Trump & North Korea: Beware the Boogeyman

By David M. Crane

(Re-published from The Jurist | Aug. 11, 2017) Tyrants need a war. Looking back over the past hundred years one finds that tyrants come to power in conflict and remains in power largely due to conflict. It centers the populace, distracting them from other societal challenges to include their civil liberties.

Historically these conflicts created by a tyrant, dictator or insecure leader rarely succeed. The immediate result may be a distraction, but in the long term that nation, and its leader, end up weakened and in some cases worse off than they were before the conflict.

Politically weak or insecure leaders also need a distraction. I call those distractions boogeymen–nations, a peoples, or culture that the leader perceives to be a threat to the national security. This boogeyman also distracts from the political challenges both real and imagined that leader faces. Hitler had the Jews; Stalin capitalism; the Ayatollah the “Great Satin,” and Assad “terrorists” by way of a few examples.

Dictators and other leaders need a populace that is afraid. Fear is a powerful psychological tool to govern with and leaders use it for various reasons. A populace that is afraid of “something” looks to its leader for security and a solution. This is where the shadow of a boogeyman is useful. Fear can bring a society together in common cause.

Historically these conflicts created by a tyrant, dictator or insecure leader rarely succeed. The immediate result may be a distraction, but in the long term that nation, and its leader, end up weakened and in some cases worse off than they were before the conflict. Various circumstances intervene that were unintended consequences. History shows that these unintended consequences rarely benefit a leader.

Only the citizens of that country suffer those consequences. Simply put some of their loved ones do not come home. Tens of thousands perish their nation weakened politically and economically by the conflict. The nation itself loses stature internationally. Weakened trade through sanctions and other action only bring more unrest and insecurity.

The result is a country in worse shape than before the conflict. It all blows up in the tyrant’s face, with more unrest and division a result. In this information age, conflict is bad for global trade and business, unlike the industrial age where conflict was good for business. The world suffers from this type of threat and conflict as well.

As our President, politically weak, deeply insecure and challenged on all fronts looks for a distraction and a boogeyman, he conveniently has been handed one in the guise of Kim Jong-un and North Korea. From the President’s point of view, he has a “twofer,” a threat worthy of a conflict and a boogeyman. To maintain his political relevancy (and to silence whatever demons whisper to him) a looming crisis with nuclear implications is just what the doctor ordered. Words such as “fire and fury” ring true to him.

Suddenly the Russia scandal is off the front page. No one is talking about collusion, conspiracy, perjury or obstruction of justice. Attention is diverted across the Pacific Ocean to a hermit kingdom led by a crafty leader who uses just this type of tension to maintain his own power.

Kim Jong-un is a dictator, he needs a looming conflict, and he needs that boogeyman, as well, to distract his citizenry away from daily famine towards an impending attack by their boogeyman, the United States. The President has handed him politically a reason to lead his nation and consolidate power on a silver platter.

We have an insecure and an unstable leader in our President now in a possible “dance of death” with a brutal tyrant who is “crazy like a fox” …

To read the full article, click here.

 

A Step Backward: The Closure of the Office of Global Criminal Justice

By David M. Crane

(Re-published from The Jurist | July 21, 2017) With the raspy barking of a US President in the background trying to “Make America Great Again,” the world shrinks away in surprise and confusion. As the light begins to wane on that bright and shining experiment on the hill called “America”, the international community faces the yawning maw of a retrenching America, once again looking inward, shrinking away from a leadership position it has held since World War II. Unprepared for any of this, the West is losing its way uncertain and weakened. They look for any indication of someone to lead.

“The United States has always been at the forefront in creating justice mechanisms.”

It will not be America. From the environment to trade, the US has chosen to step away from not only legal but also moral obligations. This past week another indication of further retrenchment was manifest when US Secretary of State Rex Tillerson announced that he was closing the Office of Global Criminal Justice (OGCJ), the office where the US asserts leadership and support for international justice and holding accountable those who feed upon their own citizens. Like much else this new US administration has done, this is wrong!

The United States has been the cornerstone for the creation of modern international criminal law. It played the leading role at the International Criminal Tribunal at Nuremberg in 1945, the subsequent Council 10 trials, up to and including the establishment of the tribunals and courts for Yugoslavia, Rwanda, Sierra Leone, and Cambodia, as well as the International Criminal Court. BUT FOR the support of the United States, most of these justice mechanisms would not have come into existence or would have had existential and overwhelming challenges at the beginning. The United States has always been at the forefront in creating justice mechanisms.

Past administrations have had policy differences with the world community on the administration of international justice, but, at the end of the day, they did not waiver in the perception that the rule of law is important for a more stable world. This administration, a newly forming kleptocracy, is facing the rule of law with almost a blatant disregard, certainly a jaw-dropping disrespect not seen in the history of the republic. Ruefully, commentators have said that in Washington “nothing matters” …

To read the full article, click here.

 

What Did Trump’s FBI Nominee Know of US Torture Post-9/11?

By David M. Crane

(Re-published from The Hill | July 12, 2017) [On July 12, 2017] Washington’s attention turns to the confirmation hearing of Christopher Wray, nominated by President Trump as FBI Director following the firing of James Comey in that position.

“But perhaps the most disturbing recent official effort to sweep our torturous past under the rug is the Administration’s surrender of most copies of the 6,770-page study of the CIA’s detention and interrogation practices to the Senate Intelligence Committee.”

In the inevitable focus on the Russia investigation and Comey firing fallout, Senate Judiciary Committee members would be remiss not to use the opportunity to probe the issue of Wray’s previous role as Assistant Attorney General in President George W. Bush’s Justice Department. What are his past and current views on the use of torture in interrogations?

In the years following 9/11, our government unleashed a program of illegal torture and rendition of suspected enemies.

Recent efforts to bury the most comprehensive account to date of the U.S. torture program, coupled with Administration appointments of those who played a key role in it, raise sharp concerns about human rights, government transparency and accountability.

Wray served in  a Justice Department which sought to justify the use of torture by since-repudiated legal gymnastics. Glimpses from highly redacted government documents obtained through a Freedom of Information Act request by the ACLU indicate that, at the very least, Wray knew about detainee abuse and was involved in discussions about harsh interrogation techniques.

His stance in those conversations remains a mystery, but members of Congress and the American public have a right to a full picture of what happened. Nothing less will prevent a repeat of these mistakes.

Wray is not an outlier among recent appointees who played a role in this dark chapter of American history.

Steven Bradbury, a key enabler of the torture program, was nominated as General Counsel of the Transportation Department. Bradbury has suffered no consequences for his 2007 memo that helped authorize the since-discredited program.

These two nominations follow the February appointment of Gina Haspel as Deputy Director of the CIA; who, according to multiple reports, personally oversaw the use of torture at a black site in Thailand.

But perhaps the most disturbing recent official effort to sweep our torturous past under the rug is the Administration’s surrender of most copies of the 6,770-page study of the CIA’s detention and interrogation practices to the Senate Intelligence Committee, which produced the report.

This recall was requested by the Chair of that Committee Sen. Richard Burr (R-NC). The declassified summary of the report contains a damning assessment of the CIA’s tactics as both ineffective and damaging to America’s reputation and influence.

It raises the distinct possibility that some of these actions violated both international and domestic law …

To read the full article, click here.

 

A Darkened Age—The Rule of Law in Protecting Morality and Humanity

By David M. Crane

There is a growling of a discontent, an unrest, just below the surface, festering ready to erupt into a boil of frustration. The salve of the rule of law diluted or unavailable. The world today shifts to the right or spins helpless, struggling to find an anchor, a safe harbor in which to balance itself.

“The world wobbling, citizens looked to new political leaders who promised to restore greatness, an elusive idea that cannot be attained alone in this new century.”

There is no light towards which we can step towards, hopeful that mankind is moving in a direction that is right and proper. Our kaleidoscopic future looms, where tried and true customs and norms shrink from this new thinking of looking inward and away from a global village that was beginning to change the world stage.

In another context we have been here before. For 50 years we saw a stasis that saw the rise of the dictator. The Cold War was a desperate time trying to maintain a balance that would avoid Armageddon. Death and destruction by heads of state against their own citizens was rampant, with little checks against internal struggles. Mankind simply looked the other way as long as loyalty towards one side or the other was maintained. Tens of millions perished, disappearing into the sands of time forgotten as if they never existed.

As the Cold War ended there was a sense of optimism that we had changed for the better, the rule of law began to take hold, the UN taking its intended position of guiding the international community [PDF] towards a real peace and security never attained before. Tyranny shrank before this blinding light and dictators faced accountability. The new millennium held promise, more so than any other millennial event.

It all came crashing down with the towers on September 11, 2001. A fundamental shift took place, at the time seemingly correct, wrapped in a ragged cloth of righteous fury. But the pain of that day stripped away our innocence, our hope, our desire to build a global village where all mankind would benefit. America turned into itself, seemingly trying to lead, to fight against a new and elusive adversary, yet chasing its tail against itself. American civil liberties were challenged. The world watched and stepped away, subtly looking for other leadership and other ways to survive in a world of struggle with a weakened America, the loss of a land that was a bright and shining light that dimmed, barely visible in the storm of extremism that blew across the world.

To survive nation-states began to look for their own solutions seeking new directions. Major international institutions such as the UN, the North American Treaty Organization (NATO), the European Union (EU) and the International Criminal Court (ICC) shrank in influence against the onslaught of that extremism. There seemed to be no solutions that were viable. The world wobbling, citizens looked to new political leaders who promised to restore greatness, an elusive idea that cannot be attained alone in this new century. The rise of the nationalistic right a desperate attempt to grasp hold of the fog of this new kaleidoscopic world …

To read the whole article, click here.

The Fist in a Velvet Glove: Hardened Humanitarianism

By David Crane

(Re-published from Jurist | April 21, 2017) The cornerstone to the UN paradigm is to settle disputes peacefully, using force only as a last resort. Yet, restoring international peace and security sometimes requires a hardened approach to ensure that peace and security.

“This hardened approach must be done under law or we weaken our international norms, yet it must be done. Enough is enough in Syria.”

There are decades of international treaties, custom, and precedent that support what I call hardened humanitarianism. When we have to deal with a tyrant, thug, dictator, or rogue head of state who turns on his own citizens, the international community or a member state of that community should step forward with a clear and firm position—stop it or force will be used.

A tyrant only understands one thing—power. When he feels the sting of consequence for his actions that tyrant begins to focus on that use of force against him. The use of this more hardened approach in using force to stop a tyrant’s actions will cause that tyrant to pause, to consider his next steps.

Appeasement in the face of tyranny never works. History is replete with anecdotal evidence of this from the Armenian genocide to the Sudetenland. A hardened policy of seeking a peaceful dialog with the assurance of a forceful resolution, should that dialog fail, makes for a more meaningful discourse.

Our international legal and policy system has drawn lines related to protecting civilians in a conflict and banning certain type of weapons systems per se. Most, if not all, states parties have signed onto these norms. We don’t have to be histrionic when a tyrant ignores these clear lines beating our chests with empty words. When that tyrant steps over a line hit them hard, use force, show the world there are consequences!

US action against Al Qaeda after they attacked the US Embassies in Kenya and Tanzania are examples of facing down the lawless elements of our society under the international legal concept of reprisal. In 2005 the world came together to create a doctrine that laid down a marker that declared that the international community has a right to step in to block a tyrant or head of state who is turning against his own citizens committing war crimes and crimes against humanity. Called the Responsibility to Protect (R2P), the doctrine was a clarion call to arms should there be alleged violations of international law.

Unfortunately, R2P has fallen short of the ideal based on the political perception that it is a doctrine that can be easily used by various powers against weaker nation states for alleged violations. Despite this the principle idea of this responsibility to protect citizens from their own leaders remains.

The long and tragic kaleidoscopic conflict that is Syria has now gone beyond peaceful resolution. A hardened sense of humanity calls for continued cruise missiles strikes and other military action every time Assad crosses the lines laid out under international norms. Kaleidoscopic conflict is fast becoming a new concept in the dirty little wars of the 21st century. Old doctrines for war fighting and the legal set of rules that surround warfare that have been tested over time are being challenged at all levels. Just when planners think there is a viable course of action developing related to a conflict, such as in Syria, one thing changes and everything changes, hence the term kaleidoscopic. This impacts on what is called the deliberate planning cycle in modern parlance throwing out how international and domestic organizations plan for and deal with conflict on a day to day basis.

At the end of the day we are beginning to face situations where there is no solution under current policy and doctrine. This gives us pause as to how to advise world leaders in dealing with any given conflict. This pause can allow a tragedy, such as in Syria, to go on and on without any foreseeable ending.

These dirty little wars have a direct impact on how parties to a conflict deal with civilians found in and around the battlefield. One of the key cornerstone concepts of the international humanitarian law is that civilians are to be protected and that the intentional targeting of a civilian is a war crime plain and simple. We see around the globe today parties to a conflict flagrantly ignoring this key legal concept. With no apparent repercussion to these attacks on civilians, actors move about the battlefield with impunity. Again this is the conflict in Syria, but can be seen also in the fighting in South Sudan. This is why a more hardened approach to our humanitarian principle of using force where legally appropriate will cause actors to pause and reconsider wholesale destruction in any given conflict.

This hardened approach must be done under law or we weaken our international norms, yet it must be done. Enough is enough in Syria. States parties who for whatever reason give that tyrant support should also be dealt with for their aiding and abetting of international crimes with legal sanctions …

To read the full article, click here.

 

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.