Remarks by MacArthur’s President at Northwestern University’s Atrocity Crimes Litigation Conference
January 29, 2009 | Speech | Human Rights

It is a great pleasure for me to join you at this important conference. Thank you, Ambassador Scheffer, for your kind introduction.

We meet at a significant time for human rights and justice around the world. For decades, often in seemingly hopeless circumstances, courageous men and women stood up for accountability, the principle that human rights are basic and non-negotiable, and the need for a system to hold accountable those who commit unspeakable atrocities.

Today, we have a network of human rights organizations that spans the globe, an emerging system of international justice with the ICC as its cornerstone, regional courts and human rights commissions whose influence is growing, and a commitment from the United Nations to the Responsibility to Protect. The era of impunity is coming to an end.

Nowhere is this new era more evident than in the work of the international and hybrid criminal tribunals. Consider these developments: senior members of the Khmer Rouge facing justice in Cambodia for the “killing fields,” Jean Pierre Bemba of Congo’s MLC arrested, Radovan Karadžić in custody, Charles Taylor on trial in The Hague, Theoneste Bagosora of Rwanda convicted, Omar al-Bashir threatened with prosecution.

The reach of international law is growing longer, its influence more pervasive, its jurisprudence settling into national systems and the common wisdom.

Many of you have been at the forefront of this effort — Hassan Jallow in the Rwanda Tribunal, Stephen Rapp in the Special Court for Sierra Leone, Robert Petit in the Extraordinary Chamber of the Courts of Cambodia, Norman Farrell in the International Criminal Tribunal for the former Yugoslavia, and more. MacArthur applauds your leadership.

But the work of international justice involves diplomats, advocates, philanthropies such as MacArthur, and of course scholars, universities, and law schools.

Few are as distinguished as Northwestern, with its wide range of courses in international law, its pioneering degree in International Human Rights Law, and its Center for International Human Rights.

Faculty members, such as Sandra Babcock litigating on the death penalty and the rights of the detained, Bridget Arimond pressing cases under the Alien Tort Claims Act, and Steve Sawyer teaching international law in innovative ways, stand out. And David Scheffer, who did so much to build the international and hybrid tribunals of the 1990’s, continues to have world-wide influence as he focuses research on the prosecution of atrocity crimes and associated jurisprudence. It an honor to be here.

MacArthur has played a role. Since our first grant, to Amnesty International in 1978, the Foundation has invested $300 million in 600 organizations that advance human rights in 90 countries around the world and work toward an international system of justice.

We have supported global institutions, such as Human Rights Watch and INTERIGHTS, but also small local groups, such as Tlachinollan in Mexico, Public Verdict in Moscow, and the Legal Defence and Assistance Project in Nigeria, that work on the frontlines against discrimination, police abuse, or lack of due process.

Grantees such as Access to Justice in Nigeria, the Blacksoil Center for the Protection of Media Rights in Russia, and Pro Juarez in Mexico prepare cases for regional courts, setting important precedents and winning compensatoin for victims.

And at the center of an emerging global justice system is the ICC. I know that David Scheffer, who signed the Rome Statute on behalf of the United States in 2000, shares our view of the Court’s importance and looks forward to the day when America honors its commitment.

MacArthur helped bring NGO representatives from the Global South to Rome to participate in the drafting process of the ICC Treaty. Later we supported the Coalition for the International Criminal Court – a group of hundreds of NGOs that offered critical support for the ratification of the treaty. We provided funds to plan the Court and to gather evidence helpful to the first cases. And we continue to underwrite organizations that encourage participation in the Court and awareness of its work, for example the Ugandan Coalition for the ICC, Avocats Sans Frontiers, and the International Center for Transitional Justice.

We assisted in funding the 2001 International Commission on Intervention and State Sovereignty that articulated the Responsibility to Protect, and now help the International Crisis Group and others promote understanding and support for R2P around the world.

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.

You are the pioneers, present at the creation of institutions and jurisprudence that are changing the landscape of accountability. Reading over David Scheffer’s memorandum on “lines of inquiry” for this conference educated me on how daunting a challenge you have faced. Building a fair and effective system without the safe guide of inherited structures and settled precedent, harmonizing disparate legal traditions and balancing them with international law, training personnel from national systems, and more.

The world is fortunate that people of your intelligence, integrity, and imagination have taken leadership.

MacArthur is glad to join with Baker and MacKenzie in supporting this conference, which will give close review of the body of law generated by the criminal tribunals last year.

We have sponsored several conferences to help build coherence and cooperation within this developing system of international law. For example, in 2008, MacArthur supported three gatherings: At Wilton Park, jurists, human rights advocates, academics, government officials and donors met to reflect on the performance of international criminal tribunals over the last fifteen years and what can be learned from them. In Abuja, Nigeria, we convened representatives of regional courts and commissions, governments, civil society groups, and scholars to discuss the political context for effective justice, the role of strong national justice systems, how the tribunals and ICC can build local capacity. And we helped with a conference in Arusha, organized by Prosecutor Jallow, that brought together prosecutors of the ad hoc tribunals, national prosecuting authorities, and civil society to ensure that there would be no gap in the struggle against impunity as the international tribunals near the end of their mandate.

Those of us who attended the Kofi Annan award in New York looked out at our overflow audience and felt the power and potential of international justice. And we came away determined to bring the essential elements closer together.

At Luis Moreno Ocampo’s suggestion, MacArthur is helping organize a conference this fall to explore how the ICC, the UN human rights organs, regional courts and commissions, and civil society can work together. The Prosecutor will present his three-year strategic plan and others will be asked to share their future plans as well.

In preparation for that occasion, MacArthur has asked the International Center for Transitional Justice to gather representatives of the UN Human Rights bodies and the regional courts and commissions and ASEAN to discuss how to strengthen co-operation.

I firmly believe that ordinary abuses — like discrimination, police torture, abridgement of free expression — accumulate, setting the stage for the worst atrocities. I see the regional courts and commissions as forward defenses against genocide and other crimes against humanity.

Meetings like these help establish the common principles of a coherent international movement. They reaffirm successful strategies and best practices. And they foster the personal and professional bonds that allow colleagues from different cultures and legal traditions to work effectively together.

Our respect for those who have labored to put principle into practice led us to give the second MacArthur Award for International Justice to Richard Goldstone. His meticulous work as Chief Prosecutor of the UN International Criminal 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. In May, we bestow the Award in The Hague and honor those who worked in the ad hoc tribunals with a panel to discuss their achievements, but also lessons learned for the future and questions that remain unresolved.

Among the questions are these:

  • How can arrest warrants from the Tribunals and ICC be enforced? Mladic remains at large, Joseph Kony continues to commit atrocities in Uganda, and Aroun and Ali Kushayb are free in Sudan. How can pressure be maintained on states to fulfill their treaty obligations? The ICC conference held in December 2007 here at Northwestern Law discussed the concept of international marshals to enforce arrests – an important idea worth pursuing.
  • How can the UN itself be made to play a more robust and constructive role? The Security Council is crucial in this regard. It needs to be less of a sounding board and more a source of considered but firm action. Establishing practical ways to facilitate evidence gathering and enforce arrest warrants would be a good point of departure.
  • And how best to phase down those tribunals that are reaching the end of their mandate? Is it better to declare victory and withdraw, or to seek further resources to pursue lesser offenders and help strengthen local justice systems?

The concluding statement from the meeting of the prosecutors organized by Hassan Jallow was clear when it pledged that “together they renew their commitment to actively collaborate with one another to ensure that there are no gaps in the struggle against impunity, that no safe havens remain for suspects of international crimes, and that any work left over from the mandates of the international tribunals is efficiently undertaken by national systems.” The plan of action was concrete and comprehensive, covering topics like incorporation of international crimes in domestic statutes, establishment of a universal framework for extradition, a protocol for protection and support of victims after closure of the tribunals, a mechanism for helping national authorities picking up where the tribunals leave off.

I do not favor a rigid adherence to deadlines for shutting down ad hoc tribunals and believe resources should be available for helping develop processes within national systems that carry on.

  • What shape might domestic hybrid tribunals take, as nation states prepare to mount prosecutions using their own courts? What have we learned from the Sarajevo War Crimes Chamber, for example about the political, legal, and cultural challenges of conducting war crimes trials within a country’s borders? Can these lessons be transferred to Rwanda as national courts take up unfinished cases from the ICTR, or to Uganda as it considers trials for mid-level LRA suspects? Such experiments, along with adjustments in national laws by states parties to the Rome Statute, are changing the legal landscape for international justice and need to be supported.
  • Finally, can the United States, which has played a formative role in international justice since Nuremberg, find a way to engage with the international justice system and help shape its future? We can hope that the new administration will see that the time is right for a more cooperative stance toward the ICC and support for the InterAmerican human rights system.

These questions have no simple answers. Politics, resources, local cultures and historical sensibilities will all have an influence on how the system evolves.

But I believe we are on the cusp of a mosaic of courts and commissions that together send this powerful message: for those contemplating gross human rights abuses there will be nowhere to hide. Conferences like this one will strengthen the architecture of international justice, make it more coherent, promote cooperation and tackle complicated issues like the relationship of peace and justice.

As you deliberate and examine what has been accomplished this year, MacArthur joins you in affirming that people of good will, expressing that will through civil society and the legal system, can make a difference. Together, we can build a more just, equitable, and accountable world for all.

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