Two weeks ago a new initiative was launched: the Wildlife Justice Commission. It’s a private initiative (with which I mean non-state) that seeks to disrupt criminal networks engaged in wildlife crime. It does so by gathering evidence, having that validated by experts, and bringing the validated evidence to the attention of national law enforcement authorities for action, if need be with a pinch of targeted pressure. In short: it does what looks a lot like law enforcement.
This fits into a wider trend I see: the emergence of citizens’ criminal justice. Let me share a few more examples.
First, two preludes. The first comes from 9/11 and the so-called ‘war on terror’. In June 2006 and 2007, a report was released by Dick Marty, member of the parliamentary assembly of the Council of Europe, in which he showed that there was enough reason to believe that the government of the US and some governments in Europe had been involved in so-called ‘rendition flights’ and maintaining prisons that were off all official radar screens. Things seemed to be happening that run counter to states’ obligations under the Council of Europe human rights regime. The second prelude comes from the world of sports. In 2012, the US Anti-Doping Agency (not a law enforcement body) issued a meticulously researched report on the activities of an international criminal network that was engaging in illegal doping activities, involving the cyclist Lance Armstrong. What did both reports do? They made it impossible for national law enforcement agencies not to take action. They broke a cycle of inaction in the face of highly probable violations of the law.
The war in Syria and inaction by states to do much in the face of serious human rights abuse as this war is being fought, produced two other interesting examples. Firstly, a report issued by a group that involved key prosecutors from the Yugoslav and Sierra Leone tribunals that validated evidence smuggled out of Syria of torture and murder of prisoners by the Syrian government. It concluded that that evidence was credible and should be acted upon. The report received wide media attention. That same war also led to the setting up the Commission for International Justice and Accountability, an innovative and elaborate network of investigators led by a former investigator from the Yugoslav Tribunal who are building what looks to be promising evidence on atrocities crime committed in Syria that can be used in courtrooms, once the time for justice has come.
Justice Rapid Response takes a slightly different approach: it offers well-trained atrocities crime investigators who can be used by governments and international organisations at short notice. The excuse of not having expertise to investigate is becoming more difficult to convincingly use. Recently the International Bar Association took another step: it is directly seeking to empower citizens by launching the eyeWitness to Atrocities App, a tool with which ordinary citizens can gather evidence, which, according to the App’s makers, can be used in court. More apps like that are likely to come.
Except for the Marty reports, all of these initiatives are decidedly non-state. They are not treaty or law based. They are often funded by foundations and not by taxpayers’ money. The people that work for them are not public officials. They have in common that they do not want to replace public law enforcement bodies, but want to kick them into action if that is needed. They don’t create new law but work on the basis that states should implement the laws they enacted and the treaties they signed up to. In many ways, it’s a completely new layer of governance.
The Wildlife Justice Commission has even taken things beyond investigating. It includes in its rules a very explicit validation process at the international level if no action is taken nationally: a public hearing before a panel of independent experts in which the evidence collected by the Commission is validated and provided with recommendations. This validated report with its recommendations is then used to lobby and pressure governments to act.
This trend is, on the whole, good news. It seems to be only just gathering steam. If it continues, States and international organisations will find inaction more difficult in the face of citizens’ increased capacity to investigate in a highly professional manner and to have such evidence convincingly validated. Public opinion can then do the rest.
Sometimes, terrible things can produce useful by-products.
Disclosure: the organisation I lead, HiiL Innovating Justice, was closely involved in developing the Wildlife Justice Commission.
This blog first appeared on slaw.ca, Canada’s online legal magazine.