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The Challenges and Possibilities of International Criminal Law: In Conversation with Johann Soufi

Johann Soufi is a Franco-Algerian international lawyer and prosecutor, and a former Senior Legal Officer at the United Nations. He has been internationally recognised for his work and investigations into international crimes in many countries around the world. This includes his work as a legal adviser of the President of the International Criminal Tribunal for Rwanda, as Head of the Legal Advisory Section of the Special Tribunal in Lebanon, and as the Head of UNRWA’s Legal Office in Gaza.


This interview was conducted in June 2023.



CJLPA: Hello and welcome today, Mr. Johann Soufi. I’d like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics and Art, to provide insights and thoughts based on your extensive experience as an international lawyer. As you’ve had an extensive career to date in prosecuting and investigating international criminal and human rights violations and having been counselled for various international tribunals and courts, I want to begin by asking you what prompted you to delve into a career in international criminal law (ICL), as opposed domestic criminal law?

 

Johann Soufi: Thank you for the question and for the invitation. Firstly, I don’t believe there’s a significant difference in being a lawyer at the domestic level or at the international one. I think that if you’re drawn to criminal law, it’s because you want to understand why certain individuals commit crimes, and explore the human aspects behind these actions. I could have chosen to practice in France, my country of origin, rather than at an international level, but I was truly interested in grasping the diversity of societies and their influence on the crimes we observe. There was also an interest in addressing the magnitude and the profound injustice of certain situations outside Europe. Like every practitioner who aspires to work in human rights or international criminal law beyond their domestic sphere, it was the extent of suffering in the world that I sought to address and challenge.

 

CJLPA: Could you give us an example of a case you worked on to help establish a state’s accountability for their human rights violations, which ultimately resulted in justice being released for the victims?

 

JS: As you probably know, international criminal (ICL) law focuses on individual responsibility. The fundamental principle of ICL is that crimes are not committed by an abstract state or population but by specific individuals, whose actions impact an entire society. So, when it comes to establish a state’s responsibility, I might not have a straightforward answer. Nonetheless, I will offer two examples to illustrate the variety of accountability mechanisms available to push or assist states in fighting against impunity. The first is drawn from my involvement with the International Commission of Inquiry for Mali, where we were tasked by the Secretary-General with investigating crimes perpetrated by all parties: governmental, non-governmental, and international forces. I highlight this example due to the significant resistance from the current Malian regime towards those engaged in human rights, which is concerning. Yet, an important aspect of international justice and accountability processes is recognising the duration required to observe the effects of our work, which may not be immediate but could manifest over a decade. My second example relates to my current position in Ukraine, where I serve as a senior prosecutor for an organisation that supports Ukrainian prosecutors and judicial authorities in addressing impunity for crimes committed by Russians in the context of the ongoing conflict. Currently, there is a pronounced political will and a robust initiative to combat the impunity surrounding the crimes occurring in Ukraine. This political drive and the accountability mechanisms now being designed in Ukraine will, over time, reveal their efficiency, possibly within 5, 10, or 20 years. As international practitioners, the influence of our endeavors might become apparent in as little as five years or extend up to decades.

 

CJLPA: What you’ve just explained definitely demonstrates how ICL and international human rights law (IHRL) are the fundamental basis for the international community to be able to legally step in into another state and hold individual actors accountable for the most serious crimes. When we see these gross human rights violations occurring around the world, these legal mechanisms truly provide hope for addressing the issues, but equally, various challenges do come across. That’s what I was hoping to step into now, beginning with Rwanda.

 

Reflecting on the ICTR and the acquittal of Justin Mugenzi and Prosper Mugiraneza demonstrates the difficulty in proving responsibility of political leaders for violations of international human rights law. We must abide by the rule of law and start from the innocence of an accused, before determining their guilt beyond a reasonable doubt based on the evidence that is presented. This is the case in various criminal law jurisdictions, however, establishing evidence is very challenging. From your experience, how is this something that we could address?

 

JS: Actually, my initial involvement with the ICTR, was working for the defence. I highlight this because, as an international practitioner, my interest has always been in the judicial process, rather than its outcome. For example, I don’t see acquittals, including of high-level political leaders, as a failure of the system. I see it as the possible outcome of any impartial judicial process. It is, sometimes, a failure when the prosecution or judges do not fulfill their mandate. But I also believe that an effective judicial system, whether domestic or international, should lead to an individual’s acquittal when they are innocent or when the prosecution has failed to establish guilt beyond a reasonable doubt. I hold this to be true for the ICTR as well. The second aspect which, I think, is also very important for international trials, is to recognise the significant political stakes involved in such cases and the paramount importance of the accused’s rights and the trial’s fairness in this specific context. This is because, at the outset of a trial, it’s uncertain whether political motivations underpin it.

 

This said, you are completely correct, international trials, particularly those targeting senior military commanders or political leaders, pose tremendous challenges. The reason is that the people who are behind the crimes, the most responsible, are usually very far from the crime scene. They may not physically have ‘blood on their hands’, but they bear significant responsibility for planning and organising the crimes, without which these atrocities would not occur.

 

To take a more familiar example, in a mafia case or organised crime in the UK, arresting the individual selling drugs or committing a murder might be straightforward. However, identifying the top of the pyramid and understanding the mastermind behind these criminal activities is far more challenging. This is equally true for international crimes, as victims or witnesses often describe the crime itself but have little or no knowledge of who orchestrated it. To the contrary, as a practitioner, when someone claims to know precisely who is beyond the planning, that often raises concern about the credibility of the statement. Usually, to find out about command responsibility, like senior leadership, you need to conduct a long investigation and have access to insiders who can testify about receiving orders or financial support. You also need to conduct investigation into telecom evidence, conduct intelligence analysis etc. This is much longer and more difficult process than just interviewing a few witnesses, and figuring out directly who could be the perpetrator behind the crime. If these challenges are not well explained to the victims, it can create frustration among them, and in general, among the international community about the length and the disappointing outcome of certain trial such as the one you have mentioned.

 

CJLPA: I think that’s very well said in these circumstances. When there are issues of human rights violations, the public is very quick to point fingers at the state actors in question, rather than considering the political implications. As you said, it’s not a matter of the result, it’s about the process. Of course, there are higher political stakes, so we have to be very careful with how we prosecute these crimes and establish accountability. From what you’ve just said, it does sound like a very difficult and long process for the prosecution in terms of establishing jurisdiction, the rigorous investigative process in gathering and collating evidence over the years and working in heightened political risks in order to achieve justice for the victims and establish accountability. Do you think the current international criminal law framework that we have in place draws a fair balance on the burden of proof required by the prosecution? Or is it a matter of potentially reducing the burden for the prosecution currently?

 

JS: No, I do not believe the burden of proof should be altered. Building on what I mentioned earlier, determining whether a state is democratic or respects human rights often involves examining how the state treats suspects. This is somewhat paradoxical because, in the context of serious crimes, the focus tends to be on the rights of victims. However, considering how the state upholds the rights of the accused is equally important. In many cases of human rights violations I have witnessed, the initial violations typically involve states levying false terrorism accusations. The first signs of widespread corruption and systemic violence against citizens often stem from issues related to the rights of the defense and the burden of proof. I maintain that for the international community to uphold its credibility in promoting human rights and international law, it must steadfastly adhere to a rigorous burden of proof and the presumption of innocence, making no changes to the burden of proof.

 

This said, it is true that trials should be conducted in a way that takes into consideration the specificities of international trials, the security context and the pressure that states or armed groups could put on the witnesses, including threat to their lives. To avoid misjudgment, international lawyers should also be more aware of the culture of the witnesses and the realities of conducting investigations in difficult fields. What I’ve noticed sometimes in international trials is that judges, prosecutors, and lawyers are evolving in a bubble. They are in The Hague, conducting their trial or investigation and don’t always understand the reality in the field and, or the possibility that after years of trauma, a witness will not remember the color of the car of the accused, or the precise date of when a crime took place. These are very important cultural elements that I feel sometimes international practitioners forget about and then assess the credibility of evidence with a lens which is not adequate. My answer in a nutshell would be by all means you don’t touch the burden of proof. That’s the pillar of any democratic system and of the legitimacy of international criminal law. But yes, you should also look at the evidence with a bit better understanding of what it means to witness such crimes and to actually investigate in such a difficult context, where sometimes the entire establishment, the entire forces of the state are acting deliberately to prevent you from finding out the truth.

 

CJLPA: I now wanted to transition a bit to focus on broader issues occurring in Africa, in terms of human rights violations, especially in the context of the Journal, because we speak with various human rights abuse survivors, including survivors of human trafficking, genocide, and mass starvation in the country. From your experience and your knowledge, beyond the ICC, are there any legal mechanisms we have in place to address these crimes outside of the political sphere?

 

JS: To a certain extent, Africa has always been at the forefront of the fight against impunity, given the magnitude of crimes occurring on the continent and the innovative approaches developed by both the international community and African civil society to address these atrocities. The International Criminal Tribunal for Rwanda (ICTR), established by the United Nations Security Council, is a notable example. However, there are numerous other mechanisms. For instance, the Special Court for Sierra Leone was initiated by the Sierra Leone government, influenced by the country’s civil society. Additionally, there’s the example of the trial of Hissène Habré in the Extraordinary African Chambers in Senegal and the Special Criminal Court in the Central African Republic, which are courts of a hybrid nature. There are also the truth and reconciliation efforts in South Africa, Sierra Leone, Gambia, and Liberia. This diversity of accountability mechanisms, extending beyond the International Criminal Court (ICC) and other tribunals created by the Security Council, showcases Africa’s significant contribution to the development of international criminal law and to the fight against impunity.

 

CJLPA: I now want to turn to the creation of the Special Tribunal for Lebanon (STL), established after the assassination of the former Prime Minister Rafic Hariri and 20 others. It was the beginning of a fight against international terrorism, even a first step towards establishing the responsibility of perpetrators of serious violations of human rights in the Middle East. Could you please speak about the investigative process in this period and more specifically on the difficulties and challenges throughout this process, reflecting on what was required to carry out these investigations in Lebanon when you were working as counsel?

 

JS: When discussing the complexity of international law, it’s important to consider the context of the Special Tribunal for Lebanon (STL)’s creation. Lebanon requested the tribunal, but strong political divisions within the country made it impossible to establish according to the Lebanese constitution. Consequently, the Security Council, identifying the assassination of Hariri as a threat to international peace and security, passed a resolution under Chapter VII of the UN Charter to establish the tribunal. This decision was, to say the least, controversial, especially since the STL was the first international tribunal to hold trials in absentia, further fueling debate. So, from the beginning, the STL faced questions regarding its legitimacy, compounded by strong opposition within Lebanon, where its activities were seen as interference and politically motivated against certain factions, notably Hezbollah. The tribunal thus operated within a highly charged political context. Adding to the complexity was the nature of the crime; the perpetrators had meticulously covered their tracks, leaving no direct evidence linking them to the crime’s orchestrators. The prosecution’s investigation was exceptionally challenging, lacking witnesses or insiders and devoid of financial trails. The case hinged almost entirely on circumstantial evidence, primarily telecom evidence and call data records. This reliance on modern technology was unprecedented in the history of international justice, raising numerous novel legal issues.

 

CJLPA: At the end of the proceedings, the Trial Chamber judges unanimously found the guilt of Salim Ayyash, yet acquitted three other alleged members of Hezbollah, due to the requirements of the highest standard of proof. From your experience working in the STL, what could have been done differently on the prosecution’s side?

 

JS: To complete your question, it is important to recall that the appeals chamber later reversed the decision of the trial chamber and convicted two additional accused, Hassan Merhi and Hussein Oneissi. Regarding the flaws in the prosecution’s case, it’s also crucial to recognise the significant challenges the prosecution encountered while investigating this complex case. The absence of insiders and the real security threats to anyone willing to cooperate with the prosecution were serious hurdles. However, I also believe that much of the criticism directed at the STL, in particular at the Office of the prosecutor, was warranted. My primary critique of the STL concerns its detachment from Lebanon and the Lebanese culture. The Tribunal generally failed to consider the unique aspects of Lebanese legal culture and conducted its proceedings in complete isolation from Lebanese civil society. This approach quickly led to a strong disinterest among the Lebanese population in the proceedings, and, as a result, the STL eventually lacked the public support necessary for the continuation of its activities.

 

CJLPA: A big question that also came out of it was the difficulty with the funding. Particularly the STL funding model was for Lebanon to meet 49% percent and the remaining states to meet 51%. Are there alternative ways that we could consider to provide the funding in order to enable access for justice in such circumstances in the future when we want to continue setting up special tribunals?

 

JS: Let’s put this into perspective. Given my wife is Lebanese, I’m acutely aware of the challenges faced by the Lebanese population, especially the severe financial crisis currently underway. So, the fact that the Lebanese people contributed 49% of the budget is significant. This means that of the $60 million annual budget, almost $30 million was funded directly by Lebanese taxpayers, which undoubtedly affects their daily life. While it’s true that justice costs money—a minor expense compared to funds allocated for other purposes, like war and finance—it’s still a substantial amount. We must always remember this and strive for greater efficiency, considering the high costs of these courts and the fluid nature of political priorities. This highlights the complexity of the international context we navigate. In this regard, it’s crucial that, alongside securing funding for international courts and tribunals, we remain conscious of competing against other global crises. For instance, the current focus on Ukraine and the significant financial support it receives can sometimes be at the expense of other crises worldwide. I concur that securing sustainable funding for international justice through a regular budget, similar to what the ICC seeks to establish, is vital. Yet, we must also recognise that we operate within a political landscape where funding is inherently tied to states’ political priorities, making the financing of international justice inherently unstable.

 

CJLPA: As we know, there were good reasons for establishing the court, amongst them the absence of the Lebanese people’s trust in their own judiciary. If we look outside of Lebanon to other countries in the Middle East, is there scope for other tribunals to be established in countries such as Syria, Iran, Saudi Arabia, where we see various conflicts and violations of human rights occurring to date?

 

JS: Yes, of course, but this underscores once more the tight connection between international criminal justice and its geopolitical context. The absence of tribunals for Syria, for Palestine, Yemen and other situations mentioned, stems from political stalemates at either the regional or international level, particularly due to the vetoes by certain states, namely the US, Russia, and China, at the United Nations Security Council. This is likely why a special tribunal was established for Lebanon and not for Syria.

 

Nevertheless, international practitioners and diplomats are endeavouring to be innovative in ways that tackle these challenges and circumvent the deadlocks. For example, in the case of Syria, the General Assembly of the UN established an International, Impartial, and Independent Mechanism (IIIM) in Geneva gathering evidence, acting as a central repository, and sharing it with national jurisdictions. With the support of this mechanism, there have been successful prosecutions and trials against Syrian individuals involved in crimes, for instance in Germany and France. Other methods are also being explored to achieve accountability for crimes without necessarily requiring a UN Security Council resolution; in Ukraine, for instance, the European Union and its allies are attempting to establish a hybrid court. With legal creativity and political determination, it is always feasible to devise mechanisms for accountability.

 

The underlying factor in all these efforts is political will, which, especially in democracies, originates from the population. Raising awareness and disseminating information are crucial, as this informs the public about international crimes and human rights violations worldwide, motivating them to demand greater accountability. Democratic governments are likewise inclined to advocate for similar mechanisms. Even economic sanctions could serve as a valuable tool. The advocacy work of individuals like yourself, journalists, practitioners, and human rights activists plays a vital role, as it influences public opinion, which, in turn, hopefully impacts government actions.

 

CJLPA: The United Nations Security Council will likely not be an option with the permanent veto from certain states, such as Russia and China. Do you see merit in alternative avenues such as the General Assembly voting to request an advisory opinion from the International Court of Justice? Would this be a potential solution for providing that political willingness that you’re talking about and if so, to what extent?

 

JS: Yes, advisory opinions are indeed an important legal mechanism. Though they have no binding effects and thus limited impact, like the advisory opinion on the wall in the Occupied Palestinian Territory, they hold significant legal authority in a way, because they represent a United Nations court’s delineation of the law. This is immensely valuable. It presents a pathway, and I believe the General Assembly should be empowered to take more action, considering the Security Council, as a political body, is somewhat anachronistic, reflecting an era, a world that no longer exists. Reforming the Security Council without the consensus of its five permanent members is impossible. Nonetheless, the United Nations remains the first solution and tool we possess. We must be inventive with the tools at our disposal and explore all avenues for the international community to circumvent the potential stalemate caused by a few countries.

 

The Rome Statute exemplifies this perfectly. Certain countries concluded that waiting for the United Nations Security Council to establish ad hoc tribunals for each new conflict or situation was untenable. Thus, they opted to establish a new treaty-based jurisdiction, aiming for eventual universal acceptance. The fact that, as of today, 123 states are parties to this court is quite remarkable over the last 30 years. I am an optimist at heart. I believe in the power of creativity, even outside the UN framework, to advance the cause for new courts on a treaty basis.

 

CJLPA: An important issue that came up at the STL was the definition of terrorism. Defining terrorism is highly complex and controversial, both in the domestic and international level. When considering at the definition of terrorism being assessed in the domestic criminal process, Paul Rusesabagina, the Rwandan opposition leader and a hero to most, was sentenced to five years in prison because he was guilty of terrorism. Then, in the United States, innocent men were kidnapped and held without charge for years in Guantanamo Bay because they were allegedly terrorists. The existence of this definition has provided an opportunity to lock up the wrong people. What are your views on the definition of terrorism, particularly in terms of international law?

 

JS: You’ve brought up an issue I’ve long been interested in. My Master’s thesis in 2005 focused on the universal definition of terrorism. Being Franco-Algerian, I’m aware that both of my countries have endured terrorism, a subject I consider significantly important. Conversely, there are countries that apply the definition of terrorism against any form of political opposition, making it a contentious issue not just internationally but domestically as well.

 

Regarding your specific question, an important contribution of the Special Tribunal for Lebanon was the Appeals Chamber’s effort to establish a universal definition of terrorism. The Appeals Chamber found that a customary rule of international law has evolved defining and outlawing transnational terrorism including in times of peace and that terrorism was the commission of a criminal act through means which are liable to create a public danger, committed with the intent to spread fear among the population or coerce authority. However, the primary challenge here is political rather than legal, centred on whether state terrorism exists and whether armed groups fighting against colonisation or illegal occupation fall under the definition of terrorism. These issues create legal tension on the global political scene, explaining why, despite decades of effort at the United Nations, there’s still no universal definition of terrorism or a convention on international terrorism.

 

So in a nutshell, the issue is predominantly political, and I understand the reasons. Yet, I believe there are sufficient legal tools at both domestic and international levels to address this type of criminality. Domestically, nearly every state has its own definition of terrorism. Internationally, legal concepts exist that can encompass terrorist acts. The Geneva conventions prohibit acts or threats of violence the primary purpose of which is to spread terror among the civilian population is a war crime in both international and non-international armed conflict. Acts of terror, whether committed during armed conflict or not, could also be considered as crimes against humanity, under specific conditions. Thus, legal frameworks are in place to address aspects of criminality associated with terrorism. Nonetheless, it’s crucial for the international community to persist in its efforts to address terrorism, a fundamentally global issue requiring a unified response. The United Nations or international instruments represent the best means to this end.

 

CJLPA: Reflecting back on history, there was a time when George Washington or Nelson Mandela were considered terrorists, so it’s clearly an evolving definition. Do you think there’s still an ongoing need to find a universal definition for terrorism, or do the coherent legal crimes we have in place already address what we categorise as ‘terrorist attacks’?

 

JS: At the domestic level, prosecuting individuals committing terrorist acts is rarely difficult from a legal perspective, as states are keen on combating domestic terrorism. Conversely, the real challenge lies in ensuring that domestic proceedings adhere to human rights standards, particularly regarding the fair trial rights of individuals accused of terrorism. It’s essential to ensuring that terrorism is not used as a pretext to prosecute any form of domestic political opposition.

 

Internationally, a universal definition of terrorism agreed upon by the international community would be ideal. Meanwhile, it’s crucial for the UN to address specific issues like financing terrorism, state support of terrorism, restricting terrorist groups’ access to chemical or nuclear weapons, or countering violent extremism for example. These pressing issues also sometimes lack a uniform response level. The UN, through entities like the Counter-Terrorism Committee Executive Directorate (CTED) and the United Nations Office on Drugs and Crime (UNODC), is actively working on these fronts, signifying considerable global efforts to tackle various terrorism forms.

 

However, defining terrorism and identifying who is considered a terrorist remains challenging for the UN. For example, during my time with the Commission of Inquiry for Mali, the distinction between terrorist groups and violent armed groups by the UN Mission in Mali (MINUSMA) was based on whether they had signed the peace agreement with the government. While understandable, this criterion is somewhat incongruent from an International Humanitarian Law (IHL) perspective, as groups with diverse political motives can commit acts violating international law. Therefore, adhering to the language of IHL and the Geneva Conventions, which are neutral and universally accepted, seems more adequate.

 

CJLPA: I also want to discuss Palestine and in particular your role in the UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East). Could you share a few crucial reflections you came to when you were working in this field.

 

JS: My work with UNRWA was a bit different from anything I’ve done previously in my career, in the sense that it almost exclusively focused on providing humanitarian relief, and not doing the human rights and ICL work that I’d done in my career before that. However, this experience gave me a better vision of the needs of people beyond justice. I mean, justice is extremely important for the Palestinian population in Gaza, who have been suffering decades of serious crimes and gross human rights violations and abuses, but they also have pressing needs for food, for education, and for health. Despite significant challenges, UNRWA has done an incredible work in providing these services in the absence of a state, due to the political context in Palestine.

 

CJLPA: Can you tell us a bit more of why the UNHCR is not responsible for Palestinian refugees in this sector?

 

JS: Well, the explanation is straightforward from a legal standpoint. The Palestinian refugees do not fall under the mandate of the UNHCR. UNRWA was established before the HCR and specifically to provide humanitarian relief to Palestine refugees until a just and lasting solution to their situation and their plight can be found. UNRWA and UNHCR have distinct mandates, with the latter not tasked with addressing the needs of Palestinian refugees or their right to return. Additionally, UNHCR is already responsible for nearly 60 million refugees, including facilitating their right to return and resettlement in various countries. Essentially, these are two agencies with two distinct mandates.

 

CJLPA: In terms of the human rights violations committed by Israel in Palestine, do you believe there are specific legal frameworks we have in play that could accelerate addressing the violations, or are only political mechanisms feasible currently?

 

JS: I know that there is always a tension between diplomats and lawyers, peace and justice, but I believe that what is essential is to underline their complementarity. My role as a human rights or international criminal lawyer, as a practitioner, has never been about engaging in politics or diplomacy—that’s the realm of diplomats. As a lawyer, my focus is on criminal accountability, including investigating, prosecuting, and defending, which is distinct from diplomatic duties. These roles, in my view, support each other.

 

Regarding the specific situation in Israel and Palestine, there’s a need for diplomats to enhance their efforts significantly to find a solution for the plight of Palestinians. Meanwhile, it’s crucial for criminal lawyers and human rights organisations to keep highlighting the current events in Palestine and Israel. Without a political resolution, and as long as crimes, human rights violations and abuses, illegal occupation, and colonisation persist, the cycle of violence will likely continue. Our role as human rights defenders and international lawyers is to combat impunity, which ultimately supports the pursuit of peace in the Middle East and beyond. The International Criminal Court (ICC) has a mandate to investigate crimes committed in Palestine, and there should be more political pressure on the ICC Prosecutor to expedite these investigations. In parallel, we must continue documenting crimes and seeking justice. Diplomats and politicians should continue striving for a political solution to this longstanding conflict. As part of civil society, we must also advocate within our nations to not only promote peace but also to prioritise the justice agenda, as both are crucial for lasting resolution.

 

CJLPA: Thank you, Mr Johann Soufi, for your insightful and fascinating discussion addressing different significant issues related to international criminal law and human rights law. Your elucidation not only highlights existing challenges but also sheds light on alternative perspectives for legal professionals, states, persons, and everyday people in civil societies to navigate barriers. This is crucial in reinforcing our commitment to justice in the international arena.

 

JS: Thank you so much for your time and for your invitation.

 

This interview was conducted by Nadia Jahnecke and Nour Kachi. Nadia is Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024. Nour is a Legal Researcher for CJLPA 3. In addition to his role at CJLPA, he is currently working on qualifying as a lawyer in the US and UK.


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