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.
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.
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”.
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.
What Not to Expect
The ICC has become an increasingly transparent institution. It has essentially spelled out what it achieve given its limited budget. That includes only conducting six active investigations at any one time. In its budget documents, the Office of the Prosecutor has announced its six investigations for 2017: Georgia, Côte d’Ivoire, Darfur, Libya, and both ongoing investigations in the Central African Republic. At the same time, strife between members on the United Nations Security Council suggests its unlikely we’ll see any referrals of situations to the ICC from the Council any time soon. Add to that the likelihood of a (politically) tricky investigation in Afghanistan, and it seems clear, that barring any remarkable and unforeseen opportunity for ICC prosecutors to do more, no other additional situations will be investigated by the ICC in 2017.
What to Watch Out For
There are, of course, a plethora of stories to follow in 2017. The trial of Dominic Ongwen, the first-ever former child soldier to be prosecuted for some of the same crimes that were perpetrated against him will be fascinating to watch. It raises many uncomfortable dilemmas and tough legal questions.
If nothing is done to stop them, then late 2017 will also see the official withdrawal of South Africa, Burundi, and The Gambia from the ICC. There are signs that a new administration in The Gambia would reconsider the withdrawal — but the situation there remains precarious. South Africa, in my view at least, might also be persuaded to stay but efforts to keep it a member of the ICC must begin in earnest, as soon as possible. Burundi, for all intents an purposes, is already gone.
In Syria, the creation and development of the International, Impartial and Independent Mechanism (IIIM) will be something to look out for. What will it become? Can it be a precursor or inspiration for some form of justice and accountability in Syria?
Finally and relatedly, 2016 saw the growth of a number of alternative tribunal types and justice mechanisms. Hybrid and ad hoc tribunals have been proposed for situations where the ICC isn’t in play or can’t sufficiently address human rights abuses and atrocities. This trend, insofar as it can help to consolidate a more consistent and coherent system of global justice, is one to watch out for in 2017 and beyond.
As always, here’s to a little more justice and a lot less conflict in 2017.
Mark thank you for your tremendous work to keep us all up to speed on international criminal justice issues in 2016. Looking forward to more thought provoking commentary in 2017.
Keep up the good work Mark, albeit trudgingly alone…
Prosecute & Punish the Offenders Whilst Protecting the Innocents
International criminal law is the part of public international law that deals with the criminal responsibility of individuals for international crimes. There is no generally accepted definition of international crimes. A distinction can be made between international crimes which are based on international customary law and therefore apply universally and crimes resulting from specific treaties which criminalize certain conduct and require the contracting states to implement legislation for the criminal prosecution of this conduct in their domestic legal system. The international core crimes, i.e., crimes over which international tribunals have been given jurisdiction under international law, are: genocide, war crimes, crimes against humanity, and aggression. International criminal law finds its origin in both international law and criminal law and closely relates to other areas of international law. The most important areas are human rights law and international humanitarian law as well as the law on state responsibility. The sources of international criminal law are the same as those of general international law mentioned in article 38(1) of the Statute of the International Court of Justice: treaties, international customary law, general principles of law, judicial decisions and writings of eminent legal scholars. The Nuremberg and Tokyo trials signaled the birth of present-day international criminal law, i.e., the prosecution of individuals for international crimes before international tribunals. In the early nineties of the previous century international criminal law received a major stimulus with the establishment of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda by the United Nations Security Council. Also the creation of various internationalized or mixed criminal courts and the proposals of the International Law Commission, which resulted in the creation of the International Criminal Court in 2002, contributed to the rapid development of international criminal law during the last two decades.
The purpose of criminal law is to protect society by facilitating the detection and prosecution of criminal actions while protecting the rights of the accused. It has also been described as the means by which the state prosecutes and punishes individuals charged with violating the law.
Furthermore, the purpose of the Criminal Justice System among others is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.
Despite the lack of consensus among scholars and advocates about the purposes of international criminal law and this lack of clarity further affects how the international criminal tribunals operate, the comparative gist between the application of the international and municipal criminal justice systems evoke the certain and essential subjective pronouncement, i.e. the prosecution and punishment of criminal offenders and their sbettors that further lead to the protection of society, global & municipal.