By David Michael Newstead.
David Crane is a law professor at Syracuse University and the former Chief Prosecutor of the Special Court for Sierra Leone. As Chief Prosecutor, he indicted then Liberian President Charles Taylor, leading to Taylor’s conviction for war crimes and crimes against humanity. Today, David Crane joins me to discuss impunity in Africa, his investigation into Syrian war crimes, and the need for expanded human rights laws in the United States.
David Newstead: Considering that you helped to prosecute Liberian President Charles Taylor and that Chad’s former dictator Hissène Habré was recently convicted for human rights abuses, do you feel like particularly in Africa’s case that impunity has ended for heads of state and elected officials?
David Crane: Oh, not at all. Unfortunately, impunity has raised its head in a very negative way. When we indicted Charles Taylor back in June of 2003, it was a beginning. I thought a very hopeful beginning against the good old boys club of Africa. We had broken down that barrier and heads of state in Africa would be held accountable.
But because of some missteps by the International Criminal Court (ICC) and the withdrawal of the African Union as a participant largely in the ICC for a lot of reasons. And the recent declaration a year ago by African heads of state saying they will not be held accountable for whatever they do in office, I thought we took about a thirty year step backwards.
The Habré investigation and trial were on-going. So even though it appears that we have some positive steps, in reality I just have to tell you I’m not confident where this is going. And I’m a little bit disappointed in the attitudes politically of African leaders related to dealing with their own people. It’s not a good step forward frankly. Even though the Habré conviction is important, there are other political leaders in Africa that need to be held accountable. And I fear that they will not, particularly with the political climate against international justice at this point.
David Newstead: You’ve also been working on possible war crimes prosecutions related to the Syrian conflict, is that correct?
David Crane: Yes. I’ve been working on this from the very beginning since March 2011. Over five years.
David Newstead: Would that mainly focus on prosecuting Syrian President Bashar al-Assad? Or other actors in the conflict as well?
David Crane: The Syrian Accountability Project, which we put together to deal with this back in March of 2011, is looking at all parties neutrally. So, we’re looking at all sides, all players. Which has gone from just the Free Syrian Army versus Assad to about eleven significant players who are just chewing the people of Syria apart. So, we want to make sure this is considered and known as a neutral effort to seek justice for the people of Syria. It’s not about going after just Assad, but everyone. Because everyone is going after the people of Syria.
David Newstead: So, not only Assad, but also ISIS and Al-Nusra Front and other factions?
David Crane: Oh yeah. All of the factions. To include the Free Syrian Army. Everybody.
David Newstead: In 2014, you were involved in the release of some 55,000 photographs of human rights abuses in Syria.
David Crane: Yes, I was the co-author of the Caesar Report detailing those abuses.
David Newstead: Can you say more about the evidence that your group has been collecting since then and what that consists of?
David Crane: That’s a good question. A fair question. Again based on my long term experience in this business particularly taking down one of the few heads of state in history, I’ve basically built a practical legal way of doing that. Using the same techniques that we used in West Africa, we’re doing the same thing in Syria and in the Levant region. And that is developing a conflict map, a crime-based matrix, and associated documents, which we can then build into indictments.
We’re very careful in the data that we use in our crime-based matrix, which shows chronologically time, location, unit involved, and then the alleged crime itself. And then also what we do is we list the violation of the Rome Statute, the violation of international humanitarian law as well as the violation of the Syrian criminal code. So, this could be used by either a local prosecutor, a regional prosecutor, or an international prosecutor, referring to this package that we’ve been putting together over the past five and a half years. So, they could use this to start building their own case against those who they feel have committed either Syrian crimes or international crimes.
The data is carefully vetted. We have contacts throughout the world (to include the Middle East, to include in Syria) providing us real-time, real-world criminal information that we then take and verify. Our rule is that it has to be verified as has happened. We have a rumor of an incident and then we have to verify it by two other sources before we put it on the crime-based matrix. But the fascinating thing is that crime-based matrix is now over 7,000 pages. And it’s on an Excel spreadsheet.
David Newstead: You have a 7,000 page Excel spreadsheet?!
David Crane: Yeah, 25 incidents per page. Now again, this is just verifiable incidents of possible international crimes. You have to understand that when I was doing this just twelve years ago, we had to create our case the old-fashion way. You know, getting out there and finding the evidence. Now, it’s completely reversed. All of the data that’s coming out of Syria and it’s in terabytes almost daily, it’s a tsunami of information. And what ends up happening is that you’re looking for that needle in the haystack as opposed to no haystacks.
And I think this is important for you and your readers to understand that 99.99% of the information coming out of Syria in whatever capacity it is – through social media, internet, direct testimony, whatever – is not useful in court. We can’t turn it into evidence, because of the authenticity of it, the chain of custody, and all of that. So, we have a great database for the history of the events and that’s important. The data can be used for other things.
But as a former international chief prosecutor, I’ve got to prove a case beyond a reasonable doubt using rules of evidence before a court. And that data creates leads. But at the end of the day, if they called me right now and said “You’re now the Chief Prosecutor for Syria!” all of this would be useful to me. We’ve converted that into useful information. That’s how the Syrian Accountability Project takes it one step further. We’ve converted this information into criminal information, which then can be converted into evidence by a future prosecutor. So, we’ve kind of strained it a bit if you get my drift. You know, we’re moving it to where a future prosecutor be they local, regional, or international can go into court and prove the case beyond a reasonable doubt. So, that’s the data issue.
David Newstead: That sounds like a very important, but involved effort of trying to put all those pieces together.
David Crane: It’s a very considerate process by which we then put that on a database. But it is amazing, isn’t it? You multiply 7,000 or now it’s almost 7,500 pages times 25 incidents, you get a sense of what is happening over there.
David Newstead: And that the conflict has dragged on for so long.
David Crane: Now again, it’s important to note that the Caesar Report I mentioned earlier is direct evidence and it is credible evidence and can be used in a court of law. After we finished our report, it was importantly treated by the press and really put a heavy burden on Assad. The sad thing about this is, this is only coming from 3 detention facilities. And yet, we can probably verify that between 10,000 and 12,000 human beings were destroyed in just 3 detention facilities. We estimate that there are over 52 detention facilities. So, the Caesar Report may have just been the tip of the iceberg.
In this business, it’s very unusual to have direct evidence of atrocity in the sense of one you can take into court. The smoking gun, so to speak. We had it in Nuremberg, because the Nazis wrote everything down. We have found that the Assad regime, very much like the Nazis in Germany, writes these things down. And we were able to get a look in the window of some of this through the Caesar Report.
So after the Caesar Report, what I did was to have a neutral country meet with the people who had the original thumb drives. And we were able to negotiate an agreement between the organization that Caesar was a part of and this country to have their chief prosecutor and evidence custodian take the originals and put them in an evidence bag and to start a chain of custody and then put those thumb drives in the country’s evidence locker. So some day when a prosecutor asks for that, there’s a chain of custody. There’s an authenticity. It can be signed over to them and put into their evidence room. So when they bring these documents and these photographs into evidence, they can authenticate it. Because the issue is with all these videos and all these pictures we’re seeing is – What’s the authenticity? Who took that? Why? Is that a real photo? Is that a real video? Who took the video? Where is it? You see where this gets very complicated very quickly.
But the Caesar Report and the evidence that we were able to seize and put in an evidence locker, that’ll convict Assad in and of itself of war crimes and crimes against humanity.
David Newstead: Shifting gears some, I wanted to ask about the Magnitsky Act, which currently bans Russian human rights abusers from using the U.S. banking system or vacationing in the United States. We’re in an election year, but there is a proposal in Congress to expand that law to place similar restrictions on human rights abusers from all over the world. Do you feel it’s necessary to expand the Magnitsky Act? And if so why?
David Crane: Well again, this is a beginning of a beginning to be honest with you. I think the Magnitsky Act is a signal of U.S. commitments to addressing these types of acts such as what happened with Sergei Magnitsky and other human rights abuses by countries around the world.
Of course, it’s really kind of tongue in cheek. After the first ten years of the 21st century, we did not cover ourselves in glory for obvious reasons. So, it’s very difficult. It’s going to take a while for the U.S. to regain the credibility that it built up since the My Lai massacre of being a country that did take care of these things.
The Magnitsky Act is a beginning of a new beginning where we’re trying to turn the ship around. We’re showing the world that those who commit crimes such as these will be held accountable and will be held accountable at a larger level than just domestically – that there’s an international price to pay dealing with embargos and seizures of assets and those kind of things. So, I think it’s a very positive step.
But I think you’re very correct. It’s an election season. So, two things can happen. If we have a Republican administration, then I’m not sure where this is going to go. It certainly could die a sad death. In a Democratic administration, I think there’s more hope for it to move forward. It just depends on the balance of power in the House of Representatives and the Senate. I think we’re going to be in a hiatus for right now. As we get closer to the election, you know everybody is running campaigns right now.
David Newstead: So to clarify, you don’t think the Magnitsky Act would be prioritized under a possible Trump administration?
David Crane: I don’t know. I mean, your guess would be as good as mine. There’s been no discussion at all in the campaign about human rights in any way, shape, or form that I’ve noticed. I’ve just not noted any of that. And it’s not inconsistent with the way the U.S. is from a political point of view domestically. You know, human rights does not get you votes. I mean at the end of the day, that’s just a fact. It’s not that Americans don’t care, but that’s just not going to cause people to vote for you. So what you’re going to see, the human rights issue writ large is just going to be set aside. I don’t see anything getting done in the next year frankly, regardless of who is in the administration. Because it takes a new administration a year or six month just to figure out where they’re going. And that’s another hiatus as well. So, you’ve got the political buildup to the election and then you’ve got the new administration trying to establish itself. And so, these kind of things tend to get put aside or dumped depending on the political perspective.
David Newstead: Are there any specific examples of human rights abusers that you feel epitomize why we need an expanded version of the Magnitsky Act?
David Crane: Oh sure. I mean, we can go around the world. I can spend the rest of the afternoon talking to you about that. A good example is Robert Mugabe, the President of Zimbabwe. He would be directly affected by a more globalized Magnitsky Act. Africa would be very much affected by a lot of this.
David Newstead: In terms of leaders’ banking and their ability to go on vacation and so forth?
David Crane: Of course. Absolutely. You know even if the International Criminal Court can’t do anything or if the world has just decided not to do anything about a crime… At the end of the day, international criminal law is driven by politics. The bright red thread of all this is politics. It’s always a political decisions to hand over a head of state to somebody as opposed to a legal reason. That’ll always be a political decision. But it’s important for the U.S. have this ability. Because really at the end of the day, if you’re going to get a thug or a dictator or a tyrant’s attention just grab him by the money. That and his ability to move around the world, that definitely gets their attention.
I think the beauty of the Magnitsky Act concept is that it hits them where it hurts. These are basically mafia characters. I mean, it’s all about money and power and greed with them. And if you limit them or cause them to reconsider travelling or doing something like that, I think that’s a real benefit. So, I very much support this kind of initiative that was started with the Magnitsky Act and now is going to be expanded in a broader sense.
David Newstead: I remember several years ago Assad’s wife was banned from going shopping in Europe. And prior to that, she was known for taking these very expensive shopping trips to Paris and places like that. And I assume other dictator’s wives and family members are the same?
David Crane: Sure. And you know with the Magnitsky Act, something like that could cause detention. That could cause seizure of assets. That could cause extradition. Yeah, exactly. And she goes back to her husband saying “I can’t go to Paris anymore!” She’s not going to be happy about that. And from just a domestic point of view, it can be really problematic for these guys. And it’s all guys. It’s not women. So yeah, their wives and families are potentially giving them hell, because they can’t go to the places they’re used to. Because they’re not going to go shopping in downtown Damascus. That’s a good example though of how that can hurt.
Question from a Reader: Given your experience in West Africa and your current project related to Syria, I’m curious what motivates you to do this work?
David Crane: Well, let me just give you a simple example of that. One day I was at one of our outreach programs where I walked the countryside of Sierra Leone, listening to my clients talk to me about what happened. I was at school in McKinney that used to be the headquarters of the Revolutionary United Front (RUF), the ones that used to cut people’s hands and arms and noses and ears and buttocks off just because they liked doing it. And I was in the audience just standing among them talking and a young man stood up. He was about twelve years old. He looked at me with tears in his eyes and he said “I killed people. I’m sorry. I didn’t mean it.” And he fell into my arms, crying. And of course, I had tears in my eyes. And as I looked up, there was a young woman who stood up and half her face was missing. I was told later her face had been put in a pot of boiling water by the RUF. She was holding a young child and she just looked at me from her one good eye and said “Seek justice for us.”
So, it’s for the little guy. We tend to talk to about 50,000 here or 100,000 there. But it’s one person at a time. So, that’s what motivates me. It’s a righteous fury. You know, I had the honor and privilege of doing something about that when Kofi Annan appointed me to go to Sierra Leone and do that. But that’s what keeps me going, because I always remember those individuals who the world just steps over and moves on. Whereas, I don’t. I remember them and this is for them. And so, there are very much the same kind of people in Syria and around the world. So, I do this for them.