1. Convey a firm commitment to ensure justice for serious crimes.
5. Adopt a more cooperative US policy on the ICC.
Justice for the worst crimes under international law-namely genocide, crimes against humanity, and war crimes-should be a priority for the administration under President Barack Obama. Justice is important not only for victims of these crimes wherever they occur, but also for building peaceful societies based on the rule of law, especially those devastated by conflict.
While the Bush administration should be credited with promoting justice for grave crimes in certain situations, its ideologically driven policies on international justice-most notably its bitter opposition to the International Criminal Court (ICC)-as well as its disregard for core human rights principles, has undermined both the moral and political authority of the United States to fight impunity worldwide. Meanwhile, as horrific crimes continue to be perpetrated in places such as Darfur and the Democratic Republic of Congo (DRC), effective US leadership on international justice is needed more than ever.
During the next four years, Human Rights Watch looks to the Obama administration to demonstrate a consistent, comprehensive, and unwavering commitment to justice for the gravest crimes in violation of international law. This document outlines a number of short-term actions as well as longer-term policies and practices that should be adopted to demonstrate the administration's willingness to fight impunity, as well as to entrench a broader US commitment to justice for the worst crimes globally throughout the next four years.
Recommendations for short-term actions
1. Convey a firm commitment to ensure justice for serious crimes.
At the outset, the Obama administration should indicate publicly a strong dedication to justice for grave international crimes committed anywhere in the world. This will signal a US attitude of zero tolerance for impunity for mass atrocities and that justice for grave crimes will be a priority of the administration.
2. Send an unequivocal message to the Sudanese leadership that the Obama administration will not use justice as a bargaining chip in any negotiations with Khartoum.
In the past five years, widespread atrocities have been committed in Darfur. In March 2005, recognizing that the situation constituted a threat to international peace and security, the United Nations (UN) Security Council referred the situation in Darfur to the ICC. Since then, the ICC has issued arrest warrants against a government minister and a Janjaweed militia leader. Four more requests for warrants are outstanding, including three for rebel leaders charged with leading attacks against international peacekeepers in Haskanita and one for President Omar al-Bashir for war crimes, crimes against humanity, and genocide for his role in orchestrating the government's brutal counterinsurgency campaign.
Following the ICC prosecutor's request for a warrant for President al-Bashir on July 14, 2008, Khartoum has led an aggressive campaign to avoid justice for the crimes committed in Darfur by seeking a Security Council deferral of the ICC's investigation of al-Bashir under article 16 of the ICC statute. Sudanese government officials have made explicit and implicit threats of retaliation against peacekeepers and humanitarian workers if warrants are issued. President Obama should make clear to President al-Bashir and all those who support al-Bashir that the United States will not be blackmailed into denying much needed justice for the people of Darfur by threats of violence from Khartoum, nor will the United States defer justice in exchange for promises of improved behavior. The United States should furthermore make justice for serious crimes in Darfur a priority, including in its interactions with Khartoum and at the UN Security Council.
3. Initiate strategic discussions on apprehension and surrender for trial Lord's Resistance Army (LRA) leaders with key regional African and international players.
In northern Uganda, civilians have suffered egregious abuses during a conflict between the government and the insurgent Lord's Resistance Army for nearly two decades. In 2005, the ICC issued arrest warrants for five LRA leaders for war crimes and crimes against humanity. Following nearly two years of talks to end the northern Uganda conflict and a period of relative calm, there have been credible reports since February 2008 that the LRA has renewed committing abuses in the Democratic Republic of Congo, Southern Sudan, and the Central African Republic (CAR), including abductions, particularly of children, and killings. Following a joint attack by Ugandan, Congolese, and Sudanese forces on the LRA in December 2008, the LRA allegedly massacred civilians in a church and killed and abducted hundreds of civilians in the DRC.
Building on Bush administration's efforts, the Obama administration should quickly engage with governments in the region, the United Nations, and key allies, including the United Kingdom, to develop a viable plan for the apprehension of wanted LRA leaders while minimizing the risks to civilians and avoiding excessive force. This would be a major contribution to ending LRA abuses and to ensuring that justice is done.
Recommendations for mid to long-term policies and practice
4. Include justice as a key element of strategies that address situations where widespread atrocities are being committed.
Human Rights Watch believes that justice for serious crimes is a vital component to establishing a sustainable peace. Our experience on the ground is that the failure of key governments and international institutions to demand accountability for serious crimes can lead to cycles of continuing violence. In Sudan's two-decade-long civil war in the south, for example, the government used "scorched earth" tactics and proxy militia groups against civilians, but they were never held to account for these crimes and justice was not included in the comprehensive peace agreement that ended the war. We believe that this emboldened the government to use the same tactics against civilians in Darfur in 2003 and 2004 even while peace talks with the south were taking place. In the DRC, Human Rights Watch has similarly documented how rewarding warlords with official positions instead of prosecuting them has engendered new cycles of atrocities.
We expect that the Obama administration will support the principle of international law that amnesty for genocide, crimes against humanity, and war crimes is never permissible. At the same time, the Obama administration should go further and should consistently insist on the need for justice for serious crimes as part of its response where such abuses are committed. Doing so will provide victims with a much needed judicial remedy, will hold the perpetrators accountable, and will mitigate an atmosphere of impunity that can be manipulated by political leaders to cause future violence.
5. Adopt a more cooperative US policy on the ICC.
The establishment of the ICC-an independent forum in which the most egregious international crimes can be prosecuted-represents one of the most important advancements ever in human rights protection. The court is essential to ensuring justice for victims, to strengthening the enforcement of international law, and to maximizing the possibility of deterring the commission of war crimes, crimes against humanity, and genocide.
The Bush administration virulently opposed the ICC and set in motion an aggressive, ideologically driven policy to undermine and isolate the court, to secure blanket immunity from the court's jurisdiction for US nationals, and to force ICC member countries-the vast majority of them US friends and allies-to choose between their obligations under the ICC statute and significant military and financial aid cuts if they refused to sign bilateral immunity agreements with the United States.
As the ICC enters its sixth year of operations with four active investigations and conducts its first trial, which started in January 2009, none of the worst-case scenarios that fueled the Bush administration's anti-ICC stance have come to pass. Chief among these was that the ICC would be a rogue institution, conducting politically motivated investigations against US nationals. Instead, the ICC, with the support of its 108 member states, is working to bring justice to victims of widespread and horrific crimes in violation of international law in Uganda, the DRC, Darfur, and the CAR.
In the last few years, the Bush administration began to soften its harsh anti-ICC stance, as demonstrated most prominently by its abstention on the Security Council vote to refer Darfur to the court in March 2005. Nonetheless, the overall effect of the Bush administration's ICC policy rendered the United States a moral and political outlier with regard to the development of a permanent international institution that can ensure justice for the worst crimes. It also undermined the credibility of the United States to forge coalitions against human rights abusers and to pursue international justice more broadly. Going forward, we look to the Obama administration to formulate a markedly different US policy toward the ICC, namely one that is cooperative and engaged. Specifically, we urge the Obama administration to:
- Develop a constructive relationship with the ICC
We believe that the Obama administration should develop a constructive relationship with the ICC, which includes but is not limited to: assisting the court in its cases, as discussed in greater detail below; participating in regular sessions of the ICC's Assembly of States Parties; participating in the ICC's review conference in a manner that is genuine and respectful of preparatory work that has taken place; contributing to the ICC's Trust Fund for Victims; and withdrawing or otherwise rejecting the Bush administration's purported "unsigning" of the ICC statute. This approach will restore US standing with friends and allies who make up the vast majority of the court's members, will ensure a positive US contribution to advancing the world's first permanent international criminal court, and will pave the way for the US-historically an advocate for human rights, rule of law, and international justice-to move to become a party to an institution that seeks to promote these ideals.
- Assist investigations and prosecutions by the ICC
As the ICC conducts its first trial of Congolese militia leader Thomas Lubanga Dyilo, seeks apprehension of northern Uganda's LRA suspects, and pursues prosecutions of suspects for crimes in Darfur, effective US assistance and cooperation can play a valuable role in strengthening the court's work. We urge the Obama adminstration to provide the ICC with such assistance, including by sharing relevant information and evidence, by facilitating and pressing for the arrest of individuals sought by the court, and by supporting appropriate Security Council resolutions on the ICC, such as those referring cases to the court or calling for cooperation with the ICC.
- Signal opposition to the remaining provisions of the American Servicemembers Protection Act
Perhaps the most notorious and damaging aspect of the Bush administration's anti-ICC policy was the American Servicemembers Protection Act of 2002 (ASPA), which prohibited US cooperation with the ICC; authorized the president to use all means necessary and appropriate to free US and certain allied personnel detained by the ICC (the "invasion of The Hague" provision); refused military aid to states parties to the ICC treaty (except major US allies); and prohibited US participation in peacekeeping unless immunity from the ICC is granted for US personnel.
Numerous US government officials expressed concern about the impact of the ASPA on foreign relations and on October 17, 2006, President Bush signed into law an amendment to ASPA, which removed restrictions on military education and training for all nations. On January 22, 2008, Congress further amended the ASPA to eliminate restrictions on foreign military financing for nations refusing to agree to bilateral immunity agreements. We urge the Obama administration to signal its opposition to all remaining provisions of ASPA. This will indicate a clear break from the Bush administration's ideological approach to the court, will demonstrate goodwill to US friends and allies who have borne the brunt of US aid restrictions, and will remove a potential stumbling block for the US to assist the court in individual investigations.
6. Support the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) as they move toward completion of their operations.
The ICTY, ICTR, and SCSL have made a major contribution to ensuring justice for grave crimes committed at the end of the twentieth century. The United States played a key role in the creation of these institutions and has historically been a strong, consistent supporter of them. While all three of these courts are now working toward wrapping up their core operations in accordance with their completion strategies, essential work remains. Most significantly, Bosnian Serb commander Ratko Mladic continues to evade trial at the ICTY, prosecutions of members of the Rwandan Patriotic Forces (RPF) implicated in serious crimes have yet to take place at the ICTR, and the SCSL's historic trial of former Liberian president Charles Taylor is ongoing. In addition, discussions on the establishment of viable residual mechanisms that can address critical work after these courts close their doors-such as ensuring the rights of those convicted and protecting witnesses who testified-are only in the early stages.
Continued robust US financial and political backing at this critical stage is thus vital and will bring US support full circle, including by ensuring that gaps in each tribunal's work are closed. Accordingly, we urge the Obama administration to support adequate funding and a timetable that is both flexible and realistic for completion of operations by these courts, to press for apprehension of fugitives and RPF prosecutions, and to assist in the creation of proper residual mechanisms.
By contrast, the Obama administration should not support continued US funding for the Extraordinary Chambers in the Courts of Cambodia (ECCC) unless key deficiencies are addressed. The ECCC has been subject to political interference by the Cambodian government, to a lack of independence among Cambodian judges and prosecutors, to insufficient fact-finding and field investigations, and to allegations of serious corruption. The United States should be at the forefront of advocacy with the United Nations, other donors, and the Cambodian government in insisting that Cambodians deserve the highest standards of justice for the crimes committed by the Khmer Rouge.
7. Support credible efforts to prosecute serious crimes by national courts, including by Bosnia and Herzegovina's Cantonal and District Courts.
Where possible, the first line of response for justice for serious international crimes should be national courts in the countries where the crimes are committed. However, all too often, the justice systems in places where widespread abuses have been committed are not capable or willing to prosecute. Where national courts undertake efforts that can fairly and effectively hold perpetrators to account, they should be encouraged. A notable example of such efforts is occurring in Bosnia and Herzegovina's Cantonal and District Courts. We urge the Obama administration to financially and politically support this initiative, along with other credible national efforts to prosecute serious crimes.
8. Work with Congress and the Department of Justice to ensure that the United States is not a safe haven for human rights violators.
Until recently, torture was the only serious crime that could be prosecuted in the United States when committed abroad where neither the alleged perpetrator nor the victim was a US citizen. The 110th Congress, building off the strong initiative of the Senate Subcommittee on Human Rights and the Law, passed important legislation that makes other serious crimes-namely genocide and child soldier recruitment-prosecutable offenses under these circumstances. Yet key loopholes still exist, especially with respect to war crimes and crimes against humanity. Furthermore, proponents of legislation on these crimes face resistance from fellow lawmakers who want suspected human rights abusers to face immigration law violations alone.
We urge the Obama administration to back legislation aimed at closing gaps in US law when it comes to grave crimes in violation of international law. We also urge the Obama administration to ensure that these laws are applied when appropriate cases arise. In 2008, the Department of Justice (DOJ) for the first time prosecuted torture committed abroad in its case against Charles "Chuckie" Taylor, Jr.-the son of former Liberian president Charles Taylor. Taylor was convicted for his participation in torture committed in Liberia during his father's rule. At the same time, the US torture statute was on the books more than a decade before the first case was brought.
Effective leadership by President Obama could make a real difference in spurring more cases of this kind, and we urge him to encourage DOJ to actively apply laws that allow US courts to prosecute alleged human rights abusers. This includes assessing what obstacles may exist to more prosecutions and increasing resources and coordination among relevant government agencies. This will not only prevent the United States from becoming a safe haven for war criminals but also demonstrate a commitment to defending human rights and to pursuing justice at home and abroad.
While this document does not focus on accountability for human rights abuses by US officials, Human Rights Watch has long urged that criminal investigations be undertaken of senior US officials implicated for their involvement in torture and other war crimes. There are a number of statutes including the War Crimes Act of 1996 (18 USC § 2441), as well as the extraterritorial torture statute (18 USC § 2340), under which prosecutions could be brought. Human Rights Watch has made a range of recommendations to ensure accountability for abuses committed as part of the Bush administration's counterterrorism practices in Fighting Terrorism Fairly and Effectively: Recommendations for President-elect Barack Obama, a Human Rights Watch briefing paper issued in November 2008.
