Looking For Flatmates – Behind the Scenes at Scheveningen Prison

I am absolutely thrilled to feature this fascinating guest-post by Ronen Steinke. Ronen recently went  behind the scenes to encounter the unique world that is Scheveningen prison, where alleged war criminals spend years awaiting their judgement day at the various Hague tribunals. Ronen is a journalist whose work has focused on international criminal justice. He is also the author of The Politics of International Criminal Justice – German Perspectives from Nuremberg to The Hague (see my review here). This article was originally posted at Süddeutsche Zeitung and was translated by Patrick Wegner.

(Photo: Radio Free Europe)

(Photo: Radio Free Europe)

33 men, all of them ex-dictators, warlords, alleged mass murderers, under one roof. An exclusive visit to the war criminals prison of the United Nations in the Hague.

Some years ago, a joke born out of bitterness made its rounds among UN staff: all those expensive peace missions around the globe, the reintegration programmes for rebel soldiers, all the political ‘reconstruction’ efforts that in the end turn out to be naïve illusions of the West and huge letdowns – you could just as well forget about all of them. And buy a small tropical island instead, even with less money. On the tropical beaches of this island paradise you could serve cocktails to the worst warlords and agitators the world has seen, from dusk till dawn. And who knows, that might even be a better use of the money and a better service to humanity than funding all those unsuccessful programmes.

It is a cool morning at the Dutch beach. The salty winds are shaking the hot dog stands and ruffling the flags. Pensioners are strolling along the boulevard, holding hands. The beach area of Scheveningen is a wealthy suburb of The Hague. When the clouds disperse, sunrays dance over the sea like searchlights. The wind is still mild and blows landwards. But not even thousand steps from here it has to overcome 6 meter red brick walls, and does so with ease.

On foot you would take much longer to cover this distance, traversing two thick security perimeters and leaving behind all metal items to be scanned at the gate of the old prison of Scheveningen. You would have to cross several heavy doors, the next one is only opened after the previous door has been securely locked. Then you would cross a courtyard full of pine trees surrounded by rolls of all kinds of barbed wire. After a while you would find a single building deep within the prison complex, with another metal detector and even more security personnel, scanning everything. Only this time they are not wearing Dutch uniforms, but blue UN shirts.

Former Enemies live cell to cell. The doors are left open. In the evenings, they cook together

Three stories, surrounded by high walls, which are again surrounded by picturesque Dutch houses: a prison within a prison. But also something of an island. The few inmates that are kept here are allowed to spend twice as much time outdoors than normal prisoners in the regular prison system. They are also allowed to receive visitors much more often: up to seven full days a month. Common Dutch robbers or drug dealers, who are overlooking the courtyard from their neighbouring cells, can only dream of such visitation rights.

From the higher floors you can see the treetops and hear the seagulls. The wind from the sea is blowing through the building because many doors are left open. And if you have ever seen a German prison or holding cell, you will wonder where the dirt and the grafitis are: the walls are white, every corner brightly lit, the light-grey bricks match the light grey linoleum and in some areas you can see security cameras in a still pristine condition. A unique experiment is being carried out here, even though this is not the main intention of the owner but more of a side-effect. The 33 men who share this house used to be warmongers, warlords, and dictators, in some cases at the helm of directly opposed regimes. In this prison of international criminal justice they are living together, under surveillance of the United Nations that are operating various international criminal tribunals in the Hague, as well as the International Criminal Court that has also brought charges against some of them.

The United Nations are not very eager to allow journalist within these walls. Consequentially they have never – before this visit that is – allowed journalists a glimpse into these halls. Purportedly due to security reasons, and maybe also because seeing this place raises questions that are not easily answered. Questions concerning justice.

Radovan Karadzic, the former leader of the Bosnian Serbs, has been here since June 2008. Until today he expresses perverse delight looking back at how he fooled his pursuers, dressed up as the miracle healer Dr. Dabic right in the middle of Belgrade. When he arrived at the prison, he could initially be seen taking a stroll in the courtyard. For everyone to see. The world had him back; this seemed to be his personal victory lap: Nordic walking in a tracksuit, in line with the casual dress code of the inmates. A trial lawyer who was present that day remembers: ‘He was number one, enjoying the cheers of his former generals.’

It must have been the moment of a lifetime for the small-town Serbian police officer Sredoje Lukic who is also imprisoned here for allegedly having committed massacres against the Muslim population at behest of his political leaders in Bosnia. All of a sudden his former President Karadzic was cooking with him. Side by side they were standing in front of the metal stove in the inmates’ leisure room, in front of an industry-sizedwaffle iron under a humongous kitchen hood that would put most Mc Donalds branches to shame.

During the visit Karadzic’s kitchen remains off limits, but we are able to see an identical kitchen no longer in use. It looks very well kept, like something that was taken very seriously.

(Photo: Justice Report)

(Photo: Justice Report)

‘Usually there is this signature sound when entering a prison’ says Klaus Hansen who worked in Danish prisons for 12 years before starting here. ‘It sounds like a strange machine. Keys, doors, male voices. You won’t find that here. It is just quiet.’ Hansen is a friendly Dane with a white beard and pony tail, one of the civilian specialists that protect the privacy of the inmates from the public. The residents of this house are hated and feared. But at the same time, and this might be the more serious issue, they are loved: by secret networks of former followers in the security apparatuses of their home countries. This is why Klaus Hansen will leads us through the building following a complicated, sinuous line. He is giving all the inhabited rooms a wide berth and showing only the empty cells.

Each inmate has a single cell. They are distributed along four hallways. Three hallways are filled with men from the former Yugoslavia, including two former Presidents who triggered a bloody uprising across the region with their hate speech. Allegedly triggered that is, since all inmates here are awaiting the verdict of their trials. In The Hague this can take a while. Seven years on average.

Then there is the fourth hallway, for men from Africa that are currently facing the International Criminal Court. Among them is another former President, who was ousted three years ago through a military intervention in Cote d’ivoire by French and UN troops. When Laurent Gbagbo was arrested, he was still wearing an undershirt.

Downstairs, in the entrance hall with dark tiling, where a conglomerate of old sofas provokes comparisons with German youth prisons, two elegantly dressed African ladies crossed our paths. Visitors on their way out. The inmates are only meters away, but you cannot see them.

The prison is supposed to deter war criminals, but for some it is a haven

This peculiar social experiment, that much is clear, is taking place in relatively propitious conditions: sure, it is narrow, the ceiling is low, and the gym in the first floor has only the size of half a basketball court. The different colorful markers for a variety of ball sports on the floor are squeezed into an absurd criss-cross. And the tiny windows are so high, that three men would have to stand on each other’s shoulders to look outside through the bars. With an average age of 62.9 years that idea is absurd of course. A staff member states that their main worry are heart problems. But still, there is a gym. Very well kept, including cardio equipment in a corner. You will not find that in many European prisons. Continue reading

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Posted in ICC Registry, ICTY, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), International Law | Tagged , | Leave a comment

Did the Torture Report Just Open the U.S. Up to ICC Prosecution?

Camp X-Ray, Guantanamo Bay (Photo: AP)

Camp X-Ray, Guantanamo Bay (Photo: AP)

Does the recent ‘torture report’ on CIA ‘enhanced interrogation methods’ leave US citizens vulnerable to prosecution by the International Criminal Court (ICC)? That was the question I was asked to answer in my latest article for the Washington Post’s Monkey Cage, originally posted here.

Dec. 9 saw the much anticipated release of the U.S. Senate’s “torture report,” outlining in harrowing and tragic detail the CIA’s program of “enhanced interrogation techniques” in its “global war on terror.” On Dec. 2, the Office of the Prosecutor at the International Criminal Court also released a report in which it made clear that it was inching closer to opening an official investigation into crimes in Afghanistan – including U.S. interrogation techniques. These developments could very well expose U.S. officials to formal investigation – and potentially prosecution – by the ICC. But is the court truly prepared to confront Washington head-on?

The international justice and human rights world is abuzz with the possibility that accountability for U.S.-sponsored and perpetrated torture and so-called “enhanced interrogation techniques” may finally be at hand. In the span of just a few days, the once naive aspiration that U.S. officials would come under the judicial microscope of the ICC has been resuscitated. However, any move to investigate and prosecute alleged crimes by U.S. citizens in Afghanistan needs to be set within the context of the ICC’s interest in maintaining positive relations with the United States while pushing for accountability for crimes committed by even the most powerful of states.

Despite the United States being a non-member state, no relationship has dominated the court’s first decade as much as that with Washington. The popular narrative, one that the court and its advocates regularly reiterate, is one of consistent struggle and resilient progress. The storyline goes something like this: Despite the United States voting against the creation of the ICC in 1998, in one of his last acts while in office, President Bill Clinton signed the Rome Statute. However, not long after the court became a functioning entity, then-U.S. Under Secretary of State for Arms Control and International Security John Bolton was dispatched to “unsign” the statute, an unprecedented political move. What followed was a series of hostile measures by the United States, including the passage of the American Service-Members Protection Act (or “The Hague Invasion Act”) which prohibited the United States from providing funds to the court and bestowed upon the president the right to use “all necessary measures” to repatriate any U.S. citizen detained by the court. At the same time, the administration successfully employed coercive diplomacy against over a hundred states to ensure that they signed “Bilateral Immunity Agreements,” guaranteeing that they would never surrender a U.S. official or soldier to the ICC.

During President George W. Bush’s second term, relations began to thaw. In 2005, the United States allowed the passage of a U.N. Security Council resolution referring Darfur to the ICC. When President Obama arrived on the scene, relations continued to warm. The United States began actively participating in ICC conferences, identified areas in which it could cooperate with the court and spoke of its “positive engagement”with the ICC. In addition, the State Department expanded its Rewards for Justice Program to include ICC indictees and played an important role in the surrender of Bosco Ntaganda, charged with committing war crimes in the Democratic Republic of Congo, to The Hague.

US President Barack Obama speaks to American troops at Bagram air base, Kabul (Photo: Saul Loeb / AFP / Getty Images)

US President Barack Obama speaks to American troops at Bagram air base, Kabul (Photo: Saul Loeb / AFP / Getty Images)

As David Bosco cogently argues in his book, “Rough Justice,” the ICC has generally sought to accommodate U.S. interests. Seeking to improve its relationship with the world’s most powerful country – and the country with the best surveillance techniques and thus access to the kind of evidence the court needs – prosecutors avoided stepping on Washington’s toes, neither investigating alleged abuses by U.S. officials nor intervening in states where the United States had preexisting political interests. This avoidance of confrontation, however, may be about to change in dramatic fashion.

That allegations of torture by U.S. officials in Afghanistan were mentioned in the ICC prosecutor’s report may seem, at first glance, to be window dressing to assuage the concerns of many that the court is toothless when it comes to confronting powerful states. But behind this unprecedented and explicit mention of potential U.S. culpability is a court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan. However, in the wake of some serious setbacks including the collapse of the case against Kenyan President Uhuru Kenyatta, is the ICC in a position to do so? Continue reading

Posted in Afghanistan, International Criminal Court (ICC), International Criminal Justice, International Law, Justice, Torture, United States | Tagged | 47 Comments

Victims at the ICC: What is the Way Forward?

The following is a guest-post on the future of victims and victim participation at the International Criminal Court. It was written by Stephen Smith Cody (Director of the Atrocity Response Program at the University of California, Berkeley School of Law), Susana SáCouto (Director of the War Crimes Research Office (WCRO)) and Chris Tenove (a doctoral candidate at the University of British Columbia).

A witness testifying before the ICC. (Photo: Reporting Kenya)

A witness testifying before the ICC. (Photo: Reporting Kenya)

When the Assembly of States Parties convenes this week, members will select judges, finalize a budget, and debate new rules and regulations. Another topic sure to arise is the major reform of the Registry of the International Criminal Court (ICC). Such actions don’t make headlines, but they have serious implications for how the ICC operates and how it relates to one of its key constituencies, victims of crimes. We have several concerns about how proposed reforms of the Registry might impact victims’ opportunities to engage with and be heard by the ICC.

The Rome Statute gives victims the right to participate in judicial proceedings that affect their personal interests, so long as this does not violate fair trial processes or the rights of the accused. Victim participation, along with victims’ right to reparations and opportunities to receive assistance and rehabilitation from the Trust Fund for Victims (TFV), can enable the ICC to engage victims and promote justice for them beyond the courtrooms of The Hague.

Victims’ opportunities to participate have of course been shaped by judicial decisions. (For several reports and comments on these developments, see the end of this post.) They are also affected by the Registry’s policies, and so the major institutional reform of the Registry – known as the “ReVision Project” – may have significant implications for victim participation. (Registrar Herman von Hebel has discussed this major restructuring, and FIDH has issued a thoughtful letter in response.)  While we can find no public document outlining the ReVision proposals, Registry officials have provided an overview to some civil society actors. Among other proposed reforms, the overview suggests that victim participation will be streamlined by merging two current offices (the Victims Participation and Reparations Section, or VPRS, and the Office of Public Counsel for Victims, or OPCV) into a single Victims Office, and legal representation for victims would come entirely or partly from within this office.

We wholeheartedly support efforts to make victim participation more efficient and effective. However, we are concerned that this reform may not take sufficient account of victims’ actual engagement with their representatives and Court officials or their own views on legal participation. As researchers working on different projects related to victim participation, we have examined these issues from empirical as well as doctrinal perspectives. Drawing on in-depth interviews with Court staff, victims’ legal representatives, and hundreds of victims in four ICC situation countries, we have several observations that might inform debates around victim engagement in general, and legal participation in particular.

Victim participation requires ongoing dialogue between the Court and victims.

Recognition of victims’ experiences and suffering requires contact and conversations with victims. This dialogue should enable victims to learn about the ICC, their right to participate, and details of judicial processes that concern them. It should also enable victims, when appropriate, to put forward their opinions, concerns, and interests.

We agree with the ReVision proposal to improve the coherence of the Court’s communication with victims, but we would emphasize that this engagement must be ongoing. Judicial processes and victims’ situations evolve, and so must opportunities for victims to become informed and to express their views. Victim representatives must be able to provide victims with up-to-date information, solicit victims’ views, and advance them through appropriate judicial and non-judicial channels.

ICC Registrar Herman von Hebel

ICC Registrar Herman von Hebel

One common complaint that we have heard from victims is that they do not know what the Court is doing on matters that concern them, such as the status of their application to participate, the timing of trials, or the opportunity to receive reparations. “The most important thing is that we want somebody from the Court to come here so that we can interact with them,” said one Ugandan victim (interviewed by Cody as part of a multi-country study of victim interactions with the ICC).

It is important that ICC staff and representatives create systems to disseminate information on judicial proceedings and other court-related activities on a regular basis. Doing so may require the Court to provide communication devices, such as radios or mobile phones, to representatives in affected communities and develop protocols for responding to victims’ concerns in a timely manner.

Victims’ representatives should be aware of potential insecurities, including the possibility for retaliation against victim participants. Representatives should also be able to help victims get attention from the Victim Witness Unit (VWU) should they be facing serious security and health threats, particularly if these arise from being victim participants.

In addition, representatives should be aware of the material needs of victims, and should help victims understand what assistance the Court can and cannot provide. In most cases, ICC staff who interact with victims should have a high level of cultural knowledge, training in working with survivors of violence, and experience working with vulnerable populations in the region. They should be able to speak of the work and mandate of the TFV, as well as the Court’s reparations process, while being careful not to unduly inflate victims’ expectations about reparations and assistance.

Victim participation requires independent representation. 

The ICC should establish processes to ensure the effective coordination of victim-related services across all sectors of the ICC, and, where appropriate, combine efforts to utilize common systems and mediate costs and any potential risks to victims. We support some of the ReVision Project’s recommendations to achieve these ends.  Continue reading

Posted in Assembly of States Parties, International Criminal Court (ICC), International Criminal Justice, Victim Participation | 2 Comments

Bringing Conflict into the Peace Versus Justice Debate

(Photo: Reuters)

Graffiti depicting Muammar Gaddafi during the 17 February Revolution (Photo: Reuters)

This article first appeared on the new blog Post-Conflict Justice which I encourage all readers to check out!

The so-called ‘peace versus justice’ debate has come to dominate the politics of International Criminal Court (ICC). A tremendous amount of ink and number of neurons have been expended in the attempt to answer the question: do ICC interventions help or hinder ‘peace’?

A gamut of hypotheses have been proffered with regards to the effects of the ICC. On the one hand, it is claimed that the ICC yields a net positive effect on ‘peace’ by marginalizing perpetrators, deterring potential war criminals and inducing parties to enter peace negotiations. On the other hand, critics insist that the Court’s interventions undermine peace by instigating continued violence and leaving belligerents with few options but to continue fighting ‘to the bitter end’.

While recent research continues to refine and test these claims against the empirical record, almost thirteen years after the establishment of the ICC, no one has managed to ‘win’ the peace versus justice debate. Those who were on one side of the debate are unlikely to have been swayed to the other. Instead, the debate has been deemed to have reached an impasse.

But the problem with the peace versus justice debate – and the source of its stagnation – is not the failure of scholars and observers to move ‘beyond’ it. Rather, the debate’s achilles heal is the fact that its starting point is misplaced.

The ICC and Peace Conflict

The ICC does not intervene in peace processes. Nor does it intervene in ‘peace’. Rather, the Court intervenes in the context of active or recently concluded conflicts. Of the eight situations in which the ICC has opened official investigations, six constituted ongoing violent political conflicts (Democratic Republic of Congo, Central African Republic, Uganda, Darfur, Libya and Mali) while the other two had recently expired (Kenya and Côte d’Ivoire). None had official peace negotiations occurring at the time that the ICC became involved.

Indeed, the ICC was created in such a way that it is predisposed to intervening in ongoing and active conflicts. The Court has a forward-looking, temporally limitless jurisdiction in its member-states and those states that have been referred to it by the UN Security Council. The record to date clearly suggests that states view the ICC as a useful, albeit selective, tool in context of the ongoing conflicts in which they are involved. And the growing expectation amongst global populations is that the ICC intervene as a ‘first responder’ when violent political conflict erupts.

The ICC does not intervene into situations of ‘peace’ or in ‘peace processes’. It intervenes in conflicts. It is thus misguided to assume that we can understand the effects of justice on peace if we leave conflict dynamics out of the picture.

But what would examining the ICC’s effects on conflict look like – and when does ‘peace’ come into the equation? Let us examine three interrelated and oft-neglected questions, with reference to the cases of Libya and northern Uganda.

A UPDF soldier (Photo: AP)

A UPDF soldier takes a break (Photo: AP)

1) How do ICC interventions affect how a conflict is understood?

It has been well-established that conflicts arise – and are perpetuated – by a quixotic, complex mix of economic factors (‘greed’) and socio-political factors (‘grievance’). Yet these causes are often neglected in the dominant narratives of conflicts in which the ICC intervenes. What matters is not why violence happened but that it did. Indeed, the causes of war are often conflated with the ICC’s targets. Put another way, within their respective conflict narratives, the reason there was war in northern Uganda or there was political violence in Libya was because of Joseph Kony and Muammar Gaddafi. Such ‘good versus evil’ discourses, which necessarily conflate specific personalities with the very causes of conflict, spawn predictable prescriptions: if only we could get rid of these actors by bringing them to The Hague or to their grave, the conflict would end. The strength of this narrative can be seen in the statements by ICC prosecutors and NGOs such as Invisible Children.

At the same time, and relatedly, ICC interventions can de-politicize violence by framing conflicts as a matter of humanitarian urgency rather than political failure. As with focusing on the particular ‘evil’ of individuals, de-politicizing violence distracts from an understanding of why political violence erupted in the first place and what dynamics fuel its continuance. The record is murky, but it is unlikely that, without addressing the causes and dynamics of war, a conflict can be resolved or transformed.

2) How does the ICC affect those belligerents and warring parties that it does not target?

The vast majority of attention from both scholars and observers of the ICC is on how the Court affects actors targeted for prosecution. In contrast, the effects of ICC interventions on those actors that are not targeted tend to be neglected. For the dynamics of war and peace, however, it matters just as much that a party is not targeted than that it is.  Continue reading

Posted in Conflict Resolution, International Criminal Court (ICC), International Criminal Justice, International Law, Justice, Libya, Libya and the ICC, Lord's Resistance Army (LRA), Peace Negotiations, Peace Processes, Uganda | 2 Comments

Scoping Out the Crime: Palestine, the Mavi Marmara and the ICC

Dr Russell Buchan joins JiC for this guest-post on the ICC Prosecutor’s decision to close its investigation of Israel’s attack on the Gaza Flotilla. Russell a Senior Lecturer in International Law at the University of Sheffield and the author of International Law and the Construction of the Liberal Peace

(Photo: AFP / Getty)

(Photo: AFP / Getty)

On 31 May 2010, a flotilla of vessels set sail with the express intention of delivering humanitarian aid to Gaza. They set out on the mission despite the fact that it meant violating a naval blockade that Israel had imposed against the Gazan coast in order to prevent war material from being delivered to Hamas fighters. Whilst the flotilla was in international waters, and anticipating that the flotilla was about to breach the naval blockade, the Israeli military intercepted the vessels. This occurred largely without incident. However several vessels, including the Mavi Marmara, the Rachel Corrie and the Eleftheri Mesogios/Sofia, resisted capture. In response, Israeli military personnel forcefully boarded these vessels. The violence that ensued was particularly severe on the Mavi Marmara, with Israeli forces shooting and killing 9 crew members and injuring at least 50 others. In addition, whilst the captured crew members were being ferried to Israel, they were subjected to considerable levels of physical and verbal abuse by Israeli forces.

Despite international pressure, Israel has refused to prosecute its forces for the alleged commission of international crimes or to surrender them to other states that are willing to conduct such trials. The Comoros, a small East-African state to which the Mavi Marmara was registered, therefore referred the situation to the ICC. As a result, the ICC’s Office of the Prosecutor (OTP) opened a preliminary investigation in order to determine whether the incident was admissible before the ICC. On 6 November 2014 the OTP announced that the preliminary investigation had been concluded and that, although there is a reasonable basis to believe that Israeli forces committed war crimes, no individual prosecutions would be brought because the situation is of insufficient gravity; namely, that the international crimes allegedly committed are not sufficiently serious to justify the use of the ICC’s limited time and resources.  In short, what this means is that the case is now closed. The OTP’s decision is likely to prove extremely controversial, for many reasons. In this blog I want focus upon the Prosecutor’s conclusion that the situation is of insufficient gravity and, in particular, challenge the OTP’s determination as to the scope of the situation to be considered.

In determining whether a situation is of sufficient gravity, the OTP must first define the parameters of the situation that is to be assessed. To put the same matter differently, what conduct can the OTP consider when determining whether or not the situation is of sufficient gravity? In the context of the current discussion the OTP determined that the situation included only those international crimes that were allegedly committed within the jurisdiction of the ICC. The OTP explained that although Israel is not a state party to the ICC Article 12(2)(a) of the ICC Statute confers jurisdiction where international crimes are committed on the territory (which expressly includes vessels) of parties to the ICC Statute. Thus, the OTP concluded that the ICC possesses jurisdiction over crimes committed on the Mavi Marmara (registered to the Comoros, a state party of the ICC), Rachel Corrie (registered to Cambodia, also a state party) and Sofia (registered to Greece, also a state party). Accordingly, the Prosecutor found that the situation is limited to events that occurred on these vessels and that it is within these parameters that the gravity threshold must be applied.

Crucially, however, the OTP decided that the situation did not extend ‘to any events that, while related to the events on board these vessels, occurred after individuals were taken off those vessels’ (paragraph 143); notably, the physical and verbal abuse perpetrated by Israeli forces against crew members of the Flotilla as they were being ferried back to Israel. As a result of narrowing the situation to only those events that occurred on the Mavi, Rachel and Sofia, the OTP concluded that the situation was of insufficient gravity.

This is a very narrow interpretation of the ICC’s jurisdiction which, despite satisfying a literal reading of the ICC Statute, is wholly inconsistent with its object and purpose, namely to end impunity for those that commit international crimes. What the OTP is essentially saying is that individuals are protected by the ICC Statute when on a vessel that is registered to a party of the ICC but if they are physically apprehended by a non-state party and forcibly transferred to a different vessel, then that protection is lost. The upshot of the OTP’s decision is that if Palestine was to become a member of the ICC Statute then Israel could forcibly transfer Palestinians from occupied territory (which is actually prohibited by Article 49 of the Fourth Geneva Convention 1949) in order to evade the provisions of the ICC Statute and circumvent the protections offered by the ICC.  This is a regrettable conclusion that is at odds with the spirit of the ICC Statute. Continue reading

Posted in Admissibility, Gravity, ICC Prosecutor, International Criminal Court (ICC), Israel, Palestine, Turkey | Tagged , | 3 Comments

The Lesson the ICC Shouldn’t Learn in the Wake of Kenyatta

An IDP camp in Kenya (Photo: AP)

An IDP camp in Kenya (Photo: AP)

This article was originally posted at Justice Hub.

The long-dithering case against Uhuru Kenyatta at the International Criminal Court (ICC) finally came to an unceremonious conclusion this past week. In a long anticipated move, the Prosecution announced its case against the Kenyan President was too weak to proceed.

Over the next few days and weeks, two broad story-lines will emerge in wake of the Kenyatta case collapse: one, that prosecutors at the ICC really messed up their investigations in Kenya and need to learn from their mistakes; and two, that Kenyatta has written the political manual on how to win an election, stay in power and simultaneously quash an ICC case against a sitting head of state. But there is also a lesson that the ICC shouldn’t learn, a lesson that poses a far greater risk to the project of international justice than the Court’s investigation techniques or prosecutorial strategies: that the ICC should stop targeting both sides of a conflict.

There is little point in denying that ICC justice is highly selective. Most critics focus on situation selectivity – i.e which states are chosen for investigations and which aren’t (hence the debate on the Court’s focus on Africa and not the rest of the world). But a more nuanced pattern of selectivity appears when examining the selection of cases within situations under investigation by the ICC.

To date, the Office of the Prosecutor (OTP) has opened investigations into five situations after being invited to do so by the state in question – Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali. In each instance, the Prosecution has focused exclusively on non-state actors (i.e. rebels) and the referring government’s adversaries. Not once has the OTP targeted a leader or government official from any of these states.

The opposite story can be seen in the context of referrals of situations from the United Nations Security Council. The Council has exercised its power to refer situations to the ICC on two occasions: Darfur in 2005 and Libya in 2011. In the wake of such referrals, the OTP has focused almost exclusively on government actors and the Security Council’s enemies.

This brings us to the curious case of Kenya. When the OTP opened an investigation into the 2007/08 post-election violence, it had been neither invited by Nairobi nor requested to do so by the Security Council. Instead, the Prosecutor exercised his ‘proprio motu’ powers, opening a case into a member-state of the ICC ‘upon his own volition’. It was a bold move and not everyone believed the Court was mature – or secure – enough to ‘do things on its own’.

But the ICC had been under pressure to tackle the perception that it was an institution that would only ever mete out selective justice and would always side with governments and the Security Council in their political missions to discredit, delegitimize and dismiss their opponents. As a result, the OTP targeted not one side of the political conflict in Kenya, but both.

(Photo: AP)

(Photo: AP)

Scholars and observers are still trying to sort through the whirlwind of political developments and manoeuvres that came next. Crucially, the two opposing sides joined forces and vowed to run the country together. The resulting Jubilee Alliance won the 2013 elections. In a remarkable twist of fate, Kenya now had a President and Vice President charged by the ICC for crimes against humanity.

Kenyatta and his Vice President, William Ruto, successfully crafted a narrative that pitted the ICC and its supporters as neocolonial tools being wielding by the powerful West against a vulnerable African continent. Leaders across the region – including those that had benefitted from the ICC’s interventions in their own states – raced to the proverbial political microphone, eager to demonstrate to Kenyatta and Ruto that they were their strongest allies against the unholy and unwanted ICC.

In the meantime, justice became essentially obsolete. The storylines were about Kenya (and ‘Africa’) versus the ICC. Very few asked the very simple but crucial question: how will justice be served for the dead and displaced in the wake of the post-election violence? The question had already been answered: it wouldn’t. Six years after violence erupted and left 1,200 dead and 200,000 displaced, one case of murder has been investigated. There is no indication that any other crime, of the thousands that were committed, will ever be investigated or that the perpetrators will be brought to justice. But in the dominant narrative, justice was not a goal for those who perished or survived the post-election violence. Rather, justice could only be served if the unfairly targeted victims of the ICC’s grandeur – Kenyatta and Ruto – were left alone. If we are to believe the hype, the collapse of Kenyatta’s case is the justice that has been delivered to Kenya. Continue reading

Posted in International Criminal Court (ICC), Kenya, Kenya and the ICC | Tagged , | 2 Comments

(Un)Reasonable Dissent? The Lubanga Trial Comes to Close

Thijs B. Bouwknegt joins JiC for this first-hand account and analysis of the decision by Judges at the International Criminal Court (ICC) to uphold the verdict against Thomas Lubanga Dyilo. Thijs is a legal historian and researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam.

Lubanga attending his Appeal Chamber ruling (Photo: ICC)

Lubanga attending his Appeal Chamber ruling (Photo: ICC)

“All rise, the International Criminal Court is now in session. Please be seated.” Thomas Lubanga Dyilo, dressed in a light blue dashiki, put on his headphones, wringed his hands, blinked his eyes, kicked back, sat up again and then rested his head into his hands. He was nervous. Final judgement day had arrived. Finally. Over two and a half years after he was convicted for three war crimes, the International Criminal Court’s Appeals Chamber convened on a cold Monday afternoon to rule on the appeals of the former Congolese politician-styled warlord. His trial was flawed and unfair, he argues. It runs contrary to the Prosecution’s appeal. They wanted his “manifestly disproportionate” 14-year sentence raised, without explicating with how much.

It was an historic day for international justice. This was the first time the ICC signed off an appeals judgement. But interest has waned, as if the world has forgotten about Lubanga and the endemic conflicts in the east of the Democratic Republic of the Congo (DRC). Empty seats remained in the public gallery, not even half of it to be filled with court staff, a handful of devoted journalists and a single NGO observer. Lubanga himself did not invite his family for the occasion, like most other defendants would do on this type of day. Also shining in absence were his victims. The only Congolese present represent the diplomatic corps. “Is this justice seen to be done?” asked a journalist. “Come on, it is appeals,” replies another. On Twitter, trial observer Iva Vukusic, was “wondering what victims get from listening to judgements. Unless you follow the trials regularly, this stuff is incomprehensible.”

And indeed, 3179 days after Lubanga was brought to The Hague, the trial that dealt with child soldiers in the mass violence that plagued the Congolese Ituri region in the early 2000s, ends with an anti-climax: a sober, legalistic and collegial review of the trial chamber’s first ever verdict and sentence. Flanked by four colleagues, Judge Erkki Kourala monotonously read out a summary of the 193-paged appeals judgement and 50-paged sentencing judgement. They took a distanced view; they would not assess the evidence again, but would “only intervene if the Trial Chamber’s findings were unreasonable.” Then, after the chamber dismissed Lubanga’s request to consider three new pieces of evidence, the former UPC leader overheard the rulings on his seven grounds of appeal, alleging abuse of his fair trial rights, a prejudiced Prosecutor and the lack of clear facts underlying his prosecution.

Point-by-point, Kourala listed how Lubanga had not substantiated or sufficiently argued his complaints, only to rule that the trial chamber had not acted beyond the limits of its discretion and that its findings were “not unreasonable.” All grounds of appeals were rejected, including those of the Prosecution, and the verdict and sentence rubber-stamped. But only by majority. Judge Sang-Hyun Song, only disagreed “partly” with his colleagues, on a legal note. According to the ICC’s President, Lubanga should have been convicted and sentenced for one crime of child soldiering and not separately for three ways of committing it [conscripting, enlisting and using children]. Only the Latvian judge dissented from the majority on fundamental grounds.

If it was up to Judge Anita Ušacka, Lubanga should not have been convicted at all. “In my view, the evidence relied upon by the trial chamber to convict Lubanga was not sufficient to reach the threshold of beyond any reasonable doubt,” she explained. “In practice they have applied a lower standard,” because, according to Ušacka, “the trial chamber was motivated more by the desire to create a record of events, rather than to determine the guilt of [the] individual to the standard applicable in criminal proceedings.” On that note, she expressed her hope “that future prosecutions of these crimes at the Court will adduce direct and more convincing evidence and preserve the fairness of proceedings, which lies at the heart of criminal prosecutions and should not be sacrificed in favour of putting historical events on the record.”

Judge Anita Ušacka enters the Appeal's Chamber at the ICC (Photo: ICC)

Judge Anita Ušacka enters the Appeal’s Chamber at the ICC (Photo: ICC)

Ušacka’s dissent was a sharp indictment against the court’s fact-ascertainment dilemmas. She highlighted two well-known deficiencies in this case: insufficiently detailed charges and the absence of the requisite element of crimes. Regarding the indictment, she said it was mainly based on testimony of nine alleged child soldiers – whose testimony was found to be erratic – but that the “remainder of the allegations regarding a pattern of crime did not contain reference to a single identified victim, while the dates and locations were framed in unacceptably broad terms.” For five years, Lubanga had “no meaningful opportunity to challenge the evidence at trial” which was based on these nine individual cases, “yet he was ultimately convinced of the unspecific charges of a pattern of crime.” This approach has broader implications warned Ušacka, as “ultimately, even the factual conclusions of the Trial Chamber suffered from the same level of imprecision.” Continue reading

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