From Immunities to the Afghanistan Decision – Talking International Criminal Justice with Stephen Rapp

I sat down with Stephen Rapp, (formerly Chief of Prosecutions at the ICTR, Prosecutor at the SCSL, and US Ambassador-at-Large for Global Criminal Justice; now a Fellow at the US Holocaust Memorial Museum’s Center for Prevention of Genocide and Oxford University’s Blavatnik School) to talk about some of the burning issues in international criminal justice today. 

There are very clear challenges at the ICC as far the investigation and prosecution of international crimes leading us all to wonder–is the future of international criminal justice domestic?

I think it is both international and domestic though I expect far more prosecutions at the national level both in the territorial states and in those third states that can exercise universal jurisdiction. 

I opened this conversation by referring to “challenges” at the ICC, one of which is the Afghanistan situation.  What are your thoughts on Pre- Trial Chamber II denying the Prosecutor authorisation to open an investigation in Afghanistan?

Do keep in mind that I represented the US government as an Ambassador for 6 years and took the position with the ICC that the US had undertaken domestic accountability processes and that the allegations against Americans did not reach the gravity threshold, so I would not object if the ICC found that cases against US citizens for alleged violations of the Rome Statute in Afghanistan were inadmissible.

However, from a legal standpoint, and no longer speaking as a representative of the US, I think that the basis upon which Pre-Trial Chamber II denied the OTP its application was entirely wrong. First, it is not appropriate for a Pre-Trial Chamber to prevent an investigation based on its view of the “interests of justice”–that determination is the responsibility of the Prosecutor.

Second, the PTC introduced a “feasibility” consideration that will create an incentive for countries to obstruct or to fail in their duty to cooperate.   One can imagine this happening in almost any situation where the suspects are the leaders or persons closely connected to the leaders of national governments.  This decision truly undermined international justice. Quite frankly, I expected the Chamber to grant permission. Regardless of what one might say about gravity and complementarity as to alleged crimes by US actors, there were horrendous crimes committed by the Taliban, to which there has been no justice, and that more than justify the Prosecutor’s application. I hope that the Prosecutor is successful with her Appeal!

Moving on to the upcoming ASP, what are some of the important issues that need to be at the forefront?

I expect the ASP to debate the proposed assessment of the ICC’s (and its various offices) performance during the first 18 years of active operations. This proposal originated in a call earlier this year by four former presidents of the Assembly and was then taken up by members of the Bureau who outlined a way forward and sought public comment. 

In my view, the assessment process needs to be more independent than presently suggested in the Bureau’s outline, and should be led by independent external experts.  It needs to be something more along the lines of Judge Cassese’s 2006 report on the operations of the Special Court for Sierra Leone which was very helpful to me when I became Prosecutor in 2007. I fear the process outlined by the Bureau will take a long time to yield recommendations.  There was hope that this could have been done in time to be discussed by candidates for Prosecutor, so that a successful candidate who supported certain recommendations would have a mandate to press for their implementation once in office. But even if it takes longer, the assessment is very necessary and I hope that it will yield solid recommendations that will then be implemented. 

Of course, the coming elections for the Prosecutor and six judges, and assuring that the strongest candidates will be in the running, will be a major subject of discussion around the ASP.  I think the ASP will also seek to tackle some of the challenges the Court has had including issues of state cooperation with investigations and arrests, the lack of which has made it difficult for the Court to complete its cases. 

What about the never-ending head of state immunity issue?

There remains the possibility of seeking an advisory opinion from the International Court of Justice (ICJ) through a resolution of United Nations General Assembly. I am not sure whether the proponents of an advisory opinion have yet formulated the legal question on immunities that could be presented to the ICJ.   I know that there are several African state parties who want to see the issue resolved in this manner not to mention some legal scholars who have raised issues with the Appeals Judgement. In my view, and contrary to that of my good friend Dapo Akande and others, the Court got it right!

From Nuremberg to the present day, one of the major reasons for states to come together to create a court of international character is so that head of state immunity no longer applies.  Yes, it would apply in the court of a single state, as held by the ICJ in the Arrest Warrant Case in 2002, but as that decision also noted, this immunity can be overcome in a court of international character.   I certainly favour that international courts can indict sitting heads of state as happened at the Special Court for Sierra Leone when Charles Taylor was indicted in March 2003 while he was still the sitting head of state of Liberia.  Of course that was a treaty based court, and it could not have been done by a Sierra Leone national court. The SCSL Appeals Chamber clearly held that the immunity did not apply because it was a court of international character. It is logical and fundamental in the establishment of these institutions (to use Jacksons words) that “those who possess themselves of great power” need to be held to account and without courts being able to prosecute sitting heads of state, that possibility does not exist. 

I know you think the ICC got the immunity question right in the Appeals Judgement  but does that mean you do not support the ICJ Advisory Opinion route? 

I would also like it if people accepted the decision, but I know there are deep concerns about the judges’ analysis so I am not opposed to the critics seeking a 2/3^rd vote in the UN General Assembly so that they can have their “day in court” at the ICJ.  I prefer that issues be resolved legally and in judicial forums instead of states withdrawing from the Rome Statute as seen with the Philippines and Burundi and previous attempts from South Africa and The Gambia. 

Do you think the AU/ African states in favour of this will be able to convince the General Assembly to take it up to the ICJ?

That is a political evaluation and I have not counted heads so I do not know whether they will succeed.  I also expect opposition to this move from human rights and victims’ rights organizations who will put their priority on making the ICC more effective and will argue, “let us not waste time on this.” 

Among states who support the decision, I think that there may be some flexibility in order to avoid a political rupture in the ASP.  They will see advantages to having the issue resolved in a legal forum rather than through political football. I remember the experience several years ago when Kenya was threatening to pull out and the immediate crisis was avoided with an amendment to the rules that was supported by pro-ICC states, but opposed by pro-ICC NGOs.  So we may see an advisory opinion requested out of desire not to create divisions and to ensure that the Court has the broadest membership possible.  

Civil society actors have been an integral part of the international criminal  justice system. This includes supporting the Court, constructively criticising the Court, supporting domestic justice efforts etc. Where can they be proactive in support of international criminal justice at a time like this?

Civil society organisations need to be a part of the independent assessment I mentioned earlier to ensure that states do not use it as an opportunity to curtail the independence of the ICC.  They are important to ensure that the Court will pursue cases without fear or favour. They are important as supportive critics of the ICC who want it to be more effective while some states might wish it to be less effective. An effective ICC is necessary even to strengthen domestic justice.  A key part to mustering the will to investigate and prosecute cases domestically is the perception that there is a strong Court in The Hague that is ready to act if the state does not. This is not “positive complementarity” but rather “persuasive complementarity” – if you do not do it, they will do it for you and it is far better for you to do it at home. If the Court is not effective you lose that. We saw that in a different sense with the ICTR where Rwanda repealed the death penalty and passed a strong transfer law. Positive things happen when people want cases taken out of the international realm to be tried locally. But in this situation it only happened because the ICTR was effective in bringing powerful leaders to account. National justice is not going to work as effectively without an international court of last resort. Of course, the ICC will not be the only court of international character, as I am sure that we will also see hybrid courts in places where the ICC does not have jurisdiction, as is the case with the proposed African Union Hybrid Court for South Sudan.  But a strong and effective ICC is important to build support for justice even in places it cannot legally reach. 

I often talk these days about the “third wave” of international criminal justice. The first began at Nuremberg, the second at the ad hoc tribunals and with the establishment of the ICC, the third is seen in the increased efforts of civil society organisations to document atrocity crimes as they are committed, and in the victim-driven advocacy that made it possible to prosecute former Chadian President Hissène Habré trial in Senegal and Syrian torturers in national courts in Europe.  It is reflected in the support that was mobilised to establish new UN investigatory mechanisms for Syria and Myanmar. Even in these challenging times for human rights and international justice, there are developments that give me hope. All of these new approaches are particularly important when the United Nations Security Council is blocked in sending situations to the ICC. For this third wave to overcome the resistance, we need well-trained investigators, lawyers and civil society actors.  So the work goes on.