By Tiran Rahimian
In justifying the crimes of Milo in an internal armed conflict in Rome, Cicero pleaded, “silent enim leges inter arma.”[1] Times have, somewhat, and thankfully, changed. The past century alone has witnessed the crystallization of the laws of war, the emergence of a rules-based, human-centric global order, and the rise, and decline, and rise, of international criminal justice. Despite remarkable progress, however, the pertinence of law in the anarchically barbaric realities of war remains to this day contentious, and the objection that law falls mute when collective survival is jeopardized continues to resonate with the cynics and so-called realists of our world. To make matters worse, the rise of inward-looking populist movements in recent years poses yet another challenge to the international legal order, and may very well prove to be its litmus test. In this climate, the work of NGOs such as Human Rights Watch is more crucial than ever, and it was with a sense of both humbleness and awe that I began my internship within its International Justice (IJ) Program.
My first few weeks were euphoric. International criminal law had been the bread and butter of my 3L, and the organization’s IJ department comprised some of the foremost experts and brilliant legal minds in that field (evidently explained by the disproportionate presence of McGill law alumni). The work was intellectually stimulating, pedagogically instructive, and above all, fulfilling. But as I went from drafting one memo to another, and attending one UN meeting to another, I became struck with ivory-towerist doubt. There was an unsettling detachment between the refined protocols of lawyering, which reduced the indescribable to the antiseptic confines of legal reasoning, and the solemn suffering of victims on the ground. That I happened to be situated at the 35th floor of the Empire State Building, metaphorically looking down into the arena of human rights violations, certainly didn’t help either. I brought up some of my thoughts with the IJ Program’s highly esteemed Director, Richard Dicker, who helped me alleviate some of my questioning. Remarkably approachable, he combined humility with activist fervor, and expertise with empathy. He taught me to keep the big picture in mind, to appreciate the significance of victim-centric activism, and that the impact of advocacy work need not necessarily be quantifiable or measurable. Comprehensive, effective human rights advocacy, it became clear to me, comprises both activism in the field, as well as ‘detached’ lawyering within courts and intergovernmental organizations–both of which are equally indispensable.
As I continued my work and kept on top of the latest developments at the International Criminal Court (ICC)– the only permanent tribunal that holds perpetrators of genocide, war crimes, and crimes against humanity accountable–, I came to another realization: the arena of international justice faces some incredibly thrilling and momentous years ahead. Born from the ashes of the Second World War in the form of the Nuremberg and Tokyo trials, virtually dormant throughout the geopolitical paralysis of the Cold War, and revived in the 1990s through the ad hoc tribunals for Yugoslavia and Rwanda and the adoption of the Rome Statute, the realm of international justice is bracing itself for consequential developments as the ICC ends its adolescent years.
For one, we might very soon witness the end of what has been dubbed the issue of ‘US exceptionalism’ in international criminal justice. On November 20th 2017, ICC Prosecutor Fatou Bensouda formally requested judicial authorization to open an investigation into war crimes and crimes against humanity perpetrated in connection with the Afghan armed conflict. The investigation, if sanctioned by the Court’s Pre-Trial Chamber, would represent a feted shift in global justice, marking the first time in history an international tribunal has contemplated crimes allegedly perpetrated by US nationals.
Second, as I have argued elsewhere, the coming months could also mark a climax for decades of gender justice advocacy. The ICC’s potential probe into Afghanistan would be the first instance where the Court is poised to interpret one of the most controversial terms in its statute: ‘gender’. Reflective of political compromises and a tendentious negotiating history, the Rome Statute’s highly disputed definition awkwardly sits somewhere between a sociological and biological conception of gender: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” But this constructive ambiguity also leaves room for creative lawyering: as much as the conservative side might emphasize ‘the two sexes’, proponents of a more progressive and wide understanding could weaponize the words ‘within the context of society’, which could potentially extend to members of the LGBTQ.
Third, the ICC has been increasingly venturing into the uncharted waters of non-member states, inching closer to an ideal of universality. Of course, absent a referral by the UN Security Council, the Court can only assert jurisdiction where the “conduct in question” was committed on the territory of a member state, or if the alleged perpetrator was a national of a member state. But that hasn’t stopped the Office of the Prosecutor from conceiving ingenious arguments to stretch the Court’s jurisdiction. Regarding the plight of the Rohingya minority in Myanmar, a state not party to the Rome Statute, Fatou Bensouda recently asked the Court to confirm its jurisdiction on the basis that a legal element of the conduct, crossing a border, occurred in Bangladesh, which is a member state. Its preliminary examination of Palestine, and its ongoing investigation into Georgia, similarly probe crimes committed by nationals of non member states, namely Israel and Russia. While, as I have explained elsewhere, atrocities committed in Iraq and Syria remain out of the Court’s reach, recently established investigative mechanisms by the General Assembly and the Security Council have been collecting evidence of these crimes, and the issue of accountability in the fertile crescent appears to be more a question of when and how, rather than whether.
To say that these developments will be controversial would be a grave understatement. Times have certainly changed since the days of Cicero, and they will likely continue to change in the decade to come. The road towards accountability is by no means clear, and is certainly rocky. Potential probes into Palestine and Afghanistan would be political dynamite, and accountability advocates have been bracing themselves for when the proverbial excrement hits the fan. At any rate, the arena of international justice faces excitingly tumultuous times ahead, and interning at Human Rights Watch has helped me keep on top of these historic developments.
[1] “Laws are silent among [those who use] weapons” (Cited in Cicero, Pro Milone, 4.11).