Let me begin by welcoming you today and by recognizing the Chicago Humanities Festival for devoting a session of its annual program to the ICC and the emerging international justice system and some of the challenges ahead. Let me also thank the Loyola University Chicago School of Law for hosting this panel.
I want to thank Lydia Lazar for inviting me to open this panel on a topic I feel deeply about. Lydia is part of a thriving human rights community in Chicago, which includes robust human rights programs at DePaul University, the University of Chicago, Northwestern University, and the Chicago-Kent College of Law; Chicago's chapters of Human Rights Watch and Amnesty International; and the Heartland Alliance.
Before our panelists speak, Lydia has asked me to say a few words about the ICC and where it fits within the broader system of international justice that has been evolving since the end of the Second World War.
I come to this topic from 22 years of service on the Human Rights Watch Board, six years as Chair, but also informed by the MacArthur Foundation's program on Human Rights and International Justice. MacArthur's very first grant in 1978 was to Amnesty International, since then we have invested about $150 million in the area of human rights: supporting 25 major international groups that form the infrastructure for the field; assisting 113 local groups in three countries struggling to find a democratic path – Russia, Nigeria and Mexico; and helping build a system of international justice with the International Criminal Court at the center.
I am optimistic about the future of international justice. There is a robust civil society movement for human rights anchored by international groups like HRW, the International Crisis Group, and Amnesty International. They reinforce and draw upon the work of over 26,000 local groups around the world.
These non-governmental organizations have documented the gap between the reality on the ground and the promise of universal human rights articulated in the charter documents put in place over the past half century: the Universal Declaration of Human Rights and the Genocide Conventions of 1948; the 1966 International Covenant on Civil and Political Rights; the Convention Against Torture, signed in 1975; and others. Together, these instruments create the expectation that human rights will be respected. And they establish the legal basis for international action.
Although I am not an expert on international law, I sense that the world is at an important historical moment with an opportunity to forge an integrated system of international criminal justice. I stress "integrated" because there are multiple parts with traditional forms of justice, national courts, and regional courts and commissions complementing the work of the International Criminal Court.
A decade ago, the genocide in Rwanda and the ethnic cleansing in Bosnia shocked the world. Special UN tribunals to deal with the perpetrators are still underway. But the creation of after-the-fact tribunals does not send a definite message to those who commit gross human rights abuses that in the future they will be held accountable. The new International Criminal Court does.
The Court has jurisdiction over the worst human rights abuses committed after July 1, 2002 – genocide, war crimes, and crimes against humanity – if national justice systems fail to act. It is the first permanent, treaty-based, criminal court with international jurisdiction, established to promote the rule of law and to ensure that individuals who commit the gravest crimes against humanity are punished.
Already, countries around the world are reforming their own laws and bringing them into compliance with international standards. Thirty-nine member nations – as well as some countries that have not even ratified the Rome Treaty -- have modified their domestic criminal codes to include crimes defined under the ICC statute.
The Court began operation in April 2002 and is now investigating its first cases: the atrocities in Northern Uganda committed by the Lord’s Resistance Army and systematic acts of murder and mutilation by warring groups in the Democratic Republic of Congo. The conflict in Darfur has been referred to the ICC by the U.N. Security Council, bringing a third important case to the Court’s chambers.
The ICC issued its first indictments last year. They concern Uganda's Joseph Kony and four of his key subordinates in the LRA. The court arrested its first suspect in February: Thomas Lubanga Dyilo [dill – oh] is charged with kidnapping children under 15 and using them as child soldiers in Congo's civil war.
The ICC is sometimes confused with the ad hoc tribunals put in place before it was created. The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have indicted over 200 individuals and convicted 67. This includes leaders like the former Prime Minister of Rwanda, and numerous political and military leaders from the Former Yugoslavia. The ICTY also indicted the first sitting head of state, Slobodan Milosevic.
The Special Tribunal in Sierra Leone, now sitting in The Hague, is trying Liberian strongman Charles Taylor. The African Union recently recommended that former Chadian dictator, Hissene Habre, be tried in Senegal under the principle of universal jurisdiction for human rights crimes committed during his military rule.
Taken together there is a powerful signal in the making: impunity for gross human rights abusers is coming to an end. In time, we can hope the prospect of justice will have a deterrent effect.
When we speak of a system of international justice, we are talking about more than the ICC. There are regional human rights courts and commissions for Europe, Latin America, and now developing in Africa. Although these are not criminal courts per se, they allow individuals to hold governments accountable for violations of human rights. So they complement the ICC in creating an international human rights system with enforcement authority. Taken together, these courts have over 10,000 cases under consideration, ranging from property rights to disappearances and police abuse.
The hope, of course, is that regional human rights courts and criminal tribunals will invigorate national judicial systems. There is some evidence of that taking place: Pinochet is now being tried in Chile for crimes under his rule; Alberto Fujimori has been indicted in a Peruvian court; and the Special Court for Sierra Leone worked with Dutch authorities to convict a Dutch citizen, in a Dutch court, for arms trafficking with the Taylor regime.
And as we think about the potential of an integrated system of international justice, we should not ignore traditional forms of justice and reconciliation that are at work in places like Rwanda and under consideration in Northern Uganda. In Rwanda, the Gacaca process – essentially a village town hall meeting hearing confessions –which started in 2005, has dealt with approximately 7,000 cases in the first 9 months. Thousands more will follow.
So the world has come a long way since World War II. The treaty architecture to protect human rights is in place; a new norm articulates the international community’s responsibility to intervene; a robust network of NGOs monitors the performance of states in abiding by international law; and a system of justice is developing that will leave gross human rights abusers nowhere to hide, and, we hope, deter crimes against humanity in the future.
However, for this emerging system of international justice to reach its potential, there are several challenges to overcome:
1. Future cases must address situations outside Africa;
2. The referral of the situation in Darfur must result in some action;
3. For the international justice system to be understood by people who have suffered, the ICC must be active on the ground perhaps with field offices; and
4. The tension between peace and justice in situations like Uganda must be resolved.
Among the unresolved issues that might be addressed in the period ahead is how the Court interacts with the peace process underway in the same situations. Uganda has been a case in point. Reasonable people will differ in their views on how the peace/justice balance can be struck. It would be useful to understand under what circumstances the ICC should step back in order to not damage a peace process or whether the ICC should not take that under consideration instead leaving it for the Security Council to make a political decision to suspend a case through the mechanism provided for in Article 16 of the Rome Statute.
These are just some of the issues facing the international justice system. Others will come up in the remarks of our panelists and the discussion that follows. The panel you will now hear from is made up of:
Daniel Rothenberg, Executive Director of the International Human Rights Law Institute and Director of the Jeanne and Joseph Sullivan Program for Human Rights in the Americas at Depaul University;
Bart Brown, Professor of Law and Co-Director of Program in International and Comparative Law at the Chicago-Kent College of Law; and
Andrew Wachtel, Dean of the Graduate School and director of the Center for International and Comparative Studies at Northwestern University.
Lydia Lazar will introduce and moderate the discussion. She is Assistant Dean for International Law and Policy Development at the Chicago-Kent College of Law.