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Why the U.S. needs the Office of Global Criminal Justice Led by a Senate-Confirmed Ambassador-at-Large

 

The survival of the State Department’s talented Office of Global Criminal Justice (GCJ) is at risk. Since 1997, this small but mighty team led by a Senate-confirmed Ambassador-at-Large has focused like a laser beam on bringing to justice perpetrators of genocide, crimes against humanity, and war crimes. With its leader just instructed to leave, the future of GCJ is deeply uncertain: whether it will survive as a distinct entity, who will lead it, and whether its portfolio and staff may be absorbed into a larger bureau is unclear. As many strong voices, including 30 members of Congress, urge Secretary of State Rex Tillerson not to shutter GCJ (see also here and here), let’s hope he will be open to reconsidering the matter.

Why is closing or demoting the Office of Global Criminal Justice a bad idea? Three reasons stand out. First, the sheer volume of atrocity crimes around the world today requires the informed and effective U.S. leadership provided by GCJ. From the Assad regime’s use of chemical weapons against children in Syria that galvanized President Donald Trump to take military action; to egregious ISIS atrocities against innocents, including sexual slavery of young girls; to forced recruitment of child soldiers, deliberate targeting of civilians, and mass rape in many parts of the world, these horrific crimes cause unspeakable human suffering that demands effective response. Maintaining a dedicated office working to bring perpetrators of these offenses to justice makes clear that impunity is no longer tolerated. Effective enforcement not only brings justice to victims, it also helps encourage compliance with the law designed to protect civilians from attack and combatants from unnecessary suffering. American leadership on these issues also aids in coalition-building with allies and friends, whose support is often critical for success, and provides a crucial foundation for engagement, education, and training of foreign militaries in building partner capacity.

Second, there’s a compelling history of strong bipartisan support for U.S. leadership on justice and accountability for atrocity crimes. Shutting down or demoting GCJ would be an ominous setback to America’s pivotal role since Nuremberg, when U.S. Supreme Court Justice Robert Jackson served as Chief Prosecutor bringing Nazis to justice. For decades, the United States has played a leading role in developing and consolidating international humanitarian law and in establishing tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR), as well as hybrid tribunals in Cambodia and Sierra Leone and elsewhere. Administrations of both parties have supported these tribunals, and the George W. Bush Administration, after initial strong opposition to the International Criminal Court (ICC), ultimately decided that the Court had an important role to play in seeking justice for atrocities in the Sudan. As recently as April 2017, Secretary Tillerson – while visiting a memorial to Italian civilians massacred by the Nazis in 1944 – affirmed that “[w]e rededicate ourselves to holding to account any and all who commit crimes against the innocents anywhere in the world.” A long-standing commitment to accountability for such crimes has been shared by both Democratic and Republican administrations. 

Third, if effectiveness and efficiency are the touchstones of Secretary Tillerson’s reorganization plans, he should hold GCJ up as a model to emulate and celebrate, not to eliminate. GCJ’s efficiency and effectiveness is exceptional – its impact, expertise, and ability to partner flexibly and nimbly with other offices is enhanced by its leanness. Burying GCJ into a much larger bureaucratic structure would undercut its agility and vital inter-agency role. Although there may be many special envoys of various kinds at the State Department, there are only a small number of Senate-confirmed Ambassador-at-Large positions who serve unique cross-cutting and specialized functions across regions that cannot be replicated elsewhere. As one of those unique offices, GCJ’s leadership over two decades, and the bipartisan support it enjoys, serves important U.S. interests, and the Secretary would do well to continue the nearly two-decade tradition of championing an Ambassador-at-Large led office advancing US leadership in bringing perpetrators of mass atrocities to justice.

Indeed, GCJ is the poster child for the kind of strategic thinking, results, and efficiency Secretary Tillerson is seeking. It is rare for such a small, lean governmental office to have accomplished so much across such a wide policy terrain. Its contributions in five areas are most notable.

Supporting and Strengthening Justice Institutions

First, GCJ has helped to build and strengthen the architecture for global criminal justice. Concretely, GCJ and its precursor, the Office of War Crimes Issues (S/WCI) have spearheaded crucial U.S. support to national, international, and mixed or hybrid tribunals in bringing perpetrators of atrocity crimes to justice and increasing access to justice for victims. These include the tribunals mentioned earlier, plus the joint African Union-Senegalese court, the domestically based mixed court in the Central African Republic, among others. By holding major perpetrators of atrocity crimes to account, such as Liberia’s Charles Taylor, Chad’s Hissene Habre, and Cambodia’s Nuon Chea and Khieu Samphan, these courts have helped to counter impunity, conveying clearly that atrocity crimes are offenses for which there is a growing expectation of justice and accountability.

GCJ has also been vital in efforts to ensure that fugitives are located, apprehended, and transferred to appropriate tribunals. In recognition of this crucial objective, Congress expanded the statutory War Crimes Rewards Program, which offers rewards of up to $5 million for information leading to the arrest, transfer, or conviction of designated foreign nationals wanted for atrocity crimes. GCJ leads in managing this program, getting additional fugitives designated and coordinating payment of rewards, where warranted. The program was instrumental in the apprehension of fugitives accused of crimes committed in Rwanda and the former Yugoslavia. GCJ played a central role in making sure that Congolese war lord Bosco Ntaganda and Lord’s Resistance Army commander Dominic Ongwen ended up before the ICC.

Laying the Evidentiary Foundation for Justice

Second, GCJ has played a central role in laying the foundation for future justice processes though effective documentation of atrocity crimes and evidence-gathering. Even in situations, such as Syria, where current options for prosecutions are limited, GJC – and Ambassador-at-Large Stephen Rapp in particular — tirelessly led the U.S. effort to acquire crucial evidence of custodial torture in Assad-regime prisons – engaging with “Caesar”, the forensic photographer and courageous Syrian defector who brought to light the horrific photographs of brutal and systematic torture. Caesar testified before Congress, and GCJ made sure that the FBI had the material it needed to evaluate and authenticate the Caesar photos. This important work has built the foundation for justice and accountability, and contributed to commencement in Spain of a case on behalf of the sister of one of the torture victims.

GCJ has also played a leading role in shining the spotlight on ISIS atrocities. Working together with the Ambassador-at-Large for International Religious Freedom and others, GCJ provided crucial support for Secretary of State John Kerry’s determination in 2016 that ISIS had committed genocide and crimes against humanity against Yazidis, Christians, and others. GCJ has worked tirelessly to develop options for bringing ISIS perpetrators to justice and to provide support and assistance to victims of ISIS atrocities. In this and many other situations, GCJ has encouraged Commissions of Inquiry to gather evidence effectively to make sure this material can be of use in future justice proceedings.

Protecting U.S. Interests while Advancing Accountability

Third, GCJ’s leadership has been vital in navigating the U.S. relationship with the International Criminal Court. GCJ has worked diligently to protect US interests in this admittedly complex terrain. The first Ambassador-at-Large and his diplomatic team helped ensure the primacy of domestic systems of justice as the first line of defense against atrocity crimes through the principle of complementarity in the Rome Statute. U.S. military lawyers worked to ensure that the elements of crimes tracked U.S. understandings. Even in the most difficult days in the U.S.-ICC relationship during the first term of the Bush Administration, the U.S. continued its support for domestic justice processes and hybrid criminal courts to bring perpetrators of atrocity crimes to account. President Bush himself came to appreciate the important role the ICC could play concerning Sudan, and his Administration moderated its approach to the Court in the second term.

During the Obama Administration, GCJ played a crucial role in protecting US interests by ensuring that the crime of aggression amendments would not apply to states that are not parties to the Rome Statute. Moreover, consistent with U.S. law and interests, the Administration provided permissible forms of support on a case by case basis, expressing strong support for each of the ICC’s convictions, including those for forced recruitment of child soldiers, sexual and gender-based crimes, and destruction of historical and religious sites.

The expertise and experience of GCJ is all the more indispensable now concerning the ICC’s preliminary examination in Afghanistan, which includes examination of Taliban crimes as well as allegations of detainee abuse and torture by U.S. nationals. With the ICC Prosecutor expected to issue another annual report by early December 2017, around the time of the next Assembly of States Parties meeting, GCJ’s expertise is crucial in advancing the best possible arguments – including regarding complementarity – to protect U.S. interests.

To be sure, the U.S.-ICC relationship has always been complicated, and Congress has imposed statutory restrictions on U.S. funding and other forms of support to the Court. Looking ahead, navigating the U.S.-ICC relationship in the next few years will be particularly challenging, and GCJ’s expertise and experience will be all the more essential in protecting U.S. interests. Especially important will be safeguarding these interests effectively without undercutting positive impacts of the ICC in building a track record of justice; catalyzing domestic action for justice; empowering civil society justice advocates; and contributing to deterrence and prevention of atrocity crimes.

Combining Justice and Peace

Fourth, GCJ has provided a clear, vital voice to ensure that justice has a seat at the table during peace negotiations. Ensuring some measure of justice for atrocity crimes is increasingly accepted as critical to building an enduring peace, but how concretely to combine justice and peace is often complicated and difficult. GCJ provides an enormous reservoir of knowledge, experience, and wisdom on innovative ways to couple and advance both justice and peace, serving as an indispensable resource to U.S. ambassadors, envoys, and regional bureaus. For example, GCJ experts worked side by side with the U.S. Special Envoy for Sudan and South Sudan providing invaluable assistance as the provisions for a hybrid court and truth commission for South Sudan were negotiated. GCJ experts also provided valued advice to U.S. officials on the innovative justice arrangements in the Colombian Peace Accord, and have offered insight and assistance in many other situations, including Sri Lanka and Guatemala. GCJ has been a much appreciated source of U.S. knowledge in promoting transitional justice in societies emerging from conflict, including through tribunals, truth commissions, and other mechanisms.

Ramping Up Atrocity Prevention

Fifth, GCJ has been a central player in atrocity prevention as part of an essential whole-of-government approach. In setting up the Atrocity Prevention Board in 2012, President Obama stressed that the United States has both a national security interest and a moral responsibility in preventing mass atrocities and genocide. Not only do atrocity crimes cause deep and long-lasting human harm, atrocities can also lead to a cycle of grievance and instability, and can put the United States in the challenging position of facing options, such as military intervention, that are far more costly and difficult than sustained efforts at earlier, structural prevention.

In this domain, GCJ’s expertise in supporting criminal prosecutions contributes to prevention both in real-time and over the longer-term. For example, communicating in real-time crises that atrocity crimes are being documented (and that perpetrators face a risk of punishment) can help to put pressure on these actors to modify their conduct; fundamental rules of international humanitarian law and standards of command responsibility can be stressed both in these crisis situations and in longer-term training and education. Moreover, fair and even-handed prosecutions for atrocity crimes can help reduce pressures for retributive violence, helping to dampen cycles of conflict and contribute to building the rule of law going forward.

In these and many other ways, GCJ has served to advance U.S. interests in justice and accountability over the last twenty years. Further examples are discussed at this conference at Georgetown University (GCJ panel begins at minute 43).

Bottom Line: Empower, Don’t Eliminate, GCJ

Secretary Tillerson would be wise to retain GCJ as a distinctive office and help to identify an appropriate Ambassador-at-Large nominee to lead it. High-level leadership, deep expertise, and agility are the key ingredients to GCJ’s success. Ambassadorial-level leadership gives the United States the clout to speak with stature and authority with foreign governments, international and hybrid tribunals, and justice advocates here and abroad. It ensures that justice for atrocity crimes is given a strong voice within the U.S. government’s high-level decision-making processes.

GCJ’s Ambassadors-at-Large and their deputies across both Republican and Democratic administrations have included former prosecutors, seasoned diplomats, and scholarly experts on bringing perpetrators of atrocity crimes to justice in domestic, hybrid, and international courts. GCJ’s talented staff brings years of on-the-ground experience and deep expertise in building support for effective prosecutions in conflict zones around the world, and in creating long-term stability through post-conflict rule of law building and an effective mix of transitional justice initiatives.

To sum up, the lean and agile GCJ provides catalyzing energy, building synergies and partnerships within the US government to optimally advance justice for atrocity crimes. Instead of folding GCJ into layers of bureaucracy, in which justice too easily will be forgotten or balanced off against other goals, Secretary Tillerson should retain and empower the small but mighty Office of Global Criminal Justice so it can continue to advance long-standing US bipartisan interests in achieving justice for mass atrocities.

 

Image: Getty/Win McNamee

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About the Author

is a Professor of Law at Georgetown University. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice at the U.S. Department of State (2013 to 2015).