New Paper! Taking the Opportunity: Prosecutorial Opportunism and Case Selection at the International Criminal Court

Why does the International Criminal Court target the individuals that it does?

What determines which individuals the International Criminal Court (ICC) targets for prosecution — and which ones escape the Court’s scrutiny? This is a question that has concerned virtually everyone interested in international criminal law and justice. The cases that the ICC selects determines what kind of Court the ICC can hope to be and what sorts of impacts it can hope to have.

Building on research that I conducted for my book, Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, my latest draft paper seeks to develop a theory to explain the thinking behind ICC selection across cases. In doing so, it explores what I call “prosecutorial opportunism”: the identification of opportunities to prosecute particular actors at particular moments in time in order to further the institutional interests of the Court. In the paper, I explore the implementation of prosecutorial opportunism in situations where it has worked (Mali), where it hasn’t (Kenya), as well as situations where a state uses an ICC prosecutorial opportunity to further its only political interests (Uganda).

The chapter will be published in The Elgar Companion to the International Criminal Court, edited by Margaret deGuzman and Valerie Oosterveld next year. An abstract for the paper can found below. A copy of the full draft article can be found here. Please do share your thoughts and feedback!

The decision to prosecute some international criminals but not others has captured the imagination of scholars, observers and communities affected by atrocity since the very onset of the international criminal justice project. Today, it is common to ask: why do prosecutors at the International Criminal Court (ICC) pursue the investigation and the cases that they do? Despite a growing global demand for accountability for international crimes, the ICC has managed to charge just a handful of perpetrators. In some cases, this is due to limitations on the territorial and / or personal jurisdiction of the Court or the resources available to prosecutors.But in others, it is not. In situations in which the ICC has intervened and there is evidence of systematic and widespread atrocities, the Court has only charged a tiny fraction of perpetrators and, typically, only one side of a given conflict. So, what, then, makes ICC prosecutors decide to open specific investigations and target certain perpetrators and not others?

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Posted in Academic Articles / Books, Ahmad Al Mahdi Al Faqi (Abou Tourab), Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, Mali, northern Uganda, Uganda | 1 Comment

Afghans Don’t Know the ICC, but its Hope to Deliver Justice Depends on Making Sure They Do

Ehsan Qaane joins JiC for this post on the role and importance of proactive outreach by the International Criminal Court (ICC) in Afghanistan, where the Court is likely to investigate allegations of war crimes and crimes against humanity,. Ehsan is a co-founder of the Transitional Justice Coordination Group (TJCG), a coalition of 28 Afghan individuals and civil society organisations working on raising the voice of war victims in Afghanistan.

Labourers rebuilding a destroyed shop in Kunduz city, in December 2015 (Photo: Najim Rahim / AP)

Afghanistan is awaiting the apparently imminent announcement of the International Criminal Court (ICC) on whether it will launch an investigation into the allegations of crimes against humanity and war crimes committed by various factions since 2003. But few Afghans feel part of the ICC’s processes, let alone are aware of the Court’s interest. Little has been done by the ICC in over ten years of preliminary examinations to communicate with the Afghan public. But rather than diminishing, the need for the Court to actively and effectively engage with Afghan public and explain its role grows with each passing day.

Judges’ deliberations on the Prosecutor’s request to launch the investigation are taking place in The Hague, which could not be more distant from the realities of Afghanistan. The United States made it clear they will go all out against the ICC in trying to protect its nationals from prosecution. This stance has emboldened all actors in Afghanistan looking to get away with impunity for crimes their forces committed. It is these realities that make the Court’s timely outreach to different groups and constituencies so crucially important, probably more so than in any other context the ICC has dealt with.

The Need for ICC Justice

The first factor driving the need for the ICC to enter the public discourse in Afghanistan is the sheer volume of victims’ demands for justice. These have been the driving force behind the Prosecutor’s request for the investigation to be launched. There is little hope for hundreds of thousands, if not millions, who have suffered at the hands of various combatants in the past 15 years that they will see justice through the state institutions any time soon. The country’s police and judiciary are woefully weak. In some areas it can hardly deliver on simple cases of “ordinary” crimes, let alone in complex cases of crimes against humanity in circumstances where potential perpetrators wield political, military and financial power that almost guarantees them impunity.

While the ICC cannot deliver justice to these multitudes, it has clearly provided hope to many that impunity is not inevitable, as witnessed by the large number of victims who have made some 6000 submissions during the victims’ representations phase, as a result of efforts undertaken by a number of civil society groups. However, before they were reached by activists, victims knew very little about the Court’s existence, let alone about how it operates. Crucially, victims know little about the limitations of ICC’s capacity to properly investigate, indict and arrest potential suspects in contexts like Afghanistan, how it depends on states’ cooperation in most areas of operation, how complex its procedures are and other important aspects of its work. Nor do they understand that the Court will likely narrow its focus to a few individual cases, which in this conflict afflicted low trust society will result in accusations of selective justice, unless the Court’s work is properly understood – and ideally accompanied by significant improvements in the government’s own accountability efforts.

Victim Representation at the Court

The representations phase, which extended from December 2017 to the end of January 2018, could be seen as a test of sorts of the Court’s commitment and capacity to engage with victims in Afghanistan and it would be hard to give it a passing grade. While the Participation and Reparations Section made as much effort as they could within their limited mandate, they were heavily dependent upon civil society.

Parts of the court have been congratulating themselves for relatively high levels of victims’ participation, but the lion’s share of work on informing the victims about the right and means to make submissions to the Court fell to civil society activists who undertook this effort at great risk, in a fairly hostile atmosphere. Continue reading

Posted in Afghanistan, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Outreach, United Nations, United States | Tagged | 1 Comment

Grey Zones: Is International Law Fit for Purpose to Protect Civilians?

Mark Lattimer joins JiC for this post exploring whether the current state of international law is succeeding in its aim of protecting civilians. Mark is the Executive Director of the Ceasefire Centre for Civilian Rights. He is co-editor (with Philippe Sands QC) of The Grey Zone: Civilian Protection Between Human Rights and the Laws of War (Hart/Bloomsbury, 2018), launched at the Swiss embassy in London on 12 September.

A former school destroyed in fighting during Syria’s civil war (Photo: Caritas)

As armed conflicts continue to metastasize in many world regions, is the existing international law protecting civilians fit for purpose, or are there gaps in protection? The answer of most lawyers of armed conflict to this question has long been that the gap lies not in the substantive law but in its implementation.

While the need for implementation is plain, it is also clear that the contemporary face of conflict presents aspects which the framers of the Geneva Conventions and their 1977 Protocols – as well as the major human rights treaties – could hardly have envisaged. The growth of transnational armed groups such as Al-Qaeda and ISIS means that a ‘non-international armed conflict’ can now be fought in many states simultaneously or even, according to some proponents, globally. New technologies in warfare, from armed drones to autonomous weapons systems, radically alter the circumstances under which information is made available to commanders and with it the scope and accountability of decision-making.

Such questions are considered in a new book launched this week, The Grey Zone: Civilian Protection Between Human Rights and the Laws of War. Just looking at the fundamental conflict activities of killing and detaining, the grey areas appear to be wide. With conflict conducted in areas of high population density, there are a number of practical problems in distinguishing civilians from combatants or fighters, but also legal ones. Civilians lose their immunity from attack when directly participating in hostilities, but how is direct participation defined and how long does it last? In Iraq and Syria individuals have been targeted on account of their membership of ISIS or Jabhat al Nusra. But what of members of armed groups who do not engage in combat? What of the driver, the cook, or the recruiter? The treatment of ISIS members and their families is a sensitive subject in Iraq, but it appears to encompass the targeting and/or punishment of those who had no combat function.

The growth in armed conflict jurisprudence from human rights and monitoring bodies has in many cases recast the headline question: rather than identifying gaps in the law, the challenge is to determine which set of laws or legal regimes apply. Should it be human rights law or the international humanitarian law (IHL) applicable in armed conflict? Or indeed both? Continue reading

Posted in Guest Posts, International Humanitarian Law, International Law | Tagged , | 2 Comments

Justice for the Rohingya – What States, like Canada, Can Do Now

This blog was jointly written by Amanda Ghahremani, the Legal Director of Canadian Centre for International JusticeFannie Lafontaine, a professor at Université Laval and Canada Research Chair on International Criminal Justice and Human Rights, and Mark Kersten, a Fellow at the Munk School of Global Affairs and Deputy Director of the Wayamo Foundation. All are members of the Canadian Partnership for International Justice. This opinion is supported by the Montreal Institute for Genocide and Human Rights Studies and Avocats sans Frontières Canada. A version of this article was originally posted at the Huffington Post (in both French and English).

Rohingya_reuters

Refugees along the journey from Myanmar to Bangladesh (Photo: Jorge Silva / Reuters)

Despite the deportation of hundreds of thousands of civilians as well as allegations of genocide and ethnic cleansing, the Rohingya people have been denied recourse to justice and accountability. Some creative and ground-breaking thinking at the International Criminal Court (ICC) may just change that. Now, Canada has a unique opportunity to punch above its weight and make an indelible and lasting commitment to justice for a people who desperately deserve it.

On 6 September, judges at the ICC ruled that the Court has jurisdiction to investigate the crime of deportation committed by Myanmar’s army against the Rohingya, who have been forced to flee the country into neighbouring Bangladesh. This followed numerous legal interventions by experts, including the Canadian Partnership for International Justice, of which we are members, in support of this outcome.

The decision was not uncontroversial. But the ICC’s chief Prosecutor successfully argued that, because deportation is a crime initiated on the territory of a non-member state of the ICC (Myanmar) but completed in a member-state (Bangladesh), it gave the Court jurisdiction to investigate. With a dithering United Nations Security Council and no regional tribunal set up to mete justice, the ICC’s move represents the best opportunity to achieve a degree of accountability for atrocities committed against the Rohingya people.

The ICC’s decision comes on the heels of a scathing UN report published this month detailing violent measures taken by Myanmar’s army to remove and ethnically cleanse the Rohingya and other minorities in the country. The UN Report specifically recommended that top Myanmar military officials be investigated and prosecuted for international crimes. With the ICC’s ruling, this may become a reality.

The UN report, which highlighted forceful measures employed by the Myanmar army, including extrajudicial killings, rape, and torture – crimes that amount to genocide, crimes against humanity, and war crimes – was rightfully met with outrage in Canada. Prominent lawyers and human rights defenders publicly called on the government to revoke nominal Burmese President Ang Sun Suu Kyi’s honorary Canadian citizenship after Suu Kyi was criticized for failing to use her “moral authority” to prevent the escalating violence.

But Canada has a role to play beyond symbolic measures. As members of a network of Canadian scholars and lawyers working on international justice, known as the Canadian Partnership for International Justice, we believe that Canada should absolutely play a leadership role and we urge the Canadian government to champion accountability initiatives within the international community to address the genocide unfolding before our eyes. Continue reading

Posted in Bangladesh, Canada, Canadian Partnership of International Justice , Crimes against humanity, International Criminal Court (ICC), International Criminal Justice, Myanmar, Uncategorized | 1 Comment

New Paper Alert! ‘Hybridization – A Spectrum of Creative Possibilities’

Something that came up when I searched “hybridity” in Google images

At a time of great crisis challenge for the International Criminal Court, hybrid tribunals have come roaring back into fashion. But what does it meant to be a hybrid court and how might the very hybridity of such tribunals be designed to address some of the mosts endemic problems facing the project of international criminal justice? To answer these questions, I have co-authored a paper entitled ‘Hybridization – A Spectrum of Creative Possibilities‘ along with Kirsten Ainley of the London School of Economics.

The paper is part of our ongoing project on hybrid justice (see our symposium on the subject here) and will hopefully be included in a book on the Hissene Habré trial and hybrid courts in the coming year.

I have posted the abstract below. The full draft can be accessed here.

Hybridization – A Spectrum of Creative Possibilities

After a sharp decline in interest, it appeared that the hybrid tribunal had become an “orphan” of the international criminal justice project.  That was not to be. Recent years have seen a spate of hybrids established or proposed, from Syria and South Sudan, to the Central African Republic and Sri Lanka. This re-emergence of the hybrid has been addressed by numerous scholars.  Yet it remains unclear what, precisely, it means to be a hybrid court and how the latest hybrids might contribute to furthering the project of international criminal justice.

The answer to the first question is typically assumed to be simple: hybrid tribunals are “of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.” But hybrids are much more than just middle-ground institutions that marry national and international components. As this chapter demonstrates, they are institutions whose very hybridity creates productive space for creative solutions, which can be used to address some of the most pressing shortcomings in international criminal justice.

This chapter demonstrates hybrid creativity through four specific examples, each allocated to a section of the chapter: (i) the outsourcing of outreach efforts at the Extraordinary African Chambers; (ii) combating victors’ justice at the Kosovo Specialist Chambers; (iii) sharing concurrent jurisdiction between the Central African Republic’s Special Criminal Court and the International Criminal Court; and (iv) using the premises of previous hybrid courts to host new tribunals and therefore reduce the financial and security costs of international criminal justice.

The analysis that follows is optimistic in many ways. We outline what we believe to be beneficial innovations in the pursuit of international criminal justice. However, we recognize both the problems inherent in evaluating the success of tribunals and the criticism that has been levelled against hybrids.  The chapter does not seek to justify hybrid justice tout court but rather to highlight creative responses to challenges in the broader practice which have been developed by hybrids.

Posted in Academic Articles / Books, Central African Republic (CAR), Chambres Africaines Extraordinaires (CAE), Hybrid Court for South Sudan, Hybrid Courts, Hybrid Tribunals, International Court of Justice, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Liberia, Sierra Leone, Special African Chamber (CAE), Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL) | 1 Comment

A Graceful Exit for South Africa’s ICC Withdrawal Plans

The following article was written by former UN High Commissioner, Navi Pillay, former Chief Prosecutor of the Rwanda and Yugoslavia tribunals, Richard Goldstone, and myself. Both Navi and Richard are members of the Africa Group for Justice and Accountability. A version of it first appeared in the Mail & Guardian, here

South Africa International Criminal Court

(Photo: Mark Kersten)

Almost two years after first announcing its intention to withdraw from the International Criminal Court (ICC), it remains unclear whether South Africa will exit the Rome Statute system. Last December, Justice Minister Michael Masutha told a meeting of ICC member-states that the country was forging ahead with withdrawal. A few weeks ago, however, Minister of International Relations and Cooperation Lindiwe Sisulu insisted that no final decision had been made. In the meantime, Jacob Zuma has been replaced by Cyril Ramaphosa as South African President. The issue at hand is whether parliament will pass legislation that could open the doors for the executive to eventually withdraw the country from the Rome Statute of the ICC. There is, however, more than just a sliver of hope that South Africa could find a graceful exit from any plan to withdraw from the Court.

At a recent event held by the Africa Group for Justice and Accountability and organized by the Wayamo Foundation in Cape Town, Minister Masutha stated that the International Crimes Bill – the first required for an ICC withdrawal – would soon be debated in Parliament. Critically, he stressed that parliamentarians would take into account developments relevant to South Africa’s concerns with the Court.

Masutha was specifically referring to two issues relating to the question of head of state immunity before the ICC: first, ongoing proceedings at the Court over Jordan’s 2017 decision to host Sudanese President Omar al-Bashir, who has been indicted by the ICC on charges of war crimes, crimes against humanity and genocide in Darfur; and, second, the decision by the African Union to seek an advisory opinion from the International Court of Justice (ICJ) on the status of head of state immunity under international law.

These yet-to-be-resolved developments are important because they are likely to address the key concerns that South Africa has with the ICC. According to proponents of withdrawal in Pretoria, South Africa cannot remain a member of the Court because it creates conflicting obligations for the government, between, on the one hand, fulfilling its duties under the Rome Statute and surrendering the likes of Bashir to the ICC, and on the other, meeting its obligations to fellow governments and international organizations such as the African Union to protect head of state immunity. This quandary, South Africa insists, makes it impossible to play mediator and peacemaker during negotiations to end violent political conflicts.

This leads to numerous questions: Why would South Africa rush towards an ICC exit before its core concerns are resolved? Why not wait until there is greater clarity and perhaps even compromise on the issue of head of state immunity before throwing in the towel, exiting the ICC, and therefore having no say in the Court’s future development? Continue reading

Posted in International Criminal Court (ICC), International Criminal Justice, International Law, Omar al-Bashir, South Africa | Tagged | 2 Comments

Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea?

Rohingya refugees at the fence before “no man’s land” between the Myanmar and Bangladesh borders. (Photo: AFP / Getty)

Confirming what close observers have long suspected, investigators from the United Nations have determined that Burmese authorities have committed genocide against the Rohingya population. Without any prospects of the Burmese government investigating and prosecuting atrocities committed against a people they won’t even recognize, the latest revelations have predictably led to renewed calls for the United Nations Security Council to refer Myanmar to the International Criminal Court (ICC).

Before proceeding, let me be unequivocal: the ICC or some other competent judicial body should absolutely investigate crimes committed in Myanmar. While I do not purport to speak on their behalf, the Rohingya deserve justice and accountability. But there are real questions as to whether a UN Security Council is the best way to deliver that. Indeed, experience suggests that such referrals can do more harm than good to victims, survivors, the ICC, and justice itself.

The first Security Council referral of a situation to the ICC came in 2005, when Darfur was referred to the Court. The second came six years later, when the 2011 uprising and civil war in Libya was referred to the ICC. Both referrals have done damage to the institution. They included political carve-outs which ensured that citizens of states that were not members of the Court were excluded from its jurisdiction. This violates the very premise of equality before the law. Despite saddling the Court with a significant and difficult task in both Libya and Darfur, the Council also refused to provide the ICC with any commensurate funding.

The results have been brutal for the Court. Not a single individual for whom the ICC has issued an arrest warrant in Libya or Darfur has ever been convicted. Not one. Making matters worse, the Council’s role in referring situations to the ICC has become a keystone criticism of African states towards the Court. While it is true that the Security Council, and not the ICC, should be criticized for the failures to achieve justice in Darfur or Libya, it is clear that the Court has received the brunt of criticism.

Security Council referrals have also done little for those victims who favour ICC justice. They have elevated expectations that justice will be delivered and that the ICC’s investigations and prosecutions will be supported by a united Council. Not only has no justice been achieved in any Council-referred situation in over thirteen years, but in some cases, victims have resigned from participating in the cases altogether.

We should further avoid an argument which suggests that, because Darfur and Libya received referrals to the ICC, Myanmar should have one too. If the tool is broken, it needs to be fixed – not applied again, in the same way with us expecting different results.

Incredibly, none of the organizations, such as Human Rights Watch, that have pushed for a referral by the Security Council of Myanmar to the ICC, have spelled out why anything would be any different this time. Nor have they put forward a vision of what an appropriate referral would look like – one that would be good for victims, survivors, and the ICC. One possible reason for this is that they know a referral will fail, but that the process is, in and of itself, valuable. Continue reading

Posted in Burma/Myanmar, Genocide, International Criminal Court (ICC), International Criminal Justice, UN Security Council | 6 Comments