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

“These conflicts will be resolved by law or war.” An Interview with former ICC Judge Howard Morrison

Posted on April 28, 2021 by Mark Kersten

The following is an interview, conducted by Shehzad Charania, with former ICC Judge Sir Howard Morrison. Shehzad is is the Director of the Attorney General’s Office and International Law Adviser to the PM’s Office. His other interviews with ICC luminaries can be found here.

Justice Howard Morrison (Photo: ICC)

I spoke to Judge Sir Howard Morrison QC this month, a few days after the end of his ICC judicial mandate, and a week after the Appeals Chamber over which he presided handed down final judgments in the cases against Laurent Gbagbo and Bosco Ntaganda. 

I begin by asking him to recall how he first became interested in international law and international crimes. He traces it back to his time at a military boarding school in West Germany, where Morrison’s father was deployed as a Royal Air Force pilot. When Morrison was 14, he went on a trip to the Bergen-Belsen Concentration Camp. It was a “raw and dramatic experience”, he says. It was also around this time he began reading about the Nuremberg trials and Anne Frank who died in Belsen at about the same age he was. He recalls finding her betrayal and murder as horribly shocking. Although decades passed before he would practice international criminal law, these memories implanted during his teenage years stayed with him. Morrison’s childhood and young adult life involved moving around a lot, in part because of his father’s occupation, but also his own interest in experiencing different countries and cultures. So from living in Egypt as an infant to teaching in a very remote school in northern Ghana before university, he eventually ended up studying law in the UK. A “fairly conventional” career at the Bar followed, with Morrison taking on whatever was thrown at him, from family law, medical negligence and commercial work, but ultimately it was crime, both prosecuting and defending, that made up most of his practice. 

In 1985 Morrison saw an advertisement in The Times to become a resident magistrate in Fiji. He applied and was successful. While there, the country experienced two military coups which made life much more difficult than he had anticipated, although he ended up becoming Chief Magistrate before returning to the UK. “It was this period of my career that really piqued my interest in international law,” he says. “I began to look for something to do beyond my standard practice.” One of the applications he made was to put himself on the list of Defence counsel at the International Tribunal for the Former Yugoslavia (ICTY). Within a few months, he received a call from Zdravko Mucic, who had been convicted by the Trial Chamber of war crimes, and wanted Morrison to take on his appeal. Morrison ended up acting for four defendants at the ICTY, as well as acting for a Rwandan Cabinet Minister at the International Criminal Tribunal for Rwanda (ICTR). He was appointed Queen’s Counsel in 2001

Following his work as a defence barrister at the ICTY and ICTR, Morrison came back to the UK, and in 2004 was appointed a domestic court Judge. A few years later, the Special Tribunal for Lebanon (STL) was established, and Morrison successfully applied for a judicial position. Although he didn’t spend much time at the STL, he remembers being holed up in a hotel near Schiphol Airport with fellow judges, led by Antonio Cassesse as President of the STL, to draft the rules of procedure and evidence. A few months later, however, he received a call from the UK Foreign and Commonwealth Office asking if he might be interested in replacing the British Judge at the ICTY Lord Iain Bonomy. Morrison accepted, the temptation of probably being asked to sit on the Karadzic case too great to resist.  

I ask him about that case. “It took far longer than anyone thought,” he recalls. “It was a huge case, with voluminous evidence, a lot of cross-examination, and everything having to be interpreted and translated. And with Karadzic representing himself, albeit with the assistance of counsel, and as a result the trial chamber deciding to sit four instead of five days to allow Karadzic time to prepare, this alone added 20 percent more time to the trial.” At the same time, Morrison understands that this was a seminal case, where the fairness of the proceedings would be “rightly” under the microscope. “What we delivered was more than just a legal judgment. Because a final decision was never delivered in the Milosevic case, we had to set out the full history of the events which took place, for example in Srebrenica, and the siege of Sarajevo. That’s why the judgment was 2,700 pages. It was an immense privilege to sit on that case. It was also exhausting!”

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Posted in Guest Posts, ICTY, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Interviews | Tagged , | 2 Comments

Where the Roads Meet: The Relationship between International Criminal Law and International Environmental Law

Posted on April 7, 2021 by Mark Kersten

David Krott joins JiC for this guest post on the nexus between international criminal law and international environmental law. David is as a research assistant at the FH Aachen (Germany) and am PhD candidate at the Vrije Universiteit Brussels, specialising in international environmental criminal law.

Climate change: New UK law to curb deforestation in supply chains - BBC News
(Photo: BBC)

In the light of the growing threat of climate change, a rapidly burning rainforest in South America and South-East Asia, polluted rivers in the Arctic, and other environmental and ecological crises, international environmental law is searching for answers to condemn global environmental harm. Some of those answers might lie within the sphere of international criminal law.

The International Criminal Court (ICC) does not have a distinct legal mandate to look into international environmental harmful conducts. Nevertheless, the pressure to codify the connections between the environment and criminal conduct is growing. This post discusses the nexus between international criminal law and international environmental law, as well as the role that activism and institutions are playing in the developing interplay between these two regimes.

Why the relationship between international criminal law and international environmental law matters

Even though the areas of international criminal law and international environmental law are two distinct areas of international law, they do present close connections. Serious harm to the environment constituted by human action may result in “potential criminal conduct”, such as illegal logging or the illegal disposal of hazardous waste. The resulting destruction of local ecosystems can have major global consequences. This can be outlined by the deforestation of the world’s rainforests in Brazil and several countries across South-East Asia. This not only destroys one of the most vivid ecosystems on the planet but contributes to rising temperatures on a global level. Furthermore, the slash-and-burn method used causes health issues, not only for local inhabitants but also for citizens of neighbouring states. 

The earth is constituted of a global net of interrelated ecosystems. Widespread environmental harm or the degradation of ecosystems is inherently transboundary/global. The most vivid example of this interconnectedness of the world’s ecosystems is climate change. The connectivity can be described with the following example: The emission of industrial CO2 in Europe leads to thawing permafrost in the Arctic. This in turn accelerates the release of climate gases into the atmosphere fuelling the melting of the polar ice caps, which results in the potential submersion of whole island nations in the Pacific. The planet’s natural systems are brought out of balance by human activity. These activities might not be criminal per se, but a number of the behaviours in question do bear the potential to be called a crime and even an international crime. An issue here is that the terms of ecocide or international environmental crimes do not have a universally agreed-upon definition. They therefore lack legal consensus. International environmental crimes are more of a collective term for transboundary environmental harm in general (e.g. illegal trade in wildlife, illegal logging, waste handling abuses, whaling or extraction of conflict minerals). 

While a commonly agreed international framework governing this delicate area of international criminality remains elusive and there is no distinct “Convention on International Environmental Crime, a growing number of multilateral environmental agreements (MEAs) have come to life that are of relevance to thinking about the relationship between international criminal law and environmental law. Some of the existing MEAs refer to the connection between criminal actions and the environment. For example, the “Basel Convention on the control of transboundary movements of hazardous waste” describes in Article 9 certain transboundary movement of hazardous wastes as “illegal”. The implementation and enforcement of this and similar “criminal” provisions are thus left to the signing parties. Sufficient international oversight in this regard is missing.

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Posted in Ecocide, Environment, Guest Posts, International Criminal Court (ICC), International Criminal Justice | Tagged | 4 Comments

The United Nations and Sri Lanka: A Human Rights Saga

Posted on March 23, 2021 by Mark Kersten

Thamil Venthan Ananthavinayagan joins JiC for this guest post on the United Nations, Human Rights, and Sri Lanka. Thamil, LLM. (Maastricht University), PhD (NUI Galway), is the incoming Teaching Associate in IHRL at University of Nottingham. Prior to this lectureship at GCD, he worked as a Fellow and research assistant to the Irish Centre for Human Rights in Galway, Ireland.

Soldiers from the Sri Lanka army stand next to anti-aircraft gun (Photo: DW)

The United Nations and Sri Lanka: if this was an international novel, it would be one with many chapters of deceit and mistrust, but also elating seasons of hope and confidence. The island nation joined the UN in 1955. I have written extensively on Sri Lanka and the UN, culminating in a book on the international human rights engagement of the United Nations with Sri Lanka. The engagement with its Charter-based and treaty-based bodies had been long and extensive. In the end, I concluded that the human rights corpus has been used by the UN and Western powers as a tool for the furtherance of a neo-colonial agenda, setting the stage for geopolitical influence and neoliberal world order in the Global South. Meanwhile, the (Sinhala) Third World elite of the country had conveniently employed international human rights law as a strategic asset and diplomatic bargaining tool.

Sri Lanka has willingly engaged in this human rights game: the lifting of autocratic policies in the 1970s came with the opening of the domestic market to foreign investors in order to align them with the requirements of the International Monetary Fund and World Bank. Human rights advocacy was tethered to neoliberal values and geopolitical state interests. To this end, many actors in the region and the Tamil diaspora in the Western countries have instrumentalised the suffering of the war victims for political gain. 

Sri Lanka will be always entangled in its colonial and postcolonial past, which contributes to the contradictions of its present and future. This article discusses the role of the UN and its manipulation by powerful actors to influence the political happenings on the island. I explain the driving narratives for non-governmental organisations, foreign and native, to intervene in Sri Lanka. Finally, this post will sum up the shallow human rights discourse in Sri Lanka, while proposing ways forward in achieving global justice from the distinct viewpoint Third World Approaches to International Law (TWAIL). 

Human rights is the instrument of the hegemon

Sri Lanka’s lack of retrospective insight on accountability for the war crimes is once again being tabled before the UN Human Rights Council. The lack of post-war justice is striking. Yet it is part of a larger strategy of the island nation when it engages with the international institutions. Sri Lanka is a post-war, but surely not post-conflict, country. 

In its January report  on Sri Lanka, the UN High Commissioner for Human Rights wrote that: 

The Human Rights Council therefore is – once again – at a critical turning point in its engagement with Sri Lanka. Twice before, the Council has leant its support to domestic accountability and reconciliation initiatives, culminating in resolution 30/1.  The Government has now demonstrated its inability and unwillingness to pursue a meaningful path towards accountability for international crimes and serious human rights violations, and signalled instead a fundamentally different approach which focusses on reparation and development, but threatens to deny victims their rights to truth and justice and further entrench impunity.”

Once again, the UN has attempted to steer the current Sri Lankan government in its ideological outlook towards accountability for human rights abuses.  It is at this juncture of international human rights advocacy that the Tamil Tiger offshoots and their supporters are using Western media, Western institutions, research outlets and their apparatus’ for the furtherance of their own politics. The utilisation of liberal and cosmopolitan normative frameworkshave helped them to generate support from the Western hemisphere. Against this backdrop, the latest draft resolutiontabled before the UN Human Rights Council is yet again being spearheaded by Western nations. The aim of this resolution is to recommit the Sri Lankan government to transitional justice, promotion of civil and political rights, a new constitution and an international accountability mechanism: all core demands from the Report of the United Nations High Commissioner for Human Rights in 2015._The UN is the playfield between Western powers and their allies and China and its allies for geopolitical and economic bargaining: it was never about human rights or the plight of the marginalised communities on the ground. The victims and marginalised are robbed of their agency and their subaltern voices are expropriated: human rights advocacy in light of post-war justice was always about geopolitics, trade and militaristic securitisation of the Indian Ocean. 

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Posted in Guest Posts, Human Rights, Sri Lanka | 2 Comments

Arenas of Interaction: The Relationship between International Criminal Law and International Human Rights Law

Posted on March 17, 2021 by Mark Kersten

The following is a guest post by Emily Tsui. Emily is a Juris Doctor/ Master of Global Affairs candidate at the University of Toronto. The following is the author’s reflection of her experience at the 2021 Online Winter Courses of the Hague Academy of International Law. This blogpost and the author’s attendance at the Hague Academy are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

In the International Criminal Court’s (ICC) recent and lengthy trial judgment in the case of Dominic Ongwen, the Trial Chamber made several references to the jurisprudence of human rights courts, instruments, and documents. These references included 12 citations to the European Court of Human Rights (ECtHR); 14 citations to the Inter-American Court of Human Rights (IACtHR); several citations to instruments such as the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Convention on Consent to Marriage; and multiple citations to various reports by the United Nations (UN) High Commissioner for Human Rights. The references highlight one way of how the ICC engages with human rights law in its work in adjudicating international criminal cases. The following post discusses why the relationship between international criminal law and international human rights law matter, and the crucial role that human rights activists and institutions have in developing this relationship. 

Why the relationship between international criminal law and international human rights law matters

International criminal law and international human rights law are distinct but related branches of law. As the International Law Commission’s (ILC) Report on Fragmentation noted, international human rights law aims to “protect the interests of individuals”, while international criminal law “gives legal expression to the fight against impunity.” As the ILC observes, these distinct branches of law emerge out of the practice needs of specialization, rather the intentional creation of distinct regimes. These two fields are deeply linked in substance. For example, serious human rights violations may constitute crimes against humanity under international criminal law. As such, it is logical that interactions between these two fields of law occur.

Various courts and tribunals have furthered the link between international human rights law and international criminal law, which helps to create a coherent body of law across different international forums to bring justice to individuals whose rights have been violated. At the ICC, the relationship between the two fields is given effect under Article 21(3) of the Rome Statute, which allows the ICC to consider “internationally recognised human rights.” Article 21(3) is considered a welcome provision that allows for the interaction of these two regimes by formally permitting the interaction between the two fields of law. 

As noted above, the trial judgment of Dominic Ongwen made reference to decisions of several international courts and tribunals, including the jurisprudence of the ECtHR, IACtHR, and the African Commission of Human Rights in its discussion of what constitutes torture (par. 2701). These references help the Trial Chamber to show that there is a broad consensus in international courts that the severity of torture may be met by a single act or by a combination of acts reached as a whole. This practice of international criminal courts and tribunals in referencing cases of human rights tribunals is not new to Dominic Ongwen’s case, but rather is a long-standing practice. Institutions like the International Criminal Tribunal for the Former Yugoslavia (ICTY) have long used human rights law in its jurisprudence. 

Under international human rights law, the IACtHR cross-references the jurisprudence of the ICTY and the Special Court for Sierra Leone. For example, in Almonacid-Arellano et al. v. Chile, the IACtHR referenced the ICTY’s decision in Prosecutor v. Tadic, among others, to conclude that “a single act of murder committed as part of a widespread or systematic attack against civilians is sufficient for the configuration of a crime against humanity.” The result of this system of cross-referencing between courts is that perpetrators of crime cannot escape accountability depending on the forum. It also means that international criminal law is available in a larger number of forums as it applies to human rights courts and tribunals.

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Posted in Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice | 2 Comments

Canada’s Pursuit of Syria over Torture May be Symbolic. But Here’s Why It Matters

Posted on March 11, 2021 by Mark Kersten
(Image:  Amnesty International / Mohamad Hamdoun)

Last month marked the tenth anniversary of the brutal civil war in Syria. The number of atrocities committed over that span is bewildering. In all probability, every single human rights violation and international crime enshrined in international law has been perpetrated in Syria during the last decade, most repeatedly. Yet ten years on, accountability for those atrocities has been minimal, an embarrassing blemish on the reputation of all states that stand for international justice. Canada’s decision to join an effort to bring Syria to the International Court of Justice (ICJ) over human rights violations and torture won’t change that. But it is an important decision at a crucial juncture for Syria.

On 4 March, the Canadian government announced that it “has requested formal negotiations, under the United Nations Convention Against Torture, to hold Syria accountable for the countless human rights violations it has inflicted on the Syrian people since 2011.” What this means, in short, is that Canada is joining a bold initiative by The Netherlands to eventually bring Syria before the ICJ over the regime of Bashar al-Assad’s wanton programme of systematic torture and atrocity.

What this does not mean is that any Syrian perpetrator will find themselves hauled before a judge to answer for war crimes, crimes against humanity, or genocide. Canada’s move may end up being largely symbolic. But symbols matter, and right now keeping faith that justice for atrocities in Syria alive is crucial. So too is ensuring that Syria’s government remains a pariah.

An uncomfortable truth for advocates of human dignity and rights is that Assad has effectively won the war in Syria. There will no doubt continue to be intermittent hostilities. But the dream of a democratic Syria without Assad at the helm has largely been quashed – at least for now. A leader with comparable blood on his hands to any dictator or despot in human history is safe, for the time being, in his palaces. And he has friends working for him. 

Right now, Russian President Vladimir Putin is working closely with counterparts in Syria to rehabilitate Assad’s reputation. To think that that is impossible is sadly naïve. It’s also potentially dangerous.

Take Libya, for example. Few heads of state have been as castigated as Libya’s Muammar Gaddafi in the 1980s and 1990s. The “mad man” of the Middle East was despised due to his sponsorship of terrorist organizations abroad and his repressive rule at home. 

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Posted in Canada, International Court of Justice (ICJ), Syria, The Netherlands, Torture | 1 Comment

Polite Hypocrisy? The Rocky Road Ahead for Biden and the ICC

Posted on March 5, 2021 by Mark Kersten
Joe Biden to make third run for White House

If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.

Finally, the Trump administration is gone, and its vicious attacks on the International Criminal Court (ICC) are over. But before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?

All signs point towards a return to piecemeal engagement, where Washington uses the Court when it suits its interests and undermines it when it does not. Biden has said the U.S. is “back”. But on international justice, there’s a need to be different – and better.

A tumultuous relationship

The relationship between the US and the Hague-based Court has always been tumultuous. While the US has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the Court and also been affected by it.

President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.

When George W Bush came to power, he immediately embarked on a hostile campaign against the Court. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised the US President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorisation, which meant Washington could use military force against the Court, led the law to be nicknamed “the Hague invasion act”.

The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the Court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.

When the Obama administration took over, it stated its intent to “positively engage” with the Court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with the Court. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.

During the Obama years, American cooperation was invaluable for the Court. By sharing evidence and ensuring that the Court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.

But the Obama administration’s partial engagement with the Court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the Court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the Court’s reach, while those that lacked US support were readily investigated by ICC.

Then came Donald Trump. The Trump administration was hostile towards the Court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the Court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court.”

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Posted in Donald Trump, International Criminal Court (ICC), International Criminal Justice, United States | Tagged | 6 Comments

Can Colombia’s Special Jurisdiction for Peace be considered slow? A preliminary comparative study of trials for international crimes

Posted on March 3, 2021 by Mark Kersten

Shoshana Levy is a lawyer in International Criminal Law and International Humanitarian law, expert on transitional justice and on Colombia’s transition to peace. The opinions expressed in this article are solely her own.

SJP President Eduardo Cifuentes, Former SJP President Patricia Linares, ICC Prosecutor Fatou Bensouda and ICC Deputy Prosecutor, James Stewart. (Photo: ICC website)

The Special Jurisdiction for Peace (SJP), Colombia’s transitional tribunal was set up to prosecute the perpetrators of crimes committed during the armed conflict between the FARC-EP guerilla and the Colombian government. Its slow pace is raising skepticism among some sectors of Colombian society. Almost three years after its official creation, the SJP has not yet handed down its first sentence. In a deeply polarized sociopolitical context, Colombian President Iván Duque has repeatedly expressed ardent criticism regarding the pace of the SJP, declaring that it “can no longer provide excuses for not acting with greater speed”. But given its mandate and the immense scope of its jurisdiction, is the SJP’s work actually slow?

The widest temporal jurisdiction for a transitional criminal tribunal

The SJP has jurisdiction over the serious Human Rights and International Humanitarian Law violations committed prior to the signing of the Peace Agreement in December 2016 and in the context of the armed conflict in Colombia. The war was one of the longest-lasting contemporary armed conflicts to date. 

The outbreak of violence in Colombia was reported in 1948, while the official creation of the FARC-EP guerrilla dates back to 1964. With a temporal jurisdiction covering over half a century of internal armed conflict, this transitional tribunal has by far the most ambitious scope of all courts with similar mandates. In comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in 1993 and covered crimes committed since 1991. As for the International Criminal Tribunal for Rwanda (ICTR), it only examined the crimes committed during the year of the genocide in 1994. Likewise, the Special Court for Sierra Leone (SCSL) had a one-year temporal jurisdiction, and the Extraordinary Chambers in the Courts of Cambodia (ECCC) covered violations committed during the two-and-a-half-year period of Democratic Kampuchea.

In addition, the Special Jurisdiction for Peace does not solely aim to establish individual criminal responsibility. Rather, it seeks to interrogate large numbers of violations and their context, in order to shed light on the patterns of behavior and internal policies of both the FARC-EP and the Colombian military and identify the circumstances that promoted or facilitated them. It is the first time that such a deep and broad analysis has been carried out by the Colombian judiciary, allowing contextual elements to be legally characterized. As a result, “crimes against humanity” and “war crimes” can be named as such, and their perpetrators prosecuted correspondingly. 

The SJP has opened seven “macro cases” which, instead of focusing on one specific perpetrator, deal with reiterated patterns of conduct, including kidnappings committed by the FARC-EP (macro case 01), extrajudicial killings and forced disappearances committed by public forces (macro case 03), recruitment and use of child soldiers (macro case 07), systematic targetting of political opponents (macro case 06) and a range of violations committed in specific regions particularly affected by the armed conflict. As of January 2020, the Jurisdiction declared having examined over 60,000 criminal facts within these macro cases.

A transitional tribunal set up to deliver innovative restorative justice 

All international criminal tribunals established so far have relied on retributive grounds, where victims’ participation and right to redress were minor. The Peace Agreement signed by the FARC-EP and the Colombian Government on 1 December 2016, one of the most comprehensive peace agreements worldwide, provides for the “centrality of the rights of the victims”. The SJP created by the Peace Agreement is thus fundamentally different from other international criminal tribunals and courts established thus far, as its end is primarily restorative.

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Posted in Colombia, International Criminal Court (ICC), International Criminal Justice, Special Jurisdiction for Peace | 2 Comments