The Human Rights Agenda and the Struggle Against Impunity

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I recently reviewed an excellent new collection of essays Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller and D.M. Davis (Cambridge, 2016). The book should be of interest to anyone working in the field of human rights and in particular those engaged with issues of international criminal justice. Below is an excerpt from my review, the full version of which is available on Lawfare here.

Towards the end of the twentieth century, the global human rights movement embarked on a major shift in its agenda and priorities. From the mid-1970s through the late 1980s, human rights groups tended to direct their advocacy in opposition to State criminalization of political activity and abuses within domestic criminal justice systems. The primary tactic was naming and shaming; the principal target was the State. From at least the early 1990s, however, the human rights movement underwent a “criminal turn,” increasingly directing its resources towards the promotion of criminal prosecution as an indispensable requirement for securing justice, peace and truth in the aftermath of mass atrocity situations. Under the banner of “ending impunity,” the primary tactic became the promotion of criminal accountability before domestic and international courts; the principal target was the individual.

Now, almost two decades into the twenty-first century, the correspondence between criminal prosecution and human rights has become so entrenched that to be anti-criminal prosecution is increasingly viewed as anti-human rights.

It is this turn towards an anti-impunity norm that forms the focus of a stimulating new collection co-edited by Karen Engle, Zinaida Miller and D.M. Davis: Anti-Impunity and the Human Rights Agenda. Arriving at a time when the international criminal justice project is increasingly under scrutiny and a surge in divisive and isolationist populism has put many in the human rights community on the defensive, this collection offers a timely problematization of the anti-impunity agenda that has come to dominate human rights thinking over the past two decades.
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Posted in "Peace versus Justice" Debate, Academic Articles / Books, Amnesty, Brazil, Colombia, Economics of Conflict, FARC, Human Rights, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Justice, Latin America, Nuremberg, Peace Processes, Rwanda, Rwandan Genocide, South Africa, South America, Traditional Justice Mechanisms, Transitional Justice, Truth and Reconciliation Commissions | Tagged , , , , | Leave a comment

Not All it’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy”

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

I want to make something clear from the outset: what follows is not a defence of the International Criminal Court (ICC). Seriously. It may sound like one or be interpreted as one, but it is not one. What follows is an attempt to clarify what actually happened last week when states at the latest African Union (AU) summit adopted an “ICC Withdrawal Strategy”. In doing so, they set parts of the internet ablaze with a new round of reports of a mass exodus of states from the ICC and the Court’s pending demise. It’s not going to happen — at least not now.

First, let’s tackle the actual resolution of the AU adopting the ICC Withdrawal Strategy. It is purposefully weak. Like, really, really weak. The non-binding resolution includes reservations from eight states. As Elise Keppler has pointed out, “Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.” That’s a lot of reservations.

Further, the resolution’s operative paragraph declares that the Assembly of the AU “ADOPTS the ICC Withdrawal Strategy along with its Annexes and CALLS on member states to consider implementing its recommendations”. There are few things weaker in the vernacular of international legalese than calling on states to consider something.

But what about the ICC Withdrawal Strategy that was adopted? Its title certainly sounds menacing. But in substance, it is anything but. For one, it doesn’t actually call on a mass withdrawal of states from the Court. Here’s what the Strategy lists under “objectives”:

screen-shot-2017-02-06-at-3-02-22-pmIn reading the strategy, it is difficult not be left with the impression that African states remain engaged with the ICC. It certainly doesn’t sound like they’re collectively jumping ship. That’s because the Strategy reads like a largely reasonable list of possible reforms to the Rome Statute and the Court. Indeed, the arguments contained within the Strategy should be taken seriously and continue to be debated. There are at least a handful that should be acceptable to the Court and its champions, such as the long-standing request from Kenya to include “regional criminal jurisdictions” in the section of the Rome Statute’s pre-amble pertaining to the principle of complementarity. More attention also needs to be paid to the fact that the majority of the grievances and concerns expressed within the Strategy ultimately relate to the ICC’s relationship with the UN Security Council.

Perhaps the most unfortunate aspect of the Strategy is its misleading title. It is difficult, if not impossible, to read it and conclude that it proposes a roadmap for states to withdraw en masse from the Court. It really should be called “ICC Reform Proposals” or something similar. However, is clear that certain states prefer to muddy the waters and perhaps even want the media and observers to dramatize the possibility of a mass withdrawal. Advocates of the Court shouldn’t play into that game and, instead, ought to focus on encouraging African ICC member-states to advocate more accurate, and less inflammatory, titles for their documents and resolutions. That alone would help re-balance the narrative. Continue reading

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, Nigeria | 1 Comment

Could Yahya Jammeh End Up at the International Criminal Court?

Yahya Jammeh fled to exile on 21 January (Photo: BBC)

Yahya Jammeh fled to exile on 21 January (Photo: BBC)

It was unthinkable just a few short weeks ago. But today, Yahya Jammeh is no longer in power in The Gambia. Following last-minute mediation efforts by West African leaders, Jammeh’s twenty-two year-long rule came to a much-anticipated conclusion last week. After weeks of heightened tensions and fears that violence might erupt in the small country of just 2 million people, the crisis concluded peacefully — and Jammeh fled into exile. Adama Barrow, elected President of The Gambia on 1 December 2016, currently remains in neighbouring Senegal, but is set to return to Banjul and assume power. So what will come of Jammeh, a leader widely seen as responsible for political repression and a host of human rights violations? Could he end up facing charges at the International Criminal Court (ICC)?

The ICC, and the issue of retributive justice more generally, lurked in the background throughout The Gambia’s political crisis. Just weeks before the presidential elections, Jammeh declared that The Gambia would withdraw from the ICC. In response, Barrow pledged to keep the country a member of the Court, a promise he says he intends to keep following his ascension to the presidency.

Jammeh famously accepted the election results only to flip-flop on the decision a week later. In that intervening period of time, one of Barrow’s political allies stated that Jammeh would be prosecuted for his crimes within a year. Some thus speculated that Jammeh’s volte face was spurred by his fear that his giving up power would lead to his prosecution. But as Jammeh dug his heals in, the issue of investigating, let a lone prosecuting, Jammeh, was put on the back-burner. The priority was to ensure a peaceful transition of power and to avoid any bloodshed. Through successive rounds of negotiations, led by Economic Community Of West African States (ECOWAS), neither states nor major international human rights organizations voiced demands for justice and accountability. While both Nigeria and Morocco offered Jammeh asylum, Barrow smartly reiterated that Jammeh would be welcome to stay in the country.

As the political crisis unfolded, Senegalese troops, endorsed by ECOWAS and the UN Security Council, entered the country. The feasibility of Jammeh remaining in The Gambia evaporated. The question was no longer whether Jammeh would leave, but rather under what conditions. In the end, ECOWAS brokered a deal with the former despot. According to the terms of the settlement, Jammeh will not receive immunity but he did receive certain protections and a free path out of The Gambia. During the night of 21 January, he boarded a plane with Guinean President Alpha Conde. After reported stop-overs in Conakry and Malabo, Jammeh arrived in Equatorial Guinea.

Upon Jammeh’s departure, Barrow was asked about whether the former leader might be prosecuted. The President, however, said that his priority is to set up a truth and reconciliation commission to find the ‘truth’ of what transpired during Jammeh’s tenure:

We aren’t talking about prosecution here. We are talking about getting a truth and reconciliation commission. Before you can act, you have to get the truth, to get the facts together.

Still, there have been implicit suggestions that Jammeh may be concerned that he could find himself before the ICC and that his choice of Equatorial Guinea reflects that fear. According to a report in the BBC,

Equatorial Guinea does not recognise the International Criminal Court (ICC) and has weak civil society and opposition groups, reducing the chances of the government coming under pressure to hand over Mr Jammeh to either the ICC or Mr Barrow’s government for prosecution.

The CBC has similarly referred to the apparent importance of Equatorial Guinea not being a member of the ICC:

The unpredictable Jammeh… is now in Equatorial Guinea, home to Africa’s longest-serving ruler and not a state party to the International Criminal Court.

But does Jammeh have anything to fear from the ICC? Sure, the Court’s prosecutors may see Jammeh’s fall from grace as an opportunity to investigate and target him for prosecution. But it seems very unlikely. Here are four reasons why we shouldn’t expect the ICC to go after Jammeh.  Continue reading

Posted in Africa, International Criminal Court (ICC), International Criminal Justice, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Tagged , , | 6 Comments

Your Call! Sending Copies of Justice in Conflict (the Book) to African Libraries and Universities

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As readers will know, Oxford University Press (OUP) and I have hatched a plan to send copies of my book, Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, to libraries and universities across Africa. The falls in line with our commitment to give something back to the countries and communities we study. OUP has set aside 200 copies of the book and all of the royalties that I receive will go to paying for the costs of shipping the books.

But we need your help. I have come up with a list of institutions where the book will be sent and I am hoping that you, as readers, will have some ideas of your own. So, with that said, please do share any ideas you may have in the comment section below. I will include them in the list of institutions to send a copy of the book to.

Thanks as always,

Mark

Posted in JiC News | 11 Comments

Confronting the Use of Child Soldiers in Iraq

Laura Nacyte joins JiC for this post on need for accountability for the use of child soldiers in Iraq. Laura is an MSc graduate of Global Security from the University of Glasgow where she wrote the dissertation “The Copenhagen School Meets International Law: Has the International Criminal Court Impeded the Securitisation of Sexual and Gender-Based Violence?”. She has previously written for JiC on the the limits of the conception of gender under the Rome Statute of the International Criminal Court.

Groups, including Shiite militias, have been accused of using child soldiers in Iraq (Photo: Getty Images)

Groups, including Shiite militias, have been accused of using child soldiers in Iraq (Photo: Getty Images)

The issues pertaining to child soldiering have occupied much attention in recent global justice debates. In Colombia, minors were released from the rebel group of the Revolutionary Armed Forces. Their reintegration is beset with difficulties. At the International Criminal Court, a former child soldier Dominic Ongwen is tried for atrocities committed in Uganda. Indeed, children’s involvement in military activities poses the dilemma of their victimhood and agency.

The dilemma is likewise acute in Iraq, where the number of minors incorporated into diverse armed groups has surged following the emergence of the so-called Islamic State of Iraq and al-Sham (ISIS) in 2014. Despite the accession to the Optional Protocol on the Involvement of Children in Armed Conflict, which forbids the conscription of persons under 18 years of age, the Iraqi government failed to fully implement it. As a result, minors entered military groups and have engaged in wrongdoing.

Systematic recruitment, as well as children’s heightened vulnerability, diminish — although does not exclude — accountability of Iraqi child soldiers. Therefore, its determination by the means of juvenile justice in Iraq is defective. As the remainder of the post shows, it is politically biased and disregards limited minors’ agency. An alternative might be a truth and reconciliation commission; a national inquiry body concerned with past human rights abuses and restoration of social relationships. As ISIS declines in power, the creation of such commission appears both desirable and plausible.

The Flawed Iraqi Regulations of Child Soldiering

Under Iraqi law, children’s recruitment and use in armed conflict is not a criminal offence. The minimum age for voluntary recruitment is 18 years; nevertheless, the age verification system is not reliable.

Currently, the only robust safeguards for minors are set down in laws determining the status and conduct of non-state armed groups. The 2005 Iraqi Constitution prohibits the formation of such entities. The 1969 Iraqi Criminal Code and the 2005 Terrorism Act foresee sentences for those who conscript other persons, including children, into forces outside state control.

While important, these mechanisms are nonetheless problematic. They may offer a substantial protection against ISIS, the major Sunni-dominated recruiter of minors, but they simultaneously enable forces loyal to the Iraqi government to employ children with impunity. The Popular Mobilisation Forces, a Shia militia, is an emblematic example. Operating under the command of Iraq’s prime minister, it enlists children, some as young as 10 years old, on account of a religious duty. Other pro-government forces include the Kurdish Workers Party and self-defence groups.

Absent specific, child-orientated national policies, underage Iraqi soldiers tend to bear a high degree of personal responsibility for the acts of political violence. Pursuant to the 1983 Juvenile Welfare Act of Iraq, 9-17-year-olds affiliated with armed opposition groups are treated as juveniles. Once arrested, they are placed into an observational centre to undergo a physical, mental and social study of their behaviour. If convicted — typically on charges of terrorism — juveniles are sent to a correctional facilityContinue reading

Posted in Child Soldiers, Iraq, ISIS, Islamic State, Truth Commission | Leave a comment

The “Forgotten Genocide” that was a Precursor to the Holocaust

A cover of a book by Georg Rau and Lothar von Trotha (1907) depicting the subjugation of the Herero people.

A cover of a book by Georg Rau and Lothar von Trotha (1907) depicting the subjugation of the Herero people.

It is a sad truth. Few know, let alone speak, of the mass murder and policies of extermination wrought upon by colonial Germany against the Herero and Nama people in German South West Africa — what is today Namibia. But in recent weeks, that “forgotten genocide” has received renewed attention as descendants of its victims seek compensation from Germany. While German political figures have accepted that the political violence waged against the Herero and Nama people constituted genocide and have apologized for it, the country, which ruled Namibia from 1884-1915, has steadfastly refused to pay individual reparations to the descendants of victims, arguing instead that it will to Namibia in the form of development aid.

While the notion that states have an obligation and responsibility to try to atone for past wrongs isn’t in itself particularly controversial, the issue of reparations remains a bit of a mind field. Should reparations be given to individuals, including those who haven’t suffered direct violence? Should it be given by governments that weren’t directly involved? Or should reparations be given collectively to communities? If so, in what form? What ‘amount’ of reparations is appropriate? Indeed, what counts as enough enough? Who gets to decide?

However one answers these difficult questions, Namibia’s push for reparations has increased public awareness of a much-neglected genocide. The lack of public knowledge of the the genocide of the Herero and Nama peoples is particularly striking because, in many respects, it acted as a precursor to the Nazi’s genocide of the Jews during The Holocaust — the twentieth century’s darkest stain and most horrific act of mass murder.

In this excellent 2005 article on the subject, From Africa to Auschwitz: How German South West Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe, Benjamin Bradley describes how key concepts, methods, and tools, including the use of concentration camps (Konzentrationslager) were developed during colonial Germany’s genocide of the Herero and Nama. As Bradley observers, “[t]hese ideas and methods were communicated to Germany and future Nazi leaders through speeches, the press, and colonial literature.” Here are a few excerpts from his essay:

The German terms Lebensraum and Konzentrationslager, both widely known because of their use by the Nazis, were not coined by the Hitler regime. They were minted years earlier in reference to German South West Africa, now Namibia, during the first decade of the twentieth century, when Germans colonized the land and committed genocide against the local Herero and Nama peoples. Later use of these borrowed words suggests an important question: did Wilhelmine colonization and genocide in Namibia influence Nazi plans to conquer and settle Eastern Europe, enslave and murder millions of Slavs and exterminate Gypsies and Jews?

German South West Africa was colonial, but not typically so. Its violent subjugation had as much in common with the Holocaust as with other colonial mass murders and may be regarded as a transitional case between these two categories of violence. What distinguishes the German South West African genocide from most other colonial mass murders is the fact that the Germans in colonial Namibia articulated and implemented a policy of Vernichtung, or annihilation.

Wilhelmine rule in German South West Africa was not the sole inspiration for Nazi policies in Eastern Europe, but it contributed ideas, methods, and a lexicon that Nazi leaders borrowed and expanded. Language, literature, media, institu- tional memory, and individual experience all transmitted these concepts, methods and terms to the Nazis.

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Posted in Genocide, Germany, Holocaust, Namibia | Tagged | Leave a comment

Looking Back to 2016 and Forward to 2017 in the World of International Criminal Justice

3d Jahreswechsel von 2016 auf 2017

Since the emergence of international criminal justice as a regular practice in international relations and law, there has never been a dull year — and there is unlikely to be one any time soon. The year 2016 brought with it remarkable moments, significant disappointments, and some rather weird developments. Here’s a look back on some of those stories as well as some stories to anticipate in the year to come.

The Best of 2016

While some have expressed (not unfounded) concerns about the future of the International Criminal Court (ICC), there were a number of ‘victories’ in the realm of international criminal justice in 2016. Given the consistent criticism that international criminal justice is too slow and inefficient, the guilty plea and conviction of Ahmad al Faqi al Mahdi for the war crime of destroying shrines and religious sites in Timbuktu, Mali, stands out. It further appears that al Mahdi isn’t just a ‘1’ in the ICC’s ‘win column’ — his cooperation with the Court’s prosecutors could lead to additional charges, although in a rather surprising move, the Office of the Prosecutor did not include Mali as a situation under active investigation in 2017. It thus remains to be seen: is the prosecution and conviction of al Mahdi all the justice the ICC will achieve in Mali?

Another outstanding development was the landmark conviction of Hissène Habré in May 2016 for a raft of atrocities and human rights abuses perpetrated against the people of Chad. Finally, the creation of a tribunal to focus explicitly on the Kosovo Liberation Army during the 1998-2000 war there. While it is only just getting off its feet, the Kosovo Relocated Specialist Judicial Institution (KRSJI) marks the first time that an international court has been set up with the express purpose to examine the crimes of the victors of a war.

The Worst

There were a lot of rough moments in 2016. The withdrawals of Burundi, South Africa and, for the time being, The Gambia, have done significant damage to the ICC, although it must also be said that rarely have so many African states publicly expressed support for the Court. While it seems like ancient history, April 2016 brought the end of the ICC’s case against Kenyan Vice President William Ruto, marking the final death throes of justice for Kenya’s 2007-08 post-election violence.

But what really stands out is the absolute lack of accountability in Syria, after nearly 6 years of civil war. There are signs that this could potentially change in the future (see below), but 2016 is in the books as a year when, once again, no justice was brought for the victims and survivors of atrocities in Syria.

The Weirdest 

There were some weird moments in 2016. The oddest was likely the announcement that the ICC’s first chief Prosecutor Luis Moreno-Ocampo as well as renowned international criminal law scholar Mahmoud Cherif Bassiouni were working for Philip Morris International (i.e. ‘Big Tabacco’) to combat worldwide smuggling rings and “related crimes” — despite the fact that institutions like the World Health Organization have called efforts to fight illegal tobacco smuggling by tobacco companies “insincere”.

The Blog

2016 was a very good year for the blog. Over the 12 months, 104 blogs were published, including a series of fantastic interviews with key actors in international criminal justice by Shehzad Charania (see here). We ran two fantastic online symposiums: on child soldiers and the trial of Dominic Ongwen and on peace and justice in Colombia. Readership grew by a healthy 7%. The United States led to way in view, followed by the UK, The Netherlands, Canada, and Germany. Kenya and South Africa were easily in the top-10.

Of course, 2016 was also the year that my book, Justice in Conflict, was published. I cannot thank everyone enough for their support, particularly the team I worked with at Oxford University Press. The book has been selling very, very well — and I look forward to using the royalties to ship copies to libraries and universities in Africa and ICC-related states. More on that soon!

Looking Forward — What To Expect in 2017

The biggest thing to expect in 2017 is the opening of an official ICC investigation into Afghanistan. Prosecutors still need to seek the approval of ICC judges, but it in their words, that decisions is “imminent”. Such a move would be unprecedented. It would mark the first time that US officials came under investigation of an international criminal tribunal. As I wrote in November, a potential ‘win’ for the ICC whatever happens. But it’s unlikely to be pretty. Under the incoming administration of Donald Trump, we are likely to see the rockiest US-ICC relationship in years. Continue reading

Posted in Hissène Habré, ICC Prosecutor, Impartial and Independent Mechanism (IIIM), International Criminal Court (ICC), International Criminal Justice, JiC News, Kenya, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Syria | 1 Comment