Melanie O’Brien, Review of Melinda Rankin, De Facto International Prosecutors in a Global Era: With My Own Eyes
Year: 2024
Type: article
Abstract: Melinda Rankin’s book is an international relations book, not an international law one, but, of course, these two disciplines are so clearly connected that each field has something to offer the other. De Facto International Prosecutors in a Global Era: With My Own Eyes comes across as the words of an international relations specialist who is learning about international law process and, at the same time, teaching those of us in international law about what we do. It is quite an interesting journey to see the international law process through the eyes of a non-lawyer. And it is a journey that Rankin takes us on. She tells us a story about how survivors, witnesses and lawyers use domestic and international judicial systems to fight for accountability and justice for atrocity crimes. She looks in from the outside and, in so doing, notices the way in which these people work in a manner that perhaps those on the inside do not realize. It is a story of people coming together and collaborating in communities of practice, sometimes people who are not those expected to be leading a legal case against a major war criminal, but whose collaboration, if successful, ultimately results in significant legal outcomes, sometimes including prosecution and conviction of perpetrators of international crimes. The premise of With My Own Eyes is that individuals act as investigators and evidence gatherers, putting together cases against perpetrators of international crimes, and that, through their work, these individuals become ‘de facto international prosecutors’ even if they are working within domestic legal systems. Rankin argues that this is extending the reach of international criminal law into the hands of individuals, who may be lawyers but who may also be survivors or witnesses with no legal expertise at all. These individuals have determination and passion in their goal of seeking justice for those victims and survivors of atrocity crimes. This determination and passion drive them to connect with other individuals with the same goal, which creates a community of practice, a group of people whose own experience and expertise contributes to the success of international criminal justice outcomes. The stories of Rankin’s book are told through three legally significant case studies: individuals working on the Spain/UK Pinochet case, the Hissène Habré case and the prosecution in Germany of two officials from the Syrian regime. The process of each of these cases is revealed through the lens of individuals who were key figures in that process. The first case study revolves around Juan Garcés, a Spanish lawyer and political scientist who was an advisor for then Chilean President Salvador Allende when Allende was ousted and murdered in a military coup led by Augusto Pinochet in 1973. Garcés was with Allende in the palace on the day of the coup, and Allende forced Garcés to leave. Later, Garcés realized he was the only one from the palace to survive. Allende had wanted him to bear witness and testify to what had happened. Garcés went on to do so in an incredibly powerful way. For over 20 years from Spain, Garcés watched the Pinochet regime kidnap, torture and disappear thousands of people. He eventually decided to use the universal jurisdiction of the Spanish law to initiate proceedings against Pinochet, which ultimately led to the request for Pinochet’s extradition from the United Kingdom, a case so renowned in international law that there is no need to revisit it here (nor is that the purpose of this review). Garcés’ community of practice included Judge Baltasar Garzón, Spanish lawyer Manuel Murillo, UK-based lawyers and non-governmental organization (NGO) representatives and, of course, survivors and relatives of victims of Pinochet’s regime. The second case study is that of Souleymane Guengueng, a survivor of arbitrary detention and torture under the Habré regime. Guengueng watched others die while he languished in prison and swore that, if he survived, he would seek justice for those who had lost their lives. He kept that promise. Guengueng used his accountancy organizational skills to collect testimonies from other survivors, setting up an NGO for the victims of the Habré regime. The story of Guengueng’s journey to justice is quite extraordinary. It starts with a truth commission, the findings of which are never implemented. Guengueng then connects with Human Rights Watch and, specifically, with lawyer Reed Brody, who was already interested in finding ‘the next Pinochet’.1 After this, the journey continues with domestic Chadian courts, moves to domestic Senegalese courts, before moving continents to Belgian courts, taking a detour via the African Union, heading to the International Court of Justice and eventually ending up with the African Union setting up a court in Senegal. The resolve and community surrounding Guengueng, Brody and other members of their team kept them going through the many roadblocks and frustrations of unsuccessful prosecution or extradition attempts. The third case study concerns Chief Investigator 1 (CI1), an anonymous lawyer turned investigator from Syria who continues to work on the evidence collection of crimes committed by the Syrian regime under Bashar al-Assad. Like Garcés, CI1 witnessed the crimes of the Syrian regime ‘with my own eyes’ (at 149) and began to document the crimes. CI1 set up an informal group of Syrians, who were trained by William Wiley, a former investigator and analyst for several international criminal tribunals. This was the starting point for what was to become a strong community of practice of Syrian and foreign international criminal justice practitioners, establishing the Commission for International Justice and Accountability (CIJA), which serves as an independent body collecting evidence of atrocity crimes in Syria and other locations in preparation for future cases before domestic and international courts and tribunals. As the conflict and atrocity crimes in Syria are ongoing, this work is challenging and even life-threatening for those who remain in Syria to collect evidence, but the commitment remains. CIJA’s work, including that of CI1, led to the arrest in Germany of two senior Syrian officials, through the exercise of universal jurisdiction. One element of the book that stood out was the gender imbalance of the case studies. All the case studies focus on male actors, and almost all the other people listed as part of each community of practice are male (with the exception of a female Chadian lawyer). It leaves the reader wondering where the stories of women in these communities of practice are, particularly given the extensive number of women who do work in this field. Gender is a decidedly relevant factor in international criminal justice practice, as the experience of victims can be highly gendered (for example, when boys and men are killed and girls and women are raped), requiring representatives of all genders to work with survivors. Thus, it would benefit these inspirational stories of perseverance from the field to include the voices of women practitioners and their experiences in the pursuit of justice. Ultimately, each of the case studies in the book led to highly significant legal outcomes. Pinochet’s extradition to Spain to face torture charges was eventually approved by the UK courts (even though it was ultimately not carried out). Habré was eventually tried in the Extraordinary African Chambers within Senegalese courts and sentenced to life in prison. The two senior Syrian officials – Anwar R. and Eyad A. – were tried and convicted in Germany for committing and aiding torture. All the cases are significant and relevant precedents for international law. The case studies in this book emphasize the importance of universal jurisdiction and the aut dedere aut judicare principle of international law, highlighting the important role of domestic law as well as international institutions. These principles are sometimes seen as controversial, particularly universal jurisdiction, and, therefore, they are not enacted by all states, with some states perceiving these forms of jurisdiction as disrupting traditional concepts of jurisdiction that focus on territory. This unfortunately results in perpetrators of international crimes finding sanctuary in some countries despite the fact that the aut dedere aut judicare principle is found in treaty law, including the Geneva Conventions and the Genocide Convention.2 However, the cases in Rankin’s book demonstrate that these processes not only can be, but also are, effective when they are applied and, thus, remind us that the pursuit of justice for international crimes need not only be in international criminal courts and tribunals. The cases are also crucial in confirming that there is no immunity for even heads of state (or at least former heads of state) for atrocity crimes such as torture. Authoritarian leaders and other officials committing mass atrocities and human rights abuses would do well to be reminded of these cases because they confirm that the law exists, is practical and functions effectively when used as it should be either in domestic legal systems or international courts. Lawyers and jurists always look to the past for legal precedents, but With My Own Eyes demonstrates how the success of one community of practice leads to the formation of other communities, in other countries, to pursue other atrocity perpetrators. In other words, seeking justice is not just about the substantive legal precedents but also about the process precedents. Those working on the Pinochet case looked back to lessons learned from Nuremberg. The Pinochet case inspired those to seek the prosecution of Habré. The expertise from past international criminal court and tribunal lawyers and investigators led evidence collection and the pursuit of cases against Syrian officials for torture. And while With My Own Eyes shows us that experience is important and should be utilized, it also proves that those with no experience in international justice can effectively learn and apply their skills to this formerly unknown process: perhaps a reminder to the justice mechanisms that people with differing levels of experience have much to offer. Rankin is a skilled storyteller; each case study chapter almost has the bent of a thriller; even if you know what the outcome is, it is still exciting to follow each individual’s journey through the justice process, particularly when there are significant twists and turns in their pursuit of justice. With My Own Eyes is a collection of memos to those working in international criminal justice that one person can truly make a difference, and these stories will serve as inspiration for those days when we feel like giving up.
DOI: 10.1093/ejil/chae008
Author: Melanie O’Brien
Institution: University of Minnesota
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W4392143633