23 May New Trends in International Justice
[Richard Dicker, formerly director of the Human Rights Watch International Justice Program, is now a senior adviser with the organization and teaches at Columbia and UCLA law schools. Alina Pucko, a German lawyer, is a candidate for a Masters of Law degree at Columbia Law School.]
With Russia’s invasion of Ukraine and revelations of apparent war crimes and possible crimes against humanity, attention has turned in an unprecedented way to criminal accountability as a necessary response to the brutal international crimes occurring there. The visible expression of this accountability surge is evident in the daily headlines and takes familiar forms. The Office of the Prosecutor of the International Criminal Court (ICC), at the unprecedented request of 42 of the Court’s member states, launched an investigation in Ukraine less than a week after Russia’s invasion began. In a first time-ever move, on April 25 the ICC prosecutor joined an agreement between the national authorities of Lithuania, Poland and Ukraine signed in late March to set up a Joint Investigative Team (JIT) to accelerate the exchange of information on serious crimes in Ukraine. On March 4, the United Nations Human Rights Center created a Commission of Inquiry for Ukraine.
But even before the significant Ukraine-related justice surge began, there had been a much less publicly known activation of newer accountability tools that have gained notable traction in recent years. Behind this trend lies the paralysis on accountability for serious crimes at the UN Security Council. This has been accelerated by the intensifying geopolitical division among its five permanent members. The blockage has meant near total impunity to date for grave crimes in Syria, Myanmar, Yemen and South Sudan, to name only a few countries where the civilians have been victimized without constraint. The obstruction is rooted in the wanton use by Russia, China, and the US, all permanent Council members, of their veto power to protect themselves and shield their allies. The US had honed this to a regular practice in its decades long veto of resolutions condemning Israeli violence in the Occupied Palestine Territories. More recently, deeply committed rule-of-law supporting states had become acutely frustrated by Russia’s repeated use of the veto on Syria. This prevented the referral of Syria to the ICC in May 2014 as well as the adoption of numerous resolutions calling for cease fires and delivery of humanitarian aid. On Myanmar, China’s threatened veto blocked not only a referral of Myanmar to the ICC, but even Security Council debate over an arms embargo and sanctions following the upsurge of the ethnic cleansing campaign there in August 2017. For Myanmar this has left the ICC, intended to be the centerpiece of a “system” of international justice, restricted to the crimes against humanity of deportation and persecution there as the impact of those crimes stretch into the territory of an ICC party, Bangladesh. Despite the apocalyptic devastation, the court has no mandate whatsoever over crimes that have ravaged Syria since 2011. For Palestine, in March 2021, following an ICC judicial ruling confirming the court’s territorial authority over the occupied territories of Gaza, the West Bank, and East Jerusalem, the Prosecutor initiated an investigation of crimes committed since June 2014.
The paralysis and resulting frustration among some rule-of-law supporting states has prompted the significant new trends in pursuing accountability for the slaughter of civilians occurring on the increasingly polarized international landscape. Strong rule-of-law supporting states have begun to make innovative use of other available tools, which range from international human rights treaties to domestic laws, to circumvent the Security Council’s obstruction.
For example, in November 2019, the west African state of The Gambia invoked provisions of the Convention on the Prevention and Punishment of the Crime of Genocide to litigate responsibility for the assault against the Rohingya at the International Court of Justice (ICJ).
Following on this, in September 2020, the Netherlands, later joined by Canada, decided to invoke responsibility under the Convention against Torture against the Syrian government’s widespread use of torture and other ill-treatment.
This, too, could lead to litigation at the ICJ. Both these international human rights treaties are being put to effective use to obtain ICJ findings of state responsibility for human rights violations–in contrast to individual criminal acts–by Syria and Myanmar. Until now, states that are “outsiders” to a conflict have rarely attempted this use of the ICJ.
Driven by the same Security Council-spawned frustration, for the first time ever a majority of UN member states worked outside the council to establish unprecedented investigative mechanisms to advance individual criminal accountability in Syria and Myanmar. In December 2016, just a few weeks after Russia’s veto of a Security Council resolution that could have relieved the dreadful conditions in the besieged Syrian city of Aleppo, the UN General Assembly voted to create the International, Impartial, and Independent Mechanism for Syria (IIIM).
The mechanism was mandated to collect, consolidate, preserve and analyze evidence of crimes by all parties to the armed conflict. While the IIIM lacks prosecutorial powers itself, it collates evidence into case files that could facilitate current and potential future criminal prosecutions before both national and international courts. In August 2019, outraged by its fact-finding mission’s report on abuses in Myanmar and bolstered by the creation of the Syria mechanism, the UN Human Rights Council established the Independent Investigative Mechanism for Myanmar (IIMM) with a mandate similar to that of the IIIM.
Significantly, the Syria mechanism has been a crucial contributor to the third sphere of initiatives for accountability: national prosecutions of international crimes, based on the principle of universal jurisdiction, taking place in several predominantly European countries. While universal jurisdiction investigations and prosecutions occurred previously, their numbers are now increasing significantly, and so far, these domestic proceedings have formed the leading edge of criminal accountability for crimes in Syria. With a growing number of cases in Germany, domestic universal jurisdiction laws have been brought to bear with unprecedented focus and inter-state cooperation. The Syria mechanism currently cooperates with investigators from 13 different judicial systems and has received more than 180 requests for assistance. These requests relate to over 150 distinct investigations, of which the mechanism has already supported close to 100.
Similarly, an Argentinian appeals court has approved the opening of an investigation into alleged crimes against humanity against the Roh
ingya by Myanmar’s military junta. The case is grounded in Argentina’s universal jurisdiction law, which has been used to prosecute crimes by individuals associated with the former Spanish regime of Francisco Franco. In addition to universal jurisdiction cases, the work of the Myanmar mechanism is also expected to support the ICC investigation into deportation and persecution as crimes against humanity committed by junta members. Currently, the world is reacting to brutal international crimes being committed in Ukraine. These horrors have spurred the activation of the existing means of justice with unprecedented speed. At the same time, longstanding frustration, born of anger at the frequent use of the Security Council veto, has created new avenues for accountability in other situations. Given the gravity and scope of the underlying offenses, these different pathways can’t provide justice on the scale of what is needed, but the use of these novel measures are important cornerstones for the future, especially in a world deeply divided on the very recognition of the rule of law. These recent measures need to be recognized for what they are and what they are not: valuable tools in a larger and more effective justice toolbox.