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Slow and Costly: The Crisis Confronting Internationalized Criminal Justice

Slow and Costly: The Crisis Confronting Internationalized Criminal Justice

By William Wiley

Internationalized criminal justice is in crisis — a crisis laid bare by the limited criminal-justice response to the conflict in Syria and, more widely, the struggles endured by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) over its first twelve years of life. The glacial speed at which internationalized institutions bring cases to trial in the wake of egregious violations of International Criminal and Humanitarian Law (ICHL) have fostered the increasing estrangement of conflict-affected societies from internationalized criminal-justice mechanisms.

The extraordinary financial cost of the international criminal investigations and prosecutions undertaken since 1993 has also given rise to a marked degree of donor-state fatigue. There is a new unwillingness on the part of Western states to provide meaningful (or any) funding to new adjudicative institutions such as the so-called hybrid courts provisionally established — on paper, at any rate — in South Sudan and the Central African Republic.

Notwithstanding Russia’s blocking of attempts to refer the Syria situation to the ICC through the United Nations Security Council, a number of Western states are quietly laying the groundwork for the prosecution of the perpetrators of core international crimes (war crimes, crimes against humanity, and genocide) in Syria. This effort is being made through the Commission for International Justice and Accountability (CIJA), a non-profit body led by a handful of ICHL experts who, since 2012, have been building prosecution-ready case files inculpating high-level actors in the war in Syria. By virtue of its unique focus on the establishment of individual criminal responsibility rather than a broader overview of human rights abuses, the CIJA has emerged as the foundation upon which to build any future criminal-justice response to core international crimes perpetrated in Syria.

More broadly, it is also a cost-effective vehicle through which to assuage concerns regarding the high cost and slow pace of internationalized criminal investigations. Stated succinctly, its founders envisioned the CIJA as a tool to aid the ICC-OTP and other internationalized judicial institutions. This ethos of public service remains and the roots of CIJA efficacy lie in its abilities to 1) martial considerable practical investigative, analytical, and legal expertise on short notice, 2) engage with alacrity at minimal financial cost in the midst of any given conflict, and 3) absorb levels of physical risk that public institutions find intolerable. Taken together, the key features of the CIJA model render it central to efforts to resolve the crisis facing internationalized criminal justice.

The CIJA is the first non-governmental body to initiate and contribute to comprehensive internationalized criminal investigations and prosecutions through building prosecution-ready case files. This is especially useful in Syria where no internationalized court or tribunal, such as the ICC, has been granted jurisdiction over the widespread violation of ICHL.

Over the first two-and-a-half years of its existence, the CIJA — led by a handful of lawyers, analysts, and investigators with long-standing service in various internationalized courts and tribunals — has completed five prosecution files related to the Syrian regime, encompassing more than forty high-level perpetrators, including the current president of Syria. The organization, additionally working in the midst of a second international armed conflict, employs roughly 150 personnel between the two conflict zones and, to date, has expended approximately EUR 11,000,000 — a fraction of the spending, relative to output, of a public investigative body. In the absence of internationalized jurisdiction over the situations in which it currently investigates, the CIJA makes its evidence and expertise available to a wide array of domestic institutions, principally national war crimes units, immigration officials charged with screening asylum seekers, et cetera.

Among the tools at its disposal are 600,000 original pages of regime, military, and security-intelligence materials extracted from Syria since 2012, a database of 750,000 key names (to which 10,000 names are added weekly), and a Syria-deployed investigative cadre of more than fifty people recruited, trained, and mentored by the CIJA. The enormous risk taken by these personnel to acquire high-quality information is the key to building prosecution-ready case files swiftly at minimal cost. The risk intolerance of public institutions is rarely commensurate with the evidentiary demands of a criminal-justice mandate.

Non-profit institutions such as the CIJA can serve as a powerful tool in international justice. Building upon these efforts enables public prosecutors to meet their obligations in a timely, affordable manner while serving the broader objectives of putting the fight against impunity for core international crimes on par with the demands for timely justice of conflict-affected societies, as well as the cost concerns of the states funding internationalized judicial bodies. At the same time, it lays down the foundations for future justice efforts to be transitioned back to the conflict-affected society once the dust finally settles.

William Wiley is the Founder and Director of the Commission for International Justice and Accountability (CIJA). Wiley formerly worked in the Canada DoJ war crimes unit, Office of the Prosecutor at both the International Criminal Tribunal for the Former Yugoslavia as well as Rwanda and in the International Criminal Court. He and Nerma Jelacic will be speaking at CIPS on 9 March 2016 on Investigating War Crimes in Syria — in search of accountability.

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