Justice for the Rohingya? An Amicus Brief and the Road(s) to Accountability

Hundreds of thousands of Rohingya have been deported from Myanmar to Bangladesh in recent months. (Photo: Reuters)

We have all heard of the devastating situation facing the Rohingya people. Many believe the abuses committed against this vulnerable population by Burmese authorities amount to genocide. Yet almost a year since the Rohingya crisis captured global attention, the situation facing the Rohingya continues to deteriorate. Justice for the atrocities committed against them appears to be a very remote possibility. There is reason, however, for at least some hope on this front.

A few weeks ago, the Office of the Prosecutor at the International Criminal Court (ICC) sought to ascertain whether the Court might have a sliver of jurisdiction over the crimes committed by Myanmar forces against the Rohingya. In particular, the Prosecutor — in an unprecedented move — asked judges in the Pre-Trial Chamber whether she might have jurisdiction over the deportation of the Rohingya from Myanmar (a non-member state of the ICC) to Bangladesh (a member-state that seems willing to engage with the Court on this question). In putting her argument forward, ICC Prosecutor Fatou Bensouda usefully explained that:

the crime of deportation is analogous to a cross-border shooting: the crime, for example murder, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime.

In this context, the Canadian Partnership of International Justice under the leadership of Fannie Lafontaine and Amanda Ghahremani filed an amicus curiae at the ICC. I’m proud to have been part of that initiative. You can read our full brief here. You can also find a list of other submissions here.

The Canadian Partnership of International Justice’s filing supports the position of the ICC Prosecutor that she can request the Pre-Trial Chamber, under Article 19(3), to ascertain whether she has jurisdiction over the deportation of Rohingya people from Myanmar into Bangladesh. It also support the view that the Office of the Prosecutor should, indeed, be granted jurisdiction to investigate this crime.

Bangladesh too has filed its observations, which many hope and believe will be favourable to an ICC investigation. For obvious geopolitical reasons, this is a sensitive issue for Dhaka. Officials in Myanmar, on the other hand, have stated that they will ignore the Court’s request to share their views on the matter, saying that they have “no reason to respond”. Ignoring the ICC is Myanmar’s way of effectively saying that they do not recognize the authority of legitimacy of the Court and therefore will not participate in its proceedings. We can expect that to turn to mud-slinging if and when the Prosecutor opens an investigation.

It is worthwhile stressing that this is not an ideal situation. Far from it. But the ICC Prosecutor should be commended for trying to make the best, or at least something, out of a bad situation where any jurisdictional reach is extremely limited. The world has stood by watching as hundreds of thousands of Rohingya have been forced to leave their homes in Rakhine State only to enter devastating conditions in camps across the border in Bangladesh. Along with their often-meagre belongings, they carry with them stories and burden of untold violence and harm. Adding insult to criminal injury, neither side will recognize them as what they are: Rohingya. They are disenfranchised and disregarded. To call it abhorrent is an understatement. Continue reading

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Posted in Bangladesh, Burma/Myanmar, Canadian Partnership of International Justice , Deportation, International Criminal Court (ICC), International Criminal Justice, Rohingya | 1 Comment

It’s Not Too Late — A Proposal for South Africa to Stay in the ICC

A version of the following article was originally published in the Mail & Guardian and was co-authored with Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and a member of the Africa Group for Justice and Accountability

South African President Cyril Ramaphosa giving a speech in Cape Town, South Africa (Photo: AP)

South Africa’s Justice Minister has presented the International Crimes Bill to the Justice Portfolio Committee of the South African parliament. This process could be a precursor to the country repealing the Rome Statute of the International Criminal Court Act (2002) and eventually withdrawing from the International Criminal Court (ICC). This is very troubling news — for South Africa and the project of global justice itself. It is also unnecessary. South Africa can and should be a champion of the ICC and seek to improve the institution it has already invested so much into. What happens next will determine whether South Africa is a leader or a laggard on international justice. It still has an opportunity to be the latter — and avoid the former. 

This is not the first time that South Africa has moved towards withdrawal from the ICC. In October 2016, the government of Jacob Zuma announced that it would withdraw from the ICC due to a host of reasons, including its belief that, in order to be an active and effective mediator in peace processes, it could not remain a member of the Rome Statute of the ICC. 

Zuma’s efforts to withdraw South Africa from the ICC were thwarted by deft domestic legal action. According to the High Court, which found Zuma’s efforts to withdraw South Africa from the ICC to be unconstitutional and that parliamentary approval of any effort to repeal the ICC Act of 2002 and withdraw the country from the Court was necessary.

After Zuma’s resignation, many observers hoped that his successor, President Cyril Ramaphosa, would not proceed towards withdrawing South Africa from the ICC. This hope was not met by any confirmation that the ANC’s policy of seeking withdrawal from the ICC had changed. For his part, President Ramaphosa has been silent on the matter. Still, as someone widely regarded as a proponent of international law and global justice, many believed that the President would see the value and interest of remaining a state party of the Court. Ramaphosa was on the International Commission on Intervention and State Sovereignty whose conceptualization of the Responsibility to Protect posited the International Criminal Court as a cornerstone of the anti-impunity firmament. South Africa itself has a proud and impressive history of supporting efforts to achieve justice and accountability for mass atrocities, including at the ICC. In his Africa Day address last week, the President emphasised the importance of South Africa supporting international law and the United Nations. Everything should be done to avoid undermining that hard-earned reputation and record.

The government’s decision to continue pushing forward the International Crimes Bill means that the merits of South Africa’s withdrawal from the ICC will be debated in Parliament in the coming weeks and months. Hope in South Africa’s commitment to the ICC now resides amongst the country’s Parliamentarians. But President Ramaphosa and the ANC leadership could still play a role in making the best out of a bad situation. Here’s how. Continue reading

Posted in International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa | Tagged | 3 Comments

Meeting Expectations on the Road to Justice: Achieving Accountability in The Gambia

Gambians celebrate in January 2017 following the confirmed departure of Yahya Jammeh from power — and the country. (Photo: AFP)

Dear readers of JiC,

As some of you will know, over the last few months, I have been doing work and research on The Gambia’s transition following the end of Yahya Jammeh’s authoritarian rule. Last July, I was part of a joint effort between the Wayamo Foundation (where I act as Deputy Director) and the Africa Group for Justice and Accountability (AGJA) which provided feedback to Minister of Justice Ba Tambadouon on legislation that created a Truth, Reconciliation and Reparations Commission. In late October, I also had the opportunity to be part of a three-person delegation which visited The Gambia for in-depth consultations with key actors and to see how Wayamo and AGJA might be able to assist in The Gambia’s efforts to confront its past and achieve justice and accountability for Jammeh-era crimes. It was an eye-opening experience speaking to victims and survivors, relevant ministers and political officials, journalists, students, and police officers. The challenge ahead for The Gambia is immense. But so too is the opportunity.

In this context, I wanted to share with readers the mission report from our consultations in The Gambia entitled Meeting Expectations on the Road to Justice: Achieving Accountability in The Gambia. Most importantly, the report offers recommendations on a number of key issues and challenges facing the country in its efforts to achieve justice and accountability for past crimes as well as building respect for the rule of law and preventing any slide-back to authoritarian rule.

Here is the report overview:

The Africa Group for Justice and Accountability (AGJA) and the Wayamo Foundation have been engaged in The Gambia since July 2017, when they were requested to make recommendations to the Minister of Justice, Abubacarr Tambadou, on the proposed Truth, Reconciliation and Reparations Commission. Subsequent to its report and at Minister Tambadou’s express invitation, an AGJA/Wayamo fact-finding delegation was sent to the country in late October 2017 to ascertain the nature of the challenges confronting The Gambia’s transition and, in particular, with regards to achieving justice and accountability for human rights violations and crimes perpetrated under the former regime. The delegation’s efforts have since been described by high-ranking officials as the “most thorough” consultative process undertaken in the country since the beginning of its democratic transition.

Through a series of broad consultations with key stakeholders in the transitional process, including members of government, civil society, academia, and the diplomatic community, the delegation sought to understand the challenges and priorities surrounding the achievement of justice and accountability in the country. The delegation was led by former Tanzanian Chief Justice, Mohamed Chande Othman, and included human rights advocate Fatiha Serour (Algeria) and Wayamo Foundation Deputy Director, Mark Kersten (Canada).

Over four days of consultations, the delegation held meetings with a wide spectrum of interlocutors, ranging from the country’s Vice President, Ministers of Justice and Foreign Affairs, Inspector-General of Police, Speaker and members of the National Assembly, to representatives from the United Nations Development Programme, United Kingdom, United States and European Union embassies, Centre for Victims of Human Rights Violations, University Student Union, and Press Union.

Based on the delegation’s consultations as well as ongoing research on the country’s transition conducted at the Wayamo Foundation, this mission report offers a series of recommendations to authorities and officials in The Gambia as they continue to work on achieving justice and accountability and building a state that eagerly and effectively defends the rule of law and human rights. It is also expected that it will inform the work of the Wayamo Foundation, AGJA and other partners interested in further supporting The Gambia’s transition process.

A copy of the rule report can be found here. As always, please do share your thoughts!

Posted in The Gambia, Truth and Reconciliation Commissions, Truth Commission | 1 Comment

The International Criminal Court Can and Should Investigate Violence in Gaza

Palestinian protesters on 14 May (Photo: EPA)

As the United States moved its embassy from Tel Aviv to Jerusalem, the Israeli government was ecstatic. In contrast, Palestinians were irate, organizing public demonstrations throughout the spring. When the embassy opened its doors on May 14, Israeli soldiers fired live ammunition into large crowds of mostly unarmed demonstrators, some of whom were attempting to cross the border. 

The result was at least sixty deaths— the deadliest day in Gaza since the 2014 Israeli-Gaza war. 

What justice can be done for the victims of violence wrought by both Palestinian militants and Israeli forces on Palestinian civilians? One avenue would be the International Criminal Court (ICC), which already has jurisdiction in Palestine. This week’s events likely make an investigation by the ICC inevitable. But such a probe would not be without its challenges.

The ICC in Palestine

In response to the 2014 war in Gaza and a subsequent request from the government of Palestine, the ICC opened a preliminary examination into alleged war crimes and crimes against humanity perpetrated on Palestinian territory. The most recent unrest in Gaza will only add fuel to the fire — and add pressure on ICC Prosecutor Fatou Bensouda to open an official investigation into those responsible for atrocities. 

Despite some disagreement from a dwindling number of states who do not recognize Palestine as a state— and therefore do not believe that Palestine could request an ICC investigation into alleged crimes committed in Gaza— the ICC has both accepted Palestine as a state-party to the court and opened a preliminary examination into violence committed in Gaza since 13 June 2014.

It is important to stress that any investigation into Palestine would rightly require the ICC to investigate all sides of the conflict. While often and purposefully framed as such, the court cannot be used by Palestine against Israel. The indiscriminate shooting of rockets from Gaza into Israeli communities and other violent activities by Hamas would also be investigated and prosecuted.

Before an official investigation can be launched, however, the preliminary examination must be concluded. Doing so requires the ICC prosecutor to consider numerous factors, including whether: crimes under the court’s jurisdiction have been committed; relevant states are investigating and prosecuting the crimes themselves; the alleged crimes are sufficiently grave to merit investigation from the ICC; and if an investigation would be in the “interests of justice.” 

Palestine has been under preliminary examination for over three years. Prosecutor Bensouda insists that she cannot provide a timeframe for when the examination will conclude. This week’s violence in Gaza— including the deaths of an eight-month-old child and a disabled man in a wheelchair wielding a slingshot—should change her calculus.

A challenge to the ICC prosecutor

This week’s violence also poses a challenge to the prosecutor’s ability to effectively deter atrocities— something Bensouda said is a “crucial function” of her office. In reaction to the deaths of Palestinian protesters in March, Bensouda issued a statement, warning that “[a]ny person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She issued a similar response to the most recent violence in Gaza. 
Continue reading

Posted in Gaza, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | 1 Comment

Policy Paper Alert: “Building Bridges and Reaching Compromise: Constructive Engagement in the Africa-ICC Relationship”

Building Bridges and Reaching Compromise: Constructive Engagement in the Africa-ICC Relationship

Dear JiC readers,

I am thrilled to announce the publication of a policy paper entitled “Building Bridges and Reaching Compromise — Constructive Engagement in the Africa-ICC Relationship” that I have authored with contributions from colleagues at the Wayamo Foundation, where I work as Deputy Director.

The paper is the result of long-term research and was inspired by dialogues on the Africa-ICC relationship initiated by the German Ministry of Foreign Affairs and held in Pretoria in March 2017. The comprehensive and in-depth report offers policy-relevant analysis across numerous issue areas, with a particular focus on: the perception and misperceptions of the ICC, the Court’s relationship with the Security Council, the so-called “peace versus justice” debate, and reforms of the ICC from within. These core areas are assessed with regards to their impact and influence on the relationship between the ICC and African states and constituencies.

The relationship between Africa and the International Criminal Court (ICC) has received a tremendous amount of attention in recent years. Not only have dozens of articles and reports been written on the subject, but numerous conferences, symposia and diplomatic meetings have sought to assess the crux of the relationship and the concerns that African states and communities have regarding the Court. Despite allof this time, effort, and energy, it cannot be said todaythat the problems at the heart of this relationship have been resolved.

Over many years, the Wayamo Foundation has engaged with scholars, researchers, diplomats, practitioners, human rights advocates and politicalfigures on the subject of the Africa-ICC relationship. Indeed, understanding and improving the relationshipis a core feature of Wayamo’s mandate. This report thus represents much of the knowledge regarding the relationship that the Wayamo Foundation has built up and gleaned over the last year.

This policy report was further inspired in part by discussions held during the South African-German International Justice Dialogue. The event was initiated by the German Ministry of Foreign Affairs and organised by the Wayamo Foundation. It was held under Chatham House Rules, from 27-28 March 2017 in Pretoria.

In the following pages, the report focuses on four keytopics that have proven central to the relationshipbetween the Court and the African continent:

1. Perceptions regarding the ICC;

2. The relationship between the Court, the Security Council and Head of State Immunity;

3. The Peace-Justice debate; and

4. Reforms of the ICC.

The report offers analysis as well as recommendationson each of these critical subjects.

Above all else, this report urges continued engagementon the Africa-ICC relationship by all relevant actors, including ICC member states, the Court itself, civil society organisations, scholars and researchers, as well as victims and their representatives. Only through positive engagement can the legitimate concerns of African states and African communities be heard. Only through dialogue and negotiation can abetter and more effective ICC be realized.

The full paper can be accessed here.

Posted in Africa, African Union (AU), Amnesty, Article 16, Assembly of States Parties, ICC Prosecutor, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, Peace Negotiations, Peace Processes, Peacebuilding, Policy Papers, UN Security Council, Wayamo Foundation | 1 Comment

Lecture in Berlin: Africa and the International Criminal Court — Building Bridges and Reaching Comprise

(Photo: Wikimedia Commons)

Dear (Berlin-based) Readers,

I am happy and very excited to announce a lecture that I will be giving entitled ‘Africa and the International Criminal Court — Building Bridges and Reaching Comprise’. The event will take place at the WZB in Berlin on 17 May at 18:00. I will be presenting findings from a research and policy paper on the Africa-ICC relationship that I have written in collaboration with colleagues at the Wayamo Foundation. Here are the details:

Africa and the International Criminal Court — Building Bridges and Reaching Comprise 

According to many observers African states and the International Criminal Court (ICC) are at loggerheads. Government leaders have derided the ICC as racist and neo-colonial in its pursuit of justice. A number of states have stated their intention to withdraw from the Court and one, Burundi, withdrew from the ICC in October 2017. At the same time, African communities affected by conflict have raised concerns about the impacts of the ICC and the apparent gap between the institution’s promise and what it can deliver. In such trying times many urgent questions arise: What is the future of the ICC-Africa relationship? What drives the antagonism of certain African states and communities towards the Court? What can be done to build bridges and reach compromises that enhance the ICC’s relationship with Africa whilst simultaneously strengthening the project of international justice?

Based on a newly released research and policy paper, this lecture will delve into these questions, elaborating the core motivations of African critiques of the Court, offering an detailed view into the current issues at the heart of the Africa-ICC relationship, as well as outlining concrete measures that can be taken to improve it. African states helped build the ICC; their engagement with the institution will determine what kind of Court — and indeed what kind of system of global justice — the world and its people can expect. 

The event is organised and moderated by Sassan Gholiagha.

More details and info for RSVP are available here.

If you are in (or near!) Berlin, please come join us. It would be great to see you — or see you again!

Mark

Posted in Africa, International Criminal Court (ICC) | 2 Comments

“I wanted to be the ICC President because I had a clear idea of what I wanted to achieve” — An Interview with Silvia Fernandez de Gurmendi

Shehzad Charania joins JiC for this interview with outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi. Shehzad is the Head of International and EU Law at the Attorney General’s Office and International Law Adviser to the Prime Minister’s Office. Between 2013-16, he was the Legal Adviser and Head of International Law at the British Embassy in The Hague.

This marks the second time that Shehzad has interviewed Fernandez. The first interview was conducted in January 2015 when Shehzad was her first visitor at the Court’s newly opened premises. This time, he interviewed  Fernandez as part of her very last engagement before leaving the Presidency and the Court for good. The interview focussed on her legacy, her view of the Court today, and her hopes for the future. It was conducted on 9 March 2018.

Outgoing ICC President, Silvia Fernández de Gurmendi (Photo: International Criminal Court)

Outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi is in a reflective mood, for obvious reasons. It had been a “moving day”, she says. She has just that morning presided over a ceremony of the swearing-in of six new Judges, while the day before the Appeals Chamber issued four judgments. “We had to work like mad,” she says, “so I haven’t until now had the chance to reflect.”  

To add to the sense of finality, while we are speaking the Court issues the President’s End of Mandate Report setting out progress against the priorities she outlined at the start of her term in 2015.  She hails the emphasis on expediting and improving the judicial process. “I was so proud that we even managed to have a discussion on it,” she says.  Previously, many of the Judges had not wanted to enter into a dialogue around judicial processes, citing judicial independence as the concern. In the end, it has been a collective effort to improve trial procedures, and establish a “more cohesive judicial culture”. By issuing the report, she hopes that the new bench, including the six new Judges, will continue the dialogue. “Much has been done,” she says, “but there is much more to do.”  

In addition to the work on the judicial process, Fernandez also picks out the focus on restorative justice in the report and, in particular, her efforts to integrate the Trust Fund for Victims into the work of the Court. “The Trust Fund is a crucial part of the Rome Statute system,” she says. While the Trust Fund zealously guards their independence, she is clear that the “Court needs the Trust Fund and the Trust Fund needs the Court”. She has recently undertaken a trip to Uganda with the Trust Fund to see some of their work being carried out in the field.  Fernandez describes it as “one of the highlights of my Presidency”. She says she saw first-hand how much could be done with relatively little resource. “The new leadership should continue the engagement with the Trust Fund,” she advises, “because of the centrality of victims in the work of the Court.” Improving judicial process is key, she stresses, but it is equally important to raise awareness of the plight — and role — of victims, and the work of the Trust Fund.

What if she had another three years, I ask?  She is keen to emphasise that, in her view, three years is sufficient for a Judge to hold the Presidency. While it means that there is a limited amount of time to drive through an agenda, it means that you are “truly independent” because you are not spending your time “trying to make friends to ensure your reelection”. It is now time to pass on the torch, to bring in new ideas, she says. During her time, she has had to make hard choices which not everyone has agreed with or been happy about. If she were to have another three years, she would focus on harmonising the system for victims’ applications and participation. But she doesn’t think she could have done much more than she has. There needs to be a greater degree of experience in these areas, she says. 

So no regrets, I ask? “I did what I could,” she says, “and maybe I could have done better, but I wanted to be the President because I had a clear idea of what I wanted to achieve.” The biggest challenge had been to bring others with her in her vision for the Court and the judiciary.  But, she says sombrely, “there will always be a few individuals who do not want the same thing.”

As President, one of Fernandez’s responsibilities would have been dealing with the politics of the institution and the role of States in particular. The role of the ASP has grown, she notes. She doesn’t think that the extent of the role as it stands today was envisaged in Rome. States Parties in The Hague had in the past a tendency to “micromanage” the Court, she says. While Fernandez notes that she maintained good relations with States, and has no doubt about the key role they have to play, she has tried to persuade them not to interfere with the day to day running of the Court. “We need space to function,” she says, “so we need to find the right balance, because we need the ASP and we must engage with them.” But, she continues, “States need to think about whether they believe in the goals of the Rome Statute as they were envisaged twenty years ago, around accountability and sustainable peace.” If States want these aspirations to become a reality, she says, they have to face down the lack of cooperation and other current disputes, such as around immunities.  Continue reading

Posted in ICC President, International Criminal Court (ICC), International Criminal Justice, Interview, Interviews, Trust Fund for Victims | Tagged , | 2 Comments