Rule of Law and Accountability

Prosecutor Norman Farrell Delivers Center’s Annual Lecture on International Justice

Norman Farrell and David Cohen seated in a decorative lecture hall

Norman Farrell, current Prosecutor of the Special Tribunal for Lebanon, recently gave the Center’s Annual Lecture on International Justice, titled “International Criminal Law, its Legal Framework and its Application in Ukraine." Mr. Farrell (L in photo) has decades of experience leading large-scale criminal investigations and prosecutions of war crimes, crimes against humanity, genocide, and terrorist acts. In addition to his work with the Special Tribunal for Lebanon, Mr. Farrell formerly served as Deputy Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), as Prosecution Appeals Counsel for the International Criminal Tribunal for Rwanda (ICTR), and as a delegate for the International Committee of the Red Cross. Addressing the Center and event co-sponsors the Center on Democracy, Development and the Rule of Law, and the Center for Russian, East European, and Eurasian Studies, Mr. Farrell spoke about calls for accountability and the role of the international legal system in the wake of attacks in Ukraine.

After an introduction by Center Faculty Director David Cohen (R in photo), Mr. Farrell opened his talk by offering context about the state of developments in Ukraine, the various responses from both individual nations and the international community, and the recent state of international justice across the world. In response to the ongoing warfare in Ukraine, nations have imposed sanctions, created oil embargos, called for a ceasefire from the United Nations, and have used language describing the conflict in Ukraine as ridden with human rights abuses, with some going so far to call it a genocide. The United Nations General Assembly has removed Russia from the Human Rights Council, with speakers calling for those responsible for atrocities to be brought to justice. As Mr. Farrell remarked, “The calls for accountability have been loud and constant.” This is in stark contrast with recent patterns among international justice mechanisms: “There have been signs of reduced support for international justice,” Mr. Farrell stated. The funding for investigations of the Special Tribunal for Lebanon has been halted, the impact of the International Criminal Court’s rulings has been questioned, and nations like the United States have outwardly opposed the work of the ICC in recent years. Yet, the Ukraine conflict has spurred an increase in pro-international justice rhetoric, with UN General Assembly meetings and national press conferences echoing with calls for the international system to take action. Mr. Farrell posited, “The calls for accountability in Ukraine are certainly welcome. Maybe international criminal law is once again playing an important role in international relations.”

His lecture next discussed four options for prosecution in Ukraine: forming an international criminal court via the UN Security Council (UNSC), creating an adjudicating body through the UN General Assembly (UNGA), establishing a hybrid court operating under Ukrainian law with the support of the UN, and prosecution within the International Criminal Court (ICC). The first option, operating through the UNSC, is the standard for international criminal courts such as the tribunals in Rwanda, Yugoslavia, and Lebanon that Mr. Farrell has prosecuted. However, this option remains unfeasible due to Russia’s veto power as a permanent member of the UNSC. The second option, working with the UNGA, seems to lack the power needed to establish an effective legal body that will do more than condemn violations of international human rights law or collect violations. The third option, utilizing a hybrid court model, provides two interesting possibilities of litigating under Ukrainian law. The first is that Ukrainian law includes crimes of aggression in its criminal code, prohibiting the attack of one country on another sovereign nation. Secondly, Ukraine allows trials in absentia, so individuals can still be prosecuted if not present in court. This is particularly applicable to instances involving members of a foreign regime who will not succumb to the prosecuting jurisdiction. Yet, despite its possibilities, this option is still unlikely to advance due to the standard of hybrid courts being set up via UNSC resolutions with the Secretary General, which are similarly limited in their feasibility by Russia’s power within the UN. The final option, litigating in the ICC, is interesting within the context of the two nations at hand because the ICC does not currently include either Russia or Ukraine. However, in 2014 Ukraine accepted ICC jurisdiction for any crimes committed on its territory, which continues to remain in effect. On March 1, 2022, the Ukraine situation was referred to an ICC prosecutor by a group of 41 ICC member states, which Mr. Farrell called an “incredible step” towards accountability being realized. This many states coming forward together is unprecedented, as only once before has a state of the ICC been referred to the prosecutor by another state.

The increase in calls for accountability and the utilization of human rights-based language has re-centered global focus on international justice. But what are the consequences of this shift? Most notably, what are the implications of the accelerated use of the term “genocide” in describing events transpiring in Ukraine? Mr. Farrell offered an in-depth analysis of the legal distinctions between the terms “war crimes,” “crimes against humanity,” and “genocide,” suggesting that we question the impacts of prolificially characterizing tragic events as “genocide.” Mr. Farrell insisted, “We must view claims that genocide has been committed from a standpoint that is legal, not political.” He suggested that we acknowledge that the constant reiteration that this crime has been committed can be somewhat problematic—it creates expectations and a subsequent pressure that someone will be prosecuted for their crimes. This contributes to a perception that if genocide is not charged successfully, then prosecutions have not been a success, challenging the scope of the international criminal justice system. It also complicates the valuation of victimization, establishing a concerning standard that if genocide is not charged, victim suffering is not valued. It is necessary here to understand the meticulously outlined legal distinctions defining genocide, which includes destructive intent to lead to a targeted population’s demise, a crime of the highest abuse that exists at that level to ensure proportional responses to its perpetration.

Mr. Farrell also suggests that we remain cognizant of what could possibly occur following calls for accountability. We must understand that full-scale investigation and prosecution takes years and that evidence-gathering processes must be standardized within the law of the ICC or Ukrainian law. This is complicated by the lack of coordination in on-the-ground victim interview efforts from various NGOs, media sources, and bystanders. There is also concern over gathering witnesses to testify about ongoing events. Comparing the possibility of prosecution in Ukraine to the Special Tribunal for Lebanon, Mr. Farrell detailed the extensive investigatory processes used to gather information for court use, which involved sustained algorithmic analysis through hexadecimal coding. Evidence-gathering processes must align with the laws of war, which includes thorough investigation into actions taken in retaliation, as well as defense, which is challenging during ongoing attacks on both sides. These considerations must be taken into account when designing effective plans for accountability.

Acknowledging the ambiguities, complexities, and evolving facets of international criminal proceedings, Mr. Farrell concluded optimistically, citing the promising actions taken by nations worldwide that strengthen support for international justice. Accountability has risen to the top of the agenda in many nations, with some nations, such as Germany, claiming universal jurisdiction over investigations into crimes committed by Russia. The softening position of the United States on the ICC and the actions of 41 states referring Russia to the ICC for its violations of international human rights law signal that there is growing belief that international justice mechanisms will work as they intend. Farrell remains hopeful that “prosecutions will spill over to accountability in other places” and “international justice will succeed in Ukraine and beyond.”