The Real Victims of Australia’s Migration Policies aren’t Tennis Stars, They’re Refugees

Posted on January 12, 2022 by Mark Kersten
Refugees and asylum seekers in an Australian detention center in Nauru (Photo: The Guardian)

The furor over whether or not Novak Djokovic will or will not be allowed to compete in the Australian Open has pitted the Serbian tennis star and vaccine skeptic against the government of Australia. But Djokovic is no victim and the government is no hero.

The focus – and noise – surrounding the battle of Djokovic versus the Australian government is a distraction from the plight of thousands of asylum seekers that have been denied entry into Australia and who are herded onto island prison camps run by private security firms. When it comes to Australia and migration, we should be focusing on their plight, not that of rich and privileged sporting stars.

For the past decade, Australia enthusiastically implemented a zero-tolerance approach towards asylum seekers trying to reach its shores. In brief, Australia captures undocumented people who reach the country as well as those attempting to enter via boat. It then transports them to privately operated processing centres in third countries, most notoriously Nauru and Manus Island, Papua New Guinea, with whom Australia has bilateral agreements. 

Once in detention, asylum seekers have three options: return to their original state (irrespective of harms they may face in doing so); find a third country that will accept them; or stay in the camps on in the hope of having their claim processed by Australia. If detained asylum seekers choose to remain, they may be imprisoned at these centres indefinitely. As the government admits: “there is no limit in law or policy to the length of time for which a person may be detained.”

None of this saves Australia a dime. Expenditures for its offshore detention facilities run in the billions of dollars each year and the average cost to detain an asylum seeker in one of the island facilities costs Australia about twice that of an onshore detainee.

The conditions in the camps can be deadly. Consider the story of Reza Barati, who made it to Australia in 2013. The 23-year-old Iranian Kurd’s arrival on Australian soil came just days after the adoption of the Regional Resettlement Arrangement between Australia and Papua New Guinea, which permits Australian authorities to transfer asylum seekers like him from Australia to Manus Island. Just six months after his transfer, he was killed by guards during a riot.

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Posted in Australia, Human Rights, Immigration, International Criminal Court (ICC), Nauru, Refugees | Leave a comment

Enough is Enough: The ICC Should Announce an Investigation into Migrant Abuses

Posted on December 8, 2021 by Mark Kersten
(Photo: Angelos Tzortzinis/AFP/Getty Images)

The scenes are all too familiar: migrants desperately clinging onto dilapidated dinghies as towering naval ships armed with heavy-duty guns encircle them. Some migrants make it to Europe. Many perish. Thousands are sent back each year to Libya. Back on shore, they are incarcerated in camps where they are vulnerable to sexual violence, torture, arbitrary detention, and human trafficking. Some try their luck on the Mediterranean again. The treacherous journey repeats.

Far from the scene of migrant drownings, the Prosecutor of the International Criminal Court (ICC) presented a familiar refrain at his bi-annual address to the United Nations Security Council on 24 November 2021,. Karim Khan lamented crimes perpetrated against migrants in Libya, calling them “troubling” and calling for accountability to “march alongside” global condemnations.

The Prosecutor’s remarks came in the wake of yet another report from human rights groups imploring the ICC to genuinely investigate atrocities committed against asylum seekers attempting to cross into Europe from the north African state. For years, the court has insisted it will investigate these crimes, only to dither and then re-state its interest in doing so before the Security Council. Enough is enough. It is time to hold accountable all actors involved in abuses against people on the move – including European states.

Atrocities against migrants: From Libya to Sudan to Libya again

Libya has played a critical but sordid role in helping Europe stave off unwanted asylum seekers. Throughout the 2000s, former Libyan dictator Muammar Gaddafi helped European states ensure people on the move would not use Libya as a launching point to cross the Mediterranean. Western states were happy with the arrangement and Gaddafi was rewarded for doing their dirty work.

In 2008, for example, Italy agreed to invest $5bn in Libya in exchange for its continued work in controlling African asylum seekers. Both sides were satisfied while people on the move lived in horrific conditions. In 2011, Gaddafi fell from power, in large part due to the intervention of those same states that had seen him as a partner in migration control. Following a Security Council referral of Libya to the ICC that same year, the court also issued an arrest warrant for Gaddafi, on allegations of war crimes and crimes against humanity.

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A Sea Change or Business as Usual? The Review of the International Criminal Court Continues

Posted on November 29, 2021 by Mark Kersten

Gabriele Chlevickaite joins JiC for this blog post on the status of the review and reform of the International Criminal Court. Gabriele worked in the Office of the Prosecutor of the ICC in 2014-2017, and Independent Expert Review in 2020. All information contained in this article is drawn from public sources. The article reflects the author’s personal views.

(Image: Perkins & Will)

It is hard to keep pace with the changes at the International Criminal Court. Just over the past year, a whirlwind of swearings-in introduced six new judges, the President and Vice-Presidents of the Court as well as of the Assembly of States Parties (ASP), and the Chief Prosecutor of the OTP. On top of all that, the ASP is resolutely continuing with the ‘Review of the International Criminal Court and the Rome Statute System’ (Review), building upon the Independent Expert Review (IER) of last year. In anticipation of the upcoming ASP meeting in December, where the Review process will presumably make a decent feature (it is point 12 on the preliminary agenda), where are we now, and what can we expect in this regard from the 20th session of the ASP? 

The Review Mechanism and Comprehensive Action Plan

The Final Report of the IER sets forth 384 recommendations addressing court-wide matters (i.a. governance, human resources, budget), organ-specific matters (Chambers, OTP, Registry), and external governance (i.a. ASP, oversight mechanisms). The recommendations are ‘aimed at assisting the ASP and the Court’ in enhancing the Court’s impact through higher efficiency and cost-effectiveness (para.988). While the report provides a framework for change, this ASP-led Review process now continues in the form of a ‘Review Mechanism.’ This body, made up of State Party representatives (currently The Netherlands and Sierra Leone) and ad country focal points, is ‘dedicated to planning, coordinating, keeping track and regularly reporting to the Assembly Presidency and the Bureau on the assessment of the recommendations contained in the Report of the Group of Independent Experts and further action, as appropriate <…>’ (para.4). Hence, the continued monitoring of the Independent Expert Review (IER) recommendations is in its hands.

To date, the most important output of the Review Mechanism is the categorisation of all the IER recommendations with corresponding timelines for their assessments through the Comprehensive Action Plan (Action Plan). This document identifies recommendations to be prioritised for assessment (i.e., implementation?), dividing the extensive list into four 6-month periods, up to the second half of 2023. While not easily digestible, the plan defines some important expectations from the Court for the upcoming years, with a select few areas unpacked below.

I.               Governance

Working culture at the Court, the area most widely reported on after the issuance of the IER report (see e.g. here, here and here) is unsurprisingly getting priority treatment by the Mechanism. The prioritised IER recommendations 14-20 (R14-20) provide for a wide-ranging aim to ‘rebuild and strengthen internal trust and re-shape the working culture at the Court,’ but also changes to be made to i.a. recruitment processes, gender equality, and staff wellbeing (p.26). Alongside working culture in general, bullying and harassment in particular are underlined (R87-88), with the Experts proposing multiple avenues for reporting instances of misconduct. 

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Posted in ICC President, ICC Prosecutor, ICC Registry, International Criminal Court (ICC) | Tagged , | 2 Comments

Sudan Coup Puts Justice for Atrocities in a Lurch

Posted on November 3, 2021 by Mark Kersten
Protesters burn tires, block roads in Sudan a day after coup
Protesters in Khartoum, Sudan, following the military coup (Photo: AP)

Following the military coup last week, the future of Sudan has been thrown once again into uncertainty. Despite reports of live rounds being shot into open crowds, Sudanese demonstrators have given what Rebecca Hamilton has called a “masterclass in nonviolent resistance”. As I write this, brave Sudanese citizens are standing steadfast in the streets and steadfast in their demand that the democratic transition that the country entered into following former President Omar al-Bashir’s fall from power in 2019 continue. Given this context, it might not be a time to worry too much about the International Criminal Court (ICC) and its role in Sudan. But for those working towards and worried about accountability for mass atrocities committed in Sudan over the past two decades, the coup spells bad news. How it is resolved will determine whether there is space for justice.

Over the last year, international justice advocates rejoiced after each of the periodic statements from Sudanese officials that Omar al-Bashir would be transferred to the ICC. In the late 2000s, the Court issued warrants of arrest for Bashir, charging him with war crimes, crimes against humanity, and genocide committed in Darfur. For over a decade, the erstwhile leader was a thumb in the Court’s eye, rallying anti-ICC sentiment across the African continent while regularly travelling abroad in defiance of calls for his arrest. But celebrations over Bashir’s apparently imminent transfer to ICC officials were premature. The division between civilian and military elements within Sudan’s transitional governing body was and is a critical sticking point in any discussion on Bashir’s surrender. 

Put simply, the civilian authorities – including Prime Minister Abdalla Hamdok and Justice Minister Nasredeen Abdulbari – are in favour of Bashir being prosecuted by ICC judges, whether that ultimately takes place in The Hague or elsewhere. The military is not nearly as keen, for rather clear reasons. Its leadership – including coup leader General Abdel Fattah al-Burhan and Mohamed Hamdan Dagalo – were formally under Bashir’s thumb and many of them are implicated in atrocities in Darfur as well as during more recent popular unrest. 

Seeking to capitalize on Sudan’s transition and the possibility of putting Bashir before judges in The Hague, ICC officials have visited with both civilian and military leaders in an effort to convince them to cooperate with the Court and hand over Bashir. Both former Prosecutor Fatou Bensouda and current Prosecutor Karim Khan met with al-Burhan and Dagalo. Only those present at those meetings know what was said, but one can imagine there would be some attempt by ICC figures to assuage any concerns that Sudan’s military leaders would be targeted for investigation. Perhaps it would have been enough to inform al-Burhan and Dagalo that the Court’s hands are full with Bashir and the handful of other suspects it has issued warrants for in relation to atrocities in Darfur. Perhaps the prosecutors simply communicated their own internal policy, which was released leaked: they are not looking to expand their investigation to include any other alleged perpetrators from Sudan; the likes of Dagalo are safe. 

Whatever was said, it did not work. According to a recent report by Sudan analyst and Human Rights Watch consultant Jehanne Henry, “Sources close to the military say al-Burhan and his deputy, Mohamed Hamdan Dagalo, ‘Hemedti,’ who heads the fearsome paramilitary that led the June 3 massacre, are afraid of the implications of handing the suspects over — for themselves, their colleagues and the army’s hallowed reputation.” It also does not help the ICC’s case that states with influence in Sudan have not openly or loudly demanded the transfer of Bashir to the Court. 

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Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | 1 Comment

A case for prosecuting Omar Bashir in Sudan: Low hanging fruit for the International Criminal Court

Posted on September 22, 2021 by Mark Kersten

James Nyawo joins JiC for this post on where former Sudanese President Omar al-Bashir should be tried. James is currently a Visiting Researcher with Global Sites of International Criminal Justice (JustSites) at Copenhagen University. He is a lecturer at Kenyatta University, Nairobi, Kenya.

Official: Sudan to hand over al-Bashir for genocide trial - ABC News
Bashir on trial for corruption and other charges in Khartoum. (Photo: AP)

Choosing the location of atrocity crime trials can have far-reaching consequences. For victims and societies emerging from autocratic and brutal regimes, local trials can have therapeutic effects. On the other hand, trials held outside of the country and context where crimes were committed, for instance in the International Criminal Court (ICC) in The Hague, are not impeded by local power battles and dynamics. Choosing the location of trials is also linked to the financial cost of legal proceedings, international trials often being more expensive. Besides such consequences, the choice of the location of atrocity crime trials can send specific signals to different stakeholders. All of this is being played out right now in Sudan, where authorities must decide where from President Omar al-Bashir should be put on trial: in The Hague or in Sudan.

Following World War Two, the Allies selected the war-damaged Nuremberg, which had been the central nerve for Nazi propaganda rallies and where the infamous Nuremburg Laws of 1935 had been passed, as the location for the International Military Tribunal. The trial and the location not only symbolized the death of official Nazism but also marked the genesis of the remembrance and re-membering process of the German and European society. The choice of Nuremberg as the location of the trials had symbolic meaning and aimed at establishing the crimes of the Nazi regimes firmly in the eyes of the German and European people.

More recent experiences of establishing international tribunals, demonstrates, however, that it is not always possible to conduct international or national prosecutions in the states where atrocities occurred.  States torn by war may lack the necessary judicial infrastructure, logistics and security. For instance, although the Rwandan authorities wanted the International Criminal Tribunal for Rwanda to be established in Kigali, a compromise had to be reached for it to be established in Arusha, in neighboring Tanzania. This was done because an international tribunal based in Kigali might have sent wrong messages of bias against the Hutu ethnic community. Given Arusha’s proximity to Kigali, it made the Rwanda Tribunal accessible to Rwandan survivors and the local media. 

The delegates at the Rome Conference which negotiated the Rome Statute did not spend much time deciding on the trial location for ICC suspects. Such burden was lessened when The Netherlands offered The Hague as the seat for the Court. Since The Netherlands was the only state to make such an offer, the seat of the (ICC) was established in The Hague, amidst other international legal institutions in a city that brands itself as the “international city of peace and justice”. Since coming into operation two decades ago, the Court has heard all of its cases in The Hague. It has chosen to remain remote and detached from the where crimes were committed and where survivors of atrocities are located. The Court has been criticized for delivering ‘distant justice’ which makes social and general deterrence difficult to maximize. In light of this criticism it is highly puzzling that Article 3, which authorizes the ICC to “sit elsewhere, whenever it considers it desirable,’’ has largely gone under the radar among the Court and academics. Bashir offers a good opportunity for the ICC to revisit its policy on trial location. 

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Posted in Complementarity, Darfur, International Criminal Court (ICC), International Criminal Justice, Sudan | Tagged | 2 Comments

International Justice Day 2021: To Stop Mass Atrocities, Address How They’re Funded

Posted on July 17, 2021 by Mark Kersten

The following article was written to mark International Justice Day (17 July 2021) and is based on ongoing research I am conducting into the linkages between mass atrocities and transnational organized crime (see here for some preliminary insights). A version of the piece was originally published at Al Jazeera.

LRA is a smaller problem of CAR – DaveBugzy
Ivory in the custody of Ugandan armed forces (Photo: Dave Bugzy)

Mass atrocities don’t come cheap.

A common misconception is that everything must fail in order for international crimes – war crimes, crimes against humanity, and genocide – to be perpetrated against civilian populations. On the contrary, many things need to align for governments, terrorists, or rebel groups to commit atrocities. They need persuasive politics, organised institutions prepared to follow orders, and buy-in from key constituencies. And they need money – lots of it.

After another year in which the demand for accountability for international crimes far outweighed the supply of justice, this July 17 – International Justice Day – is a useful time to highlight the importance of tackling the funding of atrocity perpetrators. One way to do so is to connect the prosecution of mass atrocities with the lucrative, transnational crimes that fuel them.

It is hard, if not impossible, to think of a conflict since the end of World War II where mass atrocities were perpetrated but in which transnational organised crimes played no role. The commission of transnational crimes, such as human and drug trafficking, money laundering, the illicit trade of oil, ivory and antiquities, and so on, has contributed mightily to filling the coffers of war criminals, terrorists, and genocidaires.

Consider some examples. The notorious Lord’s Resistance Army (LRA), a rebel group which operates in swaths of Central Africa, has committed a litany of war crimes and crimes against humanity since its war with the government of Uganda erupted in the mid-1980s. In recent years, the LRA has been able to survive and continue its abduction of children to fight in its ranks because of its illegal trafficking of ivory through Sudan.

In Syria and Iraq, the Islamic State of Iraq and the Levant (ISIL) has been accused of every international crime on the books, including the attempted genocide of the Yazidi population. ISIL’s economy depended on transnational organised crimes, including the illicit sale of oil through Turkey and on to international markets. While its destruction of culturally protected sites received significant media attention, ISIL also preserved some antiquities in order to sell them, illegally, on black markets. Such transnational crimes permitted ISIL to survive – and terrorise civilians – for as long as it did.

On rare occasions, the link between illicit and lucrative crimes and mass atrocities has received attention from courts. In 2012, former Liberian President Charles Taylor was convicted and sentenced to 50 years in jail for aiding and abetting war crimes and crimes against humanity in Sierra Leone. Central to his conviction was Taylor’s involvement in the trade of “conflict diamonds” in order to fund the rebel groups that terrorised Sierra Leonean civilians.

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Posted in International Criminal Court (ICC), International Criminal Justice, ISIS, Islamic State, Kosovo, Kosovo Liberation Army (KLA), Kosovo Specialist Chambers, Lord's Resistance Army (LRA), northern Uganda, Sierra Leone, Transnational Organized Crime | 4 Comments

Justice for Indigenous Peoples in Canada: All Options on the Table, including Universal Jurisdiction

Posted on July 14, 2021 by Mark Kersten

Melissa McKay joins JiC for this guest post on responses to the Residential School atrocities committed in Canada. Melissa is an international criminal lawyer, with experience at the International Criminal Tribunal for the former Yugoslavia and Extraordinary Chamber in the Courts of Cambodia. Currently, with the Center for Human Rights, Gender, and Migration, she is assisting in monitoring the Massaquoi trial. A Canadian settler, she grew up on the traditional territory of the Anishinaabe and Métis People.

Opinion: On residential schools, Quebec's history curriculum fails | Montreal Gazette
Students from a Residential School stand in a Fort George cemetery, near James Bay, in November 1946 (Photo: Truth and Reconciliation Commission / Archives Deschâtelets)

In late May, Tk’emlúps te Secwépemc First Nation announced that as many as 215 children could be buried on the site of the former Kamloops Residential School. Shortly thereafter, Sioux Valley Dakota Nation announcedthat it had identified a possible 104 graves at the former Brandon Indian Residential School. Cowessess First Nation then announced that it had discovered 751 unmarked graves near the former Marieval Residential School, and in late June, ʔaq̓am, a band from Ktunaxa Nation, announced that it had found another 182 unmarked graves near the former St. Eugene’s Mission School. Most recently, the Penalakut Tribe stated that it had identified more than 160 undocumented and unmarked graves near the former Kuper Island Industrial School.

These findings will continue. Canada’s genocidal acts through its residential school system are well known in the oral histories of Indigenous Peoples, and well-documented in Canada’s Truth and Reconciliation Report. The residential school system was implemented by the Canadian government and several different Christian churches and Catholic orders, such as the Missionary Oblates of Mary Immaculate, which operated 48 residential schools across the country, including the above-mentioned Kamloops, Marieval, St. Eugene’s, and Kuper Island. The last residential school closed in 1996, and criminal trials covering the acts that occurred within this genocidal system are too few and far between. 

The discovery of these grave sites has amplified the call for intervention through formal justice mechanisms:some individuals have called for the involvement of the International Criminal Court (ICC), while the Native Women’s Association of Canada has demanded charges be laid against the federal government and the churches that operated the schools, and failing that, has indicated a desire to involve the United Nations or the ICC. Others have requested that the Canadian Justice Minister appoint an independent special prosecutor with international observers. The Indian Residential School History and Dialogue Centre has also proposed a mix of domestic and international legal and human rights elements to address the mass graves, including the appointment of a Special Rapporteur.

A crucial starting point for any accountability efforts is the disclosure of the names of the alleged perpetrators. The Truth and Reconciliation Commission had access to names, but its Mandate protected their identities, leaving them off the record and out of history, thereby denying survivors and the general public the opportunity to hold these individuals accountable. Further, in 2016, the federal government spent 1.5 million dollars on private investigators to locate more than 5,000 individuals accused of crimes at residential schools, again, without disclosing names. Nevertheless, through the efforts of Indigenous groups, human rights advocates, and journalists, former priests who took part in the residential school system have been identified, at the very least, in Belgium and France.

It is promising that the Oblates have committed to work with the National Centre for Truth and Reconciliation to expedite access to school records. However, the names of perpetrators must not remain secret. Though some potential perpetrators of these crimes will now be deceased, it is reasonable to assume that some of those that left Canada and returned to Europe are still alive, and that the church orders and the Canadian government know where to find them. 

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Posted in Canada, Guest Posts, Indigenous Peoples, International Criminal Court (ICC), International Criminal Justice, Universal Jurisdiction | Tagged | 1 Comment

Both Defendant and Partner for Climate Change? Fighting Royal Dutch Shell in Civil Court

Posted on June 30, 2021 by Mark Kersten

Niké Wentholt and Luna Bonvie join JiC for this guest post on recent civil litigation against Shell over climate change inaction in The Netherlands. Niké is a Postdoc and Luna is a project assistant for the ‘Dialogics of Justice’ project, a five-year research project at the University for Humanistic Studies, Utrecht investigating (legal) recognition procedures and reparation practices after human rights violations.

(Photo: Peter Boer/Bloomberg)

Last month, the Dutch district court in The Hague came to a long-anticipated conclusion in a so-called ‘climate case’. The judge ruled in favour of a group of Dutch plaintiffs, mostly represented by NGO Friends of the Earth Netherlands (Dutch: Milieudefensie), ordering Royal Dutch Shell to reduce the CO2 omissions of its Shell Group by net 45% by 2030, compared to 2019 levels. Friends of the Earth Netherlands hailed the ruling as a victory in the international battle against climate change.

The court ruling stands out as a landmark decision, creating new civil law jurisprudence that may eventually give rise to a situation where international corporations are held legally responsible for their contribution to climate change. Worldwide, approximately 1,000 similar cases are being prepared or are proceeding right now. What is the meaning of this civil court case in light of climate justice and environmental and human rights struggles? What can it teach us about the possibilities of addressing a global problem like climate change in the courtroom?

A socio-legal perspective can help us put this question into the right context. Friends of the Earth Netherlands pursues this legal path as one of many strategies aimed at societal change, including political lobbyism, awareness campaigns, and international policy change. The judicial process itself is up for social analysis too: legal anthropology shows how laws, courts and legal rulings reflect existing norms, create new norms, and offer a platform for dialogue and negotiations.

This focus on norms allows us to see that the district court ruling both fits within a wider development of addressing large scale (historical) harm in civil court, as well introduces new legal thinking on future harms and corporate responsibility.

Recent years have seen an increase in historical injustice cases in Dutch civil court. The cases on Rawagede (Indonesia), Srebrenica (Bosnia), Chora (Afghanistan), and the previous Shell-pollution case in the Niger Delta, suggest that there is a real opportunity to address past harm through civil law. The Friends of the Earth Netherlands ruling highlights the scope of civil law: it can be utilized as a platform for both transitional justice cases as well as environmental right claims. The judge thereby demonstrated that that the seemingly overwhelming global nature of climate change can be made fit for national civil law.

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Posted in Climate Change, Environment, Guest Posts, International Law | Tagged | Leave a comment

“We had no precedent to work from” – An Interview with Former ICTY Judge and ICC Assembly of States Parties President, O-Gon Kwon

Posted on June 28, 2021 by Mark Kersten

The following is an interview, conducted by Shehzad Charania, with O-Gon Kwon, former Judge of the International Criminal Tribunal for the Former Yugoslavia and President of the ICC Assembly of States Parties (ASP). For Shehzad’s other interviews with prominent figures in international criminal law, see here.

Judge O-Gon Kwon speaking at event on the 20th anniversary of the Rome Statute of the ICC (Photo: ICC)

Last month, I spoke with former Judge of the International Criminal Tribunal for the Former Yugoslavia and President of the ASP Judge O-Gon Kwon. We discussed his career as an international judge and the challenges of being ASP President. 

I begin by asking him about his journey to the ICTY. Kwon served as a Judge for 22 years in South Korea but says he couldn’t turn down the chance to adjudicate on behalf of the international community over the most serious crimes. He refers to his election as “pure luck” because of how competitive the process was, and how States tended to favour continuity and therefore the re-election of incumbents. He recalls that the Malaysian incumbent Judge Lal Chand Vohra had decided not to stand again, which he suggests – rather modestly – helped his own chances. “Perhaps I wouldn’t have won if he had stood,” he says. He says his experience as a judge in South Korea was also important, noting that States generally prefer electing practitioners over scholars or diplomat lawyers

Kwon was immediately thrust into action when he was assigned to the case of former Serbian President Slobodan Milosevic. He remembers vividly how “excited” he was on the day of the opening of the case that the entire world was following, and also how shocked he was when he heard the news of Milosevic’s death on a Saturday morning some four years later. At that point, Kwon considered returning home, but felt he had “unfinished business”.  He had also been re-elected a year before Milosevic’s death, the ICTY Judges’ terms being only four years. He says that it was “kind of funny” that he had to campaign for his re-election in the middle of such an important case.

His second case was Popovic et al, the largest case at the time regarding the events of Srebrenica, and the first case at the ICTY to deal with conspiracy to commit genocide. Once again, following the end of the oral proceedings, Kwon considered a return to South Korea, in the knowledge that he would be given a higher judicial role there. But then the President of the Tribunal asked him to preside in the case of Radovan Karadzic who had just been transferred to The Hague.  It was a challenge he couldn’t turn down. But it was also the busiest period of his career; as he began the proceedings in Karadzic, he was still writing the judgment in Popovic et al.    

During his 15 years as a Judge at the ICTY, Kwon also sat in the Appeals Chamber in the case of Strugar and was involved in a number of pre-trial and contempt of court cases. “At one point, I had the heaviest caseload of any of the Judges.”

Kwon did not come to The Hague as an expert in international criminal law but that was not the biggest challenge. “The novelty of the issues and the procedural law we had to devise were among the most interesting experiences. As an international tribunal, we were a hybrid system which incorporated both common law and civil law. We had no precedent to work from. The procedures we established were a response to the issues as they arose, and the lessons we learned. Through this experience I was able to learn about different legal systems and practices very quickly.”

We reflect on the Karadzic case, one of the most high-profile in international criminal justice since Nuremberg. “All three of my big cases had a Srebrenica component. So, I was able to view events there in a really comprehensive way. The Popovic case was exclusively related to Srebrenica; the first time a defendant was convicted of genocide. Karadzic was the highest ranking official and was prosecuted for two counts of genocide – in Srebrenica and the local municipalities. We convicted him for the former and not the latter. We therefore had to be especially meticulous in our reasoning on how we as a Chamber arrived at our finding on genocidal intent.”

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Posted in Assembly of States Parties, ICTY, International Criminal Court (ICC), International Criminal Justice, International Law, Interview, Interviews | Tagged | Leave a comment

This time, the situation in Palestine is different. This time, the ICC is Watching.

Posted on May 27, 2021 by Mark Kersten
The Gaza TV tower was levelled during the latest hostilities, a bombing that many watched live streamed on social media (Photo: AFP)

It feels like déjà vu.

Israel launching forced evictions, raids of Al Aqsa mosque, and persecution of Palestinians. Hamas firing rockets fired into Israel. Israel bombing densely populated areas of Gaza, claiming that Hamas uses civilians as “human shields”. Palestinians saying that they have nowhere to hide from the air raids. Populated towers bombed by Israeli forces into rubble. Mothers mourning the loss of their children.

The brazen violence is outrageous. The latest round of this deeply asymmetric conflict has cost at least 254 Palestinians lives (including 66 children) and 12 people in Israel (including two children). Once more, senior UN officials have declared that the bombing of Gaza, if found to be disproportionate, would constitute war crimes.

The situation is on a “doom loop” from which there appears to be no escape. This time, however, is different. This time, the International Criminal Court (ICC) is watching.

The ICC currently has a live investigation into the situation in Palestine. While some insist that the ICC cannot investigate Palestine because it is not a state, this is not a view shared by the court or the majority of its members. It was also made moot when ICC judges gave the green light for an official probe into alleged atrocities committed in Palestine earlier this year.

It is not yet clear which acts or actors might be targeted by the ICC. But all signs point to Hamas leaders and Israeli government officials facing scrutiny. Hamas is accused of war crimes, including for intentionally firing rockets at civilians in Israel. The Israeli government is accused of war crimes for its repeated and disproportionate bombing of Gaza as well as establishing and expanding Israeli settlements in the occupied West Bank. 

Israel has rejected any ICC investigation, claiming that the court – an institution that came into existence in 2002 to investigate and prosecute mass atrocities – is illegitimate and emboldens “terrorist groups”. Israel loudly supported and coordinated an anti-ICC misinformation campaign with the administration of US President Donald Trump, even endorsing sanctions against senior ICC staff. Right-wing Israeli Prime Minister Benjamin Netanyahu went so far as to insist that the court represented “pure anti-Semitism” for investigating war crimes in Palestine and to woo right-wing governments into criticising the court – including those that hold openly anti-Semitic positions.

This hysterical opprobrium comes despite the fact that some experts believe that the ICC is more likely to first start looking into accusations against Hamas because Israel would gladly cooperate with such an investigation and give investigators access to the occupied Palestinian territories. The Israeli government, however, has made it clear it will not cooperate with an ICC probe into its own crimes and that the Israeli courts would not prosecute alleged Israeli war criminals either.

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Posted in Gaza, International Criminal Court (ICC), Israel, Palestine, War crimes | 1 Comment