“The two generals have been accused of ordering human rights abuses during the transition period in the late 1990s. An investigation by the National Commission on Human Rights (Komnas HAM) in 2003 deemed Prabowo and Wiranto responsible for the 1998 May riots owing to their capacities as former commander of the Special Forces Command (Kopassus) and chief of the Indonesian Military (TNI) respectively.”

As supporters and critics of the ICC are quick to point out, the Court would only be able to take on cases of atrocities by Indonesians or on Indonesian territory after the date of Indonesia’s ratification. So the fates of Wiranto and Subianto in Indonesia wouldn’t be those of Kenyatta and Ruto in Kenya. Yet, according to the author,

“several politicians warned the government against ratifying the Statute, over concerns that it could be used to thwart the presidential ambitions of Prabowo and Wiranto. ‘Are we willing to be humiliated by the international community by allowing our generals to be prosecuted?’ Rear Admiral Susanto of the National Resilience Institute (Lemhanas) said recently.”

The contentious issue of subjecting Indonesian military officials to international justice is not new. Widely considered responsible for atrocities in East Timor in 1999, Indonesian military elites have long leveraged concerns over regional and domestic stability and a global lack of political will to ensure their impunity.

Wiranto’s Impunity 

The case of General Wiranto speaks directly to the challenges of holding powerful figures accountable, whether in international or local courts. He is a former Commander of the Indonesian Armed Forces (TNI) who also (unsuccessfully) ran for the Presidency in 2004 and is credited with reforming civil-military relations. In his position as Commander, he has been blamed for the failure to provide security during East Timor’s 1999 “popular consultation” on independence. The vote itself was peaceful, but pre- and post-vote violence was characterized by mass murder, torture, assault, forced disappearances, mass forcible deportations, looting, destruction of property, a scorched earth campaign, rape and other forms of sexual violence. Over 1,000 East Timorese were killed and approximately 600,000 (at least three-quarters of the population) were uprooted from their homes. The violence was perpetrated by local pro-government militias and paramilitaries who were armed, funded, trained, and directed by the Indonesian armed forces and there is a great deal of evidence to support the claim that Indonesian troops directly committed many of the atrocities.

Investigatory reports by both a UN Commission of Inquiry and Indonesia’s own human rights body (Komnas Ham) identified Wiranto as the individual with command responsibility for the crimes committed in East Timor in 1999. He was not indicted by Indonesia’s Ad Hoc Court for crimes in East Timor, which was largely a sham tribunal.  East Timor’s hybrid tribunal issued an indictment (2003) and arrest warrant (2004) for him, but both the UN and Timorese political elites later disassociated themselves from the case.  Indeed, there was little political will to prosecute Indonesian military elites, and the UN-mandated hybrid court in Timor had no ability to extricate the accused from their protected status in Indonesian territory. Both tribunals were criticized for prosecuting mostly mid-level offenders and doling out weak sentences.

The United Nations decided after the publication of the Indonesia’s human rights report that, in lieu of an international tribunal, it would give the Indonesian government an opportunity to ensure accountability for crimes committed by their own military. But, the UN Human Rights Council threatened the intervention of an international tribunal if Indonesia did not immediately and decisively takes steps to investigate TNI involvement in the atrocities. The threat of an international tribunal never materialized despite the impunity gaps left by the Indonesian and Timor tribunals and recurring pleas from civil society for international judicial intervention. Moreover, in 2005, Indonesian and Timorese elites agreed to a “Truth and Friendship Commission” that all but assured impunity for those most responsible. Thus for Indonesia, military elites like Wiranto, and victim communities in East Timor, the promise of international justice has been false.

Significance of ICC and Indonesia

Turning back to the ICC, it’s important to note that Indonesia participated in Rome Treaty negotiations where it declared support for the ICC and intention to eventually ratify. In 2004, Indonesia adopted a National Plan of Action on Human Rights that stipulated its intent to ratify the Rome Statute in 2008. Ratification has the support of some parliamentarians and civil society, with the latter working to clarify the technical and political implications of ICC support.

Indonesia’s ratification would set an important precedent for the region, as Asia is underrepresented among ICC States Parties. (Only 9/24 have ratified, according to the Coalition for the International Criminal Court).  It’s unlikely that the international community will ever push to close the impunity gap for Indonesian crimes in East Timor, but Indonesia’s ratification of the Rome Statute would be step in the right direction and, perhaps, contribute to broadening the scope of the ICC’s reach in Asia.

Every single day, we are bombarded with data. The increasing complexity of our world and of the challenges we face have made numbers somewhat silly. We throw them at problems: this many billion dollars for that project; this many million people forced to flee; this many thousand victims in that conflict. The relatively new and exciting field of data visualization has emerged in response to this proliferation of complexity, seeking to make sense of our data-rich world. But it’s not about graphs, charts or tables. It’s about merging design and function and appealing to our ability to visualize complex sets of data. According to one of its proponents,

The main goal of data visualization is its ability to visualize data, communicating information clearly and effectivelty. It doesn’t mean that data visualization needs to look boring to be functional or extremely sophisticated to look beautiful. To convey ideas effectively, both aesthetic form and functionality need to go hand in hand, providing insights into a rather sparse and complex data set by communicating its key-aspects in a more intuitive way.

Of course, data visualization isn’t entirely new to international criminal justice. Anyone who has seen former ICC Prosecutor Luis Moreno-Ocampo present can attest that he regularly used visualization software to map out alleged crimes in places like Darfur. Still, as I recently argued, very little has been done to communicate the work of the ICC in an effective and accessible manner. And despite being a dynamic and data-rich realm, international criminal justice has largely escaped the world of data visualization. That is, until now.

According to McLaughlin:

There is wide awareness, though little true understanding, of the work of the international criminal tribunals.

International prosecutions of high-ranking civilian and military leaders, including former heads of state, on charges of crimes against humanity, war crimes and genocide, represent for many the ultimate condemnation of these individuals’ past actions and a measure of their fall from power. Yet, despite the tribunals’ grasp on the popular imagination, they are the subject of significant misconceptions and confusion. Much of the media coverage dedicated to their work remains superficial, at best, and largely muddles over key distinctions between various tribunals, past and present. Conversely, the more informed scholarship is largely confined to specialty publications that remain inaccessible to most. In truth, many lawyers and non-lawyers alike lack a clear understanding of the role and functioning of these increasingly-pivotal international institutions.

This publication seeks to redress this knowledge gap by providing well-researched and accessible information for those wishing to more fully understand the international criminal tribunals and the conflicts over which they have jurisdiction. An informed public is an engaged public – and the issues that animate these tribunals, including delivering justice for victims of some of the world’s worst atrocities, are too significant to be discussed solely by a small cadre of international criminal law specialists.

Notably, this publication was created in partnership with graphic and information designers so as to reach a broader public. The designers’ visualizations present information regarding the tribunals and their underlying conflicts in a direct and accessible manner to a wide range of viewers, including those without a legal background. Beyond this democratizing function, information visualization also serves to reveal important data and trends that might otherwise go unnoticed in a more conventional format. Ideally, the following information, which is current as of January 2013, would be integrated into a continually updated interactive webportal dedicated to engaging a global public on issues of international justice.

In sum, this publication aims to facilitate a broader discussion of the international criminal tribunals’ notable accomplishments, as well as ongoing shortcomings.

And it certainly does.

Perhaps the best known example of data visualization is David McCandless’ ‘Billion Dollar-O-Gram‘ which illustrates the relative cost of everything from the war in Iraq and Afghanistan and response to the global financial crisis to the amounts spent every year on erectile dysfunction and video games. McLaughlin takes a page out of McCandless’ book in mapping out the cost of international criminal tribunals against a host of other expenditures.

As readers will know, international criminal law has been consistently criticized for being too expensive. However, as I have previously argued (see here and here), the cost of institutions like the ICC is peanuts compared to the money spent on things like Hallmark cards and the budgets of baseball teams. McLaughlin helps us visualize this reality by comparing the cost of international criminal justice to transactions like the sale of the Los Angeles Dodges and the total cost of Wall Street bonuses. I know what I’d rather see money spent on.

I encourage all readers to download the whole report, to share it with students and send it to colleagues. Thanks to McLaughlin, international criminal justice a little more accessible and a lot more cool.

The Court, a documentary by Michele Gentile and Marcus Vetter.

To many, if not most, the International Criminal Court (ICC) still looms like an impenetrable institution where the decisions made and actions taken in The Hague subsequently reverberate around the world. This isn’t to say that it’s a murky world but rather that it remains a rare and privileged opportunity to glimpse how decisions at the Court are made, what life in the halls of the world’s first permanent international criminal tribunal is truly like, and what really makes the Court’s staff – from the judges and prosecutors to the investigators and defence lawyers – tick.

Remarkably, over a decade after its creation, there have been very few efforts to shed light into the turbulent political and legal world of the ICC. There is no ethnography of the Court. There isn’t even a biography of the Court’s first Prosecutor, Luis Moreno-Ocampo. As a result, very few people understand how the International Criminal Court (ICC) truly functions. Three years after dedicating much of my time and energy to this subject, I still don’t.

Given this, my curiosity was piqued when I was told by a friend about a new documentary entitled ‘The Court’ which she had seen screened in The Hague. To be honest, though, despite being intrigued, I was also quite skeptical. After all, many of the films made about the ICC to date have tended to be triumphalist and advocacy-oriented. So asked my friend the inevitable question: “When you watched the documentary, did you feel it shed a positive or negative light on the ICC?” Her response could not have been more promising: “I’m really not sure.”

‘The Court’ does many things effectively. Directors Michele Gentile and Marcus Vetter brilliantly and brutally juxtaposes the horrors of violent political conflict with the sterility of international criminal justice. In one frame we witness a woman being carried, a massive flesh wound on her thigh; the next, we watch Moreno-Ocampo preparing coffee and biting into a pastry. We witness a child being ripped apart from his family before shifting to scenes of banal Court proceedings. We hear the tortured cries of a Palestinian man who has just seen his daughters killed in an Israeli air raid before the film cuts to Moreno-Ocampo leaning back in his chair and pondering out loud whether or not he can investigate alleged crimes committed in Palestine.

One might criticize the film for how it decontextualizes the violence and brutality portrayed throughout the film. It is rarely clear against whom the violence portrayed is being waged, who the perpetrators are and where the violence is being done. Yet these scenes are also a subtle reflection of the way in which international criminal law itself decontextualizes the causes and dynamics of violence and conflict.

But, above all, what the ‘The Court’ offers is a unique glimpse into the life and work of one man: Moreno-Ocampo himself.

During his tenure as ICC Prosecutor, Moreno-Ocampo was a lightning rod for controversy. He was dogged by allegations of being overtly selective in his cases, for playing fast-and-loose with the law and for often speaking off the cuff, saying the wrong thing at the wrong time. He was also vociferously defended as having ‘put the ICC on the map’ of international relations, of establishing a permanent interest in in the functioning of the Court, of making the ICC a relevant institution.

Yet very few know what Prosecutor Moreno-Ocampo was truly like, how he made decisions and how he confronted the political challenges he faced. ‘The Court’ paints Moreno-Ocampo as someone who could more accurately fall somewhere between the person that his harshest critics and his greatest champions have made him out to be. On the one hand, we see in him a sincerity and integrity towards the principle that he must serve justice and victims by faithfully adhering to the law. We see that the ICC is not his employer but his mission. On the other hand, we see Moreno-Ocampo chastised for less-than-professional behaviour during the Lubanga trial by Judge Adrian Fulford and witness an embarrassing moment when he is corrected by a young staff member over his view that childhood is a human right under international law.

Yet more striking than the moments in which we witness Moreno-Ocampo’s gaffes and his convictions are those scenes where we witness how human he is. We watch him drive himself to work, at one point expressing frustration at turning down a street blocked by a garbage truck and, in another, hanging up on Deputy Prosecutor Fatou Bensouda after being warned by police officers not to drive while speaking on his cellphone. We watch him respond to numerous media requests alone, without guidance or a team of staff providing speaking points. We even watch him play Angry Birds. More than anything, we witness his struggle to juggle a life in which he is being pulled in different directions by a diversity of actors with divergent interests. Sure, how Moreno-Ocampo deals with this struggle isn’t always flattering. But we see to what extent one man defined the first nine years of the ICC. Moreno-Ocampo says at some point in the documentary: “I am not the actor in your film.” Yet from his perch as the ‘world’s prosecutor’, he had to invent much of how the Court functioned from scratch and, in doing so, forever shaped how it would be viewed by the outside world.

Towards the end of the documentary, Moreno-Ocampo tells the film-makers: “You understand now the bigger idea.” In truth, after watching ‘The Court’, it is unlikely that anyone would understand “the bigger idea” or international criminal justice. One of the film’s greatest strengths is that it sheds neither a positive nor a negative light on the Court. But we can better understand the tenure and life of a man who was, more than anyone else, the face of international criminal justice for almost a decade. In doing so, ‘The Court’ makes a significant contribution to our knowledge of the politics of international criminal justice. For that, this documentary deserves acclaim.

The ICC’s website is its public face. Scholars, activists, and interested laypeople — many who live in the situations under investigation — rely on it as their primary source of information about the Court’s activities. So it is imperative that the Court update its website in a timely fashion.Time and again, however, it does not…The ICC always emphasizes the need for effective outreach. It should start by keeping its website up to date.

I could not agree more. Over the last few years, I have experienced and been told countless times how poor and inaccessible the ICC’s website is. It is shockingly bad. Documents are incredibly difficult to locate. On days when important rulings are issued and when the site needs to be running smoothly so that people (especially in affected countries) can watch proceedings and see justice done, it has simply shut down. And it is not only the interested observer and academic who have a hard time with the site; I have heard that ICC staff often can’t rely on the website either.

All of this begs the question: what has prevented the Court from changing its website? An obvious answer would be financial resources. The Court has had its budget tightened over the last few years with almost no year-to-year growth, despite an increasing caseload. Still, at some point updating the website simply has to be worth it. Not doing so will bare costs and consequences – and already is.

As I have argued recently in the case of Kenya, the ICC is losing the ‘perception game’. To some extent, this is inevitable. The Court simply doesn’t have the resources to counter the messaging machine of President Uhuru Kenyatta and Vice President William Ruto. Their skilful messaging of the indictments against them helped them to achieve victory in Kenya’s recent elections. But the ICC could certainly do a lot more to counter their messaging through online communication strategies.

In my view, the question of the ICC’s bias against Africa has also been dealt with quite poorly by the Court. Again, the Court doesn’t have nearly enough resources to counter this messaging. But repeating the same messages about the number of African states parties, the ICC being a “Court for Africa”, and so on, hasn’t helped convince skeptics. Does anyone who originally believed that the ICC was somehow biased against Africa not think so today? Probably not. The perception that the Court is neo-colonialist and anti-African has burgeoned and solidified. Now when the ICC opens an official investigation into the first non-African state it will likely be seen as a political response to the accusations against the Court.

In short, the lack of a responsive, provoking and accessible web communication strategy by the ICC gives space for powerful actors to undermine the Court. It may be inevitable that these actors win when it comes to traditional media, like newspapers, radio and TV, where money rules. But it shouldn’t be so easy for them when it comes to new social media platforms, where money rarely dictates what stories carry the day.

While it is important to understand the limitations of what a heavily constrained Court can do, the time is ripe for a far more active communication strategy on the part of the ICC. The material is there: the Court and its work are exciting – enough for a TV show to be made about it! Not a day goes by that it isn’t in the news. But the Court does not do enough to communicate its work in an accessible manner, especially within the world of social media. A coherent, creative and interest-grabbing web presence (not just on the website but on Twitter and Facebook) would be a (very) cheap and effective way to help counter some of the messaging that seeks to undermine the Court. These mediums could become fora of interaction and learning. The benefit is obvious: the creation of a loyal and informed legion of supporters.

The Court’s website is its portal to the rest of the world. It should be easily accessible, interactive, and user-friendly. It should be a place that the most active observers and practitioners can rely on and it should be a place where anyone with an interest can learn about the ICC. As it stands, the website too often turns people away, undermining the ultimate interests of the Court and of justice.

Kenyan President Uhuru Kenyatta during meetings in London last week (Photo: WPA Pool/Getty Images Europe)

International criminal justice has had its share of bizarre moments. We’ve seen seemingly untouchable indictees turn themselves in to foreign embassies and request to be sent to The Hague. We’ve seen enemy indictees unite to win elections. We’ve seen indictees try anything and everything to get the International Criminal Court (ICC) off their backs. Until last week that is, when Kenyan President Uhuru Kenyatta took it to another level altogether.

It all started in a rather out-of-context context. ICC Prosecutor Fatou Bensouda was giving her six-month briefing on the status of investigations in Libya to the UN Security Council. As is tradition, all Security Council member states then had an opportunity to respond. Most of it was largely the compulsory and dry commentary that makes good snoozing material for even the most fervent followers of the ICC. But then came Rwanda’s Ambassador to the UN, Eugene-Richard Gasana, turn. And he let loose:

…international criminal justice needs to be independent from political interference and to uphold the principle of sovereign equality of states. Needless to say that Rwanda, as many other UN member states, does not believe that the ICC lived up to this aspiration…

…In this regard, even the signatories of the Rome Statute have recently expressed concerns on that Court. I may recall the note verbale dated Thursday 2 May 2013 addressed by the Kenya Mission to the Security Council, containing a compelling case against the methods of work of the Office of the Prosecutor, on the Kenyan cases. This was also pointed out by a judge of the ICC, who recently resigned.

In that respect, Rwanda hopes that the Security Council will soon table this issue, raised by a UN member state, on its programme of work, with a view to addressing the growing concern of member states, including signatories of the Rome Statute.

It was on. Again as per tradition, Bensouda had the opportunity to reply to any and all comments from members of the Security Council. Remember, this was a briefing on the situation in Libya – not Kenya. But Bensouda focused her entire response on  Gasana’s remarks:

“Mr. President while today this Council is not discussing the situation in Kenya, I find myself compelled to set the record straight with regard to the remarks made by His Excellency the Permanent Representative of Rwanda…

…On the basis of the Permanent Representative of Rwanda’s statement I must surmise that the information contained in Kenya’s letter to this Council is unfounded and incorrect. It is a backdoor attempt to politicize the judicial processes of the Court. The letter referred to by the Permanent Representative of Rwanda has not been transmitted to us. We therefore reserve our right to respond to it in detail in due course and we hope we will be given that opportunity once it has been transmitted to us.

Fatou Bensouda speaking at the UN Security Council (Photo: UN)

Of course, while this was happening, no one really knew what letter was being discussed. So the next step was to figure out what exactly this mysterious ‘note’ from Kenya contained. David Bosco had the scoop on what turned out to be a rambling request to the UN Security Council to terminate the ICC’s cases against Kenyan President Uhuru Kenyatta and Vice President William Ruto. Of course, the letter tapped into all of the predictable tropes about the ICC threatening peace, security and democracy in Kenya and beyond. Ironically the letter also stated that it was not trying to interfere with the ICC’s work:

This delegation wishes to reiterate that we are not in any way interfering with the conduct of the cases before the Court. To the contrary the Government of Kenya will continue cooperating with the Court and being a State Party to the Rome Statute [and] is cognizant of the obligations placed on it.

But the bizarreness didn’t stop there. As the story grew, both Ruto and Kenyan Attorney General Githu Muiga both disowned the letter (see also Kevin Heller’s analysis here), perhaps because of how misplaced a move it really was.

The letter has made Kenyatta look extremely foolish. While he did not author the letter, Kenya’s UN delegation is his mouthpiece on the world stage and he ultimately bears responsible for the actions and decisions of his delegation at the UN. Moreover, Kenyatta can’t be the one who requests that his own case be thrown out. As Makau Mutua observes:

An indictee like Mr Kenyatta can’t sit in judgment of himself. The equivalent would be throwing open the doors to Kenya’s police holding centres and letting all suspects go scot-free.

Kenyatta and Ruto were indicted for their role in the 2007-08 post-election violence in Kenya (Photo: Uriel Sinai/Getty Images)

Above all, the letter was a bone-headed move for one simple reason: it is impossible for the UN Security Council to ‘terminate’ cases at the ICC. While Article 16 of the Rome Statute allows the Security Council to defer an ICC investigation or prosecution for twelve months (renewably), Kenya has already – and unsuccessfully – attempted to convince the Security Council to do so. The letter did not attempt to hide this fact, stating that: “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case in The Hague without much further ado.” But as one UN diplomat rightly observed: “The letter from the Kenyans is slightly bizarre because they are actually asking the Security Council to do something that it has no authority to do.”

At the same time, there are few worse options for bringing such a letter to the attention of the Security Council than Gasana. As a non-member state of the ICC that has been very vocal about the Court’s bias against Africa, Rwanda’s support for international criminal justice – and the ICC in particular – has been precarious at best. Just a few short weeks ago, Rwanda worked feverishly – and sadly succeeded – in preventing any mention of the importance of the ICC for issues of peace and security in Africa.

So what does all of this mean for the ICC? While Bensouda probably responded too quickly and defensively in going after Gasana, it is also true that anything that makes Kenyatta look desperate and foolish makes the Court look good. And after the controversial resignation of a Judge in the Kenya cases, meetings between Kenyatta and UK PM David Cameron in London, and amidst increasing evidence that the Court is losing the ‘perception game’ in Kenya, the Prosecution could use some good news.

In the end, it isn’t clear what, if anything, will come of all this. But the Kenyan situation appears to be getting messier by the day and, as Richard Dowden puts it, it seems that “a major train smash is on the way.”

(Photo: speakingmytruth.ca)

Even the greatest of transitional justice fans might be excused for not knowing what atrocities Canada’s Truth and Reconciliation Commission seeks to address. In fact, until recently, the atrocities in question were sadly unknown even to most Canadians. Thus, in an address on Friday evening to the TRC national event, ‘Honorary TRC Witness’ and former Prime Minister of Canada Paul Martin voiced the question that many Canadians have not had the courage to ask: Why were Canadians so long unaware that their government had, for a period of over 100 years, compelled 150,000 Aboriginal, Métis and Inuit children to attend residential schools, where they lost their identities, their culture, and their language, and were subjected to physical, sexual, and psychological assaults of the most appalling nature?

Canada’s ‘Indian’ Residential Schools are, as Martin and current Prime Minister Harper have acknowledged, a deeply shameful part of the country’s past. And yet few knew of the schools’ existence, let alone the colossally destructive impact that they had on Canada’s first peoples, until very recently, when in 2006, class action lawsuits launched by survivors of the school systems were settled by the Federal government and the churches that operated the schools. The $1.9 billion settlement agreement entered into by the federal government and the churches mandated the creation not only of the TRC, but also an independent assessment process and a common payment claims process wherein former students could receive direct financial compensation for their experiences at the schools.

At the Montreal TRC event, former Prime Minister Martin, a strong advocate for Aboriginal rights and education, did not hold back in employing legal concepts to describe the effects of the schools. This forced assimilation of Aboriginal children and youth, he said in a well-publicized address to survivors, entailed “cultural genocide”.

Some may counter that while Raphael Lemkin did indeed formulate the concept of cultural genocide, the Genocide Convention that he inspired did not ultimately include this concept; later attempts to enshrine the idea into indigenous rights conventions were similarly defeated. The intent to destroy ethnic and racial groups lies of course at the heart of the Genocide Convention. Few who attend Canada’s TRC hearings would deny that evidence of the destructive impact of the policy on Aboriginal groups—if not necessarily evidence of a government intent to destroy– is being systematically documented by the TRC.

A hockey team from a residential school in Maliotenam, Quebec, in 1950 (Photo: Archives Canada / PA-212964)

Government planes flew into remote Aboriginal villages without notice and departed mere minutes later with all of the village children on board, heading to new lives at the residential schools. Children as young as five were severely beaten for speaking their native language at the schools, or for refusing to eat food that was completely foreign to them. Students taken from their parents and who returned home up to twelve years later were completely changed and unable to communicate with their families. Many other children never returned at all, with at least 3,000 of them dying of disease or during ill-fated escapes through wintry northern landscapes. Young people grew up in the schools without ever receiving a hug or words of love or kindness from a parental figure. The underfunded system of ‘schools’ was staffed by unscreened and untrained teachers and guardians, a frightening number of whom regularly sexually molested and physically assaulted the children. Corporal punishment and sexual abuse in the schools was so horrific that it drove many former students to alcohol and drug abuse and, in many, cases suicide.

Variations on these personal narratives were tearfully recounted by dozens of witnesses at the TRC’s latest hearings. Some now elderly former students were publicly telling their story for the first time in their lives. Most had learned to repress memories of their years at the schools, and many had never shared their horrific pasts—even with their own family members.

The real truth regarding Canada’s residential schools, it would seem, was known until very recently only to the victims and the perpetrators. This TRC thus faces unique challenges. It must seek out the truth regarding these schools, and reveal it to a Canadian public — many Aboriginal people included—that has no knowledge of what happened to past Aboriginal generations. Public education in a context in which so few know even the most basic of details of the atrocities is a formidable task.

For this reason, the risk of traumatization and retraumatization— concepts so familiar to students of transitional justice—is also particularly high for this TRC. Learning the truth, so long buried and so rarely discussed, risks traumatizing many children and grandchildren of former students. Anyone who doubts this real risk should listen to the tears of one woman who testified last weekend. Her gradual realization of the horrors of the schools attended by her parents sent her into a six-year long breakdown that has endured since the TRC commenced its work.

Tiles commemorating the victims of Indian Residential Schools (Photo: ProjectofHeart / ICTJ)

Chief Commissioner of the TRC Justice Murray Sinclair acknowledged at the hearings that the second component of its mandate– reconciliation– might be slow in coming. And he emphasized that reconciliation did not necessarily require forgiveness. For one thing, he emphasized, forgiving a government or a church, much like forgiving an enemy nation, is unfeasible for most.

This TRC is thus different from many of its more famous TRC cousins, but is at the same time inspired by the best practices of TRCs the world over. The details both big and small of last week’s national event were truly inspired, and indicative of a real intention to acknowledge the past and support the survivors, as well as to commence the ever-elusive process of reconciliation.

‘Tear tissues’ were placed strategically and distributed by volunteers throughout the venue, and were used by the boxful— so much so, that the Commission intends to collect and burn the tear tissues used at its events in a symbolic attempt to move beyond the sorrow. Simultaneous translation of survivor testimony in five different languages– Mohawk, Cree, and Innu among them—was offered, and the public testimonies were streamed live over the Internet to witnesses in 24 countries over the course of the weekend. Those who preferred to testify privately could secure appointments of up to an hour-and-a-half to have their statements privately recorded. A ‘reconciliation lunch’ for survivors was held, as was a morning of education about the schools for Montreal students. A memory box was created, into which survivors, representatives of the churches that operated the schools, and ordinary Canadians placed tangible symbols of reconciliation and remorse. The Commissioners also insisted on panels and workshops offering historical context to the residential schools era and Canada’s development of a colonial approach towards Aboriginal peoples. And concerts and talent shows were held in the evenings to applaud and recognize the strong Aboriginal culture of which Canada’s government once sought to deprive Aboriginal children across this country.

Witnessing the truth is as important as speaking the truth, the Commissioners emphasized in Montreal. I am deeply moved by the courage of survivors to educate Canadians and indeed their own families about this tragic chapter in Canada’s history, and I am hopeful that voicing these truths will begin to set survivors free from this dark past.

Generally speaking, I have been rather skeptical of the ‘power’ of social media to affect political change. I have argued that outlets like Twitter and Facebook don’t have agency in and of themselves and should be regarded as potentially useful tools for activists. However, it is the people who sacrifice their time, create real-life networks of committed individuals and, in too many cases, sacrifice their lives, who ultimately affect social change. It is they and not Twitter or Facebook who deserve our praise and respect. Moreover, it is important to remember that social media platforms are useful not only to political activists but to authoritarian and autocratic actors who seek to stifle social and political change.

In this context it was fascinating to watch UNICEF Sweden’s bold advertisement campaign. As Al Jazeera puts it, the organization “asks ‘clicktivists’ to put their money where their mouse is.” Here’s their commercial:

With their campaign, UNICEF Sweden has taken aim at the conflation between symbolic allegiances that are built through sharing, ‘liking’ and retweeting and the potential for actual and tangible commitment to political and social activism. The fallacy of this connection was a crucial lesson (hopefully) learned from Invisible Children’s KONY2012 campaign. While millions shared and ‘liked’ the KONY2012 video, when it came to taking concerted action for the ‘Cover the Night’ campaign just weeks after the film was released, the turnout was dismal.

Of course, some may criticize UNICEF Sweden’s message that “money save lives”. There is a propensity amongst some international organizations, particularly those engaging in humanitarian aid and assistance, to ‘throw money’ at highly complex problems. Indeed, we seem to live in a world where the most difficult of challenges we face are dealt with by massive financial commitments: $100 billion for climate change! $25 billion to fight poverty! A ga-zillion dollars to repair the US economy! This belies the complexity and structural nature of many of the gravest global challenges and injustices we face. Money matters. But what matters isn’t simply how much money is raised or spent but how it is spent.

In the wake of KONY2012, many asked whether the future of international NGO activism had been forever altered. Would international organizations now do everything in their power to go viral and pile on ‘likes’ and ‘retweets’? Is that how capacity and influence would be now measured? UNICEF Sweden has made it pretty clear: not everyone in the NGO world is going the Invisible Children way.

(Photo: Thomas Mukoya / Reuters)

The Kenya cases were never going to be easy for the International Criminal Court (ICC) and the going only got tougher following the election of Uhuru Kenyatta and William Ruto, both of whom have been indicted by the ICC for their alleged roles in the 2008/09 post-election violence in Kenya.

The Prosecution has faced numerous obstacles in seeking to properly investigate and prosecute crimes pertaining to the post-election violence. Evidence has been withheld, witnesses have been intimidated, and Kenyatta and Ruto were elected to the positions of President and Vice President, respectively. Throughout the process, it seemed fair and feasible to assume that the biggest challenges to the prosecution of Kenyatta and Ruto would come from political developments within Kenya that were outside of the control of the ICC, and not from within the Court itself.

It thus came as a surprise (at least to those of us outside the inner-workings of the Court) when a presiding Judge in the Kenya case ripped into the Prosecution last week. Judges in the Pre-Trial Chambers rebuked the Prosecution for withholding evidence from the Defence. However, as Thomas Escritt puts it, Justice Christine van den Wyngaert “went further in her criticism of the prosecutors.” Did she ever.

It is worth reading van den Wyngaert’s entire opinion but here are some of the most stinging comments:

…there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation… the Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation…

…there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in theProsecution’s case. This negligent attitude is particularly apparent in relation to Witness 4′s evidence because, as the Prosecution concedes,’the Office as a whole was on notice, prior to the confirmation hearing,of the inconsistencies in the account Witness 4 gave during his [second]screening’. Based on the foregoing considerations, I find that the Prosecution failed to properly investigate the case against the accused prior to confirmation in accordance with its statutory obligations…

In sum, whilst the application of the principles set out in the decision to the Prosecution’s conduct in this case in my view results in a finding of a violation by the Prosecution of several of its obligations and the infringement by the Prosecution upon various rights of the accused…

Christine Van Den Wyngaert (Photo: ICC)

In addition to her stinging rebuke, van den Wyngaert removed herself from the case altogether. She has explained that her decision is a result of her caseload although some, like Kevin Jon Heller, are skeptical of her justification.

So how should we understand these developments?

With every development in the Kenya cases, and perhaps for all cases at the ICC, there are (at least) two types of implications for the Court: legal implications for the case and perception implications for the Court.

Legal Implications

It is clear that van den Wyngaert’s opinion and her resignation as a judge in the Kenyatta case will have implications for the trial as it proceeds. What isn’t clear is precisely what those implications will be.

Ironically, van den Wyngaert resignation may ultimately benefit prosecution. As Heller astutely observes, “Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it.” As a result, Heller claims that Kenyatta’s defence would be wise to appeal van den Wyngaert’s request to be removed from the case. If the defence takes Heller’s advice, it will be interesting to see if the Prosecution responds by claiming that van den Wyngaert’s commentary and her request to be removed from the case would ultimately bias her judgement in trial.

The Chambers’ condemnation of the Prosecution’s withholding of evidence to the defence is particularly troubling. Similar allegations plagued the Prosecution during the trial of Thomas Dyilo Lubanga. In fact, the Lubanga trial was almost thrown out of Court on two different occasions because the Prosecution was seen as having violated his right to a fair trial. At the time, many stated – and hoped – that this simply reflected growing pains for a young office and wasn’t representative of any pattern or policy. Another ruling stating that the Prosecution withheld exculpatory evidence from the Defence is troubling indeed, even if the ruling did not find that it was done intentionally.

The silver lining for the Prosecution is that, despite their rebuke, the trial will move ahead and not be returned to the confirmation stage, something that Kenyatta’s defence team had sought. This will certainly come as a huge relief to the Prosecution, especially after having to withdraw charges against Francis Muthaura. A ruling to restart the trial would have been a massive setback for the Office of the Prosecutor.

Kenyatta at the ICC (Photo: ICC)

The Perception Game

In comparison to the Kenyatta, Ruto, and their supporters, the ICC has virtually no resources to counter messaging against the Court’s work – and in support of Kenyatta and Ruto – in Kenya. And it certainly doesn’t help that Kenyatta and Ruto now have control of  state means to communicate with Kenyans.

As a result, the Court is losing the perception game in Kenya – if it hasn’t lost it already. It is worth stressing that this has less to do with the Court’s decision-making than with its lack of resources as well as the insufficient political support behind it in key cases.

But it certainly doesn’t help when the Prosecution is ripped into by ICC judges. It only adds more fuel for those who seek to lambast and undermine the standing of the Court at any cost. It was thus unsurprising that some local media attributed van den Wyngaert’s decision to remove herself from the trial not to her stated reason (ie. her workload) but to her criticism of the Prosecution. This spin fits not into reality but into the perception game being played by Ruto and Kenyatta’s network of supporters.

Good Law Can Better Perceptions

There isn’t much the Prosecution can do about the perception game. It simply doesn’t have the clout or resources to counter the wave of support or the communications machine in favour of Kenyatta and Ruto. The Court can’t control who wins elections and, without a dramatic surge in political support and funding for its work, it can’t control whether evidence is withheld or witnesses are intimidated.

However, one thing the Prosecution can do is avoid repeating past mistakes which only invite new forms of criticism and media spin. Every mistake is an opportunity to learn. And while a coherent, water-tight and gaffe-free prosecution of Kenyatta and Ruto won’t win the perception game for the ICC, it certainly won’t hurt.

Reuters

The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.

Gravity, in Legal Terms

The “gravity” of atrocity crimes is not defined in the Rome Statue or the Rule of Procedure and Evidence. There are only vague references to it in the Rome Statute with respect to how it affects whether a case is admissible (in addition to the complementarity criterion) or in the “interests of justice.” Studies of early case law and policy papers from the Office of the Prosecutor (OTP) have clarified that four factors are used to determine gravity: the scale, nature, manner of commission, and impact of the crimes. (For a more detailed legal analysis of the gravity threshold see SaCouto and Cleary’s work)

The gravity of crimes under the Court’s jurisdiction has become important to the selection of both situations and cases and, according to William Schabas, is “central to the Prosecutor’s discourse.”

The gravity threshold has affected situation selection, notably in the justification to not pursue further investigations in Iraq. Situation selection is hampered, however, by many other political and legal factors that are mostly beyond the Court’s control. I focus here on case selection because the OTP has unrivalled authority to select cases within situations and to do so independently and impartially. With respect to selecting cases, the ICC is focused on those considered most responsible for committing what are collectively known as “atrocity crimes.” But atrocity crimes in many conflict situations are widespread and the chain of responsibility is long and complex. Selectivity in the Prosecutor’s strategy is therefore a pragmatic necessity and the gravity threshold has an important functional role.

Case Selection: Defying Gravity?

The gravity threshold is presumed to be an impartial legal criterion. But upon further scrutiny it has provided a legal justification for imbalanced prosecutorial strategies that often reflect a political balance of power at the domestic level. For most conflict situations, the OTP has only pursued prosecutions of individuals on one side of the conflict. This pattern reinforces a growing perception that the Court picks winners and losers because it is reluctant to create a moral and legal equivalency between the crimes of different parties or is influenced by external political interests. This has been particularly true in cases where the ICC, and the international community more broadly, fails to pursue crimes of ruling elites who have rhetorically signaled their support for international justice and whose cooperation is needed to ensure successful investigations, arrests, and trials.

This pattern is most apparent for the ICC’s cases in Uganda, Democratic Republic of Congo (DRC) and Cote d’Ivoire. Both supporters and skeptics of the ICC are critical of the OTP for failing to indict individuals in the government and military for committing atrocities. The crimes of ruling elites in these conflict situations are indeed grave – but the OTP contends that crimes are not grave enough relative to their opponents’ crimes in order to justify indictments.  For example, former ICC Chief Prosecutor, Luis Moreno-Ocampo, repeatedly argued that the Ugandan government’s alleged crimes do not meet the gravity threshold relative to the crimes of the LRA. But scholars, human rights advocates, and victim communities in northern Uganda contend that the government’s crimes, even if relatively less grave, still constitute atrocities and the ICC’s grant of de facto impunity for ruling elites is an affront to victims. See Phil Clark’s and Adam Branch’s arguments on this tension in the Uganda situation.

Similarly for the DRC situation, civilians in the eastern region have been victimized by the military and subjected to atrocities such as killings, displacement and high levels of sexual violence. For more information and evidence of crimes committed by the military, see this HRW press release and a recent news story on sexual violence committed by soldiers. To date, the Court has indicted only leaders of non-state armed groups. It is also somewhat ironic that individuals like Lubanga and other rebel leaders have been charged for their lesser crimes, and justified by the gravity threshold, while the greater crimes of more elite perpetrators are unaccounted for. Of course, establishing command and individual responsibility for crimes committed by political and military elites will be a legal and political challenge for the ICC. But there is ample evidence of atrocities on both sides. This, coupled with an obvious domestic will and capacity gap to prosecute both sides in the DRC, makes it imperative that the ICC seek balance in its prosecutions.

In Cote d’Ivoire, only the ousted President, Laurent Gbagbo, and his wife have been indicted for their crimes. President Ouattara’s regime and supporters, widely known to have committed atrocities on par with those of Gbagbo’s, have so far been spared the ICC’s scrutiny or even pressure to hold both sides accountable on a domestic level. The gravity justification has not been employed, yet, to justify this imbalance – leaving some hope that this pattern can be broken.

It is perhaps not coincidental that impunity for ruling elites is more likely in cases of State Party self-referral. The Court has established a pattern in its prosecutorial strategies whereby ruling elites in states that refer their situations to the Court can ensure their impunity as long as their crimes are no graver than the crimes of their opponents. Moreover, imbalanced prosecutions by the ICC only further legitimizes and sanctions imbalanced justice at the domestic level, which has been evident in all of the above cases and in past cases of international justice (i.e. Rwanda).

Gravity and the Impartiality Debate

The OTP has reacted to criticism that it is not impartial and rejects seeking “balance” for its own sake when selecting both situations and cases. In a 2010 policy paper, the OTP states that “balance” should not be a priority for situation and case selection.

“Geo-political implications of the location of a situation, geographical balance between situations or parity between rival parties are not relevant criteria for the selection of situations under the Statue.”

“Impartiality does not mean ‘equivalence of blame within a situation either.”

In contrast, criticisms of the ICC’s use of the gravity threshold reflect various political, legal and ethics dilemmas.

A 2011 Human Rights Watch report, titled “Unfinished Business: Closing Gaps in the Selection of Cases” states:

“Rather than provide ‘victor’s justice,’ the ICC should investigate and prosecute crimes committed by all sides, even where doing is politically inconvenient. Rarely are crimes only committed by members of one party to a violent conflict, even if abuses are often attributed more to one side than the other.

Not surprisingly, ICC investigations are likely to occur in highly polarized situations with sharp divisions between communities. Affected communities are all too aware of violations committed by various parties, so failure to address serious crimes—or to explain why they are not being addressed—can undermine the court’s legitimacy in the eyes of those communities.”

William Schabas, in his book Unimaginable Atrocities, criticizes the gravity threshold as vague and haphazardly applied:

“The gravity language strikes the observer as little more than obfuscation, a laboured attempt to make the determinations look more judicial than they really are…They have undoubtedly convinced themselves that they have found a legalistic formula enabling themselves to do the impossible, namely, to take a political decision while making it look judicial.”

Margaret M. deGuzman assesses the relationship between the ICC’s legitimacy and how it has operationalized the gravity threshold. She argues that

“gravity acts to legitimize the Court in two interrelated ways: the gravity threshold helps to ensure the moral legitimacy of the Court’s exercise of jurisdiction, and the Prosecutor’s discretionary use of relative gravity strongly affects perceptions of the Court’s legitimacy.”

 The Way Forward

While the gravity threshold is a pragmatic necessity in the selection of cases at the ICC, the resulting imbalanced prosecutions have important political implications. There is a case to be made for deliberately seeking prosecutions on both sides when both sides have committed atrocity crimes, even if the crimes of one party are relatively less grave than the other.  If international justice is imbalanced in this manner it will be emulated and sanctioned at the domestic level. It is essential that the ICC recognize its role in filling impunity gaps and not perpetuating them.

Stephen Harper (Photo: Reuters)

There was no need to be particularly impressed or to defend the comments of the newly appointed leader of the Liberal Party of Canada, Justin Trudeau, in the wake of the Boston Marathon bombings. Fresh off his victory in the Liberal Party leadership election, Trudeau was  asked how he would respond to such an attack. In response Trudeau stated:

“Now, we don’t know now if it was terrorism or a single crazy or a domestic issue or a foreign issue. But there is no question that this happened because there is someone who feels completely excluded. Completely at war with innocents. At war with a society. And our approach has to be, where do those tensions come from? Yes, there’s a need for security and response. But we also need to make sure that as we go forward, that we don’t emphasize a culture of fear and mistrust. Because that ends up marginalizing even further those who already are feeling like they are enemies of society.”

Trudeau’s comments reflect common wisdom. It is elementary to anyone interested in conflict resolution and the transformation of violence to peace. Heck, it is common wisdom to the common gardener and to every medical practitioner. You don’t get rid of weeds by cutting the flowers; you need to get at the roots. You don’t just deal with the symptoms of illness; you address the root causes of disease.

In the realm of conflict resolution and conflict transformation, there has long been a recognition that peace requires addressing both the causes and dynamics of violence. Dealing only with symptoms or dynamics risks leaving the motivations for violence in place and risks creating additional grievances which subsequently act as new justifications for continued violence.

Yet in response to Trudeau’s comments, Canadian Prime Minister Stephen Harper went on a blistering and remarkably misplaced offensive. In doing so, he exposed his views on Canada’s role in dealing with terrorism and political violence. It wasn’t pretty.

While attending the funeral of Margaret Thatcher in London, Harper declared:

“When you see this kind of action, when you see this kind of violent act, you do not sit around trying to rationalize it or make excuses for it or figure out its root causes. You condemn it categorically and to the extent that you can deal with the perpetrators you deal with them as harshly as possible and that is what this government would do if it ever was faced with such actions.”

In the wake of tragic events like the bombings in Boston, there is clearly reason to categorically condemn violence , express sympathy and condolences and to support the pursuit of justice and accountability. But there is also a need to understand why such tragedies occur and why some groups resort to violence. Reacting harshly is the easy part. Identifying what can be done to prevent such violence is harder but even more important. At the same time, striving to understand the root causes of violence can and should never be conflated with a defence of violence.

(Photo: SvR Design)

Sadly, Harper’s approach is just anther example of Canada’s Conservative Government focusing on the symptoms of critical challenges facing Canadians and the international community. This has been Harper’s approach to domestic crime (fill jails and trump up the dangers of ‘unreported crime‘!) and it was the approach to Omar Khadr, the Canadian child soldier who was detained for a decade in Guantanamo Bay and repatriated, only reluctantly, to Canada last year. The policy of the Government has been to ‘act tough’ and ‘punish wherever possible’. The result, however, is irresponsible and simply dangerous. It also confounds an already incoherent and irresponsible foreign policy, one which has led to Canada’s increasingly diminished international prestige and flailing global reputation.

The Harper Government’s approach to violence strips those interested in achieving peace and preventing violence of the ability to transform violent conflict into the non-violent expression of political competition and contestation. History shows this can only increase the likelihood that violence will be recur.

Moreover, by ignoring the causes of violence, further marginalizing potential perpetrators of violence and adding to their grievances, the Government risks perpetuating a cycle of violence by armed and terrorist groups. As such, it isn’t a stretch to say that this Harper Government poses a threat to peace – in Canada and abroad.