Northfield Legal Center to Assist War-Crimes Victims

Northfield attorney John Fossum’s interest in international law has taken him around the globe.

He has worked for the U.S. State Department helping Afghan police and judges understand how trials work. He’s taught Moraccoan lawyers how to manage multi-lawyer firms, something that has been allowed in the country only since 2008. His biggest endeavor involves assisting victims of genocide and other international war crimes whose cases are before the International Criminal Court (ICC) at The Hague, Netherlands.

Fossum founded the Reparations Center for Victims of War Crimes in 2010 and currently represents one person seeking recognition as a victim.

“All of the current cases are tied up in the Congo wars,” Fossum said of the court, which is supported by 116 countries, though not the United States. “These are civil wars that have spread out and have been going on for about 20 years.”

The six investigations opened by the court so far involve “charges against humanity,” such as conscripting child soldiers, sex slavery and mass murder. The active cases are against 24 individuals from Darfur, Sudan, the Democratic Republic of Congo, Central African Republic, Uganda and Kenya. Preliminary investigations also are under way in nine additional countries, including Korea, Colombia, Afghanistan and Honduras. The largest case involves more than 1,600 victims, each of whom must be recognized by the court.

“At this point, the reparations center is more of an idea than anything else,” says Fossum. “It’s a way of differentiating that part of what I do from what I do most of the time.”

Barbara Frey, director of the human rights program at the University of Minnesota's College of Liberal Arts and a human rights lawyer for more than 25 years, says Fossum is the only Minnesota lawyer she knows who has been approved to practice before the ICC, which is "a long bureaucratic process."

He has twice taught Minnesota lawyers about the ICC through the Minnesota State Bar Association's Criminal Law Section.

"By going through the process as a lawyer, he is helping to educate attorneys about how this court works in practice, as opposed to in theory, which is how we often teach about it," said Frey, who noted that because the U.S. is not a party to the treaty creating the court there is a "reduced opportunity" for U.S. lawyers to participate.

A different kind of law

Founded in 2002, the ICC is the culmination of an idea that has been around since World War I. It re-emerged after the Nuremburg and Tokyo Tribunals after World War II, and again after special tribunals were needed to address crimes committed in Rwanda and the former Yugoslavia in the 1990s. The United Nations General Assembly created the court, but it operates independently of the U.N.

For an American lawyer, the ICC requires a significant change in perspective and a lot of patience, Fossum said. The court is modeled on the French system, which allows victims to be part of the prosecution of crimes.

“The victims have a limited opportunity to participate,” he said. “The prosecutors prove up the case, but the victims can jump in and say, ‘here’s what you’re missing.’”

For example, in the court’s first case, which is against Thomas Lubanga, who is accused of conscripting children for service in his militia in the Democratic Republic of the Congo, victims objected that the court should have included charges of sex slavery in the indictment against Lubanga. Judges eventually ruled it was too late to include those charges.

“The presence of a third party, like the victims, can slow things down,” Fossum said, “but it increases the thoroughness of the process.”

Unlike American courts, the ICC also does not allow for punitive damages—payments above expenses incurred for financial losses and physical and psychological distress.

“In reality, there is no reparation for what happened to many of these victims, but they get something,” he said.

A world of courts

Legal systems vary widely across the globe, Fossum said. In Morocco, for example, practicing law has been legal only since the 1950s.

When Fossum spent nine months in Afghanistan in 2007 working with the U.S. State Department, translating legal concepts was a struggle. Working from Jalalabad and Kunduz, Fossum found that many judges in Afghanistan have never seen live testimony in their courts. Prosecutors prepare a dossier of charges, present it to the judge, and he then asks a few questions and decides the sentence.

In addition to encouraging the use of Afghanistan’s criminal and civil legal code rather than tribal law, Fossum had to deal with literal translation difficulties.

“The legal code in Afghanistan is like the French legal code as interpreted by Egyptians with elements of Sharia law,” he said. “Often you are dealing with laws that have been translated from French to Arabic to Dari to English—the translation is not always high quality.”

In addition to doing “a little bit of everything” as a lawyer, Fossum has been a public defender and currently is a court-appointed defender in federal criminal cases. He also serves on the Northfield School Board.

What’s ahead

The future of the ICC is “an open question,” Fossum said. The court has been criticized for taking too long and costing too much.

“The court could fail miserably, if government support stops,” Fossum said, “Still it has the possibility of success, if it has been a fair process.

“Part of what the court does is provide a full explanation of what really happened—building a record of what really did happen."