Opportunities for Justice: New Mechanisms for Addressing Sexual Violence and Other Atrocity Crimes from Europe to South Asia to Sub-Saharan Africa

Special Coordinator for Global Criminal Justice Todd Buchwald
U.S. Capitol Visitor Center
Washington, DC
May 20, 2016

Thanks very much to Senators Cardin and Tillis, who are our honorary hosts today and leaders on atrocity prevention issues, and to Caleb, Charlotte, and especially Tim, whom I have known for over twenty-five years, since I was a young lawyer at the State Department working on the appropriations bill.

It is an honor to be here on this panel with Zainab Bangura, whose inspirational words you just heard, and Claudia Paz y Paz, who is known around the world for being relentless in the pursuit of justice. And I want to thank Cameron for moderating today’s discussion and for the Holocaust Memorial Museum’s very impressive event yesterday on genocide prevention.

Pursuing justice is one of many policy approaches the United States uses to help prevent genocide and other mass atrocities, but it is an important one. President Obama’s 2010 National Security Strategy captured this best, observing that “the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs.”

That view motivates much of what the U.S. government does to support transitional justice efforts: it’s why we support mobile courts and military justice institutions in the Democratic Republic of the Congo, for example; it’s why the President recently committed to declassifying more U.S. records that shine a light on abuses by Argentina’s military dictatorship; and it’s why Secretary Kerry has spoken out so forcefully for accountability for those responsible for sexual violence in conflict.

The main point I want to offer today is that, just in the last year, new justice initiatives have emerged in a very diverse and wide-ranging set of countries that have faced mass atrocities – but the success of those efforts is not a given, and it’s important that we as an international community seize the opportunity to support them and help get them right.

I realize that expressing optimism about the prospects for accountability risks sounding naïve in the time of Bashar al-Asad and ISIL – and we are intensely focused on promoting justice and accountability in Syria and Iraq. But while some situations remain resistant to justice, last year we saw breakthroughs in a number of other countries, where justice mechanisms are newly in play and new opportunities for progress may be emerging.

I want to quickly highlight five of these situations.

First, in the Central African Republic, which Mrs. Bangura just spoke about, the interim government last year adopted legislation creating a domestic Special Criminal Court that will include international staff and focus on the atrocities committed by predominantly Muslim and Christian armed groups since 2012. And although the International Criminal Court is also involved in the CAR, the sheer number of people allegedly involved in the crimes has made clear that domestically-rooted justice mechanisms will be needed, and steps will be needed to build up domestic capacity.

In Kosovo, the government took steps last year to establish a special court that will hear allegations of serious crimes committed in the wake of the Kosovo war of 1999. The special court will be staffed by international judges and operate primarily in the Netherlands, in part to help address concerns about the possible intimidation of participants.

In Colombia, the government and the FARC rebels have moved closer to ending a long-running civil war, including with a framework agreement on victims and transitional justice issues. And it is hoped that the agreement will promote truth-telling, reparations, non-repetition, and criminal accountability in a way that meets Colombia’s legal obligations and helps ensure what President Obama has called a “just and lasting peace.”

In South Sudan, the government and opposition forces signed a peace agreement last year that included a broad range of commitments on justice and accountability. These include provisions for the creation of a truth commission and the establishment by the African Union of a hybrid court to investigate and prosecute those responsible for atrocities.

And in Sri Lanka, after years in which authorities refused to acknowledge the painful legacy of abuses on both sides of the civil war that ended in 2009, and indeed continued to perpetrate abuses against civilians, in Sri Lanka, a new government was democratically elected in 2015 that has committed to pursue a comprehensive transitional justice agenda addressing abuses and supporting victims on all sides of the conflict.

So this is a remarkable set of developments for a single year on the justice front – and it doesn’t include a number of initiatives that were already under way, like the domestic accountability efforts in Guinea that Mrs. Bangura and her team have supported regarding the killings and sexual violence committed in the 2009 stadium massacre, or the U.N.-backed prosecutions that Attorney General Paz y Paz helped launch and direct in Guatemala for sexual slavery, genocide, and forced disappearances.

I think three points emerge from this picture.

The first, maybe the most optimistic, is that in a number of transitional situations around the world, the call for justice is not just being heard, it is being echoed – it’s being echoed in peace agreements, it’s being echoed in the mandates of peacekeeping missions, and it’s being mandated in other concrete efforts to promote a more sustainable and enduring transition out of the dark chapters of history.

In some cases, although still too few, this progress has been possible partly because victims and others affected by atrocity crimes have been able to participate in peace talks and other transitional negotiations and advocate for these justice commitments.

These mechanisms should not be viewed as a replacement or a competitor to the International Criminal Court. There will continue to be situations like the conflicts in Darfur and the CAR where the United States has consistently been supportive of the ICC’s work. But the ICC cannot grapple with every mass atrocity situation in the world, and, even where it is involved, the Court will be able to address at most only a small handful of cases.

By the same token, I would say, hybrid mechanisms combining domestic and international elements are not a silver bullet. Hybrid models have been successful in some places, as we generally saw in Sierra Leone and in Bosnia, while experiencing real challenges in others.

And that brings me to my second point, which is a cautionary one: that while these new initiatives are welcome, many are still at the early stages, or exist only as written commitments. Their success is not a given – it will depend on a number of factors, including the support they receive from inside and outside the country. That support may include providing technical assistance and helping these institutions secure adequate funding, since it’s not cost-free or straightforward to ensure effective outreach and support for survivors and other affected communities, or to investigate complex atrocity crimes when domestic capacity is weak.

But just as important as material support, justice initiatives require political support and political will – including commitment from governments and others within each of these societies, and constructive scrutiny from friends and supporters.

In recent years, some international or hybrid justice mechanisms have faced allegations of corruption, while others have seen investigations collapse amid reports of witness tampering. These courts and other mechanisms aren’t automatically good, they aren’t automatically bad, they are human institutions – and supporters of justice need to be ready to sound the alarm and press for changes when the independence of these bodies or the safety of those who participate are threatened.

And we recognize that the United States may be able to play a helpful role with respect to such support. In Colombia, promoting justice and other essential services for the victims of conflict is one of the three pillars of our support to the implementation of a peace agreement. In South Sudan, Secretary Kerry has announced our intention to provide up to $5 million in support of justice and accountability efforts in the country. And we could use the authority that Congress gave the State Department, through bipartisan legislation adopted in 2013, to offer rewards for information that helps apprehend fugitives sought by international or hybrid tribunals.

We will look for other ways to be supportive as well, and we will encourage other partners to do the same, recognizing that the sheer number of these initiatives will stretch the international community’s capacity.

And that raises my third and last point, which is that these efforts are worth supporting for a number of reasons – they can help break the cycles of conflict, they can highlight important lessons for justice efforts in other contexts, and they reinforce the expectation that those still facing abuses also have a strong claim to justice, even if the conditions may not be amenable for it today.

The situations I mentioned make clear the importance of being prepared for breakthroughs, since opportunities for justice sometimes, often times, come unexpectedly. They also show the importance of remaining persistent and creative. The international community has developed a menu of architectural options for pursuing justice, but some of the pathways are often foreclosed, whether by a veto in the Security Council or by other complications elsewhere. When that is the case, we must keep pursuing alternatives.

What’s the bottom line? We need to do what we can to help ensure that emerging justice initiatives are credible and effective. Some potential perpetrators of atrocity crimes may be beyond judicial deterrence, but we know that many of them are watching how accountability plays out in other countries, and carefully weighing the risks they face themselves if they commit or direct atrocities. Each new initiative, then, offers a chance to signal to potential perpetrators that the risk will be high and persistent, and that there is no reliable playbook for feigning a commitment to justice while undermining it in practice.

Obviously the United States is only one of the many players in each of these scenarios – but we look forward to working with others who are willing to help ensure these and other initiatives get under way quickly and have the profound and positive impact that we believe is possible.

Thank you.