The Challenges and Opportunities for International Criminal Justice: An Interview with US Ambassador-at-Large for War Crimes, Stephen Rapp

 

Before embarking on his impressive international criminal justice career, United States Ambassador-at-large for War Crimes, Stephen Rapp, was always concerned about the victims of injustice and violent crime, becoming a defence attorney for low-income clients and subsequently United States attorney for the Northern District of Iowa. As a prosecutor, he “tried very hard to be essentially the victims’ representative” and “to try and make the law, to the extent that it could be, protective of people, or something that would to some extent equalise power”. Rapp was particularly concerned with “violent cases” and “people committing horrible crimes against others, including violence against women”. He hoped prosecutions would deter such violence, but also worked to encourage appropriate law enforcement and crime prevention.

Even then, Rapp was fascinated by international criminal justice: “From my own perspective as a lawyer I always admired what had happened at Nuremberg and thought that this was the greatest thing - that those responsible for the Holocaust would be held to account, that the truth would be established and that evidence would be presented of these horrendous violations.” Rapp held on to the ideas that emerged from the Nuremberg example and hoped that he might eventually practice at the international level. However, he points out that apart from the trials in Nuremberg and Tokyo, before the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), “if horrible crimes were committed whether by leaders against their own people or in some kind of civil war or armed conflict, the chance that the high level people would be held to account was almost an impossible dream,” inconceivable until the end of the Cold War.

Once the ICTY and ICTR were established, Rapp became “very excited by what they were doing”. After persistent inquiries, Rapp, his wife - a Professor of African history – and their two teenage children moved to Arusha, Tanzania, to work at the ICTR. This was the beginning of an illustrious prosecutorial career in international criminal justice. Rapp prosecuted the well-known ‘Media case’ at the ICTR (1) and later, as Prosecutor at the Special Court for Sierra Leone (SCSL), his office secured the conviction of Charles Taylor, along with historic first convictions for forced marriage and sexual slavery. (2) 

This experience of working within an international tribunal, the ICTR, as well as an internationalised, or hybrid, court, the SCSL, provided Rapp with personal insights into the advantages and challenges for these different models. At the ICTR, while Arusha with its “high elevation and good weather” was pleasant enough, “one learned very quickly” that the work itself would be “challenged by the fact that it was 500 miles or 800 kilometres from the scene of the crime”, meaning that the court was constantly flying witnesses between Arusha and Kigali. While Rapp supports having a majority of international judges on hybrid courts “to avoid the dangers [of ] victors’ justice or an inability to properly investigate or prosecute without fear or favour’”, he believes that the SCSL, established by agreement between the United Nations and the government, allowed greater communication with the whole community (than in Rwanda), including through employing a high percentage of national staff at the Court. This “opened the possibility of the SCSL’s greatest success, which was its outreach program”:

We had district outreach coordinators, civil society organisations on a monthly basis to discuss what the court was doing; we had court principals traveling the country and appearing in front of crowds of 500 or 1000 people who gathered to ask us well-informed questions about the court and why we chose to prosecute the people we (did). This was even more essential in a country with limited access to media and television. … According to polling, 90 per cent of the public knew what we were doing and 80 per cent of them thought that we were a force for peace and security - and you can’t get that same kind of answer in the Rwanda tribunal or the former Yugoslavia.

Indeed in Rapp’s view, national prosecutions are “the preferable approach, but that’s often very difficult because of weak judicial systems, [or] destroyed judicial systems after the conflict and there are not always governments that emerge that want to see this kind of thing”. In addition, if you can achieve something local “there’s more ownership and ... when the court closes its doors, there are people in that society that worked in the court that have gained skills”. Rapp gives the example of Joseph Kamara, a former SCSL Deputy Prosecutor and now Commissioner of Sierra Leone’s Anti-Corruption Commission, who he suspects “probably has more convictions of senior political people for corruption” than any equivalent agency in Africa. However, Rapp conceded that the success of an international/national hybrid model depends on the willingness of the national government: “In situations where you still have the responsible parties for horrendous crimes in power, they’re not going to sign that kind of agreement” with the international community to establish a hybrid court.

By contrast, Rapp notes that the possibility of an ICC investigation or prosecution may provide the impetus for states to agree to establish national or internationalised structures to prosecute international crimes, if only to block ICC proceedings. Moreover, international courts may also have a wider impact on national judicial systems. Rapp observes that there has been some, albeit limited, positive impact from the transfer of cases to national mechanisms in Rwanda and in the countries of the former Yugoslavia, a form of “positive complementarity”.

Another area where international tribunals have struggled to make headway is in providing reparation to victims. For survivors and families suffering from the impact of crimes of atrocity, financial reparations are frequently insufficient to address the enormity of the harm. Rapp also points out that given ICC awards of reparation are primarily to be paid by perpetrators, “the people who have committed these crimes either no longer have assets or the assets are effectively beyond your ability to find them, even in the case of dictators and others”. He notes also that the ICC’s Trust Fund for Victims, which can supplement reparations, is dependent “on the world’s states to contribute to it”.

However, for Rapp, the most significant challenge for international criminal justice is perhaps quite obvious - the need to prove the case, often in the absence of “linkage evidence”.  He sees this as “the Achilles heel of international justice.” Rapp speaks of the real difficulty of undertaking adequate investigations and mounting sufficient evidence “in the absence of letters, documents, orders,” and effective witness protection programmes. Rapp points to the paradox of the ICC being requested to undertake work in countries “that have practically no capacity of their own, to do what those countries couldn’t do”. The ICC then relies extensively on those states to help with investigations and if this is not forthcoming, “it’s no wonder,” says Rapp “(that) developing cases and prosecutions have been a challenge”. Rapp is emphatic: “International justice is about the business of reaching those authors of these crimes … they’re the ones that need to be held to account if you want to stop (violent) conduct”.

Rapp will soon step down as Ambassador. His successor will continue to support the implementation of American policy which is “to try and get justice as close to the people as possible and to reserve the International Court for the cases that have to go there because there’s no other place for them to go”. He argues that the most useful way for international civil society to support international criminal justice is “to build coalitions with people in the affected states, to enable them to participate to a greater extent and to have their views reflected in what these institutions are doing.” Rapp stresses the importance of working with victims, non-government organisations, governments, and regional organisations and sees the UN Human Rights Council as an ally of increasing importance. He refers to Michael Kirby’s inquiry in North Korea – something that “was unthinkable in the past.” Using an analogy that nods to recent theoretical work embracing ‘legal patchworking’ and plural approaches to international criminal law, (3) Rapp reflects that “it’s all part of trying to fill out this fabric of global justice - understanding that it’s not going to all be at the international level, it might be that it’s at the local level’”.

Yet one suspects that Rapp remains somewhat of a realist at heart. International criminal justice “needs the support of strong states, and that support just doesn’t happen” in all cases - as he knows well. Despite the political barriers to securing US ratification of the Rome Statute, Rapp has worked hard to implement the Obama government’s claim that “preventing mass atrocities is a core national security interest and a core moral responsibility”. However his work on finalising proceedings in Rwanda and the former Yugoslavia has required considerable diplomatic manoeuvring, while his efforts to promote international criminal accountability in Syria have also been enormously challenging. Ultimately, the capacity of international tribunals to prevent atrocities is uneven. Rapp suggests that international criminal justice may need to be applied as a ‘post hoc’ justice that targets all sides of the conflict:

(T)o be frank, when it comes to lots of horrible things that happen in the world - whether it’s Nazi Germany, whether it’s the RUF (forces in Sierra Leone), or the genocide in Rwanda - it was in the end necessary to defeat those individuals through force and then … to have a judicial process that’s fair - and that may also judge those who did the defeating.

 

Stephen Rapp is the United States Ambassador-at-Large for War Crimes and leads the US State Department’s Office of Global Criminal Justice. Prior to this appointment, Ambassador Rapp was Prosecutor at the Special Court for Sierra Leone during the trial of the former President of Liberia, Charles Taylor and a Senior Trial Attorney and Chief Prosecutor at the International Criminal Tribunal for Rwanda. In his role as Ambassador, he travels up to three in every four weeks throughout the world, meeting and negotiating with state representatives, non-government organisations and victims groups to work towards resolving and preventing mass atrocities including genocide, crimes against humanity and war crimes. In May, he delivered a lecture, ‘Achieving justice when courts are not yet able: The challenge of Syria’ as part of the AHRCentre seminar series. Emma Palmer spoke to Ambassador Rapp about contemporary opportunities and challenges for international criminal justice.

 

 



1

Nahimana et al (Media Case), ICTR-99-52, documents available at http://www.unictr.org/en/cases/ictr-99-52 (accessed 21 May 2015).

2

Stephen Rapp’s biography, available at http://www.state.gov/r/pa/ei/biog/129455.htm (accessed 21 May 2015).

3 Eg, Steer, Cassandra, 'Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law' in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (Oxford University Press, 2015).