The ICC, A Victims’ Court? It Could Happen

Stephen Smith Cody joins JiC for this post discussing a recently released, timely, and must-read report on victim’s expectations with, and engagement at, the ICC: The Victim’s Court – A Study of 622 Victim Participants at the International Criminal Court.

(Photo: Amnesty International)

(Photo: Amnesty International)

Many victims of war crimes and other atrocities have said they are disappointed in the International Criminal Court (ICC). As one victim said: “The court hears the voices of the people who perpetrated this violence, not the victims.” In a study of ICC victims, released this week at the Assembly of States Parties Conference in The Hague, we document the concerns of more than 600 of them.

Our findings suggest that the ICC has reached a critical juncture: It must invest in greater outreach and education programs to give victims the tools to meaningfully participate in trials or accept that it’s failing to meet its mandate to include them.

Our study shows that most victims participating in the court have insufficient knowledge to make informed decisions about their cases, rarely meet with court personnel, and feel frustration at the lengthy trial process, which can go on for years. “As victims, we do not understand. We need more information so we understand our case. Intermediaries are struggling to inform us. They provide information when they have it, but the problem is to reach us. Their means are limited. There are not enough efforts to keep the victims informed,” explained one victim.

When the Rome Statute created the ICC in 1998, it promised survivors of mass violence a new kind of international court—one that would give them an influential voice in criminal trials. Many at the court have made admirable efforts in The Hague and in victims’ communities to realize this promise, but much more needs to be done.

Unlike other courts where victims only testify as witnesses during trial, the ICC gives victims the right to present their views to judges at various stages of the proceedings, and even question witnesses during trials, so long as judges determine that they are exercising these rights in a manner consistent with a fair trial for the accused. Victims also have a right to receive reparations, including individual compensation in some cases.

These victim-centered innovations—controversial and vigorously debated during the Rome Statute negotiations—reflect a growing consensus that international criminal courts should not just punish the guilty, but also ensure that the voices of victims are heard.

But our study shows this experiment in international criminal justice is not fully succeeding, at least not yet. Our interviews in Uganda, Democratic Republic of Congo, Kenya, and Côte d’Ivoire show that ICC prosecutions to date have scarcely affected victims’ the daily lives. Others say the court built up hopes of convictions and reparations only to disappoint them.

Victims’ said that their satisfaction with international justice depends largely on their personal interactions with court personnel and feedback on their cases. Regular contact and communication can be even more important to victims than securing convictions of high-level perpetrators, who victims may see as less responsible for violence than local offenders. Continue reading

Posted in Guest Posts, International Criminal Court (ICC), International Criminal Justice, Victim Participation | Tagged , | 2 Comments

Five Take-Aways from the ICC’s Latest Bombshell Report

A Reprieve-organized protest against US torture allegations (Photo: Val Kerry / Flickr CC)

A Reprieve-organized protest against US torture allegations (Photo: Val Kerry / Flickr CC)

This year’s Report on Preliminary Examination Activities from the International Criminal Court (ICC) carried within it a number of fascinating – and crucial – details into who and what is falling under the ICC’s microscope. Below are five important takeaways that demonstrate and increasingly emboldened, provocative and courageous institution, not to mention one that really doesn’t look like it’s unfairly picking on Africa.

U.S. Torture in Afghanistan

The ICC’s examination into alleged atrocities committed in Afghanistan continues. In last year’s preliminary examination report, we saw the first-ever reference to the alleged “enhanced interrogation techniques” used by U.S. officials against Taliban forces, who are also under examination by the Court. American officials reacted coolly to the inclusion of torture allegations in the prosecutor’s last report, but it was back once again this year. Moreover, in a handful of hard-hitting paragraphs, the 2015 report laid down a challenge to U.S. officials to take allegations of torture – those investigated by the ICC as well as those outlined in the country’s own ‘Torture Memos’ – seriously.

While the report takes note of the judicial actions against U.S. citizens allegedly responsible for war crimes and crimes against humanity in Afghanistan, it insists that those efforts have been insufficient. Specifically, the report points out that two cases that involved the deaths of detainees in CIA custody “did not result in any indictments or prosecutions” and that thirteen Department of Defence investigations “were administrative enquiries rather than criminal proceedings”. In short, the U.S. isn’t doing nearly enough to take accountability for these alleged abuses seriously and, if it doesn’t, the ICC may have no choice but to open an official investigation.

In perhaps its most devastating paragraph, the report suggested that it was no longer questioning whether war crimes had been committed by U.S. forces but how systematic those crimes were. It also evoked the long-term pain and suffering of victims:

“The Office is assessing information relevant to determine the scale of the alleged abuse, as well as whether the identified war crimes were committed as part of a plan or policy. The information available suggests that victims were deliberately subjected to physical and psychological violence, and that crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims. The infliction of ‘enhanced interrogation techniques’, applied cumulatively and in combination with each other over a prolonged period of time, would have caused serious physical and psychological injury to the victims. Some victims reportedly exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.”

In short, the ICC has reprimanded the U.S. for not doing nearly enough in pursuing accountability for these alleged abuses and has taken the rather remarkable step of suggesting that the perpetration of torture in Afghanistan may not have been the work of ‘bad apples’ but a plan or policy orchestrated at senior levels of the Bush administration.

Palestine and Israel

The 2015 report marked the first time that the preliminary examination into alleged war crimes committed by Palestinian and Israeli factions in Gaza has been detailed in a report. The section on Palestine is worth reading in full. But one interesting fact stands out: “On 9 July 2015, the government of Israel announced that it had decided to open a dialogue with the Office over the preliminary examination.” In other words, Israel has decided to cooperate with the ICC’s examination of alleged crimes perpetrated in Palestine. While this has been previously reported in the media, it was welcome news to see it in the ICC’s report. Engaging the ICC, as I have suggested elsewhere, is a wise move on the part of the Israeli government. Continue reading

Posted in Afghanistan, Africa, Complementarity, Georgia, Gravity, Honduras, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Iraq, Israel, Palestine, Ukraine, United Kingdom, United States | 3 Comments

A Way Forward: An Africa-ICC Expert Panel

(Photo: Picture Alliance / Landov)

In the world of international criminal justice, few issues have received as much attention as the relationship between the International Criminal Court (ICC) and African states and societies. While African constituencies were at the very forefront of pushing for, and establishing, an independent and effective ICC, today it is no secret that, in recent years, the relationship has not been (been) particularly healthy. Nevertheless, responses to this troubling situation have been insufficient in strengthening the Africa-ICC relationship, despite the obvious importance in doing so.

In this context, I am thrilled to announce the establishment of an Africa-ICC Expert Panel. The independent Expert Panel will be launched by the Wayamo Foundation, where I serve as Director of Research, during a side event at the Assembly of States Parties (Conference) to the ICC in The Hague next week (see below). The Expert Panel is currently made up of an impressive group of human rights and international criminal justice experts, including Athalia Molokome, Navi Pillay, Hassan Bubacar Jallow, Richard Goldstone, Betty Murungi, Femi Falana, Abdul Tejan-Cole, Mohamed Chande Othman and Fatiha Serour.

The independent Expert Panel will meet on a regular basis across Africa and host public conferences and meetings with local politicians, members of the judiciary, the media, students, and interested citizens. The project will be tasked with improving our understanding of, and overcoming, contentious issues pertaining to the ICC-Africa relationship. This will be achieved by engaging critically with issues between African constituencies and the ICC, clarifying misperceptions regarding the Court amongst African states, considering policy-relevant recommendations to strengthen and deepen the relationship between the ICC and African states, as well by advising interested parties on strategic issues.

African states have been and continue to be indispensable to the project of international criminal justice. However, in order to foster a productive and positive relationship between Africa and the ICC, proponents of international criminal justice need to devote time and energy to tackling misperceptions and points of contention between African actors and the Court. The Africa-ICC Expert Panel promises to help fill this lacuna.

For all readers interested in the project and available to attend, below is the event announcement:

As part of its ongoing strategies aimed at improving the relationship between Africa and the ICC as well as strengthening complementarity through capacity building, the Wayamo Foundation is launching the Africa-ICC Expert Panel. The Africa-ICC Expert Panel is to be established with the mandate to improve the relationship between African states and the International Criminal Court, to promote complementarity through capacity building and, more generally, to support efforts to strengthen justice and accountability measures in Africa.

The launch of the Africa-ICC Expert Panel will take place in conjunction with the Assembly of States Parties side event “Africa and the ICC – Looking Back, Moving Forward” co-hosted by the governments of Botswana, Finland, Germany, the Netherlands, Norway, Sweden, Switzerland, and the United Kingdom. The side event will take place between 18:00-19:30 on 23 November 2015 in Conference Room 7 at the Worldhotel Bel Air in The Hague, and will be followed by a reception.

Speakers at the side event will include Expert Panel members:

Human rights activist and lawyer Femi Falana (Nigeria)

Prosecutor at the International Criminal Tribunal for Rwanda and International Residual Mechanism for Criminal Tribunals Hassan Bubacar Jallow (Gambia)

Former Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda and the former Yugoslavia Richard Goldstone (South Africa)

Attorney General of Botswana Athaliah Molokomme (Botswana)

Former UN High Commissioner for Human Rights Navi Pillay (South Africa)

Director of Serour Associates for Inclusion and Equity Fatiha Serour (Algeria)

Posted in Africa, Africa-ICC Expert Panel, African Union (AU), Complementarity, International Criminal Court (ICC), International Criminal Justice | Tagged | Leave a comment

Transitional Justice without a Peaceful Transition—The Case of Post-Gaddafi Libya

A demonstration / gathering in Benghazi in 2011 (Photo: AP)

A demonstration / gathering in Benghazi in 2011 (Photo: AP)

An ongoing question for scholars and constant challenge for practitioners is how to combine peacebuilding with transitional justice. There are, clearly, no easy solutions. The case of Libya demonstrates this vividly and is the focus of an article I recently wrote regarding the country’s experience with transitional justice mechanisms since the end of the Gaddafi regime. The result is a paper, entitled, Transitional Justice without a Peaceful Transition – The Case of Post-Gaddafi Libya. The paper will be part of the book: Building Sustainable Peace: Timing and Sequencing of Post-Conflict Reconstruction and Peacebuilding, edited by Arnim Langer and Graham K. Brown (Oxford University Press 2016). For those interested, the abstract of the paper, the full version of which can be found here, is below. The other contributions to this fantastic and promising volume can be found here. As always, your thoughts and feedback are welcome and appreciated.

This paper examines Libya’s experience with transitional justice since the conclusion of the country’s 2011 civil war and the onset of its post-Gaddafi transition. The core of the paper focuses on three transitional justice mechanisms: retributive criminal justice; lustration under Libya’s Political Isolation Law; and the amnesty granted to revolutionaries under Law 38. None of these mechanisms have been implemented within a peace or peacebuilding process. Libya’s experience with all three of these transitional justice approaches have acted to perpetuate, rather than alleviate, a climate of selective impunity and vengeance against those associated with the previous regime whilst simultaneously elevating the revolutionary legitimacy of Libya’s rebel groups and militias. Transitional justice efforts to day have, as a result, frustrated the construction of a post-war peace. The paper concludes by arguing that the current UN-led peace negotiations may offer an opportunity to integrate transitional justice and peacebuilding processes.

Posted in Amnesty, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Lustration, Transitional Justice | 4 Comments

Administering Justice: An Interview with the ICC Registrar

Shehzad Charania, Legal Advisor and Head of the International Law Team for the British Embassy in The Hague, joins JiC once again, this time for an interview with ICC Registrar Herman von Hebel. Shehzad spoke to von Hebel about why he had wanted the be Registrar, his experiences of working at the other international criminal courts and tribunals, the unique challenges within the ICC Registry, his hopes for the Court, and his own plans within it.

ICC Registrar Herman Von Hebel speaks with Shehzad Charania

ICC Registrar Herman Von Hebel speaks with Shehzad Charania

Why did he want the job?

I began by asking about his motivations for taking on his current role. The Registrar recalled that he had been part of the Dutch delegation dealing with ICC matters from 1995, continuing through to the Rome Conference in 1998. After this, he spent time working at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL). He could see similarities and differences between, on the one hand, his roles at the other courts and tribunals, and,on the other, the ICC. He wanted to bring the experience he had gained in these other institutions, as well as the Dutch Ministry of Foreign Affairs, to the ICC, in order to address the ICC’s unique challenges. When he interviewed for the job of ICC Registrar, he had focused on the need for reform, and an overhaul of the existing structure.

Law or administration?

I asked why having spent so much of his early career – in particular with the Dutch Foreign Ministry, and the ICTY as Senior Legal Officer – dealing with the purely legal and judicial aspects of international criminal law, he had decided to move to the administrative side of the work of the legal institutions. The Registrar felt that the shift wasn’t so great. Law and diplomacy continued to be a central part of his current job, as they were in his previous roles. He needed to exercise his legal muscles on a daily basis. He did not consider the role of Registrar as a purely administrative job – of course, it was a major part, but there was also a significant focus on issues of leadership and forging a common vision.

Previous Registrar jobs

In terms of the differences between his jobs as Registrar at the STL and SCSL, and the ICC, the ICC stood out as being radically different from the others. The STL and SCSL, as well as the ICTY, had focussed on a single situation, be it Lebanon, Sierra Leone or the former Yugoslavia. This determined the organisational structure, and the way those institutions functioned. The ICC’s global reach had a huge impact on the way it was set up: it was almost a set of “mini-tribunals”, each dealing with a different country situation. The external governance structure of the various courts was also different. For example, to finalise the ICTY budget, the Tribunal had to go to New York every two years and answer the questions of the Advisory Committee on Administrative and Budgetary Questions for a week. After this, they presented their proposal to the UN Fifth Committee. With the STL and the SCSL, as Registrar he had to present his budget proposal to a Management Committee of ten and six members respectively. None of these relationships were as labour intensive as within the ICC, where the Court had to deal with the Assembly of States Parties (ASP), its Bureau, The Hague and New York Working Groups, and the various facilitations. His experience of the different governance structures made him question whether the current relationship between States Parties to the Rome Statute and the Court was the right one. After all, the ICC was not just another international organisation in the same mould as the United Nations or the Organisation for the Prohibition of Chemical Weapons. The ICC was a court of law, bound by the Rome Statute and the mandate encapsulated within it.

The ICC website

One of the specific issues the Registrar had said he wanted to tackle when he was first elected was the ICC website. On this, progress was being made. There had been a number of technical and design issues to tackle. But he had received positive feedback from a number of stakeholders  on test versions of the new site. He was hopeful of a launch in early 2016, after the Court had moved to its new building.

The Revision Project

We then moved on to talk about the “ReVision project” – the Registrar’s reorganisation of the Registry. The Registrar was adamant that his decision to undertake the project had been the correct one, despite the challenges he has faced since the work began. When he arrived at the Court, it was clear that the Registry was not functioning as well as the Registries in the other international courts he had worked in. This was reflected in ASP resolutions, reports of the ASP’s advisory body the Committee for Budget and Finance (CBF), and the 2013 report of Price Waterhouse Coopers on the organisational structure of the Court. He considered it an obligation to deal with the issues identified; he would rightly have been criticised if he had not taken action. And even though the ReVision project was almost complete, there was still work to do: on the management structure, ensuring all staff shared a common vision, the budgetary process, working even more closely with the other organs of the Court, building a single, internal case law database, and putting in place adequate performance management systems. Continue reading

Posted in ICC Registry, International Criminal Court (ICC), International Criminal Justice, International Law, Interview, Interviews | Tagged , | Leave a comment

Seven Things the ICC Could Do to Improve Its Communications and Standing

Visitors at the International Criminal Court (Photo: ICC)

Visitors at the International Criminal Court (Photo: ICC)

The International Criminal Court (ICC) is doing a lot of things right and, almost 15 years since its establishment, it is also doing many things better than it used to. But one area it continues to struggle with is its communications strategies. This is an area of its work that is only growing in importance. Indeed, it is arguable that the ICC’s greatest challenge going forward isn’t singularly legal or solely political; rather, it is the fight over the perception of its work. From the ongoing cases in Kenya to the Court’s relationship with global powers and African states, all of these are being fought on the battleground of public perception. With its limited and squeezed budget, the Court simply cannot compete with states or individuals that have millions, even billions, of dollars at their disposal. But smart public relations strategies can have an equalizing force that belies their low cost. As a result, for a struggling institution, establishing and harnessing smart, creative and effective communication strategies should be of immense importance.

It remains unclear why the ICC seems reluctant to do much about its communications work. Perhaps it’s bureaucratic ineptitude. Perhaps it is a lack of leadership or staff. Perhaps it is a resource issue. Perhaps it is all of the above or perhaps it is none. But, in the spirit of being helpful rather than merely critical, here are seven easy and cost-effective things the Court could do to boost its public relations profile and thus its standing in the world. Importantly, this is not simply about the ICC’s ‘outreach’ which I take to encompass the Court’s activities aimed at affected communities and constituencies. This is about thinking of the Court as what it truly is: an international institution in a turbulent world of politics. Doing so means acknowledging and accepting the importance of public diplomacy and public relations.

1. Get a New Website. Seriously: New Website.

At this point, it is beyond inexcusable that the ICC still has the same website. It is hard, if not impossible, to think of a good enough or sufficient reason why the same website is still in place. It has been two and half years since some observers, including myself, began criticizing the Court’s web presence. And it has been and two years since the company the ICC outsourced the new website to offered glimpses of an ‘alpha’ version of the site (which was, it must be noted, a phenomenal improvement on the current edition). Still, we see no change.

Currently, basic information, let alone relevant court documents, is impossible to find on the website. There is virtually nothing user-friendly about it. The font is tiny, the photos are minuscule, and there’s something just so 1998 about it. As a teacher, I would find it irresponsible to send a student to the ICC’s website to learn about the Court. But more importantly, it turns away more potentially interested people than it attracts.

If justice needs to be seen to be done, the website is the logical portal for achieving that aim. The website must be priority number one and whatever stands in the way of rolling it out, must be overcome. Getting a website might be a bit costly but the Court has already invested in it and, more importantly, it is worth every penny. I hope that rumours of a new site being rolled out shortly are true. It is beyond overdue.

2. Focus Groups

As I mentioned above, it has been almost 15 years since the ICC became a functioning reality. But it seems increasingly difficult to know what the Court’s story really is today. What is the ICC truly about and for whom? To find that out, the Court should explore the use of focus groups amongst its various relevant constituencies.

One of the greatest dangers in marketing is believing that everyone loves your product as much as you do. It’s almost certainly never the case. Instead, good public relations is based on understanding what a brand is – a set of ideas about a product that truly resonates with a targeted audience. Focus groups could help the ICC figure out what its brand, as a justice producer, is. That brand, and the handful of ideas its based on, could then be plugged into sophisticated – but relatively inexpensive – communications strategies.

This is another policy that might come at some financial cost but it doesn’t necessarily have to. To do this kind of work, the ICC could partner with regional civil society organizations or academic institutions that would, I have no doubt, chomp at the bit to do such research.

3. Stream Key Trial Moments on Various Social Media and News Sites.

Another frustration for ICC observers pertains to viewing key trial moments (e.g. opening statements or verdicts) online. There have been times when the site has simply shut down due to having ‘too much’ traffic. At other times, it is only possible to view the courtroom in a tiny little square on the computer screen.

One way to resolve this, and to make the Court’s work more accessible in the meantime, is to stream these key moments on social media and news sites. There is no reason why the ICC should not have simultaneous streams on Facebook or Reddit as well as local news sites and their international counterparts like the New York Times and Guardian that would almost surely be happy for the free traffic. This would cost the ICC nothing.

4. Engage Meaningfully on Social Media

The ICC has a potentially vast and loyal following. We know this because the Court is in the news daily and because groups like Save Darfur or Invisible Children make documentaries that chime with parts of the ICC’s mission and which capture global attention. Whether one agrees with their message or not, these organizations understand the importance and value of social media. The Court, however, has a very superficial and sterile presence on social media. While its recently increased use of photographs is a welcome effort in allowing people to see developments at the ICC, rather than grasping that social media is primarily about engagement, the Court’s web presence is a repository of “this is what happened at the ICC today” news with links to the Court’s website. More can and should be done to turn the ICC’s social media presence into a strength of its public relations and outreach efforts. 
 Continue reading

Posted in International Criminal Court (ICC) | 2 Comments

Tired of Waiting, Darfur Victims Withdraw from ICC Case Against Bashir

A witness testifies at the ICC

A witness testifies at the ICC

It has been a decade since the International Criminal Court (ICC) opened its investigation into alleged mass atrocities committed in Darfur. Those ten years have been, to say the least, a rocky ride for international justice. No official from the ICC has ever stepped foot on the Sudanese region. Despite a series of arrest warrants issued against alleged perpetrators of war crimes, crimes against humanity and genocide, there is no real prospect that anyone will be convicted. The international community has, by and large, turned a blind eye, leaving ICC prosecutors with little choice but to shelve their investigation. Today, the person receiving the most attention is the same person allegedly most responsible for human suffering in Darfur: Sudanese President Omar al-Bashir.

It seems that Bashir is constantly in the news. Despite two arrest warrants issued against him by the ICC, Sudan’s president has managed to travel to a number of countries in recent weeks and months, mostly notably to three of the so-called BRICs states: South Africa, China and India. Bashir’s state visits are no doubt a source of great frustration for proponents of the ICC, many of whom had previously insisted that the Court had severely restricted Bashir’s ability to travel. But Bashir’s gallivanting also points to the unfortunate combination of the ICC’s inability and the international community’s unwillingness to achieve any kind of justice for crimes in Darfur. And make no mistake: the primary loser of this impasse is not the Court or the advocates of international law. It is the victims of mass atrocities in Darfur.

The ICC prides itself as an institution that promotes the role of victims in its work and mandate. Granting victims rights as well as allowing them to participate and have legal representation at the ICC is what the Court calls a “great innovation”. There is no doubt that the ICC’s focus on victims is a crucial and significant improvement from the institution’s predecessors, the International Tribunals for the former Yugoslavia and Rwanda, where victims were, in principle and practice, only permitted to participate in proceedings as witnesses.

But what does the Court’s interest in victims truly mean? In their article on the subject, Sarah Nouwen and Sara Kendall have argued that the role and representation of victims at the ICC is severely limited and remains more abstract than real:

[I]n the practices of the ICC—which in this context involves not merely the Court, but also the epistemic community surrounding it—victims are both overdetermined and less represented than the claims suggest. They are overdetermined in that all victims are amalgamated into an abstract entity, ‘The Victims’, which serves as a rhetorical justification and rationalisation of the project of international criminal law. Meanwhile, as a result of juridification, very few individuals are actually personally represented in legal proceedings. This gap between the discourse surrounding victim representation and what transpires in the Court’s work, namely between the presentation of ‘The Victims’ as the raison d’être of international criminal law and the very limited role of victims in international criminal proceedings, coincides with a gap between the victim as an abstraction and as an actual victim of mass atrocity.

These views are shared by insiders. Based on a lecture given by former ICC Judge Adrian Fulford, a Chatham House report observed that “the way in which victims come to participate has been described as both arbitrary and highly selective”.

Court officials certainly take these criticisms and shortcomings seriously, as evidenced by former Fulford’s comments on the matter. Moreover, as Chris Tenove has written, while “we still lack in-depth assessments of the impact of victim participation in different cases, [t]here is clearly a desire at the ICC to continue to improve victim participation”. Continue reading

Posted in Darfur, International Criminal Court (ICC), International Criminal Justice, Sudan, Victim Participation | 2 Comments