United Nations

President Biden has embraced "reforms" of the United Nations Security Council that are impractical and would undermine U.S. interests.

On the occasion of the International Day of the Victims of Enforced Disappearances, David Scheffer, International Francqui Professor (Spring 2022) at KU Leuven, reviews Jeremy Sarkin’s latest book ‘The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions‘ (Routledge). There is a persistent sense of failure in world affairs today. The aspirations of modernity—to make progress in the well-being of both humankind and Planet Earth—are under constant attack and point towards regression rather than progression.  Climate change threatens to change everything in the decades ahead, and not for the better. The availability of clean energy sources, sufficient food and fresh water supplies, and livable habitats has become so problematic that governments and international institutions responsible for the public welfare are not offering much hope. At any moment, another viral outbreak as disruptive if not more catastrophic than COVID-19 can upend any illusions about economic recovery and prosperity across the globe. Add to these existential crises the endless challenge of highly destructive wars (Ukraine), mass atrocities, and natural calamities (often tied to climate change) and caring for the millions of victims who, as a result, are thrust upon the international community or whose very existence is unknown, and the future looks bleak. One can hope for scientific breakthroughs, political enlightenment, and economic booms to reverse this dire course of events, but honestly addressing the causes of our global predicament is essential work in the meantime. That is exactly what Jeremy Julian Sarkin does in his new book entitled, The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions (Routledge, 2022). Sarkin has written a manifesto condemning the current state of international law and the failure of the post-World War II and post-Cold War systems of governance to stem the tide of atrocities generating multitudes of victims for whom tangible assistance—to enable them to survive physically or to be identified and rescued from oblivion—is pathetically scant. He zeroes in on two categories of crimes—enforced disappearances and arbitrary detentions—and one situation—the Syrian conflict since 2011—where these crimes have been dominant and barely addressed. Sarkin, who is a professor at NOVA University of Lisbon in Portugal and a Research Fellow in the Department of Criminology at the University of the Free State Bloemfontein, South Africa, is a prolific author and highly regarded scholar among his peers. He served for six years on the United Nations Working Group on Enforced or Involuntary Disappearances and is a New York and South African lawyer. This book clearly reflects his frustration, building during at least the last two decades, about, in his view, the distorted origins and unenforceable tenets of the international legal order in the face of atrocity crimes (genocide, war crimes, crimes against humanity) and in how quite literally to pay any meaningful attention to the victims of these crimes, who number in the tens of millions. Sarkin argues for a victim-centric legal framework and a victim-centric purpose underlying U.N. reactions to atrocities and calamities imperiling the lives of civilians. Since the beginning of the modern era of tribunal-building in the early 1990’s, there has been a very sharp focus on investigating and achieving accountability for the atrocity crimes for a relatively small number of major perpetrators, either acting in the field or as political or military leaders strategising and executing plans for atrocity crimes. This is an exercise much sought by victims who seek justice against such individuals for the horrendous crimes committed against largely civilian populations. Whenever I met with victims as the U.S. Ambassador at Large for War Crimes Issues (1997-2001) or as the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018), they had one consistent demand: bring the perpetrators to justice. The victims also needed much real-time assistance, but they wanted to see justice done in a courtroom somewhere. Thus during the last three decades international, hybrid, and domestic courts  have been designed to meet this fundamental demand for justice against the perpetrators of atrocity crimes. The outcry from the Ukrainian victim population (in the tens of millions) about the Russian aggression against Ukraine since 2014 and since 24 February 2022 seeks investigation and prosecution of perpetrators operating in the field and in command centers in Russia by international tribunals, foreign national courts exercising universal jurisdiction, and Ukrainian courts. So legal accountability and the building of new or access to existing courts remains a priority of the victims. But in Sarkin’s view, accountability for the commission of atrocity crimes should not distract from the priorities of the victims, how to minimise the violence and calamities that give rise to tens of millions of victims, and how to aid them in the aftermath of crimes. “[W]hile justice is important, there should be greater assistance to individual victims.” (229) Sarkin compares the focus on accountability to major shortcomings in meeting the full corpus of victim needs, including the needs of disappeared victims and those arbitrarily detained. Much of this centers, Sarkin argues, on the failure of outdated and Western-centric international law to focus properly on the rights of victims and the United Nations’ failure to provide protection for survivor populations. Sarkin finds weaknesses in international human rights law (IHRL), international humanitarian law (IHL), and international criminal law: “International law, in general, is weakened—especially when it comes to dealing with conflict and human rights abuses—by issues of state consent, by a system of states ratifying treaties, by having hard and soft law rules that are often not complied with or enforced as well as many others. Also, IHL deals with civilians as a whole and does not deal with a variety of different groups of people, such as those who are the most vulnerable, as IHRL does. This is not to argue that IHRL always does that very well.  In fact, there are lots of gaps and problems. Even more problematically there are very few enforcement options, and, if those mechanisms do take up such cases, they are very few and far between.  There are a lot of issues that IHL does not cover or does not deal with sufficiently, such as women’s issues, for example….” (35) Further, the United Nations, in Sarkin’s view, “remains very weak on providing human rights protection. Where violations occur, the UN prides itself on investigating matters and making recommendations. However, most UN-sanctioned efforts of fact-finding, reporting, recommending and reproaching states where massive violations are occurring—under the auspices of various mandate holders, missions, and ad hoc mechanisms and Special Procedures—have seen noncompliance by states, including the Syrian regime….Ensuring Syria’s compliance and commitment to its international human rights obligations through soft law has achieved little to no success.” (45) One of the major soft law initiatives has been the Responsibility to Protect (R2P) principle enshrined in the non-binding World Summit Outcome Document of the U.N. General Assembly on 24 October 2005 (G.A. Res. 60/1, pars. 138-139, U.N. Doc. A/RES/60/1 (Oct. 24, 2005). The heavily-negotiated text calls on states to protect their own populations from the atrocity crimes of genocide, crimes against humanity (including ethnic cleansing), and war crimes. It calls upon the international community, through the United Nations, to act to protect populations from atrocity crimes, including through collective action with Security Council approval under Chapter VII of the U.N. Charter if peaceful means prove inadequate and the national authorities fail to protect their own people from atrocity crimes. Sarkin condemns the rare application of the full force of R2P during more than 16 years of near-total Security Council gridlock, massive atrocities since 2005, and the principle’s narrow relevance only in the face of atrocity crimes, while it remains irrelevant in the event of aggression, massive human rights violations, and natural calamities or emergencies where the lives of countless innocent civilians are at risk. In short, “international law and the UN have not been sufficiently focused or able to provide protection to people in peril around the world.” (143) Sarkin uses the Syrian conflict, with its enormous range and magnitude of atrocity crimes and human rights violations, particularly enforced disappearances and arbitrary detentions, as his template for analysis of systemic flaws in the international system. He published his book prior to the Russian/Ukraine war of 2022, but one can apply his analysis with equal relevance to the failure of R2P to be activated to authorise the military intervention that would have been required to confront the Russian military invasion to prevent the atrocity crimes that have dominated the aggressive action and inflicted horrendous injury, death, and destruction on the Ukrainian people and their towns and cities. The obvious reason—the certainty of a Russian veto, perhaps joined by China—exemplifies the extreme weakness of R2P as a guiding principle in world affairs. Sarkin proposes the creation of a “new mechanism to conduct searches for disappeared and detained people in Syria and find information for their families.” (208) The mechanism could be established by the United Nations, a regional process, or by states, (211) and financed by states voluntarily with a trust fund. (213) He further describes the proposed new mechanism as having a humanitarian mandate but also a multi-faceted mandate that includes truth and accountability, with perhaps some overlap with other processes, (214) and “a process to collect and centrally collate all of the information from all organisations, the government and other sources.” (216) Bearing in mind his criticism of R2P, Sarkin argues, “New methods need to be found to achieve interventions, maybe outside the umbrella of the UN.” (223) One method within the United Nations would be a standing intervention force of full-time U.N. employees. (224) He argues for restructuring the United Nations by eliminating the General Assembly and replacing it with a bicameral system of a legislative chamber and a chamber to create international law. More resources should be provided to U.N. human rights processes “so that they are able to act to stop the human rights problems that exist around the world. Treaty bodies and special procedures need to be far better resourced and made more independent.” (226) These are ambitious proposals, most of which would confront political firestorms by powerful nations and a stubborn U.N. bureaucracy. But Sarkin puts his case on the table forthrightly and with significant evidence and his views are worthy of serious consideration in both the policy and academic worlds.

The U.N. General Assembly is debating a move to weaken veto power in the Security Council, and the Biden administration is supporting the draft. But weakening the veto is clearly against U.S. interests.  

This year we commemorate the 75th anniversary of the verdict of the Nuremberg Tribunal: on 30 September and 1 October 1946, the International Military Tribunal (IMT) delivered its Judgement in the trial against the most high-ranking political and military leaders of the German Nazi regime. On this occasion, the Leuven Transitional Justice Blog commissioned a special series to examine the lasting legacy of the Nuremberg Trials. In this seventh instalment, David J. Scheffer looks back on the influence of the Nuremberg precedent on the subsequent drafting processes of the statutes of international courts. The influence of the London Charter and Nuremberg principles on international criminal tribunal-building since 1993 has been profound and lasting. As I wrote in my memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals: “The charters of the Nuremberg and Tokyo international military tribunals were the templates for the drafting endeavours of the modern tribunals. They confirmed the core definitions of crimes against humanity and war crimes and set the stage for the Geneva Conventions in 1949. The military tribunals deprived leaders of any immunity from prosecution and soldiers of the defence of superior orders. Their charters insisted on due process protections for the defendants, regardless of how repulsive or guilty they appeared.” As a statute-drafter and negotiator on behalf of the United States Government during the 1990’s in the creation of five tribunals (the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court (ICC)), I relied upon the London Charter and Nuremberg principles as the opening template for fundamental principles of law and due process. The endeavour, of course, evolved with successive tribunal statutes that were negotiated and drafted, as each one built upon the experience of immediately preceding statutes.  But the London Charter and Nuremberg principles stood guard, essentially, as the gold standard that I relied upon as a reminder of the origins of international criminal law that must be engraved for the ages. During the initial weeks of the Clinton Administration in early 1993, I happened to be reading The Anatomy of the Nuremberg Trials: A Personal Memoir, by Telford Taylor, a senior U.S. prosecutor at Nuremberg. The book had just been published and I devoured it as I began my work as Senior Adviser and Counsel to the new U.S. Permanent Representative to the United Nations, Dr. Madeleine Albright. We were thrust immediately into dealing with the atrocities of the Balkans War, which I have written about in The Sit Room: In the Theater of War and Peace.  Ambassador Albright led in the U.N. Security Council to create an international criminal tribunal quickly to bring perpetrators of atrocity crimes (genocide, crimes against humanity, and war crimes) in the Balkans to justice. The precedents of the London Charter and Nuremberg principles loomed foremost in our minds as we sought, and obtained, Security Council approval and then as the statute of the ICTY was negotiated and drafted. Indeed, on 22 February 1993, which was the day Resolution 808 authorising the establishment of the ICTY was approved, Ambassador Albright told her Security Council colleagues: “There is an echo in this chamber today. The Nuremberg principles have been reaffirmed. We have preserved the long-neglected compact made by the community of civilised nations 48 years ago in San Francisco to create the United Nations and enforce the Nuremberg principles. The lesson that we are all accountable to international law may have finally taken hold in our collective memory. The debates over the state of international law that so encumbered the Nuremberg Trials will not burden this tribunal.”  I drafted those words for her with Taylor’s book on my desk, reminding me of the powerful precedent of almost a half century earlier and upon which the ICTY would be built. On 13 May 1993, Ambassador Albright convened a working session at the U.S. Mission to the United Nations in New York of academic and practitioner experts to review various draft statutes of the ICTY, as a final draft would soon be put to a vote in the Security Council. I invited Telford Taylor, who was teaching at Columbia University, to join the session. He would be the voice of Nuremberg. Taylor stressed the criticality of the documentary record that underpinned the prosecution of the Nuremberg cases. He foresaw, correctly, a more difficult task in the Balkans, where the ICTY would need to rely much more on witness testimony. One can draw a straight line between many of the London Charter provisions and what appeared in the ICTY statute. The London Charter had become well established as the plausible template for an international criminal tribunal (despite the Nuremberg court being a military tribunal) that had avoided attracting much academic or political objections over the decades since the Nuremberg Trials. That point was critical to ICTY drafters, including the U.N. lawyers who produced the final draft. To garner a unanimous Security Council vote on 25 May 1993, for Resolution 827, the argument had to prevail that the ICTY statute essentially reflected customary international law principles emerging from the London Charter. Since the major legal debate would be about whether the Security Council had the legal authority under the U.N. Charter to create an international criminal tribunal as a subsidiary organ, we wanted any concerns about the substantive character of the ICTY statute to be minimal and successfully rebuttable. So, to ground the ICTY statute in the London Charter and the legacy of Nuremberg was essential. In the drafting of the ICTR statute, one Nuremberg issue that served as a precedent for what to avoid reared its head: collective culpability. As I wrote in All the Missing Souls: “The Rwandans also wanted to cover groups as well as individuals in the tribunal statute. This would have meant that mere membership in a Hutu group, such as the National Police, Coalition for the Defence of the Republic, Democratic Republican Movement, or murderous Interahamwe, would have subjected an individual to criminal liability. The same tactic was employed in 1945 with the London Charter, which empowered the Nuremberg Tribunal to define as criminal any group or organisation to which any defendant appearing in Nuremberg belonged. In the end, the Nuremberg Tribunal declared three of six organisations named in the indictment as criminal in character. But no one else at the table wanted to go down that path in Rwanda, as it pointed toward collective culpability—precisely what we argued must not be the future of justice in the Balkans or Rwanda. The Rwandan negotiators backed down.” During the long years of negotiations leading to the Rome Statute of the ICC, the Nuremberg precedent was a persistent touchstone of reference and reliance. As the U.S. Ambassador at Large for War Crimes Issues during the second term of the Clinton Administration, I led the U.S. delegation to the U.N. talks. I vividly recall the many times that the German delegation would invoke the Nuremberg precedent to emphasise the imperative of creating the ICC, particularly with respect to the crime of aggression. The Japanese delegation, on the other hand, invoked both the Nuremberg and the Tokyo Tribunals’ precedents to emphasise the due process protections that all defendants before the ICC must be accorded. The early objection to and longstanding criticism of the Nuremberg Trials as “victor’s justice” reverberated throughout the years of negotiation of the Rome Statute and to the present day regarding the ICC. While the ICC is a broadly subscribed treaty-based institution of presumptively objective application to all individuals and nations falling within its jurisdiction, the fact that some major powers and populous nations remain outside of its reach for all intents and purposes points to the argument of impunity for the “victors”. The People’s Republic of China, United States, Russia, India, Pakistan, Turkey, Myanmar, Indonesia, Thailand, Vietnam, Saudi Arabia, Israel, Iran, South Sudan, Eritrea, or Ethiopia, for example, can play victor in their internal repression or foreign military adventures without necessarily attracting accountability before the ICC. Thus, the claim of “victor’s justice” has persisted, albeit differently conceived, with the precedent of Nuremberg its stepfather. Remarkably, one of the American prosecutors, Ben Ferencz, at Nuremberg survived long enough to have relentless influence on the creation and operation of the ICC and, in particular, the Rome Statute’s long journey to codify the crime of aggression. The aim to prosecute aggression dominated Justice Robert H. Jackson’s approach to the initial Nuremberg Trials and Ferencz carried forth that mandate as he lobbied for its inclusion in the Rome Statute. I first met Ferencz when the ICC negotiations commenced at the United Nations in 1995. He skilfully lobbied me in my role as the U.S. negotiator for years thereafter. The memory of Nuremberg shaped all that he said, including long into the 21st century as the definition of and procedural requirements to prosecute the crime of aggression finally were agreed to and codified at the Review Conference of the Rome Statute convened in Kampala, Uganda, in 2010. Nuremberg is a “forever legacy” that will continue to shape the growth of international criminal law. I have no doubt that a century from now judges will cite the London Charter, the Nuremberg principles, and the jurisprudence of the Nuremberg Trials as they render justice in the wake, tragically, of further atrocity crimes.