Earlier this month, former State Department Deputy Beth van Schaack first reported on the planned closure of the State Department's Office of Global Criminal Justice ("GCJ"). The GCJ, historically led by an Ambassador-at-Large, is tasked with advising the Secretary of State and "and other elements of the United States government" on how to prevent and respond to atrocity crimes.
The potential elimination of the GCJ has been widely criticized by, among others, three of the office's prior leaders. Notably, former Ambassadors-at-Large Scheffer, Williamson, and Rapp--appointed by Presidents Clinton, (G.W.) Bush, and Obama, respectively--issued a joint contribution shortly after the plan was disclosed. The piece describes the seemingly imminent demise of the GCJ as "good news for the leaders of the Islamic State and other perpetrators of genocide, war crimes and crimes against humanity."
Since the creation of the GCJ, traditional head of state immunity has given way to instances of criminal liability for state-orchestrated atrocities. This change is thanks in large part to the work of recently formed international institutions, spearheaded by the United States, and specifically supported by the work of the GCJ. Notably, this assistance has not been purely benevolent. As Clint Williamson, one of President Bush's Ambassadors-at-Large for War Crimes Issues explained in 2007, "holding persons accountable for large-scale crimes [has] an important role in stabilizing countries or regions emerging from war. So there is a national security interest in doing this."
If it indeed it is true that Secretary of State Tillerson has not made a final decisions about the future of the GCJ, this is precisely the topic of commentary that he ought to now carefully contemplate. Tillerson's May 2017 speech to State Department employees may have downgraded the role of human rights in U.S foreign policy, but it repeatedly emphasized the importance of US national security.
Retaining the GCJ would also leave Tillerson better positioned to advise an administration that appears to have, at best, limited knowledge about the ever-evolving landscape of international criminal justice and related policymaking. For example, prior to Tillerson's confirmation, it produced a draft order that called for an examination into US funding of the International Criminal Court ("ICC"). Yet, as media outlets were quick to point out--under unforgiving headlines such as "Trump Might Be Trying to Defund Organizations We're Not Even Funding"--U.S financial support for the ICC is not only non-existent but illegal.
Other aspects of the draft order suggest that, without proper guidance, the current administration stands poised to reinstate policies that have already proven profoundly self-defeating, such as slashing development funding to states that "oppose important United States policies." As GCJ staff would have advised, such an endeavor failed conspicuously when attempted by the Bush administration, negatively impacting upon key US interests including security. In fact, the withdrawal of financial support ended up undermining important efforts, such as combatting terrorism and drug trafficking; it also drove some of the funding deprived countries--including those in the US's own backyard--to turn to other powers, such as China, to replace the support no longer coming from the United States.
Finally, while others have rightly stressed the impact that closing the GCJ is likely to have on "dictators, thugs and warlords," Tillerson also needs to think about how the move is apt to affect the conduct of other countries vis-à-vis the United States. Here, a key frame of reference lies in the cloud that loomed over Trump's first foreign trip, when it was revealed that Sudan's Omar al-Bashir--currently wanted by the ICC for genocide, war crimes and crimes against humanity--intended to participate in the Saudi Summit where Trump was a planned guest of honor.
US leaders have long avoided meeting with al-Bashir, who presided over what former Secretary-of-State Colin Powel concluded was a government-orchestrated genocide. Indeed, given this history and consistent US support for al-Bashir's prosecution, it would have been unthinkable for another state to have invited the fugitive genocidaire to attend an event alongside either of the current president's predecessors.
The Saudi decision to extend the invitation, then, appears influenced by more recent events, in particular Trump's onslaught on international law and institutions. In effect, it was the "we're in a different world with the Trump administration" message that nearly caused the US President to appear complicit in al-Bashir's impunity-infused globetrotting.
The plan to include al-Bashir, of course, amounted to a miscalculation on Saudi Arabia's part (behind the scenes, Saudi officials eventually succumbed to US pressure and asked al-Bashir not to attend). But the experience itself ought to inform Tillerson's decision-making regarding the GCJ. Eliminating the office could well invite state conduct that makes the recent al-Bashir fiasco look mild by comparison.
A far superior alternative would be to retain the relatively inexpensive GCJ and to appoint an experienced Ambassador to lead it. This would preserve important institutional knowledge regarding prior practices that have proved harmful, as well as the ways in which working to assist in international criminal justice efforts have worked for the United States. This information, in turn, could help to formulate a policy with elements already proven effective in advancing US interests. A well-informed, designated policy would also put other states on notice regarding the administration's position on key issues, a vast improvement over the current state of affairs, which encourages them to test the limits of US commitment to atrocity prevention.
Megan A. Fairlie is an Associate Professor at Florida International University College of Law, where she is an expert in international criminal law and procedure and the International Criminal Court. In 2007, she earned a PhD in International Human Rights Law from the National University of Ireland, Galway and has taught at the Irish Centre for Human Rights' Summer School on the International Criminal Court.
Suggested citation:Megan A. Fairlie, Why the Office of Global Criminal Justice is Worth Saving, JURIST — Academic Commentary, July 30, 2017, http://jurist.org/academic/2017/07/megan-fairlie-saving-ogcj.php.
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct all questions or comments to him at firstname.lastname@example.org