Long live the Empire? Seeking justice and the case of the Chagos Islands

Thamil Venthan Ananthavinayagan joins JiC for this post on the Chagos Island and the self-determination of its people. Thamil, LLM. (Maastricht University), PhD (NUI Galway), is a lecturer at Griffith College Dublin since September 2017. Prior to this lectureship at GCD, he worked as a Fellow and research assistant to the Irish Centre for Human Rights in Galway, Ireland.

The Chagos Islands (Photo: Al Jazeera)

Colonialism has not ended – this is the brief, yet accurate description of the current state of affairs in light of the aftermath to the International Court of Justice (ICJ) Chagos Advisory Opinion (AO).  In summary, the Court held that the separation of the Chagos archipelago from the British colony of Mauritius contravenes international norms, in particular the right to self-determination. More precisely, the ICJ enunciated:

(…) 177. The Court having found that the decolonisation of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, it follows that the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State. It is an unlawful act of a continuing character which arose as a result of the separation of the Chagos Archipelago from Mauritius.

178. Accordingly, the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonisation of its territory in a manner consistent with the right of peoples to self- determination. (…)

Despite this, the United Kingdom has failed to meet the obligations to complete the unfinished  business of decolonisation with a deadline which was set for the 22nd of November 2019, with the Foreign Office (and hence her Majesty’s Government) quietly rejecting to abide by the AO of the ICJ.  The Chagos case reveals the weaknesses of an AO – despite the moral impetus, international law is eviscerated of its force due to prevalent hegemony of powerful states, here with the existence of the United States and the United Kingdom. Postcolonial international law continues to be manipulated to serve the interests of the powerful few. It is simply a sequel to colonial international law. Second, the Chagos case reveals a far more important aspect in postcoloniality: justice cannot be achieved as long as imperialism lives an afterlife in the shadows of colonialism. To this end, this article will consider the following questions: what is the role of justice in postcoloniality? More precisely: what is the liberating force of justice in postcoloniality?

A harrowing monument of the Empire in the Indian Ocean:

 The Court is the gravity centre for international justice within the United Nations systems, its prime judicial organ. However, the Chagos case has amplified the limits of international justice when faced with imperialism, which requires the heritage of its Empire to thrive and aggravate its power. French imperial theorist Jules Harmand held once 

there exists a hierarchy of races and civilisations, and (…) we belong to the superior race and civilisation (…) The basic legitimation of conquest over native peoples is the conviction of our superiority, not merely our mechanical, economic, and military superiority, but our moral superiority. Our dignity rests on that quality, and it underlies our right to direct the rest of humanity. Material power is nothing but a means to that end.

Insofar as British government holds that ‘the UK has no doubt about our sovereignty over British Indian Ocean Territory (BIOT), which has been under continuous British sovereignty since 1814’ , it begs the questions: what kind of sovereignty replaced the existing one? The Chagos Islands tale is the evidence that colonialism is not only existing, but reproducing and reinforcing the structures of Western imperialism in the present. For China Mieville, by contrast, colonisation was to be understood not so much in terms of its content, but in terms of the imperialism of its form:

Colonialism is in the very form, the structure of international law itself, predicated on global trade between inherently unequal polities, with unequal coercive violence implied in the very commodity form. This unequal coercion is what forces particular content into the legal form.

 It would go beyond the scope of this article to give a full picture of the colonial injustice the Chagossians had to endure (and a snapshot would not give any justice to the suffering). But it is necessary to give an idea of the origins of this suffering. Continue reading

Posted in Chagos Islands, Guest Posts, International Court of Justice (ICJ), United Kingdom | Tagged | 1 Comment

Short-List for the Next ICC Prosecutor is Out!

The International Criminal Court (Photo: SHL)

So, there you have it.

After months of waiting in anticipation, we now know that one of the following four individuals will become the next chief Prosecutor of the International Criminal Court (ICC):

  • Morris A. Anyah (Nigeria), currently a trial attorney in the Law Office of Morris A. Anyah, LLC in Chicago, Illinois, U.S.A.
  • Fergal Gaynor (Ireland), currently Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia;
  • Susan Okalany (Uganda), currently a judge of the High Court of Uganda and a judge in the International Criminal Division of that Court; and
  • Richard Roy (Canada), currently Senior General Counsel with the Public Prosecutor Service of Canada.

The immediate reaction to the list has been shock. That largely has to do with the fact that some international criminal law heavy-hitters were rumoured to be in the running – and they’re not on the list. As Patryk Labuda states, “none of the favourites made the cut”. Indeed, many qualified candidates applied for the post, undoubtedly making the process a better and richer one, but did not make the final cut.

The list is undoubtedly far from what the rumour mill and speculation would have led one to believe. Few of the so-called ‘favourites’ made the list, some for good reason. In the coming days and weeks one hot-top to be debated is whether the ICC needs fresh blood. For those that believe it does, this list may be a starting point.

Alexandra Lily Kather has said that the list had “no alarms” but some positive surprises. For ML Simms, it seems that the list brought together “fairly neutral candidates, persons without a huge footprint” in the international criminal law world.

Others may feel that while the Court could have used new blood, some of the candidates are simply too distant from the international criminal law world. That can come with its own downsides. Owiso Owiso observes, for example, that lesser known candidates will have their work cut out form them: “they probably have to ‘introduce’ themselves to a very unforgiving, impatient and insular [international criminal law] world. I don’t envy them.”

For yet others, their favoured candidate’s absence from the list will surely be a source of consternation.

The regional, gender, and legal system breakdown of applications for the ICC Prosecutor job can be seen in the chart below, and indicate that the largest group pf applications came from Africa and the ‘Western European and others group’. Just under 71% of applicants were male.

The list will no doubt take some digesting. In full disclosure, I only know anything substantive about the work of two of the four candidates, Gaynor and Okalany, although I know a bit about Mr. Roy’s work in Canada, on the SNC Lavalin case, about which I have previously written. A full report (update: now available here) on their qualifications and expertise will be forthcoming, permitting greater understanding of their backgrounds and abilities. On Twitter, Kevin Jon Heller has already begun posting some of that information. Hopefully the candidates will also engage transparently with civil society actors and speak to their abilities and visions for the ICC too (see below). Continue reading

Posted in ICC Prosecutor, Next ICC Prosecutor, Next Prosecutor Symposium | Leave a comment

It’s About Time: Calling on the ICC investigate Atrocities Perpetrated by former DRC President Kabila

An election poster featuring Joseph Kabila (Photo: Nic Bothma/EPA)

It is no secret: the International Criminal Court (ICC) struggles to bring to justice perpetrators from all sides of the conflicts that it intervenes in. That is true for many of the situations under ICC investigation. In Uganda, only members of the Lord’s Resistance Army have been targeted by the ICC. In Cote d’Ivoire, only members of the former government have been prosecuted by the Court. This one-sided justice is also apparent in the Democratic Republic of Congo (DRC).

The DRC was one of the first situations where the ICC opened an investigation. Yet fifteen years later and despite ongoing atrocities and subsequent warnings from the ICC Prosecutor, only a handful of individuals have been brought to justice. None have been members of the regime of former President Joseph Kabila. That must change.

I am proud to announce that the Canadian Partnership for International Justice (CPIJ), where I am a collaborator, has decided to challenge the asymmetric approach to justice in the DRC and to call on the ICC Prosecutor to investigate atrocities committed by Kabila and his agents. The CPIJ’s full letter (in both English and French) to the Prosecutor can be found here. Here is an excerpt:

Re: Atrocities committed in the Democratic Republic of Congo by former President Joseph Kabila Dear Prosecutor Bensouda:

We write to urge the Office of the Prosecutor (OTP) to investigate former President Joseph Kabila and senior officials from his government for the commission of crimes against humanity in the Democratic Republic of Congo (DRC). Ongoing impunity for these crimes has contributed to a climate of fear and an alarming escalation of political violence in the DRC, including in Ituri, amid rumours that President Kabila is planning to return to power.

Although the OTP has previously investigated and prosecuted a handful of perpetrators of international crimes in the DRC, these cases have been limited to members of rebel and opposition groups. Regrettably, the OTP has yet to seriously address the role and responsibility of President Kabila and relevant government officials in the commission of politically motivated violence including killings, arbitrary detentions, torture, sexual violence, enforced disappearances, and persecution.

We would like to draw your attention to three instances of bloodshed and brutality that exemplify the nature and gravity of crimes attributable to President Kabila and his senior military and political officers.

….

Last year, the OTP did not undertake an investigative mission to the DRC in the face of mounting evidence that national courts are either unwilling or unable to genuinely investigate and prosecute the culprits of these crimes. 24 Former President Kabila and his senior officials still control much of the government in the DRC, including a highly partisan judiciary.25 In 2018, President Kabila further entrenched his impunity by passing a decree that effectively immunises former heads of state from criminal prosecution.26 Conversely, independent judges, prosecutors, and human rights advocates who courageously pursue truth-seeking and accountability regularly face imprisonment, torture, harassment, death threats, and even assassinations.27

Continue reading

Posted in Canada, Democratic Republic of Congo, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged , | Leave a comment

Crossing the Line – Trump Approves Sanctions against Staff at the ICC

A version of this article was originally published at the CBC.

Canadians attacked by US actions abroad need more than 21 seconds of silence. (Photo: Getty / NPR)

Now, it’s personal.

Washington has long opposed its citizens being investigated for alleged war crimes and crimes against humanity by international tribunals. But the decision of President Donald Trump to issue an executive order authorizing economic sanctions against staff at the International Criminal Court (ICC) is a reckless and irresponsible escalation that deserves a strong response.

This is no longer just a political tiff between Washington and The Hague-based Court. Canadians are being targeted with coercive measures in an act of outright hostility towards civil servants and diplomats.

The Canadian government must stand up to defend them.

Since the ICC’s creation, its relationship with the U.S. has been tumultuous. President Bill Clinton signed the Rome Statute of the ICC, but his successor George Bush “unsigned” it. The U.S. has never come close to becoming an ICC member state.

No American administration has ever accepted that the Court should be an independent institution, free from the political prerogatives of powerful states and the United Nations Security Council. This position has often translated into active hostility towards the ICC, with pressure exerted on states not to cooperate with the Court.

Even during the most productive years in the ICC-U.S. relationship, those under former President Barack Obama, the U.S. did not accept that the ICC could have jurisdiction over American citizens, and its support for the Court was piecemeal.

The relationship has reached new levels of toxicity under Trump.

In response to the ICC’s courage in standing up to U.S. bullying and investigating the alleged crimes of powerful states, Trump rolled out notoriously anti-ICC firebrand John Bolton in Sept. 2018 to declare that the ICC was “dead” to the United States. In April 2019, Secretary of State Mike Pompeo threatened sanctions against ICC staff, including chief Prosecutor Fatou Bensouda whose U.S. visa he revoked. He added Canadian Sam Sasan Shoamanesh, Chef de Cabinet to the Prosecutor of the International Criminal Court, as a possible target this past April.

Now Washington has taken issue, to put it lightly, with the ICC’s decision in March to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan, including by American armed forces and the Central Intelligence Agency. For the first time in history, accusations of atrocities committed by U.S. citizens abroad are being investigated by an international tribunal.

In response, the Trump administration has reacted bombastically, with Pompeo last week calling the ICC a “kangaroo court,” among other pejorative terms. Continue reading

Posted in Canada, Donald Trump, International Criminal Court (ICC), International Criminal Justice, Sanctions | Tagged | 2 Comments

Struggling with Empathy – Acknowledging the Humanity of Defendants in International Criminal Trials

Radhika Kapoor joins JiC for this guest-post on empathy and defendants at international tribunals. Radhika is a Harvard Kaufman Fellow at the Public International Law and Policy Group, Washington DC. She graduated from Harvard Law School’s Master of Laws Program in 2019, and is currently working on peace negotiations in Sudan and transitional justice in BangladeshThe views and opinions expressed in this article are those of the author and do not necessarily reflect those of her organization.

Viewers watch the trial of Slobodan Praljak (Photo: Reuters / Dado Ruvic)

Given the nebulous structure of the international criminal justice project and the uncertainty of its purpose, it is difficult to formulate a coherent framework to evaluate its efficacy or success. Does an international criminal tribunal intend to establish a historical record, to develop a means to deter potential war criminals from engaging in similarly pernicious acts, or to dampen recurrence rates?

While every one of these options merits lengthy analysis, here I examine one remarkable, albeit contested, function served by international criminal trials: that of humanizing the international criminal defendant. I also assess whether this may be useful in the context of understanding atrocity, transitioning to stability, and finding space for empathy.

Showcasing Humanity at International Criminal Courts

Watching the graphic documentary screened at Nuremberg to illustrate the horrific conditions of German concentration camps, Nazi defendants had varied reactions: while the New York Times recorded the prisoners as “the coolest and most collected spectators,” prison psychologist Gustave Gilbert remembered differently. Per his account in Nuremberg Diary, defendant Hjalmar Schacht refused to watch the film; Albert Speer looked sorrowful; Arthur Seyss-Inquart seemed impassive; Hans Frank was tearful. Gilbert’s insight into the defendants’ psychological states is illuminating, making the viewer realize that while each of these persons was implicated in a systematic policy of murderous criminality, they all nevertheless undertook vastly dissimilar mental journeys during the trial. It also raises questions about the capacity of humans to respond to public castigation: In such a situation, where the worst of one’s acts are revealed to the world – a moment which for some defendants possibly marked their first encounter with the ‘truth’ – would one show dignity, stoicism, or remorse?

Such glimpses into the humanity of the defendant are transformative for the viewer or reader: it precludes her from considering the defendant as a monolithic, one-note monster. This experience can be uncomfortable; there are few things as disconcerting as tempered hatred, or the sensation of lukewarm outrage against an evildoer. However, a confrontation with the humanity of the perpetrator holds tremendous significance.

First, criminal justice processes predicated upon rejecting the humanity of the accused can help perpetuate the precise animosities that they purport to curb; the institutionalized, egregious human rights abuse of suspected terrorists in Guantánamo Bay has become a “rallying point in jihadist propaganda.” Furthermore, dehumanization may have ripple effects, culminating in fear or otherization of an entire group for the actions – real or perceived – of a few. We may muse today, for instance, whether the mere fact of being Muslim plays a part in determining an individual’s susceptibility to detention on charges of extremism. In the 1930s, journalist Rebecca West lamented that every German man, woman and child had not been slaughtered after the first World War. (She argued later that she was capable of distinguishing between decent Germans and Nazis.) Some of these ideas continue to find resonance today, as evinced in the US President’s immigration policy, calling for a border wall on the basis that unregulated migrants brutally kill thousands of Americans, and deserve to be kept out at all costs. Here in India, the otherization of Indian Muslims in the form of generalized blame for the Covid-19 pandemic continues to fuel communal violence. Continue reading

Posted in Defendants, Defense Counsel, Guest Posts, ICTY, International Criminal Justice, Nuremberg Trials | Tagged | 1 Comment

My Father: The Inspiration Behind Justice in Conflict

Gregory Kersten

My father, Gregory Kersten, in the Tatra Mountains in 2019. (Photo: Marta Kersten)

In writing for Justice in Conflict, and in my career more generally, I have tried not to get too personal. Separating the personal from the professional is unspoken custom in journalism and academia, professions that endeavour to observe and describe the world with objectivity. Though I know that it is impossible for us to totally detach ourselves from what we put out to the world, it is important to try.

Perhaps that is why, when people have asked me why I am interested in justice and conflict, I have been unsure how to answer. I would most often reply that the coverage of arrest warrants issued by the International Criminal Court (ICC) against former Sudanese President Omar al-Bashir was what got me hooked. To some extent it’s true; it is what sparked my intellectual energy and interests on the relationship between peace and justice. But I also knew that there was more. I was interested in justice and fairness long before the ICC targeted Bashir and the international community collectively fretted over its impact on resolving the war in Darfur. In recent years, I began to understand more clearly that it is because of my family that I care about what I care about. Now more than ever, I understand just how much it was because of my father.

My father, Gregory Edmund Kersten, died unexpectedly and suddenly on 26 May 2020. I will be coming to terms with that for many months and years to come. Having dedicated my life’s work to studying and trying to understand the world, I have difficulty understanding it without him in it or why it seems to continue on the same without him here.

But I can say that he left a legacy, one which I will work to ensure is a lasting one. This blog is part of his legacy, though readers are surely unaware of that fact. I want to change that.

More than anyone, my dad encouraged me to write. When I experienced down times or anxiety in my life, he would tell me to work and, especially, to write. I would find solace in doing so. I still do. In 2010, he told me that it would be a good idea to start a blog to focus my energy and interests. I never imagined JiC becoming what it has become. So many of the opportunities that I’ve had and the professional relationships that I’ve developed are due to this site – and are therefore because of my father. He regularly read JiC, and would tell me which pieces he enjoyed, comment on them, and offer constructive criticism. Of course, he would also point out where I had left spelling errors, which was a bit less fun.

My father was wedded to his principles, none of which resonated more clearly than his commitment to fairness. It did not always make him an easy person. I did not always agree with him. We often argued ferociously. But even when I thought he was wrong, I knew he was wrong for all of the right reasons. Weeks later, I would often find my own arguments shaped by his.

My dad’s principles were not instilled in him through an easy life. He was born four years after World War II ended, and grew up in communist Poland under difficult personal and political circumstances. In the 1970s and 1980s, he worked in underground publishing for the anti-Communist Solidarity / Solidarność movement with his parents and my mother. From a very early age, I found their contribution to the resistance and the whittling away of autocratic rule fascinating. It inspired me. That fascination manifests itself in my desire to work on global justice and accountability initiatives and to write openly about regimes and governments complicit or actively engaged in human rights violations.

My father left Poland just before Martial Law was officially lifted with his wife Greta and my two siblings, Marta and Mik. In 1983, they drove to Antwerp, Belgium, in a car on ‘vacation’, crossing into free Europe at Checkpoint Charlie. I can’t imagine the exchange of tension and relief that he must have felt upon making it through the Berlin Wall, with the weight of all of that responsibility resting on his shoulders. Years later, I found it moving to realize that I worked in the field of international justice for an NGO, the Wayamo Foundation, that was based on territory that my family fled just 30 years prior, behind the Iron Curtain. The transformation is remarkable.

During the Cold War, regular emigration to ‘the West’ wasn’t permitted. As they departed Poland, it was not clear to my parents if and when they would see their family and friends again. From Belgium, they applied to emigrate to Canada. Nine months to the day after they arrived on 14 December 1984, I was born.

Immigrating to Canada from a context of political violence and structural oppression opened up many opportunities for my family, as it has for so many others who begin new lives on Turtle Island. But it took an enormous amount of work for my parents to succeed here.

While improving his English, my father became a university professor, and devoted his life to the field of negotiation and group decision-making. It is a theme that I would take up in my work in international criminal justice. It brought me great joy that, while we came to the field of negotiation from different angles, we owned some of the same books and the same dedication to mediating disputes.

Throughout his life, my father’s sense of fairness was unwavering and indiscriminate. He rejected any notion that power or wealth should determine who got justice or who was treated with dignity. He also believed, to his core, that conflicts of all kinds could be resolved if we simply spoke to each other and communicated.

While he did not suffer fools lightly, my father was the most generous person that I have known. Since his death, I have been astounded by the number of people who have reached out with stories about how he touched their lives. He spent hours of his day working with students and colleagues, speaking to them on the phone or online, hosting them at his home – sometimes for weeks. It has been touching, comforting, and heartbreaking to know that I am only one among so many who will miss him.

I hope that some of my father’s principles and faith in humanity resonate through the pages of this site. The blog will continue to serve as a place where students, advocates, and scholars alike can have their say on matters of international and transitional justice.

Meanwhile, my family and I are committed to continuing my father’s work and legacy. In 2011, he started the Kerstens’ Foundation in honour of his parents, Adam and Krystyna, both acclaimed Polish historians. The Foundation has offered scholarships to Polish graduate students for almost a decade. As one way to remember him, we are working to create a scholarship in his memory, in the hopes of fostering in young people the principles that he stood for.

Those principles are the ones that this blog has stood for and will continue to stand for, for many years to come.

I do not believe that my father is ‘gone’, but rather that he lives in and among the many people who loved him. Still, I miss my father beyond what mere words can express.

Thank you, as always, for reading.

Mark

Posted in Gregory Kersten | 6 Comments

Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination

Dov Jacobs joins JiC for this post in response to Kip Hale’s piece from last week, entitled ‘Time to Look in the Mirror: ICC Community in Need of Perspective‘. Dov Jacobs is an Assistant Professor in International Law at the Grotius Centre for International Legal Studies at Leiden University. He is also the author of the blog, Spreading the Jam.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies.

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats.

First, as pointed out by Kevin Jon Heller on twitter, it would have been welcome, if Kip was going to take the time to write his post, to actually give concrete examples and, most importantly, engage with them, which would certainly have been a more courageous move that make generic unverifiable statements about a whole community’s lack of competence or about unidentified persons’ “personal or professional need to be visible”.

Second, even if I agree with Kip that commentary is obviously enriched by actual and concrete knowledge of how the ICC operates internally, I cannot help but feel that his call for “humility” is a polite way of saying that people who do not know exactly how the ICC works from the inside should simply refrain from commenting. However, I don’t think that things are that simple, and it depends on what you are commenting on. While it might be harder to comment on the inefficiencies of the internal decision-making process without intimate knowledge of the internal workings of the Court, there are myriads of ICC-related matters that can be commented upon without such insider knowledge. It cannot be acceptable that someone who highlights the inadequacy of the legal reasoning of a decision is simply told that they don’t understand the compromise that had to be reached by the Judges, or that someone who criticises the effect of some prosecutorial strategies be told there was a very good reason internally why these strategies were adopted.

But Kip goes further and now we enter into familiar territory for those who have followed the exchanges between Kip and myself on twitter over the years.

Kip concludes his post with the following words of caution : “As we reflect on the Court at this important juncture, and in our respective roles, hope to contribute to its evolution and mandate of fighting impunity for the world’s gravest crimes, let us be guided by a few simple but fundamental words: “First, do no harm.”” Continue reading

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 3 Comments

Socioeconomic Justice after Conflict: Political Economy, International Intervention and Justice Claims

Daniela Lai joins JiC for this guest-post. Daniela is a Senior Lecturer in International Relations at London South Bank University. Her forthcoming book with Cambridge University Press, Socioeconomic JusticeInternational Intervention and Transition in Post-war Bosnia and Herzegovina, will be available in June 2020. 

(A former shopping centre in the main square of Prijedor, which is today being torn down. Photo: Daniela Lai)

Socioeconomic issues have moved from the margins of transitional justice to being considered an important part of both scholarly debates and ambitious justice programmes. For too long, justice in the aftermath of conflict and mass violence was understood in strictly legalistic terms, producing a partial view of wartime violence and post-war justice, one that had become increasingly alienated from its local constituencies. A more comprehensive (and overdue) analysis of how people experience socioeconomic violence in war and develop socioeconomic justice claims should be grounded in people’s lived experiences. It should also scrutinise international interventions as they shape both post-war justice and political economy.

The evolution of transitional justice

For a relatively young field of research and practice, transitional justice has undergone a lot of change over the past few decades, with some scholars even arguing it is now in its ‘fourth generation‘. The field has been deeply shaped by its connection to international humanitarian law (IHL) and by the political context within which it emerged (transitions to liberal democracy market economies, as well as liberal peacebuilding). For most of this time, socioeconomic issues have remained at the margins of the field, at best addressed through some form of monetary compensation for violations of IHL or personal rights, at worst overlooked even in the face of their evident relevance.

In the past decade or so, however, practitioners and scholars have started calling for a more explicit engagement with socioeconomic issues, be it in the form of social and economic rights or redress for structural inequalities that have led to or stemmed from political violence and atrocity. These developments have generated academic controversies over what transitional justice really is, whether it is realistic or even desirable to expand its scope beyond established mechanisms, or expect it to produce transformative change.

However, these debates still omit an interdisciplinary and bottom-up analyses of how communities affected by conflict experience violence in its multiple forms (including socioeconomic violence), and how these experiences inform the development of justice claims that go beyond conventional transitional justice approaches. In my book Socioeconomic Justice: International Intervention and Transition in Post-War Bosnia and Herzegovina, I address these questions and look at how international interventions interact with socioeconomic justice claims in the aftermath of war I draw on in-depth qualitative research carried out in Bosnia and Herzegovina (including interviews with people living in the cities of Prijedor and Zenica, with activists from all over BiH, and international officials based in Sarajevo). The arguments and findings of my research demonstrate just how much our field has missed by relegating socioeconomic violence and justice claims to its margins. I understand justice as a social practice characterised by contestation around its meanings and the strategies and claims through which it is pursued, and as the process through which violence and injustice are redressed. Justice is also defined as multidimensional: in my book, I focus on its socioeconomic dimension while also looking at how it intersects with other crimes, including ethnic-based violence.

Socioeconomic justice and political economy

Through this focus on socioeconomic justice, the book also makes visible the link between justice and political economy and consolidates it within academic scholarship, both from a transitional justice and international political economy perspective.

The political economy of the war and transition is not just a backdrop against which to analyse wartime violence and post-war justice: the book shows how justice and political economy are inextricably connected. On the one hand, a political economy approach to justice issues brings to light the pervasive nature of socioeconomic violence and justice claims. On the other, a justice perspective on political economy helps to tease out the effects of internationally-sponsored economic reforms on conflict-affected communities. Continue reading

Posted in Bosnia and Herzegovina, Economics of Conflict, Transitional Justice | Tagged | Leave a comment

Time to Look in the Mirror: ICC Community in Need of Perspective

Christopher “Kip” Hale joins JiC for this guest-post. Kip is an attorney specializing in atrocity crimes investigations and litigation. He has worked with the prosecution, defense, as well as judges at numerous international courts. Kip is currently a legal advisor to atrocity crimes investigations in conflict zones and was previously the Director of the American Bar Association’s (ABA) International Criminal Court Project. 

(Image: GetVoip)

It is a common refrain among International Criminal Court (ICC) observers that the Court always seems to be facing a crisis. Oftentimes, the Court is indeed in some degree of a “crisis”. Perhaps this can be chalked up to the nature of the field. After all, international criminal justice is no proverbial walk in the park, and those who profess to know better have seldom practiced in the field in any meaningful way. Other times, the so-called “crisis” is exaggerated.

Still, it cannot be denied that in 2020 and in the immediate years thereafter, the ICC is and will be in a period of transition. The ongoing Independent Experts Review mandated by the Assembly of States Parties will bring about extensive discussion on the performance of the Rome Statute system. Civil society and other external actors have already begun this discussion in full force. Look no further than the Justice in Conflict’s and Opinio Juris’ Symposium on the election of the next Prosecutor to show the intense interest that these subjects generate.

However, one critical component of evaluation and reasoned debate has been almost completely overlooked: us – ICC observers, commentators, stakeholders, and the larger engaged community outside of the Court. It is about time our community takes a long, hard look in the mirror. The ICC stakeholder community is not beyond reproach. Self-scrutiny among ICC commentators is much needed. Too often, we do more harm than we realize.

It is too unwieldy (and likely of little use) to identify the multiplicity of problematic tendencies that occur in the ICC engaged community. Rather, this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community. With that said, my experience investigating and litigating atrocity crimes cases in combination with work in the policymaking and strategic components of international criminal justice has put me face-to-face with both the great forces in this field as well as the deeply troubling ones.

Nevertheless, to help explain why self-scrutiny is so needed, let us begin with the obvious: bad faith actors. To say there are agenda-driven and unprincipled agents engaged in the field of international criminal justice often flabbergasts newcomers to the field. Some of these players have nefarious goals to undermine the Court for whatever reason, and deliberately engage in smear campaigns and creating false narratives. Others have personal ambition above all else. The only human rights they are interested in is their own – to wit, to advance their own ambitions and to be “seen” and heard. Sideline commentators are not immune from this malaise.

Then there are those well-intentioned actors who undoubtedly help the ICC and the field writ large, yet can also inadvertently and ironically frustrate the Court and its work. The road to hell, indeed, is paved with good intentions. We have seen it with our own two eyes. Commentators and entities that are “holier than thou”, make perfect the enemy of the good, and/or give off the air of “if only I [or we] were in charge.” Often, such commentary is devoid of any real insight or practical hands-on experience to constitute helpful criticism.

Let me be abundantly clear. The Court should not be impervious to honest, well-reflected constructive critiques about making improvements when and where necessary. Like any institution of import, the overall health of the Court and its work requires constructive and learned criticism from a range of stakeholders, and the Court should welcome it as it has and will continue by all indications. Without such engagement, the ICC would suffer, if not drift into irrelevance. In this respect, the intensity of interest in the ICC, and the negatives that come with it, are a good problem to have.

However, it is a two-way street. The Court and its crucial mandate also deserve the utmost seriousness from external commentators. While, of course, these people and entities are free to comment as they see fit, their freedom does not diminish the fact that such commentary can unduly undermine the reputation and credibility of the Court and distract from its important mission. Continue reading

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 4 Comments

Killing Soleimani: A View through the Prism of International Human Rights

Marilena Stegbauer joins JiC for this guest-post on the killing of Qassim Soleimani. Marilena is a socio-legal researcher who strongly believes in promoting accountability for human rights violations worldwide. She holds an LL.M. in International Criminal Law (cum laude) from NUI Galway and a BA in Liberal Arts and Sciences from University College Freiburg.

The wreckage following a drone strike that killed Soleimani (Photo: BBC)

On 2 January 2020, Iranian General Qassim Soleimani was killed by a US drone strike on the outskirts of Baghdad international airport in Iraq. Next to him, at least seven others died. Soleimani was a military commander of the Quds Force, a military unit belonging to Iran’s Islamic Revolutionary Guard Corps specialising in unconventional warfare operations.

Since the attack, the US has faced criticism concerning the legality of the drone strike and questions as to whether it was a violation of International Human Rights Law (IHRL). UN Special Rapporteur on Extra-judicial Executions, Agnes Callamard scrutinised the US President’s justifications for the drone strike. Trump explained in a press conference that he ordered the strike against Soleimani to “end his reign of terror” before he could carry out any further attacks on US interests.

The UN Security Council emphasised that any measure taken by states to combat terrorism must comply with all obligations under International Law, in particular IHRL and International Humanitarian Law. States must thus respectboth bodies of law “whether at home or abroad and implicitly recognise that upholding human rights and protecting the public from terrorist acts are not antithetical, but rather complementary responsibilities of states.” The US is therefore required to comply with these provisions, de jure.

Article 3 of the Universal Declaration of Human Rights guarantees the right of every individual to life, liberty and security of his or her person. Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) reaffirms the right to life, stipulating that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Having ratified the ICCPR on 8 June 1992, the US is required to fully comply with the provisions in Article 6 (1) ICCPR.

Article 2 (1) ICCPR stipulates that State parties must respect and ensure the rights of all persons, enumerated in under Art. 6, who are found within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power of effective control. General Comment 36 (2008) to the ICCPR stipulates that this includes “respect and protect[ion of] the lives of individuals located in […] occupied territories, and in territories over which they have assumed an international obligation to apply the Covenant.”

As Callamard observes, “as a general principle, the intentional, premeditated killing of an individual […] be unlawful under IHRL.” There are exceptions to this rule, such as the death penalty which is permitted but only under stringent legal conditions as stipulated under Art. 6(2) ICCPR, and even then only for crimes of the most serious nature and in accordance with the law in force at the time the crime was committed.

Under the UN Basic Principles on the Use of Force and Firearms by Law Officials, the resort to intentional lethal use of force through drones against an individual “may only be made when strictly unavoidable in order to protect life.” This implies that the only situation in which the use of force would be permissible necessitates a scenario of “self-defence or defence of others against the imminent threat of death or serious injury […].” The phrasing of the law suggests a temporal concept of imminence, that is, “immediately antecedent, presently exercised or still enduring.”

Thus the armed attack which would render the right to self-defence legal under IHRL would only be applicable to situations in which either that “armed attack occurs,” echoing the standard set out in Article 51 of the United Nations Charter, or if the attack is immediately antecedent, that is, it is literally “about to occur” at any time from the moment it becomes apparent that such a threat exists. All other use of force responding to a peril that is not imminent, in the sense of proximity, would not fall under the exception.

Additionally, the use of force under IHRL is only permitted “to prevent the perpetration of a particularly serious crime involving great threat to life […].” The threat must be “realistic,” that is, it must be proven through the presentation of evidence pertaining to the incident. Shortly after the killing of Soleimani, Trump said that the reason for the attack on Soleimani was to end his “reign of terror… before he could carry out any further attacks on US interests.”

The US Department of Defense backed that narrative by claiming “that the US military had taken “decisive action” against the Iranian general at the request of Trump because he “was actively developing plans to attack American diplomats […] in Iraq.” However, no proof had been presented in support of these allegations, which leads to the conclusion that the attack had been a pre-emptive act of self-defence not meeting the legal threshold of an “imminent attack,” required by IHRL. Continue reading

Posted in Drones, Guest Posts, International Law, Iran, Iraq, United States | Tagged , | 2 Comments