“The Pursuit of International Criminal Justice: the Case of Darfur,” Remarks by Jonathan Fanton at the MacArthur International Justice Symposium
February 5, 2009 | Speech | Human Rights

It is a great pleasure to come home to Yale for this important conference, and I thank Dean Harold Koh for his warm welcome.

When I spoke to Harold a few weeks ago, he asked me to open my remarks with personal reflections on the road that brought me here. Like charity, justice began for me at home. My father, Dwight Fanton, who is a graduate of the Yale Law School now in his nineties, worked on the prosecution staff for military proceedings at Dachau. He was the Chief Investigator on the case of Joachim Peiper, a leader of the Nazi forces at the Battle of the Bulge. My father documented widespread killing of civilians and other war crimes that led to Peiper’s conviction. His vivid recollection of the pioneering days of international justice fired my imagination as a child.

My long association with Human Rights Watch taught me that crimes against humanity were not an isolated phenomenon. I recall a 1991 trip to Belgrade when Helsinki Watch Director, Jeri Laber, and I forced our way into Milosevic’s outer office. While we did not see him, we gave his senior aide an HRW report documenting in detail Serbia’s war crimes in Croatia, including summary executions of civilians, torture of detainees, and indiscriminate use of force in civilian areas. The Report was acknowledged in a letter from the Deputy Prime Minister. Our meeting was later introduced as evidence in Milosevic’s trial that news of the atrocities was close at hand.

But perhaps the most moving moment for me was visiting a genocide memorial in Gikongoro, Rwanda. There, 5,000 Tutsis turned away from a Catholic church sought refuge in a Catholic boarding school. On one night, in July 1994, almost all were slaughtered. Walking through the dormitories, now stacked with skeletons, was a powerful experience that steeled my determination to deepen MacArthur’s commitment to justice for those who committed these horrific crimes.

MacArthur has a long history with human rights. It’s very first grant in 1978 was to Amnesty International. Since then, we have supported 600 organizations working on the frontlines in 90 countries to expose abuses and strengthen the rule of law. We have a deep interest in helping fashion an integrated system of international justice that includes the International Criminal Court, regional human rights courts and commissions, and special tribunals impaneled by the United Nations. This interest was fostered by our former trustee, and Yale Law School professor, Drew Days.

We see the ICC as the centerpiece of this emerging system. It has been a focus of our grantmaking. We helped bring NGO representatives from the Global South to Rome to participate in the drafting process of the ICC. Later we supported the Coalition for the International Criminal Court – a group of hundreds of NGOs that helped secure the requisite 60 ratifications faster than anyone expected. Following on, we provided funds to plan the Court and to HRW and others to gather evidence helpful to the first cases.

To broaden the Court’s support, MacArthur has given grants for ICC moot court competitions at the China University of Political Science and Law, and to DePaul University Law School for outreach in the Arab world on implementing the Rome Statute. To build understanding of the Court in situation countries, we funded The Ugandan Coalition for the ICC and programming by the Interactive Radio for Justice project in Congo. To understand victims’ concerns about justice and peace, we underwrote public surveys in Congo and Uganda by the Berkeley Human Rights Center and the International Center for Transitional Justice. We have supported REDRESS and the International Federation for Human Rights to help witnesses and victims participate fully in the Court’s proceedings.

To celebrate MacArthur’s 30th anniversary, we established the MacArthur Award for International Justice. Last March, in New York, we honored Kofi Annan – a tribute to his role in establishing the ICC and encouraging the Responsibility to Protect. His stirring acceptance speech sharpened our resolve to build a system that moves the world from an era of impunity to an age of accountability. Later this spring, the second Award will be conferred on Richard Goldstone. His work as Chief Prosecutor of the UN Tribunals for the former Yugoslavia and for Rwanda gave moral authority and legal credibility to those bodies, and helped speed the establishment of the International Criminal Court.

The Awards are the centerpiece of a year-long discussion of international justice, comprising four regional convocations.

We began in April with a conference at DePaul University to assess the progress and prospects of the International Criminal Court. In October, the Washington College of Law convened a discussion on the future of regional courts and commissions, with special attention to the Inter American and African courts. And later this year, an event at the Berkeley Human Rights Center will explore how witnesses and victims participate in international courts and tribunals.

Darfur is indeed a test case of whether the international community will follow through on commitments it has made. And the Yale Law School is just the right place to continue our assessment of the progress and challenges of the emerging system of international justice.

The Lowenstein International Human Rights Clinic, the Schell Center for Human Rights Law, the Robert Bernstein Human Rights Symposia, the Kirby Simon Human Rights Fellowships and more advance scholarship in the field, engage the public in lively debate, and offer students internship opportunities.

Your exceptional faculty members such as Harold, Jim Silk, Mirjan Damaska, Michael Reisman, Lea Brilmayer, and Paul Kahn stand out. Practitioners like Christine Chung bring their deep experience of justice in action. And you are enriched by the compassionate vision of Ben Kiernan at the Genocide Studies Project (whose research into the killing fields of Cambodia I used to prepare for a trip there last year).

Yale Law School, MacArthur, and thousands of organizations around the world, are part of a groundswell in history, a movement to demand accountability before the law for crimes that are an affront to our shared humanity. MacArthur is heartened by the success of our collective efforts. The continuing growth of the European and Inter-American Human Rights Courts, a new court for Africa, the beginnings of human rights institutions for Asia, the swift ratification of the Rome Statue and birth of the ICC are concrete achievements. The decisions of these bodies are improving jurisprudence and judicial decisions in national courts, and, we hope, will deter future gross human rights abuses.

The list of those called to account is growing: Slobodan Milošević of Serbia, the first sitting head of state ever indicted Jean Kambanda and Theoneste Bagosora of Rwanda convicted; Radovan Karadžić, Charles Taylor of Liberia, and Thomas Lubanga Dyilo of the UPF (Union de patriots congolais) on trial, and, Jean Pierre Bemba of Congo’s MLC arrested, warrants issued for Joseph Kony of the LRA.

But three names in particular remind us of the challenge of achieving justice: Ahmad Mohammad Harun, Ali Muhammad Al Abd-Al-Raman (Ali Kushayb), and Omar al-Bashir. In May 2007, the ICC issued warrants of arrest for Sudan’s Minister of State for the Interior and the janjaweed leader. In July of last year, a careful and courageous Chief Prosecutor filed ten charges of war crimes against Sudan's President: three counts of genocide, five of crimes against humanity, and two of murder.

Each of these men is alleged to have been complicit in the widespread and serious crimes connected to the ongoing genocide in Darfur. Their actions, their continuing impunity, and the atrocities they set in motion, are central to our deliberations together as we ask: How can the suffering best be ended? How can perpetrators be brought to justice? What role can international institutions play in the resolution of the crisis? And how can we ensure that similar situations are averted in the future?

The dimensions of the anguish in Darfur are chilling: since 2003, 300,000 or more killed directly, 2.7 million displaced.1 Each number bears a face — a father torn from his family, a mother unable to care for her children, a young life brutally ended, a society and way of life destroyed, perhaps forever. Rape, torture, disease, and deprivation compound the horrors.

And yet the world has mounted at best a half-hearted intervention. Despite appeals from Secretary-General Ban Ki-moon, Unamid (the AU-UN force) is still woefully under-equipped. After 4 years, only 60 percent of the 26,000 promised troops have been deployed — in an area the size of France.2

In 2005, the international community committed itself to the Responsibility to Protect, the principle that, if states fail to protect their citizens against gross human rights abuses or genocide, that responsibility shifts to the international community. MacArthur is proud to have supported the International Commission on Intervention and State Sovereignty from which this new norm emerged.

But the response to Darfur leads us to question whether R2P is any more than a noble aspiration. The condemnation of al-Bashir’s possible arrest warrant, the protection of Sudan by a few leading members of the Security Council, the threat to invoke Article 16 which would suspend the ICC proceedings, the reluctance to commit troops and materiel are discouraging.

There is no question that difficult, seemingly intractable, issues are in play — can the ends of justice and the protection of civilians be harmonized? Can a negotiated settlement be achieved while a sitting president faces the threat of prosecution? How can the rights and interests of victims be defended in any peace deal? How best to allay concerns about sovereignty and open the way to concerted international action?

Yet if the world is to find a way forward, Darfur is a crucial test case. The performance and effectiveness of the Security Council, the UN and its agencies, and the ICC will set precedents and benchmarks that will cast a long shadow. A successful prosecution in the Darfur cases will send the message to would-be perpetrators: there is no place to hide.

Tomorrow’s discussion will tackle the tough questions that must be resolved if the international community is to fulfill its responsibility to prevent, protect, and rebuild. All of which rest on accountability.

The tools exist to bring those like Harun, Kushayb, and al-Bashir to justice. The challenge is to put them to work. Conferences like this illuminate the obstacles, confront the philosophical tensions like peace and justice, and galvanize our collective determination to do more to get the job done.

MacArthur is privileged to support the cause of international justice and will stay the course until the ICC is firmly established and other elements of the nascent system come together.

1 Figures from a UN News Service report of 21 September 2006. The Centre for Research on the Epidemiology of Disasters (CRED) in Louvain established lower figures (up to 200,000 dead) in 2003.

2 As of December 31, 2008, 12,374 UNAMID personnel were in place across Darfur, 63 percent of the 19,555 military personnel authorized by the Security Council (UN News Centre Report).

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