4. Urge the Obama administration to take a more cooperative US approach to the ICC.
Justice for the worst crimes under international law-namely genocide, crimes against humanity, and war crimes-is vital for victims of the crimes wherever they occur and for building peaceful societies based on the rule of law.
Over the past eight years, members of Congress have played an important role in promoting justice for serious international crimes, including pressing for the surrender for trial on war crimes of former Liberian president Charles Taylor, funding international criminal tribunals, and enacting legislation to make certain grave international crimes committed abroad federal offenses. At the same time, while the Bush administration should be credited with promoting justice for grave crimes in certain situations, its ideologically driven policies-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.
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.
The new administration of President Barack Obama and the recently sworn in 111th Congress present a crucial opportunity to ensure a more consistent, comprehensive, and unwavering US commitment to justice for the worst crimes. Below are seven initiatives that we urge Congress to take to realize this important and timely goal.
Recommendations
1. Insist on justice as a key element of strategies to address situations where widespread atrocities are being committed, such as in Darfur.
Human Rights Watch believes that justice for serious crimes is crucial to a sustainable peace, especially in situations devastated by conflict. Justice not only provides victims with redress but mitigates an atmosphere of impunity that can be manipulated by political leaders to cause future violence. While some opponents of accountability seek to portray justice as an obstacle to achieving stability, our experience is that the failure of key governments and international institutions to demand accountability 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 look to members of Congress to consistently emphasize to the administration that the US response to the world's trouble spots should include justice for serious international crimes. It is equally important for members of Congress to take a pro-justice stance in their response to the commission of serious crimes, such as in the course of hearings, press statements, resolutions, and other activities.
2. Adopt a zero tolerance attitude on impunity for mass atrocities committed in Darfur and press the administration to send an unequivocal message to the Sudanese leadership that the United States 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, and in March 2005 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. Members of Congress should repudiate strong-arm tactics by Khartoum and should urge the administration to make clear to President al-Bashir and all those who support him that the United States will not be blackmailed into allowing impunity by threats of violence or swayed by promises of improved behavior by Khartoum.
3. Actively promote justice for northern Uganda and call on the administration to make a priority the apprehension and surrender for trial of Lord's Resistance Army (LRA) leaders wanted for war crimes and crimes against humanity.
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.
Members of Congress should actively promote the need for justice for serious crimes committed by both the LRA and government forces during the northern Uganda conflict and by the LRA more recently in the Great Lakes region. This includes calling on the administration to prioritize apprehension of LRA leaders wanted for war crimes and crimes against humanity. This also includes calling on the administration to coordinate with key regional and international players to develop a viable plan for arrest while minimizing the risks to civilians and avoiding excessive use of force.
4. Urge the Obama administration to take a more cooperative US approach to 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 US 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 believe that a markedly different US policy toward the ICC-namely one that is cooperative and engaged-is needed, and we urge Congress to play an active role in promoting a constructive US relationship with the court. Specifically, we urge members of Congress to support and encourage the administration to provide assistance and cooperation with ICC investigations and prosecutions. As the ICC conducts its first trial of a Congolese militia leader, seeks apprehension of northern Uganda's LRA suspects, and pursues prosecutions for crimes in Darfur, effective support can play a valuable role in strengthening the court's work. Such support should include but is not limited to: sharing relevant information and evidence; facilitating and pressing for the arrest of suspects; and backing appropriate Security Council resolutions on the ICC, such as those referring cases to the court or calling for cooperation with the ICC. Any obstacles to such assistance as provided under the American Servicemembers Protection Act of 2002 should be removed.
In addition, members of Congress should encourage the administration to participate in regular sessions of the ICC's Assembly of States Parties, to participate in the ICC's review conference in a manner that is genuine and respectful of preparatory work that has already taken place, to contribute to the ICC's Trust Fund for Victims, and to withdraw or otherwise reject 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. It will also 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.
5. 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 to address critical work after these courts close their doors-such as ensuring the rights of those convicted and protecting the witnesses who testified-are only in the early stages.
Continued robust US financial and political backing 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 Congress to provide necessary funding and to support a timetable that is both flexible and realistic for these courts to complete their operations. We also urge Congress to consistently press for apprehension of fugitives and for RPF prosecutions and to commit to supporting proper residual mechanisms for these tribunals.
By contrast, the Extraordinary Chambers in the Courts of Cambodia (ECCC) suffers from key deficiencies. The ECCC has been subject to political interference by the Cambodian government, a lack of independence among Cambodian judges and prosecutors, insufficient fact-finding and field investigations, and allegations of serious corruption. The United States should be at the forefront of advocacy with the United Nations, other donors, and the Cambodian government itself in insisting that Cambodians deserve the highest standards of justice for the crimes committed by the Khmer Rouge. In considering future funding of the ECCC, Congress should work with the administration to ensure that key concerns are addressed.
6. 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 Congress to provide funding and political backing to this initiative along with other credible national efforts to prosecute serious crimes.
7. Pass legislation and work with the Department of Justice (DOJ) to ensure that the United States is not a safe haven for human rights violators.
The 110th Congress, building off the strong initiative of the Senate Subcommittee on Human Rights and the Law, took important steps to promote accountability for serious crimes by passing legislation to make genocide and child soldier recruitment prosecutable offenses when committed abroad regardless of whether the alleged perpetrator or victim is a US citizen. Previously, torture was the only serious crime that could be prosecuted in these circumstances. Key loopholes, nevertheless, remain, especially relating to war crimes and crimes against humanity. We, therefore, urge Congress to adopt legislation to ensure that all grave crimes under international law are prosecutable offenses when committed abroad irrespective of the nationality of the perpetrator or the victim.
We also urge Congress to ensure that the Department of Justice has the necessary capacity to prosecute serious crimes committed abroad when appropriate cases arise. In 2008, the 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. Members of Congress should work with the DOJ to assess what obstacles may exist to ensuring more prosecutions, to increase resources, and to promote greater coordination among relevant government agencies as necessary.
