First It’s the Muslims: An Evolution to Dictatorship

By David M. Crane

(Re-published from Jurist | Feb. 3, 2017) How did a great country with a strong and respected place in the world, a center for culture and tolerance, elect a man who would plunge the world into what a commentator called “a place of anguish and fear”? This is a question many historians and policy makers asked themselves about Germany in the 1930’s.

“I have faced down dictators most of my professional life. To understand my adversary I have studied the twentieth century’s dictators, how they came to power, their psyche, and their methods of destroying their own citizens. There are patterns, similarities, regarding despots, dictators, and thugs who rise to and hold power in their countries.”

The manner in which Adolf Hitler came to power initially was legitimate and within the constitutional bounds of German law. An obscure former corporal in the German army, he ran for the highest political office in his country on a platform of nationalism, essentially declaring it time to make “Germany great again.” Stung by the humiliating terms of the Versailles Treaty, Germany retreated inward burdened by reparations and eventual economic depression; this liberal democracy struggled to redefine itself in a post-WWI world. Hitler’s speeches declared that Germany could be a great country again, with a strong people, who could move forward to reclaim their historic place in Europe. All this rang true to a defeated people.

Hitler’s rhetoric in those days formed the murky beginnings of a far darker political dynamic, but the German people — Dem Deuctshevolk — shop workers, shopkeepers and farmers, looked beyond this darker theme and focused on a more promising future in a proud and assertive Germany. As he ran for Chancellor, Hitler focused on the economic issues of the time, promising to restore the German economy and bring back jobs. “German business first” was what a German citizen liked to hear.

Adolf Hitler became Chancellor of Germany in 1933, barely more than eight years after he was released from a Bavarian prison for the Beer Hall Putsch. The first year of his rise to power was a heady time where money poured into infrastructure and rebuilding the German army, in blatant violation of the Versailles Treaty. The concept of a people’s car, a Volkswagen, became a reality to be driven on the world’s first interstate road system, called the autobahn. German citizens saw jobs, better pay, and a brighter future.

Then the nibbling at Germany’s democratic principles began, subtle at first, but picked up over the next few years, and by the time of the 1936 Olympics in Berlin, led to a state policy to shift power from the people to one person, a Fuehrer. Backed by the Reichstag, new laws were passed shifting the power to a single executive. Additionally, as this happened, Adolf Hitler began to raise the stakes against perceived enemies of the state by using fear to cause the German people to give away their freedoms one at a time to fight the threat — Bolsheviks, Slavs, and Jews. Claiming a conspiracy to keep Germany weak, various minorities were singled out as a threat to the country and its people. It was this existential threat from within and outside the country that Hitler built upon a fear so much so that the citizens of Germany turned to their leader, their Fuehrer, to protect them.

The intellectual elite of Germany and much of the middle class at first stood back, amused, embarrassed, disbelieving that this proud nation of culture, of tolerance, of openness would elect this small little man who ranted and raved about a great German nation, a Reich that would last a thousand years. They could not believe that he would last long politically and stood aside in the early years thinking that the political system in place would cause his demise. By the time they realized the shift of almost complete power to one man had actually happened, it was too late. They had only one choice: swear allegiance or leave. Some left when they still could, but most stayed and accepted their national fate.

I have faced down dictators most of my professional life. To understand my adversary I have studied the twentieth century’s dictators, how they came to power, their psyche, and their methods of destroying their own citizens. There are patterns, similarities, regarding despots, dictators, and thugs who rise to and hold power in their countries. Their track record is horrific with the destruction of over 95 million human beings at the hands of these dictators in the last century.

Understanding the similar conduct of largely ordinary men rising to absolute power can help us in many ways: from investigating and prosecuting them for violations of domestic and international crimes, identifying those politicians or political movements trending toward despotism, to prevention and counter measures to blunt their move to power. Liberal democracies today need to understand the past, the present trends, to protect our futures. The consideration of these traits are instructive today in the United States and elsewhere.

So what are those similarities among despots and dictators? First in a country where a dictator comes to power, there is an anger towards the establishment, a long term disappointment and lack of trust in their government.They use this loss of faith in the centralized government to start building a political base to gain power. Dictators want to “drain the swamp,” to clean house, to start over.

Second, the rising dictator uses fear to shift that frustration away from their policies to what is called “a boogey man.” Dictators for a century all used a “boogey man” to focus their citizenry away from their absolute power to a threat outside the country. The Three Pashas in Turkey blamed the Christian Armenians for the loss of the Ottoman Empire; Adolf Hitler blamed the Jews for weakening Germany; Joseph Stalin and Mao Tse-tung focused on Western capitalism; and the Ayatollah of Iran blamed the Great Satan of America for their economic problems. Outsiders who were different, who had a different religion became an internal and external threat and were either accounted for and interned or deported. Those who sought admission to their country were banned for who or what they were.

Third, dictators view the press as their enemy and initially seek to limit press access to their regimes, then ban or control the press entirely. They consider the press an enemy of the state and take appropriate action. The liberal press is blamed for factual distortions. The dictator declares they are not using real facts and fashion their own truths, what you would call today “alternative facts.” Joseph Goebbels stated that “if you lie to the people long enough, they will believe it as the truth.” In a dictatorship the truth is the first casualty …

To read the whole blog, click here.

Our Work Never Ends: An Interview with David Crane

By David M. Newstead

(Re-published from The Philosophy of Shaving | Jan. 15, 2017) War crimes investigator David Crane returns to discuss the conflict in Syria, proposed human rights laws in the United States, and the impact of populist elections around the world.

“This is the first time in a long, long time when everything is new and everything is on the table.”

David Newstead: How do you think this wave of populist elections around the world will impact international law and human rights?

David Crane: The honest answer is, I don’t know. One could certainly seem to think that it is not going to augur well for the future. However, that just remains to be seen. I would hope that we could at least keep where we are as opposed to taking steps back. But frankly, I am not confident. This is a clarion call for all of us to work harder, particularly in the public relations realm, to keep the concept of seeking justice for people who are oppressed in some kind of light so that it just doesn’t disappear back into the shadows as it was before the early 1990s.

David Newstead: Human rights laws like the original Magnitsky Act were bipartisan pieces of legislation and had strong Republican support. Do you see any hope for the expanded version of the Magnitsky Act or the Caesar Act in either the Republican controlled Congress or the Trump administration?

David Crane: I helped draft the Magnitsky Act and had testified on the Caesar Act before the House Foreign Affairs Committee earlier in the summer. You know, it’s interesting. It’s kind of a bellwether as to what the sense of Congress is at least right now. The other week, the Caesar Act passed on a voice vote in the House, which was a positive sign.

I’m not so sure about the Senate. I don’t have as good a read on it as I do in the House. I’m very good friends with Congressmen Ed Royce and Chris Smith, two champions of human rights who have worked with me since 2002 when I was doing my work in West Africa. I just don’t think it has the sense of urgency in the Senate that it does in the House. I’m not confident, though I could be surprised, that this is going to move forward. It has to move forward now obviously or it will not see the light of day. And I can’t see within the next year anything like a Caesar Act working its way through a Trump Administration.

I could be wrong, but I’m just not sure. I don’t think the new President-elect has any interest in this area at this point. Sees no need in it. Sees no political benefit in spending his time and energy on these types of issues. I’m not even sure who his main contact is in this area. If it’s Michael Flynn, then that doesn’t augur well.

To answer your question, it’s really up to the likes of Senators Bob Corker and Mitch McConnell. I’m just not getting a sense that they’re going to spend a lot of time of this. I could be wrong, but we just don’t have that momentum in the Senate that we used to have even when it was bipartisan. People like Senators Pat Leahy and Judd Gregg worked the hallways for these laws and worked together for decades. I’ve worked with them myself on getting international criminal law and human rights legislation through and they’ve been pretty good on it. But you know, I’m just not seeing a lot of momentum in the Senate on this.

David Newstead: If Trump’s recent endorsement of Filipino President Rodrigo Duterte’s drug war is any indication, what kind of human rights policies do you think we can expect?

David Crane: I’ve thought this through a lot. We either have a great moment or a moment of tragedy. For some bizarre reason, we have this moment with Russia that is something that is not comfortable for those of us who are old Cold Warriors, but also just individuals who look at Russia very skeptically for a lot of reasons. What an interesting thing if Trump and Putin actually formed a kind of grand alliance to handle some of the challenges internationally. The method may not be palatable, but the end product may be a solution for Syria, for example.

But I don’t know. This is the first time in a long, long time when everything is new and everything is on the table. No one really has a sense, because it’s a complete paradigm shift. Even all the key players in that crazy town that I lived in and worked in for so many years, all the key contacts and the people that make things happen … They’re no longer in power or even in anybody’s inner circle. We can’t shape, mold, or effect current and future policy, because they’re just not listening. Either the new administration is eventually going to come around, because they’re going to have to or they’re not going to get anything done. Or we’re going to see an amazing series of policy shifts internationally the likes of which we haven’t seen since Harry Truman and the Truman Doctrine …

To read the full blog entry, click below …

Our Work Never Ends: An Interview with David Crane

A Step Forward: The UN & Justice for Syria

By David M. Crane

(Re-published from Jurist.org | Jan. 1, 2017) On 21 Dec., 2016, 105 member states of the United Nations General Assembly took an important step forward in seeking justice for the people of Syria. The action-taking was a resolution that paves the way for an independent organization to begin collecting, cataloging, and analyzing data and other criminal information coming out of Syria into proper evidence to be used someday by a local, regional, or international prosecutor someday in order to hold accountable all parties committing international crimes in Syria from March 2011 to the present.

“As we began to consider various mechanisms to cure this problem, an accountability center became apparent.”

Since the beginning of the civil war in 2011, there have been dozens of efforts by various nongovernmental organizations to collect data on the crimes being committed in Syria. Though laudable in their efforts, this massive amount of data is useless in a court of law. It is unreliable and not authenticated, with no chains of custody or other safeguards. Essentially almost all of the data being collected regarding crimes in Syria is tainted and inadmissible.

Three organizations did begin to emerge that were working in tangent to correct this problem. One of these is the Syrian Accountability Center, which I founded in March of 2011 to create a trial package for a future local, regional, or international prosecutor. It is designed along the same methods I used to investigate and indict President Charles Taylor for war crimes and crimes against humanity in West Africa. Additionally, two other organizations are doing important work, the Coalition for International Justice and Accountability and the Syrian Justice and Accountability Center. The heads of these three organizations met and briefed various UN ambassadors on the evidence challenges in November. It was there I urged the creation of the accountability center concept.

As we began to consider various mechanisms to cure this problem, an accountability center became apparent, a center run by experienced international criminal law professionals who could take this mass of data already collected, and still coming out of Syria, and turn it into that evidence necessary to hold accountable those parties committing crimes in violation of Syrian and international law.

The international community has spent millions of dollars supporting efforts to build data bases by organizations who in large measure do not have the experience to build a criminal case. The accountability center concept was designed to fix this problem. Throughout Fall 2016, we carefully planned a campaign to garner the support necessary to succeed in creating the accountability center. Under the leadership of ambassadors Christian Weneweser of Lichtenstein and Alya Althani of Qatar various paths were considered from the Security Council, the General Assembly, and possibly a regional organization such as the European Union or the Arab League. The General Assembly was the most realistic pathway to success …

To read the complete article, click here.

 

Fatal Attraction: The International Criminal Court & Politics

By David M. Crane

(Re-published from Jurist | Nov. 30, 2016) Several years ago, I gave a speech in which I stated that prosecutor who does not consider politics and diplomacy in their prosecutorial decision-making is naive. I still stand by those remarks. The basis for the statement was to shift the focus not on the process of prosecution at the international level, but on the victims themselves. I repeatedly told my staff in the Office of the Prosecutor at the Special Court for Sierra Leone that all that we are doing is for and about the victims of the ten-year horror that was the civil war in West Africa.

“The ICC is an institution worth saving. Its supporters must do all that they can to ensure its viability to including its political viability.”

When one shifts this focus to the victims it becomes clear that there are several factors that come into play for an international prosecutor as they consider a prosecution plan to account for an atrocity and to do whatever they can to seek that justice. These factors include the law to be sure, but also politics, diplomacy, custom and practical implications of a possible series of indictments. Within ethical bound of the law, an international prosecutor seeks a just result, free of bias and favor.

International tribunals are creatures of politics. Created from a geopolitical event and products of political compromise, tribunals have political DNA baked into their systems. The bright red thread of international criminal law is politics. Leave out the political dimension in a prosecution strategy and a tribunal may have challenges that could harm the process of accountability for the victims of an atrocity.

Throughout my time in West Africa I took in all of the above factors and focused on politics. Now it is important to understand that this is politics with a small “p.” Most creative statutes for international courts and tribunals have a provision which clearly says that the prosecutor cannot seek favor [PDF] or be influenced by outside entities in their decisions on who to investigate and prosecute.

That is not what we are talking about here. We are talking about engaging politicians and diplomats in an ongoing dialog on what is best for a country, a region and even internationally. Listening to a politician or diplomat’s views on the political situation in the region, seeking their perspectives on what happened to that region shows to the politicians and diplomats that any prosecution plan is deliberative, careful, balanced taking in the political, diplomatic, cultural, practical and legal ramifications of a prosecution plan. Showing local, regional, and international politicians and diplomats a little respect goes a long way in seeking justice for victims of atrocity.

The International Criminal Court (ICC), the world’s permanent court set up to prosecute the most egregious, must always take into consideration the factors discussed above—particularly politics. This important court exists in a political world driven by political considerations. Nation states always consider the political ramifications of their international and national security decisions. When an outside entity threatens that security, a nation-state will react to protect its interests using whatever means necessary, hopefully within the law.

Recent decisions by state-party to the Rome Statute [PDF] to withdraw from the treaty and the paradigm of accountability for victims of atrocity reflects some earlier decisions made by the ICC that have festered into open defiance. This is not healthy for the evolution of the rule of law internationally and justice for victims specifically.

The ICC is an institution worth saving. Its supporters must do all that they can to ensure its viability to including its political viability. The current and former Chief Prosecutors are talented and capable colleagues and friends. They are certainly not naïve. The recent initiative by the current Chief Prosecutor, Fatou Bensoudain issuing her Policy Paper on Case Selection and Prioritization [PDF] this autumn is a step in the right direction …

To read the complete article, click here.

http://jurist.org/forum/2016/11/David-Crane-fatal-attraction-the-international-criminal-court-and-politics.php

Preserve Social Media Data to Ensure Justice for Syrian People

By David M. Crane & Jennifer M. Grygiel

(Republished from syracuse.com | Oct. 3, 2016) Social media has taken the world by storm. Platforms and the prevalence of mobile phones have changed the culture of how we connect to the Internet and each other. How we view the world. What we see. And for many is now a part of our everyday being.

“Buried within this tsunami of information is possible criminal information that can be used as evidence to prosecute domestic or international crimes.”

Real-time connectivity and access to information is now the norm. We don’t just connect to our friends and family; we are connected to people around the world. We are world citizens communicating via binary code — the universal language that our machines speak in.

The web has opened up places that would be closed to us otherwise. We have newfound access and the ability to see into the dark corners of the world where conflict and impunity reign. We are able to gain knowledge but also bear witness to crimes against humanity, suffering and tragedy. Social media in particular has shed light on what is happening in South Sudan, Iraq, Yemen, Afghanistan, Colombia, Myanmar and Venezuela. Atrocities are more difficult to cover up and hide when citizens have the ability to document and publish the truth via social media.

Since March 2011, during the Arab Spring, the people of Syria began their long march to freedom down an uncertain road. Information began to flow out of the country slowly at first, then as a torrent of data. The data is collected daily by the media, nongovernmental organizations (NGOs), governments, citizens as well as authoritarian regimes. Almost all of it raw, unverified and void of authenticity. The sheer volume of data creates challenges.

Buried within this tsunami of information is possible criminal information that can be used as evidence to prosecute domestic or international crimes. Organizations that are working to collect and utilize this data are overwhelmed by the volume, analysis and technology limitations …

To read the whole commentary, click here.

INSCT Faculty Member David M. Crane is a law professor at Syracuse University College of Law. He is an expert in war crimes. Jennifer M. Grygiel is assistant professor of communications/social media at SU’s Newhouse School of Public Communications.

Five Years on, We Must Focus on the Victims of Syria’s Atrocities

By David Crane

(The World Post, March 14, 2016) March 15, 2016 marks the fifth anniversary of the Syrian civil war, a battle that began in 2011 with scattered anti-government demonstrations and has since become a full-blown geopolitical and humanitarian crisis. So far, the conflict has mired regional and world powers in what some experts describe as a proxy war, taken more than 250,000 lives, left 13.5 million people in need of humanitarian assistance, internally displaced more than 6.5 million, forced 4.8 million into refugee life and seen the terrorist group the Islamic State rise from the ashes of Al Qaeda in Iraq to become a self-proclaimed “caliphate” that controls parts of the country.

“The people of Syria must not feel that they are alone in their suffering, and it is incumbent on those who value the rule of law to stand up and pledge that some day justice will be done.”
Since the start of the crisis, numerous crimes against humanity and war crimes have been documented, including the use of nerve agents, chlorine and other toxic chemicals; indiscriminate weapons, such as barrel bombs; torture and execution; siege and the denial of assistance; and sexual violence and sex slavery. Currently, the only signs of peace are a fragile truce and fractious, stuttering peace talks that started up again on March 14. These talks will focus on stopping the violence, organizing a monitored peace and transitioning to a new government. There also will be negotiation for a possible political “out” for President Bashar al-Assad. What is not on the table is a transitional justice mechanism for the conflict’s innocent victims.

While peace and post-conflict efforts are in their infant stages, the international community must begin thinking about redress for Syrian civilians when the fighting ends. The people of Syria must not feel that they are alone in their suffering, and it is incumbent on those who value the rule of law to stand up and pledge that some day justice will be done. After all, noncombatants in this conflict have endured some of the most horrific atrocities the civilized world has ever witnessed.

In international law, crimes against humanity and war crimes, such as those perpetrated upon innocent Syrian people, are covered under the 1998 Rome Statute of the International Criminal Court. However, Syria is not a signatory to the Rome Statute, so the ICC has no direct jurisdiction over the country, and efforts so far by the U.N. Security Council to adopt a resolution to refer the situation to the ICC have been opposed by permanent members Russia and China.

Nevertheless, justice for Syrian victims and their families can be attained, especially if the international community reaches out to the Syrian people to understand how they view justice and what mechanism — beyond the ICC — could work for them.

For instance, there are four possible transitional justice mechanisms for Syria that could be organized by the U.N. outside the Security Council: a fully domestic Syrian court; an internationalized domestic court; a regional special court; or an international hybrid special court, similar to the Special Court for Sierra Leone.

The Special Court for Sierra Leone was created by the U.N. for the people of Sierra Leone in 2002 after that country’s civil war. SCSL — for which I was a chief prosecutor from 2002 to 2005, indicting former President Charles Taylor, who was convicted in 2012 — used both local and international justice mechanisms. Importantly, the special court reached out to ordinary Sierra Leoneans with town hall meetings that explained the nature and purpose of the court and why it would use representative crimes in order to seek transitional justice. At the same time, these meetings enabled ordinary people to share their stories in an unofficial form of “truth and reconciliation.”

In preparation for whatever transitional justice mechanism the Syrian people choose for themselves — and working under the maxim that “justice delayed is justice denied” — the Syrian Accountability Project, a student-run project at Syracuse University College of Law, where I now teach, has been carefully documenting atrocities that have occurred in Syria …

To read the full article, click here.

Molly E. White, juris doctor candidate (2016), Syracuse University College of Law, and chief registrar, Syrian Accountability Project, contributed to this article.

The Rules Have Not Changed Regarding Armed Conflict

COOPERATIVE NUGGET '97By David M. Crane

(Re-published from The Jurist, March 30, 2015) Shortly after three planes went into three buildings on September 11, 2001 the chief law enforcement officer of the US, Attorney General Albert Gonzalez declared that the Geneva conventions were quite out-dated.

This amazing and naïve statement followed a similar declaration by then-President George W. Bush that the “rules have changed” related to fighting terrorists. These statements set off a series of policy missteps that led to Guantanamo, Abu Ghraib, Bagram AFB, secret prisons in Eastern Europe and North Africa and the perceived loss of the moral high-ground by the US related to conflict in the 21st century.

No longer that “bright and shining city on the hill” the US continues to limp into the new century not as a leader regarding the international rule of law but only as a participant in a series of kaleidoscopic events that seem to challenge the very foundation of the rule of law, particularly the laws of armed conflict. At no time is the rule of law more needed than now in this apparent “age of extremes”. Do the rules really need to be changed?

A recent trial shows those rules do not need to be changed, just followed. Four Polish soldiers were found not to have committed war crimes in an incident in 2007 where civilians were killed. Poland had been part of the NATO led coalition in Afghanistan for 12 years. A military court found that they did not intentionally target civilians, a war crime if proven. The military judges did find them negligent in following orders, a dereliction of duty-type offense in the US military. The press seemed to take this as some type of failed judgement. I consider it an affirmation that the laws of armed conflict are alive, vibrant, and being used in the way contemplated by the drafters and followed for over 60 years by nations involved in conflict situations.

The laws of armed conflict state that no civilians can be intentionally targeted. The law recognizes that in the heat of combat there are collateral effects to the battle to include civilian deaths excusable in law. Additionally the laws of armed conflict require that all signatories to the Geneva Conventions, when faced with allegations of a war crime investigate, prosecute (under their domestic system of justice) or hand the alleged perpetrators over to a party to the conventions willing to prosecute for the war crime.

The Poles appear to have followed not only the spirit but the letter of the law. They investigated the civilian deaths and charged the four soldiers with war crimes under Polish domestic law. The outcome was decided in a fair and open trial. The fact that it was not proven that they intentionally targeted those civilians was up to the trier of fact in that domestic prosecution. Hence the outcome as reported.

This shows that the rules are working and they do not have to be changed. The NATO coalition followed the laws of armed conflict. The coalition does investigate and hand over perpetrators to member domestic systems for resolution. Though not perfect, the record does show that coalition forces do hold accountable members of their armed forces who violate the laws of armed conflict in trials and courts-martial …

To read the entire blog, click here.

The Case for Referring Syria to the ICC: Interview with David M. Crane

Caesar_Report(Re-published from Syria Deeply, May 14, 2014) … On Monday France circulated a draft resolution to the five permanent members of the U.N. Security Council, seeking to refer the situation in Syria to the International Criminal Court (ICC) in the Hague for prosecution of war crimes and other crimes against humanity.

Because Syria is not a state party to the Rome statute (which established the ICC), the court can only obtain jurisdiction to investigate if a referral is endorsed by all five members of the Security Council.

The Council’s previous attempts to refer Syria to the ICC have been met with public support by a significant portion of its members, and by Navi Pillay, the U.N.’s high commissioner for Human Rights. But similar referrals have been continuously blocked by Assad allies Russia and China.

France’s latest resolution condemns Syrian government officials and pro-government militias as well as non-State armed groups. The United States has lent its support, leading to speculation that the new resolution could lead towards breaking the Council’s deadlock.

The push comes after an informal Council meeting organized by France last month. There, member states viewed graphic photos that former war crimes prosecutors say are direct evidence of the brutal torture of detainees by Assad’s security forces from March 2011 to August 2013. The images were smuggled out of Syria by a former military police photographer who defected and was given the code name Caesar.

David Crane was the chief prosecutor at the ICC’s Sierra Leone war crimes tribunal that indicted former Liberian dictator Charles Taylor. He was also one one of three international lawyers who examined Caesar’s photos for authenticity. Here, he weighs in on the case for referring Syria to the ICC, and his work for the Syrian Accountability Project , an initiative documenting war crimes in the context of the Syrian conflict.

Syria Deeply: How is this draft resolution different from previous resolutions referring Syria to the ICC?

David Crane: After we showed a series of pictures we used to evaluate and issue our report, the president of France stood up and asked for questions, and the U.N. Security Council members fell silent from the shock of seeing the degree of abuse taking place in Syria.
This isn’t just a question of numbers. Scale can be an aggravating circumstance in court, but method and process is what gets people convicted.

France has taken the lead on pushing the issue of war crime referral at the Security Council. The key difference from previous resolutions is that this draft refers all sides to the ICC for crimes against war and crimes against humanity.

The theory is that Russia and China vetoed previous resolutions because it looked like the Security Council was just going after the Assad regime.

This resolution draws a political line that will push Russia in a corner, forcing it to clearly state where it stands on Syria. It will be hard for them to reason why, as members of the U.N. paradigm, they would veto a resolution that holds both sides accountable. The Russians will most likely exercise their veto power, but it will put them on the wrong side of history.

The U.S. and the rest of the Security Council will probably back the draft resolution; China will likely abstain from voting.

Syria Deeply: In Syria’s case, are their justice mechanisms and options to consider beyond the ICC?

Crane: If Russia continues to use the veto card, I have told the Security Council that we will have to look at other justice mechanisms beyond the ICC. We have been working on developing a statutory model called the Chautauqua Blueprint, a draft statute prepared by a panel of international judges, leading experts, and tribunal chief prosecutors which aims to provide a model for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.

At this point, there are four possibilities of a justice mechanism: The first would be a Syrian domestic court that would try individuals for violations of civil law. Second is an internationalized domestic court that uses Syrian criminal law to prosecute, where international experts assist with prosecution. Third is a regional court that has bilateral or multilateral representation from regional countries, and the fourth option: the ICC. Over the course of the six months, we are going to see a move to establish one of these options, with the caveat that we have a situation where we will most likely have to accept that Assad will be re-elected …

To read the complete article, click here.

IOC & FIFA Should Take Action on Human Rights Abuses

Sochi_Olympic_FlameBy David Crane

(Re-Published from The Jurist, Feb. 17, 2014) As the 2014 Winter Olympics in Sochi, Russia draw to a close, many eyes are on the athletes competing for the most coveted prizes that international sport has to offer. We will inevitably hear stories about their many milestones and sacrifices that they have made to get where they are today. Moreover, we will hear stories of the triumphs and hurdles that the host government of Russia and local government of Sochi have overcome in order to stage a successful event. No doubt, these stories are very real and impressive. However, what you will most likely not hear about are the sacrifices made by the local citizens, the migrant workers, the environment, journalists, and ultimately the integrity of major international sporting events such as the Olympic Games.

In an event that was supposed to improve Russia’s image within the international community and rejuvenate the city of Sochi, has instead become a catalyst for the commission of several human rights violations. In February 2013, an international “watchdog” organization, Human Rights Watch (HRW), issued a report titled, “Race to the Bottom,” which identified numerous abuses being committed against the migrant workers in relation to the construction of the venues for the games.

[pullquoteright]HRW has documented several cases in which the Russian government has evicted people from their homes in order to provide room for the Olympic sites.”[/pullquoteright]The report indicated that workers are often housed with several dozen other workers in facilities that are meant for single families and are forced to work 12-hour shifts for days without any breaks. Additionally, many workers report that employers either fail to pay them their full wages or fail to pay them at all. Employers often engage in this practice to ensure that the workers will stay and continue to work despite the poor living conditions. As a measure to prevent the workers from bringing any claims of abuse to the government, employers refuse to provide them with copies of their employment contracts or their identification papers, passports and work permits. Consequently, there are numerous documented cases in which workers have been deported without pay when an employer no longer needs their services because they lack these papers.

Abuses have not been limited to the migrant workers. Local Sochi citizens have suffered as a result of construction as well. HRW has documented several cases in which the Russian government has evicted people from their homes in order to provide room for the Olympic sites. These people are often provided no compensation and left with nowhere else to go. Additionally, construction has caused serious environmental issues in the local villages surrounding the Olympic venues. For example, construction crews continue to conduct illegal trash dumps at sites in these villages and the citizens of the mountain village of Akshtyr have gone five years without a reliable source of drinking water after being disrupted by construction. Further, NGOs or protest groups advocating for these abuses to end have been subject to harsh inspections and harassment by the Russian government. Demonstrators won’t even be able to freely protest unless they are in a location pre-designated by the government far away from the site of the games. Even journalists have been subject to constant harassment by police.

Unfortunately, these abuses are not unique to just Sochi. Back in 2008, we saw the same abuses to migrant workers and local villagers in the years leading up to the summer games in Beijing. Workers suffered harsh working conditions and thousands of people were removed from their homes by the Chinese government never to be heard from again. Additionally, the government also forcefully silenced many journalists and activists trying to bring light to these abuses. Furthermore, forced evictions are already being reported in preparation for the 2016 summer games in Rio De Janiero to make way for new facilities …

To read the full article, click here.

Possible Justice Mechanisms for a Future Syrian War Crimes Tribunal

Testimony of David M. Crane Before the House of Representatives Subcommittee on Africa, Global Health, Global Human Rights and International Organizations

(Oct. 30, 2013)—The civil war in Syria has now entered its third year.  Started initially by, of all things, children protesting in Daara, the protests blossomed into full scale civil war the following month.  A part of the so-called “Arab Spring”, the unrest in Syria has now turned ugly.  The conflict has become personal and with that the brutality by all sides against combatants and civilians caught up in the melee has intensified. This was no more so than on August 21, 2013 when the regime of President Bashir Assad launched sarin gas projectiles into a suburb of his own capital, Damascus.  The results were horrific.  Almost 1500 people perished, hundreds of them children.  For the third time in 30 or so years chemical weapons were used in the Middle East in violation of international law, clearly a war crime.

Mankind is better than this.  Over the past 20 years the international community, in most instances led by the United States, has developed what I call the modern international criminal law system.  Through trial and in some cases error, mankind has finally resolved to punish dictators, tyrants, and thugs who murder, rape, maim, and mutilate their own citizens. The two ad-hoc tribunals for Yugoslavia and Rwanda, the hybrid courts to include Sierra Leone and Cambodia have created the proper procedures, evidentiary rules, and the jurisprudence to deal with heads of state who kill and destroy.  We have made great strides, but we are only at the beginning of a beginning.

David Crane and Students at Testimony-103013
Syracuse University College of Law student leaders of the Syrian Accountability Project (SAP) stand with Professor David M. Crane L ’80 and Rep. Chris Smith (R-NJ), Chair, House Foreign Affairs Committee Sub-Committee on Africa, Global Health, Global Human Rights, and International Organizations. At a hearing Oct. 30, 2013, the sub-committee listened to testimony by Crane in support of a Syrian War Crimes Tribunal, which possibly would rely on evidence gathered by the SAP. (L to R) Chris Elliot L ’15; Michelle Parker L ’14; Professor David M. Crane; Rep. Chris Smith; Jeff Howell L ‘14; and Dan Haverty L ‘15.

As the world’s only permanent court, the International Criminal Court, tries to finds its place in this evolution, we have come to realize that the future of modern international criminal law is not with the ICC but with domestic legal systems.  This was even contemplated and called for in the Rome statute that created the ICC.  It must be noted here that the ICC was designed to be a court of last resort, not one of first instance, therefore it is incumbent on the states-parties themselves to prosecute those who commit war crimes, crimes against humanity, or genocide it they are willing or able to do so.

We can prosecute heads of state for international crimes.  The law now provides for this and we have done it once before in the likes of Charles Taylor, the now former President of Liberia a convicted international criminal whom I indicted in March of 2003. So how do we do this in Syria?

Allow me to digress and to brief this committee on efforts to date to build a case against Bashir Al Assad and his henchmen as well as the Syrian Resistance.  Shortly after the Syrian unrest evolved into a civil war, Syrians and others began to discuss transitional justice mechanisms to hold accountable the Assad regime and over time, members of the resistance who violated both international and domestic law.  Governmental and nongovernmental organizations began work on documenting and cataloging the atrocities committed in Syria. Human rights groups within Syria itself began to report and to feed key data to these organizations.  Of note, the Syrian Human Rights Network has been a key source of information and they are to be commended for their dedication and bravery.

It soon became apparent that these organizations were at times working at cross purposes or were unaware of the work of other groups.  Data was being collected in multiple systems unknown to the other.  In the early days of all this, the Syrian resistance struggled, and still struggles, with a viable organizational structure from which to govern.  This hampered human rights organizations who attempted to develop methodologies to assist the resistance in developing a justice mechanism should the conflict end favorably for them.  Coordination became essential.

Over time the major organizations came together and meet twice a month to brief one another on their work, discuss areas of mutual support, and highlight upcoming training, conferences, and meetings.  The Syrian Accountability Project of which I founded and now chair, has become an umbrella organization in which all of these efforts are coordinated, pending perhaps the formal creation of a single data entry point.

Not only has an enormous amount of raw open source data and information been collected, the Syrian Accountability Project has taken that data and built a framework by which President Assad and his henchmen along with members of the opposition can be prosecuted openly and fairly either internationally, regionally, or domestically.  Now into its third phase the project has mapped the entire civil war, developed a crime base matrix which catalogs most of the incidents chronologically and highlights the violations of the Rome Statute, the Geneva Conventions, as well as domestic Syrian criminal law.  There even have been indictments drafted as templates for a future international or domestic prosecutor to consider.  We have given the first two phases to the Prosecutor of the ICC, the United Nations, the US Department of State, and the Syrian resistance leadership.  The methodology above has worked before as it was that methodology that I developed against a sitting head of state, Charles Taylor, President of Liberia back in 2003.

There are five possibilities for a justice mechanism in Syria.  I will take them one at a time and review their strengths and weaknesses.  I will then, Mr. Chairman, give you my recommendation and then take questions.

  1. The first mechanism, the International Criminal Court.  As the world’s permanent international tribunal the so-called ICC was set up in Rome in the late 1990’s to prosecute violations of the gravest of crimes.  Under the principle of complementarity member states are encouraged to prosecute their own, the ICC being a court of last resort or if and when that member state is unwilling or unable to prosecute.  The track record over the first decade of the ICC is spotty and questionable at best.  It lacks the capability and the political and diplomatic sophistication to handle such a mandate.  Coupled with the challenge of gaining jurisdiction over the atrocities the reality is that the ICC is not just up to the task.  It can barely handle its current caseload and investigations.
  2. A second option, an adhoc court created by the United Nations.  There have been two adhoc tribunals, one for the Balkans the other for Rwanda.  Each approaching their second decade, these tribunals have brought some justice and accountability to the victims of those atrocities, but at a huge financial cost.  Inherently inefficient and hampered by unrealistic mandates, location, and the byzantine personnel rules of the United Nations, adhocs are creatures of the past, politically unacceptable as a viable justice mechanism and model for future prosecutions.  As an aside, the creation of such a mechanism would require UN Security Council approval under Chapter 7 of the UN Charter and that is unlikely given the position of Russia on Syria. In the end Russia or even China would veto any resolution creating such an adhoc tribunal.
  3. A third option for justice is a regional court.  A possible solution might be a regional court, a hybrid, fashioned along the lines of the Special Court for Sierra Leone where I was its founding Chief Prosecutor.  Located at or near the scene of the crimes in Syria, such a model would be a visible mechanism for justice to the victims of the Syrian Civil War.  Its mandate would be to prosecute those who bore the greatest responsibility for the war crimes and crimes against humanity perpetrated during that civil war on both sides.  The effort could or would be an option backed by the Arab League with Arab jurists supplemented by Syrian jurists.  It must be noted, Western assistance in any one of these options would be viewed skeptically in my view.  Arabs trying Arabs, Muslims trying Muslims or Syrians trying Syrians is the preferred option. It must be noted, this tribunal would require some form of international sanction in the form of a Security Council resolution.
  4. The fourth option is an internationalized domestic court.  Similar to a hybrid regional court, an internationalized domestic court would be a Syrian chamber set up exclusively within the Syrian criminal system and supported by international personnel where needed.  Again it would be mainly Arab personnel.  This court might not need international sanction, but only region sanction.
  5. And finally, a domestic court system.  This is the preferred option.  Let the Syrian people try those who committed violations of Syrian law.  They do have the capacity to do this if given the leeway and time to settle into a sustainable piece.  Justice and accountability are important, but first Syria needs to transition into a sustainable peace before viable accountability can be achieved, but I must reiterate this can be done.

Having been in this business of facing down impunity and tyranny for almost 40 years, and having taken down a sitting head of state under the rule of law it is my considered opinion that an extraordinary chamber within the Syrian domestic court system is what the international community must support.  Again, let the Syrians try Syrians under Syrian law for what Syrians have done to each other.  We must ask ourselves, is the justice we seek the justice they want.  Modern international criminal law is essentially western justice, a justice that does not take into account unique and important cultural and historical dynamics that only Syrian law can deliver.  The other alternatives carry the weight discussed above and could be viable but are overwhelmed by the practical, political, and diplomatic hurdles each presents.

At the end of the day it is for and about the victims.  The Syrian people want vengeance, retribution, and justice.  We have to consider this and note and respect their views.  If they, the people of Syria, the victims, feel justice was not served than getting them to resort to the rule of law in the future rather than the rule of the gun will be difficult and the efforts of this committee, the US, the international community writ large will have been to no avail.

I thank the Chairman for this time and stand ready for your questions.

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  • For the other testimony and video from the Oct. 30, 2013 hearing, click here.