Cooks in the Kitchen:   The UN Tinkers With its Menu of Structures for Ending Impunity, Dr.Robert Zuber

8 Nov

During this past week, as General Assembly committees finalized resolution text to send on to the full GA membership, the Security Council held its breath on Burundi, and preparations for the Paris Climate Conference sought appropriate levels of urgency, fond global aspirations were finding policy expression throughout the UN.

Many delegations now seek the means to elimination nuclear and other weapons of mass destruction from national arsenals.  They seek the means to address water crises, those related to drought and to restricted access.   They seek ways to promote adherence to a broadening base of human rights obligations, including a growing rejection of the death penalty, to ensure that access to these rights is as universal as the aspirations they contain.  Delegates seek to create peacekeeping operations and special political missions that work well in tandem, are fully transparent to membership, and can head off violence rather than merely address its aftermath. And they seek ways to ensure that coercive measures such as sanctions imposed by the UN Security Council are undertaken in a thoughtful, even-handed way that neither punishes the innocent nor subtly reinforces the political preferences of one or more Council members.

But perhaps the most pervasive aspiration is for an end to impunity for gross violations of international law, such as we see in Syria, Yemen, Central African Republic and other troubled venues. Perhaps no issue undermines the credibility of the UN quite like the perception that wrongdoers get away with wrongdoing to a degree that rank-and-file citizens cannot even imagine.  And yet, despite these challenges, there are few aspects of the UN’s work that are as intensely engaged at present as this one.

Simply put, the need to affirm principles of international law and to hold both state and non-state actors accountable to that law is pervasive and growing in importance within the UN.   As well it should be.   With all due regard for the mild hypocrisy embedded in the ways that we formulate the law and single out perpetrators to address by that same law, there is no more essential element to a healthy multi-lateral system than clear articulation and fulfillment of international principles that represent the standards by which we choose to live and conduct business.  Indeed, in the absence of such lived principles, it is unclear how we can ever find our way to a place of trust and confidence in the (at least) relative fairness of our international legal system.

Ending impunity is no abstract matter confined to states and the most egregious perpetrators of injustice.  From children “telling” on each other and barking at teachers who they believe have meted out punishment unfairly to the complex matters of jurisdiction and jurisprudence characterized by the International Court of Justice and other legal mechanisms, fairness is part of our cultural nomenclature. And regardless of where we fall on psychological standards of moral sophistication, or whether we posit some deity at the beginning or end of those standards, it is both inconceivable and even emotionally paralyzing that so much abusive and humiliating behavior remains unpunished in this world.  Many of us in this city bristle when we are “cut” in line or delayed by insensitive subway behavior.   What would then be our response to unaddressed crimes against humanity?   Surely we can find ways to apprehend and mete out justice to atrocity criminals at a higher rate than we incarcerate street level drug users or persons harassing subway riders with aggressive begging or “show time”?

Surely we can.  For three consecutive days this week, the UN engaged the question of the institutional forms best suited to help the international community identify, address and ultimately eliminate impunity for gross abuses.   On Wednesday, Spain and Romania hosted an event to explore challenges related to the formation of an International Court against Terrorism.

Spain’s Ambassador Oyarzun has taken considerable leadership (with Lithuania and Malaysia) on terrorism issues within the Security Council. Here he noted that his interest in this court arises out of a belief that terrorism constitutes the largest threat to the civilized world, and that states seeking to prosecute terrorist acts and end impunity once and for all could use the type of assistance that such a court could provide.  For his part, the Romanian Director General for Legal Affairs noted some of the specific challenges of such a proposed mechanism, including stable funding and what he termed “legitimacy” — by which he might have been referring to the proposed Court itself in some combination with its Council authorizers.  He might also have done well to highlight the still-vague definitions of “terrorist” that are sufficient for political purposes but still falling short on actionable legal consensus.

In another conference room on Friday, the General Assembly’s Sixth Committee was also “cooking in the kitchen” of structures to promote international law and end impunity for gross crimes.   Mention was made on numerous occasions of an initiative, mostly notably ascribed to Belgium, to draft a treaty to deter and address crimes against humanity, with a special focus (as highlighted by the Netherlands) on improving extradition and prosecutorial arrangements. And while some states, including Singapore, sensibly urged caution in “rushing ahead” to endorse such a treaty without sufficient regard for how it might impact existing legal mechanisms to address mass atrocities, there was general agreement in the room that such a treaty process deserved additional diplomatic attention.  Indeed, most states fully aligned with Mexico’s assertion that “there must be no derogation” regarding the prohibition against crimes against humanity.

One of the core concerns that came up in both the aforementioned events was the relationship of such proposed mechanisms to the Rome Statute and the work of the International Criminal Court.  In both conference rooms diplomats were quick to assert, as noted by Ambassador Oyarzun, that the proposed new instruments would be “fully complementary” with the requirements of the Rome Statute.

But to what extent do we take this reassurance of support and respect at face value?  To what degree are these various chefs in danger of getting in each other’s way, indeed of making it more likely that none of them will be able to bring the meal to table that we so badly desire?

Ironically, perhaps, the ICC’s Chief Prosecutor, Ms. Fatou Bensouda, was also in town this week to report on the work of the Court in Libya as required by SCR 1970 (2011).   Her statement and Tenth Report covered ground that was both familiar and disturbing, including allegations of torture perpetrated against defendant Saadi Gaddafi who had been ordered to be turned over by Libyan authorities to the ICC.

Madame Bensouda is a most forceful advocate for the ICC and for strong international justice in general.  On Thursday, she made it clear to Council members that we must not stand idly by while Libya is at risk of degenerating “into chaos and further instability.”  Many Council members expressed both sympathy and support for the Court and its expanding workload, noting in some instances that crimes worthy of ICC attention are growing both in their numbers and in their “authors.”

As she has done in the past, Madame Bensouda cited three dimensions of her work that are highly challenging and even undermining of positive outcomes:   a lack of secure and stable resources, a lack of basic security, and a lack of cooperation from both states parties and the Security Council.    These are discouraging and even damning allegations that cut to the core of the ICC’s work.   It is impossible to carry out thorough investigations without funds, without basic security, without the cooperation (let alone full consent) of the host country or of the authorizing Security Council. These are not incidental complaints, but speak to the lifeblood of any successful efforts by the ICC to end impunity and lay the groundwork for sustainable national reconciliation.

In the Council, Chile was one of the states that most clearly got the message, chiding fellow members for “our limited follow up” and reminding all that referrals from the Council are “not an end in themselves.”  Others chimed in with comments that seemed to indicate that current bottlenecks in the pursuit of justice could not properly be laid at the feet of the Prosecutor and her sometimes beleaguered staff.

Given these pervasive problems with regard to the ICC, it is fair to wonder how – or even whether — we should move forward on new legal mechanisms until we have gotten the ICC – the structure that other potential mechanisms pledge to respect — fully fit for purpose.  Madame Bensouda made clear to the Council, as she has done in the past, that ending impunity for atrocity crimes remains as achievable as it is necessary, and she reiterated her suggestion for a justice-oriented “contact group” for the ICC in Libya to help that process maintain momentum. But the message behind the message indicates that more careful and helpful attention to the ICC is needed, and needed now.

Our view is that a series of well-meaning but sub-standard meals will drive away more customers than it will attract. We need instead the equivalent of a showcase dining experience, a standard of excellence to which all new treaties, courts and other legal mechanisms can aspire.   Let’s first address with firmness the three ICC challenges noted by the Prosecutor, and in so doing create the standard and inspiration for the next iterations of legal responses to impunity’s challenges.

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