A Former Bush Official’s Breathtakingly Absurd ICC Proposal

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker's proposal (Photo: Kevin Mazur via Getty Images)

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker’s proposal (Photo: Kevin Mazur via Getty Images)

Most followers of the International Criminal Court (ICC) likely thought that the days of absurd proposals from US officials to undermine the ICC were at thing of the past. Surely no one would ever propose to do something as politically bizarre as, say, ‘unsigning’ the Rome Statute of the ICC or as futile as investing huge amounts of time and energy into deploying coercive diplomacy to pressure dozens of states into promising that no American citizen would end up be prosecuted in The Hague. No, those days were over. Heck, former Secretary of State Condoleezza Rice went so far as to say that her administration’s anti-ICC policies were like “shooting ourselves in the foot.” Fast-forward to today, the Obama administration speaks highly of its “positive engagement” and supports (at least some) of its interventions. Indeed, the biggest controversy in the US-ICC relationship is whether the ‘one-foot-in, one-foot-out‘ approach employed by Washington is actually hampering international justice and making global accountability more, rather than less, selective.

Then along came Stephen Rademaker, a former senior official in the George W. Bush administration who helped establish the Department of Homeland Security and acted as the assistant secretary of state responsible for arms control and nonproliferation between 2002 and 2006. In one fell swoop, Rademaker harked back to the foolish, counterproductive, and cavalier days of American anti-ICC hostility. In an article published today in Foreign Policy, Rademaker has proposed to make it a federal crime in the United States to prosecute American citizens at the ICC:

Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.

Call it a “crime against sovereignty.” Any person indicted for such a crime would become a fugitive from U.S. justice, subject to international arrest warrants and liable to prosecution if brought into U.S. custody. They would, in other words, find themselves in precisely the same predicament as the American they sought to turn into an international fugitive through their official acts.

This isn’t the first time Rademaker has taken on the ICC. In advance of the Kampala Review Conference, where diplomats deliberated the potential for the Court to prosecute the crime of aggression, Rademaker exclaimed that the Court “is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression.” More recently, Rademaker blamed the ICC’s creators for wanting “an independent prosecutor who would be relentless in the pursuit of international justice, insulated to the maximum degree possible from all other considerations.” He also chimed in on the relationship between Washington and the ICC, stating that “[t]he Court cannot expect—and does not deserve—enhanced U.S. support unless it is fundamentally reformed in ways that transform it into a useful institution.” You can see the trend here. But his latest diatribe truly takes the cake.

Incredulously, and apparently without any sense of irony, Rademaker insists his proposal actually represents an improvement on ICC-US relations. Referring to the 2002 American Servicemembers Protection Act (also known as the “The Hague Invasion Act”), which grants the US President the authority to use “all necessary measures” to repatriate any American citizen prosecuted at the ICC, Rademaker argues that

threatening criminal prosecution in such cases would be a more modest and more credible response than threatening military action, which was the remedy Congress came up with the last time it considered the problem.

A more accurate perpetrator of a "crime against sovereignty"? (Photo: Larry Downing/Reuters)

A more accurate perpetrator of a “crime against sovereignty”? (Photo: Larry Downing/Reuters)

Seething with exceptionalism, the barrage of misguided arguments hits a crescendo as Rademaker implies that any actions taken by US officials or military personnel that are sanctioned by the government should be excluded from international prosecution:

The prospect of U.S. prosecutions of ICC and foreign law enforcement officials admittedly is an unsavory one. But it is no more unsavory than ongoing threats to prosecute Americans for actions undertaken by them pursuant to the constitution and laws of the United States to defend the nation.

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Posted in International Criminal Court (ICC), United States | Tagged , | 2 Comments

Yes, the ICC is in Crisis. It Always Has Been.

The ICC. (Photo: ANP/AFP/File Robin Utrecht)

The ICC. (Photo: ANP/AFP/File Robin Utrecht)

It has become increasingly common for scholars and observers of the International Criminal Court (ICC) to state that the ICC is in “crisis”. Conference panels, a host of academic articles, news pieces and op-eds seem drawn towards posing some variation of the questions: “is the ICC… in crisis? …irrelevant? …legitimate?”

There is much merit to the debate. It acts as a useful organizing principle around which to analyze the challenges facing the Court and international criminal justice more generally. Moreover, there is little point in denying the fact that the ICC has experienced a contentious few years and that criticisms of the Court are well-placed.

Just Some of the ICC’s “Crises”

Former Chief Prosecutor Luis Moreno-Ocampo may have put the Court on the map of international politics but he also consistently gave his office the impression of being overtly political and biased. The Court’s first trials were rocky. The trial of Thomas Lubanga was almost dismissed twice on the basis that the prosecution had violated the defendant’s right to a fair trial. In October 2014, the prosecution of  Kenyan President Uhuru Kenyatta collapsed. Many predict a similar fate for Vice President William Ruto. Still others believe that the Court is, in fact, fortunate to not have to prosecute Sudanese President Omar al-Bashir because the Prosecution simply isn’t ready for that kind of a trial.

At the same time, the ICC has been unable or unwilling to open official investigations into states outside of the African continent and doesn’t have access to key situations where, rightly or wrongly, many expect it to intervene – places like Syria, Sri Lanka and North Korea. All the while, the ‘big fish’ indicted by the ICC, such as Joseph Kony of the Lord’s Resistance Army and al-Bashir, roam free. The Court’s arrest warrants against them often appear to be something between a minor nuisance and an opportunity for them to prove their recalcitrance to the international community. To top it off, the Court’s outreach remains weak. Despite two years of apparently ongoing web design, the ICC’s website remains as inexplicably user-unfriendly as ever and the Court’s social media engagements are virtually non-existent.

If we stopped there, it would be impossible not to conclude that yes, the ICC is in crisis. However, that would be unsatisfactory because the debate regarding the ICC being in crisis misses a crucial point: the ICC has always been in crisis and is the kind of institution and project that needs to be in crisis. The question we should be asking is thus: how is the Court managing the diverse array of crises it confronts?

A Court in Perpetual Crisis

Part of the problem of viewing the ICC as being “in crisis” is that it suggests that the Court has “entered” a period of crisis. But the historical record bears out a Court that has existed in a succession of crises since its inception.

When diplomats gathered in 1998 negotiate the Rome Statute, the ICC was already in crisis. Proponents and negotiators were palpably nervous, scrambling to find compromises on crucial issues. Would and could the Court be independent of the Security Council? Would the major powers – the US, China, India, Russia, etc. – kibosh negotiations? Was the world ready for an independent and permanent international criminal court? While compromises were found, even when the Statute was accepted by a vast majority of states in Rome, there was still no clear sense that the Court would ever become a functioning reality. The possibility that it would be nothing more than a paper tiger was all too real.

Indeed, the 60th state ratification of the Rome Statute in 2002, which signaled the Court’s arrival as a functioning entity, came as something of a surprise to ICC supporters. Few, if any, thought the Court would become a reality so quickly. But the Court’s establishment was not only met with pomp and circumstance. There was also a real sense of insecurity in the early days of the institution’s existence. Staff that witnessed the birth of the Court will tell you, there was no guarantee that the ICC would last even a few years.

Omar al-Bashir, indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, seems mostly unconcerned about the Court's arrest warrant against him. (Photo:  Mohamed Nureldin Abdallah / Reuters)

Omar al-Bashir, indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, seems mostly unconcerned about the Court’s arrest warrant against him. (Photo: Mohamed Nureldin Abdallah / Reuters)

Their fears were not unfounded. Under the administration of George W. Bush, Washington notoriously levied a barrage of hostile measures to undermine the Court. Again, the ICC managed to survive this political crisis. For better or worse, in the second half of the 2000s, the relationship between the US and the ICC had thawed. Today the Obama administration speaks highly of its positive engagement with the Court and has voted, from its perch in the UN Security Council, in favour of ICC interventions in Libya and Syria.

As noted above, the ICC also experienced crises in its first trials, especially the Lubanga and Kenyatta trials. Its first interventions at the behest of the UN Security Council were likewise deeply contentious. The Court readily accepted politically tailored referrals from the Security Council, presumably convinced that the cost was worth it if the Council enforced any arrest warrants the ICC subsequently issued. Yet the ICC has ended up with almost nothing to show in both situations referred to it by the Security Council – Darfur (2005) and Libya (2011). In late 2014, ICC Prosecutor Fatou Bensouda went so far as to suspend her office’s investigation of Darfur over the lack of Council interest in supporting the Court’s mandate.

The ICC as a Crisis Manager

ICC advocates often reply that much of the Court’s crises are not of the institution’s own making but rather the result of an international community unwilling to back the still young institution. This is only partly true. While the ICC does not exist outside of international politics and does depend mightily on the support and cooperation of international actors (especially states), it also has institutional agency and thus the ability to choose between a series of options as it manages the crises it faces. So how does the ICC navigate and learn from the crises it faces?

Here, it will come as no surprise that the Court’s record is a mixed bag of successes, failures and open promises. As David Bosco has eloquently described, the Court has demonstrated to the US that it would not step on Washington’s political toes and would avoid intervening in situations where the US had long-standing interests. In response, the US has engaged increasingly (albeit very selectively) with the Court. The ultimate wisdom of this position of “mutual accommodation” remains to be seen, as does how the US-ICC relationship will be affected by the Court’s investigation into Palestine and the use of “enhanced interrogation techniques” by US citizens in Afghanistan.

On its relationship with the UN Security Council, the ICC’s record is also mixed. There is a widespread consensus that both Security Council referrals of situations to the ICC (Darfur in 2005 and Libya in 2011) have done more damage than good to the ICC. Frustratingly, however, the Office of the Prosecutor has not taken the opportunity to take a clear position on the subject or seek clarification for highly politicized referrals by the UN Security Council that exclude citizens of non-member states from ICC investigation and prosecution. The Prosecutor can and should seek the opinion of Judges at the ICC. There is even a precedent for this. When Uganda attempted to refer the Lord’s Resistance Army to the Court, the Office of the Prosecutor requested that ICC Judges interpret the referral as meaning “the situation in northern Uganda”. Continue reading

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Justice and Identity: A Retrospect on the Eichmann Trial in light of Israeli Hostility to the ICC

Barrie Sander joins JiC for this post on the Eichmann Trial and Israel’s recent hostility towards the ICC. Barrie is a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID).

Audience members react to proceedings at the Eichmann Trial.

Audience members react to proceedings at the Eichmann Trial.

In light of the 70th anniversary of the liberation of Auschwitz, last week’s premiere of the BBC’s docudrama, The Eichmann Show, was timely. The film told the story behind the global television screening of the Israeli trial of Adolf Eichmann, a German Nazi who had been tasked with facilitating the logistics of the mass deportation of Jews to ghettos and extermination camps during World War II. In many ways, the Eichmann trial was a groundbreaking event, and despite its much-publicized flaws, managed to encapsulate many of the tensions that continue to grip the field of international criminal justice.

Still, the Eichmann Show was not the only drama to hit our television screens last week, which also witnessed the launch of a blistering campaign by Israeli government officials against the International Criminal Court (ICC). Reacting to the ICC Prosecutor’s decision to open a preliminary examination into alleged crimes on Palestinian territory since 13 June 2014, Israeli President Benjamin Netanyahu denigrated the ICC as an institution that “legitimizes international terror”, while Israeli Intelligence Minister Yuval Steinitz was similarly disparaging, characterizing the ICC as nothing more than “a kangaroo court” targeted against Israel.

In light of these events, it seems an opportune moment to reflect on Israel’s pioneering trial of Adolf Eichmann, a trial that not only had a lasting impact on the future shape of the field of international criminal justice, but also may help contextualize the Israeli government’s current hostility towards the ICC.

Justice as Theatre: Survivor Testimony That Would Reach The Hearts Of Men

More than any trial that preceded it, the Eichmann trial was a global spectacle. As portrayed in The Eichmann Show, the trial was broadcast to individuals around the world, who were able to watch the drama unfold from the comfort of their homes. In her now-infamous account of the trial for The New Yorker, Hannah Arendt compared the trial to a theatrical performance: the opening of each session was announced by the shout of an usher which produced “the effect of the rising curtain”; the judges were seated upon a raised platform, “facing the audience as from the stage in a play”; and the proceedings themselves had an “invisible stage manager” in the form of David Ben-Gurion, then-Prime Minister of Israel, who, though not in attendance, spoke through the voice of Attorney General Gideon Hausner, a prosecutor with a particular “love of showmanship”.

Yet, while the Eichmann trial was a show, it was not a show trial, at least not in the pejorative sense of the term. As international criminal law professor Kai Ambos has remarked, “There is broad consensus in the vast amount of legal literature on the case, and particularly in the English and the German literature, that Eichmann had a fair trial”. The Eichmann trial is better characterized as a show-case trial, what Lawrence Douglas has famously referred to as a drama of “didactic legality”, an orchestration specifically designed to educate the world about the extreme acts of atrocity that had been committed during the Nazi regime.

In line with its pedagogic aims, the Eichmann trial took a completely different orientation to the trial of the leading Nazis that had earlier taken place before the International Military Tribunal (IMT) at Nuremberg. Before the IMT, US Prosecutor Robert Jackson had relied primarily on documentary evidence, fearful that survivor testimony might be subject to charges of embellishment. Moreover, in light of the statutory framework established by the Nuremberg Charter, the Prosecution’s case focused primarily on proving a large-scale conspiracy by the Nazis to commit a war of aggression and tended to downplay the racist and genocidal character of the Nazi regime.

By contrast, the Eichmann trial put survivor witness testimony front and centre in an effort to educate the world about the Holocaust. Holocaust survivor Primo Levi once wrote that SS militiamen would cynically admonish prisoners that even if they were fortunate to survive the death camps, the acts of the Nazis would be dismissed by the public as “too monstrous to be believed”. Ultimately, the Eichmann trial would serve to counter such prophecies of denialism by means of the overwhelming power of survivor testimony. As Israeli Prosecutor Gideon Hausner explained:

In order to secure a conviction, it was obviously enough to let the archives speak […] But I knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster. […] The only way to concretize it was to call surviving witnesses, as many as the framework of the trial would allow, and to ask each of them to tell a tiny fragment of what he had seen and experienced.

For Hausner, only survivor testimony would be able to “reach the hearts of men” and it was therefore imperative to give their voices a prominent place in the trial.

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

The orientation of the Eichmann trial towards the testimony of survivors was to leave a lasting legacy on the field of international criminal justice, marking the beginning of the witness-driven approach to atrocity trials. Indeed, the extent to which survivors should participate in international criminal proceedings has subsequently become one of the defining debates in the field of international criminal justice. While witness-driven trials may provide a more vivid picture of what happened during particular episodes of mass atrocity, they also tend be longer, slower and more vulnerable to undermining the rights of the accused. As such, the Eichmann trial remains a symbol of both the benefits and dangers of defining justice in terms of its therapeutic value for survivors within the courtroom and its educational value for the general public beyond it.

Justice as Culpability: The Man in the Glass Booth

If the centrepiece of the Eichmann trial was the testimony of the survivors, it was arguably Hannah Arendt’s critical report on the trial that would spark most discussion about its depiction of the accused.

According to Arendt, during the course of his trial Eichmann became a scapegoat, “not only for the German Federal Republic, but also for the events as a whole and for what made them possible – that is, for anti-Semitism and totalitarian government as well as for the human race and original sin”. Sitting in the glass booth that had been constructed for him in the courtroom, the full weight of the Holocaust was heaped onto Eichmann’s shoulders as survivor after survivor recounted their traumatic tales of horror.

For Arendt, not only was this implausible, but also by depicting Eichmann as a “perverted sadist” and “abnormal monster”, the Prosecution had failed to understand that Eichmann represented a “new type of criminal”, one who was “terribly and terrifyingly normal”. Arendt’s Eichmann was the “perfect bureaucrat”, a thoughtless conformist whose conscience vanished in circumstances where all around him had held the same blind devotion to the Nazi regime. It is with this vision of Eichmann in mind that Arendt famously spoke of “the banality of evil”.

Arendt’s depiction of Eichmann threatened the basic assumption of criminal law that a guilty mind (mens rea) is necessary for the commission of a crime. If one accepts, as Arendt seems to, Eichmann’s claims to have acted out of thoughtless obedience to authority, it is unclear how it is possible to hold such an individual criminally culpable. According to this perspective, Eichmann was just an ordinary man receiving extraordinary orders in very particular historical circumstances (a view that would also find support in the work of social psychologists, such as Stanley Milgram and Philip Zimbardo, in the years that followed).

In response to Arendt’s thought-provoking account, at least two challenges have emerged in the subsequent literature.

First, it is not clear that Arendt’s evaluation of Eichmann’s character was accurate. Gabriel Bach, one of the three prosecutors at the Eichmann trial, has elaborated various episodes in Eichmann’s life that reveal him to be a ferocious racist who, after initially becoming the head of the relevant Gestapo department on Jewish affairs primarily to advance his career, soon became a fanatical anti-Semite, obsessed with ensuring the destruction of the Jewish people. Specifically, Bach points to an attempt by Eichmann to thwart a decision of Adolf Hitler in order to ensure as many Jews were killed as possible, as well as recounting how Eichmann became preoccupied with the killing of Jewish children so as to maximise the probability of eradicating the Jewish people. With these incidents in mind, Arendt’s understanding of Eichmann’s character appears to be more tailored to fit her own theory of how totalitarianism works than an accurate portrayal of the man Eichmann revealed himself to be. Continue reading

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Big Changes in Sri Lanka, but Little Hope for Justice?

JiC is thrilled to welcome Kate Cronin-Furman for this guest-post on the potential for justice and accountability in the wake of recent – and significant – political changes in Sri Lanka. Kate is a human rights lawyer and Ph.D. candidate in political science at Columbia University. Her research focuses on international justice and accountability for mass atrocities. She is also the co-author of the blog Wronging Rights.

Ousted: Rajapaska (Photo: Reuters)

Ousted: Mahinda Rajapaska (Photo: Reuters)

Sri Lanka’s January 8 presidential election shocked the world. The removal of strongman Mahinda Rajapaksa from office and peaceful transfer of power have triggered an outpouring of optimism about Sri Lanka’s democratic future. But on one key set of issues it’s not clear that regime change heralds progress: post-war reconciliation and accountability for international crimes committed during Sri Lanka’s long civil war.

In power for a decade, Rajapaksa had made every effort to stay there, amending the constitution to remove presidential term limits and chipping away at Sri Lanka’s democratic institutions. He installed brothers, sons, and nephews in key positions, and centralized political power in the office of the presidency. His popularity among Sinhalese voters (the majority ethnic group) provided democratic cover for this slide into autocracy. When he called snap polls late last November, a renewal of the mandate for Rajapaksa rule appeared inevitable.

Rajapaksa’s unexpected defeat at the polls was handed to him by an unlikely coalition spanning the entire Sri Lankan political spectrum. Maithripala Sirisena, the new president, was Rajapaksa’s health minister and friend before defecting along with more than 20 other ministers and MPs. His campaign promises to reign in the powers of the presidency, end the corruption of the Rajapaksa regime, and restore the rule of law struck a chord with voters. He received over 51% of the vote, and an overwhelming majority among minority Tamil and Muslim voters. Critically, the security sector upheld the result, apparently refusing Rajapaksa’s attempt to stage a coup when the election returns began to go against him.

Like Rajapaksa, Sirisena hails from the major Sinhalese community. Ethnicity and religion are deeply politicized in Sri Lanka, where Sinhalese make up nearly three quarters of the population. Sinhala Buddhist nationalism (the belief that Sri Lanka is an indivisible, Sinhalese, and Buddhist nation) is a driving force in Sri Lankan politics. Sirisena’s commitment to this ideology is a cause for concern for all of Sri Lanka’s minority communities: for the Muslims and Christians, both of whom have been targeted by extremist Buddhist violence; for the rarely-mentioned indigenous Veddas, who struggle to maintain their way of life and cultural identity; but especially for the Tamils, who endured a 25-year war in pursuit of political autonomy and are now suffering through its aftermath.

A cartoon visualizing Rajapaksa's claim that the US sponsoring the UNHRC resolution was like "Muhammed Ali picking on a schoolboy". (Image: The Sunday Times)

A cartoon visualizing Rajapaksa’s claim that the US sponsoring the UNHRC resolution was like “Muhammed Ali picking on a schoolboy”. (Image: The Sunday Times)

Sri Lanka’s civil war ended in 2009 with a ruthless push by government forces that destroyed the Liberation Tigers of Tamil Eelam (LTTE) insurgency. In the final months of the war, hundreds of thousands of Tamil civilians were caught between the advancing army and the retreating rebels. They were brutally mistreated by both sides; conscripted or forced to serve as human shields by the Tigers, intentionally starved and shelled by the government. A UN report estimates that as many as 40,000 of them were killed, many the victims of illegal government targeting of hospitals and declared “no fire zones”.

The aftermath of the LTTE’s defeat was ugly. In the notorious “white flag incident”, surrendering rebel leaders were executed despite assurances of their safety. Cell phone video footage (whose authenticity the Sri Lankan government vehemently contests) shows the torture, rape, and murder of countless other surrendered combatants. Those who survived were taken into government custody. Ex-combatants were sent to “rehabilitation camps”, and nearly 300,000 civilians impounded in a network of IDP camps under military guard. Some of them remained there until 2012.

International pressure for post-conflict justice in Sri Lanka has so far met with a dead end. In 2014, after several years in which the Rajapaksa regime alternated between defiant hostility and time-buying behavior, the UN Human Rights Council empaneled an international investigation. Sri Lanka refused to cooperate. The investigators were not permitted to enter the country, and individuals believed to be assisting the inquiry were harassed and intimidated.

Sirisena, who was acting defense minister in the final days of the war, has indicated that he will not move far from the previous regime’s policy on this issue. He has sworn to shield former regime members, some of whom are crucial partners in his coalition, from international prosecution. It remains to be seen whether his vague campaign promise of a domestic accountability mechanism offers more than the countless ineffectual commissions Rajapaksa created to deflect international pressure for post-conflict justice. Continue reading

Posted in Human Rights, International Law, Justice, Sri Lanka | Tagged , , | 5 Comments

On the ICC in Palestine, Canada Crosses the Line

Canadian Foreign Minister John Baird (Photo: Reuters)

Canadian Foreign Minister John Baird (Photo: Reuters)

On a stop in Jerusalem during his visit to Israel and Palestine earlier this week, Canadian Foreign Minister John Baird emphatically declared that, in joining the International Criminal Court (ICC), Palestinians had “made a huge mistake”. Baird’s remarks coincided with those of his Israeli counterpart, Avigdor Lieberman, who called into question the very existence of the ICC and pleaded with Israel’s Western allies (including Canada) to stop funding the Court.

As a Canadian concerned with Canada’s place in the world, the government’s disdain for international justice has inspired numerous posts (see here, here and here) where my passion may sometimes get the best of me. And while the Canadian government’s opposition to Palestine joining the ICC as well as its ambivalence towards international criminal justice is nothing new, Baird’s latest statements take the proverbial cake.

A key aspect of Israel’s offensive against the ICC (which will now include an attack ad campaign against the Court and Chief Prosecutor Fatou Bensouda), is that Israel is the “last” defence against a wave of terrorism besieging the Middle East. Israeli Prime Minister Benjamin Netanyahu has taken to distorting reality (and the law) by insisting that Israel has been taken to the ICC by Hamas when it is, in fact, more likely that Hamas and other Palestinian groups will face the primary brunt of ICC scrutiny. The Israeli Prime Minister has also consistently mocked the Court, describing its decision to open a preliminary investigations into alleged crimes in Palestine as “absurd” because the ICC refuses to investigate alleged crimes perpetrated in Syria.

This position is patently absurd. First of all, the ICC is barred from intervening in Syria because of the inability of UN Security Council states to reach a consensus on referring the situation in Syria to the Court – and not because of any lack of interest within the Court in investigating crimes in the Syrian civil war. Secondly, of all Western states, the Canadian government was the longest hold-out against referring Syria to the ICC and has not done anything of note to support criminal accountability in the country. It makes little sense for Netanyahu to blame the ICC for its non-intervention in Syria whilst standing shoulder-to-shoulder with the Foreign Minister of a country which refused to support an ICC intervention into Syria in the first place.

Palestinian protesters surround a convoy carrying Canadian Foreign Minister John Baird in Ramallah (Photo: AP / Nasser Nasser)

Palestinian protesters surround a convoy carrying Canadian Foreign Minister John Baird in Ramallah (Photo: AP / Nasser Nasser)

Remarkably, Baird’s spokesman Adam Hodge subsequently and openly admitted that the Canadian government planned on directly intervening in the Prosecutor’s decision-making, stating that the government was “considering a number of options in response to … the purported Palestinian accession to the ICC. We intend to communicate further views to the prosecutor in due course.”

The worst part of Baird’s message is that, for its pursuit of accountability for alleged crimes committed on the state of Palestine (again, by both Palestinian and Israeli groups), the Foreign Minister threatened that Palestinians had crossed a “red line”. The invocation of this phrase in the context of injustice and terror, recently made notorious by US President Barack Obama in the wake of the chemical attacks on Syrian civilians, is chilling. Intentionally or not, Baird drew moral equivalence between the cold blooded murder of thousands civilians in Syria and the popular desire amongst Palestinians, borne as much out of frustration as anything, to make justice and accountability a part of the conversation regarding their political future. Most likely his comments were made with the explicit aim of fitting in with the Israeli government’s soon-to-be-unleashed media campaign against the Court. Indeed, it would not be surprising if footage of Baird is featured prominently in order to discredit and undermine the Court.

Continue reading

Posted in Canada, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | Tagged | 2 Comments

In Its Fight Against the ICC, Israel Takes a Page Out of John Bolton’s Playbook

Israeli PM Benjamin Netanyahu (Photo: Yonatan Sindel / Flash90)

Israeli PM Benjamin Netanyahu (Photo: Yonatan Sindel / Flash90)

The following article is based on a piece I wrote for the Washington Post’s Monkey Cage (you can read the full original article here).

Palestine’s decision to join the International Criminal Court (ICC) has instigated a furious backlash from Israeli government officials. Such a reaction may not be surprising given that Israel and its allies have consistently reiterated their opposition to an ICC intervention into Palestine. But is a reaction of seemingly unmitigated anti-ICC rhetoric useful for Israel? Will it undermine the Court? On both counts, the answer is almost certainly no.

It is safe to say that states generally don’t like their actions or policies coming under the microscope of the International Criminal Court (ICC). But not every state responds in the same way to its record coming under the judicial scrutiny of the ICC. And some reactions and responses may be more appropriate and useful than others.

There is no one way for states to react to an ICC investigation. When it became apparent that the actions of UK troops in Iraq would come under ICC investigation, British officials responded tersely but maintained public support for the Court and apportioned significant resources to demonstrating that the state had sufficiently investigated and punished British citizens responsible for abuses in Iraq. More recently, when the ICC reported that it was conducting a preliminary investigation into the US military’s use of ‘enhanced interrogation techniques’ in Afghanistan, the US response was to cooly reiterate its policy that the Court did not have jurisdiction over its citizens. In response to the ICC’s potential investigation of alleged crimes in Palestine, Israeli government officials have chosen an altogether different strategy: to question the very existence of the ICC.

After years of seeking to prevent the Palestinian Authority from signing the Rome Statute of the ICC, the Israeli government is undoubtedly and unsurprisingly furious. It is scrambling to get the higher moral and political, if not legal, ground. Most observers seem to believe that the Netanyahu government is afraid of the ICC although divisions exist on the source of that fear. One view is that the government is scared because they know that they committed atrocity crimes in Gaza (and perhaps in the construction of Israeli settlements in occupied territories) and therefore will be targeted by the Court. The other explanation is that the government believes that institutions like the ICC are so biased against Israel that they will inevitably be unfairly targeted. In all likelihood, it is a mixture of both.

Palestinian Authority leader Mahmoud Abbas with UN Secretary General Ban Ki-moon (Photo: Reuters)

Palestinian Authority leader Mahmoud Abbas with UN Secretary General Ban Ki-moon (Photo: Reuters)

Irrespective of the source of the Israeli government’s fear, Israel shifted its strategy from apportioning blame on Mahmoud Abbas and the Palestinian Authority to lashing out at the ICC – and not just for its potential investigation of Palestine. In direct contradiction to the Israeli Foreign Ministry’s position that “Israel has been a long-standing advocate of the Court”, Israeli officials are now bringing into question the very existence of the Court. That will almost certainly be a central theme in the campaign of attack ads President Benjamin Netanyahu plans to unleash on the ICC and its chief Prosecutor, Fatou Bensouda. And it was reflected in comments by Israeli Foreign Minister Avigdor Lieberman who went so far as to declare that the ICC should be out of business altogether

We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it. This body represents no one. It is a political body. There are a quite a few countries – I’ve already taken telephone calls about this – that also think there is no justification for this body’s existence.

Avigdor added that any decision by the ICC to investigate alleged crimes in Palestine was “solely motivated by political anti-Israel considerations” and that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.”

For those familiar with the ICC’s brief history, Lieberman’s comments are will sound like the echo of John Bolton, the Bush administration diplomat who publicly rejoiced at his mandate of undermining the Court. During a period of notorious anti-ICC rhetoric and legislation, Bolton’s statements were the most venomous instantiation of American antipathy towards the Court. The former US ambassador to the UN believed that the US should “isolate [the ICC] through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.” In 2002, the Bush administration took the famous and unprecedented step of ‘un-signing’ the Rome Statute. Bolton called it “the happiest day of my life.” Continue reading

Posted in Human Rights, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | Tagged , , , | 2 Comments

Why is Museveni Allowing Dominic Ongwen to be Sent to the ICC?

The following post is by Barrie Sander, a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID). Barrie, currently on exchange at Harvard Law School, focuses his research on historical narratives and conceptions of justice in the international criminal context.

Dominic Ongwen ICC

Dominic Ongwen (Photo Source: Unknown)

Earlier this week, a Ugandan army spokesman confirmed that Dominic Ongwen, a senior commander in the rebel Lord’s Resistance Army (LRA), was to be transferred by the Central African Republic (CAR) to the International Criminal Court (ICC). The news followed last week’s revelations that Ongwen had been taken into US custody and the call by numerous civil society groups demanding Ongwen’s transfer to The Hague (see, for example, here, here and here).

It has subsequently transpired that Dominic Ongwen has been handed over to Ugandan troops in the CAR. Last week, Mark convincingly argued that in light of Ugandan President Museveni’s negative rhetoric towards the ICC, including recent accusations that the ICC is biased against African leaders, it would seem “virtually impossible” to envisage Uganda surrendering Ongwen to the ICC. Yet, it appears that President Museveni is now prepared to do just that, apparently taking the view that since the LRA has committed atrocities in neighbouring countries, Ongwen should face international justice.

In fact, Museveni’s ‘concession’ to the ICC is more likely to be a calculated political maneuver, rather than a renewed appreciation for the benefits of international justice. There are at least four reasons why Museveni would be well advised politically to surrender Dominic Ongwen to the ICC.

First, by cooperating with the ICC, President Museveni can reinvigorate his image as a champion of international justice. In their article on the subject, Sarah Nouwen and Wouter Werner illustrated how Uganda’s self-referral to the ICC served to portray the Ugandan government as a defender and friend of mankind, whilst transforming the LRA from an enemy of the Ugandan government into an enemy of the international community as a whole. By transferring Dominic Ongwen to the ICC, President Museveni can resurrect some of these images, deferring attention away from atrocities allegedly committed by government forces and ensuring that the ICC remains dependent on its cooperation for the foreseeable future.

Second, President Museveni’s priority will be to ensure that Dominic Ongwen is tried without any prolonged legal squabbles. Museveni will want Ongwen’s trial to serve as a didactic opportunity to illuminate the atrocities committed by the LRA. Although Uganda is entitled to challenge the admissibility of Ongwen’s case at the ICC, the situations in Kenya and Libya have demonstrated that the ICC is prepared to set a relatively high threshold that must be met for such a challenge to be successful. For instance, it would not be sufficient for Uganda to investigate only discrete aspects of the case brought against Ongwen by the ICC Prosecutor; Uganda would have to demonstrate that its case sufficiently mirrors the case brought by the ICC Prosecutor, both in terms of Ongwen’s conduct and the incidents under investigation. In light of these challenges, Museveni may prefer to avoid the prolonged legal battles that have dogged the cases brought in the situations in Kenya and Libya, in favour of ensuring a smooth path to trial at the ICC that better serves his didactic aims.

Yoweri Museveni (right) with Muammar Gaddafi (centre) and Omar al-Bashir (left).

Yoweri Museveni (right) with Muammar Gaddafi (centre) and Omar al-Bashir (left).

Third, President Museveni may also fear that any attempt to try Dominic Ongwen in Uganda’s International Crimes Division (ICD) risks galvanizing the same legal and political controversies as the case of Thomas Kwoyelo, the first and only case of an LRA commander to take place before the ICD to date. With Uganda’s Amnesty Act 2000 still in force, and Dominic Ongwen still presumably entitled to apply for an amnesty so as to avoid domestic prosecution, Museveni may prefer to avoid the risk of embarrassment that would befall him were a domestic prosecution to fail. Continue reading

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