FSPI: The work of your NGO, TRIAL International, which you founded in 2002, is part of the establishment of international criminal justice after the Second World War, which began with the Nuremberg Tribunal to judge the genocidal crimes perpetrated by the Nazis. How does your NGO contribute to, or differ from, the international legal system that has been in operation since then?
Philip Grant: The international legal system is still far from functioning effectively. But we’ve come a long way. Between Nuremberg (and its Asian counterpart, based in Tokyo) and the ad hoc international tribunals set up by the Security Council in the wake of the tragedies in the former Yugoslavia and Rwanda in the mid-1990s, there was simply no experience of organized repression of war crimes, crimes against humanity or genocide. These first encouraging experiments were followed by other models, either more or less international or, on the contrary, incorporated into national systems but with international touches, whether in Timor Leste, Bosnia, Sierra Leone or Cambodia. But all these tribunals have been able to convict only a few hundred perpetrators of serious crimes, whereas if we consider only civilians killed in conflicts (leaving aside other violations such as torture, rape, destruction of hospitals or schools, looting, environmental damage, etc.) since the end of the Second World War, we are talking about almost 100 million victims.
With the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998, the international community finally established a permanent institution, capable of exercising a broad jurisdiction not linked to any specific conflict. It was widely hoped that this Court would be able to exercise a broad preventive effect, and if necessary, complement the efforts of States to punish those most responsible for atrocities. To date, 123 states have ratified the ICC statute, with the exception of major powers and key states such as China, Russia, India, Pakistan, the United States and Israel. The ICC has an annual budget of around 100 million euros. To date, in its 20 years of existence, its record is meagre: it has convicted around ten defendants, all members of armed groups, and no state officials. Even if the value of the ICC cannot be reduced to this simple accounting result – the preventive effect linked to the very existence of this Court is difficult to demonstrate, but certainly real – there is no real reason to be proud. Is the recent indictment of Russian President Vladimir V. Putin likely to restore the reputation of the ICC and the very idea of international justice? It’s obviously too early to say.
FSPI: Switzerland is fully committed to the ICC and, more generally, to the fight against impunity. In 2019, for example, it achieved a major diplomatic success when, alongside a group of like-minded countries, it pushed through an amendment to the ICC Statute to give the ICC jurisdiction to prosecute the deliberate starvation of civilians in internal conflicts as a war crime. What chances do you give this new jurisdiction of the ICC of being effectively implemented and thus being able to contribute substantially to better justice for victims?
Philip Grant: The development of international criminal law is an extremely slow process. From the idea of incriminating a specific act – such as starving civilians – to its concrete consideration in a trial, and the emergence of judicial practice, a considerable amount of time can elapse.
In reality, it is not the possibility of future trials that is the most significant issue. Introducing the crime of deliberately starving civilians into the Rome Statute will inevitably bring about changes in the way certain states conduct hostilities. The fact that there is now a concrete anchor in international law will not only push those states that ratify the amendment to ensure that their own criminal law and practice reflect this prohibition, but will also hold states that resort to this practice accountable, even if they have not ratified the new norm.
The same was in fact true of all the acts prohibited by the Rome Statute, as dozens of States, having ratified the Statute, began to introduce these crimes into their penal codes, thereby helping to establish an international practice.
In 2009, at the diplomatic conference in Kampala, the crime of aggression was also specified in the ICC statute, launching a new practice whose scope can be estimated from the Russian invasion of Ukraine. Russian aggression – certainly a crime, but a crime without a court (not least because Russia has not joined the ICC) – is at the heart of absolutely innovative developments in international law, notably the recent creation in The Hague of an “International Centre for the Prosecution of the Crime of Aggression against Ukraine”. When standards are adopted, we never really know how they will affect international practice. It is often a kind of legal Frankenstein that eludes its creator.
FSPI: While the ICC’s work suffers from a lack of cooperation on the part of national judicial authorities and a lack of political will on the part of the governments of many countries, including the major powers that are not party to it, many voices are calling for reforms to reinforce its effectiveness and exemplarity. What kind of reforms do you think should be made, and how do you assess the feasibility of implementing them, given the highly politicized nature of this international body?
Philip Grant: Let’s be clear: the International Criminal Court is an independent judicial body, which is not itself political. It’s the states that may be tempted to use it, and which therefore politicize it. Indeed, it would be astonishing if this were not the case, given that the Court theoretically has the power to put some of the world’s most powerful individuals behind bars. If it were not perceived by States as a body that plays a role in international life, a thing detached from international relations, it would be quite inoperative.
In my view, it’s not so much the ICC itself that needs to be reformed, but rather the attitude of states towards it. First and foremost, of course – and this has been stressed on numerous occasions – we must aim for as universal ratification of the Rome Statute as possible. Without going back over the irresponsible attitude of the United States towards the ICC, it is incredible to note that Ukraine, which is appealing to the ICC to try Russian war criminals, has still not ratified the Rome Statute!
Secondly, it is imperative that the support given to the Court, particularly the human and financial support pledged following the Russian invasion of Ukraine, should not be perceived as being politically directed to ends desired by the donors. To ensure the ICC’s credibility over the long term, they must take great care to recall its independence and the fact that it must be free to exercise its jurisdiction according to the freedom granted to it by the Rome Statute, even against the interests of its most important backers. The ICC is emerging from a decade of criticism – largely unjustified – that it has an anti-African bias; we must not enter a decade in which it is accused of having a pro-Ukrainian bias. The ICC Prosecutor has an important role to play here: if he was able to indict Mr. Putin so quickly, the criteria he applied on this occasion must henceforth serve as a guide to his action, and allow the indictment of other state officials, including Western ones, should this be justified.
Numerous other reforms can be envisaged, ranging from a more transparent process for appointing the Court’s judges, to securing a stable and adequate source of funding. But above all, constant, selfless support from all states when it comes to concrete cooperation on investigations or going to the front to defend the court from inadmissible attacks. The next test will probably take place in South Africa in August 2023, where the BRICS (Brazil, Russia, India, China and South Africa) summit will be held. As South Africa is a party to the Rome Statute, if Mr. Putin decides to go there, it should theoretically arrest him and hand him over to the ICC. Will it do so? And if so, what will be the reaction of the other member states?
FSPI: Attempts by the United Nations to create specific mechanisms to strengthen and centralize war crimes investigations in situations where action by the Security Council and/or the ICC has been paralyzed, notably by the Russian veto, have failed to produce any convincing results, particularly in the cases of Syria, Burma and very recently (2023) Russia. Is there still hope of one day seeing Presidents Putin and Assad and Burma’s top leaders answer for their actions?
Philip Grant: Impunity of leaders for serious crimes is a persistent problem in international criminal justice. Politics and power games within the United Nations, in particular the use of the veto in the Security Council, have often hampered the international community’s ability to hold those responsible for war crimes and crimes against humanity to account.
However, I believe it is essential not to abandon hope of fair justice. Justice may be slow, but history has shown that it is possible. Arresting former Chilean dictator Augusto Pinochet, bringing Serbian leader Slobodan Milošević to trial, convicting former Liberian President Charles Taylor, all seemed unattainable. Until it happened, and these leaders were finally held accountable for their actions, despite years of impunity.
There are several factors that could change the current situation. For example, political changes within the countries themselves or in international dynamics could open up new avenues for justice. In addition, the ongoing collection of evidence by human rights organizations may serve as a basis for future prosecutions.
Finally, it is important to note that the ICC is not the only route to justice. National courts, using the principle of universal jurisdiction, can also prosecute international crimes. This has been successfully used in countries such as Senegal, which tried and sentenced former Chadian president Hissène Habré to life imprisonment, Germany – which has convicted former officials of Bashar al-Assad’s regime, or even Switzerland, which will soon (probably early 2024) try no less than a former Gambian interior minister for crimes against humanity.
So, yes, hope remains, and many players in civil society are working towards it, notably through the massive documentation of crimes committed, especially via the contribution of new technologies. This hope may seem slim at times, but to quote Martin Luther King, “the arc of the moral universe is long but it bends toward justice”.
FSPI: By deciding to exclude terrorism from the jurisdiction of the ICC, States have abandoned the idea of a universal criminal response to terrorism. The resulting national disparities are detrimental to both the victims and perpetrators of these crimes. Yet many human rights organizations are calling for an end to the virtual impunity enjoyed by armed Islamist jihadist groups, particularly in West Africa (Mali, Niger, Chad, Burkina Faso, Nigeria), whose governments are incapable of preventing these crimes and punishing the perpetrators. Could these crimes be assimilated to crimes against humanity? In the absence of investigations by the governments concerned, could an organization such as TRIAL International be asked to carry them out?
Philip Grant: Terrorism is undeniably a form of extreme violence with devastating consequences for individuals and societies. However, not all acts of terrorism qualify as crimes against humanity under international law. To be recognized as a crime against humanity, an act must be committed as part of a widespread or systematic attack against a civilian population, and with knowledge of the attack.
Certain actions by jihadist groups in West Africa could potentially meet these criteria. For example, mass executions, acts of torture, the recruitment of child soldiers and widespread attacks against civilian populations could be considered crimes against humanity.
However, the application of this classification requires thorough investigation and rigorous legal assessment. As a human rights organization, TRIAL International, like the few other NGOs dedicated to the fight against impunity, has a crucial role to play in monitoring, documenting and raising awareness of these crimes. However, we do not currently have the capacity to deploy in new areas or contexts.
That said, TRIAL International can certainly help to gather evidence, support victims and press for investigations and justice. But we can also help hold to account the facilitators of these crimes, who are sometimes economic players with a strong foothold in our country. We can also help train local actors in documenting international crimes, and work with other organizations to strengthen the capacity of the countries concerned to investigate and prosecute.
It is important to emphasize that impunity for acts of terrorism and other serious crimes can only be resolved through a joint effort by the international community. This requires a strong commitment on the part of governments, international organizations, civil society and justice institutions to prevent these crimes, protect victims and prosecute perpetrators. And, in particular, to ensure that military action to defeat these groups is carried out in strict compliance with international law.
FSPI: For many governments and victims, the first priority is to prosecute and punish international crimes. However, some analysts are increasingly sceptical about the criminal (sanctionist) aspect of crimes alone, however terrible they may be. For them, legal condemnation must be part of a broader framework, complemented by reparations for victims and reconciliation between societies, to ensure that future governments function properly. What is the position of TRIAL International, which works closely with victims? How can criminal law, the protection of human rights and the reconstruction of a country coexist constructively?
Philip Grant: Criminal justice is an essential part of the response to serious international crimes, but at TRIAL International we recognize that justice is not just about convicting the guilty. The victims of these crimes have needs that go far beyond simply punishing the perpetrators. They need recognition, reparations and opportunities for reconciliation and reconstruction.
With this in mind, our approach is multidimensional. We work on documenting crimes, supporting prosecutions and raising awareness, while striving to meet the specific needs of victims. For example, we help victims access justice and obtain reparations, and support them in their efforts to overcome trauma and rebuild their lives.
When it comes to the constructive coexistence of criminal law, human rights protection and the reconstruction of a country, I believe that these elements are intrinsically linked and mutually reinforcing. Criminal justice can help to prevent the recurrence of crimes and restore confidence in the rule of law, and even concretely help to rebuild the rule of law. The protection of human rights ensures that victims are respected and that their needs are taken into account. And rebuilding a country requires a peaceful society, where the wounds of the past are acknowledged and addressed.
It’s a complex process, and there’s no one-size-fits-all solution. However, a holistic, victim-centered approach that integrates both criminal justice and transitional justice has the potential to meet victims’ needs and contribute to lasting peace. It is this vision that TRIAL International strives to promote in its work.
FSPI: The ICC’s action, important though it is, seems slow and, apart from convicting second-raters, has not played a major role other than providing innovative jurisprudence that feeds and develops international criminal law. Do you think that the next steps in the fight against impunity will be taken at the level of international institutions, or rather at national level, before the courts of the States concerned?
Philip Grant: If we aspire to reduce the number of international crimes and bring justice to the victims, law enforcement must take place at all levels. It is important to note that, despite the considerable needs, resources are limited. In fact, the budgets allocated to the various international and hybrid tribunals to judge the crimes committed in the former Yugoslavia, Sierra Leone, Rwanda, Cambodia, Timor-Leste and elsewhere, over the past 25 years, are equivalent to what is invested for 2 or 3 days of major sporting events, such as the Olympic Games or the Football World Cup.
However, even with limited resources, action can and must take place at different levels. At the international level, Russian aggression has highlighted the need for judicial bodies capable of prosecuting not only those responsible for crimes, but also the civilian and military leaders who illegally trigger conflicts, events which generate massive war crimes and crimes against humanity. It is crucial that the crime of aggression can be effectively prosecuted, in order to dissuade future Vladimir V. Putin and George W. Bush from launching illegal military adventures with disastrous consequences.
That said, you are right to point out that the greatest opportunities for progress probably lie at national level. First and foremost, the justice systems of the states where the crimes were committed must be able to prosecute the crimes committed much more systematically, while respecting the rights of the defense. A notable example of this approach is underway in the Democratic Republic of Congo. There, we have participated in dozens of trials leading to severe sentences for dozens of high-ranking members of rebel groups and members of the Congolese security forces, enabling thousands of victims to obtain justice. This kind of judicial experience must be extended.
However, it is not enough for the countries where the crimes are committed to show diligence. Thanks to the principle of universal jurisdiction, all states have an interest in ensuring that international law is respected. We are seeing renewed interest in this principle, which enables a third country to try a person accused of international crimes, even if these crimes were committed abroad, by a foreigner, against foreigners. Trials have recently taken place in France, Germany, Sweden, the Netherlands, Belgium, Switzerland and elsewhere, concerning crimes committed in various parts of the world, including Iran, Bosnia, Iraq, Syria and Rwanda. Switzerland recently convicted a Liberian warlord for crimes committed during the country’s civil war. In early 2024, a former Minister of the Interior will stand trial before the Federal Criminal Court in Bellinzona for crimes against humanity.
But it is neither sufficient, nor desirable, to focus judicial efforts solely on those directly responsible for the crimes. It is time that the facilitators of such acts, notably the economic players who profit from resources originating in conflict zones, or those who supply the weapons to commit atrocities, were held accountable. Here again, Switzerland has a special role to play, as it is home to countless multinational commodity trading companies, many of which are active in conflict zones. Yet, since the Nuremberg trials, no case of looting involving economic players has ever been brought to trial. As a result, there is a grey zone in which certain companies and businessmen profit to enrich themselves, while fuelling deadly conflicts. There is an urgent need to clarify the rules applicable to these players, who in some cases destroy the environment or contribute to the exploitation of local populations.
In September 2023, Sweden will open the world’s first trial under universal jurisdiction against Western businessmen – including a Swiss – accused of complicity in war crimes committed in Sudan. If such proceedings were to be multiplied, they would send a strong signal to economic sectors investing and operating in areas where international humanitarian law is applicable. For Switzerland in particular, a global hub for companies active in commodities trading, the effect could be enormous.
Eventually, the repetition of these proceedings will generate practices and precedents that will facilitate the prosecution of both civilian and military actors, making international criminal justice truly universal. We are already beginning to see some developments, with investigations opened in Australia into alleged crimes committed by Australian military personnel against Afghan civilians.
Russia’s aggression against Ukraine has underlined the crucial importance of building a legal order firmly based on the rule of law. It is our conviction at TRIAL International that much remains to be done, and that now is certainly not the time to give up.