The Best, Worst, Weirdest, Funniest, and Most Frustrating of 2015 – Plus a Surprise for to 2016!

Happy 2016!

The Best Development of 2015

It has been yet another fascinating year in the realm of international criminal justice. After twenty years, the International Criminal Tribunal for Rwanda finally closed its doors. By opening an investigation into Georgia, the International Criminal Court (ICC) made its first intervention outside of Africa. A peace deal between the rebel FARC rebel group and the government of Colombia included widely touted plans for transitional justice. Ukraine opened itself up to an ICC investigation since 2014. Dominic Ongwen, a former child solider turned Lord’s Resistance Army rebel, was detained and transferred to The Hague. Hissène Habré finally went on trial for his crimes against the people of Chad. The Central African Republic moved to establish a hybrid Special Criminal Court to prosecute international crimes perpetrated during its most recent bout of political violence. Palestine provided the ICC jurisdiction crimes committed on its territory since June 2014. And these are just a some of the key developments in international criminal justice in 2015 that we covered here at JiC.

But what, in my view, takes the cake for the best development in 2015 is the growing possibility and expectation of the ICC doing what it always promised: pursuing impartial justice globally, without fear or favour. They may not be overwhelming, but there are growing signs that the Court is taking crimes perpetrated by powerful states more seriously. This was evidenced most strongly in the ICC’s 2015 preliminary examination report, released last November. Within it can be found an implicit warning to Western states, particularly the UK and the US, that if they don’t hold senior perpetrators of international crimes perpetrated in Iraq and Afghanistan to account themselves, the Court will open an official investigation into their conduct. It is worth stressing: the ideal here, as in any situation where the ICC intervenes, is for states – and not the Court – to conduct fair and genuine investigations and, if necessary, prosecutions. But if they don’t or choose note to, Court prosecutors should move to open investigations. Refusal to do so is increasingly untenable. Of course, questions abound as to whether the ICC will ever have the gumption to prosecute powerful actors from powerful states. It’s far from clear and global politics don’t lean in the institution’s favour. But if the ICC is to move beyond the rampant allegations that it is a biased institution that targets the weak and protects the powerful, being bolder and more confident in how it deals with Western crimes is of the essence. As Toby Cadman recently argued: “With the world beset by conflict, an equitable system of international justice – and a functioning institution to deliver it – is needed more than ever.”

The Weirdest Development of 2015

There are couple of nominees for the strangest development in 2015. Who can forget the stunningly whacky idea, proposed by a former senior official in the administration of George W. Bush, that it should be a federal crime in the United States to prosecute American citizens at the ICC? Yeesh!

At the Court itself, while unforseen developments are seemingly always around the corner, the surrender of Ahmad Al Faqi Al Mahdi to The Hague from Mali certainly took  justice followers by surprise. Al Faqi had been charged with perpetrating cultural crimes — specifically the destruction of religious shrines in Timbuktu, Mali. The exact details of how he ended up at the ICC remains shrouded in secrecy and the ICC’s Office of the Prosecutor decided against shedding any light on the matter. It issued a press release on his surrender in the wee hours of a Saturday morning (ensuring that few, if any, media would cover the story) and then chose not to elaborate on this major event the following week. Remarkably, this should be a good story of the institution — one that demonstrates close cooperation from a number of African states and the Court’s willingness to effectively go after perpetrators of cultural crimes. While JiC did cover what we do know to date, hopefully 2016 brings new details.

The Worst Development in 2015

While the lack of any justice for the people that desperately deserve it in places like North Korea and Syria is an ongoing stain on the international community, there is no doubt about what was the worst single development for international criminal justice, and the ICC in particular, in 2015: the visit of Sudanese President Omar al-Bashir to to South Africa. Bashir has been indicted by the Court on charges of crimes against humanity, war crimes, and genocide. South Africa, on the other hand, has historically been a strong supporter and defender of the ICC. While there may be ‘silver linings’ and important details to the story, Bashir’s visit seemingly put a spanner into the notion that South Africa would continue to stand strong with the Court and defend the institution against its political interests in currying favour with other African states. Moreover, it should make observers think twice about how states’ preferences towards the institution have evolved with time — it simply isn’t good enough to insist that, because African states joined the ICC, they must approve of, or support, the Court fifteen years later. States change and so do their interests and preferences. We need much richer thinking on the Africa-ICC relationship. But perhaps more than anything else in 2015, Bashir’s bolstered the widespread view that the ICC has a serious ‘Africa problem’.

The Most Frustrating Development of 2015

Readers will be unsurprised that the single most frustrating part of 2015, at least for this writer, was the foot-dragging behind improving the ICC’s communications and public relations. As of December, the Court has been housed in a state-of-the-art headquarters. But much of its communications, including its website, are stuck in the late 1990s. Adding to the frustration is that it really wouldn’t be that hard to improve the ICC’s communications. Not doing so undermines the institution and, more importantly, the project of international accountability. And it is completely unnecessary.

The Funniest Development of 2015

Every now and then, something in the world of international criminal justice provokes a chuckle. One such time came during an exchange between a journalist and a spokesperson of the US State Department over Bashir’s visit to South Africa, which can be found here. I also tried to bring some humour to JiC on occasion over the last 12 months, including my sarcastic — but in my view still probably accurate — assessment of what an honest UN Security Council referral of ISIS to the ICC would look like.

But nothing was nearly as funny as the pamphlets handed out by members of Kenya’s delegation to the Assembly of States Parties (ASP) in November (see here). The absurdity of the flyers came at an opportune time as well — the ASP, invariably a source of tension and controversy, needed some comic relief.

Looking Forward to 2016… And bringing in Kate Cronin-Furman!

That’s right! The inestimable Kate Cronin-Furman is joining JiC in 2016 for a monthly feature. I doubt she needs an introduction, but just in case anyone has lived under a rock in recent years, Kate is the long-time co-author of the blog Wronging Rights. She holds a PhD in political science from Columbia University (2015) and is currently a postdoctoral fellow at Stanford University’s Centre for International Security and Cooperation (CISAC) where she is working on her book, Just Enough — The Politics of Accountability for Mass Atrocities. Starting in February, Kate will publish a monthly feature at JiC called Mass Atrocities Monday (see previous posts at Wronging Rights here). Her pieces will focus some of the on lesser-known episodes of mass atrocity. Please welcome me in welcoming Kate to JiC!


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
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