After the Trial Ends: Why Residual Mechanisms Deserve Our Attention

Posted on December 22, 2025 by Mark Kersten

The following is a guest-post on the afterlife of international criminal tribunals, written by Maria Elander, Rachel Killean and Mark Drumbl. Maria is an Associate Professor and the Associate Dean, Research and Industry Engagement in the La Trobe Law School. Rachel is a Senior Lecturer and the Associate Dean (Student Life) at the University of Sydney School of Law. Mark is the Class of 1975 Alumni Professor of Law at Washington and Lee University.

Judges at the Special Tribunal for Lebanon study a model crime scene from the killing of former Lebanese Prime Minister Rafic Hariri (Photo: United Nations)

When the Special Tribunal for Lebanon (STL) closed its doors in 2023, the tribunal faced a stark problem: without money to maintain its servers or staff, its entire digital presence — with thousands of sensitive legal records, including audiovisual materials, transcripts, and filings — was at risk of disappearing. With its website scheduled for shutdown and no residual mechanism to safeguard its archives, the STL’s evidentiary and historical record hung in the balance.

Stanford University’s Virtual Tribunals initiative stepped in. It worked with the STL to urgently preserve and transfer more than 15,000 files into the Stanford Digital Repository. This task was completed earlier this year. The rescue ensured storage and continued public access to materials that might otherwise have been lost.

Yet the solution raises questions: After the closure of a temporary court, how should sensitive documents like legal records be managed? Where, and by whom? These are not just administrative determinations but deeply political questions that relate to the roles of affected communities and national stakeholders in the justice process.

How to manage the archive also ties into a larger question: What happens when atrocity tribunals end? Over the last year or so, we have been exploring this question, separately and together. Following our recent experience of presenting these ideas at the International Association of Genocide Scholars’ annual conference, we are hoping to assemble a group of scholars to explore these issues further, and will be publishing a call for papers in the new year. Here, we set out some of our current musings, in the hope that it might spark thoughts in others.

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Posted in Central African Republic (CAR), Chambres Africaines Extraordinaires (CAE), Extraordinary Chambers in the Courts of Cambodia (ECCC), Guest Posts, International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Kosovo Relocated Specialist Judicial Institution (KRSJI), Kosovo Specialist Chambers, Lebanon, Sierra Leone, Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL), Special Criminal Court, Special Tribunal for Lebanon | Tagged , , | Leave a comment

More of the same, or changes on the way? For the first time in a decade, the Canadian War Crimes Program sheds light on what it has been up to.

Posted on December 18, 2025 by Mark Kersten
People in Gaza flee ongoing violence (Photo: Reuters)

Atrocities in Sudan, Gaza, and Ukraine raise a question: do people in countries far away, like Canada, have a role in addressing the suffering of others?

While these conflicts can appear remote, affecting only distant strangers, the horrors they produce increase the chances that not only victims, but also perpetrators, seek to enter Canada. It’s unsurprising, then, that Canadian authorities are busier than ever in identifying suspected perpetrators of war crimes, crimes against humanity, and genocide. Yet Canada continues to deport perpetrators without any guarantee that they’ll be subsequently held accountable. Ottawa needs to put its money where its mouth is and use its courts to prosecute alleged war criminals.

The last report of Canada’s Crimes Against Humanity and War Crimes Program  was released a decade ago. Back then, authorities suspected that some 200 perpetrators of international crimes resided in Canada. Ottawa’s goal was to prevent the entry or to deport suspects without any guarantee that they’d be subsequently prosecuted for their alleged crimes. Believing that trials were too expensive, the government was explicit: prosecuting perpetrators in Canadian courts under the Crimes Against Humanity and War Crimes Act was a last resort.

For the first time since 2016, we have a snapshot into what the War Crimes Program is doing, thanks to written questions submitted to the government by Conservative Member of Parliament Pierre Paul-Hus. The answers tell an important story.

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Posted in Ahmed Eldidi, Canada, Canadian War Crimes Program, Gaza, Hamas, International Criminal Justice, Islamic State, Israel, Palestine, RCMP Structural Investigation, Structural Investigation, Ukraine, Universal Jurisdiction, War crimes | Tagged | 2 Comments

The ‘Pearce case: Is the Netherlands providing justice for crimes against migrants and refugees in Libya?

Posted on December 9, 2025 by Mark Kersten

The following is a guest post by Cristina Orsini, a Senior Programmes Advisor with Lawyers for Justice in Libya, contributing to litigation and advocacy on human rights violations and international crimes. Cristina is also a PhD Researcher in Law at the European University Institute, exploring international criminal law and colonialism.

A migrant detained in one of Libya’s detention facilities (Photo: Reuters)

Since 3 November 2025, an Eritrean national known as ‘Walid’ has been standing trial in Zwolle, the Netherlands, for allegedly leading a criminal organisation dedicated to smuggling migrants, refugees, and asylum seekers through Libya. The case, known as ‘Pearce’, is widely seen as ‘extraordinary’ and ‘unique’, and is being followed closely in the Netherlands and beyond. Done right, this case could provide a measure of justice to many migrants, while setting a critical precedent for a broader reckoning with entrenched systems of abuse. Watching the trial unfold after years of documenting crimes against migrants in Libya with Lawyers for Justice in Libya (LFJL), however, I wonder whether Dutch authorities are letting this chance slip away. 

In one sense, the trial is truly extraordinary, as it is extremely rare for migrants who have experienced horrific human rights violations in Libya to have access to any justice. If some of them can now hope for acknowledgment, accountability, and some compensation, it is because Dutch authorities proactively pursued this case in the first place, collecting hundreds of testimonies in the process. They are also providing interpretation and livestreaming of the trial in Dutch, English, and Tigrinya, making it accessible to affected communities and the wider public.  

Yet, while the trial may be unique, the accused’s actions are not. The experiences recounted by Walid’s survivors are sadly commonplace in Libya, where the exploitation of migrants has become an integral part of the country’s conflict economy (with trafficking already accounting for 3.4 percent of Libya’s GDP by 2015). In this context, by focusing on human smuggling charges, Dutch prosecutors are missing the larger picture: the exploitative, systematic and widespread nature of the crimes committed against migrants in Libya.  

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Posted in Human Smuggling, Human Trafficking, Libya, Migration, Refugees, The Netherlands | Tagged , , | Leave a comment

Signs of resilience amidst troubling times in The Hague: Some thoughts on the good and the bad from this year’s Assembly of States Parties

Posted on December 4, 2025 by Mark Kersten
ICC President Tomoko Akane speaks at the ASP (Photo: Mark Kersten)

“We will continue our work undeterred.”

That was the message from senior staff and prosecutors at the yearly Assembly of States Parties (ASP) of the International Criminal Court. While admitting that times are difficult, ICC officials repeatedly emphasized that their resolve is unwavering and that, as much as possible, it is business as usual. Member states of the Court were likewise at pains to demonstrate that things were almost normal and offered what appeared to be a welcome and general consensus that the ICC was worthwhile defending.

But things are far from normal for and at the Court. What follows are some reflections of this year’s ASP – both the bad and the good.

While this year’s Assembly included multiple indications that most member-states are willing to back the ICC, the Court still faces grave, potentially existential, challenges on multiple fronts. American sanctions against the institution have upended the lives of multiple staff and judges. The effects cannot be understated. According to one sanctioned judge, French national Nicolas Guillou, “these sanctions affect every aspect of my daily life… Placing people under sanctions plunges them into a state of constant anxiety and powerlessness, with the aim of discouraging them.” Another, Kimberly Prost of Canada, has spoken about the psychological, emotional, and practical toll of the sanctions against her, noting that “it cripples you in our modern world.”

Neither the European Union nor those states whose citizens have been targeted, such as Canada, have invoked laws that would protect their ICC staff from these consequences. There is also the real possibility that the institution as a whole will come under sanctions for doing nothing more than fulfilling its mandate. If that comes to pass, it could sabotage the Court’s ability to fulfil its basic functions.

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Posted in Argentina, Assembly of States Parties, Cybercimres, Germany, ICC President, ICC Prosecutor, ICC Sanctions, International Criminal Court (ICC), Israel, Libya, Palestine, Palestine and the ICC, Ukraine, Venezuela | Tagged , , , , , | 2 Comments

A litmus test for commitment to international law: Germany needs to speak up and protect the ICC

Posted on October 21, 2025 by Mark Kersten

The following is a guest-post by Maxine Rubin on the relationship between Germany and the International Criminal Court. Maxine is a Research Fellow and the Editor of Africa Spectrum, at the German Institute for Global and Area Studies. She has a PhD from the University of Cape Town.

How does a state recover its international image after perpetrating a genocide? Germany’s approach to this quagmire has been to commit to the rule of law and to international law. In line with this, Germany played a central role in the negotiations to create the International Criminal Court during the 1990s. Since the ICC began operations in 2002, Germany has been the second highest financial contributor and a consistent supporter of the Court. Given this, and the dire need for unequivocal commitment to a rules-based order, why is Berlin’s support for the ICC faltering when the Court needs it most?

Support from the ICC’s members is more important than ever. The Court faces extensive sanctions from the US, as well as withdrawals from Mali, Burkina Faso, Niger, and Hungary. In many ways, Germany presents itself as a consistent supporter of the ICC. In the past few months, Berlin noted its regret regarding the US sanctions on the Court and played a central role in the amendments proposed to strengthen the ICC’s jurisdiction over the crime of aggression at the ICC’s recent Review Conference. Germany provides roughly 13% of the Court’s annual budget and, until now, there has always been a German judge on the bench. Supporting the ICC is a manifestation of Germany’s commitment to the rule of law – a commitment that shapes Germany’s efforts to redress the atrocities it committed during WWII and the Holocaust.

Germany also made another commitment in the aftermath of the Holocaust: to ensure the security of the state of Israel. Protecting Israel’s security is considered Germany’s Staatsräson (reason of state or raison d’etat), as former Chancellor Olaf Scholtz stated in the wake of the 7 October 2023 attacks on Israelis by Hamas militants: “our responsibility that grew out of the Holocaust makes it our everlasting task to stand up for the existence and security of the State of Israel.” Consequently, when the ICC’s Office of the Prosecutor announced the arrest warrant for the Israeli Prime Minister Benjamin Netanyahu roughly in 2024, Berlin confronted a dilemma between its post-WWII commitments. 

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Posted in Germany, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | Leave a comment

We need to talk about the “International Stabilization Force”: Canada and others say they’ll support a military intervention to ‘enforce peace’ and protect civilians in Gaza

Posted on October 15, 2025 by Mark Kersten
Displaced civilians return to the North of the Gaza Strip (Photo: Mahmoud Issa/Reuters)

As the first stage of the peace plan for Gaza takes shape amidst reported breaches of the fragile agreement between Hamas and Israel, a critical question remains: will military forces be used to secure Gaza?

While Canada announced its recognition of Palestine at last month’s United Nations General Assembly, Prime Minister Mark Carney made a potentially far more consequential announcement. During an event in New York, Carney shared that Canada was willing to participate in a multilateral mission to “enforce peace” in Gaza. Is Canada preparing to send military forces to stabilize the enclave and prevent atrocities? If so, is it a good idea?

This is not mere talk: leaders don’t raise the prospect of military interventions unless there are concrete plans in the making. Carney’s announcement follows the New York Declaration, which calls for “the deployment of a temporary international stabilization mission” to protect Palestinian civilians, dismantle Hamas, and offer security guarantees for Palestine and Israel, “including monitoring of the ceasefire and of a future peace agreement.” Point 15 of the Trump administration’s peace plan likewise calls for an “International Stabilization Force” that would be Arab-led and offer a “long-term internal security solution” for Gaza.

This is unprecedented territory: while Canada was involved in fighting ISIS, never before has it contemplated participating in a multilateral force to protect civilians from a terrorist group and an ostensible ally waging an increasingly acknowledged genocide of Palestinians. If it goes ahead, would intervention protect peace and Palestinians?

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Posted in Afghanistan, Canada, Gaza, Israel, Palestine, Peace Negotiations, Peace Processes, Peacebuilding, Responsibiltiy to Protect (R2P), United Nations | Tagged , , , , , , | Leave a comment

Lifting Immunity, Resolving Impunity? The Case for an Immunity Exception in a Future Crimes Against Humanity Convention

Posted on September 24, 2025 by Mark Kersten

Mayya Chaykina join JiC for this post on the issue of immunities in the proposed Crimes Against Humanity Convention. Mayya is a master’s student in law at Sciences Po Paris. Her work focuses on international criminal law, mass atrocity prevention, and international human rights mechanisms. 

The UN General Assembly (Photo: Mark Kersten)

In 2024, the United Nations Sixth Committee adopted a resolution setting dates for the negotiation of an international convention on the prevention and punishment of crimes against humanity. Future negotiations will build on the current Draft Articles on Prevention and Punishment of Crimes Against Humanity, adopted by the International Law Commission (ILC) in 2019. Several modifications to the draft text have already been proposed. Among them, Amnesty International has called for the lifting of immunities to be included in the convention despite opposition from certain states.

Immunity ratione materiae – immunity granted to individuals based on their official state functions – has faced increasing scrutiny. Also known as functional immunity, it extends after the official’s term is over, preventing the individual from being subject to the criminal jurisdiction of another state. In light of the groundwork laid by the draft articles, in addition to the current understanding of immunity for state officials under international law, this article will examine the case for adopting a provision confirming the exceptional lifting of functional immunity for state officials accused of crimes against humanity in the text of the convention. 

The Basis for an Exception from Immunity

The ILC has been considering the immunity of state officials from foreign criminal jurisdiction since 2007, when it first included the topic in its program at its fifty-ninth session. Draft articles on the topic have since been provisionally adopted by the Commission.  

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Posted in Crimes against humanity, Guest Posts, United Nations, United Nations General Assembly | Tagged , , , | 1 Comment

Canada and allies recognize Palestine: what does it mean, what does it change, and will real action to end atrocities and annexation follow?

Posted on September 22, 2025 by Mark Kersten
(Photo: CTV)

Amidst the atrocities, annexation efforts, and ignored warnings to stop both, it became impossible to defend the status quo. So, on 21 September 2025, Canada joined 150 other states – including erstwhile Israeli allies, France and the UK – that recognize Palestinian statehood. But what, if anything, will recognition change? On some issues, quite a bit. On others, not much. Ultimately, recognition alone cannot save Palestinian lives or end the war; only concerted and collective action can.

Canada has long insisted it supports a two-state solution. Yet it refused, until now, to actually recognize two states. Instead, it lent increasingly right-wing and anti-Palestinian governments in Israel and the United States an effective veto over Palestinian human rights, self-determination, and statehood. It has long been obvious – to advocates, states, Israelis, and Palestinians – that any proclaimed interest from Washington and Tel Aviv in working towards a two-state solution is not in good faith; it’s not kicking the can down the road, if you just kick it to the curb.

The Israeli government’s outright opposition to a prospect Palestinian state is finally obvious to Western authorities too. In announcing Canada’s recognition of Palestine, the Prime Minister’s Office accepted that “the current Israeli government is working methodically to prevent the prospect of a Palestinian state from ever being established…. It is now the avowed policy of the current Israeli government that there will be no Palestinian state.”

Recognition will have some impact inside Canada. Israel’s war on Gaza and its moves to annex the West Bank have played out in our political landscape and matter to Canadians. The government will be keenly aware of the consequences of recognizing Palestine within Canadian communities, including its electoral base. But what about the impact of recognition in the international arena and on Palestine itself?

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Posted in Apartheid, Canada, Gaza, Genocide, Israel, Palestine, United Nations, United Nations General Assembly | Tagged , , , , , , | Leave a comment

An Inversion of Pariah Status:  How Washington is undermining the UN General Assembly as a sanctuary for peace to thwart the ICC

Posted on September 16, 2025 by Mark Kersten

Victor Peskin joins JiC for this guest post on the upcoming United Nations General Assembly. Victor is an Associate Professor in the School of Politics & Global Studies at Arizona State University and a Senior Research Fellow at the UC Berkeley Human Rights Center, University of California, Berkeley. 

(Israeli PM Benjamin Netanyahu speaks at the UN General Assembly in 2024. Photo: CBC)

Next week, state representatives from around the world will mark the 80th anniversary of the United Nations Charter during the annual meeting of the UN General Assembly. The conclave of global leaders will also make headlines for (at least) two other reasons. The event marks the first time a head of state facing an international arrest warrant for atrocity crimes takes the podium in the General Assembly Hall. The September meeting also present the first time the United States has denied another head of state—and that state’s entire travelling diplomatic delegation—the right, under the UN Headquarters Agreement, to ascend the same podium by refusing to issue visas to travel to New York. 

Therein lies an unprecedented forthcoming split screen moment. Israeli Prime Minister Benjamin Netanyahu—who faces an International Criminal Court arrest warrant on charges of committing war crimes and crimes against humanity in the ongoing Gaza war—will make use of the international megaphone granted to all heads of state during the annual General Assembly gathering. But his political adversary, Mahmoud Abbas, the moderate Palestinian Authority president in charge of administrating parts of the West Bank—and who had long pushed for an ICC investigation of the Israeli leader—will remain stuck back home in Ramallah, relegated to addressing the UN by Zoom. 

The 27-member states of the European Union have called on the U.S. to rescind its decision barring Abbas and some 80 other Palestinian officials from visiting UN headquarters. French President Emmanuel Macron—who is poised, along with Canada, Australia, and Britain, to recognize Palestinian statehood at a 22 September conference about a two-state solution—has denounced the Trump administration’s efforts to bar Abbas’ entry to the U.S. as “unacceptable.”Meanwhile, Abbas has launched a diplomatic blitz in the hopes U.S. Secretary of State Marco Rubio will reverse the visa ban. It remains possible that the one-day conference and the General Assembly meeting itself could be moved to Geneva, as occurred in 1988 after the U.S. denied a visa to Palestinian Liberation Organization Chairman Yasser Arafat. Switching the venue might be more likely if, as The Guardian speculates, the Trump administration also uses anti-terrorist laws to bar representatives from Iran, Sudan, Brazil, and Zimbabwe from travelling to New York.

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Posted in Gaza, ICC Prosecutor, ICC Sanctions, International Criminal Court (ICC), Israel, Palestine, Palestine and the ICC, United Nations, United Nations General Assembly, United States | Tagged | Leave a comment

Is this Justice? Prosecuting the Ghost of Joseph Kony at the International Criminal Court

Posted on September 11, 2025 by Mark Kersten

We sat beneath the mango trees at a hotel in Gulu, northern Uganda, the epicenter of a horrific civil war between the Lord’s Resistance Army (LRA) and Ugandan government forces. It was 2011 and the three decommissioned LRA commanders asked me a simple question: did I want to travel to the Democratic Republic of Congo to visit the rebel group’s leader, Joseph Kony? 

This week, the International Criminal Court (ICC) held hearings to confirm the charges of war crimes and crimes against humanity against him, twenty years after an arrest warrant for Kony was issued. Many people will be watching, including some survivors of LRA violence. But Kony won’t be, not in person. The hearings are the first time that the ICC has held in absentia proceedings against a wanted suspect. At a time when the beleaguered Court is under attack, could this latest development bring a sense of justice to victims of LRA violence? Or is the ICC chasing a dead man to satisfy its own interests?

I hold a special place in my heart for Uganda and its people. I have visited numerous times and worked closely with national and international prosecutors on addressing international crimes committed in the country. As a PhD student, I spent three months in the country studying the war, efforts to end it via peace negotiations, and the desire of many to see perpetrators – from both the LRA and the Government of Uganda – held accountable for countless atrocities, including against children. In 2016, my book, which covered the ICC’s intervention into northern Uganda, was published.

It was as a PhD student that I met three former LRA commanders, to interview them about their time in the rebel group. Like many others in northern Uganda, they saw Kony as a messianic figure, a medium to various spiritual forces. Their conviction of Kony’s powers was genuine. They also told me something else: if Kony died, no one would know.

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Posted in International Crimes Division (Uganda), International Criminal Court (ICC), Lord's Resistance Army (LRA), northern Uganda, Uganda | Tagged , , | 2 Comments