an evolution in policy and practice, accompanied by emerging norms in international law, signaling that accountability for war crimes and crimes against humanity was from now on paramount and that the international community would not countenance impunity for such atrocities. But the Rome Statute was not only the culmination of a clear trend that had started in the early 80s in the context of transitions to democracy: it was also the means to establish an instrument that made justice possible even when the national state was unable or unwilling to afford it. And yet, for each situation in which the ICC has acquired jurisdiction we hear voices calling for amnesty, withdrawal of indictments or other forms of exercising discretion and avoid prosecutions, supposedly in the name of peace. As in the 1980s, with the best of intentions, some are urging measures that implicitly give in to the blackmail of the parties to the armed conflict: peace can only come if those accused of atrocities are given guarantees that they will not be touched.

In Northern Uganda, there is a broad recognition that the indictments have assisted in bringing the LRA to the negotiating table, but some now portray the ICC indictments as obstacles to progressing further with the peace process. There are calls for the Prosecutor to exercise his discretion and suspend investigations and withdraw the indictments "in the interest of justice" (Art 53.2.c). We were pleased to see a policy document from the Office of the Prosecutor that ensures that Art. 53 will only be invoked in highly exceptional circumstances.

Others have suggested that Uganda should make a challenge under the complementarity principle (Art. 18.2), but to date it is unclear whether Uganda is willing to exercise criminal jurisdiction (although options here may not have fully been explored). There are some who urge the Security Council to request a suspension of the proceedings for one year at a time (Art. 16). That may well be within the Security Council's powers, but I think it would be a very bad precedent for the Security Council to get seized of the Northern Uganda situation only for the purpose of suspending ICC investigations; it would be an unwarranted interference by a political organ with the independence and impartiality of the Court. That the Statute contemplated this variety of procedural norms to accommodate shifting situations is proof that its framers were well aware that the interests of justice and the interests of peace should not be divorced.

In any event, in the case of Uganda these proposals are all premature. The parties to the peace process have the burden of showing that the ICC is no longer needed, a burden of which the government of Uganda is aware. If an alternative for criminal justice, in the form of traditional justice and an element of truth-seeking and reparations, as currently under discussion in the form of Mato Oput, is put forward, it would be for the ICC judges to evaluate whether it is sufficient under Art. 17. And there is a risk that it will fall short.

Also still in question are the true intentions of the LRA. For now, there is yet no real indication that LRA leaders intend to reverse their practices amounting to international crimes (e.g. by releasing forcibly recruited child soldiers and kidnapped girls subjected to sexual slavery) until they are given assurances that they will never be brought to justice.

It is important to remember that there is a broad and general amnesty on the table in Uganda. It applies to all those who wish to give up their arms and rejoin their families and communities. It will be hard to accept that a number of those who benefit from it may also be guilty of atrocities, but as long as they did not bear the greatest responsibility for the crimes, and as long as their communities are satisfied with the measures put in place for their reintegration, perhaps we should all be ready to accept the absence of formal justice in those cases for the sake of peace. But asking the Ugandan victims and the international community at large to accept a total, blanket amnesty covering even those who planned, ordered and covered up those crimes, without a measure of accountability is too much to ask. Experience also shows that it might not lead to a durable peace. In any event, the case of Northern Uganda also shows the importance of conducting meaningful victim consultation at all stages of the process.

This links to the fact that the Court is still little known and understood in many of the areas where it is operating. In Northern Uganda people have little exposure to formal justice, and it may be too much to expect for them to fully grasp and support the complexities of the ICC upon first contact. The Court as a whole must seek more pro-actively to fill this knowledge gap and to build its own legitimacy in affected regions, so as to build its own relevance in the lives of those most affected. I should note, however, that a survey conducted in 2005 by ICTJ revealed that the Acholi of Northern Uganda were equally unfamiliar with the customary law traditions of mato oput and its possible relevance to crimes of this sort.

Likewise, however, those of us who support the Court should learn to identify its impact and successes in ways that go beyond the strict confines of the judicial process. The pressure applied by the ICC assisted in bringing the LRA to the negotiating table. If it were not for the ICC, the debates around accountability in and around Juba might never have reached the current stage. Uganda will benefit for years to come from having a national debate on what forms of accountability are necessary. This should be contrasted with the Comprehensive Peace Agreement between North and South Sudan, concluded recently but without the influence of the ICC. Due to that ICC absence, debates on accountability were very cursory and an agreement was quickly reached by both sides to take it off the negotiating table.

I can also offer other examples of how the implied threat of an ICC prosecution has had beneficial impact on the ground. In Colombia, the law on demobilization of the paramilitary groups would have been much worse than it is if it were not for the need to offer a semblance of compliance with the international standards set forth in the Rome Statute. In Cote d'Ivoire, the prospect of prosecuting those who use hate speech to instigate and incite to commit crimes under the ICC's jurisdiction has kept those actors under some level of control. Obviously, wrongdoers on the ground quickly adjust to shifting situations, so in the future it will not be enough simply to invoke the threat of prosecution. More will be needed, and more will also be needed in terms of international cooperation with the ICC.

More stark are some of the lessons we are learning on state cooperation in terms of securing arrests. This general lack of cooperation does not affect only the ICC but also, to worrisome extents, the other international criminal courts. New approaches will have to be explored as State Parties learn to accept responsibility under the Rome Statute.
In Darfur, the ICC faces challenges of a different nature. In my role as Special Advisor to the Secretary General on the Prevention of Genocide I visited Darfur in 2004 and 2005 and was able to see how impunity for the massacres of 2003 that exacted the cost of 200,000 lives lost was in itself a factor of instability and a hindrance to prevention of future crimes. That is why early on I joined those who called for a referral of the case to the ICC by the Security Council, a measure of historic significance that was adopted on April 1, 2005.

It has now been two years since that decision, and the Khartoum regime has repeatedly stated that it does not recognize it and that it will not cooperate with the OTP's investigations. In that long period, the Security Council made no effort to remind the Government of Sudan that this was a decision adopted under Chapter VII of the Charter, and therefore binding on all States. Instead, we have let the regime get away with defiance of a resolution adopted in furtherance of international peace and security. Even if the Security Council was unwilling to address this failure to cooperate, it should have been incumbent on other important international actors, particularly member States interested in Darfur and in the ICC, to press Khartoum on this issue. It would also have been important for UNMIS on the ground, and for high-ranking officials in the UN Secretariat, to include this agenda item in their relations with Khartoum.

As far as I can see, only the High Commissioner for Human Rights and my office of Prevention of Genocide have raised this point from time to time. The result is not only that we do not offer the ICC and the OTP the support they need; it is also that we have given away cards that we could have used in negotiating with Khartoum to better protect and assist the 3 million Darfuris who are now totally dependent on international assistance. It is, unfortunately, not the only mistake that the international community has made along this path that has rendered it all too weak and has strengthened the hand of the regime responsible for the 2003 massacres in Darfur. But lack of follow up on the referral to the ICC certainly contributes to our seeming inability to stem the downward spiral into more violence in that region.

Paradoxically, there are views that recommend precisely the opposite: for the Security Council to suspend investigations under Art 16 of the Statute of Rome, or to persuade the Prosecutor to declare a unilateral suspension. Presumably that would offer Khartoum some carrots that would let President Bashir back off from his belligerent stance and accept the UN military deployment approved last August 31 by the Security Council (subject to Sudan's acceptance). Indeed, in the debate preceding that resolution, and also subsequently, representatives of the countries most interested in Darfur have made it clear that the UN force would have no mandate to execute ICC arrest warrants. It may be too much to ask that such an order be made an explicit part of the mandate in any case. So silence on the matter would be acceptable, in my view. I doubt, however, that it is necessary or appropriate to repeat assurances that arrests will never be conducted.
A final point about prevention and the ICC in Darfur is the question of security for witnesses, victims and the OTP's own investigative teams. These are important concerns and we should not be pushing the Prosecutor to take risks with other people's lives. At the same time, we should not forget that it is the Khartoum regime and its agents that are threatening those lives and many others, and therefore we should apply pressure on the Sudanese government to guarantee the lives and physical integrity of all those linked with those investigations.

In the meantime, our lack of follow-up and of action to support the integrity and independence of the ICC allows a rogue regime the space to institute a policy that effectively shields its agents and other potential defendants from the reach of international justice. One way to break this impasse is to reverse course and apply the necessary political pressure to restore the ability of the ICC to do its prosecutorial and judicial work; another is for the Prosecutor to file charges on the basis of the evidence at his disposal and gathered in Chad and elsewhere, to demonstrate to Khartoum that this bullying policy will not perpetuate impunity. The Prosecutor should also find ways to signal to the people of Darfur that their plight is under continuous consideration, and that silence does not mean inaction. Luis Moreno Ocampo has acted in this fashion a few weeks ago, when he filed a summons to appear before the ICC for two individuals suspected of major roles in several massacres. It is to be expected that the Pre-Trial Chamber will act swiftly on that request.
In terms of complementarity, the Prosecutor's three year report refers to "respecting genuine efforts at the national level", but I think that there is broad agreement that the activities carried out by the Special Court for Darfur to date do not constitute such a genuine effort.

A few final remarks. On the DRC, we welcome the taking into custody of Thomas Lubanga Dyilo, and think that his initial appearance will have a tremendous impact on the Court itself and the world at large. We also appreciate why the decision was made to request for his transfer, and why he was charged with only a narrow set of charges at that particular time. We hope that the charges either in his case or in other cases arising from DRC will be representative of the many horrific incidents of violence committed in the DRC since 2002. We also hope that the OTP will commit the necessary resources to investigations in both DRC and Darfur in order to achieve a comprehensive set of charges. While we generally support the approach of the OTP to focused and narrow investigations, it may be true that different situations of different levels of complexity may require variations on that approach.

In that respect, while we generally also agree with the OTP's interpretation of the gravity threshold, we think that the OTP should not hesitate in opening investigations in situations that may not be equivalent in scale to DRC, Sudan and Uganda, but where there are other considerations of gravity, including manner of commission and victim impact. What matters is "sufficient" rather than "comparative" gravity, in our view.. Likewise, we think that there could be a measure of discretion in terms of sequencing cases on grounds other than gravity, based on a thorough assessment of all the circumstances.

I would like to end these remarks with a reference to the other international and hybrid criminal tribunals created since the early 90s. They represented an important landmark in the international community's commitment to accountability for major crimes. They also paved the way for the creation of the ICC as a permanent court, by demonstrating that prosecutions by international courts were possible with a rigorous respect for fair trial guarantees. Those courts have offered significant precedents and have advanced our understanding of fundamental human rights standards with their landmark decisions. Like the ICC, their role in punishment has also played an important preventive function. Now, however, these courts are being prompted to develop a "completion" strategy that places great pressure on them to offer plea bargains and to drop prosecutions for lack of time. Even more ominously, there is great uncertainty as to what the international community is prepared to do to ensure that their legacy is assured and preserved for the future. ICTJ recently held a conference at the United Nations at which the chief justices, registrars and chief prosecutors of those courts met with NGO representatives to discuss those challenges and to plot strategies to ensure that completion includes preservation of legacies. Though I feel the meeting was successful in generating a common strategy for the ICTY, ICTR, Sierra Leone Special Court and the Extraordinary Chambers for Cambodia, I regret that the presence of UN Secretariat officials who should help ensure that objective were present at relatively junior levels and not for the whole time.

But I do not want to end on a pessimistic note: in fact, we should just look back to less than fifteen years ago and see how far we have come from the pervasiveness of impunity for grave human rights crimes and from the permissive attitude towards that impunity by the international community. Of course, much more needs to happen in terms of judicial response to mass violence, but I think you will agree with me that we are on the right track.

Thank you very much for your attention.