Dominic Ongwen: “It is very difficult to balance all that”

Posted on February 2, 2021 by Mark Kersten

Kjell Anderson joins JiC for this first post in our ongoing symposium on The Life and Trials of Dominic Ongwen. Kjell is the director of the Master of Human Rights program at the University of Manitoba, and the author of Perpetrating Genocide: A Criminological Account as well as a forthcoming book on Dominic Ongwen.

An LRA child soldier (Photo: Adam Pletts / Getty)

The story of Dominic Ongwen troubles our essentialist stereotypes of the pathological war criminal: relentless men who are either indifferent to human suffering or, more typically, actively seek it out. Of course, this image is already a gross oversimplification that fails to account for the diverse backgrounds and motives of perpetrators of international crimes. There is a burgeoning literature, including my book Perpetrating Genocide, that repudiates these misguided perspectives.

Yet Ongwen’s story is particularly troubling. In this piece, I will draw from research I have conducted for my forthcoming book on Dominic Ongwen (The Dilemma of Dominic Ongwen, Rutgers University Press, 2021). This ongoing research project has included (anonymized) interviews with approximately 90 individuals in northern Uganda in 2009 and 2018, almost all of whom have personal and direct knowledge of Dominic Ongwen. They include family members, former LRA (Lord’s Resistance Army) fighters, people working on his trial, and victims. The former LRA encompass individuals involved in his abduction, individuals he abducted, senior commanders who were his superior officers at various points in his LRA ‘career’, his ‘wives,’ and his subordinates within the LRA. I will draw from my interviews to offer an impression of Dominic Ongwen’s life before his trial.

Dominic Ongwen had a typical Acholi childhood. He was born in 1975 in Coorom – a tiny village around 40km southwest of the regional centre of Gulu. The village is one of several in the area, with clusters of mud-brick houses, set amidst packed earth compounds. Beyond the compounds, with chickens pecking in the soil, there are tall green grasses shaded by canopied trees. In this village hinterland, one finds gardens of root vegetables and leafy greens. Beyond this, one would find the lum (the Bush), the domain of spirits, and the LRA, during Dominic’s childhood. Yet, a cousin described Dominic’s childhood as “peaceful, loving, and welcoming.”

Dominic’s life was thrown into disarray one morning in 1987. He, and several of his classmates were abducted on their way to school.  His cousin described her despair on discovering that he was missing: “I had come to town to buy salt; when I returned, I found that he was already abducted. This incident really depressed me; I cried for one week, I could not eat. I did nothing for over a month.”

Ongwen suffered terribly during his first days in the LRA. Like other abductees, the LRA fighters bound his hands, forced him to carry heavy loads, and constantly threatened him. Yet, the wife of a then senior LRA commander recounted that Ongwen adjusted relatively quickly to this highly abnormal context; she warned him “If you escape from here, you will not reach home. The animals will eat you. Others don’t listen, they just escape and don’t reach home. But for him he used to listen and obey.” Ongwen’s survival instinct and dutiful nature (mentioned by numerous interview subjects encompassing all stages of his life) paradoxically contributed to his survival, as well as to his eventual identification by the Office of the Prosecutor as one of those “the most responsible” for LRA atrocities; this process of case selection at the ICC is also guided by purely pragmatic factors, and one can very well imagine other LRA personnel who were more responsible than Ongwen but not charged.

Continue reading →
Posted in Dominic Ongwen ICC, Guest Posts, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium | Tagged | 16 Comments

The Life and Trials of Dominic Ongwen: A JiC Symposium

Posted on February 1, 2021 by Mark Kersten
The Life and Trials of Dominic Ongwen: A JiC Symposium (Images: ICC, and BBC)


Almost fifteen years ago, the International Criminal Court (ICC) issued an arrest warrant for Dominic Ongwen. Ten years later, he became the only member of the Lord’s Resistance Army (LRA) to be surrendered to The Hague. After years of life as a rebel in the bush of northern Uganda and neighbouring states, Ongwen presented himself before judges, suited-and-booted in the pristine, glass-encased courtroom of the ICC. For the next five years, the former child soldier was prosecuted on multiple charges of war crimes and crimes against humanity, including the same crimes that were perpetrated against him when the LRA abducted and forcibly conscripted him into the rebel group. This week, as Uganda recovers from weeks of electoral violence, Judges at the ICC will issue their verdict in Ongwen trial. 

Ongwen’s life and his trial have affected numerous constituencies communities. His trial has been a testing ground for atrocity crimes never before prosecuted at the ICC. Scholars, lawyers, and journalists have pondered over the ethics of prosecuting someone who was himself a victim of atrocities. They have asked how the fact that he could not have perpetrated international crimes had they not been first perpetrated against him should be taken into consideration by the ICC and by those sitting in judgement of him. Others have repeatedly stressed that ICC justice in Uganda is deeply one-sided, focused only on the LRA and not on well-document atrocities of the Government of Uganda or its military, the Uganda People’s Defence Forces. 

For the Court itself, Ongwen’s case is tremendously important. It is the only case from northern Uganda that the Prosecutor has brought to trial, almost two decades after opening first opening an investigation into the situation there. It is also one of only a handful of ICC cases that have reached a verdict. 

Above all, Ongwen and the trial he has faced has impacted on the people and communities where he lived and where his alleged crimes were perpetrated. Those people and communities have complex views on the impact of Ongwen on their lives and sophisticated takes on the costs and benefits of an ICC trial of Ongwen, the child soldier-turned-rebel commander. 

Readers may recall that, back in 2016, JiC held an online symposium on Dominic Ongwen and the prosecution of child soldiers. The symposium explored Ongwen’s life and time as an LRA commander, how his trial fit into dominant narratives regarding the war in northern Uganda, the ways in which his trial reflected ongoing efforts to achieve justice in northern Uganda, whether Ongwen’s past was relevant to his prosecution at the ICC, Ongwen’s status as a victim and a perpetrator, the ‘shifting narratives’ about child soldiers in ICC prosecutions, and how the Prosecutor should communicate the ethical and political dilemma of prosecuting a former child soldier for international crimes. 

With the 4 February verdict looming, JiC is very excited to launch a new online blog symposium on the life and trials of Dominic Ongwen. Running over the next few days, the symposium will feature blog posts delving into untold stories about Ongwen’s life, the mysticism of the LRA and how this was addressed by the ICC, an insider account of outreach efforts by the Court in areas affected by LRA violence, and numerous posts exploring the verdict itself, including what legal novelties and issues it raises for international criminal law, what precedents it establishes, and how it will be received in northern Uganda and beyond. 

The symposium will feature a brilliant cast of writers who have intimate knowledge of the LRA, northern Uganda, and the Ongwen trial. They include, Kjell Anderson, Sarah Kasande, Kristof Titeca, Anushka Sehmi, Paul Bradfield, Maria Kamara, Mark Drumbl, Elise Keppler and Jo Becker. Should you be inspired by their contributions, get in touch; JiC is always happy to consider your voice too.

Posts so far include:

Dominic Ongwen: “It is very difficult to balance all that”, by Kjell Anderson

The Fog of War (Crimes Trials): The Politics of Epistemology in the Dominic Ongwen trial, by Kristof Titeca

An Insider Look at Outreach efforts in bringing the proceedings closer to the Victims and Affected Populations in Northern Uganda, by Maria Mabinty Kamara

‘Getting’ an Unforgettable Gettable: The Trial of Dominic Ongwen, by Mark A. Drumbl

Litany of Horrors by LRA Leader: Ongwen Was No ‘Puppet on A String’, by Elise Keppler

Beyond the Ongwen Verdict: Justice for Government Atrocities in Uganda, by Sarah Kihika Kasande

The moral and legal correctness of Dominic Ongwen’s conviction, by Paul Bradfield

As with every symposium, our goal is to create an open and honest dialogue within a forum that respects the opinions of all participants. I therefore welcome your thoughts and reflections, and thank you for tuning in! 

Posted in Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Leave a comment

Sudan Buys Back Washington’s Approval – But What About Justice?

Posted on January 26, 2021 by Mark Kersten
Sudanese citizens celebrate the first anniversary of Bashir’s ouster (Photo: AP)

Since the collapse of former dictator Omar al-Bashir’s regime in 2019, Sudan’s new governing authorities have eagerly sought to restore relations with the international community. A snag in those efforts was the fact that, for decades, Sudan had been designated by the United States as a state sponsor of terrorism. The reason is evident enough: Khartoum was implicated in the bombings of the American Embassies in Kenya and Tanzania and the bombing of the USS Cole in 2000. Bashir also harboured terrorists, most famously Osama bin Laden, the erstwhile leader of al Qaeda. 

Being proscribed as a state sponsor of terrorism by Washington meant that Sudan was a pariah state, one excluded from enjoying the economic benefits of American foreign direct investment. Sudan was also the target of political scorn and economic sanctions. But now Sudan has been removed from the U.S.’ state sponsors of terrorism list. The question is: at what price?

The process of listing and de-listing states for materially contributing to terrorism is a fundamentally political one, rather than one driven by factual or legal analysis. It may not be controversial to see states like Sudan (under Bashir) or Iran listed. But there are states, geopolitical allies of the country, that do not appear on Washington’s list, like Pakistan or Saudi Arabia. As one scholar points out, the “listing of states sponsors of terrorism by the executive branch is at best extraordinarily delicate and difficult, and at worst pure political manipulation.” Once on the list, it is hard to get off. It took Sudan twenty-seven years.

As part of the negotiations to rid itself of this designation, Sudan agreed to pay over $330 million in compensation to the families of victims of the aforementioned bombings on American Embassies in Nairobi and Dar es Salaam as well as the USS Cole. The deal was met with great fanfare by President Donald Trump, who declared: “Once deposited, I will lift Sudan from the State Sponsors of Terrorism list. At long last, JUSTICE for the American people and BIG step for Sudan!”

Not everyone views the deal in such glowing terms, however. Requiring legislative approval, the compensation-for-normalization pact was met with resistance by Democratic Senators and families of victims of the 11 September 2001 attacks. Their concern was that normalizing relations with Khartoum would restore Sudan’s sovereign immunity and thus jeopardize the ability of 9/11 victims to sue Sudan in U.S. courts. The wife of one victim criticized Trump’s deal with Khartoum, declaring that “[t]he White House has been working all year to trade away our rights, in an apparent effort to secure an unrelated diplomatic win.” 

Another concern is that the cost of gaining better relations with Washington is too high for a country in the midst of a precarious transition. Sudan is facing economic, environmental, and humanitarian crises on numerous fronts. Inflation soared past 200 percent last year and some have described the economy as being in “free fall”. As Michelle Gavin, a Senior Fellow for Africa Studies at the Council on Foreign Relations, writes, “for Sudanese people suffering immediate economic hardship and food insecurity, the fact that Sudan has agreed to pay $335 million to compensate victims of the 1998 embassy bombings in Kenya and Tanzania and the 2000 attack on the U.S.S. Cole in exchange for delisting can be a bitter pill.” 

Continue reading →
Posted in Reparations, Sudan, Terrorism | 1 Comment

Trouble in Palestine: A Path to Peace at Last?

Posted on January 21, 2021 by Mark Kersten

The following guest post is by Harry Sanders, a content writer and correspondent for the Immigration Advice Service, an organisation of immigration solicitors based in the UK and Ireland.

(Photo: Anadolu)

From the comparatively privileged perspective of the western world, the scale and brutality of foreign conflicts often seem alien in contrast to our own experiences of comfort and safety. Such barbarism and inhumanity was once equally as alien a concept to the people of Palestine. But decades of violence and failed attempts at a resolving the protracted conflict have left the prospect of peace an unattainable ideal and have left Palestinian asylum seekers scattered across neighbouring countries.The potential for elections between rival factions Hamas and Fatah have been touted as a ray of hope to restore some order to the region. Given the history of the Israeli-Palestinian Conflict, can peace realistically be propelled at the ballot box? And if so, what obstacles stand in the way?

It is fundamental that forthcoming elections make it possible for lasting peace be achieved. Since the election of a Hamas majority to the Palestinian Legislative Council in 2006, Palestinian politics has been deeply fractured. An international boycott of the Hamas government, followed by the 2007 Civil War in Gaza, left the already fragmented country even more divided. Attempts at reconciliation have been ongoing for years, such as in 2017 when talks over the contested control of Gaza were brokered in Cairo. 

With this in mind, ensuring that elections fulfil their potential of bringing a long-absent sense of unity to the Palestinian cause is crucial. For this to happen, Fatah and Hamas must agree on a unified strategy prior to ballots being cast. This will help avoid a repeat of the 2006 elections which, as touched upon above, sowed the seeds for the division that has blighted the Palestinian cause ever since. Further to this, it is heartening that the elections are planned to be conducted via proportional representation. Ensuring no party forms an overall majority will avoid ill-feeling and enmity. 

National unity is still far from reach, and despite the agreement between Hamas and Fatah to hold elections, there are several barriers to their success. The upcoming elections are being viewed with ‘cautious optimism’, with leader of the Palestine Liberation Front and a member of the PLO’s Executive Committee, Wasel Abu Yousef, explaining the ‘tripartite assault’ which threatens to push the situation beyond repair. 

Continue reading →
Posted in Elections, Guest Posts, Israel, Palestine | Tagged | 1 Comment

Exposing hidden weapons of war: Justice and accountability for the deliberate starvation of civilians

Posted on December 1, 2020 by Mark Kersten

Jahaan Pittalwala, and Juliette Paauwe join JiC for this guest-post on starvation as an atrocity crime. Jahaan is a Research Analyst at the Global Centre for the Responsibility to Protect. Juliette is a Senior Research Analyst, also at the GCR2P.

A Houthi militant stands among debris in Yemen. (Photo: Mohamed al-Sayaghi/Reuters)

The suffering of civilians in times of conflict is rarely an accident of war. It is instead more commonly an intentional tactic employed by a warring party with little to no regard for the rule of law, aiming to inflict the collapse of a population in its strategic favour. Civilian death tolls in protracted conflicts have reached devastating heights, numbers too large to be the result of mere “collateral damage”. In 2019, more than 20,000 civilians were killed or maimed in just ten conflicts. These deaths and the continued brazen brutality of the actors that caused them, paint an alarming picture: civilians are increasingly the primary targets of indiscriminate tactics of war. That includes the deliberate starvation of civilian communities.

Civilians are targeted in war in both overt and discreet ways. Indiscriminate airstrikes and shelling often reduce civilian objects, such as markets, schools and hospitals, to rubble – the very visible destruction of infrastructure and immediate civilian deaths make it reasonably apparent that there is responsibility for and intent behind the atrocity. 

It can be harder to recognize there is a calculated motive as well as a responsible party behind other types of civilian suffering. The starvation of civilians during times of conflict is one such example; it is more complicated to determine that this atrocity is being deliberately perpetrated as a war tactic.

Nevertheless, the deliberate starvation of civilians is undoubtedly another weapon increasingly employed by perpetrators as a tool to intentionally inflict mass suffering on civilian populations. In January 2016, whencondemning the starvation of civilians in Syria, former UN Secretary-General Ban Ki-Moon characterized this in plain terms: “Let me be clear: The use of starvation as a weapon of war is a war crime.” 

Though this method of warfare has always been prohibited under international humanitarian law and customary law – and is not necessarily a new tactic of war – it has proven difficult to prosecute the deliberate starvation of civilians as a war crime. Other more “obvious” war crimes against civilians tend to overshadow the more underhanded and long-term suffering caused by deliberate starvation. This, combined with a lack of clarity and understanding as well as the absence of possible avenues to bring perpetrators to justice, has made it difficult to prosecute and potentially deter the deliberate starvation of civilians. 

Recently, this has started to shift. An increased understanding that this crime is more often committed during civil wars, or non-international armed conflicts (NIACs), has been accompanied by important steps to criminalize the deliberate starvation of civilians in this context. The UN Security Council is increasingly acknowledging the link between armed conflict and conflict-induced food insecurity and the threat of famine; landmark Resolution 2417 (2018) underlines that using the starvation of civilians as a method of warfare may constitute a war crime. Several UN Human Rights Council (HRC)-mandated investigative mechanisms have also started unpacking the specific elements and intent behind this crime, facilitating an increased understanding of what constitutes the deliberate starvation of civilians and assisting prosecutors and lawyers going forward. 

Unpacking Starvation as a War Crime  

In Yemen, there exists a dire humanitarian crisis almost entirely the result of the conduct of warring parties: more than 24 million Yemenis need humanitarian assistance and over 2 million are facing acute food insecurity. In 2019, the HRC-mandated Group of Eminent Experts for Yemen reported that parties to the conflict have perpetrated “the prevention of access for humanitarian aid, the use of import and other restrictions as a military tactic and use of starvation of civilians as a method of warfare.” Attacks by warring parties on the ground, primarily the Houthis and forces loyal to the internationally recognized government, have impacted objects and areas essential for the survival of the civilian population, including public markets, farms, livestock, fishing boats, food warehouses, and water wells. Parties to the conflict have also prevented humanitarian aid access and impeded humanitarian relief by imposing arbitrary fees and complicated bureaucratic procedures as well as contributed to price increases and lack of availability of critical goods such as fuel. 

Continue reading →
Posted in Guest Posts, Starvation, War crimes, Yemen | Tagged , | 1 Comment

Building the International Law of Peace

Posted on November 10, 2020 by Mark Kersten

The following is a guest-post by Mark Freeman. Mark is is the Executive Director of the Institute for Integrated Transitions (IFIT).

Negotiations between the government of Afghanistan and the Taliban began earlier this year (Photo: Ibraheem al Omari / Reuters)

On this annual Armistice Day, many countries will rightly stop to recall the horrors and heroism of World War I: a war that ended with a 36-day armistice signed between Germany and the Allies in 1918. But what we too seldom recall on this occasion is the importance of the international law that emerged from both World War I and II.

It is, in fact, a paradox of politics that the last century’s great wars also produced great law – and global institutions to match, such as the United Nations. Among other things, we saw the mass expansion of international humanitarian law (ie, the laws of war), the emergence of human rights, and the creation of international criminal law, to name just a few milestones. 

But international law remains a patchwork, built piecemeal as and when existing law falls behind the times. And such a moment has arrived – and in the most surprising of areas. While we have international law to regulate the conduct of internal armed conflicts, we lack corresponding law to incentivise states to choose the path of negotiation in order to prevent such conflicts in the first place as well as end them peacefully once underway. 

Though less common today, the case is the same for inter-state conflicts as it is for non-international armed conflicts. There are general principles, but there isn’t a body of law that could be described as a “law of peace negotiation”.

As a global community, we can do better – and we have the opportunity to do so now that this legal gap has been detected. 

Wars rarely end with total victors. Time and again, conflict parties find themselves sitting around a table to talk their way out of the abyss – just as they did on the 11th of November 1918. But just as often, the window of opportunity for making peace is missed. That is because negotiation with a sworn enemy is always a fraught political decision. Governments enter into it hesitatingly, knowing the choice is filled with costs and risks.

Continue reading →
Posted in Guest Posts, International Law, Peace Negotiations, Peace Processes, Peacebuilding | Tagged , | Leave a comment

The ICC Inches Closer to Bashir Prosecution as Sudan and Israel Normalize Relations

Posted on October 28, 2020 by Mark Kersten
ICC Prosecutor Fatou Bensouda meeting with Sudanese Prime Minister Abdalla Hamdok (Photo via Abdalla Hamdok Twitter Account)

The Middle East watched with interest when it was announced that Sudanese authorities were planning to “hand over” Omar Al Bashir, the ousted president, to the International Criminal Court.

It has been more than 10 years since the ICC issued the first of two warrants for Al Bashir. Despite outstanding obligations on states to co-operate with the Court and surrender Al Bashir to The Hague, he travelled widely, including to member-states of the ICC. Justice for Darfur was neglected. States such as South Africa hosted Al Bashir and threatened to pull out of the ICC when the Court admonished their invitations. European nations worked closely with the regime in Khartoum to stanch immigration from Africa. Powerful actors, including members of the UN Security Council that had referred Darfur to the ICC in the first place, went silent on justice for Al Bashir.

The biggest advantage of a domestic trial is that it would be most accessible to victims and survivors of Al Bashir’s crimes

But then Al Bashir fell from grace in the eyes of his countrymen and women. The Sudanese – though notably not the international community – had enough of him. Many citizens have since pushed for the former leader to be punished for his involvement in atrocities. They might just get their wish.

Now, the question is not “will Al Bashir be brought to justice”, but where and how. According to Sudan’s justice minister, the country is considering numerous options: “One possibility is that the ICC will come here so they will be appearing before the ICC in Khartoum, or there will be a hybrid court maybe, or maybe they are going to transfer them to The Hague. That will be discussed with the ICC.”

When Sudan announced that Al Bashir would be tried by the ICC, many initially assumed that the former president would be prosecuted in The Hague. This would be a remarkable U-turn for a state that has historically been among the most ardent antagonists of the Court.

For more, see the full article, originally published at The National, here.

Posted in Uncategorized | 2 Comments

The Politics of Electing ICC Judges: Some Unpopular Thoughts

Posted on October 22, 2020 by Mark Kersten

Andrea Trigoso joins JiC for this guest-post on the election of judges to the International Criminal Court (ICC). Andrea is a qualified lawyer with an LLM and experience in International Criminal Justice. She also holds a masters in Transitional Justice, Human Rights and the Rule of Law.

(Photo: ICC)

Later this year, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) will elect six new judges to the ICC for the next nine years. States have presented 20 nominees in total, comprising lists A and B. Candidates have been evaluated by the Advisory Committee on Nomination of Judges (ACN), which published a report on September 30th, grading the candidates as highly qualified, qualified, only formally qualified, and not qualified. 

Following the report, several actors and organizations advocated for a merit-based election and campaigned against the practice of vote-trading, condemning any potential politicization of the elections. However, the ICC judge elections is inevitably a political exercise, carried out by a political organ (the ASP). It is not possible to escape politics.

The challenge is therefore to avoid politics but the unfair politics that the elections have displayed so far. Some states are politically and financially in better positions than others in their international relations. These advantages have been transferred onto ASP dynamics and, consequently, to the elections, creating politics that encompass power and resources disparities. 

The report of the Advisory Committee on the Nomination (CAN) of judges exemplifies these politics in the criteria established for considering the candidates as “highly qualified”. A recent piece by Owiso Owiso and Sharon Nakandha insightfully explains the issues with the ACN “grading system”. Here, two examples will be briefly reviewed.

Victor Tsilonis, presented under list A by Greece, has experience litigating in his home country, but no experience in the judiciary or in the litigation or judicialization of mass atrocities. At the international level, he had a six-month internship at the International Criminal Tribunal for the Former Yugoslavia, and two pro-bono positions related to the ICC, none of which included judicial work. The ACN concluded that he was highly qualified for appointment as judge under the conditions of Article 36(3)(b)(i) of the Rome Statute, which requires “necessary relevant experience whether as judge, prosecutor, advocate or in similar capacity” (emphasis added). 

The ACN used a different standard for Aïssé Tall, the candidate of Senegal for list A who was considered “only formally qualified.” The reasons for this conclusion were that, although she had relevant experience in the management of complex criminal cases as a prosecutor at the national level, she had only limited experience (two years as a judge of the highest Court in Senegal) presiding over criminal matters, and she did not have in-depth knowledge of the ICC and its jurisprudence.

It seems that what the ACN deemed most important and determinant was knowledge of the Rome Statute and the ICC jurisprudence, even when such knowledge is not required by the Statute itself. Tsilonis fulfilled that requirement and Tall did not. The question that arises is whether mastering the Rome Statute is the most important skill for a judge, or whether there are other more important skills, such as in-depth knowledge of institutions of criminal procedure, managing complex evidence, mastering the principles for legal argumentation, showing the capacity to remain independent amid political attacks, and so on.

Continue reading →
Posted in Elections, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Judges | Tagged | 4 Comments

No Justice without Peace, but what Peace is on Offer? Palestine, Israel, and the International Criminal Court

Posted on October 13, 2020 by Mark Kersten
Graffiti along the dividing wall between Israel and Palestine (Photo: Ammar Awad / Reuters)

There have been many claims posited as to why the Prosecutor or the International Criminal Court (ICC) should not open an investigation into alleged crimes perpetrated on the territory of Palestine by Israeli and Palestinian actors. Among the rarer claims is the assertion that such an investigation would undermine a negotiated settlement to the ongoing and protracted conflict between Palestine and Israel. Still, the claim is not altogether missing. But does it have any veracity? Could ICC action undermine the Middle East peace process? If so, what peace is at stake?

As part of a special issue to be published in the coming months at the Journal of International Criminal Justice and organized by Chantal Meloni and Triestino Mariniello, I have written an article entitled ‘No Justice without Peace, but what Peace is on Offer? Palestine, Israel, and the International Criminal Court‘. A draft is now available here and a snippet follows below:

The International Criminal Court will ruin prospects for peace in the Middle East! Such declarations, or ones similar to them, are relatively rare among the panoply of arguments levied against a potential investigation by the International Criminal Court (ICC) in Palestine. This is curious. Israel, Palestine, and a rotating concert of foreign powers have been engaged, in fits and starts, in efforts to craft a lasting solution to the conflict between Palestine and Israel for decades. Moreover, among the most popular criticisms of the ICC is that its activities squander prospects for negotiated peace whenever the Court intervenes in situations of ongoing conflict. Yet this argument has largely been omitted by Israel which, along with some of its allies, have waged a vociferous campaign to undermine the ICC.

In this article, I critically assess the possible ICC investigation into alleged atrocities committed by both Palestinian and Israeli actors against claims made in the so-called ‘peace versus justice’ debate. While it behooves observers of international criminal law and justice to remember that every actual and potential situation before the Court is unique, the analysis below shows that the Palestinian context is particularly distinct. Concerns that the ICC could undermine peace seem unlikely at best, and vapid at worst. Without genuine interest in a negotiated peace from key actors who could initiate a renewed round of negotiations, it is wrong to suggest that the ICC will undermine peace. On the contrary, the ‘peace’ that is currently on offer for Palestinians and Israelis may itself be a threat to peace and security in the region.

This should not lead to the hasty conclusion that the Court should intervene in Palestine. Nor should it be read to suggest that the Court will positively contribute to peace negotiations. But assertions that the Court should not intervene because it may ruin prospects for peace between Palestine and Israel appear to be a politically motivated red herring as opposed to the articulation of a concrete risk. 

This paper proceeds as follows. In the next section, I examine the key claims made in the so-called ‘peace versus justice’ debate as well as some of the debate’s shortcomings. I then outline some of the specific arguments made in the context of a possible ICC investigation in Palestine that touch upon concerns over the Court’s impacts on peace processes and negotiations. Following this, the paper critically assesses the validity of these assertions, arguing that while it would be wrong to conclude that the ICC will invariably have positive impacts on efforts to establish peace, there is no evidence that the Court will undermine whatever ‘peace’ is currently on offer for Palestinians and Israelis. On the contrary, this ‘peace’ may itself be a threat to resolving the conflict peaceably and to long-term stability in the region. Finally, I conclude with some reflections on the peace-justice debate and its applicability to the Israel-Palestine situation. 

Again, a draft of the paper is available in full here. As always, please do share your thoughts here on the blog or with me via e-mail. And thanks for reading!

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC, Peace Negotiations, Peace Processes | 11 Comments

Non-Governmental Organizations, Faith-Based Groups, Legal Professionals, Experts, and Former Government Officials Unequivocally Oppose U.S. Sanctions Against the International Criminal Court

Posted on September 26, 2020 by Mark Kersten

The following is a public letter calling on the United States to drop its sanctions against staff of the International Criminal Court (ICC). I am proud and happy to have signed the letter alongside luminaries and leaders in the field of international justice and human rights. For more analysis, see here.

(Photo: SHL Architects)

Non-Governmental Organizations, Faith-Based Groups, Legal Professionals, Experts, and Former Government Officials Unequivocally Oppose U.S. Sanctions Against the International Criminal Court

The undersigned organizations and individuals write to express grave concerns and unequivocally oppose the Trump administration’s use of the sanctions authority of the United States to attack the International Criminal Court (ICC), an independent judicial institution dedicated to combatting impunity for the gravest crimes known to humanity.

Many of the undersigned spoke out against steps in this direction taken earlier this year by the U.S. administration. We now issue this further statement because it is uniquely dangerous, extreme, and unprecedented to utilize a mechanism designed to penalize criminals, their aiders, and abettors, against an independent judicial institution. Asset freezes and entry restrictions are tools intended to combat individuals and entities constituting a threat to U.S. national security. By applying these measures to a court that 123 countries – and on two occasions, the United Nations Security Council – have entrusted with providing accountability for atrocity crimes, the United States has brought upon itself the stigma of siding with impunity over justice. The administration’s actions jeopardize the ability of desperate victims to access justice, weaken the credibility underpinning the use of sanction tools in other contexts, and put the United States at odds with its closest allies.

The ICC represents and constitutes part of a global system of international justice of which the United States was a chief architect at Nuremberg and beyond. Today, the ICC, alongside other tribunals, regional mechanisms, and national courts, is carrying forward these efforts through investigations and prosecutions that could help realize justice for atrocity victims from Sudan to Myanmar. As a court of last resort, the ICC only can intervene when and where a State has demonstrated unwillingness or inability to hold its nationals to account for crimes within the Court’s jurisdiction. The ICC therefore provides an essential backstop for victims who have no other recourse to justice. The use of sanctions has the potential for wide-reaching impact against this institution dedicated to advancing justice for victims.

At an historical moment when the global rule of law is under attack from multiple fronts, institutions like the International Criminal Court are needed more than ever to advance human rights protections and the universal goal of preventing future atrocities. Instead, these sanctions send a signal that could embolden authoritarian regimes and others with reason to fear accountability who seek to evade justice. It is essential that the United States answer any allegation of wrongdoing in a manner that does not betray the cause of global justice, abandon international cooperation, or compromise support for human dignity and rights.

As human rights, legal, and faith-based organizations, as well as individuals who have dedicated their careers to these causes, we call upon the U.S. government to rescind the Executive Order authorizing sanctions and return to constructive engagement with the ICC. We urge other governments, Members of Congress, and advocates for victims everywhere to raise their voices to oppose these measures. We invite allies of justice to join us in standing against these destructive measures/attacks.

page1image1425612000

Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), Sanctions, United States | Leave a comment