Students on our Master of Science (MPP) programme were asked to write a critical opinion on the protection of human rights and development. Focusing on the means and measures available to international actors — from political mediation, to the International Criminal Court (ICC), to the International Court of Justice (ICJ) — they explained how their choice fosters human rights and development.
Below is a selection of essays, focusing on a range of case studies and critical issues around the world. By way of example, our students weighed up the achievements and limitations of the ICC some 15 years after its founding; they looked at the links between human rights and transitional justice at the ICC; and they considered the role of political mediation in bringing sustainable peace to Cambodia.
Fifteen years on: The achievements and limitations of the ICC, by Emelyne Cornet
For the ICC‘s 15th anniversary in July 2017, the official ‘party line’ was to seek greater cooperation. In the words of the Prosecutor, Ms Fatou Bensouda: “As we celebrate this International Criminal Justice Day… we cannot overstate the importance of strong state cooperation and complementarity in the effective fight against impunity for atrocity crimes”.
Nineteen years ago, 120 countries signed the Rome Statute and four years later, with half of them ratifying it, the International Criminal Court came into effect. Today, with 124 members to its name, the 15-year-old Court is due for a check-up. When reflecting upon the achievements and challenges of the Court given its space for action, it becomes clear that, although the Court has indeed performed decently, it could benefit from added members and a revision of the scope of the Statute.
Nonetheless, the Court’s structure is heavily reliant on global cooperation to make arrests, transfer arrestees to The Hague, enforce sentences and so forth. Moreover, it is also only allowed to act if a State with primary jurisdiction is unwilling or unable to investigate and prosecute properly. While triable crimes are limited to genocide, crimes against humanity, war crimes and aggression, they only apply to crimes committed after July 2002 by nationals of a State party to the Statute or just within the territory of such a State. Already it appears that who is and is not party to the Statute has an importance.
Enough members to make a difference?
With only 124 States, the ICC seems to lack critical players. The US, Russia and Sudan have all pulled out, completely absolving themselves from the jurisdiction of the Court. More recently, a trio of African States (Burundi, Gambia and South Africa) have decided to do the same and announced a future withdrawal, claiming a “racial hunt” on the part of the ICC.
These absentees seem to put the ICC at a significant disadvantage, until this can be contextualised and compared with other international judicial bodies. For example, the International Court of Justice (ICJ), which is trusted to handle interstate disputes and provide advisory opinions, encompasses all UN Member States. That being said, Member States can still ‘unsubscribe’ from the Court’s jurisdiction, which is a choice, as it turns out, many countries have made. In the end, barely a third of all UN Members accept the jurisdiction of the ICJ, which is about 66 countries, or half the number party to the Rome Statute.
Since its entry into force in July 2002, the ICC has not only investigated 10 situations and 24 cases, and convicted and/or put into custody eight defendants, but has also begun preliminary examinations of 10 other cases. Despite accusations of a “racial bias”, the decision to investigate depends on the evidence provided as well as the amount of cooperation furnished in order to render the trial successful. Indeed, it turns out that to remove the apparent ‘bias’ relies on the cooperation granted by Parties.
For example, in 2016, when convicting former Vice-President of the Democratic Republic of Congo, Mr Jean-Pierre Bemba Gombo, for two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging), the ICC needed the cooperation of several States. The Central African Republic helped by handing over documents from their own prosecution of the defendant, allowing visits in war sites, protecting witnesses and so forth. Moreover, Belgium helped arrest Bemba and handed him to the Court, while Portugal helped monitor and track his financial activities.
Numerous challenges ahead
Previous international courts usually heard victims as witnesses only. Yet now, with forward-looking aspects such as the legal representation of victims, the performance of the ICC seems revolutionary. Victims are entitled to legal counsel and to tell their stories as they see fit. However, as pointed out, the issue of international cooperation remains critical to move forward with preliminary explorations and to be able to convict defendants. But another challenge to address is one of legal matters regarding triable crimes.
Indeed, if I, a Belgian citizen, am victim along with other people of war crimes committed in Turkey by US soldiers, for example, the intended protection my country wished for its citizens, including me, by joining the Statute will be void. This means that the nationality of the victim is irrelevant.
This critical ‘detail’ relates more to the mission of the Court itself. Countries signed and ratified the Rome Statute to “put an end to impunity for the perpetrators of […] crimes and thus to contribute to the prevention of such crimes” (Rome Statute, p. 1). And yet, global cooperation does not extend to citizens of signatory countries in all circumstances. Arguably, this criterion is the one missing from the text, according to which countries could really argue that they are determined to fight impunity. It would only leave out crimes that are committed outside the territory of the Statute, by citizens outside the Statute, onto people outside the Statute.
Fifteen years on, at a time where the legitimacy of the ICC is repeatedly questioned, these concerns are of the utmost importance. By addressing them, the Court may reinforce its validity and prevent other Parties from opting out of the Statute.
Human rights and transitional justice: The road ahead at the ICC, by Aurelie Wertz
Human rights are at the core of transitional justice, which essentially deals with large-scale and systematic human rights violations in countries emerging from conflict and repression. It ensures the recognition of the individual’s dignity, redresses violations, and demonstrates that human rights abusers can and will be held accountable.
The investigation of serious international crimes is carried out by the International Criminal Court (ICC), which acknowledges the rights of victims to participate and seek reparations. Additionally, victims’ testimonies appear to be particularly important during the trials to uncover the truth. However, one could question the extent to which the ICC actually accounts for the victims. Is the process really representative? This article argues that the ICC’s representation of victims is flawed due to a selection bias. Working towards inclusive justice appears essential for objective trials.
For example, this topic may appear primarily judicial, but other fields like psychology also play a role. Indeed, while the ICC has special measures to support victims, regarding trauma and vulnerability, they only seem applicable to already listed witnesses. Nonetheless, different reasons may question how representative these victims are of the entire case and what efforts are put in place to ensure an inclusive trial.
First, serious human rights abuses may leave victims with Post-Traumatic Stress Disorders (PTSD), which can alter cognitive functions, create anxiety, lead to memory loss, and/or impoverish the language — all of which can make it difficult to share their experiences. Second, some individuals may not want to recall their experience because of fear, unwillingness to relive their traumatic experience or shame. Stigma and taboo may impede victims from coming forward in the first place. Further, in situations of war, traumatic experiences often involve displacement, captivity, deprivation, injury, etc. which could also hinder victims from testifying.
Third, revealing one’s traumatic experience to an audience (even through a lawyer and anonymously) may be very challenging. Indeed, the court environment and judicial discourse may be a very startling experience for already vulnerable individuals. In addition, the legal language used may not be appropriate to capture the reality of the events. Fourth, victims’ participation in the ICC is voluntary. Hence, the victims that do take part in the proceedings may have a specific profile and interests. In turn, they may not be representative of all the victims nor of the entire reality.
Representative & therapeutic justice?
Some victims may not be willing to testify, especially the most affected and vulnerable among them. In addition, in contrary to claims suggesting that justice may facilitate healing, it appears that experiences at court may not always be therapeutic. Thus, from this angle, transitional justice may not always respect a minimal harm principle. All in all, if the sample of victims does not appear representative, the ICC judgment could be biased because of the silent voices.
On the other hand, the ICC personnel may also suffer from being exposed to the victims’ traumatic experiences. Consequently, the risks of a biased judgment may be heightened due to a staff unable to work at the top of their capacities. Moreover, it could hinder their objectivity. Secondary traumatic stress can occur to staff working with trauma-exposed patients and in a stressful environment, lacking the necessary resources. The symptoms are similar to PTSD, including functional impairment, depression, and burnout. Hence, it appears important to consider the psychological well-being of the staff as well. Otherwise, the Right to “full equality to a fair and public hearing by an independent and impartial tribunal” could be endangered.
To conclude, the ICC’s inclusion of victims in the courtroom is already a major step towards recognition of the individual’s dignity and rights. Nonetheless, improvements may be suggested. For instance, creating an inclusive process, connecting with hard-to-reach victims, building a safe environment for people in vulnerable states, and supporting both victims and staff could be further considered. However, subsequent challenges could arise, such as dealing with a larger number of victims expressing themselves and assessing the inclusiveness of the process. Multi-disciplinary work seems to be the best key to overcome these problems and to provide a comprehensive solution. Indeed, justice should not only be understood as a legal concept but also as a social component, within which psychology should not be neglected.
Mediation as a catalyst for Cambodia’s sustainable peace, by Ritthy Ou
The decade-long Cambodian civil war brought the country into the hands of the genocidal Khmer Rouge regime (1975-1979). Pol Pot was the leader of the Khmer Rouge, who transformed Cambodia into a classless agrarian ‘utopian’ society by forcing millions of people from the cities to work on collective farms in rural areas. The Khmer Rouge attempted to ‘purify’ Cambodian society by killing educated citizens, ethnic Vietnamese, Chinese, Muslim Cham, and other minorities who lived in mountainous areas in Cambodia. Some 2 million people — a quarter of the population — died from execution, starvation, disease, and overwork.
After the fall of the Khmer Rouge regime, 40 per cent of the country’s population suffered mental health issues, according to the Transcultural Psychosocial Organization (TPO), a Cambodian NGO working in the field of mental health care and psychosocial support. To heal people’s suffering and to seek justice, in 1997 the Cambodian government sent a letter to the UN Secretary-General, Kofi Annan, requesting the establishment of an international tribunal to prosecute the Khmer Rouge leaders. By 2003, the Cambodian government and the UN reached an agreement to establish the Extraordinary Chambers in the Courts of Cambodia (ECCC) in the capital, Phnom Penh. By 2006, the Courts had begun investigating the Khmer Rouge leaders for crimes against humanity. The ECCC is a special Cambodian court or hybrid court because it has international participation and applies international standards.
However, due to the aftermath of the war, the winner wrote the history books and who actually killed Cambodians during 1975-1979 has been debated. Cambodian society does not trust the courts in general and the ECCC in particular. Prime Minister Hun Sen has warned of renewed civil war if the ECCC continues to investigate other Khmer Rouge leaders in his government. The Prime Minister himself was a former Khmer Rouge soldier, who keeps preventing more investigations and trails. He declared he would ask the UN to leave Cambodia if the Court insists on pursuing additional cases.
The ECCC has been criticised by the government (which includes many former Khmer Rouge officials) for alleged corruption and politically interference. Consequently, Cambodian victims believe that trials in the country will not fully bring justice and so wish to see former Khmer Rouge leaders tried outside Cambodia. As a young Cambodian, I wish to see the Khmer Rouge Tribunal investigated by an international court which is independent and free from the intervention of Cambodia’s government.
According to research from TPO in 2004, 81 per cent of Cambodians experienced violence. However, the ECCC is only prosecuting and charging the most senior members of the Khmer Rouge. There were some 150 execution centres nationwide but only the chief of one centre, Tuol Sleng S-21, has so far been sentenced. Given the political meddling in the court and trials being held for only the most senior of leaders, the ECCC is unable to heal the millions of Cambodian people traumatised during the Khmer Rouge regime. Meanwhile it is reopening old wounds and traumas for many Cambodians.
The need for community-based mediation
If the Court cannot sentence all perpetrators, mediation techniques should be introduced to heal the trauma, anxiety and depression of victims and to prevent any recurrence of violence. According to prominent Israeli Professor Mordehai Moti Mironi, mediation is a highly effective tool to end conflicts and to prevent future flare-ups, as it can change minds and rebuild relationships between victims and offenders.
Mediators serve as a bridge between victims and wrongdoers by enabling them to communicate and understand each other. Professor Moti emphasised that mediation starts with a non-legal dispute and is a powerful mechanism to create valuable and cohesive relationships within societies. Amidst the aftermath of the Khmer Rouge, Cambodia is in need of mediation and more mental health support not only to heal victims’ trauma, anxiety and depression but also to rebuild trust and solidarity within the society. This would help ensure respect for human rights and prevent further conflicts within communities.
In the absence of psychological assistance, parents’ trauma has negatively affected the younger generations. In Cambodia, about 50 per cent of children of Khmer Rouge survivors have been affected by post-traumatic stress disorder (PTSD) symptoms such as anxiety and depression, even though they were not directly exposed to the trauma. Many Cambodian victims try to forget past suffering by going to pray in pagodas and seeking psychological support from traditional healers and Buddhist monks. For instance, my grandmother prays and recites dharma to cope with her past suffering. She recited dharma to forget the past but it does not mean that past suffering is healed. In this context, skilled mediators could help victims and wrongdoers not only to forget but also to heal the trauma, anxiety and depression.
In conclusion, establishing the ECCC to try a few former Khmer Rouge leaders will not be enough to ensure peace and justice or reconcile the suffering of millions. Providing symbolic compensations such as memorials at execution centres is helpful, but the Court and Cambodian government need to do much more. They need to provide nationwide community-based mediation and mental health services to build a truly sustainable peace.
The opinions expressed here are the authors’ own; they do not necessarily reflect the views of UNU.
UN Photo / Rick Bajornas; Maxence Peniguet / RNW; UN Photo / ECCC