Justice for all: The legal avengers trying to punish the most powerful for their heinous crimes

At The Hague, the president of Kosovo, dragged from his office, shows up before judges to face accusations of war crimes committed 20 years ago. In a courthouse in rural Germany, prosecutors are pursuing a case against two Syrian intelligence officers accused of torture and murder. And in France, jurists and legal experts are angling to bring a case against Dassault, the French arms manufacturing giant, for crimes against humanity in Yemen.

Across Europe, legal scholars, human rights attorneys and government prosecutors are pursuing cases against alleged war criminals like never before, expanding the boundaries of international law using novel arguments and cutting-edge legal concepts. The aims are to bring war criminals to account when they elude justice in their own nations, penalise private-sector wrongdoers who profit from the sales of instruments of war and suffering across the world, and, perhaps most importantly,  punish national leaders who generally enjoy impunity for ordering others to commit crimes.

It is less a movement than a series of disparate overlapping initiatives that have gained traction and momentum in recent years. They are drawing inspiration from each other, encouraged to act in a media-saturated era of heightened global sensitivity to war crimes that are now sometimes captured on smartphone cameras and distributed worldwide across social media networks.

Prosecutions are increasing and legal knowhow is expanding. When Eurojust, an organisation representing European prosecutors, launched its Genocide Network for investigating international war crimes in the early 2000s, perhaps 30 or 40 jurists joined its biannual meetings. Now it’s up to 150, with more clamouring to take part.

“For decades leaders of states have openly announced ‘never again’ in high profile meetings and international forums and announce their commitment to the international criminal justice project,” says Lachezar Yanev, an assistant professor of international law specialising in prosecutions of war crimes. “But it is in the past 10 years that this commitment to the project has begun to show visible results at the national level.”

At the centre of the effort is the 18-year-old International Criminal Court in The Hague, the administrative and royal capital of the Netherlands. Established by the 1998 Rome Statute, of which more than 120 countries are signatories, the court’s mandate is to prosecute individuals accused of genocide, crimes against humanity, and war crimes.

“It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” says the Rome Statute.

The ICC itself is a well-protected, high-security complex built on the site of a former military barracks. It is also something of a modern architectural concoction imagined as “a sculptural abstraction, like a piece of land art” that appears to be “rising from the surrounding dune landscape,” according to the firm of Schmidt Hammer Lassen Architects, which designed it and handed it over to the court in 2015.

After undergoing security checks, members of the public can attend ICC sessions. During a visit earlier this year, a smattering of international law students from nearby universities, a professor from the United States and several other curious onlookers entered, placing electronic devices inside lockers before undergoing yet another security screening to enter through the doorways of the courtroom viewing gallery.

A curtain drew open to reveal the courtroom below, separated from the viewing gallery by a thick layer of Plexiglass. The barristers were already in place, seated on either side of the courtroom. The judge entered, and all rose for the pretrial hearing. The defendant on this day was alleged Ansar Eddine morality police chief Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, who is being tried on charges of mass rape and torture in “a widespread and systematic attack” on the civilian population of northern Mali in and around the city of Timbuktu in the year 2012.

The accusations against the defendant are grim. Under his alleged authority, local women and girls were forced into marriages and raped by al-Qaeda-linked militants. “All that was left of me was a corpse,” a prosecutor cited one victim as saying.

The defence lawyer, an Australian barrister named Melinda Taylor, came out swinging. She accused the prosecutor of filing documents late, and without proper supporting evidence. She complained that the tight schedule and budget constraints prevented her staff from properly mounting a case. She warned of another similar trial with similar witnesses who could hurt her defence strategy. But Judge Kimberly Proust, a Canadian, interceded.

“This is not the first time we’ve had an intersection of cases,” she said.

Instead of exiting to the judge’s chamber, the audio feed from the courtroom broadcast into the visitors’ gallery is cut and the curtains draw closed when there is a private session. A trio of guards watch over the defendant at all times. Rules on hearsay or battlefield evidence are looser than in standard criminal court.

It’s all fairly standard courtroom fare. If it were not for the severity of the charges, and the stakes, one could mistake proceedings at the ICC for a homicide trial in Brighton or Los Angeles.

Ideally, alleged war criminals and human rights abusers are tried in the courts of the nations where they committed their offences. But throughout history, that has rarely been so simple.

The ICC steps in when national courts for political or logistical reasons cannot try suspects, or tries to help countries emerging from conflict to set up their own special tribunals – whether in their country or abroad – to try alleged war criminals and human rights abusers.

“At the very least, it’s a forum where the voices of victims can be heard,” one court official tells me, in describing the history of the ICC.

The court’s jurisdiction and its actions have been contentious, and its opponents have included not only alleged human rights abusers but some western governments.

The United Kingdom along with European Union nations are fully ratified members of the ICC. But in 2002, the US pulled out of the court, delivering it a severe blow at its very inception. The administration of President George W. Bush vowed to sabotage the court, and pressured other countries not to abide by it.

The administration of Barack Obama established a working relationship with the court as an observer nation. “We will work with the international community to prevent and call to account those responsible for the worst human rights abuses,” he said in 2015.

But the White House then turned downright hostile toward the court under the outgoing administration of Donald Trump. Acting under the guidance of nihilistic ideological extremists in Washington, the Trump administration took the outrageous step of imposing sanctions on ICC prosecutors for opening an investigation into the situation in Afghanistan, which also examined alleged US war crimes.

The incident marked a nadir in relations between Washington and the institutions of international justice. Practically, it means not only that ICC judges cannot visit the US or even transit through American airports, but that they aren’t able to use their Mastercards to purchase the train fare home.

Expect President-elect Joe Biden to resurrect the cordial relations with the court, though it may be politically difficult for him to fully embrace it.

In fact, America, along with the UK and France, is generally fine with applying international law and bringing wrongdoers like Ansar Eddine’s morality police chief or mid-ranking Balkan war criminals to justice, but balks when the focus turns to itself or its allies. 

Earlier this month the ICC was forced to formally abandon its long-running inquiry into claims that British troops committed war crimes in Iraq between 2003 and 2008. Prosecutor Fatou Bensouda said there was a “reasonable basis to believe” that atrocities such as wilful killing, torture, inhuman or cruel treatment and rape may have been committed by the British armed forces. 

“The fact that the allegations investigated by the UK authorities did not result in prosecutions does not mean that these claims were vexatious,” she added. “At most it means that the domestic investigative bodies could not sustain sufficient evidence to refer the cases for prosecution, or on cases referred there was not a realistic prospect of conviction in a criminal trial.”

In addition to the US, Russia and Israel have explicitly said they would not ratify the Rome Statute to recognise the ICC’s authority.

“We have achieved some progress but when it comes to some countries then it becomes much more difficult and close to impossible,” says Patrick Kroker, of the European Centre for Constitutional and Human Rights (ECCR), a Berlin-based advocacy and legal organisation pushing for accountability in war crimes.

He cited the US torture programme after 9/11, in which suspected al-Qaeda militants were captured, sent to black sites and subject to systematic abuse. “All of this is amazingly well documented and the facts are not contested,” he says. “But there is little or no progress in bringing these cases to court.”

Successful international prosecutions of the most powerful people accused of crimes against humanity have been rare, and convictions even more elusive.

But that may be changing.

“One of the criticisms of the ICC is that it’s consistently going after low-hanging fruit – easy cases against people who are commanders of rebel groups,” says Yanev, who has served on the Special Court for Sierra Leone, which prosecuted human rights abusers accused of rape, mutilation, and mass murder during that country’s 1991-2002 civil war. “That’s been changing.”

The first attempt to bring a world leader to justice took place even before the ICC was established. In 1998, the Spanish magistrate Baltasar Garzón sought to bring the former Chilean dictator Augusto Pinochet to trial while the former general was on a visit to London. He was indicted for crimes he committed after leading a 1973 coup, specifically 94 counts of torture against citizens of Spain who were in Chile at the time of his violent overthrow of the country’s democratically elected leftist government.

He was held under house arrest in the UK. It was the first time in history that the principle of universal jurisdiction would be used. Pinochet was released and allowed to return to Chile after a 16-month legal battle. But human rights campaigners described the detention as a milestone in the battle to end impunity for war crimes, and it would not be the first time universal jurisdiction would be invoked.

The biggest win was Charles Taylor, the former president of Liberia and a once-powerful warlord, who was sentenced by the ICC in 2012 to 50 years in prison for atrocities committed in Sierra Leone during its 1990s civil war. He is serving his sentence at Durham’s Frankland Prison.

So far two sitting heads of state – Sudan’s Omar al-Bashir and Uhuru Kenyatta of Kenya – have faced international charges for their alleged crimes at the ICC.  In addition, international courts investigating war crimes in the Balkans wars have indicted Slobodan Milosevic when he was still president of Yugoslavia, as well as Kosovo president Hashim Thaci.

Bashir remains imprisoned in Sudan, facing charges of corruption and violence against protesters who ultimately ended his decades-long rule, though ICC officials are eager to bring him to account for his role in the alleged ethnic cleansing of the Darfur region some 20 years ago.

Kenyatta was charged with crimes against humanity stemming from violence that erupted in the 2007 elections before he was president. He was accused of backing a campaign of violence that led to the deaths of some 1,300 people in the aftermath of the disputed vote. In just one incident in the city of Kisumu, a bastion of opposition to Kenyatta’s political party, security forces opened fire on crowds of people, including those not even involved in ongoing protests.

“I saw a police car coming,” a local priest told Human Rights Watch. “Some of them inside were shooting from the windows. Three were shooting in the air, one was shooting directly at people … I saw a mother falling down, the bullet had hit her in the head. I also saw a child fall down. The child had turned and was hit in the stomach.”

At first Kenyatta was inclined to dismiss the ICC, calling it a tool of declining imperial powers. But then he changed strategy. He honoured the summons, and in 2014, appeared at The Hague, putting up an aggressive defence. Charges were dropped the following year. But the experience gave international jurists a taste of the immense challenges of putting big fish on trial. Court officials struggled to win the cooperation of Kenyan officials. Then witnesses started turning up dead, or recanting or changing their testimony.

“With Bashir and Kenyatta these were really the cases that the ICC was being tested by prosecuting a sitting head of state,” says Yanev, the scholar at Amsterdam’s Free University.

Yet another breakthrough came in November in the case of former Kosovo president Thaci, who stepped down from his post after being indicted by the Kosovo Specialist Chambers in The Hague on 9 November. He entered a plea of not guilty of murdering 100 people in the aftermath of the country’s 1998-1999 war of independence from Serbia.

According to human rights investigators, hundreds of people went missing in Kosovo after the conflict. There are allegations of abductions and summary executions of ethnic Serbs and Roma, as well as Albanians viewed as sympathetic to Belgrade or members of other rival Kosvar groups. Most disturbing, according to an investigation by the Council of Europe, was a detention facility linked to Thaci’s Kosovo Liberation Army where organs of prisoners were harvested and sold to organised crime networks.

“I do not agree with the charges,” the 52-year-old told the court.

Still, both Kenyatta and Thaci were charged with crimes committed before they became heads of state. Numerous national and international statues grant presidents and kings immunity for crimes committed while in power without a vote of the United Nations Security Council. And in the case of Bashir, whose indictment had received the blessing of the security council, many countries refused to honour requests to arrest him.

Bashir is accused of horrendous crimes, perhaps 300,000 people killed in a ferocious war by militias under his command against rebels and civilians in the Darfur region of Sudan. The conflict in the early 2000s included what was probably the first use of barrel bombs.

Bashir’s prosecution before The Hague would also serve as a warning to world leaders who flout the law. In 2009, he became the first sitting president to be issued with international arrest warrants for crimes against humanity in Darfur. He is charged with murder, extermination, forcible transfer, torture, and rape as well as intentionally directing attacks against civilians and pillaging. There are three counts of genocide for the acts committed in the Darfur region of Sudan between 2003 and 2008, when Bashir’s Janjaweed miltiias destroyed villages in the rebellious region and systematically murdered civilians.

Accounts of the reign of terror collected by human rights organisations and international investigators are chilling. In the village of Tiro, militiamen arrived on camels and horses early one December morning in 2003. Nafisa, a village resident, watched as her husband stepped outside to see what was happening.

The Janjaweed saw him, stormed the house, shot him repeatedly, and slashed his body with knives before setting fire to it, says a report by Physicians for Human Rights.

Nafisa grabbed her children and hid in a nearby riverbed, returning after nightfall. “I saw 20 people dead in front of my house,” she recalled, gripping a fragment of the tattered shirt her husband was wearing. “My home was completely burnt down.”

The misery didn’t end there. Her 10-year-old son fell ill and died as she made her way through the desert to a refugee camp in Chad.

Bashir dismissed the charges and frequently flouted the court’s jurisdiction by travelling abroad, where he was hosted by other leaders, including signatories to the ICC such as Jordan. Just months before his regime was felled in a popular 2019 uprising and he was imprisoned by the new transitional government, Bashir was in Turkey, hobnobbing with world leaders at the opening of Istanbul’s new airport.

“If [Syrian president] Bashar al-Assad would walk in here today we would not be able to arrest him,” says Matevz Pezdirc, head of the Genocide Network at Eurojust, the Dutch-headquartered European agency that combines the efforts of prosecutors across the continent. “It’s really in places like Syria where you feel the impunity gap.”

But prosecutors are learning. Like going after organised crime syndicates by prosecuting street-level thugs and working up the chain of command, bringing top war criminals to account often starts with small cases.

In 2015, Mouhannad Droubi, a former fighter for the Free Syrian Army, who had made his way to Sweden was charged with war crimes. The evidence was footage a friend of his found on his computer and handed to police showing him brutalising a suspected informant back in Syria. He was ultimately given an eight-year prison sentence.

At the time, many thought the case was bizarre. Why go after a small-time former fighter in a faraway armed conflict where so much horrific violence was taking place?

But to prosecutors, it was an easy case that set a major precedent that could later be applied far more broadly. The Droubi affair established that a mere district court just south of Stockholm had jurisdiction over an armed conflict outside the European Union. It opened floodgates to other prosecutions.

“The small cases are important,” says Pezdirc. “You need to build up. You can’t start with a shark if you can’t handle a sardine.”

Since the Droubi conviction, French and German prosecutors have begun going after a number of alleged Syrian war criminals and human rights abusers, most famously Anwar Raslan, a former Syrian intelligence officer accused of the torture, murder and rape of thousands of prisoners under his care.

Other legal breakthroughs are also on the horizon. On 3 December, in the Swiss town of Bellinzona, a court began hearing a case against a Liberian warlord accused of crimes against humanity during the country’s civil wars, which ended 17 years ago and led to a quarter of a million deaths.

All told, Pezdirc says several thousand cases of possible war crimes are being examined by the Genocide Network. The prosecutors within the network trade tips and ask for advice, like whether anyone has ever worked on a case involving Gambia, as well as finding creative ways to charge suspected abusers. “There are no legal experts that can provide this kind of advice,” he says.

Collecting evidence of war crimes in a place like Syria is an enormous challenge. But in recent years, prosecutors have come up with workarounds. A former al-Qaeda fighter who posted a video showing himself with a dead man was charged with desecrating a corpse as well as joining a terrorist organisation, adding 2½ years to his prison sentence. A woman accused of being an Isis bride was charged with pillage for living in a house belonging to a displaced person, stretching her prison term to nearly a decade.  

“With Isis, you have to be creative,” says Pezdirc. “You have to build a structure. Membership? Five years. Pillage? Three years. You had Yazidi household help? That’s slavery. You don’t have to be a leader to be charged with complicity in genocide.”

That principle of complicity is what has led to increasingly vocal calls for the ICC to investigate corporations accused of aiding and abetting war crimes. A breakthrough came when a Paris court confirmed charges against the Lafarge corporation and indicted eight of its executives for endangering its workers and transferring money to Isis when it continued to operate a cement plant in Syria between 2012 and 2014, even after another court revoked the indictment. The case is under appeal.

Then a year ago, several human rights organisations called for investigations of Airbus, BAE Systems, Dassault Aviation, Raytheon Systems and other firms for selling weapons used in alleged war crimes in Yemen by Saudi Arabia and the United Arab Emirates.

The targets of the war machines have included homes, markets, schools and hospitals. A 350-page communication drafted by the ECCR details 26 airstrikes using European and American weapons conducted “which may amount to war crimes under the Rome Statute”, said a press release.

French-made Leclerc tanks, built by arms giant Nexter, were used by Saudi and UAE-backed forces in the 2018 battle for the port city of Hodeidah, and were allegedly responsible for 55 civilian deaths.

At the very least, said Kroker, naming and shaming corporations could make them think twice about sending weapons abroad, even if they obtain export licenses from their governments.

“We do see movement,” he says. “Some things have shifted – the idea that also corporations must be held accountable, that they can’t just send weapons into a war zone and say the money doesn’t stink. And to prosecutors, going after corporations is not a theoretical impossibility anymore.”

But Kroker says concrete results have been few. He notes that immediately after the Second World War, corporations that were deemed complicit with the Nazi regime were held to account. In some ways, he says, the world has gone backward.

“So far, it has been complete impunity,” he says. “I am hopeful that we are leaving this dark age.”