An Insider Look at Outreach efforts in bringing the proceedings closer to the Victims and Affected Populations in Northern Uganda

Posted on February 3, 2021 by Mark Kersten

Maria Mabinty Kamara joins JiC for this insider account on outreach efforts by the International Criminal Court throughout the proceedings against Dominic Ongwen. The post is part of our ongoing symposium on the life and trials of Dominic Ongwen. Maria is an ICC Outreach Officer who has worked in Uganda, Kenya, and Sierra Leone.

Villagers in Lukodi, Uganda, watch the Dominic Ongwen proceedings at the ICC (Photo: ICC)

‘’No matter how far victims might be from the Court, the ICC endeavours to reach out and engage with them and their communities. People most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership of the justice process’’. 

The statement above encapsulates the International Criminal Court’s goal of establishing an Outreach Programme that engages in a constructive, sustainable, and reciprocal manner with the victims, populations and different stakeholders that are affected by the crimes under investigation and on trial. Outreach promotes access, understanding and ownership of a justice process that is otherwise considered distant and foreign among the people it is designed to serve.  

The Court’s Outreach activities in Uganda commenced in 2006, creating individually simple yet collectively multifaceted channels of communication that harnessed vibrant relationships with victim communities, religious and cultural leaders, the media fraternity, the academic and legal communities and the general public in northern Uganda. As the Court seeks to fulfil its mandate to investigate and prosecute persons who have committed the most serious crimes of international concern, namely genocide, war crimes, crimes against humanity and genocide, it is imperative that its role and judicial activities are understood and appreciated, particularly in communities affected by the crimes under its jurisdiction. Unlike most national and local courts, the ICC is international and it is situated in The Hague, The Netherlands, which is thousands of miles away from the populations in northern Uganda that have been affected by the crimes Dominic Ongwen is accused of. 

After a long and frustrating lull of up to 10 years from 2005 when the arrest warrants against senior members of the Lord’s Resistance Army (LRA) were issued, the arrest and surrender of Ongwen to the ICC in 2015 was a welcome relief that rekindled the communities’ interest for information about the trial. Until the outbreak of COVID-19 in early 2020, that was demonstrated by the enthusiasm and large numbers of people that participate in outreach activities.

With all the proceedings being conducted in the ICC Courtroom in The Hague, the massive interest and participation of victims and affected communities in the trial proceedings expressed through numerous Outreach channels underscores the importance of a robust and inclusive outreach programme that ensures that the judicial proceedings are accessible, meaningful and relevant, promotes understanding of and support for the Court’s work, and manages the expectations of the victims and affected communities. 

Notwithstanding the distance between the ICC in The Hague and the communities whose needs for justice and accountability are being served by the Court, our work connects the communities with the Courtroom, bringing understanding, ownership, and legitimacy of the work of the Court in the four major geographical areas in northern Uganda where the bulk of the victims reside.  

In northern Uganda, our Outreach has made it possible for people living thousands of miles away from the Court to have a meaningful experience of the proceedings. Throughout the trial, we established screening centres in the twenty-five locations that are directly linked to the case and where projections of the trial are held monthly. The monthly screenings are led by community volunteers selected from among the victims and affected communities.

During important and symbolic moments of the trial, such as the opening of the trial, the opening of the presentation of evidences, and closing statements, we organised live video and radio broadcasts of the proceedings, which enabled the victim communities and the public at large to follow the proceedings, bringing the Courtroom to the populations it matters most to. In the course of my engagements with victims and affected communities from different judicial contexts, the most compelling experience of a lifetime was witnessing first-hand with concept of an ‘’ICC Courtroom in every parish’ – an adage created to summarise the access to the Courtroom created in different distant communities across northern Uganda, through our outreach initiatives. 

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

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

Posted on February 3, 2021 by Mark Kersten

Kristof Titeca joins JiC for this second post in our ongoing symposium on the life and trials of Dominic Ongwen. Kristof is an Associate Professor at the Institute of Development Policy, University of Antwerp. He has written ‘Rebel Lives. Photographs from the Lord’s Resistance Army’. 

Dominic Ongwen, first one from left. Photo taken circa 2002-2003. (c) ‘Rebel Lives. Photographs from Inside the Lord’s Resistance Army’, Kristof Titeca

Military strategist von Clausewitz first coined the term ‘the fog of war’, as a metaphor for the ambiguities of violent conflict. As he coined it in his seminal work ‘On War’: “War is the realm of uncertainty; three quarters of the factors on which action is based are wrapped in a fog of greater or lesser uncertainty”. In other words, there never is a clear view of the battle, it is always incomplete and distorted. This fog is not only present for military strategy and battle tactics, but also in the very basic ways in which a war is understood – by both insiders and outsiders. They are murky events, involving multiple actors with often unclear and shifting motives. Particularly for those living through wars, it often is hard to make sense of them, giving rise to multiple, often vastly differing understandings – depending on the side somebody is on, or what information is available. This fog is not only present during wars, but also in their aftermath – in the ways conflicts are remembered, instrumentalized, or historicised. 

All of this is particularly relevant for war crimes trials. In order to speak justice, these trials are faced with a double challenge: they do not only need to find the ‘truth’ amidst this fog in the motives and actions of its participants; they also need to fit this truth into a judicial framework. In doing so, they are faced with a number of challenges, which I would like to discuss, by looking at the trial of former Dominic Ongwen, former commander of the Lord’s Resistance Army (LRA) at the International Criminal Court (ICC).

First, a few caveats: I am no expert on international justice, and hence on the literature on these issues. I am first and foremost an expert on the LRA, which I have been studying closely for the last 20 years. My writing has to be understood in this context, as well as by virtue of my position as an expert witness in the Ongwen trial.

The thickness of the fog of war

For the population affected by the war in Northern Uganda, the war was a murky affair. There were gruesome attacks by the LRA, but also the social torture of the IDP camps, and the abuses by individual Ugandan soldiers. There also were many rumours about the interests of Ugandan political and economic elites in continuing the war – exemplified by the ghost soldier scandals and by the rumours of Kony being informed beforehand of certain looming attacks that he then managed to escape. And, there were the various geopolitical interest in the war, such as the support of the LRA by Khartoum, largely in response to Ugandan President Yoweri Museveni’s support to the Sudan People’s Liberation Army. 

How to shed light on this fog? Before attempting to establish guilt, one has to agree on a basic understanding of the conflict. Decades of research in and on the conflict have tried to do just that and have resulted in excellent sets of books which unpack the conflict in its various dynamics and manifestations: by focussing on the conditions of the IDP camps, the impact of the ICC or Western interventions, the cosmology of the conflict, the ambiguous nature of abductees and returnees, including one of Joseph Kony’s wives, and so on. 

Academic research is one thing, speaking justice is another: how does the International Criminal Court establish ‘truth’ in these circumstances? This isn’t only a question of conducting investigations, but also of tapping into the existing debates and materials in trying to do so. As a result, much of the aforementioned research did play a role in ICC proceedings and was used by both sides of the trial to make their respective points. Similarly, a number of the authors of the above monographs (such as Tim Allen, Adam Branch or Evelyn Amony) acted as expert witnesses in the trial, as did many other experts (such as psychiatrists Emilio Ovuga and myself). This didn’t mean the trial reflected a consensus about the knowledge on the LRA conflict, something which manifested itself in various ways. First, there was a clear selection bias in which debates the parties wanted to engage with, and which not. Both parties wanted to look at the conflict in a particular way. This wasn’t only done in the way experts witnesses were selected, and evidence brought in; but also in the ways questions were asked and not asked. In doing so, the defence and prosecution wanted a clear vision on some aspects of the conflict. 

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Posted in Dominic Ongwen ICC, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged | 1 Comment

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.

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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.” 

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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. 

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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. 

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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.

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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.

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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.

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