U.S. Ambassador-at-large for Global Criminal Justice Beth Van Schaack speaks on U.S. policy on justice and accountability around the world. United States Bureau Chief OLUKOREDE YISHAU was at the briefing organised by the Washington Foreign Press Center. Excerpts:
Global Criminal Justice
My office, which is the Office of Global Criminal Justice, advises various components of the U.S. Government on policies to prevent, mitigate, and respond to atrocities around the world.
To this end, we generally engage in multilateral diplomacy; we build partnerships with like-minded states; we look for ways to strengthen the whole system of international justice; we encourage the adoption of inclusive and comprehensive transitional justice programs and processes in states that are emerging from conflict or authoritarianism; and we deploy a small programming budget in order to build capacity for this work, often with civil society organizations.
As we seek to advance accountability for war crimes, genocide, and crimes against humanity around the world, we are motivated by the recognition that accountability for those most responsible, coupled with an honest assessment of the past, is extremely important to instantiate a durable peace following conflict. The whole field of transitional justice – which embodies a mix of judicial and nonjudicial measures, formal and informal measures, and retributive and restorative justice measures – all provide a set of tools for societies emerging from armed conflict or repression to address legacies of mass violence, authoritarianism, or impunity, to comprehensively rehabilitate survivors and their communities after violence, but also to engage in truth telling, to engage in mechanisms of nonrecurrence and other institutional reforms that will prevent a recurrence of conflict in the future.
By layering and sequencing these various mechanisms, a program of transitional justice can promote accountability, rebuild social cohesion, restore trust in formerly abusive institutions, and prevent the recurrence of such violations. As we’re seeing now in the field more than ever, survivors and their communities are organizing amongst themselves to pursue justice even before conflicts ends. To be effective, we know that any justice mechanism has to be responsive to the needs and preferences of survivors in their communities, particularly those most affected by violence, including women and girls but also ethnic and religious minorities and others who might have been marginalized within societies.
As such, in this work we take pains to ensure survivor-centered and trauma-informed approaches to justice at all times. These measures can promote psychosocial healing, the rehabilitation of survivors and their communities, and also to enable them to pursue their life paths with dignity.
The institutional framework
The last decade has seen incredible innovations in this field. The institutional framework is increasingly decentralized and multipolar. And while the International Criminal Court is an important element of this larger system, there are justice activities happening elsewhere at the domestic and international levels.
In particular, states are taking it upon themselves to adjudicate cases of international crimes in their own courts when they have access – when they can exercise their jurisdiction over those who are responsible. These cases are proceeding under expansive principles of extraterritorial jurisdiction, including universal jurisdiction.
We also see national war crimes units – based in the equivalent of our Department of Justice here in the United States – increasingly coordinating amongst themselves to share evidence, strategies, information, to cooperate around international arrest operations when defendants are within their jurisdictional reach. And states have also expanded their use of sanctions, visa restrictions, and import/export regulations for the benefit of victims and survivors, and to hinder the ability of bad actors to perpetrate, fund, and benefit financially from their criminal conduct.
Nongovernmental organizations, many of them who are funded by the U.S. State Department, have emerged as important players in these proceedings. These organizations, which are often survivor-led, are collecting and evaluating potential evidence in real time, pursuant to international standards, to inform accountability processes. This includes sophisticated open-source investigations that rely on the ability to geolocate photos and other digital artifacts, to scrub social media platforms for actionable information, and to access satellite-based data that had in the past only been available at certain resolutions to particular governments. For example, the Conflict Observatory, which is a collective of open-source investigators funded by the U.S. State Department, is one source of information about the conflicts in Sudan and Ukraine. Likewise, the International Accountability Platform for Belarus, which is supported by over a dozen governments, including the United States, is a consortium of civil society organizations working together to share information about abuses and violations in Belarus.
Civil society actors, youth, human rights defenders, diaspora communities have a stronger role than ever in these justice processes, despite the great risks and difficulties often associated with doing this work. Across the board, we’re seeing continued progress in promoting techniques of documentation, investigation, and evidence preservation that are survivor-centered and trauma-informed. What we’ve seen over the years is that applying these best practices leads not only to better and expansive and more high-quality evidence for accountability purposes, but also allows for investigations to proceed in a responsible manner that mitigates harm to survivors and also minimizes the risk of re-traumatization.
The importance of good documentation cannot be overstated, because it will undergird any justice efforts that might be underway. Furthermore, what we’ve seen is that even if pure accountability can’t be achieved for whatever reason, victims and survivors appreciate seeing naming and shaming of perpetrators, removing privilege of anonymity that perpetrators enjoy, to truth telling and also to the establishment of accurate historical records, particularly when accountability options are limited, where there are efforts at propaganda and misinformation to tell a different narrative, and also to just acknowledge what survivors and their communities have faced. The development of high-quality documentation will counter-efforts by perpetrators to deny the commission of crimes.
Signature engagements of the Biden-Harris administration
So just to highlight a few examples around the world where the Biden-Harris administration is engaged in pursuing justice: In Colombia, a comprehensive Peace Accord in 2016 ended a half century of conflict that was marred by disappearances, forced displacement, and other atrocities and abuses. The accord has finally now given voice to victims and survivors in pursuing truth, justice, and reparations. Colombia is now a model for societies around the world looking for ways to create a comprehensive transitional justice program, which has sequenced and layers different mechanisms, but also implementing a gender-sensitive approach that have enabled the voices of women and girls in all of their diversity to be heard and for the perpetrators of gender-based violence to face accountability.
In October 2022, Secretary Blinken announced that the United States would become the first international accompanier of the Ethnic Chapter of the Peace Accord. This is in recognition of the United States longstanding support for the inclusion of marginalized racial and ethnic communities in Colombia’s peace-building processes. And in May of this year, we were able to announce that to address the legacy of the past, three former military officials would be designated, pursuant to Section 7031(c), for their involvement in gross violations of human rights, but also their efforts to undermine the transitional justice processes underway in Colombia. I was very honored to be in Bogotá to be able to deliver this announcement at the premises of the Special Jurisdiction for Peace.
Turning to situations in Africa, over 10 years after the genocide in Rwanda, we saw men on horses and camels beginning to sweep into non-Arab communities in Darfur to kill, rape, and destroy everything in sight. Now, almost 20 years later, the country is again engrossed in conflict, civilians are trapped in the crossfire, and we are confronting a dangerous déjà vu all over again. We’ve heard appalling reports of sexual violence in Darfur and in Khartoum. Women and girls have reported being assaulted in their homes, kidnapped, held for days. Often these rapes involve multiple perpetrators. And for every rape that we know of, we know that there may be dozens more that are not reported due to shame, stigma, fear of future violence, and the lack of humanitarian services available.
The picture emerging from West Darfur is equally as alarming. Refugees escaping the region have relayed chilling reports of the rapid support services – Rapid Support Forces and allied militia perpetrating conflict-related sexual violence, ethnically based violence against civilians, and attacks on journalists, community leaders, and human rights monitors. This violence serves as an ominous reminder to the horrific events that led the United States to determine in 2004 that a genocide was underway in Darfur.
Of course, there are no easy answers to the atrocities being committed in Sudan, but we do have a few more tools in 2023 than we had 20 years ago. Thanks to the bravery of Sudanese survivors, human rights activists, and journalists, we have compelling testimony about what is happening on the ground in real time. The United States is working to augment civil society efforts at documentation to work – that are working inside and outside of Sudan.
For example, we’ve provided upwards of $3 million to fund human rights documentation programs that are collecting and preserving evidence of abuses throughout Sudan to eventually be fed into justice and accountability processes. While some of these in-person activities have had to be paused given the violence, much of it is still ongoing, and there are teams working together to coordinate this work, including developing and implementing investigation plans into alleged war crimes and crimes against humanity.
Among the U.S. Government-funded projects is the Sudan Conflict Observatory, a remote platform that leverages commercially and publicly available data collection technologies – including digital photos, videos, and other information shared online – to carefully document conflict developments to inform responses, including on the justice front. This includes damage to the civilian infrastructure, the movement of troops, rapid population movements within the civilian population, and possible international crimes. The Sudan Conflict Observatory is committed to sharing this information publicly – a critical aspect of why we have funded this platform. Reports are released publicly on a regular basis as new information is collected, aggregated, and analyzed. All of this can be fed into existing and future accountability mechanisms.
Most importantly, the International Criminal Court has been engaged on Darfur since 2005 when the Security Council referred the matter to the court. The current prosecutor recently testified before the Security Council that his investigation will be expanded to include contemporary violence in Darfur. We welcome the ICC’s investigations and prosecutions, including in the current violence in Darfur, and we are taking steps to bolster the court’s investigations, and particularly to locate and apprehend fugitives.
In Ukraine, the United States and our allies and partners have responded to the death and destruction the full-scale invasion of Ukraine has wrought with an array of accountability initiatives. Most importantly, we’re tracking closely the cases that Ukraine has brought in its own domestic courts, but also before the International Court of Justice and the European Court of Human Rights. In addition, we have seen the opening of investigations in more than a dozen states around the world, working often under the rubric of the Eurojust network within Europe.
And of course, the United States has also funded an additional conflict observatory that is dedicated to documenting the war crimes, crimes against humanity, and other atrocities in Ukraine. Notwithstanding international efforts, including at the International Criminal Court, which are of course central to the quest for justice, the main engine of accountability for the war in Ukraine will be Ukrainian courts themselves.
My office, in partnership with the Ukraine Office of the Prosecutor General, is funding teams of investigators and prosecutors drawn from the world’s war crimes courts to help assist Ukrainian prosecutors and investigators in their efforts to bring cases in Ukrainian courts. This initiative is supported by both the European Union and the United Kingdom and is designed to ensure that the donors are adequately coordinated to be able to provide the best assistance possible to the Ukrainian Office of the Prosecutor General.
We are also trying to ensure the recruitment of the best experts around the world to assist in this challenging but critical work. We are now taking the Atrocity Crimes Advisory Group one step further with the creation of a multinational fund. We invite other states to join us in this effort with contributions, no matter how large or small, in order to ensure the sustainability of the Atrocity Crimes Advisory Group and the ability to support the work in Ukrainian courts.
Elsewhere in Europe, of course the Lukashenka regime in Belarus continues to carry out a brutal three-year crackdown on civil society, members of the democratic opposition, journalists, and ordinary Belarusians who are exercising their human rights and fundamental freedoms and seeking a democratic and fair future. The regime has carried out politically motivated prosecutions against more than 4,000 persons and holds nearly 1500 political prisoners. The United States is committed to promoting accountability for these abuses and violations within Belarus, and we stand with the Belarusian people as they demand respect for their rights and pursue democratic aspirations. Along with 18 other governments, the United States has supported the International Accountability Platform for Belarus, which works to collect and preserve evidence.
Elsewhere in the world, it is equally important for us to keep global attention on the ongoing suffering of the Yezidi people and remember that what happened in 2014 was a genocide, particularly given that 3,000 Yezidi are still missing and survivors are still to this day being found in captivity. The United States determined that ISIS was responsible for genocide against Yezidi Christians and Shia Muslims in areas it controlled. Furthermore, we concluded that ISIS was responsible for crimes against humanity and ethnic cleansing against these groups, and in some cases against Sunni Muslims, Kurds, and other minorities.
Although there is widespread impunity for these atrocities against Yezidi and other victims, we are committed to seeking accountability and there are glimmers of justice. National prosecutorial authorities are stepping up and bringing cases in their national courts. We’ve had the first case alleging genocide against an ISIS member in courts in Germany, for example. A German court found Taha al-Jumailly guilty of genocide, crimes against humanity, war crimes, and human trafficking in a landmark case involving the death of a five-year-old Yezidi girl. The case ended up in a life imprisonment sentence for the perpetrator. In 2022 the German – Germany convicted another former Syrian official, Anwar Raslan, for life imprisonment for crimes against humanity, and a new arrest has happened most recently in August. Other states such as Sweden and Canada are investigating and prosecuting ISIS members through structural investigations within their systems.
Lafarge case
We are also closely following the Lafarge case in France. This is the first case in which a major multinational corporation has been accused of crimes against humanity – in this case, in northern Syria. This follows on the heels of a major settlement here in the United States that generated a fine and forfeiture valuing more than $700 million. A number of organizations and victims advocates are exploring whether portions of such large financial settlements can be used to promote healing and post-traumatic growth for victims of the responsible organizations. More creative thinking needs to be done to how these settlements by those who profited from abuses can ultimately benefit survivors of atrocities.
Two international organizations have supported many of these prosecutions in national courts: the United Nations Investigative Team to Prosecute Accountability for Crimes Committed by Daesh, UNITAD; and the International, Impartial and Independent Mechanism for Syria, the Triple-I M. Both entities continue to collect information and evidence, share it with investigators and prosecutors who are pursuing cases against alleged perpetrators.
