It’s an aspirational but daunting question: can the world develop a reliable system for international criminal justice—especially when those accused of the worst atrocities may be armed leaders and even heads of state?
For Bolanle Olupona, JD ’09, the question is not abstract. Since 2014, Olupona has worked as an associate legal officer in the Trial Chamber at the International Criminal Court. The ICC, based in The Hague, began operating in 2002 and has tried roughly a dozen warlords and politicians accused of horrific crimes. It’s no secret the ICC’s pace has been glacial, and its profile has been controversial. Yet Olupona says its existence remains a source of hope.
“It’s actually a very young court and it’s imperfect, but it’s exciting that a large number of the world’s nations got together to say, ‘We have decided that the powerful won’t have impunity.’ Now it’s our work to try to make that intention a reality,” she says.
The ICC manifests an ideal at least two centuries old—a supranational body to adjudicate fundamental human rights crimes. The 1998 “Rome Statute” treaty adopted by 120 countries established the court and gave it the authority to charge and prosecute four categories of crime—genocide, crimes against humanity, war crimes, and crimes of aggression—when a state party to the treaty is unwilling or unable.
States that have ratified the Rome Statute (the U.S. has not) can refer a case to the court, as can the U.N. Security Council. Among the highest-ranking defendants tried to date is Laurent Gbagbo, the former president of Ivory Coast, who was accused of extreme violence after he lost a 2010 election. After a three-year trial, he was acquitted of charges in early 2019, although prosecutors are appealing.
“You’re trying to change centuries, even millennia, of behavior and eruptions of extreme violence. We’re seeing the maturation of a body of law.”
– Jenny S. Martinez
Richard E. Lang Professor of Law and Dean of Stanford Law School
Olupona currently works in the ICC’s Trial Chamber IX for a three-judge panel that includes judges from Germany, the Philippines, and Hungary. For more than two years, Trial Chamber IX has heard the complex prosecution of Ugandan Dominic Ongwen, a former commander in Joseph Kony’s Lord’s Resistance Army. Ongwen is charged with 70 crimes involving crimes against humanity and war crimes for which in excess of 4,000 victims have been certified to be included in the proceedings. The crimes include murder, rape, sexual slavery, forced marriage, and the recruiting and use of child soldiers. Ongwen himself was kidnapped as a child by the LRA and trained as a violent combatant. His attorneys have suggested he is a victim as well.
Olupona cannot speak to the details of her trial and her comments do not reflect the court’s official positions, but her work involves legal research and analysis, advising the chamber’s judges, and the drafting of rulings—made all the more complex by evidence rules and other procedures the Rome Statute did not specify and that can vary depending on the systems from which the judges hail. Therefore, “Chambers decide for themselves and different chambers do different things. And it can be particularly interesting if the three judges within the same chamber can’t agree on what system should be used and the majority gets to decide,” she says.
Olupona, “Bola” to friends, was born in Boston to Nigerian parents who were graduate students at the time. The family moved back to Nigeria when she was one, but the Nigerian political climate was chaotic. After several years Olupona’s father took a faculty position at the University of California, Davis. The move back involved some culture shock, she recalls. “At first I was miserable. The kids would ask me questions like ‘what was it like when you came here from Africa and started wearing clothes.’ ” But Olupona thrived in the Davis public school system. At Yale, she double-majored in political science and international studies. At Stanford Law, she was most interested in corporate law, but participated in an international human rights course taught by then Warren Christopher Professor in the Practice of International Law and Diplomacy Jenny S. Martinez, now the Richard E. Lang Professor of Law and Dean of Stanford Law School.
After SLS, Olupona joined WilmerHale in Washington, D.C., where she focused on civil and criminal investigations related to the Foreign Corrupt Practices Act and False Claims Act. While at the firm, she also had an active pro bono practice and represented a tribe in Uganda in a petition against the government for forced eviction from ancestral lands. Olupona says she enjoyed the intensity of corporate law: “It helps in terms of organizing your thoughts, the way you write, moving and acting quickly, and seeing holes in your logic or other people’s logic.” After three years, she realized she was drawn to international law and human rights.
Olupona’s friend and fellow SLS alumnus Kate Finley, JD ‘09, who will soon be joining the clinical faculty at the University of Wisconsin Law School, also worked as a legal officer at the ICC. She inspired Olupona to visit and learn about the ICC, after which Olupona applied for a position and joined its legal staff. Finley says, “Not only is Bola legally brilliant and extremely careful, which is essential in chambers, but she is extremely skilled at working with a whole range of personalities.”
Olupona first was assigned to Trial Chamber III and The Prosecutor v. Jean-Pierre Bemba Gombo case. Former vice president of the Democratic Republic of Congo, he was accused of having command responsibility for acts of murder, rape, and pillaging in the Central African Republic. The five-and-a-half-year trial ended with a 2016 conviction and the ICC’s longest sentence to date, 18 years. Olupona then transferred to Trial Chamber IX, where the Ongwen trial is ongoing. (Bemba’s conviction was later overturned on appeal.)
For most of the 20th century, the United States was a vigorous proponent of international justice at the Nuremberg and Tokyo trials and also the tribunals the U.N. set up to consider war crimes in the former Yugoslavia and Rwanda. Under President Bill Clinton, the U.S. was supportive of setting up the ICC. But an issue that has always kept the U.S. from ratifying the Rome Statute is concern about ceding sovereignty over American citizens. Subsequent administrations have had up-and-down relationships with the ICC. The Trump administration has attacked the court for saying it would investigate U.S. military members for activities that occurred in Afghanistan. In March 2019, Secretary of State Mike Pompeo said the U.S. would revoke the visas of any ICC staff attempting to travel to the U.S. to investigate the alleged war crimes.
The ICC’s sentences have raised questions as well. Long trials with relatively light sentences or acquittals have created considerable frustration for human rights advocates, hoping for justice. Elizabeth Pederson, JD ‘07, is general counsel and director of operations with a Netherlands-based social impact fund called Aqua-Spark, and she has worked as a trial lawyer at the ICC and as a U.S. prosecutor. As many have noted, she says sentences for perpetrators of mass atrocities so far have been “surprisingly low.”
“You have drug offenders in the U.S. getting more [prison time] than someone convicted of mass murder,” says Pederson. However, she praises the ICC’s goals and admires Olupona as a “deep thinker with a strong sense of justice. I think she’s an idealist at heart. The people working at the court are there because they believe in its mission—to create a system of justice and accountability that could ultimately discourage horrible crimes against civilians—like genocide, and rape as a war crime, or the use of child soldiers—from happening in the first place.”
Another issue that dogs the court is that parties to the Rome Statute have in some cases been unwilling to arrest indicted perpetrators, such as Omar Al-Bashir, the former president of Sudan, who traveled widely despite a 2009 ICC warrant for his arrest that is still in effect. Bashir was overthrown in April but it’s unclear whether he will be held accountable for atrocities he allegedly directed in Darfur, among other crimes. Olupona believes “one of the largest challenges for the court is that it has no police force.” That means no arresting power; what’s more, she says, “ICC investigators must go to the country and interview witnesses and gather evidence. They must do it with the permission of states where crises arise. This complicates efforts to gather the evidence needed to build a credible case.”
Dean Martinez’s research focuses on tracing the foundations of international justice in tribunals that were established in the 19th century to enforce treaties prohibiting the slave trade. Martinez notes that those efforts also were criticized for decades, yet they resulted in 600 cases that freed 80,000 slaves. Pursuing international justice means adopting “a long time horizon,” she says.
“Bola was a terrific student,” says Martinez. “She has that special combination of a willingness to grapple with complexity and optimism.”
Martinez, who has taken SLS students to The Hague to see the ICC in action, says the experience can be sobering. Among Ongwen’s charges, for example, are rape and sexual slavery. Olupona admits, “You have to develop a bit of distance to it.” The same sentiment may apply to the progress of the ICC, says Martinez. “You’re trying to change centuries, even millennia, of behavior and eruptions of extreme violence. We’re seeing the maturation of a body of law.”
Joan O’C. Hamilton, a California journalist, collaborated with Kamala Harris on Smart on Crime and Meg Whitman on The Power of Many.