Listen to GJC's interview with Stephen Rapp,  former United States Ambassador-at-Large for War Crimes and a prosecutor for the Rwanda tribunal, who shares his insights and ideas on the prosecution of ISIS fighters for genocide in "Prosecuting Genocide," the fifth episode of our "That's Illegal!" podcast. Find us on iTunes and Soundcloud.

Transcript: Prosecuting Genocide: A Conversation with Stephen Rapp

STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN. Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.

Today we are interviewing Stephen Rapp, an American lawyer. Stephen was a Democratic member of the Iowa House of Representatives and a Staff Director and Counsel for the US Senate Judiciary Committee. He was a Prosecutor in the International Criminal Tribunal for Rwanda and one of the Chief Prosecutors of the Special Court for Sierra Leone. From 2009 to 2015, he served as the United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice under Obama. We recorded this podcast on location near the UN, so please excuse the occasional background noises, squeaking, door closing, and footsteps that you might hear.

GJC discusses legal theory. We do a lot of work discussing the need for the international community to prosecute genocide. You have actual experience as a prosecutor in an international tribunal. So can you start by sharing a little bit of that firsthand experience?  

STEPHEN RAPP: Well, good morning. It's good to be with you, and it's great to talk about the experience of prosecuting at the International Criminal Tribunal for Rwanda where I worked for almost six years. I was first a Senior Trial Attorney, arriving in May of 2001, and being parachuted in as the team leader in the media trial against the two leaders of RTLM (Radio Télévision Libre des Mille Collines) that many called Hate Radio. Of course, that was a matter of dispute and something we would have to prove. Another was the editor of a newspaper Kangura. Both of them (RTLM and Kangura) incited, directly and publicly, the genocide. In other words, the incitement was calling for it under certain circumstances. If you could prove that in certain situations they have created the genocide, then you could also convict them of that crime.

We were also charging conspiracy to commit genocide—one of the few cases that did that—and crimes against humanity. Particularly there, it was important because there had been attacks. Indeed, much of the rhetoric on RTLM and in the media, like Kangura newspaper, had been directed against the Hutu moderates. Even the famous song “I Hate the Hutu” by one of the Interahamwe leaders said, “I hate these moderate Hutus. I won't stand up for the Hutus. I’m against these oppressive, horrible, arrogant Nazi-like Tutsi.” They believed, historically, they had suffered an enormous oppression. Only in 1959, they had turned the tables, and now they were looking at the return of Tutsi domination. The reason for the genocide is that sort of sense that we can't live with these people; before, we drove a lot of them out, then they want to come back. So now we have to kill them all—for our children.

That’s this incredible genocidal ideology that people really built on—occurring in the context of a civil war and an invasion by the RPF, an insurgency by the children of the refugees that have been forced out of the country. The Hutus have taken over a majority through an election, which proceeded with violence in the 1959 to 1962 period. It was important to also charge crimes against humanity because killing fellow Hutus might not be genocide. Now, it might be instrumental in getting there. We are also looking to make sure that we had an international crime that could encompass at least inciting speech that resulted in violence—that was not on a political basis. That’s why it was important also to win crimes against humanity and persecution through the use of hate speech, speech that explicitly advocated violence.

The Rwanda Tribunal succeeded in all of its convictions of genocide—except for a few minor guilty pleas. By 2006, there was an Interlocutory Appeal to the Appeals Chamber in The Hague, a decision that we were entitled to take judicial notice of the genocide. This is one of the extreme cases; obviously, there were hundreds of thousands of Tutsis who were murdered because they were Tutsis. We took the position that this was something you could take judicial notice out. I'm not sure we could do that in an American court, but eventually, our judges, after we proved it time and time again, were willing to take judicial notice of that fact. But they're not willing to take judicial notice that any particular individual had genocidal intent that you have on trial. You'd still have to prove the responsibility of the individuals.

As to the existence of a genocide that some persons specifically intended, we were able to establish that. The challenging thing in incitement to genocide is the condition. What are the circumstances for doing it? Periodically, you have people that put out absolutely detestable hate speech. For instance, in America, we have a guy in Lincoln, Nebraska, Gary Lauck who puts out all sorts of anti-Jewish speech (and against other minorities, Muslims, etc.) which he flogged to right-wing groups in Eastern Europe. The Europeans are always complaining about. Why don't you do something about it? They complain to social media sites and say we need to block this guy to keep him off. Of course, from an American perspective, we think it’s free speech, so he can do this. On the other hand, when he took a trip to Denmark a few years ago, the Danes arrested him, sent him to Germany, prosecuted, and locked him up for four years.

We have a different standard in the United States. When we adopted the Genocide Convention in 1948, we didn't adopt the incitement part—because of the concern about free speech. To be frank, if you had the kind of circumstances that we had in Rwanda but prosecuted in an American court, I think, our American court would convict on various grounds. The speech that's completely connected to physical violence is not speech, and it wouldn't have a First Amendment protection. It would be the same as yelling fire in a crowded theater.

That raises the question of whether in any other particular context, under international law, if a person goes out and gives a speech to eight or nine persons or puts it out to a bunch of crackpots who have no capacity to do anything—saying that let's kill all the Muslims and the Jews in our country and let’s finish the job that Hitler started—then would it not be direct and public incitement to genocide. Our judges would say, “No, you have to have the potentiality of genocide.” You did have to have fire in a crowded theater. Indeed, that's a lot of what happened in the period between 1990 and 1994 in newspapers like Kangura, which constantly tried to pick at the scab of ethnic conflicts. Some of it was forgotten by the people on the hills who were close to their Tutsi neighbors and intermarried with them, but that sort of reminded them of the horrible things they did to their fathers and grandfathers. There is a motivation for that because the Hutu party that was in control of the country was unpopular. It only represented one region of the country. It was, as in many countries, a kleptocratic regime, which controlled all the resources. So when there was a drought or financial crises, they kept it all, letting everybody else starve.

In 1990 and 1991, when there was pressure after the fall of the Berlin Wall, Rwanda—which had a one party system like a lot of countries did during the Cold War—had to go with multipartyism. Many of these Hutu parties were saying that we're going to get rid of these guys. As a matter of fact, we may form common cause of the Tutsis or with the RPF (Rwanda Patriotic Front). Their immediate thing was to get the Hutus together and remind them of the turmoil and the fact that the Tutsis were against all their existence that keeps them from standing up. The propaganda was that our enemy is the Tutsi; it's not each other. We need to unify as a single man.

That effort is not atypical. There are other situations where people try to go against the other identity, unifying people across different socioeconomic and regional barriers. Sadly, it’s a technique that's worked in other places. It’s not a crime of genocide. In the Genocide Convention, it was debated of whether it should be a crime to prepare for genocide. If you actually have a plan, then you can have a conspiracy. The Appeals Chamber, which is dominated by people who came from the French tradition that hates conspiracies, struck it out on technical grounds.

The ICC statute doesn't even include conspiracy. It’s very hard to get this sort of preparatory planning, but in the end, we were also limited to the jurisdiction of 1994. Our court was created by the United Nations Security Council, using the precedent that had been used a year and a half earlier to establish the International Criminal Court for the former Yugoslavia. It was to be an ad hoc tribunal that dealt with only a narrow situation. We had temporal jurisdiction of only 1994. So we couldn't even count speeches given in 1993, three or four months before the genocide. We had to deal exclusively with 1994. In any case, our great challenge was to show that there was a potentiality of genocide in these speeches. Therefore, these people were guilty of incitement to genocide—even if we couldn't prove explicitly that these messages had caused a particular death. We did have a number of incidents that we could point to that more directly.

There were a lot of challenges in the case. When I arrived, we had around 270 broadcasts of RTLM. They didn't come from the radio. Instead, they've been recorded by other people or by the RPF—as it was recording them to gain intelligence on what was going on. Because the RTLM became almost command control communication for the entire Interahamwe killers, it would sometimes refer to specific sites and license number. Beyond the general incitement of encouragement and support for local officials over the genocide, it was also sometimes calling down killers on a specific target. So some people were listening to it.

We were able to obtain a lot of those recordings—though they were of questionable provenance. It wasn't always clear exactly who made them. We had to self-prove, so a lot of people would come out and say that they were familiar with that broadcast. The unfortunate thing is the resources of the court didn't permit many of them to be translated. Out of 273, when I arrived, 50 had been translated into English or French, and only 12 into both languages. We didn't largely know what we had. In the end, we were able to succeed in these convictions after a trial of 34 months.

I arrived and was put in charge of the team. There had been a couple of leaders before me who had left. One has been let go of and gone off to East Timor to another court. Roughly, in court, there was a team of five attorneys. We had somebody who came over from Rwanda, and one of the legal advisers joined us occasionally. Of course, we had some investigators that worked with us. I was not only in charge of that trial but also in charge of putting together indictments on other cases that might involve hate speech or incitement.

STEPHANIE OLSZEWSKI:  Given that experience, looking at the genocide against the Yazidis: if you were to prosecute ISIS fighters, what challenges do you think, in terms of the evidence, currently exists? Or do you think the case is pretty straightforward?

STEPHEN RAPP: I think that it's a strong case, in particular, because one of the challenges is often proving the specific intent. We have in Dabiq and other statements by leaders of the Islamic State with justification for destroying the Yazidi people—as a Pagan or devil-worshipping group. They are rejecting the idea that they were people of the book. Some arguments might consider them people of the book, but under the Koran, Jews and Christians are people of the book. Even in the most extreme sense, they are allowed to live in an area of the caliphate—provided they pay jizya, a special tax. If they want to convert, then they don't have to pay jizya; far as the Yazidis were concerned, there was no possibility of paying jizya. Your group needs to cease to exist. It's an affront against the Holy Reading and should be destroyed.

A variety of things were done to effect the killing of boys, men, and old women and the enslavement of the Yazidi women who were then sold into slavery to the Sunnis. Their birth may have been constrained by birth control, but even if they were to have a child, that child would not be raised as a Yazidi.  There were a variety of things done.

It’s important to note some misconceptions about genocide. One misconception is that it always involves killing. At the Rwanda Tribunal, a couple of years before I arrived, we had the first judgment to the Akayesu case, which involved a mayor in a small town. Originally a moderate, he became—by the tenth day of the genocide—a true believer, inciting complete killing of the Tutsi population and the rape of Tutsi women. It was reported that he, in a town hall, invited the men to rape Tutsi women. Since it is a direct incitement, the judges there found it to be genocide.

That’s the famous case in the movie “The Uncondemned” where the victims testified about what had happened, leading the judges to ask for an adjournment, so the prosecutor can consider an amendment to add rape as a crime against humanity, tying the rapes into the genocide allegation. Judges, in the end, convicted (after that amendment) that rape is a crime against humanity. They also said that the rape of Tutsi women was one of the ways in which serious injury was committed upon members of the Tutsi group that effectively helped destroy that group. We certainly see in other contexts, rape is a way to destroy and humiliate a particular ethnic group (or in other contexts, even political movements). It’s an effective tool used, particularly, in international armed conflict in the Congo, CAR (Central African Republic) and elsewhere. In Rwanda, it was also one of the ways in which the Tutsis were destroyed.

The judges found that act was an act of genocide. Under that precedent, the ways in which the Yazidi women were enslaved, sold off, and sexually violated on a constant basis by leaders of the Islamic State and their followers was a way in which the Yazidi group was destroyed. Even if the 3,200 that are still captive will be alive, it's not necessary that they be raped to death. It is in and of itself a way in which genocide can be committed.

The other thing that people are confused about is the numbers of deaths. In the Holocaust and the Rwandan genocide, in terms of the territories under the control of the extremists (whether they be Nazis or the Hutus) 70 percent or so of the Jewish population in one case and the Tutsi population in the other were killed. In Rwandan case, there are about 800,000 dead and in Holocaust, 6 million dead. People tend to say that you've got to have the same kind of dimension. No, you don't. What you need is the intent to destroy the group. If you have the intent, and you organize it, killing only half a dozen, then that can still be genocide. But they conflate it with crimes against humanity and extermination, which is part of a widespread systematic attack against the civilian population. The ICC statute is part of an organized planned policy. You need to prove mass killing, then you have crime against humanity and extermination. You don't need that in the context of the genocide.

The statute also says “in whole or in part.” This has opened up a situation where, for instance, in Srebrenica, 8,000 Muslim men and boys were killed; women, young children, and very old men were bust out to areas that were controlled by the Muslims—that the Bosnian Serbs didn't envision taking over. In the Balkans, the campaigns are often referred to as ethnic cleansing. If you simply commit mass killings, rapes, predations, or amputations, then you have the effect of driving people out of an area in order to create an ethnically pure area of your own—a greater Serbia, a greater Croatia. Many of us say that sounds like genocide. Well, no, it's not. There's a place where they can live, and you're, basically, trying to take the territory back. I would like to say that was genocide, but the cases of the ICT for Yugoslavia are clear on that.

On the other hand, in the Srebrenica context—or in that entire area around Srebrenica in eastern Bosnia—the ability of the Bosnian Muslims (Bosniaks as we sometimes call them) to continue live there as it has for hundreds of years is wiped out by this strategy. That’s the view in general. It needs to be a significant part, but what’s significant is that area is Muslim free—through these acts of violence to destroy a defined part of that community. The cases that hold it confirm that it’s genocide. Several people were convicted of genocide. The Prime Minister of Serbs got convicted. The judgment of Mladic, the general, will come out at the trial level at the Yugoslavia Tribunal in The Hague. Most anticipate that he'll be convicted of genocide as well. Even though in other places, even in areas under the control of the Bosnian Serbs, they're letting Bosnian Muslims live, it's still genocide.

In the context of the Yazidi community, there are several hundred thousand Yazidis in our world. The number of killings—because a lot of the mass graves are still under ISIS control—is not precisely calculated. But they're north of 3,000. They could be as high as ten thousand. This particular area of Sinjar, which is the heart of the Yazidi community, sees these mass killings and enslavement of the women under the Srebrenica precedent. Even though we may be talking about two percent of the overall population being killed and another two percent women being enslaved, that can constitute genocide. Based on the evidence that I’ve seen, more needs to be done. I think it would be a strong case.

STEPHANIE OLSZEWSKI:  Do you think there might be problems with gathering evidence and creating a case based on it, considering that it is still under ISIS control and in a war zone? Do you see what's happening currently as damaging to the evidence that would be necessary?

STEPHEN RAPP: Based upon what we have, obviously, there are mass graves—even in the Kojo major killing incident of a Yazidi man and an old woman. The area was taken over by ISIS in August of 2014, but it has recently been retaken. The mass graves there, as the mass graves on mountain Sinjar, have not been effectively analyzed; the security situation isn't strong, which creates problems. There could be booby traps and that kind of thing.

There has been some effort by the International Commission on Missing Persons—that does have authorization from Erbil and Baghdad—to assist in removing some of the externally exposed remains but not to dig and do careful archaeology that one needs to do to mass graves before you get to the question of drawing DNA from the bones.

We think that at the end of the day, this won't be as complicated as in Srebrenica. In Srebrenica, the service actually moved the bodies several times, dug them up, and moved them in other places. There are fragments of the same body found in three different sites, so there had to be hundreds of thousands of DNA tests to pull together remains that families would accept. We're close to 6,000-8,000 victims. Having them reburied and annual ceremonies that occur on the anniversary is what we hope that we eventually can have. There has been effort (a bit disorganized) to collect blood from family members. Technically, blood isn't needed. One can use a swab to create a bank where one can begin to do identification.

Is that necessary? Well, it would be useful, and I would really want (if I were prosecuting) to be able to identify the victims. In part, I would want to see all women, boys, and men. I would want to see an effort to take out all of the groups—other than the women and girls that are taken off to be sexual slaves. I think that would help establish not just the intent to destroy and how they did it but also to actus reus the act of the genocide. If one had today an investigative commission or a more robust mission of some kind that would work with the local authorities and provide security, one could uncover that evidence. Certainly, there's sufficient evidence now to begin investigations—if you had a court. We do have at least the case going forth in Germany under universal jurisdiction. Obviously, we want to see cases beyond that—either in a properly constituted court in the region or in an international court.

STEPHANIE OLSZEWSKI:  This is something that we talk about a lot. What is the importance of these prosecutions and defeating ISIS by successfully prosecuting and putting in jail its leaders for genocide? Could you speak to the importance of justice?

STEPHEN RAPP: There are many reasons why justice is important. Prosecutors in the United States represent the states, and UN prosecutors represent a collection of states. But I'm more familiar with a situation where there's a representative for the victim in the courtroom; that's the prosecutor. That's how I want to see myself, and it’s sort of the first and last thing that I think about in regard to any aspect of the case is: what do the victims need? What do they really desire?  What are they entitled to?

The recognition that they have been victims of a horrendous crime through the judgment of an independent court is extremely valuable for witnesses and anyone who has been a victim of crime that destroys and weakens the self-image, depressing people forever. It's kind of a victimology where you say that you must be weak, so you're a victim. It's your fault. You brought it on. There are all sorts of crimes against women that are accompanied by that kind of thing. Prosecuting and convicting powerful men for the crimes against people that they have weakened and destroyed is one of the ways to reverse that power relationship, which is enabling and empowering.

I do find that when you do it right, the victims and survivors (I don’t want to say that they're happy) feel something very important is accomplished. I’ve had them say that they’d take the judgment over reparations, even though they desperately need reparations. They want that truth established—opposed to saying that we'll just pay you and let the guys go free. If you give them a choice, quite often they'll choose the latter. I've seen that in several situations.

From the point of view of how to respond effectively to the threat of ISIS, which is a global brand, people are adopting ISIS colors, knifing innocent human beings on bridges, rising up in certain areas, taking the cities, and saying that we're ISIS—even though they may or may not even have any direct communication with the caliphate. Obviously, you have a brand that has an attraction to people that feel themselves discriminated against and marginalized. In societies where they come to live and view traditional leaders as Uncle Tom, people are sold out to the cause, and they appear blessed with that and that springtime to be alive. It's a millennial kind of movement that's so attractive. Many people join it and blow themselves up.

How do you counter that brand? Killing people in battle, dropping a bomb or a drone converts them into a martyr; people who are ready to blow themselves up would rejoice at being a martyr in battle. Being a battle martyr is an exalted state. That kind of thing doesn't necessarily diminish the attraction of the brand. The other aspect of it and the favorite alternative when it comes to counterterrorism is if you've got the person who is responsible (or anybody associated with the person that's responsible) then you use counter-terrorism laws that have been written in very liberal ways. In America, for instance, the law allows you to prosecute anyone that's provided material support to an organization designated by the president. The president can designate ISIS, FARC, or any other group, and all you have to do is join them or send them ten bucks. If you are providing material support to that organization, you can be sentenced to life, depending upon some kind of relevant conduct that can prove what kind of sentence it is. But what does that mean? While you're prosecuted for association and for being a member of an organization, you're proud to be a member of an organization that fights for a restoration of a proper kingdom on Earth—the caliphate. That doesn't stop you from joining.

Executing somebody in the context of being a martyr means that locking them up be for the rest of their lives is a more effective punishment in that respect. Of course, many of these people boast about sexual violence. But when you get into the facts of people raping nine year old girls, it is done in an exploitative or lascivious way. The Koran isn't as solid on some of these things as we might like, but it doesn't approve of sex with prepubescent people. It's such a dirty, horrendous kind of thing that having people convicted of that is better—and other acts of brutality that are committed against the old man, girls, and helpless people. It’s the kind of thing when you're chopping off the head of the local police chief or somebody that's done something to you, and killing somebody that's weak and feeble, begging for their life. That's the kind of thing that is hard for a lot of people to look at—except someone that's really an extremist—and say that it’s something that I like or it’s something I want to do.

All of that says that a trial that gets into the acts done to fellow human beings (many of whom are very much like the adults that sign up for it) is a more effective approach. It’s often difficult proving genocide in this context. One of the problems in the terrorism context is that you don't have insider witnesses. You don't know what somebody was doing within the group. Classic terrorist organizations have very small cells. It’s very difficult to bring in informants. That's part of the reason why terrorism tends to use these simplified ways of persecuting.

Investigating a person's own specific involvement isn't easy. But there are a variety of ways to do it. This is an organized movement, like a state. People are issued IDs. There are orders that are available; there are documents that have been obtained; there are foreign fighters that have come back, who are familiar with certain people; there are some of the victims that recognize those that did it to them—not a lot. The usual problem is that the witnesses that you need will be the witnesses that may have been in the movement. So it's not easy. You can't do hundreds of cases like this, so you have to do emblematic ones of leaders. Sometimes, those take much longer than the short cases of whether or not someone is ISIS member. If yes, then you're convicted kind of approach. But it’s so much more valuable for the victims for society and for deterring these crimes in the future.

STEPHANIE OLSZEWSKI:  You've worked for the US government and in international justice. One of the problems that we discuss a lot is that the United States sees itself as exceptional and isolated from international justice. Can you talk a little bit about what the US could be doing to strengthen the United Nations and international justice?

STEPHEN RAPP: In this particular issue (it's one of the things I marvel at) and in a lot of places in international justice, there is difficulty of pursuing the perpetrators. They have friends and allies in high places. Russia actively supports Assad, who has committed 90 percent of the crimes in the region. A passion of mine is bringing those people to account—Assad and others because he opened a space for ISIS, sent 13 million people into refuge, and is responsible for close to half a million deaths. These are horrendous crimes, but that's more challenging to prosecute. He has allies in the Security Council that can block any action, as they have already, like referring the case to the ICC, through a veto.

Nobody likes ISIS. There's no country that says ISIS is our brand. It's not even like Afghanistan or the Taliban that was somewhat supportive of al-Qaida. You don't have anything like that. We ought to be able to get something done. There are certainly members of Congress in both parties that want to see accountability. People like Congressman Smith in New Jersey are very passionate about moving legislature on accountability on ISIS, reinforcing documentation efforts, and moving toward the establishment of some kind of independent court. All of that is positive. People of both political parties want to see this.

The impression I have at the moment is that the US government (the president hasn’t spoken about this) and the state department are populated by professionals who are serving in positions that normally would be Assistant Secretary for Human Rights, Ambassador-at-Large for Global Justice—as I was—or Assistant Secretary for Near East Asia. Sadly, we don’t have anybody like that at the moment, but the people who are in acting positions strongly support the idea of accountability.

At the moment, the initiative is in the hands of the British. Since the last September of 2016, during the high-level sessions of the UN General Assembly, Foreign Secretary Boris Johnson came to New York and advocated for an establishment of an international investigative commission for ISIS crimes. They believed that Iraq would support this. The British position was not to push it unless Iraq agrees to it (or even asks for it). Today, Iraq has not been willing to ask for it and has fears. One priority is to defeat ISIS first. The other thing is the political situation in Baghdad is very complicated. Getting agreement on all sides is difficult. Thirdly, the Iraqi government remembers all of the years when it was subject (not them but the Saddam Hussein regime) to sanctions and UN resolutions—at least ten of them followed the Gulf War in 1990 and 1991 and remained in effect after Saddam Hussein was overthrown for a period of time. They would say that they don’t want to be under any UN mechanism. Help us drive out ISIS, and we will deal with this just fine. Give us some assistance, and we’ll work on it.

I have a lot of respect for the Iraqi government and their hard fight to regain their country from ISIS. But it’s important that we have fair trials in the interest of the victims. Obviously, there is distrust on the part of the Yazidi community—particularly, against the Iraqi government, Baghdad, and Kurdish authorities because they were all from the Kurdish forces during the time of the Sinjar conflict. Since then, they’ve helped recover Sinjar, but there is still incomplete trust in that area. There is also tension between Erbil and Baghdad over the control of Northern Iraq. There is Kurdish region, which is a sort of autonomy with a federal system that claims territory— including Sinjar, which the Iraqi government disputes.

Trying to get it all resolved or getting an agreement on this has been difficult. I understand that the US system will support the Brits on this. I’ve recently heard that they are now making some progress, but I don’t know what that will look like. If you can have a mechanism and the United Nations involvement, within that mechanism, you can work to develop evidence and have a group that would not be associated with one side or the other. This can help provide security, mass graves excavation, and forensic analysis, which can help build these cases. To be frank, every time we’ve had a commission like this in the past, this has led on to a justice solution, which is more internationalized and, at least, more independent. It may not be an ICC referral or an ad hoc tribunal, but it could be a hybrid court. Because the United Nations is unlikely to have the death penalty, you’re more likely to ensure an adequate defense for the accused, transparent trials, victims’ participation, and a variety of things like that.

It would convict people on solid evidence and convict leaders of ISIS that were captured; many midlevel people were captured during the operation on Mosul, and many will continue to be available elsewhere—as they try to flee from the region. Trying them in region would be preferable for the victims, in fact, for the communities close by. I do think that could be the formula, but they can’t say, “Oh, we’ll go ahead and provide assistance for any kind of process that might take place.” It has to be something that reflects the interest of Iraq and the Kurdish region, victims, etc. I think that can be done.  It’s also important that it has the ability to convict people for these crimes. We’ve already had in the Iraqi context (with the Saddam regime) the Iraqi High Tribunal criticized because of the death penalty and due to judges being replaced because they were considered pro-defense. There were aspects of it that were not good. On the other hand, it did have a statue that allowed for convictions—as it did in the Anfal campaign against the Kurds of genocide.

As you know from the Global Justice Center, in cases of sexual violence that is recognized in that region, the court only exists under the statue for the regime crimes of Saddam period. At the moment, neither Kurdish law (which has its own criminal code) nor Kurdish region or the Baghdad state federal authorities have genocide, war crimes, and crimes against humanity in their statutes; that’s important that it be done. Not that there can’t be other crimes under Iraqi laws. But when u do have an effort to destroy a group or the persecution that’s occurring in Shia on religious basis and against Christians and Sunnis on political basis, you’ve got crimes against humanity and persecution, which is almost like genocide—though it allows for a broader group of victims, including political victims. I think it’s important that those crimes be recognized. And persons responsible for them are convicted.

STEPHANIE OLSZEWSKI:  Do you have any final thoughts, anything you want to add, or anything that I didn’t ask and you want to talk about?

STEPHEN RAPP: It’s a continuing effort. It’s a horrendous thing in our world that these crimes continue to be committed. In the period after World War II and the establishment of the International Military Tribunal at Nuremberg, important precedents were established about the fact that you could have crimes committed that were matters of international concern. Even powerful individuals could be held to account. It’s not the state that commits the crime; it’s the individuals who take over the state that commit the crime. In the ISIS context, we’re dealing with a non-state actor that acts like a state in a lot of respects.

None of this development of international justice was possible during the Cold War but with the end of the Cold War, the United Nations established the International Criminal Tribunal for Yugoslavia and for Rwanda, Special Courts for Sierra Leon and for Cambodia. We have the International Criminal Court, which was ratified by 124 countries but not by the US, Russia, China, and most countries in the region, including Iraq and Syria. Part of that complicates these cases when they’re referred by the Security Council. We’ve established fabric of international justice, extending it to include the leaders of non-state group in Sierra Leon—where I was chief prosecutor. We prosecuted the leaders of the RUF (The Revolutionary United Front) which was a group seeking to take power and committed mass sexual violence, mass killings, and amputations in that effort. It was convicted of crimes against humanity and war crimes.

We’ve had other cases in the ICC that involved non-state actors—specifically, militia groups in the Democratic Republic of Congo. We’ve established this law, but there are places where the law doesn’t reach because we haven’t been able to get the country itself to put it into effect, or we haven’t been able to do it through the international system—particularly the United Nations Security Council. It’s important to fill those impunity gaps, and there are a lot of ways to do it. In the context of the crimes against the Yazidi, the one thing we can do (and people are working hard at since these crimes began three years ago) is documentation, which needs to be organized.

The important work of the victim groups like the Commission for International Justice and Accountability, where I’m chair of the advisory committee, has done a lot of documentation on the crimes of Iraq and Syria, including crimes against the Yazidi. That material needs to be shared with and investigated by a body that has authority under a national or an international mandate. That’s the next step. In this situation with a global interest, whether it happens right depends on all of us to be advocating every day to make it happen. I am confident that a day will arrive when we have trials of ISIS leaders for the genocide against the Yazidi. It might not come too soon, but if we keep working at it, they will certainly arrive.  

STEPHANIE OLSZEWSKI:  Thank you so much to Stephen for joining us. We are honored to have him. Please join us next week for more discussions on international law.