‘The Face of Impunity Has Changed’ — Interview with Former US Ambassador-at-Large for War Crimes, Stephen Rapp Features
‘The Face of Impunity Has Changed’ — Interview with Former US Ambassador-at-Large for War Crimes, Stephen Rapp

Stephen Rapp, an American lawyer and diplomat, has been a leading figure in international criminal law and human rights. He was appointed as the US Ambassador at Large for War Crimes Issues in 2009, overseeing investigations and prosecutions of war criminals worldwide. Rapp’s commitment to justice and ending impunity was evident during his tenure, supporting the International Criminal Court and strengthening national justice systems. His notable achievements include the successful prosecution of war criminals at the International Criminal Tribunal for Rwanda (ICTR) as a trial lawyer, and at the Special Court for Sierra Leone (SCSL) as chief prosecutor from 2007 to 2009 — including the prosecution of former Liberian President Charles Taylor. Rapp is the Champion of Justice Award of the Center for Justice and Accountability and the International Humanitarian Award for Advancing Global Justice of the Cox International Law Center.

As we mark the 75th anniversary of the UN Conventions on Human Rights and on the Punishment and Prevention of the Crime of Genocide this weekend, JURIST Managing Editor for Interviews James Joseph spoke with Rapp.

JURIST: Tell us more about your position as ambassador at large for war crimes. 

The position originated during the Clinton Administration when the Yugoslavia and Rwanda tribunals were established. These courts, created by the United Nations Security Council, issued lawful arrest warrants and tried individuals for serious violations of international criminal law, such as genocide, war crimes, and crimes against humanity. However, it was evident that the success of these courts relied heavily on extensive state cooperation. Lacking their own police forces, they needed assistance in apprehending fugitives and individuals indicted in other countries. Additionally, support for evidence gathering, especially in cross-border situations, was crucial.

The United Nations, lacking experience in running criminal courts, faced the challenge of securing personnel familiar with criminal law, burdens of proof, and defense obligations. The newly created office aimed to address these challenges and assist the tribunals, as well as any future ones, on a different basis.

Courts like the Special Court for Sierra Leone, where I served as Chief Prosecutor, were part of a broader movement that the tribunals initiated. This led to the question of why have one-off tribunals instead of a more comprehensive approach. Considerations included representing U.S. interests and ensuring the court could play a protective role without being unfairly targeted, traditionally through deployment of forces in support of alliances.

I assumed the role of the fourth ambassador in 2009 during the Obama administration. Both administrations had veterans of international criminal justice institutions. My immediate mandate involved completing the work of the tribunals, including apprehending the last few fugitives like Mladić, who was convicted later as the central figure behind the genocidal killing of 8,000 men and boys in Srebrenica. I also engaged with the International Criminal Court (ICC) as the United States supported it as a non-party, prioritizing how to address the crime of aggression.

Expanding the focus, I considered the Arab Spring and the broader global landscape. This involved exploring avenues for achieving justice in situations where a clear path was absent. Activities included supporting documentation and civil society efforts to gather evidence, even in the absence of multilateral bodies. When multilateral bodies like Commissions of Inquiry existed, efforts were made to ensure they had reliable information for sharing with criminal justice processes—a project I continue to work on.

JURIST: To what extent did you cooperate with the ICC in that position? 

This was a long-running challenge, and it involved active engagement. Throughout my six-year tenure, there was an increasing emphasis on strengthening the relationship with the International Criminal Court (ICC). Notably, we played a key role in expanding the rewards program to encompass future ICC cases, facilitating the surrender of major fugitives like Ntaganda and Ongwen to American officers for delivery to the ICC. Our assistance in these prosecutions resulted in the longest sentence among the five convictions secured by the ICC, highlighting the court’s effectiveness in attributing responsibility for serious crimes.

While continuing efforts within international tribunals, I also broadened the scope, exploring alternative avenues for justice and evidence gathering. This led me to Geneva, where, faced with the Security Council’s deadlock in New York, we sought alternative means to address situations akin to those prompting the creation of the Yugoslavia and Rwanda tribunals. This involved establishing ad hoc tribunals and advocating for cases to be sent to the ICC under its statute. Notably, when action on Syria was blocked in 2011, we looked to the Human Rights Council to initiate inquiries. Subsequently, we pursued inquiries in various situations, including Syria, Iraq, South Sudan, Sri Lanka, Ethiopia, North Korea, Myanmar and of course Ukraine. These inquiries aimed at addressing atrocity crimes where traditional courts faced limitations.

Notably, there was no ICC jurisdiction in most cases mentioned, with the exception of Myanmar, where recognition for forced deportation came in 2017. The shift from ‘War Crimes Issues‘ to ‘Global Criminal Justice’ in January 2012 reflected a broader focus. My portfolio expanded beyond international criminal justice to encompass global criminal justice—finding diverse ways worldwide to enforce international law norms against those responsible for mass atrocity crimes.

JURIST: There seems to be a key difference between global and international in the context of international law, insofar as it seems that international law as such, tends only to be international within the Global North, and the Global South is too often forgotten here. What are your thoughts on this? 

Rapp: Well, the conventions have been ratified by every country, with significant representation from the global south in the International Criminal Court (ICC). More than 30 countries in Africa and every country in South America have members in or are part of the court, indicating widespread adoption of these norms with a genuine desire to see them enforced. Despite this, there are ongoing grievances regarding perceived imbalances. While some concerns are valid, others stem from leaders who resist being targeted.

An example is the African argument that too much focus is placed on issues like Ukraine, diverting attention from the plight of victims in the Global South. This debate has persisted over the years, questioning the allocation of time and resources, particularly why so much attention is directed at Africa. Various arguments are presented, but it’s essential to consider that an international court, distant from the scene of the crime, can be easily demonized as neo-colonial. Hence, my inclination is to explore arrangements that enable justice to be administered in the region. Drawing from my experience as Chief Prosecutor of the Sierra Leone Special Court for 32 months and my roles at the Rwanda Tribunal, I advocate for solutions that bring justice closer to the

 JURIST: How was Taylor — a head of state at the time — arrested? Tell us more about this. 

Rapp: When the Sierra Leone Court was established, I was in East Africa. I had arrived in Arusha [the city in Tanzania where the International Criminal Tribunal for Rwanda is located], in May 2001, where I served as a senior trial attorney and was tasked with overseeing the Media Trial. We successfully concluded that trial in December 2003, with convictions for each of the three accused. Shortly afterward, I was appointed Chief of Prosecutions in charge of all trials. Around the same time, the Special Court for Sierra Leone was created, with the first prosecutor [David M. Crane] indicting Charles Taylor as one of 13 individuals responsible for serious violations of international criminal law during the Sierra Leone civil war from 1996 to 1999.

Initially, the Taylor warrant was under seal when issued in March 2003, but an attempt to unseal it during a press conference in June 2003 prompted his flight and subsequent actions. Taylor went into exile in Nigeria within two months due to internal revolts. However, in March 2006, following a call for his arrest by the legitimately elected government of Liberia, he was apprehended as he tried to leave Nigeria. This marked the beginning of a challenging case.

While I frequently discussed the surprising reactions of Sierra Leone citizens with colleagues, it was evident that perceptions, though one thing, needed to be supported by provable facts. The case against Taylor was complex, mirroring challenges faced in other cases, such as allegations against Vladimir Putin. Taylor, associated with the rebel group RUF responsible for numerous killings and rapes, had unclear motives for supporting this violent faction. The conflict lacked ethnic or religious dimensions, driven mainly by a corrupt government’s desire for pillage and spoils. Taylor’s involvement was motivated by his ambition for a friendly neighboring government and the desire to exploit Sierra Leone’s diamonds.

Proving the direct connection and showcasing how Taylor planned, ordered, and abetted these actions was a central challenge. Despite the difficulties, the case prevailed, but complications arose due to Taylor’s perceived wealth, making the identification of his assets and securing them a significant challenge. Karim Khan, then the prosecutor general for Sierra Leone, expressed dissatisfaction with the fees and refused to participate in opening the trial.

Taylor himself refused to raise the necessary fees to hire new attorneys in June 2007, leading to Courtenay Griffiths KC, a defense attorney from the English Bar, eventually taking on the case. The trial commenced in earnest in January 2008 and was marked by various challenges, including Taylor’s wealth resistance and efforts to intimidate the court.

However, the trial can be considered a success, distinguishing it from other cases like Milosevic’s, which ended with his death before conclusion. Taylor, represented by Griffiths, was actively involved throughout the trial. Convictions were achieved and affirmed on appeal, although not for every alleged charge. He was found to be the effective controller of the RUF, responsible through command responsibility, and he is currently serving a 50-year sentence in the United Kingdom’s maximum-security prison in Durham, known as Frankland Prison in the Northeast of England.

JURIST: And moving to more recent legal news, as you know, arrest warrants were issued by the chief prosecutor of the ICC against Russian President Vladimir Putin and another high-ranking official. Do you see anything happening with those, or do you think they’re primarily symbolic?

Rapp: The ICC’s primary responsibility is to pursue the most responsible individuals. I don’t think the court has prosecuted more than six individuals in any country situation, as compared with the Yugoslavia Tribunal which charged 171, the ICTR with 93, and the Special Court for Sierra Leone, with 13. In the case of Ukraine, there is a functioning national system that can handle lower-level prosecutions, with the assistance of the United States and the EU in investigating and prosecuting cases. However, the national system cannot prosecute leaders under international law, a jurisdiction reserved for the ICC.

In 2002 the International Court of Justice decision called the Arrest Warrant Case proscribed going after a country’s leader; but the ICC can under its statute and under its decisions, so you expect them to come after the top individuals. But getting them into custody is challenging, and in every case where there has been charges in the past, like any of the courts, there’s been profound scepticism on the part of realists that one would bring the perpetrators to justice and in situations they were brought to justice.  I mean, you did have the, you know, Milosevic eventually brought to justice when he was charged as president of Yugoslavia in May of ’99. People said “you can’t be charging him we need to make a peace agreement with him!”.

Within 15 months, he couldn’t steal enough votes to remain in power and Belgrade was essentially beaten by a fellow nationalist albeit not a war crime. Then, nine months later his corruption and pilferage of public resources was out there it was causing national cases to be began against him. Great pressure has been brought by the United States, the European Union will threats from others for him to be surrendered, and particularly to get the sanctions off. So that kind of leverage and conditionality led the government the Prime Minister to send him today to The Hague. The arrest and transfer of Charles Taylor was similar.  He gave up power and received a comfortable exile in Nigeria on the condition that he did meddle in the Liberian transition.  Later, when he appeared to interfere and Liberia sought his transfer to the Sierra Leone Special Court, pressure was brought on Nigeria, so much so that the the President of the United States would not meet with the President of Nigeria unless Taylor was arrested and transferred. We saw Kenyatta before his presidency alleged to be responsible for crimes in 2007 and 2008, and the election between Kibaki and and you know, eventually cooperating with the ICC appearing in court, and having special arrangements even have to be there every day, eventually defeating the case. As the current president, Ruto was alleged to have committed crimes on the other side so you eventually are able to bring the pressure to bear to accomplish this. And of course, each of the people we’re talking about are not presidents of countries with great power and nuclear weapons. The face of impunity has changed.

Under Trump’s administration, the U.S. conditioned the removal of Sudan from the state-sponsored terrorism list on their surrender to the ICC. The key difference lies in Putin’s case where, aside from the ICC restricting his travel to many countries, the rest of the world has effectively become a more confined space for him. Putin faces a form of justice through sanctions, asset freezes, and travel bans, barring any possibility of imprisonment in The Hague.