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International Criminal Justice - Where does it go from here? by HHJ Keith Raynor

Wednesday 22 May 2019

Great Hall, Lincoln’s Inn, London




On 22 May 2019, as part of Lincoln's Inn lecture series, HHJ Keith Raynor, presented an enlightened and highly impassioned speech on the current status of international criminal law and offered some insight into where we go from here.


I was pleased to be able to attend and Guernica is honoured to publish his lecture notes in full and express our sincere gratitude to Keith for making reference in his oral remarks to our recent attempts to ensure that the victims of the Syrian conflict sees justice in the International Criminal Court.


The lecture was an excellent, and honest, assessment of the state of international criminal justice, highlighting criticisms that were fair and appropriate and highlighting with equal measure the efforts by those of us within the international legal community to put truth, justice, accountability and victims at the heart of the discussion.



Introduction


1. Fellow benchers, fellow judges, distinguished guests, ladies and gentlemen, thank you for attending. Particular thanks to those who have crossed the channel in the week of the EU elections to be here,Professor Kevin Jon Heller (from The University of Amsterdam) and Dr. Viviane Dittrich (the Deputy Director of the International Nuremberg Principles Academy).


2. The oldies in the room might remember Haircut One Hundred, who were a British new wave band formed in 1980 in Beckenham by Nick Heyward. In 1982 the band released a single "Love Plus One". It was the band's biggest hit. It reached No. 3 in the charts and it “went gold” after achieving sales in excess of 400,000 copies. It was a catchy number,in a sort of irritating way. In the song Nick Heyward asks the question “Where does it go from here?”. Those of you expecting his reply to be profound and wise will, I am afraid, be disappointed. The answer he gave does not relate to the meaning of life. His answer to “Where does it go from here?” was “ Is it down to the lake I fear, followed by, as I recall: ay, ay, ay ay ay-ay etc”.


3. But the question he asks is a good one for those interested in and involved in international criminal justice.Where does it go from here? About 5 weeks ago the PTC at the ICC unanimously denied the Office of the Prosecutor’s (OTP) request to initiate a formal investigation into the activities ofAfghan Defence Forces, American Armed Forces, the CIA and The Taliban in the situation in Afghanistan under Article 15 of the Rome Statute. This was after the judges had deliberated for 1.5 years and after a preliminary examination lasting more than one decade involving 794 submissions from 6220 individuals, 1690 families and involving events in 26 locations. The PTC concluded that an investigation would not be in the interests of justice.


4. At the same time Sudanese President Al- Bashir found himself in a cell in Khartoum and charged in the Sudanese courts with inciting violence, having been ousted from power and with no certain indications as to whether he would be surrendered to the ICC to face trial on charges , including 3 counts of genocide. And then the Appeal Chamber at the ICC decided on the lack of immunity accorded to former President Al-Bashir before any international court.


5. I could spend the entire talk interrogating the Afghanistan decision, one which commentators have variously called“Fundamentally flawed” (Kevin Jon Heller), “this poorly reasoned and badly written decision “(Sergei Vasiliev), “one which amounts to judicial suicide”(Gueneal Mettraux), and “self-inflicted delegitimization- a decision so structurally flawed, so politically susceptible, so morally malleable that it is only a matter of time before the ICC self-destructs” ( Michael Karnavas).


6. But in this talk I have sufficient time only to deal with 2 pressing topics in international criminal justice, namely (a)the current political landscape in which the ICJhas to operate and (2) reform within the ICC.


The current political landscape

General


7. At para. 94 of the ICC PTC Afghanistan decision:


“94. subsequent changes within the relevant political landscapeboth in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future”.

8. It seems likely, therefore, that future decisions of the Prosecutor, the PTC and all Chambers of the Court may now be underpinned by more open (and perhaps honest) reference to the realities of the political landscape. In the wake of the Afghanistan decision, observers were asking (1) will the OTP now adjust its mantra, which up to date has been“ the OTP does not make decisions based on political considerations”? and (2) Is the reality now that powerful states and/or those that threaten or obstruct the work of the ICC will never appear within the cross-hairs of an investigation, let alone a prosecution?


9. These questions were addressed ,in part, last Friday when the OTP at the ICC published its Draft Strategic Plan for 2019-2021. The document is heavy on pledges, but thinner on how exactly those pledges will be put into practice. The document does, though, recognise just how important the political landscape is in placing limitations on the ability of the OTP to have real impact:


“Conflicting national interests, and political agendasof States and other international actors create shifting dynamics which may either create support or resistance towards the Office’s activities, depending on the situations under investigation. Economic realities, political alliances, diverging views on multilateralismand on how to tackle global problems are just some of the factors determining the position taken…the OTP’s operating environment is impacted by the surrounding political reality.”

10. Whatthen is the current political landscape and the surrounding political reality? Well, the landscape has changed in the past 20-odd years and it continues to change by the month, week and day. Shifts in the balance of power have been acute. Commitment to multilateralismhas lessened and nationalism and authoritarian government, entwined with populism, is on the increase.Many countries are re-asserting national sovereignty, often at the expense of evidencing commitment to the rule of law as an instrument of global governance.


Former U.N. High Commissioner for Human Rights


11.According to former U.N. High Commissioner for Human Rights, Zeid Ra’ad Al Hussein writing earlier this month in The New York Times: “most of our political leaders are morally weak, short-sighted and mediocre. It used to be that abuses were called outand many were stopped. Human rights violators had something to fear. But today the silence of those public officials is astounding. Their hypocrisy is sickening. I fear they are no longer able or willing to defend the human rights of all people and as a result the worst human rights offenders are able to act with complete immunity”.


The loss of US hegemony


12.We also need to examine events since the end of the Cold War. As Mark Kersten has observed: “ The end of the Cold War, characterized as it was by realpolitik and stagnation on many human rights questions, provided the elbow room necessary for liberal cosmopolitan projects (previously deemed idealistic or utopian) to institutionalize...guilt stemming from the inaction by the international community in the face of the Rwandan Genocide and the Srebrenica massacre fuelled the liberal cosmopolitan cause. It was within this spirit that the ICC was created.”

13.But the “world order” has changed dramatically. The world no longer turns on an axis of American hegemony. At the end of The Cold War the United States of America became the uni-polarity in internationalrelations and began to pursue interventionist regime change strategies – what has been described as a policy based on “fantasies of liberalism marching inexorably forward to certain global triumph.”


14.Concurrent with the loss of hegemony the USA found that its alliances with Saudi Arabia, UAE and Israel contributed to a growing opposition to the US in The MENA region by Iran, Libya, Hezbollah and Iraq. The Soviet Union could no longer provide the patronage enjoyed by certain countries. Then ill-judged and damaging invasions of Iraq and Afghanistan led to the strengthening and proliferation of terrorist groups, the de-stabilisation of other countries in the region and then the crisis in Syria leading to the proliferation of non-state actors and the emergence and then decline of ISIS. At times many terrorist groups were given a comfortable space in which to operate and some even began to control territory, run local administrations and control economic output. We are told that ISIS is defeated (in Baghouz) but I suspect few of us believe that it will not re-emerge,especially after the explosions in Sri Lanka for which ISIS claimed responsibility. Al Qaeda and its affiliate groups are still active and in 2018 carried out 0ver 300 attacks world-wide,and it is believed that Hamza bin Laden may be a future leader.

15.But, US policy has changed. Soon after his appointment President Trump declared his intention to end “this destructive cycle of intervention and chaos”. According to Daniel Drezner writing inthe April 2019 edition of The Foreign Affairs Magazine


The time has come to face facts. American hegemony is not coming back, at least not in a form recognizable to those who knew it. U.S. hard power is in relative decline, U.S. soft power has taken a huge hit.”


Iran


16.Iran has flexed its muscles in an effort to build a crescent of influence from Iran stretching westwards toward Hezbollah in Lebanon. The Trump administration is seeking to marginalise Iran. In 2018 Mike Pompeo issued a list of 12 demands Iran must meet to ease American pressure. Power politics are at play. In April 2019 President Trump announced plans to classify the Iranian Revolutionary Guard as a terrorist organisation.


17.Earlier this month the US Administrationrevoked waivers to Iran’s remaining oil export markets and unveiled more sanctions in addition to those it imposed last year after quitting the Iran nuclear deal. Mr Trump has said he will impose secondary sanctions on China if it continues to import Iranian oil. Oil is the economic lifeline of the Iranian economy.


18. Following the US administration’s threat to deploy carriers to the Persian Gulf, this has now happened and Iran is threatening that, unless the impact of sanctions is lessened, it will withdraw from the nuclear deal. On Monday it was reported that Iran's nuclear agency had quadrupled its production of low-enriched uranium.


19.What may be the underlying politics here? Well- John Bolton has a goal of regime change in Iran, believing the country to be the world’s largest financier of international terrorism and a malign influence in the region, fomenting unrest and financing militant groups in Syria and Yemen.


20. And what of sanctions? Many doubt that sanctions will force Iran to “buckle”- the country is resilient and has survived through many years of sanctions.


21.Withmultilateralismin mind,should the USA have made implied threats to impose sanctions on UK, France and Germany (who have pledged to stay in the nuclear deal with Iran)? This set in the broader context that Angela Merkel wants Europe to forge a united front capable of standing up to the US, China and Russia.


22. A President Trump tweet on the Iran issue on Monday was characteristically firm:“If Iran wants to fight, that will be the official end of Iran. Never threaten the United States again!”


23. On March 11, President Hassan Rouhani of Iran arrived in Iraq for his first visit. Iran and Iraq are Shiite-majority countries that share centuries-deep cultural and religious ties — and a 900-mile border. Iran is seeking to expand trade with Iraq to help offset thesereimposed U.S. sanctions. It might be sensible to predict that Iran and Iraq will develop closer alliances in the forthcoming years.


Broader Sunni/Shia Contest


24. The broader Sunni/Shia contest primarily between Sunni Saudi Arabia and Shia Iran will not abate and we see its impact, aside from the situation in Iran, most graphically in Yemen, where it is alleged that the UK and France continue to supply arms to Saudi Arabia in circumstances where it is widely reported that such arms have been used in a proxy war causing thousands of civilian casualties from bombardment. And even though the House of Representatives and The Senate agree that the USA should stop supporting Saudi Arabia in Yemen, in late April 2019 PresidentTrump exercised his veto for only the second time in his Presidency to veto Congress’s calls for the US to put an end to its support for the Saudi-led war in Yemen .


Egypt


25. President Sisi of Egypt has met with President Trump and there are suggestions that the US administration may declare the Muslim Brotherhood a terrorist organisation. Congress intends to make $260 million of annual military aid to Egypt conditional on progress in human rights and democracy. (Egypt receives $1.3 billion in annual US military aid.)


China


26. We see the growth of China- politically, militarily and economically and, in particular, its growing influence on the economies of certain countries in Africa. Just to take one example, China has a monopoly over oil reserves in Sudan and South Sudan having invested in infrastructure projects, undeterred bycorruption and civil conflict. Its economic influence is also increasing in Europe.


27. China is predicted to pass the US to become the world’s largest economy by 2030, with India overtaking Japan, Germany, the UK and France to become number three.


28. A deeper relationship is emerging between China and Russia. Economicallythe two countries are working together in investment projects and transportation through links between China’s Belt and Road initiative and the Eurasian Economic Union.


Russia


29. Russia has become emboldened by its involvement in Syria. It has expanded its military bases in Tartus and Latakia in Syria and is acting as a power- broker in The Middle East and a major force in global affairs. Syria has worked out better for Russia than its interventions in Georgia and Ukraine.


30. In the past 12 months a series of talks have taken place on the future of Syria, attended by Bashar al Assad and Vladimir Putin and President Erdogan of Turkey. The USA and the EU are not at the table. Russia is seen by Saudi Arabia and Israel as a force in the region and maintains relationships with Iran, Qatar and the Kurds.


Turkey


31.Turkey is also making its mark. It has its own geo-political interests to pursue. It has sent troops into Syria and runs local administrations in sectors in the North. [Last month Erdogan’s party lost control of power in Ankara and Istanbul and so his political supremacy may be on the wane.]It is a member of NATO, yet recently undertook joint military drills with Azerbaijan, Uzbekistan and Pakistan, to strengthen military cooperation between those countries and has discussed a possible deal to increase military and security co-operation with Iraq. Last Saturday President Erdogan announced the purchase from Russia of an air defence system and an agreement with Russia to jointly produce another air defence system.


32. Adding to the complexities of the Syrian situation, Iraqi officials have now started to attend meetings in Damascus (in March 2019).


Libya


33. In Libya General Haftar and his Libyan National Army (receiving military support from the UAE and President Sisi in Egypt and now endorsed by President Trump and having approval of France, Saudi Arabia and Russia) is moving his troops westwards in an attack on Tripoli in an attempt to defeat troops loyal to The Government of National Accord,” which has UN support. Is there the prospect of further authoritarian rule in Libya? Amnesty International reports the commission of war crimes on both sides.


Sudan


34. In post- Al-Bashir Sudan one group of activists (perceived as being the stronger) is reported to have close links with Saudi Arabia and the UAE and is supported by Egypt , whilst another is supported by Qatar and Turkey.


Authoritarian regimes


35. The sense of instability is not restricted to MENA region. Authoritarian regimes which fundamentally undermine the rule of law cause damage wherever they emerge. This is not restricted to states that may once have been classified as classic rogue states. Viktor Orban in Hungary has neutralised the judiciary, attacked media freedoms, pressurised civil society, and pushed a nationalist agenda. Hungary is perceived as far closer to Russia than the EU and China has invested heavily in the country.


36. The Polish government has drawn criticism in the EU and beyond for its treatment of its judiciary. Nationalist parties are growing in stature and increasing their populist voting bases in Germany, France, Italy, The Netherlands and Austria. Nationalist parties from those countries, together with parties from Slovakia and Bulgaria attended a joint rally on Saturday in Milan, in advance of the European Parliament elections.


37. Multilateralismthat has existed generally in terms of EU policy and delivery is now struggling to assert itself. Is autocracy beginning to nudge democracy aside ?


USA reduced appetite


38. All this needs to be viewed against a reduced appetite in the Trump administration for engagement in Iraq and Afghanistan and engagement in world affairs more generally. “Making America Great Again” may be a message which resonates with many voters domestically, but crucially it has coincidedwith a lack of interest on the part of the US administration in supporting international organisations and strengthening global governance.


39. The recent PTC decision at the ICC regarding Afghanistan was reported by the Trump administration as “ a major international victory ”. Many commentators observe that it is difficult to see the decision as anything other than a capitulation to pressure from the USA which had been building up for months.In 2018 President Trump referred to the ICC as “an unelected, unaccountable global bureaucracy”. In September 2018 John Bolton, The National Security Advisor to President Trump set out the USA policy towards the ICC in these terms - “We will not co-operate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us”.


40. In Dec 2018 Secretary of State Mike Pompeo declared that the ICC is “rogue” (on account of its attempts potentially to investigate US soldiers for alleged crimes committed in Afghanistan) .


41.Then in March 2019 Mr Pompeo, announced diplomatic sanctions against the staff at the ICC who were investigating war crimes committed during the Afghanistan war, by denying such persons entry into the USA and soon thereafter the ICC Prosecutor reported that she had been denied an entry visa.


The UK perspective


42. When looking at the political landscape from the perspective of the UK, Brexit is likely to have an impact on the standing of UK in international affairs generally, and in the field of international criminal justice. In a post-Brexit world will the “soft” diplomatic power of the UK decrease significantly? Will it be perceived as continuing to “deserve” its seat as a P5 UNSC member? In Christopher Hill’s book “ The Future of British Foreign Policy – Security and Diplomacy in a World after Brexit”(published earlier this year) he paints a glum picture of a country which, despite its nostalgia for a global power role, will discover that its “position in the world” will steadily decline. The UK, he argues, will find it hard to frame its foreign policy in conjunction with the Commonwealth, and given the loss of EU multilateralism, will have to work hard to influence agendas in Europe on matters of significance, such as diplomacy, security and defence. What will happen in future Eurovision song contests is perhaps easier to predict!


Why all the talk of politics?


43. There is little doubt that these trends in global politics have the potential to seriouslyundermine ICJ. Autocracy is on the rise. Many strong politicians are not advocates of enhancing an international rules-based order. True those states signed up to the ICC are numerous, but if the centre of gravity is moving towards China, Russia, USA, Iran , Saudi Arabia, Qatar, Turkey and Egypt then is there not a real risk that ICJ and the ICC become matters of marginal relevance ?


Syria


44. The impact of this new emerging World Order has perhaps had its most profound effect in Syria. To remind you all it was in May 2014 that the UNSC voted on referring the situation in Syria to the ICC. Russia and China blocked such referral. There is no realistic prospect of the permanent P5 members of the UNSC ever referring the Syria situation to the ICC.Indeed , in March 2019, at the UNSC Arria Formula meeting on “Human Rights, Accountability and Justice;” Russia criticised international criminal tribunals and vowed to block the UNSC from creating any new criminal tribunals or referring situations to the ICC. Furthermore on 19 March 2019 Russia (and other countries) blocked the UN High Commissioner for Human Rights from providing the UNSC with a briefing on the human rights situation in Syria, claiming that discussions on human rights are not pertinent to the Security Council’s agenda.


45. Russia, Turkey and Iran (and other countries) have strategic geopolitical goals in Syria. The recent diplomatic discourse appears to relate more to the reconstruction of the physical infrastructure of the country, rather than the creation of any court.


46. Reacting to this , the UN set up its Commission of Inquiry and now the 34 worded body - UN International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in The Syrian Arab Republic since March 2011 (thankfully known by its abbreviation the IIIM). Whoever dreamt up such a long name for such an important body should be referred to the Plain English Campaign’s web-site!


47. The IIIM is undertaking some tremendous work in difficult and trying conditions. Information collected has been shared with investigators and prosecutors in domestic jurisdictions allowing significant progress to be made in the field of prosecutions in individual nation states, by applying their own domestic legislation on war crimes, through the use of universal jurisdiction.


The ICC


General Questions


48. The ICC has taken much incoming fire from critics in recent years. After 17 years and 1.5 billion Euros spent the ICC has clocked up only 3 core crime convictions (withsentences of imprisonment) and one of those followed on from a guilty plea! Even accepting the observation that a court cannot be judged on its conviction rate alone and that acquittalsare a good sign that a court is functioning fairly, this is a poor “institutional” record.

49. A fellow judge of mine at the KSC has argued that the moment has come for the ICC to “recalibrateand to do a reality-check”. That is right and the time has come for a third R- namely reform.


50. In March, April and May 2019 most eloquent and detailed observations on this question have been made by Douglas Guilfoyle, Kevin Jon Heller, Mark Kersten, William Schabas, Dov Jacobs, Sergei Vasiliev,Michael Karnavas .


51. Douglas Guilfoyle asked in a recent contribution “Is the Court’s job one which can successfully be done at all under present conditions” He said this before the recent PTC Afghanistan decision.


52. Most of you will be familiar with “The Emperor’s New Clothes” a short tale written by Danish author Hans Christian Andersen. It is about two weavers who promise an emperor a marvellous new wardrobe of clothes . The weavers announce that the new clothes will be invisible to those who are ignorant,stupid, or incompetent. Thereafter the reality was that the 2 weavers did not make any new clothes for the Emperor, but pretended to dress the emperor in his new clothes. The emperor then walked out in public, naked, to engage with his subjects. No adult wanted to tell the emperor that he was naked, for fear of being exposed as stupid or incompetent. So, all the subjects of the emperor told him how fine he looked in his wonderful new clothes. Finally a child cried out, "But he isn't wearing anything at all!"