Guernica 37
Guernica 37

State Dept. Office of Global Criminal Justice on the Chopping Block–Time to save it

By Beth Van Schaack

Originally posted on Justice Security here

Word out of Washington is that the Trump Administration has started to restructure the State Department and particularly the Under-Secretariat for Civilian Security, Democracy & Human Rights.  “J” (as it is called around Foggy Bottom) encompasses a number of Bureaus and Offices, including the Bureau of Counter-Terrorism and Countering Violent Extremism (CT/CVE), the Bureau of Population, Refugees, and Migration (PRM), and the Office to Monitor and Combat Trafficking in Persons (TIP).

First on the chopping block appears to be the Office of Global Justice (GCJ). GCJ serves as the principal adviser to the Secretary of State and other governmental agencies on U.S. policy related to the prevention of, and responses to, war crimes, crimes against humanity, and genocide.  GCJ also serves as the liaison to international, hybrid, and mixed tribunals exercising jurisdiction over these international crimes, including the International Criminal Court.  Working with other functional and regional bureaus and offices, GCJ participates in atrocity prevention-related activities, including the Atrocities Prevention Board. GCJ’s work is discussed in greater detail at the Samuel Dash Conference at Georgetown Law in April 2017 (the GCJ panel starts at minute 43). Normally run by an Ambassador-at-Large, the Obama Administration never nominated a successor to Ambassador Stephen Rapp, who served in the role from 2009-2015. Since then, the Office has been headed by Special Coordinator, Todd Buchwald, on detail from the Legal Adviser’s Office (“L”).  Buchwald has apparently been told that his detail will terminate shortly; the remaining staff may be folded into DRL.

Unlike the Bureau of Democracy, Human Rights, and Labor (DRL) (history here) and other offices/bureaus, GCJ is not Congressionally authorized. It does, however, derive guidance and its mandate from longstanding U.S. government policy commitments and legislation, including:

  • The ADVANCE Democracy Act of 2007 (22 U.S.C. 8213) directs the Ambassador-at-Large for War Crimes Issues to assist the President and other senior officials in collecting information regarding incidents that may constitute crimes against humanity, genocide, slavery, or other violations of international humanitarian law.
  • The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S. 2318, in 22 U.S.C. 2708) expanded the Department of State’s authority to issue rewards for information leading to the arrest or conviction of foreign nationals indicted by an international, hybrid, or mixed tribunals for genocide, war crimes, or crimes against humanity.

Additionally, GCJ regularly briefs Congress on international justice issues. For example, the Conference Report (H. Conf. Rep. No. 112-331) accompanying the Department of State, Foreign Operations and Related Programs Appropriations Act of 2012 directed the Secretary of State to submit reports “detailing what steps have been taken by the Government of Sri Lanka and international bodies to thoroughly and credibly investigate war crimes and violations of international humanitarian law during the internal armed conflict, and evaluating the adequacy of steps taken by the Government of Sri Lanka to hold perpetrators accountable.”  GCJ led an extensive review of diplomatic, open source, and other reporting, and conducted meetings with foreign governments, international organizations, and NGOs to gather information of atrocities. One of the reports is here.  Similarly, the conference report for Public Law 112-74 (the “Consolidated Appropriations Act, 2012”) expressed concern that former Chadian president Hissène Habré has not been extradited from Senegal for prosecution for crimes against humanity, and directed the Secretary of State to submit a report to the Committees on Appropriations on steps taken by the Government of Senegal to assist in bringing Habré to justice.  GCJ’s report is here.

The timing of this move could not be much worse. The Prosecutor of the International Criminal Court is slated to release her new report on preliminary examinations this fall at the next meeting of the ICC’s Assembly of States Parties. The ICC Office of the Prosecutor has been looking at international crimes committed in Afghanistan since 2003, when Afghanistan ratified the treaty. In her most recent report, she indicated that war crimes (torture and related ill-treatment) committed by U.S. military forces and Central Intelligence Agency personnel were under consideration, particularly abuses committed in 2003-4.  Having an experienced ambassador or ambassador-equivalent, with expertise in international criminal law and diplomacy, to represent the United States has been crucial to U.S. engagement with the Prosecutor as this examination has unfolded.

Furthermore, the Court’s jurisdiction over the crime of aggression is slated to be activated this fall. The Bush Administration did not participate in the early phases of the drafting of those amendments to the ICC Statute, to the detriment of the United States which struggled to play catch up when the Obama Administration changed course.  The OTP is also considering the situation in Israel/Palestine, which is also of acute concern to the United States.  In short, disengaging from international criminal institutions again will not serve U.S. interests.

This spring, Secretary of State Rex Tillerson promised that he would undertake a “listening tour” to better understand the various portfolios of the different offices and bureaus within his Department; however, this has amounted to little more than the dissemination of an online survey to all Department employees. If he had conducted meaningful outreach to GCJ, he would have learned that the Office has undertaken a range of activities around international justice issues with strong bipartisan support.  By way of example:

  • GCJ coordinated a long-standing campaign to discourage governments from extending diplomatic invitations to senior Sudanese officials subject to ICC arrest warrants for genocide and other crimes in the Darfur investigation, including President Omar Al-Bashir.
  • GCJ engaged in high-level diplomacy with the African Union, Senegal, and Chad resulting in the establishment of a hybrid AU-Senegalese court in 2012.  GCJ also worked to secure a $1 million U.S. contribution to the court, which convicted Habré in 2016.
  • Following the peace agreement in Colombia, GCJ has provided technical expertise to key players in the transitional justice process to ensure that agreement is implemented in a way that will meet Colombia’s international and domestic legal obligations and promote durable peace.
  • GCJ successfully obtained and shared with the Department of Justice and others the “Caesar photos,” a cache of over 50,000 photos smuggled out of the Syria by an Assad regime defector.  GCJ then worked with the FBI to authenticate the photos, which have been shared with likeminded foreign governments also focused on accountability for atrocities committed in Syria. This led to the filing of a ground-breaking lawsuit in Spain on behalf of the sister of one of the victims.
  • GCJ has coordinated the State Department’s financial and political support for the establishment of an African Union hybrid court to investigate and prosecute those responsible for crimes committed in South Sudan.
  • GCJ has actively supported the International Criminal Tribunal for the former Yugoslavia (ICTY) and has helped several Balkan countries set up and develop their domestic war crimes tribunals. It also seconded one of its staff to the European Union’s Special Investigative Task Force (SITF), which conducted criminal investigations into the war crimes and organized crime allegations in Kosovo and laid the groundwork for the establishment of a hybrid court in the Netherlands to prosecute offenders.
  • GCJ participated in the Atrocity Prevention Board’s first-ever large-scale mission to a focus country, Burundi, which helped to build international attention to a burgeoning crisis.

On an ongoing basis, GCJ works closely with officials from a wide range of tribunals and national law enforcement institutions to locate and apprehend fugitives.  GCJ also provides technical expertise to the Department, interagency partners, partner governments, international institutions, civil society organizations, and victims groups on how to document atrocities, promote justice and accountability, and deploy the whole range of transitional justice mechanisms post-conflict.

In addition to the fate of GCJ, there are indications that PRM, which has been coordinating the U.S. response to the global refugee crisis, might be dissolved or devolved into another Department or Office. Once option apparently under consideration would place PRM under the Department of Homeland Security (DHS), which would reframe U.S. refugee policy as a national security threat rather than a humanitarian enterprise.

Although Republican members of Congress are likely hesitant to interfere in bureaucratic restructuring with the State Department, too much is at stake when it comes to promoting justice for international crimes while protecting the United States’ ability to exercise jurisdiction over U.S. personnel to leave the fate of GCJ to rash and ill-informed decision-making.

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