“It’s important that we get back into a position of leadership”. Since 2005, Stephen Rapp has been prosecuting war criminals – first as Chief of Prosecutions for the International Criminal Tribunal for Rwanda, then as Chief Prosecutor for the Special Court for Sierra Leone (SCSL), where he lead the case against former President of Liberia, Charles Taylor.

He’s now back in Washington D.C., as head of the US State Department’s Office for War Crimes Issues.

Mr. Rapp spoke to the IJT’s Hermione Gee on September 7th – his last day as prosecutor for the SCSL.

What was the greatest challenge in making the prosecution case against Taylor?
There is no dispute about the horrendous atrocities committed in Sierra Leone – the amputations, the rape, the sexual slavery, the murders, the use of child soldiers, the ways in which people were enslaved to dig diamonds - but you have to show the responsibility of someone that never set foot in the country.

Here you have to rely upon oral testimony and you also have to rely on individuals who themselves have been involved in some of the atrocities.

And when you have to go beyond Sierra Leone - which is the country in which we have the power to ask for cooperation of the police and other authorities - and go to Liberia where we don’t have that, and find credible witnesses and assure them of protection and bring them to the Hague and present their testimony…That is an enormous challenge.

As a model of a hybrid court, do you think the SCSL was successful?

I think so.

[D]oing it the way we did it, which was to build it as a partnership between the country and the international community, I think it’s been justice that’s been a whole lot closer to the people and a whole lot more meaningful.

Was it a blow to US policy of “renationalising” international justice that the Taylor case couldn’t be tried in Sierra Leone but had to be brought to The Hague?

Obviously, moving it here, symbolically, was not useful.

It was possible then for some to say it was a case of Europe judging Africa and we have to say, wait just a second here, this is the Special Court for Sierra Leone, 60 per cent of its people are Sierra Leonean, and a substantial number of its judges, etc, in a court with a statute that was built on agreement with the country.

It’s not a bunch of strangers and it’s the internationals working in collaboration with them.

But is the hybrid model still central to US policy?
Very much so. Keep in mind that the US is prepared to engage with the ICC when the ICC has jurisdiction over cases and when there really isn’t a national option available because there’s no ability or willingness to investigate or prosecute.

But as a general rule, it makes so much more sense to do it where the crime has occurred, and the process helps build the justice system so that it’s able to deal with other challenges in the future, so it’s able to deal with the mid-level or lower level offenders that an international institution can’t deal with.

And then to the extent you have the problems that lead to internationalisation, that you’ve got perhaps the perception of victor’s justice, that the national system isn’t sufficiently independent, that it doesn’t have the capacity to do sophisticated investigations with forensic science and all of that, then you can inject into that process international participation to improve it and to increase the independence of it.

How do you understand the new US administration’s policy towards the ICC?
It’s already to some extent an American policy to engage with the ICC, to work with the ICC, and I think we can very much look forward to that continuing and being strengthened.

At the same time, if you look at quotations from President Obama and Secretary Clinton, they both have indicated that it’s premature for the US to join the ICC, that there are still issues about the fact that the United States is involved in worldwide security and humanitarian assistance and efforts against terrorism, and it could find its forces subject to politicised prosecutions.

The position that I’ve said that the US should take, at least before stepping forward to deal with whether we ratify the ICC, is to basically take a firm position that if we have any of these crimes committed by Americans, we’ve got tough laws on genocide and war crimes, etc, that we will investigate and prosecute our own. Because the ICC basically says it’s up to the country to do it themselves and it’s only when it can’t or won’t that the ICC steps in. And our position should be that we’ll never give cause for any legitimately motivated prosecutor to take a case against an American.

Two major issues that President Obama has had to tackle since taking office are the status of the US military prison at Guantanamo Bay, and ongoing revelations about the CIA torturing terrorism suspects. What sort of judicial solution would you propose to these very political cases?
First of all, I want to note that as Ambassador for War Crimes, I’m not a prosecutor. I’ll [be dealing] with the diplomacy of encouraging appropriate methods – including prosecution – to bringing accountability to situations of mass atrocities.

My office doesn’t have any direct role on the Guantanamo situation. Obviously the President has spoken on that, we’ll be closing Guantanamo within a year, that there’s a review process going on in terms of the individuals who remain there in terms of where they can be tried.

And certainly to the extent I’m involved in policy, I’ll be urging that we adhere to our international obligations. We’ll never again take the position that Geneva doesn’t apply to the United States, a sad position taken not that long ago by the previous administration.

And in regard to the torture allegations, I think what’s happening there is entirely appropriate and consistent with any country, even if they were in the ICC, which is that you deal with that yourself.

Just because there are allegations doesn’t mean necessarily that these are cases that can be prosecuted. So we can’t say for sure that there will be prosecutions but what we can say is there’s a good faith investigation on going and if there are sustainable cases, they’ll be brought.

As you say, your role is now diplomatic. Is that a challenging position to take on at the moment given the many current allegations of US complicity in torture and prisoner abuse?
Exactly. We’ve had the difficult perception created that America is opposed to the enforcement of international humanitarian law. It’s important that we get back into a position of leadership and that we are consistent in thought, word and deed.

And given what President Obama said in terms of our values and what we believe in as a country and the reason people have traditionally admired the United States, because of its adherence to democratic values and human rights, that will be clear again, and we’ll have to deal with those situations that occurred when we weren’t so observant to those values….

But whatever might have happened last year, two years ago, ten years ago, fifty years ago, shouldn’t prevent us from exercising leadership now.

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