War crimes justice through the eyes of survivors

Since it was set up two decades ago, the International Criminal Court has followed its founding aim of not allowing genocide or war crimes to “go unpunished.” Yet in a report to the United Nations last week, the court’s chief prosecutor posed a potentially radical shift in holding perpetrators of such crimes accountable. With Russia’s military killing civilians in Ukraine, his ideas may deserve global notice.

“Our new approach prioritizes the voices of survivors,” Karim Khan told the Security Council on April 28 in remarks on the ICC’s work in Libya. “To do so we must move closer to them. We cannot conduct investigations, we cannot build trust, while working at arm’s-length from those affected.”

The primary motive for creating the ICC was to prevent mass atrocities like the genocide in Rwanda or ethnic cleaning in Bosnia-Herzegovina from happening again. But its work is notoriously slow and – because it is based in The Hague, Netherlands – far removed from the affected populations. In 20 years it has brought just 31 cases to trial.

The new approach outlined by Mr. Khan for Libya reflects a view that moving conflict-torn societies beyond mass violence requires more than the punishment of selected individuals. It has four parts: a greater emphasis on investigating sexual and gender-based crimes as well as the financing of a conflict; involvement of witnesses and survivors in investigations; building judicial capacity and accountability in governments; and strengthening accountability and cooperation among regional blocs of nations and meddling foreign powers.

Those measures reflect Mr. Khan’s emphasis on the ICC’s “principle of complementarity,” which states that a case cannot be brought before the international tribunal if it is already under investigation by an individual state. That rule, the prosecutor told the Security Council last November, binds humanity to universal values. It is an acknowledgment, he argued, that nations have the primary responsibility of enhancing stability and fostering reconciliation.

Colombia’s 2016 peace agreement that ended a long civil war illustrates that point. The pact was successful in large part because the war’s survivors were involved in the negotiations. “The victims have taught me that the capacity to forgive can overcome hatred and rancor,” said Juan Manuel Santos, who was the country’s president at the time. The pact led to the creation of a special judicial panel that favored restorative projects over retributive sentences for perpetrators who gave full and truthful accounts of their crimes.

Critics have lamented the slow pace of the panel’s work. But as a model of reconciliation it has demonstrated the advantages of homegrown justice. As a result, Mr. Khan announced last October that the ICC would close its preliminary investigations of war crimes committed during the conflict that lasted 52 years.

In 2011, the ICC took up alleged war crimes in Libya committed under the regime of former dictator Col. Muammar Qaddafi. The court has since expanded its remit to cover atrocities committed during a subsequent civil war that displaced hundreds of thousands. Mr. Khan’s report to the Security Council was an acknowledgment of the ICC’s slow place – only three Libyan cases have been tried. But it was also a carrot. Since October 2020, a fragile cease-fire has held. Mr. Khan’s new approach is an attempt to promote reconciliation and cooperation between the two sides.

“This situation cannot be a never-ending story,” Mr. Khan said. “Justice delayed may not always be justice denied, but justice that can still be arrived at.”

As the world watches another humanitarian crisis in Ukraine, a new ICC emphasis on listening to survivors of atrocities may offer a new model of international justice.