ACHIEVING ACCOUNTABILITY FOR ATROCITY CRIMES IN AN ERA OF RESISTANCE TO INTERNATIONAL JUSTICE AND HUMAN RIGHTS.

• Author: Rapp, Stephen J.

1. INTRODUCTION: INTERNATIONAL PATHWAYS TO JUSTICE TOO OFTEN BLOCKED

   Only a decade has passed since 2011, when the United Nations Security Council ("UNSC") voted 15-0 to refer Libya to International Criminal Court. That was the year when Ratko Mladic and Goran Hadzic were arrested and transferred to the International Criminal Tribunal for the former Yugoslavia ("ICTY"). They were the last of the ICTY's fugitives to be arrested, which meant that "none of the 161 people indicted by the Tribunal had managed to escape justice." (2) It was also the year when social media became the organizing tool of the Arab Spring in Cairo's Tahrir Square; when Egyptians dared to dream that they could overcome repression and intolerance and establish a government of, by and for the people in a country where it had never existed.

   By contrast, today, we are constantly reminded of the impunity enjoyed by those who break the rules, crushing the hopes, denying the rights, and taking the lives of their peaceful opponents at home and abroad. Russia barely disguises its bombing of humanitarian actors in Syria, armed infiltration of Ukraine, active support of brutal repression in Belarus, and its poisonings of those who challenge its leader's power. China, whose rise as a major power should be a positive development in this world, has taken a hard turn against the protection of human rights, rejecting norms that the world had accepted as universal following the horrors of World War II -- the victory in which China played such a central role.

   While China recognized that international criminal law violations occur within the border of single state, by supporting UNSC adoption of the statutes of the ad hoc tribunals and the referral of Libya to the ICC. China now insists that it is an internal affair when it deploys the force of the State to confine 1.8 million Uyghurs in re-education camps and acts to criminalize the Uyghurs' religious and cultural expression, separate their families, and restrict their births. But under precedents of tribunals that China has supported, its actions amount to the implementation of government policy to unleash a widespread or systematic attack against civilians on religious grounds that fits the definition of persecution as a crime against humanity. There is evidence of intended biological destruction through restrictions on births to the very "crime of crimes"--genocide. (3)

   This rejection of international law as to their own actions leads Russia and China to reject its application globally, and to impose or threaten vetoes in the UNSC to eliminate the prospect of an international court prosecuting those responsible for atrocity crimes committed outside the territorial or citizenship jurisdiction of the ICC. This effectively protects the perpetrators of some of the worst crimes of the 21st Century included those committed in Syria, Iraq, South Sudan, North Korea, Myanmar (except forced deportation in Bangladesh), and Ethiopia. The perpetrators know it. So, today we have 82.4 million persons forcibly displaced either across international frontiers or within their own countries--a new record, (4) with the greatest share of those refugees' leaving hearth and home to avoid become victims of State-backed atrocities.

   The very social media that had been heralded as a tool against repression, was used by the Myanmar military, the Tatmadaw, to incite genocidal violence against the Rohingya, including murder, rape, and the destruction of hundreds of villages. This sent more than 700,000 men, women, and children over Myanmar's border in a matter of days. (5) Elsewhere, social media is used to amplify ethnic and religious hatred and to inspire killers from Christchurch to El Paso.

   Some regional supporters of international justice and human rights have lost their fervor or gone over to the other side. The Philippines and Hungary once inspired the world with struggles against dictatorship and repression but are now led by men who intentionally target the defenders of human rights. The African Union enabled the trial of former Chadian President Hissene Habre in the Extraordinary African Chambers in Senegal, (6) but has since failed to act to implement the mandate of two peace agreements to create a Hybrid Court for South Sudan--despite the availability of international financial support. (7)

2. NATIONAL PROSECUTORS IN THIRD STATES ACT TO FILL THE GAP

   The exercise of extra-territorial jurisdiction, particularly universal jurisdiction ("UJ"), by the national prosecutors of third-States has sometimes been controversial. The laws of Belgium and Spain were made more restrictive in recent years due to US pressure. However, the idea of prosecuting alleged atrocity crime perpetrators who are present in one's country has gained broad acceptance, to send the message that the country is not a safe haven for war criminals. The European Union Genocide Network was launched almost 20 years ago to build capacity to pursue these cases, bringing together the relevant investigators and prosecutors from across Europe, and from associate members like the Canada and the US. (8)

   While the statutes of most countries limit the scope of UJ to permit prosecution of perpetrators "present in" their territory (9), the statutes of a few provide for the exercise of "pure" UJ, which is widely supported in situations where the prosecuting State has been impacted by the crimes. For instance, German law allows the prosecution of atrocity crimes without regard to a perpetrator's presence or a citizen's status as a victim. The pursuit of any case depends on the federal prosecutor's discretion, which may involve consideration of multiple factors relating to whether a German forum is appropriate (including the presence of non-citizen witnesses in Germany). (10) In fact, there are hundreds of thousands of refugees who have fled the atrocities in Syria and Iraq for refuge in Germany, and their presence fully justifies Germany's interest in accountability for these crimes. (11)

   A good example is the case the German Federal Public Prosecutor pursued against a former ISIS member for genocide committed by sexual violence against female Yezidis, (12) which is well-connected to Germany because it has welcomed 1,100 Yezidi women and girl survivors of ISIS' crimes. (13) On the November 30, 2021, the case resulted in guilty verdict of genocide and life sentence for the defendant, Taha al-Jumailly. (14)

   The German prosecutor has also opened a structural investigation of torture and murder in Syrian regime detention facilities, as evidenced by the tens of thousands of victim photos brought out of Syria by a military police defector known as "Caesar". The German prosecutor was aided in his investigation by the active participation of many survivors of that torture, or heirs to murdered victims, who were in refuge in Germany. The German Justice Ministry made funds available for a full analysis of the Caesar's photos and associated metadata by the forensic institute in Cologne. This investigation was not limited to suspects who were present in Germany, and in June 2018 the prosecutor obtained a warrant for the arrest of General Jamil Hassan, the Head of Syrian Air Force Intelligence, for the alleged torture and murder of Syrians in the detention center at Al-Mezzah Air Force base in Damascus. (15)

   In March 2019, the investigation led to the arrests of two former Syrian intelligence officers present in Germany, Anwar Raslan and Eyad Al-Gharib, on charges of torture and murder committed at the Al-Khatib detention center in Damascus. Their trial commenced in Koblenz, Germany, in April 2020, and featured the live testimony of dozens of surviving victims as well as those involved in documenting the crimes. In February 2021, the Koblenz court convicted Al-Ghirab of complicity in the torture of 30 individuals, sentencing him to and four and half years in prison. Eleven months later on January 13, 2022, the judges convicted Anwar Raslan and sentenced him to life in prison for crimes against humanity including the murder of 27 individuals among the 4,000 tortured during Al-Khatib while he was responsible for interrogations. (16) A week later on January 18, 2022, the trial of a Syrian medical doctor, Alaa Mousa, began in Frankfurt on charges of torturing Syrians in military hospitals in Damascus and Horns (l7) Meanwhile, French authorities used passive personality jurisdiction to pursue a case based on the torture and murder of French-Syrian dual nationals, Mazen and Patrick Dabbagh, in the detention facility in Al-Mazzeh. In November 2018, French authorities obtained arrest warrants for Generals Jamil Hassan and Abdel Mahmoud, the Chief and Deputy Chief of Syrian Air Force Intelligence, and for one of the most powerful officials of the Syrian regime, AH Mamlouk, the Director of its National Security Bureau. (18) German, (19) French, (20) and Swedish (21) authorities have also opened investigations into the chemical weapons attacks by the Syrian regime; the Germans and Swedes based on universal jurisdiction, and the French based on the dual-citizenship of one of the surviving victims of the sarin attack in Eastern Ghouta in August 2013, that, according to US government assessments, killed at least 1,429 men...