Professor Kaufman, Harvard University, studies the alleged international law violations in Iraq, Syria, Myanmar, Burundi, and Yemen.
Abstract
Atrocity crimes rage today in Iraq, Syria, Myanmar, Burundi, and Yemen. Given their potential to establish facts and promote accountability, recently opened United Nations investigations of international law violations in each of these states are thus a welcome, even if belated, development. However, these initiatives prompt questions about their designs, both in isolation and relative to each other.
This article describes the investigations into alleged violations in these five states, examines their respective sponsors and scopes, and presents a wide range of questions about the investigations and their implications, including their coordination with each other and their use of evidence in domestic, foreign, hybrid, and international courts (such as the International Criminal Court). The article concludes that, while seeking accountability for international law violations is certainly laudatory, these particular investigations raise significant questions about achieving that goal amidst rampant human rights abuses in these five states and beyond. International lawyers, atrocity crime survivors, and other observers thus await answers before assessing whether these investigations will truly promote justice.
1. Introduction
Atrocity crimes rage today in Iraq, Syria, Myanmar, Burundi and Yemen. Given their potential to establish facts and promote accountability, (1) recently opened United Nations (UN) investigations of international law violations in each of these states are thus a welcome, even if belated, development. However, these initiatives prompt questions about their designs, both in isolation and relative to each other. This article describes the investigations into alleged violations in these five states, examines their respective sponsors and scopes, and presents a wide range of questions about the investigations and their implications, including their coordination with each other and their use of evidence in domestic, foreign, hybrid and international courts (such as the International Criminal Court (ICC)).
2. Recent UN investigations
This part describes recent, ongoing UN investigations in Iraq, Syria, Myanmar, Burundi and Yemen. The mechanisms and contexts for each state differ, as will be examined in the following sections.
A. Iraq On 21 September 2017, the United Nations Security Council (UNSC) unanimously passed Resolution 2379 to pursue accountability for atrocity crimes perpetrated in Iraq by the Islamic State (also known as ISIS, ISIL, Da’esh and Daesh).(2) The UK is credited with drafting the resolution and providing approximately $1.3 million to set up the investigative team.(3) The United States contributed to the drafting process.(4) The resolution requests the UN Secretary-General (UNSG).
to establish an Investigative Team, headed by a Special Adviser, to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq ::: to ensure the broadest possible use before national courts, and complementing investigations being carried out by the Iraqi authorities, or investigations carried out by authorities in third countries at their request.(5)
Many have praised the UNSC’s initiative. US Ambassador to the UN Nikki Haley called the resolution ‘a landmark’ in ‘demonstrating that justice is never beyond reach, that no victim is voiceless, and that no perpetrator is above the law’.(6) International human rights attorney Amal Clooney, who represents Yazidi (also known as Yezidi) victims of ISIS atrocity crimes, stated that the resolution is ‘a huge milestone for all those who’ve been fighting for justice for victims of crimes committed by ISIS’.(7) Iraqi Foreign Minister Ibrahim alJaafari declared the development ‘a victory for justice, a victory for humanity, and a victory for the victims’.(8)
The desirability of such an investigative team is well understood. ISIS has perpetrated widespread and systematic murder, kidnapping, sexual violence (including forced marriage and sexual slavery) and destruction of cultural heritage.(9) The US State Department characterized ISIS’s acts as ‘genocide’ and ‘crimes against humanity’,(10) and the US House of Representatives voted unanimously to do the same.(11) The European and Scottish Parliaments, the UK and Canadian Houses of Commons, the French Senate and National Assembly, the Iraqi and Kurdish Regional governments, and the UN’s Independent International Commission of Inquiry on the Syrian Arab Republic (Syria COI) all similarly concluded that ISIS has committed genocide.(12)
B. Syria
In March 2011, as part of the Arab Spring, anti-government protests erupted in Syria. President Bashar al-Assad’s regime responded violently, and armed opposition groups fought back. All parties to the conflict have been accused of international law violations. Approximately a half-million people have been killed and more than 11 million have been displaced (over five million as refugees and over six million as internally displaced persons). Amnesty International, Mercy Corps, and others have called Syria ‘the worst humanitarian crisis of our time’.
On 22 August 2011, the UN Human Rights Council (UNHRC) established the Syria COI to
investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic, to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view to ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.(14)
The Syria COI has recommended that the UNSC refer the situation to the ICC.(15) More recently, on 21 December 2016, the UN General Assembly (UNGA) created the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM).(16) Some experts, such as Harvard Law School Professor Alex Whiting(17) and Human Rights Watch (HRW) Senior International Justice Counsel Balkees Jarrah,(18) have noted that such a UNGA mechanism for investigating atrocity crimes is unprecedented.
C. Myanmar
For decades, ethnic Rohingya Muslims have faced discrimination and violence in Myanmar, particularly in Rakhine State. A recent spate of violence by the Burmese government has led hundreds of thousands of Rohingya to flee to neighbouring Bangladesh. This mass exodus has been calculated to be the most rapid from any state since the 1994 genocide in Rwanda. Some officials and expertsçincluding US Senator Ben Cardin, the US Senate Foreign Relations Committee’s Ranking Memberçhave characterized the Myanmar military’s atrocity crimes against the Rohingya as ‘ethnic cleansing’ and even ‘genocide’. Nobel Peace Prize laureate Aung San Suu Kyi, the country’s state counsellor and de facto leader, has been complacent and, arguably, complicit in these heinous offences.(19)
On 24 March 2017, the UNHRC adopted a two-pronged resolution on Myanmar. First, the UNHRC ‘urgently’dispatched an independent international fact-finding mission (FFM) appointed by the UNHRC’s President to investigate ‘the alleged recent human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine State’. The resolution requested the FFM to present to the UNHRC an update at its thirty-sixth session (in September 2017) and a full report at its thirty-seventh session (in March 2018). Second, the UNHRC extended the mandate of the Special Rapporteur on the situation of human rights in Myanmar, first established in 1992 and extended annually, for yet another year. Through this resolution, the UNHRC called upon the Myanmar government to cooperate with both the FFM and the Special Rapporteur.(20)
Six weeks later, Aung San Suu Kyi stated that she and others in the Myanmar government ‘do not agree’ with the UN’s investigation of the state, explaining: ‘We have disassociated ourselves from the [UNHRC] resolution because we do not think that the resolution is in keeping with what is actually happening on the ground.’(21) In June 2017, Aung San Suu Kyi blamed the FFM for creating ‘greater hostility between the different communities’ in Myanmar; other officials in Myanmar also declared that their government would refuse to grant entry visas for the FFM’s members.(22)
While the UN pursued its own investigation, two commissions initiated by the Myanmar government itself published their own findings in August 2017. On 8 August, the Investigation Commission for Maungdaw in Rakhine State published a summary of its final report, which either rejected allegations outright or stated that further investigation was required. Two weeks later, the Advisory Commission on Rakhine State, chaired by former UNSG Kofi Annan, published its final report, which did not investigate human rights violations but did recommend measures to address structural issues undermining prospects for peace, justice and development in Rakhine State.(23) Neither of these two commissions has adequately documented the massive human rights violations perpetrated against the Rohingya.(24)
On 19 September 2017, during the UNHRC’s thirty-sixth session, Marzuki Darusman delivered his first address to the UNHRC in his capacity as the FFM’s chair. He stated that the FFM decided to focus on events since 2011, when a ceasefire in northern Myanmar broke down and inter-ethnic tensions heightened, leading to large-scale violence in the region in 2012. He summarized alleged human rights violations in Myanmar and requested that the government grant him and other members of the FFM access to Myanmar’s territory in order to investigate properly. Darusman also urged the Myanmar government to release the full final report of the ‘Investigation Commission for Maungdaw in Rakhine State’ so that the FFM could assess its work. In addition, Darusman stated that, given the escalating situation, it was unlikely that the FFM would be able to fulfil its mandate by March 2018.(25)
D. Burundi
Since Pierre Nkurunziza’s controversial decision in April 2015 to run for a third term as president of Burundi, hundreds of people there have been killed, thousands have been arbitrarily imprisoned, and hundreds of thousands have fled to neighbouring states.(26) On 25 April 2016, the ICC opened a preliminary examination into the situation in Burundi dating back to the previous April.(27) (Burundi had ratified the ICC’s underlying treaty, the Rome Statute, in 2004.(28)
On 30 September 2016, the UNHRC established the Commission of Inquiry on Burundi (Burundi COI), with a one-year mandate, to investigate ‘human rights violations and abuses in Burundi since April 2015’. The UNHRC directed the Burundi COI to present oral briefings at its thirty-fourth (in February to March 2017) and thirty-fifth (in June 2017) sessions, and a final report at its thirty-sixth session (in September 2017). Through this resolution, the UNHRC called upon the Burundi government to cooperate with the Burundi COI. Burundi, which was serving on the UNHRC at the time, voted against the resolution.(29) The following month, Burundi announced its decision to withdraw from the Rome Statute.(30)
Just under a year later, on 19 September 2017, the chair of the Burundi COI, Fatsah Ouguergouz, presented his final report to the UNHRC, stating the Commission’s belief ‘that serious human rights violations and abuses have been committed in Burundi since April 2015 and that some are continuing to this day’, including ‘arbitrary arrests and detention, acts of torture and cruel, inhuman or degrading treatment, extrajudicial executions, enforced disappearances, rape and other acts of sexual violence’. Ouguergouz accused the Burundian National Intelligence Service, police, and army, as well as armed opposition groups, of committing human rights abuses. Moreover, Ouguergouz reported the Burundi COI’s contention that some of the human rights violations constitute crimes against humanity. The Burundi COI compiled a partial list of alleged perpetrators of these atrocity crimes, provided it to the UN High Commissioner for Human Rights, and recommended that the ICC open an investigation into possible crimes against humanity committed in Burundi since April 2015. Ouguergouz lamented the lack of cooperation from Burundi, a member of the UNHRC, including that Burundi refused to grant Commission members access to its territory.(31)
Nine days later, on 28 September, the UNHRC decided to dispatch a threeperson team of experts to investigate human rights violations in Burundi.(32) The following day, the UNHRC extended the Burundi COI’s mandate for another year. Burundi, still a member of the UNHRC, voted against this resolution as well.(33) Burundi opposes the Commission’s existence and operation, rejects its report of 19 September 2017, and resists cooperating with the UNHRC.(34)
As planned, on 27 October, Burundi’s withdrawal from the Rome Statute took effect, making Burundi the first state to formally pull out of the ICC.(35) As was revealed later, two days before Burundi’s withdrawal, the ICC authorized an investigation in the state during the relevant period while it was still a member of the Court: from 26 April 2015 until 26 October 2017.
E. Yemen
Since 2014, when civil conflict erupted inYemen, and 2015, when Saudi Arabia and other Arab states intervened, violence, disease and food insecurity have engulfed Yemen. The Saudi-led coalition’s airstrikes have killed or injured civilians and damaged Yemen’s infrastructure, including hospitals and sewage facilities. Houthi rebels and their allied forces have laid banned antipersonnel landmines, abused detainees and indiscriminately shelled civilian areas. More than half a million cases of suspected cholera and approximately two thousand associated deaths have been reported. Nearly two million children are acutel malnourished, and more than ten million people require immediate assistance. The heads of three UN agencies (the UN Children’s Fund, the World Food Program and the World Health Organization) have jointly referred to Yemen as ‘the world’s largest humanitarian crisis’, as has Human Rights Watch.(37)
On 29 September 2017 (the same day the UNHRC extended the mandate of the Burundi COI), the UNHRC adopted a resolution requesting the UN High Commissioner for Human Rights to establish, by the end of the year, ‘a Group of International and Regional Experts’ to monitor and report on human rights violations inYemen since September 2014. The UNHRC authorized the creation of this expert group after declining to adopt a draft resolution that would have established an international COI for Yemen. The UNHRC directed the expert group to present a written report to the High Commissioner by the UNHRC’s thirty-ninth session (in September 2018).(38)
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Zachary D. Kaufman, J.D., Ph.D., is an academic specializing in law, political science, and public policy. His scholarly work (writing, teaching, and speaking) focuses on a range of issues in these fields.
Dr. Kaufman is a Senior Fellow at Harvard University’s John F. Kennedy School of Government and a Lecturer in Law and Fellow at Stanford Law School. Previously, he taught in Yale University‘s Department of Political Science and George Washington University‘s Elliott School of International Affairs. He also has held academic appointments at Yale Law School, Harvard Law School, Stanford University, and New York University.