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February 22, 2016

On February 10, 2016, the Tom Lantos Human Rights Commission convened a congressional briefing devoted to the topic of advancing accountability for the commission of international crimes in Iraq and Syria. (Video here.) Formed in 2008 by unanimous consent in the House of Representatives, the bipartisan Lantos Commission works to “promote, defend and advocate internationally-recognized human rights norms as enshrined in the Universal Declaration of Human Rights” and other human rights instruments.

The briefing was co-hosted by the Parliamentarians for Global Action (PGA), the American University Washington College of Law’s War Crimes Resource Office (WCRO), the American Bar Association International Criminal Court Project, and the Washington Working Group on the ICC (WICC). Lantos Commission co-chair, Rep. James P. McGovern (D-Mass.), gave opening remarks on the range of atrocities being committed in Syria and Iraq and the need to promote accountability — before the International Criminal Court (ICC) and elsewhere. The panel was moderated by Prof. Susana SáCouto, Director of the WCRO and featured the following panelists:

  • Congresswoman Minou Tavarez Mirabal (Dominican Republic), President of the PGA;
  • Prof. Jane Stromseth of Georgetown Law Center and former Deputy to the Ambassador at Large for War Crimes Issues in the US Department of State; and
  • Deputy Prosecutor of the ICC James Stewart.

The briefing touched upon a number of key themes, proposals, and initiatives, including:

Integrating Accountability into Counter-Terrorism Efforts: In her opening remarks, Mirabal stressed the importance of integrating accountability into any campaign to prevent and counter violent extremism (P/CVE) and announced the launch of a new PGA P/CVE campaign in partnership with its member Parliamentarians in the Middle East. She urged states to harmonize the promotion of justice with other responses to Daesh’s horrific brand of violence and totalitarianism.

Promoting Domestic Accountability in the Absence of an International Forum: Stromseth emphasized the value of pursuing justice and accountability now, notwithstanding that the conflict remains underway. To do so enables the international community to stand in solidarity with the victims, to make clear to perpetrators that these are crimes of concern to the international community as a whole, and to lay an essential foundation for a more just and inclusive peace. Although the ICC is largely (but not entirely) foreclosed from asserting jurisdiction at the moment, Stromseth drew attention to a number of domestic accountability efforts.

Most notably, ISIS member Umm Sayyaf — the widow of Daesh leader Abu Sayyaf, who was killed in a May 2015 raid by US Special Forces in Iraq — has been charged in Iraq (by the Kurdish Regional Government) with holding Yezidi women and girls in sexual slavery. The United States Department of Justice has also announced the initiation of domestic charges against Sayyaf for her involvement in the conspiracy that resulted in the detention, rape, and death of US aid worker Kayla Mueller. The FBI affidavit underlying the charges indicates that Sayyaf was advised of, and waived, her Miranda rights. She apparently admitted to many of the material allegations against her, including her role in maintaining the custody of Kayla and other young women on behalf of ISIL in conditions amounting to “slavery.” Several Yezidi women who had been detained with her escaped and provided testimony to the FBI about the terrible circumstances of their own and Kayla’s captivity. Sayyaf will be charged with conspiracy to provide material support to a designated Foreign Terrorist Organization (FTO). In May 2014, ISIL (a.k.a., ISIS and Daesh) was added to the FTO list as an “alias” of al-Qaeda in Iraq, which had been on the list since 2004. Kayla, who is profiled here, was captured in August 2013 and was believed to be the last US hostage. It appears that she was killed in a Royal Jordanian Air Force strike near Raqqa, Syria, in February 2015.

Interestingly, the US prosecution is not apparently being led by the DOJ’s Human Rights and Special Prosecutions Unit, which is normally dedicated to investigating and prosecuting human rights and international crimes. Indeed, query why Sayyaf is only being charged with conspiracy to provide material support to terrorism when this would be a perfect case for activating the United States’ still-dormant war crimes statute — which vests jurisdiction over war crimes committed against US citizens. This statute (as I’ve discussed previously) allows for the domestic prosecution of certain common Article 3 violations (the one law-of-war treaty provision that is applicable to events in Syria/Iraq, as explained here), many of which are implicated in the Mueller case, including: torture, cruel or inhuman treatment, murder, mutilation or maiming, rape, sexual assault or abuse, and taking hostages. Because this statute allows for the exercise of so-called “passive personality jurisdiction”, charges can be brought without the defendant being “present in” the forum, which is required to bring charges under our torture statute.

Given her admissions to the FBI, Sayyaf could also potentially be charged with slavery. Many of the US slavery statutes, however, apply extraterritorially only to US citizen perpetrators or to perpetrators who are “present in” the United States, so such charges may be added if and when Sayyaf is extradited or otherwise brought to the United States. As discussed by Stromseth, the United States has no crimes against humanity statute, a blind spot I wrote about here. As such, for perpetrators who have not committed torture or war crimes, the United States can prosecute only for visa fraud or other immigration violations, but not the underlying substantive offense. In this regard, our European allies are ahead of the United States; Great Britain, for example, has opened an investigation into the death of a British doctor who was tortured to death in an Assad regime prison. Likewise, the French are contemplating a case chronicled in the brutal torture and execution photos smuggled out of the country by a defector, code-named “Caesar.”

Stromseth urged the international community to support efforts like this one in Iraq through capacity building and rule-of-law assistance. Stromseth outlined two key ways that the US government is helping to lay the groundwork for future justice and accountability in the region:

  • The United States and other donors are funding organizations working to rehabilitate survivors of atrocities, particularly women and girls who have escaped sexual slavery, and conducting outreach to victim communities to hear their aspirations for justice. A key organization in this regard is Yazda, which has launched a number of medical, psycho-social, humanitarian, and legal projects in Yezidi communities. They’ve also mapped mass graves in Yezidi territory for evidence preservation.

Avenues for ICC Action: Deputy Prosecutor Stewart emphasized that Daesh is a scourge of global concern and the ICC Chief Prosecutor, Fatou Bensouda, and her staff stand ready to do what they can to assist the international community in addressing it. In particular, he noted that one feature of the ICC is that it can prosecute multi-jurisdictional crimes in a way that national authorities find difficult.

The ICC is limited, however, by its jurisdictional framework and cannot exercise full jurisdiction over crimes committed in Iraq or Syria, because neither state is a party to the ICC Statute, and in May 2014, Russia and China vetoed a draft Security Council resolution (backed by 13 other Council members) that would have referred the situation in Syria to the ICC. If an ICC referral of the situation in Syria and Iraq were forthcoming, Stewart anticipated that the ICC would be able to handle it, although it would require a significant infusion of resources.

Stewart noted that in response to multiple calls for ICC action, Bensouda issued a statement explaining that she has no territorial jurisdiction over Iraq or Syria. That said, Stewart made clear that the OTP is tracking the atrocities being committed in in the region and has explored the reach of the Court’s personal — as opposed to territorial — jurisdiction over events in Syria and Iraq (see our coverage here). The policy they follow in relation to the nationals of ICC parties committing crimes on the territory of non-ICC states is to focus on those most responsible for the worst crimes. This triaging is a necessity in light of current resources and the global reach of the Court.

Given that thousands of foreign fighters from ICC States Parties have joined ISIS (from Jordan, France, Australia, and more), some have likely committed ICC crimes. (The Soufan Group estimated in December 2015 that there were approximately 30,000 foreign fighters in the region, over 5,000 from Western Europe.) However, to date, the leadership of Daesh is primarily made up of individuals from Syria and Iraq. As such, the relevant crime base is likely still too small to justify opening a new preliminary examination — the process by which the OTP determines whether a reasonable basis exists to proceed with a full-scale investigation. That said, while not actively “soliciting new business” given its current work load, Stewart emphasized that the OTP remains open to receiving and sharing information about ISIS perpetrators and crimes and is in regular touch with state authorities that might be inclined to assert jurisdiction over these crimes.

Additional Jurisdiction Over Events in Libya: Stewart reminded the audience that the ICC does have territorial jurisdiction over events in Libya, although the Security Council has done little to support its referral of that situation to the Court. Curiously, Stewart indicated that the OTP is examining whether there is a legal connection between crimes committed in Libya by Daesh actors and the original Security Council referral. Although that resolution was passed following the Gaddafi regime’s violent reaction to the Arab Spring uprising in Libya, its text is open-ended and does not identify any particular class of perpetrator or events. Indeed, the UNSCR takes note of a Human Rights Council resolution establishing a commission of inquiry to investigate “all alleged violations of international human rights law” in Libya and ultimately indicates simply that the Council decided “to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011.” As such, it is unclear why Stewart feels that the OTP must identify a nexus between current crimes committed in Libya, by Daesh and others, and the original referral, although such a nexus could easily be conceptualized. For example, an investigation into certain high profile crimes committed in Libya — such as the beheading of Coptic priests — could lead to the chain of command in Iraq and Syria.

Potential ICC Jurisdiction Over Iraq: David Donat-Cattin, the Secretary General of the PGA, noted from the audience that PGA are working with Iraq to explore the possibility of ratification of the ICC Statute, which would give the ICC prospective jurisdiction over events in Iraq.  (Some crimes, such as enslavement, constitute continuing crimes and so would be actionable along with any crimes committed after ratification). Others have called for Iraq to issue an ad hoc Article 12(3) declaration. This provision of the ICC Statute allows states to accept the jurisdiction of the Court in a more targeted fashion and can render jurisdiction retroactive. So far, Côte d’Ivoire, the Palestinian Authority, and Ukraine have utilized this provision. An Article 12(3) declaration does not automatically trigger an investigation on the part of the OTP; it is still necessary for a state or the Security Council to refer the situation to the Court or for the OTP to decide to initiate an investigation on its own motion, which requires approval of a Pre-Trial Chamber. Donat-Cattin conveyed that with the encouragement of many PGA members from all the main ethnic and religious backgrounds, President Masum of Iraq has apparently indicated his willingness to consider ratification of the ICC Statute — a move that enjoys the support of at least 60 members of the Iraqi Parliament; Prime Minister al-Abadi, however, has indicated that the time is not yet right for such a move.

The Valuable Work of NGOs: Stewart described a project underway to develop procedures and methods-of-work with NGOs to preserve evidence. He acknowledged the need to ensure that NGOs retain their independence; to appear as an arm of the OTP might compromise their work. The OTP is working to diversify their sources of evidence — including from the many contemporaneous video and other postings on the Internet — because they recognize the risk of being solely reliant on vulnerable eye witnesses. He drew attention to the work of the International Bar Association’s (IBA) new app, eyeWitness to Atrocities, which enables users to upload real-time photos and videos to a digital vault in London where they are authenticated and protected from tampering. Physicians for Human Rights (PHR) are also working with medical first responders to enable them to gather information using a forensic toolkit.

ICC Funding: The international community has yet to authorize United Nations funding for the ICC, notwithstanding Article 115, which contemplates such funding with General Assembly approval, particularly for Security Council referrals. Stewart noted that the ICC Chief Prosecutors have not become “fundraisers” in the way that the Chief Prosecutors from other ad hoc tribunals have had to do in order to raise operating funds from voluntary contributions. This, he noted, required an inordinate amount of time and was an enormous distraction from investigations. The ICC can also accept voluntary contributions pursuant to Article 116 of its Statute, although this possibility has not born much fruit. A consortium of states could use Article 116, however, to enable greater resources to go to the Court for particular cases, and the Court is in a position to accept “earmarked” donations.

There are statutory restrictions in the United States that bar direct funding to the Court, but as noted by Prof. Stromseth, it may be possible for the United States to fund the Trust Fund for Victims, which accepts voluntary contributions for its assistance and reparations mandates and maintains a budget that is entirely separate from the Court. It has been noted that the ongoing ICC investigations and prosecutions now enjoy bipartisan support in the US Congress, which could potentially enable funding for particular cases. This is reflected in part in the passage of amendments to the War Crimes Rewards Program, which allow the United States to pay rewards for information leading to the arrest, capture, or conviction of individuals indicted by the ICC and other international or hybrid courts. Presumably, if Congress is willing to pay rewards for the capture of individuals indicted by the ICC, it might also be interested in helping to ensure that the OTP has the resources it needs to undertake a comprehensive investigation and prosecution. Stromseth also drew attention to the fact that although not a state party, the United States supports the Court in a number of ways on a case-by-case basis, such as by facilitating the transfer of suspects Bosco Ntaganda and Dominic Ongwen, the Number 2 in the Lord’s Resistance Army (LRA), to the Hague.

Complementarity and Hybrid Tribunals: Stewart emphasized that the ICC’s jurisdiction is complementary to national efforts. There have been proposals for the development of regional criminal courts, including for Syria. Although the ICC Statute does not contemplate complementarity with respect to regional or other hybrid tribunals, Stewart anticipated that the OTP would not intervene in genuine efforts at accountability even if not strictly premised upon the exercise of national jurisdiction. However, he did make mention of the proposal to build a criminal chamber within the African Court of Human and People’s Rights, which would confer immunity on heads of state and other government officials (an initiative and legal anomaly I’ve discussed before). Stewart made clear that if the regional entity could not legally prosecute a senior government official accused of the commission of international crimes due to this immunity provision, the ICC would not be willing to stay its hand pursuant to the principle of complementarity.

Stromseth noted that in many situations, hybrid courts can be quite useful, particularly if they are established closer to the events in question for outreach and other purposes and if they can leave behind greater domestic capacity. (I’ve written about potential models for hybrid justice here.) She noted the move to establish such a court in the Central African Republic (CAR), which will be complementary to the ICC and will fill the impunity gap between domestic courts and the ICC. Such a hybrid tribunal, however, requires a certain degree of stability in the country at issue, which means that any hybrid tribunal dedicated to Iraq and Syria would have to be established extraterritorially for now.

Attacks on Journalists: Finally, a member of the audience drew attention to the prevalence of deliberate attacks on journalists in the region (93 have been confirmed killed in retaliation for, or as a result of, their work in Syria according to the Committee to Protect Journalists (CPJ)) — one of the many terrible features of the conflict. (See my prior coverage on the war crime of attacking journalists.) Stewart noted that journalists enjoy the same protection as civilians under international law. Today, February 22, 2016, marks the three-year anniversary of A Day Without News? campaign, organized by the CPJ and Reporters without Borders to call attention to the risk faced by journalists covering the war in Syria. It is also the four-year anniversary of the death of US journalist Maria Colvin, deemed one of the best war correspondents in action, and several of her colleagues when the Assad regime attacked a media center in Baba Amr district of rebel-held Homs.

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