Big Fish or Little Fish — Who Should the International Criminal Court Target?

Posted on September 1, 2016 by
Ahmad al Faqi al Mahdi during proceedings at the International Criminal Court (Photo: ICC)

Ahmad al Faqi al Mahdi during proceedings at the International Criminal Court (Photo: ICC)

The trial of Ahmad al Faqi al Mahdi has exposed tensions over the kinds of perpetrators that the International Criminal Court (ICC) is expected to target. Al Mahdi, a member of Ansar Dine has pleaded guilty to the war crime of destroying religious sites in Timbuktu, during the 2012 civil war in Mali. But was he the type of perpetrator that the ICC should have been going after in the first place?

Just days after al Mahdi was surrendered to the ICC, he was derided as a “small fish”, unfit for prosecution at the ICC because he wasn’t a sufficiently senior-level perpetrator. Fatouma Harber, a teacher in Timbuktu, wrote that al Mahdi “is just a little fish. But in Mali it is the little fish who are caught.” Mixed in with criticisms that al Mahdi didn’t warrant attention from the ICC, there have also been those who claim that he is, in fact, a senior perpetrator — but of sexual violence as well as cultural crimes.

Criticism of al Mahdi’s trial at the ICC derives from a phrase regularly invoked by the ICC’s prosecutors, namely that the institution seeks to bring those “most responsible” for international crimes to justice. The ICC’s Office of the Prosecutor explains on its website that “[i]t is responsible for examining situations under the jurisdiction of the Court where genocide, crimes against humanity and war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes.”

The question is thus whether al Mahdi can be considered the most responsible for the crimes with which he has been charged — the destruction of mausoleums and shrines in Timbuku. In their articulate essay, Eva Vogelvang and Sylvain Clerc recently argued that al Mahdi isn’t likely to be the most responsible:

“It is questionable whether Al Mahdi is indeed the most responsible for the crimes. He might have been involved in the destruction of the religious buildings, but it is likely that other members of Ansar Eddine and al-Qaeda in the Islamic Maghreb were equally involved in the commission of these crimes. The fact that he was the head of the “Hisbah” does not make him the individual who bears the greatest responsibility for the destruction of religious buildings. Coincidentally, it has been argued that Al Mahdi is on trial because all of the militant leaders of the various extremist militia groups have been killed or otherwise escaped.”

Vogelvang and Clerc conclude that the decision of prosecutors to target al Mahdi “can only be seen as an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction”.

The problem here, and one shared by both critics of the ICC as well as the institution’s prosecutors, is that it hasn’t been made sufficiently clear that the Court can, in certain cases, target low- and mid-level perpetrators when doing so will potentially help to identify and prosecute the most responsible perpetrators. Continue reading →

Posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Cultural Crimes, ICC Prosecutor, International Criminal Justice, Mali | 2 Comments

The al-Mahdi Case is a Breakthrough for the International Criminal Court

Posted on August 25, 2016 by

The following article was originally posted as an op-ed for the Globe and Mail.

The rubble of a destroyed mausoleum in Timbuktu, Mali (Photo: Joe Penney / Reuters)

The rubble of a destroyed mausoleum in Timbuktu, Mali (Photo: Joe Penney / Reuters)

The trial of Ahmad al-Faqi al-Mahdi at the International Criminal Court represents a number of firsts for global justice. It is the first time that the destruction of cultural sites has been prosecuted as a war crime at the ICC. It is the first time that an Islamic radical has been prosecuted at the ICC. And it is the first time that anyone facing judges in The Hague has pleaded guilty.

The trial of Mr. al-Mahdi, a member of Ansar Dine who accepted responsibility for destroying UNESCO-protected shrines in Timbuktu, Mali, is a significant victory for the still-young court. What is less clear is how this case will resonate around the world, and whether it can deter similar crimes.

The first 15 years of the ICC’s existence have been tumultuous. While the court has managed to prosecute a handful of militants responsible for mass atrocities, it has had its fair share of failures. Sudanese President Omar al-Bashir has been free since becoming the first person charged by the ICC for genocide. Joseph Kony, the notorious leader of the Lord’s Resistance Army, continues to wreak havoc in Central Africa, 10 years after being indicted. The trials of Kenyan President Uhuru Kenyatta and Deputy President William Ruto collapsed as a result of a lethal combination of shoddy case construction by ICC prosecutors and Kenyan political interference. Today, the court faces accusations that it is biased against Africa. It also has a woefully limited budget, especially for an institution tasked with ending impunity for international crimes. The al-Mahdi trial represented an opportunity to break with this litany of controversies.

Mr. al-Mahdi’s surrender to the ICC caught observers by surprise. He had been toiling in a jail in Niger when, following the issuance of a sealed arrest warrant, ICC officials flew to Bamako, got the necessary paperwork signed by government officials, and flew Mr. al-Mahdi to The Hague. Insiders immediately believed that he would plead guilty. He couldn’t hide from his crimes; they were captured on camera. Moreover, he was likely targeted by the ICC in part because he promised to co-operate with prosecutors. Maybe he was motivated to do so by genuine remorse. Or perhaps he preferred the ICC’s prison in Scheveningen over detention in Niger or Mali.

His arrest satisfied two of the ICC’s interests. First, it could efficiently conclude a groundbreaking case without expending many resources. Second, it now has custody over someone who is likely to give investigators evidence of violent crimes committed against human victims. This was particularly important given that the ICC has yet to indict anyone for murder or sexual violence in Mali, despite calls to do so.

That at least two African states – Mali and Niger – co-operated with the ICC is likewise useful in combatting the perception that Africa is somehow “against” the court. So too is the fact that the ICC put a terrorist on trial for war crimes. Most crucially, however, the court tapped into global outrage about the destruction of cultural heritage sites. While the court has no jurisdiction in Syria or Iraq, where Islamic State fighters have wantonly obliterated historic sites, it could do something about the destruction of Timbuktu shrines. In prosecuting Mr. al-Mahdi, the ICC joined with UNESCO to form a new front line against the violent destruction of culture. Continue reading →

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Some Thoughts on the al Mahdi Trial and Guilty Plea

Posted on August 24, 2016 by

For all interested readers, below are some thoughts that I shared in an interview with the University of Toronto News on the trial and guilty plea of Ahmad al Mahdi. JiC will have more analysis on this groundbreaking trial in the coming days.

Ahmad al Mahdi during trial proceedings at the International Criminal Court (Photo: ICC Flickr)

Ahmad al Mahdi during trial proceedings at the International Criminal Court (Photo: ICC Flickr)

What specifically about this case is unprecedented?

While the destruction of cultural sites has been prosecuted before, the al-Mahdi trial marks a number of ‘firsts’ for international justice and the International Criminal Court (ICC) in particular. It’s the first time that anyone has been prosecuted for destroying cultural sites as a war crime at the ICC. Al-Mahdi, who has accepted responsibility for demolishing shrines and mausoleums in Timbuktu, is also the first-ever Islamic radical and the first citizen of Mali to be put on trial at an international criminal tribunal. For the ICC, it is the first time that anyone charged by the Court has pleaded guilty.

Why has the ICC chosen to proceed with al-Mahdi’s trial proceed despite his guilty plea?

Neither al-Madi’s defence nor the prosecution can avoid the official procedures of the court  — nor should they. There may be questions that judges would like clarified by al-Mahdi’s defence team, the prosecution, and the accused himself. This is in the international public’s interest. If there were no trial hearings, al-Mahdi would not have been able to so publicly announce his regret for the crimes he committed nor implore other Muslims to avoid following his destructive path. Moreover, the prosecution and defence team struck a plea agreement which stipulates that if ICC judges give al-Mahdi a sentence of somewhere between 9 and 11 years, no party to the proceedings will appeal. The court’s judges are not bound by that agreement, even if they have an interest in following it in line with their commitment to efficient proceedings. Judges will want to probe other aspects of the trial and the plea agreement. And victims and survivors in Mali have the right to see al-Mahdi face questions over his motivations, his remorse, and the likelihood of him re-committing crimes in the future. Nevertheless, the trial should move very swiftly and will undoubtedly be the shortest trial at the ICC to date.

What is the significance of the ICC prosecuting war crimes that target the destruction of culturally important sites?

There has been widespread international condemnation of the destruction of cultural sites. Yet, before this week, there was very little legal recourse to prosecute those who perpetrate such cultural crimes. The acts of wanton vandalism and destruction by ISIS fighters in Palmyra and the obliteration of Bimayan Buddhas by the Taliban stand out as just two recent examples that have spurred international outrage at the loss of cultural antiquities. The ICC wanted to tap into that unified sense of anger and has sought to present itself as a relevant actor in holding perpetrators of cultural crimes to account. Because of its limited jurisdiction, it couldn’t achieve either of those aims in Syria or Afghanistan. But it could in Mali. Together with UNESCO, I think the ICC is positioning itself as the frontline of protecting cultural sites in time of war and violent political conflict. Whether they can successfully do so remains to be seen, but al-Mahdi’s trial is undoubtedly a momentous event in that mission. Continue reading →

Posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Cultural Crimes, International Criminal Court (ICC), International Criminal Justice, Mali, War crimes | Tagged | 3 Comments

Offshore Justice: Could Australia End Up Facing the ICC for Abusing Asylum-Seekers?

Posted on August 18, 2016 by
A flyer released by the Australian Government in a campaign to stop asylum-seekers from coming to Australia

A flyer released by the Australian Government in its campaign to stop asylum-seekers from coming to Australia

As one notorious detention centre shows some signs of closing, another has emerged as the focus of global condemnation. With the release of 15 detainees, U.S. President Barack Obama is now one step closer to his long-standing goal of closing Guantanamo Bay. At the same time, it has been revealed that asylum-seekers hoping to make a new life in Australia have been regularly abused in facilities set up by the Australian government in Nauru, a tiny Pacific republic.

Since 2013, the Australian government has taken a “zero tolerance” approach to individuals seeking to illegally migrate to Australia by boat. Irrespective of their situations or the dangers they may otherwise face, the government gives them a simple option: they can go back, find some other country that will take them. Or they can live in the dusty, sweltering, secretive, and caged-in holding facilities in Nauru or Manus Island, which is part of Papua New Guinea. Staff working at those facilities have consistently complained of the horrendous, inhumane conditions faced by the people living there. According to leaked reports published by The Guardian, thousands of alleged abuses have gone uninvestigated. More than 50 percent of those reports involve children. They include allegations of sexual assault and self-harm or threats of self-harm by minors.

Nothing, including the current refugee crisis in Europe, the tireless work of human rights advocates in the country, and the release of an investigative documentary on the subject, has been able to budge the Australian government towards a more compassionate approach to the people seeking refuge in the country. On the contrary, due to the fact that the facilities aren’t directly run by Australia or are located in overseas Australian territories, the government seeks regularly to wash its hands, stubbornly maintaing that any alleged abuses are up to (the poorly equipped) authorities in Nauru or Papua New Guinea to investigate. Another popular justification relies more on a xenophobic logic, insisting that Australia simply can’t accept more migrants and still be Australian.

In reaction to allegations, from its own staff no less, the Australian government has now decided to close its detention facility in Manus Island. It remains unclear what will happen with those currently living there. Moreover, there has been no word on whether the asylum centre in Nauru will be closed. But a larger question remains: do the abuses at these facilities – and the negligent approach to them by the Australian government – amount to crimes against humanity? And if they do, should the ICC intervene?

According to Richard Ackland, the answer is yes — the ICC can and should intervene:

“It’s hard to imagine [Australian Prime Minister] Malcolm Turnbull, [Immigration Minister Peter] Dutton and other ministers in the same Hague dock as Congolese warlords who conscript child soldiers. Yet, it is quite plausible that the ICC could mount a preliminary examination into Australia’s shocking treatment of offshore detainees who sought our protection under the Refugee convention.

“Even a preliminary examination by the ICC would be a major embarrassment for Australia which, so far, has been beyond embarrassment in the ruthless implementation of ‘border protection’. It would flag internationally a pariah status for a country that wantonly abuses human rights, particularly as there are policy options far more humane than the one preferred by successive governments.”

This isn’t the first time that it has been suggested that the ICC examine allegations of abuses against asylum-seekers in Australian detention facilities. In 2014, Andrew Wilkie, an independent member of parliament, insisted that the Australian government was committing crimes against humanity against asylum-seekers and requested that the ICC investigate.

Continue reading →

Posted in Asylum-Seekers, Australia, Crimes against humanity, International Criminal Court (ICC), International Criminal Justice, Nauru, Preliminary Examinations, Refugees | 1 Comment

A Test of Our Resilience – An Interview with the ICC Deputy Prosecutor

Posted on August 10, 2016 by

In July, Shehzad Charania interviewed James Stewart, the Deputy Prosecutor of the International Criminal Court (ICC). Their interview covers Stewart’s journey to the ICC, his thoughts on the Court’s challenges and disappointments to date, and his hopes for the institution’s future. Click here to read Shehzad’s interviews with other key figures at the ICC and the world of international criminal justice.

ICC Deputy Prosecutor James Stewart (right) speaks with ICC Prosecutor Fatou Bensouda during court proceedings. (Photo: ICC)

ICC Deputy Prosecutor James Stewart (right) speaks with ICC Prosecutor Fatou Bensouda during court proceedings. (Photo: ICC)

Late last month, I went to the International Criminal Court to see Deputy Prosecutor James Stewart.  Stewart was elected by the Assembly of States Parties in November 2012, and took his oath in March 2013.  As he passes the three year point of his nine year mandate, it feels like a good time to take stock as second-in-command in the Office of the Prosecutor (OTP).

I begin by asking about Stewart’s journey to the ICC.  “It was not straightforward,” he laughs.  Stewart was a career prosecutor in Canada when by chance he met Richard Goldstone, then the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).  Goldstone spoke to a small gathering, and praised the working of Canadians in Rwanda. Stewart was intrigued. “Who were these fellow countrymen doing such interesting work?” he thought. His next encounter in the world of international criminal justice was with Louise Arbour, a fellow Canadian and Goldstone’s successor as Chief Prosecutor. At the time, Arbour was also a Judge at the Court of Appeal for Ontario, and Stewart had appeared before her many times. He describes her as his inspiration in the field of international criminal justice. During a social occasion, he asked her whether she needed lawyers at the ICTR. Two months later, he got a call – the ICTR was looking for bilingual prosecutors. Stewart soon found himself in Arusha in the mid-1990s as Senior Trial Attorney.

In 1999, Stewart moved to The Hague to become the first Chief of Prosecutions at the ICTY.  He returned to Canada a few years later, thinking he was home for good. But in 2004, he found himself back at the ICTR, becoming the Chief of Appeals. This was an “extraordinary experience” for Stewart, as he began to build a whole new section from scratch following the decision of the UN Security Council to separate the ICTY and ICTR prosecution offices.  Stewart returned to Canada in 2007, but his biggest challenge was still to come. In 2012, he received an email from a friend alerting him to the role of ICC Deputy Prosecutor under the new Chief Prosecutor Fatou Bensouda.

But the process of having to go through an election to win the role did not come naturally to Stewart.  “I was completely and utterly lost – I had no idea what to do,” he says candidly. He soon realised he would have to “campaign” for votes, within the diplomatic community in New York, The Hague and Brussels. Although not a national candidate, he is grateful for all the guidance and logistical support offered by Canadian officials as he navigated the minefield of international legal diplomacy for the first time.

Once Stewart was sworn in, work began. His early feelings were positive. “I had the impression that under Fatou Bensouda, the Office of the Prosecutor was embarking upon a great shift in its way of working, and its culture.” He understood he was entering “an institution in flux, looking to redefine itself” after some difficult decisions and results in the courtroom.  Stewart saw gaining the trust of the Judges as one of his very first objectives.  “Without this trust,” he says, “the Prosecution cannot achieve anything.”

One of the reasons why the OTP, by its own admission, required a change in direction was because of the failure of the Kenya cases. In April this year, the Judges vacated the charges in the case against Deputy President William Ruto.  Last year, the case against President Uhuru Kenyatta collapsed.

“Very, very tough” is how Stewart describes the OTP’s experience with the Kenya cases. One of the worst aspects, he says, “was the sense that we had failed those individuals and communities who had no other recourse to justice.” But it was difficult in other ways too.  Stewart is used to the combative nature of the courtroom.  But it was the “diplomatic offensive”, on a number of levels and in a variety of forums, which he had never encountered before. “It brought home how difficult the work can be if you have people determined to undermine you at every turn,” he says. Stewart is keen to emphasise the findings of the majority in the Ruto case, in particular around witness interference and “political meddling”. This was not something the OTP had expected the Judges to say. At the same time, he is clear that the OTP is still learning lessons.  “We have had to go through a process of self-examination,” he says. This has yielded results, according to Stewart. Under a new prosecutorial strategy, the OTP now took more time and care to build their cases, aiming for those most responsible, ensuring trial-readiness as early as possible, and securing diverse forms of evidence. They had also become much more adept at framing requests for information and evidence from States. And they understood much better the importance of developing partnerships and relationships with key actors within Governments in situation countries. Continue reading →

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There is no system of international justice against Africa because there is no system of international justice

Posted on July 28, 2016 by
(Photo: Xinhua)

(Photo: Xinhua)

Following the twenty-seventh African Union summit, it seems brighter days may lie ahead for the tumultuous relationship between African states and the International Criminal Court (ICC). In the wake of the summit, which took place earlier this month in Kigali, Rwanda, numerous reports suggested that African states stood up in support of the ICC and actively prevented the issue of a mass, Africa-wide withdrawal from the ICC landing on the official agenda of the gathered African heads of state.

Following the collapse of the cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto, the need to expend valuable political and diplomatic resources on condemning the ICC as “biased” and “neocolonial” seems to have dissipated. Still, tensions between African states and the ICC are unlikely to evaporate any time soon, and there were still pockets of dissent among certain African officials.

One outspoken critic of the ICC’s interventions in Africa and role in global politics was the presiding officer of the Economic, Social and Cultural Council of the African Union, Joseph Chilengi. During the summit, Chilengi lambasted the Court’s record:

“How can the Security Council made up of America not a member and state party to the ICC, Russia not a member and state party to the ICC and all other countries who are not members be given prosecutorial right to refer a head of state to the ICC?

“What kind of international justice system is that? This international justice system is constipated with a lot of nonsense, and the consequences will come back to haunt us again.”

Few would, indeed could, argue that there is balance on the global political playing field upon which the ICC plies its trade. It has and continues to favour the powerful. The Court has not been able to transcend the global institutions and regimes, like the United Nations Security Council, that reinforce the might of great powers, often at the expense of weaker and developing nations. It also hasn’t managed its relationship with heavily politicised bodies like the Council or with powerful states particularly well. But neither has the ICC established an “international justice system”. One simply does not currently exist.

In 2009, professor of law Cesare P.R. Romano observed that there was no international judicial system because the existence of one would imply “a level of coordination that does not exist yet”. More recently, Stephen Rapp, the former Ambassador at-large for War Crimes Issues under U.S. President Barack Obama, bluntly pronounced that “[t]here isn’t a global system of justice, just some cases in The Hague and a few other places”. At best, there currently exists a loose and thin network of actors and institutions that espouse and pursue international criminal justice. It only works sometimes, and not always on the basis of the gravity of crimes or the need for accountability, as the absence of any justice in Syria, South Sudan and North Korea make clear. The application of this network remains piecemeal and, despite the permanency of the ICC, ad hoc.

These two observations — that no system of global justice currently exists and that  international criminal justice is applied unevenly across the globe — are not unrelated. On the contrary, it is the absence of a more coherent and consolidated system (or at least more entrenched network) of global justice that permits international criminal justice to be applied so asymmetrically. Thus the conundrum for opponents of the ICC, including those seeking to undermine the institution by having African governments withdraw their membership in the Court, is that doing away with the ICC would likely exacerbate rather than alleviate the conditions that produce the uneven application of justice in the first place. Continue reading →

Posted in Africa, African Union (AU), International Criminal Court (ICC) | 1 Comment

A Life of Legal Principle, Not of Politics – An Interview with Theodor Meron

Posted on July 27, 2016 by

Earlier this month, Shehzad Charania visited Judge Theodor Meron in The Hague. They spoke of Meron’s life as a legal advisor, diplomat, and as one of the most influential jurists in the history of international criminal justice. The following is Shehzad’s interview with Meron. His previous interviews with key figures in the world of international criminal law can be found here.

Judge Theodor Meron (Photo: Voices of the Tribunal)

Judge Theodor Meron (Photo: Voices of the Tribunal)

In early July, I paid a visit to President Judge Theodor Meron at his office in The Hague. I had gotten to know him well over the last three years, and wanted to take the opportunity to record his fascinating career. Judge Meron is currently the President of the UN Mechanism for International Criminal Tribunals (UNMICT), Judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), and a visiting professor at Oxford University. He has, amongst other roles, been the Legal Adviser to the Israeli Ministry of Foreign Affairs, Israeli Ambassador to Canada, Permanent Representative to the Israeli Mission at the United Nations in Geneva, Counselor on International Law at the US State Department, a Professor at NYU and the Geneva Graduate Institute of International Studies, Visiting Professor at Harvard and Berkeley, and editor in chief of the American Journal of International Law. He is also a leading scholar of Shakespeare and war.

I began by asking Meron about his childhood growing up in a labour camp in Poland. “Surviving in ghettos, hiding in lofts, losing most of my family and spending several years in a forced labour camp is not something I would wish for any child”, he told me. He emerged from the war with a yearning for school and “normality”. Education soon became an obsession. The impact of the war led him into international law, in particular the fields which held the promise of reducing the risk of the atrocities, violence and chaos he had experienced during his childhood.

Meron’s first senior role came when he was appointed Legal Adviser to the Israeli Ministry of Foreign Affairs, replacing Professor Shabtai Rosenne. In 2006, an article by Gershom Gorenberg in the New York Times revealed an opinion Meron had written in 1967, in the aftermath of Six-Day War after the Israelis had captured the West Bank and Golan Heights. In a memo marked “Top Secret”, Meron concluded that “civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention”. A year later, Meron wrote a further opinion, noting that demolitions of houses and deportations of Arabs suspected of subversive activities would violate the Fourth Geneva Convention, and may constitute collective punishment.

“My concern in both opinions”, argues Meron, “was not only ensuring respect for humanitarian law but also for human rights”. He was particularly worried about the need “not to change the demographic and cultural character of the occupied territories”. But what about the reaction he had received to those opinions at the time? There were no negative repercussions, he said. “I think those who read them understood that taking the positions was for me a question of legal principle, not of politics”. He is clearly proud of what he had written, and that he had had “the guts” to say what be believed.

Meron worked at the Israeli Foreign Ministry until the mid-1970s. In 1977, he returned to New York, where a decade earlier he had served at the Israeli Mission to the United Nations, mostly on the Fifth Committee of the General Assembly. He later wrote a book based on his experience of the UN Secretariat. Following postings to Ottawa as Ambassador, and Geneva as Permanent Representative to the United Nations, Meron entered academia at NYU Law School, where he would remain for two decades. During that time, he became a US citizen. It was his adopted country which would ask him to join the US Delegation to travel to Rome in 1998 to negotiate the ICC statute.

It was an “extraordinary experience”, says Meron. A “heady, exciting time, with long days and even longer nights”. But it was also a challenging period for the US delegation. While the members of the delegation were sympathetic to the idea of international criminal justice, and the establishment of the ICC in principle, there was some trepidation and even fear of the court in Washington. One of the US Senators most opposed to the idea of the ICC was Jesse Helms. Members of his office were in Rome closely observing the negotiations and, in particular, what the US delegation said and did. But while the career diplomats had to be cautious, Meron as an academic member of the delegation was not under the same constraints that applied to those from the State Department or the Department of Justice. It meant that he was heavily involved in drafting what became Article 7 of the Rome Statute on Crimes against Humanity, as well as other key provisions. He, like others on the delegation, believed in the ICC project, and genuinely felt that they were “changing the world for the better”. Continue reading →

Posted in ICTY, International Criminal Court (ICC), Interview, Israel, United States | Tagged , | 1 Comment