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

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.

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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

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

(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

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

Seeing the Forest for the Trees: The International Criminal Court and the Peace-Justice Debate

This article is a critical assessment of the scholarship and current state of the so-called “peace versus justice” debate. It is largely based on findings from my new book, which seeks to assess the impacts of the ICC on ending wars and building peace. The article was originally posted at International Criminal Justice Today, an an online magazine operated by the American Bar Association and Stanford Law School. I am grateful for the opportunity to write for their publication and to work with their wonderful team, especially Beth Van Schaack, Kip Hale, and Allen Weiner.

(Image: Dudelol)

(Image: Dudelol)

Few debates in international justice are as important yet inspire as much disagreement as the debate about the relationship between peace and justice. Should justice be pursued in response to mass atrocities when conflicts are still ongoing or when wars have only been recently concluded? Should peace and justice go hand-in-hand or should justice always follow peace? Does a moral, legal and political obligation to victims and survivors who demand accountability trump the possibility that justice may complicate conflict resolution? Will bringing perpetrators of mass atrocities to justice ultimately help or hinder efforts to build and maintain peace?

These questions arise in the so-called “peace versus justice” debate, which has gained notoriety with the establishment of the permanent International Criminal Court (ICC) and increasing expectations that international criminal justice institutions will act as ‘first responders’ in emerging conflicts. Almost fifteen years have passed since the creation of the ICC, yet it remains difficult to maintain that we’re much closer to a conclusive verdict as to the relationship between international criminal justice and the pursuit of peace. Every time reports emerge that the ICC might become active in an ongoing and active conflict, both sides of the peace-justice debate rehash and recycle their claims: the Court will ruin any prospects for peace or, without the Court, meaningful peace is a pipe dream. The current state of the debate needs fresh thinking and a renewed appreciation of the complexity of issues at play when the ICC investigates and prosecutes belligerents in active conflicts. Focusing so singularly on the ICC’s effects at the expense of the broader political factors and conflict dynamics at play has entrenched rather than alleviated the harshly dichotomous nature of the peace-justice debate. There is a need to see the forest for the trees.

So what, if anything, have we learned about the ICC’s impact on conflict resolution and peace-building? In this brief article, I would like to assess some of the challenges confronting a more accurate and nuanced understanding of the ICC’s effects on peace and then offer some thoughts stemming from my own research on the peace-justice debate, recently published in a book entitled ‘Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace’.

There is no doubt that the International Criminal Court is a unique entity. It is, at once, both an international organization, whose existence and operations depend on the support of states, and an international court with a mandate to pursue justice for the worst crimes known to humankind. As such, it treads — often uncomfortably — at the nexus between politics and law. Its staff insist that the Court’s involvement in conflict situations are merely an expression of its legal mandate. It does not practice politics. This position plays down the controversial role of the Security Council in issuing highly-politicized referrals of situations to the ICC in response to breaches of the peace — most notably by prohibiting the ICC from investigating citizens of non-member states, of which there are three on the Council (China, Russia, and the US). This mantra also lies at the heart of how the professionals that make up the ICC see their role in contributing to peace. Former chief Prosecutor Luis Moreno-Ocampo and current Prosecutor Fatou Bensouda have insisted that there must be a division of labour between the pursuit of justice and the pursuit peace. The Court is responsible for the former; other institutions, like the United Nations Security Council, are responsible for the latter. At the same time, however, they insist that there cannot be a credible or durable peace without justice and that, in cases in which the ICC has influenced a peace process, as in northern Uganda, its impacts have been positive. This contradictory posture — that peace is none of the ICC’s business, but peace is impossible without the Court — belies a significant problem: no one in the ICC’s Office of the Prosecutor (OTP) or any other organ of the Court systematically assesses the institution’s impact on peace processes.

To those who view international criminal justice processes as having a role to play in atrocity responses and prevention, it remains frustrating that the ICC itself does no stock-taking of the impact it has on the conflicts in which it intervenes. As a result, whatever the ICC learns from its previous interventions depends wholly on the feedback it receives from third-parties — diplomats, NGOs, and academics. The Court’s staff may argue that this is not part of their mandate. However, this is a spurious claim. The ICC consistently speaks of its indispensability in establishing peace. It also regularly creates roles for itself outside of its strictly judicial purview, such as strengthening the ability of domestic judiciaries to prosecute international crimes themselves.

Another possible reason for the Court’s reluctance to stock-take its impacts is likely to be that the institution doesn’t have sufficient resources to dedicate to such stock-taking. This too is unsatisfactory. If resources are the problem, the Court can and should push for additional funding from member-states. There is nothing costlier to the legitimacy of the Court than repeating mistakes and feeding the acrimony of those who believe the ICC has no place operating in ongoing conflict situations in the first place. Learning how the Court affects conflict and peace processes isn’t just about making peace more likely or justice less disruptive; it also holds the promise of making the pursuit of accountability more effective and efficient.

There is also a danger in relying on third parties to understand how the ICC affects peace and conflict processes, namely that it permits the avoidance of inconvenient truths by fostering a cherry-picking attitude to evidence. Much research on the peace-justice debate continues to occlude rather than elucidate the effects of the ICC. This is true of studies that critique the Court’s ability to contribute positively to conflict resolution and peace as well as those that seek to lend credence to the Court’s virtues.

Many of the ICC’s critics often recycle intuitive but speculative claims, insisting that any and all targets of the ICC will inevitably “dig their heels in” and have little choice but to fight to the bitter death. In doing so, these detractors reduce all actor types — heads of state, senior officials, rebel commanders, militia leaders, and the various rank-and-file — to the same, basic set of incentives towards the ICC and resolving the war in which they act as belligerents.  Reducing complex and different types of actors risks severely over-simplifying the psychology and incentives of warring parties. A rebel leader like Joseph Kony of the Lord’s Resistance Army is not the same kind of actor as Muammar Gaddafi, the former head of state of Libya. Yet critics assume that they follow precisely the same logic: if the all-mighty ICC targets them, they will fight to the death and never agree to peace. Continue reading

Posted in "Peace versus Justice" Debate, International Criminal Court (ICC), International Criminal Justice, Justice, Peace Negotiations, Peace Processes, Peacebuilding | 4 Comments

Cutting Through the Noise – The African Group for Justice and Accountability on the ICC-Africa Relationship

(Photo: ICFR)

(Photo: ICFR)

The relationship between the International Criminal Court (ICC) and African states is coming under renewed scrutiny at the 27th African Union Summit, currently taking place in Kigali, Rwanda. The outcome of the summit for ICC-African relations will be determined over the coming weeks, but various civil society actors and pro-ICC advocates have been doing whatever they can to improve the relationship between the Court and continent. The Africa Group for Justice and Accountability (AGJA)* is one of those groups. Over the weekend, the AGJA published an important and balanced op-ed in The Guardian (as well as other news outlets) on its view of the ICC-Africa relationship. The op-ed acknowledges the leadership of African states on matters of justice for mass atrocities and insists that all sides can do a better job and need to take responsibility for accountability on the continent. Moreover, it calls those African states who insist they support the ICC to stand up and speak up. For those interested, here’s a snippet:

In popular accounts, Africa and the international criminal court are pitted against each other. The ICC is derided as being “biased” against Africa, ignorant of the attitudes and desires of Africans, even neocolonial.

In reality, the relationship suffers from misinformation and misunderstandings. Many parties share responsibility for this. Some African leaders have, on occasion, decried the ICC in order to protect themselves from the court’s scrutiny.

Equally, the ICC has not been able to communicate its message effectively on the continent, leaving it susceptible to misrepresentation by those who seek to undermine the institution.

Some insist that the ICC has no place in Africa and that African states must withdraw from the court because the institution has intervened primarily in African conflicts, while situations outside the continent are not investigated. However, it makes little sense to suggest that because justice cannot be served everywhere, justice should not be served anywhere. Such an attitude insults victims and survivors alike.

Why has the ICC focused its investigations almost exclusively on Africa? Well, can anyone argue that the situations in Africa where the court has opened official investigations – northern Uganda, the Democratic Republic of the Congo, Central African Republic, Darfur, Sudan, Kenya,Libya, Ivory Coast and Mali – are not deserving of an ICC intervention?

Never before has so much been done on the African continent to achieve accountability for international crimes. We welcome the trial of Hissène Habré in Senegal, Central African Republic’s plan to set up a special criminal court, South Sudan’s proposed hybrid tribunal, and the expansion of the jurisdiction of the African Court on Human and Peoples’ Rights to include international crimes.

While none is perfect in itself, these and other recent developments point to a continent with the potential to take a leadership role in international criminal justice, if its leaders keep their pledges.

The ICC must do a better job of responding to overt attempts to politicise its mandate. It must not only do justice, but be seen to be doing justice by being more effective, robust and responsive.

African states are friends of the ICC. African states have continued to refer situations to the ICC. Africans hold the most senior positions in the court. African states fund the institution.

Many African officials and diplomats say they have no intention of leaving the Rome statute system. We call on these governments to speak loudly and courageously in the fight against impunity – both in Africa and beyond.

You can read the whole op-ed, here.

* Full Disclosure: I am the Research Director of the Wayamo Foundation, which acts as the secretariat for the AGJA.

Posted in Africa, Africa Group for Justice and Accountability (AGJA), African Union (AU), International Criminal Court (ICC) | 1 Comment

Everything You Ever Wanted to Know About the International Criminal Court, But Were Too Afraid to Ask

ICC complementarityPerhaps you’re a journalist with an unfortunate penchant for referring to the ICC as “the World Court” (sorry, that’s the ICJ) or suggesting that it will hear cases related to decades-ago atrocities (nope, temporal jurisdiction is a thing). Or maybe you’re a student with a term paper to write on how international institutions affect conflict dynamics (nobody knows). Possibly you just wish you could impress your friends with snarky complementarity-themed jokes (which everyone definitely, definitely loves).

If any of these sound like you, the International Center for Transitional Justice has your back. Their new “Handbook on Complementarity” provides, as advertised, a comprehensive (>100 pages!) overview of the role of the ICC and domestic courts in prosecuting atrocity crimes. It’s also a surprisingly good read.

Written by Paul Seils, the Handbook goes ALL IN on the nitty gritty of how complementarity is designed to operate and how the ICC has implemented it so far. Even for relatively well-informed court-watchers, there’s new information. I learned, for instance, that although the prosecutor ordinarily has to wait until the investigation phase to take testimony, in “exceptional cases” where future access to a witness is threatened, she can request authorization from the Pre-Trial Chamber to take testimony during the preliminary examination. Neat! (That’s Rule 47 of the Rules of Procedure and Evidence for those of you following along at home.)

I also discovered that I have been promulgating an inadequate definition of complementarity. (Sorry everyone!) Check it:

Screen Shot 2016-07-14 at 5.02.38 PMIn fact, per the Trial Chamber in the Katanga case, the question of whether a case is admissible before the ICC requires a two-stage inquiry: The initial question is whether a national jurisdiction is pursuing the same case as the ICC. It’s only if the answer is yes that the issue of “willing and able” comes up. So I guess we’re all going to have to rewrite our lectures.

A couple of broader themes worth highlighting emerge from this bonanza of information:

  1. If you think “is a national jurisdiction pursuing the same case as the ICC” sounds like a simple question, you’re very, very wrong. The meaning of “case” in this context turns out to be a bit of a fraught question, and to have kind of a weird, Heisenberg Uncertainty Principle flavor to it. As a definitional matter, for something to be the same case, it must cover the same suspects, incidents, and conduct. But those elements can remain in flux through several rounds of ICC proceedings. Consequently, a state may be disadvantaged by challenging admissibility before charges are confirmed.
  2. One of the effects of the court’s relative youth, along with its resource and jurisdictional constraints, is that anomalous cases can have outsize precedential effect. (And frankly, they’re all pretty anomalous at this point.) With such a limited docket, every ruling provides an important signal about what the court might do in the future. So, for example: “Many people might feel that if the Colombian peace process successfully establishes a justice program with very light sentences that other countries will be able to cite it as a precedent in the future, thus undermining the aims of the ICC.” I am one of these people, and I suspect this is exactly what would happen.

Continue reading

Posted in Complementarity, International Criminal Court (ICC), International Criminal Justice | 3 Comments