A Conviction in Question – Lessons from the the International Criminal Court’s Inaugural Trial

Jim Freedman joins JiC for this post examining the core issues covered in his new book on the trial of Thomas Dyilo Lubanga. Jim is a Professor Emeritus and a faculty member at the Centre for Transitional Justice and Post-Conflict Reconstruction at Western University. His book, A Conviction in Question: The First Trial at the International Criminal Court was published by the University of Toronto Press.

A Conviction in Question: The First Trial at the International Criminal Court

As they reflect on the International Criminal Court’s (ICC) on-going challenges, it may be some solace to ardent supporters of the ICC to recall the plague of disquieting matters in the Court’s first trial and how the institution has diligently addressed them in the ensuing five years. This first case involved the notorious warlord Thomas Dyilo Lubanga from northeastern Democratic Republic Congo who committed multiple war crimes and who, in March 2012, was convicted of the single crime of conscripting and using children less than 15 years as soldiers.

Certainly the first trial was something of a circus and the book — A Conviction in Question, the First Trial at the International Criminal Court — chronicles the legal histrionics, the cast of characters, the interminable delays and the awkward, ultimately vain, efforts to hold Lubanga responsible for all that he had done. The adversarial atmosphere in the courtroom was intensified by the ever-present media and the fact that the world was watching. The trial had a perverse quality. The length of time the trial took to arrive at a conclusion, six years in total, was one thing. The judge’s decision to stop the proceedings on the grounds that the prosecution had violated Lubanga’s right to a fair trial and send him home, not once but twice, was equally curious.

The discord in the Chamber was worthy of a lurid television series. The main actors in the Chamber turned even the most innocent of evidence into something hotly contested, generating a cacophony of opposing voices that drowned out much of what the Court needed to know to make an informed decision. The Chamber often saw fit to allow factual and moral matters to be trumped by other matters. Some of this could be discounted as the growing pains of an international court making its way through a first trial and, in truth, some of these unsavoury features were more colourful than anything. But the persistent discord in the Chamber did have some serious consequences.

A number of principled matters were shoved aside or dismissed altogether because they were thought to be making an already long and complicated case even more long and complicated. The status of the victims was one of these. During the trial, the Chamber preferred to keep the victims on the margins of proceedings since none of the actors in the trial wanted to compromise their own stakes in the trial by admitting yet another voice that might arouse an unpredictable element into the proceedings. This in itself might not have been so serious a matter except that, when the trial was over, the Court’s general dismissal of the importance of victims in the Chamber gave rise to a decision which limited the scope of reparations. This was a serious flaw.

Another was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

Yet another shortcoming was the practice of gathering evidence, especially getting it by using individuals — or intermediaries as they were called — to identify key witnesses and prepare key witnesses for their appearance at the court. The Defense’s repeated claim that the Prosecution had conspired with intermediaries to introduce false information ended up consuming an inordinate amount of the trial’s time and consideration. The discordant atmosphere inflated this issue beyond all proportion.  Continue reading

Posted in Child Soldiers, Democratic Republic of Congo, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Thomas Dyilo Lubanga | Leave a comment

The ICC and Afghanistan: Challenges for a Court, Opportunities for an International Organization

(Photo: BBC)

The decision by the chief prosecutor of the International Criminal Court to seek an investigation into alleged war crimes perpetrated by U.S. military forces and the CIA in Afghanistan has been widely described by some observers and legal scholars as a brave step towards global justice. But as diplomats, advocates, and interested observers gather at the Assembly of States Parties of the International Criminal Court in New York to assess the standing and future of the ICC, the question many are pondering is: can the Court survive its latest challenge?

The possible reasons behind the prosecutor’s decision to seek an investigation on the Afghanistan war have been detailed elsewhere. But the reality is that there is every chance that the Court’s investigation into Afghanistan will never result in a successful ICC prosecution of a U.S. official. While the U.S. may still cooperate with the ICC on cases that advance its interests, self-incriminating cooperation from the United States government regarding its own decisions and actions in Afghanistan won’t happen.

Without any cooperation from states to build cases and enforce arrest warrants, the ICC’s reputation as a criminal court would surely suffer. And Afghanistan is not the only tricky situation the ICC faces. The Court’s ongoing investigation into the 2008 war between Georgia and Russia as well as its most recent intervention in Burundi also may get hung up for lack of cooperation from either Moscow or Bujumbura.

There is a real risk that the ICC may soon face an empty docket. At the current pace, its caseload will wrap up within the next two years. Surprise surrenders of alleged perpetrators could change that, and are not uncommon for the Court. The sparse workload, in combination with the ICC’s decision to directly challenge major powers like the U.S., may require the institution to think carefully about how it communicates its work moving forward.

The ICC is a criminal court — and an international organization

The ICC is a unique institution. It is a court of law, charged with investigating and prosecuting individuals for war crimes, crimes against humanity and genocide. It’s also an international organization, which makes it fundamentally political. As Michael Barnett has shown in the case of the United Nations — and as my research on the ICC illustrates — international organizations operate according to institutional interests and an unyielding drive for self-preservation.

So the decision to investigate alleged crimes by U.S. officials in Afghanistan has led to some confusion — and many questions. The ICC may emerge as the lone tribunal in history to directly confront alleged war crimes committed by U.S. forces. But, again, it is clear the United States will not cooperate in the investigation. So, if cooperation is the lifeblood of an international institution like the ICC, how can the Court survive an onslaught of major power hostility and widespread non-cooperation?

Speaking law to power

The ICC became operational in 2002, designed to be the first permanent and independent international criminal tribunal mandated to prosecute war crimes, crimes against humanity, and genocide. Small and middle-power states states were particularly attracted to it, including African states which viewed it as an institution that could transcend the hierarchy of international politics and challenge what they viewed as the excesses of global superpowers.  Continue reading

Posted in Afghanistan, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, United States | 2 Comments

A Step Back to Take a Step Forward — The Future of Justice in Conflict

A scene of destruction in Donbass, Ukraine, which faces and ongoing conflict under preliminary examination by the International Criminal Court (Photo: AF)

Over the last year or so, there have been suggestions that we are witnessing a slow-down in the investigation and prosecution of international crimes perpetrated in the context of ongoing violent political conflicts. Is this true? If it is, why might this be the case? And is there anything that the International Criminal Court can do to better address crimes perpetrated in active wars and have more positive impacts on conflict situations?

In a draft chapter for a forthcoming book edited by Matt Killingsworth entitled Who do the Laws of War Protect?: Civility, Barbarism and the Evolution of International Humanitarian Law, I explore these questions. I have uploaded a copy of the draft here and also posted the introduction to the chapter below in case it of interest to readers of JiC.

The piece remains very much a draft, so all comments and thoughts are welcome and greatly appreciated!

The International Criminal Court (ICC) is the first international tribunal that regularly intervenes in ongoing and active conflicts. For many of its most fervent proponents, the ICC signalled that there could be “no peace without justice”. For the ICC’s champions, no longer should peace be negotiated without consideration of the need to hold perpetrators of mass atrocities to account. In the words of former ICC Prosecutor Luis Moreno-Ocampo, “negotiators have to learn how to adjust to the reality. The court is a reality.” (See Allen 2009). The ‘civility’ of international criminal justice can not only curb the violent excesses excesses of war; for its advocates, the liberal cosmopolitan norms that underpin international criminal justice can now be brought to bare to address the ‘barbarity’ of ongoing war and atrocity.

The ICC’s creation indeed represents something of a game-changer in the relationship between conflict resolution and peacemaking, on the one hand, and the pursuit of accountability for mass atrocities, on the other. “The ICC is the archetypal ex ante tribunal”, write Mahnoush H. Arsanjani and W. Michael Reisman (2005, 385). It is a Court “established before an international security problem has been resolved or even manifested itself… established in the midst of the conflict in which the alleged crimes occurred.” (Ibid.). No longer must wars end for international criminal justice to be pursued. On the contrary, in its first decade-and-a-half of operations, the ICC has readily intervened in ongoing and active conflicts — and it is widely expected, and called upon, to do so. The majority of situations into which the institution has opened official investigations have been active conflicts. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace and effecting in-conflict justice, nor to its efficacy in achieving its brand of retributive justice.

Since its first intervention into the conflict between the government of Uganda and the Lord’s Resistance Army (LRA), the ICC has been regularly criticized for undermining peace. This is true even in cases where evidence of such contentions is weak or simply speculative as well as in situations where the Court has not been able intervene, like Syria (see Larcom, Sarr, and Willems 2013). Former U.S. Secretary of State Hillary Clinton, for example, stated in 2012 that pursuing war crimes charges against Syrian President Bashar al-Assad would “complicate a resolution of a difficult, complex situation because it limits options to persuade leaders perhaps to step down from power,” whilst then-Swedish Foreign Minister Carl Bildt said doing so “would put Assad in a head lock and make him less flexible, because we’d be telling him, ‘your only option is to fight to the death.’” (See Spencer 2012; Dworkin 2013).

Continue reading

Posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Al-Tuhamy Mohamed Khaled, Commission for International Justice and Accountability (CIJA), Conflict Resolution, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Investigations, Justice in Conflict, Libya, Libya and the ICC, Libyan National Army, Mahmoud al-Werfalli, Mali, Office of the Prosecutor, Syria | 2 Comments

Mixing Immigration and Justice… Without Sacrificing One for the Other

Below is an article I wrote, a version of which originally appeared in the Globe and Mail, on the increasingly blurred lines between immigration policy and international criminal justice. While the focus of the piece is on the Canadian experience and what the Canadian government can do better, this is an issue that many — if not all  states which open their doors to refugees and migrants face. The piece delves into the challenge of being open to refugees without sacrificing commitment to justice and accountability for international crimes. As always, your thoughts are welcome!

Za’atri camp in Jordan, which houses thousands of refugees fleeing violence and conflict in Syria (Photo: U.S. State Department)

Two crises define the world today: the perpetration of mass atrocities against civilians and the movement of peoples, often in direct response to those very same atrocities. This poses a distinct challenge for countries like Canada that welcome refugees, some of whom may carry with them criminal pasts.

It is not uncommon for perpetrators of atrocities to cloak themselves among refugees. Due to effective screening procedures, the number of war criminals amongst refugees is tiny. But they do sometimes slip through. When they do, they present an opportunity to achieve justice — and shouldn’t be used to cast a blanket pall of criminality over migrants. But how should governments approach this dilemma?

Earlier this month, and for the first time since the brutal civil war in Syria erupted six years ago, a Syrian soldier was convicted of war crimes. The trial occurred in Sweden. With no prospects of justice from an international tribunal and the increasing likelihood that Syrian President Bashar al-Assad will remain in power for the foreseeable future, the best chance to achieve accountability for the regime’s litany of atrocities lies in the courtrooms of distant states like Sweden, Germany, and Spain. These prosecutions could not happen if these very same countries didn’t open their borders to the millions of Syrian refugees fleeing crime and terror.

According to the Canadian Crimes Against Humanity and War Crimes Program, whose staff works tirelessly with limited resources to achieve remedies for international crimes, 200 perpetrators may currently reside in Canada. But unlike its European counter-parts, the Canadian government’s preference is to deport alleged war criminals for the simple reason that it is the cheapest option at their disposal.

This approach first gained notoriety under the Stephen Harper government when it published a ‘Most-Wanted’-style list of alleged war criminals to be “rounded up and kicked out of Canada”. The United Nations Committee Against Torture responded by stating that if alleged perpetrators “are apprehended and deported, they may escape justice and remain unpunished.” But the current government continues to do nothing to ensure that individuals deported from Canada will be prosecuted and receive a fair trial in their original countries.

Earlier this year, the Canadian government sought to strip Jorge Vinicio Sosa Orantes of his citizenship for his alleged responsibility for a 1982 massacre by the Guatemala military in Las Dos Erres. A decade after the atrocity, he was made a Canadian citizen. But if the government has its way, Sosa Orantes, who is now toiling in a US prison, will never step foot in Canada again. That may be comforting to many Canadians. But it does little-to-nothing to ensure that justice for the types of crimes he is allegedly responsible for is meted. Continue reading

Posted in Canada, Guatemala, Immigration, International Criminal Justice, International Justice Ambassador, International Law, Refugees, Syria | 3 Comments

A Steep Slope Awaits the Wheels of Justice in Central African Republic

Elise Keppler joins JiC for this guest-post on the ongoing efforts to achieve justice and accountability for atrocity crimes in the Central African Republic and the current state of the proposed Special Criminal Court. Elise is Associate International Justice Director at Human Rights Watch. 

Destroyed homes in the Paris-Congo neighbourhood of Alindao, Central African Republic. (Photo: Lewis Mudge)

It is too seldom that justice for grave crimes is pursued locally in a country that desperately needs it. But in the Central African Republic, there is cause for cautious optimism over the Special Criminal Court, the country’s first meaningful effort within its domestic justice system at criminal accountability for war crimes and similar atrocities. After nearly five years of the country’s most recent bloody conflict, rife with atrocities, the new court offers a glimmer of hope.

During a week in Bangui, the country’s capital, in early October, victims and lawyers who work on their behalf described the vital need for the recently created Special Criminal Court, a novel hybrid accountability mechanism consisting of both international and Central African judges, prosecutors, and registry staff. It forms part of the domestic national judicial system, but will operate with extensive international support.

“We hope that judgment of these matters in the Special Criminal Court will address impunity,” said one lawyer, who has helped form a collective of attorneys to represent victims of abuse. “The crimes were too much… Pregnant women had their stomachs cut open. We hope this has an educational character. People will learn that actions have consequences.” The leader of an association of war crimes victims, made a similar point. “For many decades, the executioners have never been judged,” he said. “We have no confidence in the national justice system. And the victims continue to multiply.”

But the most striking comment came from a man who works with victims of the recent conflict who was looking toward the future: “We want justice so the youth of today do not become the executioners of tomorrow.”

The Central African Republic’s national judiciary has mostly failed to address the extensive
killings, torture, sexual violence, looting and destruction of villages that have spanned conflicts in the country over the past 15 years.

The International Criminal Court (ICC) has two active investigations in the country, including a conviction for atrocities committed during an earlier conflict, in 2002-2003. But virtually no one has been held to account in national courts despite extensive documentation of war crimes and crimes against humanity by Human Rights Watch and many others. The Special Criminal Court, which will complement the ICC investigations, has the potential to fundamentally shift the narrative of total impunity that defines the country.

Setting up a new war crimes court is a complicated task in the best of circumstances. In the
Central African Republic, the country’s infrastructure, technological capacity, and human resources are woefully ill-equipped to try complex cases, especially with fighting continuing and large parts of the country remaining outside the government’s control.

Security arrangements for local judges appointed to the court remain inadequate, their internet has failed to function, and they work from a makeshift office in an apartment building that doubles as the residence for international court staff. But these setbacks have not diminished the judges’ desire to build a functioning court that delivers justice for those affected by horrible crimes. Continue reading

Posted in Central African Republic (CAR), Guest Posts, Hybrid Courts, Hybrid Tribunals, Special Criminal Court | 1 Comment

Sexual and Gender-Based Violence: The Case for Expertise and Professionalism in Investigations

Andras Vamos-Goldman joins JiC for this post on the challenges of investigating sexual and gender-based violence crimes. Andras is the Executive Director of Justice Rapid Response, a public-private partnership that provides criminal justice and human rights professionals from a global, stand-by roster to the international community to improve the investigation of mass atrocity crimes.

Yazidi women in Iraq, 2014. Many Yazidis were forced to flee after attacks by ISIS forces. (Photo: Domenico/flickr)

Crimes of sexual and gender-based violence (SGBV) committed in the context of the world’s many conflict situations are no longer beyond the reach of accountability. Jurisprudence, especially from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), as well as the Rome Statute and the work of the International Criminal Court (ICC) have all contributed to breaking down the false myth that “rape in war is regrettable, but unavoidable”. Pressure from survivors, political attention from states, and personal commitments by high-profile individuals have taken the question of addressing SGBV from the halls of academia to the world’s attention. But the single most important factor in taking SGBV investigations from the fringes to the center of investigating mass atrocities in recent years is the ready availability of experienced criminal justice professionals with a background in dealing with the many aspects SGBV. This mean having professionals from every part of the world, with training to work under international criminal and human rights law frameworks and conditions.

One catalyst in this rapid expansion of international capacity to address accountability for SGBV violence in conflict is the UN Women – Justice Rapid Response (JRR) partnership (full disclosure: the author is the director of the latter). This partnership manages and can rapidly deploy from a stand-by roster of currently 217 SGBV justice experts and has already done so on 67 occasions since its inception. While not the only roster that can support work in this critical area, it is the only one where expertise dedicated to SGBV investigations represents every region and legal system in the world—roster members hail from 73 countries. It is also the only roster in which every member, already recruited for their expertise, has been further upskilled to be able to work productively under international legal frameworks and conditions.

This week, JRR and UN Women are launching a short documentary about the work of two such professionals that the partnership deployed to support accountability in the context of the conflicts in Syria and Iraq. Being first shown in the context of the UN Security Council open debate on women, peace and security, the documentary is meant to highlight the benefits and impact—especially to survivors—of investigations into patterns of forced marriage, rape, trafficking and sexual slavery being done by professionals.

The importance of expertise and experience, specialized international training and cultural, legal and linguistic affinity for the places and people where the alleged crimes occurred is even greater today than ever. This is because we appear to be in a paradigmatic shift, where documentation, fact-finding, and even investigations are preceding—not following—the establishment of accountability mechanisms.

This shift seems, in part, to be driven by too few opportunities to hold perpetrators of mass atrocity crimes to account. But it is also creating a serious gap because it is the accountability mechanisms that traditionally establish the rules of procedure and evidence that set the parameters for documenters and investigators on gathering information. Without such rules of evidence (and in the absence of accepted international standards), it mainly comes down to the judgement of those doing the documenting, fact-finding and investigating that will ensure that vital lines are not crossed. Lines such as not taking or accepting information that may have been attained by torture or the fabrication of evidence; and not paying sufficient regard to the danger that its collection poses to victims, witnesses, survivors and those collecting the information – the “do no harm” principle.

There is one other reason why having experienced professionals readily available to the international community is more vital than ever. These experts are also in a position to provide mentoring support to enhance the capacity of other actors. Enhancing capacities has become crucial in both the context of national proceedings relating to international crimes and crisis situations where organizations such as humanitarian responders are the first to come into contact with survivors of conflict related crimes.  Continue reading

Posted in Investigations, Sexual and Gender Based Violence | Tagged , | 2 Comments

New Academic Article! Targeting Justice: Targets, Non-Targets and the Prospects for Peace with Justice

Dear readers,

I am very happy to announce that I have had a new article published in the Canadian Foreign Policy Journal, entitled “Targeting Justice: Targets, Non-Targets and the Prospects for Peace with Justice“. The piece explores how the decisions at the International Criminal Court (ICC) to target some perpetrators for prosecution and not others determine the ICC’s impact on conflict resolution and peace-making processes. Specifically, I seek to contradict the widespread view that it is the targets of ICC arrest warrants that are most likely to refuse to negotiate peace. Through the cases of Libya and Northern Uganda, I instead argue that it is the Court’s non-targets which tend to ‘dig their heals in’ and commit to political violence in order to win their war.

I have uploaded a copy of the article online, which you can access here. The abstract follows below. I hope it is of interest to some of you and, as always, I’d love to hear your thoughts and read your comments!

Ongoing conflicts are increasingly accompanied by calls for judicial interventions by the International Criminal Court (ICC). This has led to an impassioned debate regarding the effects that ICC interventions have on conflict dynamics and peace processes. A primary argument within this debate is that the targets of ICC arrest warrants will reject participating peace negotiations and instead commit themselves to political violence. This paper argues that it just as likely that actors not targeted by the Court may reject negotiating with their adversaries and thus commit to violence. The paper demonstrates this dynamic by examining two ICC interventions: northern Uganda and Libya. In both cases, the ICC’s intervention legitimized its non-targets – the government in Uganda and the coalition of intervening forces and opposition rebels in Libya – while bolstering their commitment to a military solution and their rejection of a political compromise to their respective conflicts. Ultimately, it is concluded, if both international justice and conflict resolution are to be pursued within the same contexts, it is critical to dispel popular assumptions in order to better understand the full spectrum of the ICC effects on conflict and peace dynamics.

The whole article can be found here.

Posted in Academic Articles / Books, Hybrid Courts, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, northern Uganda, Peace Negotiations, Peace Processes | Leave a comment