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

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

Ousted: Rajapaska (Photo: Reuters)

Ousted: Mahinda Rajapaska (Photo: Reuters)

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

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

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

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

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

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

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

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

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

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

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

On the ICC in Palestine, Canada Crosses the Line

Canadian Foreign Minister John Baird (Photo: Reuters)

Canadian Foreign Minister John Baird (Photo: Reuters)

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

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

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

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

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

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

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

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

Continue reading

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dominic Ongwen ICC

Dominic Ongwen (Photo Source: Unknown)

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

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

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

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

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

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

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

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

Posted in Dominic Ongwen ICC, International Criminal Court (ICC), Lord's Resistance Army (LRA), Uganda | Tagged , , , | 3 Comments

Despite Ups and Downs, the ICC is Here to Stay

Alex Whiting joins JiC for this guest-post putting the highs and lows of the ICC into historical and political perspective. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia.

A visualization of the permanent premises of the ICC, currently in construction (Schmidt Hammer Lassen Architects)

A visualization of the permanent premises of the ICC, currently in construction (Schmidt Hammer Lassen Architects)

In his post here at JiC where he discussed the news that an LRA commander and International Criminal Court indictee may have been apprehended, Mark noted the apparent rapid reversal of fortunes of the ICC.  Just last month, the news about the Court focused on the collapse of the Kenyatta case and the Prosecutor’s decision to hibernate the Sudan investigations, causing some to question whether the ICC had become ineffective and irrelevant. Suddenly, this month, the Court appears to be relevant again, even if facing new challenging cases. Palestine has joined the Court, unleashing strong reactions. Now it appears that an LRA indictee has been apprehended after ten years. So is the ICC dead and buried or alive and kicking? It is, in fact, a mistake to think that the ICC is or will meet either of these destinies, emerging as a total failure or a complete success.

The Court is here to stay, it is a reality, and over time it will experience both highs and lows, triumphs and setbacks.  And that has been precisely the history of the international criminal justice project starting with Nuremberg and throughout the life of the modern tribunals. Each time it seemed that the international criminal justice project was dead, it rose again to achieve new successes.

After the historic trials of Nuremberg, suddenly it seemed that international criminal justice was going to be a one-time event. In part because of the onset of the Cold War, there were no international criminal prosecutions for nearly fifty years (though there were some domestic prosecutions) despite there being no shortage of atrocities. The project rose again with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) one year later.  The establishment of these tribunals led to additional ad-hoc courts for Sierra Leone (SCSL) and Cambodia (ECCC), and ultimately provided momentum for the adoption of the Rome Statute and the creation of the permanent International Criminal Court in 1998.

Although many now say that the ad-hoc tribunals were largely successful in bringing forward credible and fair prosecutions, each of these tribunals at one time or another faced some very bleak moments. I was a prosecutor at the ICTY when Slobodan Milošević died in 2006 after four years of trial. Many thought that the Court would not survive the premature end of its signature case and that the UN would quickly pull the plug and wind down the tribunal. In truth, some of the ICTY’s best work came afterwards, particularly with the apprehension and trials of Ratko Mladić and Radovan Kardžić, and nearly nine years after Milošević’s death the Court is still moving forward.

Some have nonetheless suggested that the Appeals Chamber conviction reversals in the Gotovina and Perišić cases in 2012 and 2013, respectively, have tarnished the legitimacy and reputation of the ICTY, but over time (and after the judgments in the pending cases), I predict that these fears will be seen to have been overblown, even if they are not completely unfounded.

Slobodan Milosevic at the ICTY (Photo: ICTY)

Slobodan Milosevic during his trial at the ICTY.

Other tribunals have faced their own challenges that at times seemed to threaten the credibility or viability of the project: the ICTR in trying (unsuccessfully) to prosecute cases of Tutsi crimes against Hutus (the RPF cases), the ups and downs of the CDF cases at the SCSL, and the accusations of corruption and political interference at the ECCC. This is not to say that these various shortcomings or failures of the ad-hoc tribunals were trivial – they are not – but they also did not ultimately defeat or delegitimize the international criminal justice project. That project has survived.

And even before these last two turbulent months, the ICC has itself experienced a similar trajectory of highs and lows. The Court was more successful than many expected in starting investigations and having cases referred (often self-referred) by states, but faced bigger challenges in shepherding cases through the confirmation and trial processes, resulting in the failure of some cases. Few expected that the UN Security Council – where three of the five permanent members (the U.S., China and Russia) are not part of the ICC – would ever refer a case to the ICC. But it did so twice in the Court’s first ten years: Sudan (2005) and Libya (2011). Each time the referral initially appeared to be a boon for the Court and an enormous boost to its legitimacy and relevance. But in each case, over time, support for the cases waned and the prosecutions stalled, exposing some of the weaknesses of the Court and its powers. Continue reading

Posted in Extraordinary Chambers in the Courts of Cambodia (ECCC), ICTY, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), International Law, Justice, Special Court for SIerra Leone (SCSL), Special Tribunal for Lebanon | Tagged | 4 Comments

An ICC Indicted LRA Commander is in US Custody. So What Now?

Dominic Ongwen meeting cultural and religious leaders in 2008 (Photo: New Vision)

Dominic Ongwen (centre) meeting cultural and religious leaders in 2008 (Photo: New Vision)

It was just a few short weeks ago, following the collapse of the case against Kenyan President Uhuru Kenyatta, that many were predicting that the International Criminal Court (ICC) was on the precipice of irrelevance. But the world of international criminal justice has been rocked by reports that a senior commander of the notorious Lord’s Resistance Army (LRA) is in US custody. And here’s the juicy bit: Dominic Ongwen is indicted by the ICC for war crimes and crimes against humanity committed in northern Uganda. Ten years after the ICC intervened in northern Uganda, could an LRA commander finally be heading to The Hague? That is certainly the hope of many. But here are five reasons why the news of Ongwen’s reported surrender will likely spur uncertainty and controversy.

1) Ongwen, as many have pointed out on Twitter and elsewhere, is both a victim and a perpetrator of international crimes. According to the Justice and Reconciliation Project, Ongwen was abducted by the LRA at the age of 10. Before he emerged as a trusted and senior member of Joseph Kony, Ongwen “was trained as a ‘child soldier’ to fight against the Government of Uganda and forced to kill, mutilate, loot from and rape civilians.” Ledio Cakaj, a leading researcher of the LRA, has called Ongwen’s story “tragic” and one which “encapsulates many of the complexities surrounding the LRA conflict.”

The prosecution of child soldiers, as Mark Drumbl has eloquently and cogently argued, is deeply controversial. Any prosecution of Ongwen will bring these controversies to the fore and force observers and proponents of international justice to confront a difficult question: when is a victim a perpetrator and a perpetrator a victim? The line is much more murky than we tend to assume.

2) It is far from clear that Ongwen will ever end up at the ICC. The United States (which currently has custody of Ongwen) may not be in the mood to cooperate with the Court, especially after Palestine signed the Rome Statute – something the US was steadfast against. As David Kaye has recently pointed out, it also isn’t clear how deep the oft-reported affection between the Obama administration and the ICC truly is. It thus seems precarious (at best) to assume that Ongwen would be surrendered to the ICC in the way that Bosco Ntaganda, indicted by the ICC for atrocities committed in the Eastern DRC, was in 2013.

3) The most likely scenario is that the US will surrender Ongwen to Uganda, with whom it has been working to ‘hunt’ Joseph Kony and LRA fighters since 2012. But again, it is far from obvious that the Government of Uganda would be inclined to flip Ongwen over to the ICC. In recent months, Uganda President Yoweri Museveni has emerged as the single most virulent opponent of the Court – and not just on the African continent. He has gone so far as to declare that African states should ‘quit’ the ICC. Given Museveni’s nasty rhetoric towards the Court, it seems virtually impossible to imagine that he would cooperate with the ICC in surrendering Ongwen.

Of course, that doesn’t change the fact that Uganda has a legal obligation, as a member-state of the ICC, to surrender Ongwen to The Hague. So what will Museveni do? He has a number of options, including having the US surrender Ongwen (via a third party) to the ICC thus allowing him to save face. But this too seems unlikely. It would be hard to pass up having one of the most senior LRA commanders paraded around in court and legitimating the Ugandan army’s ongoing military excursions into neighbouring states. But, in truth, we can only speculate. For the moment, it isn’t clear what Uganda will do. Still, recent tensions between the Ugandan President and the Court could lead to a very nasty confrontation over Ongwen’s fate.

The trial of Thomas Kwoyelo, seen here shortly after his capture, has been beset by controversy (Photo: Reuters / James Akena)

The trial of Thomas Kwoyelo, seen here shortly after his capture, has been beset by controversy (Photo: Reuters / James Akena)

4) One approach that Uganda could take is to challenge the admissibility of the ICC’s case against Ongwen. The government could argue that it is fully able to prosecute the LRA commander itself. Some will argue that Uganda will still be required to surrender Ongwen to the ICC until Judges agree that Uganda could proceed with a prosecution but, as Kevin Jon Heller points out, the Libya precedents make such an obligation unclear.

Here it is important to recall that Uganda did not refer the LRA (later reinterpreted as the situation in northern Uganda) to the ICC because of the state of their judiciary. Rather, they did so because the LRA was residing in neighbouring states to the north and Uganda was unable to capture them there. Indeed, there was a widespread sense within the Ugandan army and government that the ICC’s involvement might precipitate a wider, international military engagement in support of Uganda.  Continue reading

Posted in Lord's Resistance Army (LRA), Uganda | Tagged | 6 Comments

Is International Criminal Justice Coming to South Sudan?

The following is a guest-post by Patryk I. Labuda on the potential of pursuing international criminal justice in South Sudan. Patryk is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva who has worked in South Sudan, Sudan and the Democratic Republic of Congo. 

Displaced children gather at a UN compound in Juba, South Sudan. (Photo: Ben Curtis / AP)

Displaced children gather at a UN compound in Juba, South Sudan. (Photo: Ben Curtis / AP)

In July 2011, after decades of armed struggle against the regime in Khartoum, South Sudan became the newest member of the community of nations. Led by President Salva Kiir, the South Sudanese government embarked on an ambitious program of state building, including economic development, security sector reform and the drafting of a new constitution. But just two years later, discussions about democracy and reform in South Sudan were overtaken by a more pressing concern: war.

In December 2013, an old personal rivalry between Kiir and his deputy, Riek Machar escalated into a bloody internecine struggle for power. Reliable data is hard to come by, but estimates suggest that ‘tens of thousands’ have died and nearly 2 million people have been displaced since the beginning of the conflict. As the UN experiences unprecedented difficulties protecting civilians, credible reports indicate that both the government and rebel forces have committed ‘extraordinary acts of cruelty’, amounting to war crimes and, potentially, crimes against humanity. Focusing on the issue of international crimes, this post considers several options for justice and accountability in South Sudan.

Last month, on the first anniversary of the outbreak of hostilities, two prominent international groups released assessments of the human rights situation in South Sudan. ‘We Fear the Worst’, a report by the Federation International de Droits de l’Homme (FIDH) was followed by Human Rights Watch’s (HRW) call for ‘Ending the Era of Injustice.’ The two reports reach broadly similar conclusions. Citing the inadequate independence of prosecutors, a climate of intimidation against judges and lawyers, and inadequate legislation and fair trial procedures, HRW endorses the idea of a ‘hybrid judicial mechanism to try serious crimes’, which would operate outside the South Sudanese domestic legal system. FIDH supports the ‘establishment of a special courts system’ to try perpetrators of international crimes, but it recommends that trials take place within the South Sudanese judiciary as a way of building domestic capacity. While there are some differences in methodology, including HRW’s repeated suggestion (p. 1-2) that ethnicity is the driving force behind the conflict and FIDH’s broader development-based outlook (p. 24-30), both organisations appear to agree that purely domestic trials are not viable. Relying on interviews with South Sudanese victims and members of the judicial community, the reports make a strong case that amnesty for past violations will only breed further violence, and that criminal accountability is needed to break the cycle of impunity and establish the rule of law.

Given the two reports’ focus on international criminal justice, the elephant in the room appears to be the International Criminal Court (ICC). South Sudanese civil society groups have called for the ICC’s intervention in the past, but the government’s conflicting policies reflect the high political stakes of resorting to the Court. Although some human rights and humanitarian treaties were adopted after independence, South Sudan has not moved to ratify the ICC Statute. President Kiir is on record saying that he would “never accept” the ICC, though on at least one occasion he has reportedly welcomed the Court’s investigations in South Sudan.

Kiir’s inconsistent statements can probably be put down to rhetorical bravado and diplomatic gamesmanship, but the South Sudanese government’s position is best explained by old-fashioned realpolitik. Despite breaking away from Sudan in 2011, its northern neighbour remains a key geostrategic partner. Few in Juba will say it openly, but the ICC’s unenforced arrest warrant against Sudanese President Omar Al-Bashir hinders the prospect of ratifying the ICC Statute. As a non-State Party, the South Sudanese government does not have a legal obligation to arrest and transfer Al-Bashir to the ICC. Whatever Kiir’s personal views about Head-of-State immunities, he knows he cannot jeopardise economic and security relations with his northern neighbour during a civil war.

Riek Machar (left) and Salva Kiir (Photo: France 24)

Riek Machar (left) and Salva Kiir (Photo: France 24)

Any discussion of the ICC and South Sudan must also be viewed in the wider context of the standoff between the African Union (AU) and the Court. Wary of ‘foreign intervention’ and ‘neo-colonialist ventures’, the AU has championed ‘African solutions to African problems’. Established in March 2014 to ‘investigate human rights abuses’ and propose ways to ensure ‘reconciliation, healing and accountability’, the Commission of Inquiry on South Sudan marks the first time the AU has created such a body. Heralded as a ‘ground-breaking development and a policy watershed’ by Adama Dieng, the UN Special Adviser on the Prevention of Genocide, the Commission was initially given a three-month mandate to complete its work. But nine months later, it has still not published its findings. Continue reading

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, South Sudan, Sudan | Tagged , | 2 Comments