Inching Closer: Could Omar al-Bashir finally be prosecuted by the International Criminal Court?

Posted on September 1, 2020 by Mark Kersten

Former Sudanese President Omar al-Bashir, in the dock during proceedings in Khartoum over corruption-related crimes (Photo: Reuters / BBC)

“I reiterate that the government is fully prepared to cooperate with the ICC to facilitate access to those accused of war crimes and crimes against humanity.” So declared Sudanese Prime Minister Abdalla Hamdok on 22 August 2020. Some are surely asking: haven’t we have heard this type of talk from Sudanese officials before? Yes, we have. What we have not seen is any trials of any perpetrators involved in atrocities in Darfur – or the rest of Sudan. Will this latest round of rhetorical commitment to justice translate into actual accountability?

Not long after former Sudanese President Omar al-Bashir’s unceremonious fall from power in April 2019, officials in the country stated their interest in Bashir ‘appearing’ before the ICC. The announcement was met with a feverish reaction: a decade after the ICC issued warrants for his arrest, would Bashir finally find himself before judges in The Hague? The answer, we now know, was: no. In fact, Sudan’s new rulers hadn’t said the country’s former head of state would be sent to the ICC. Rather, they appeared interested in having the ICC put Bashir – and others wanted for atrocities in Darfur – on trial in Sudan itself.

This is also how the Prime Minister Hamdok’s remarks should be understood. He did not say that Sudan was prepared to ship off defendants to the ICC, but that Sudan is now ready to cooperate with the Court to facilitate “access” to those accused. Some, like Bashir and former ministers Ahmad Harun and Abdel Rahim Mohammed Hussein, who are also implicated in the commission of atrocities in Darfur, are currently under arrest in Sudan.

So, what does Hamdok’s commitment to cooperate with the ICC mean? Is it an empty gesture?The short answer is no. This is the first time that someone as senior as the Prime Minister has spoken out in favour of cooperating with the ICC. His comments also come in the wake of protests in which the subject of ICC justice has gained some traction, as well as the recent revision of laws that precluded Sudanese authorities from cooperating with the ICC. As one human rights advocate recently observed, the reforms are “a welcome signal that Sudan’s leaders take seriously their public promises to cooperate with the court on outstanding arrest warrants”. The regular and repeated declarations of support for the ICC from within the Sudanese government also makes it harder to backtrack on their pledge to ensure those targeted by the Court for atrocities in Darfur will be prosecuted.

What justice for Darfur might look like remains murky. The same options on the table exist now as they did when the government first suggested it would work with the ICC. The Court’s Prosecutor, Fatou Bensouda, recently stated that she is not aware of the government’s plans. She has spoken of difficulties in her interactions with interlocutors in Sudan due to the COVID-19 pandemic and the inability of her staff to visit Sudan. So far, authorities have not tipped their hand as to whether they would surrender Bashir, Harun, or Hussein to The Hague if the Court is unwilling or unable to hold proceedings on Sudanese territory. Nor have they indicated any interest in investigating and prosecuting those responsible for international crimes in Darfur themselves; Bashir has been tried in Sudan, but only for corruption and related crimes. Continue reading →

Posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | 3 Comments

A Reckless Crime Against Humanity: Justice for the Victims of the Beirut Blasts

Posted on August 13, 2020 by Mark Kersten

Clare Brown joins JiC for this post on how justice and accountability might be achieved for those responsible for the devastation caused by recent explosions in Beirut, Lebanon. Clare is an Australian lawyer based in Beirut and the Deputy Director of Victim Advocates International. 

(Photo: Reuters)

On 4 August 2020, an explosion decimated the Port of Beirut, along with a large part of the city. The death toll, currently at 220, has continued to rise as medics and volunteers comb through the remains of buildings across Beirut. Over 6,000 civilians were injured. 300,000 were instantly made homeless. It is agreed by all actors that the blast was the preventable result of government negligence. Over the weekend, protests broke out across the city, and on Monday, the entire Cabinet resigned, citing lack of public confidence in the administration.

International criminal law does not recognise negligence as a mental element giving rise to criminal responsibility. Whether it recognises recklessness, or its civil law equivalent ‘dolus eventualis’, is controversial. This article makes three arguments. The first is that current jurisprudence does support the recognition of a strict form of dolus eventualis as a mental element of international crimes. The second is that continuing to recognise some form of dolus eventualis in international criminal law is important to ensuring victim-centred justice. Finally, it argues that that the Lebanese context necessitates the adoption of laws that go further than international criminal law standards in recognising recklessness and negligence as forms of criminal intent for international crimes.

The crimes committed at the Port of Beirut

The blast ripped through the city at 6:15pm last Tuesday evening. Beirut Whatsapp groups rapidly filled with alerts of an attack in, it seemed, Gemmayze. Ashrafieh. Geitawi. Hamra, and Downtown. Quickly, people realised, it was everywhere. After several minutes, it was confirmed that the explosion started in the Port of Beirut, which, in a few seconds, had ceased to exist. Windows blew in as far away as the airport, 13km away. Initial warnings in the Whatsapp groups were quickly replaced with calls for help, people trying to find families, friends and pets, as well as photos of destroyed houses and bloodied faces.

Several more minutes passed, and the speculation began. The spectre of an Israeli airstrike is ever-present in Beirut, and early guesses included theories of Hezbollah arms caches stored at the port being targeted by Lebanon’s southern neighbour. If this had been an Israeli attack, it would have been a war crime: a mass targeting of civilians and civilian property. It would also have been a crime against humanity.

Lebanon is not currently a state party to the Rome Statute, and does not have domestic legislation in place criminalising international crimes. General rules of international law, arguably including international customary law, are recognised by the country’s constitution, and there has been a recent trend of activist judges directly applying international law domestically. But there are no laws to ensure perpetrators of crimes against humanity will be punished, and until now, no political will for the adoption of such legislation.

Applying the rules of international criminal law, murder as a crime against humanity requires the perpetrator to kill one or more people as part of a widespread or systematic attack against a civilian population. Last Tuesday’s attack was widespread, with victims scattered from the port to the airport. Extermination as a crime against humanity requires the perpetrator to kill one or more people as part of a mass killing of members of a civilian population, as part of a widespread or systematic attack. If this had been an attack by a foreign power, it therefore would have at least constituted the crime against humanity of murder, and likely also of extermination.

But the explosion at the port was not the result of an attack by a foreign power. It was, according to Lebanon’s Prime Minster, the result of a fire breaking out near 2,750 metric tons of highly explosive ammonium nitrate that had been sitting in the Port for seven years. The Lebanese government impounded the ship carrying the highly explosive cargo in 2013. Despite numerous warnings that it was a powder keg about to explode, including a team who warned six months ago that it could “blow up all of Beirut” if not removed, the government failed take any action to dispose of the material.

Direct perpetration of a crime through recklessness or negligence

Direct perpetration of a crime in international criminal law requires that the accused him or herself either physically perpetrated the criminal act or ‘omitted to act when required to do so under law’ (Blagojević and Jokić Appeals Judgment). Clearly, the Lebanese government has a duty of care towards the Lebanese people. To be guilty of direct perpetration of a crime against humanity by omission, however, they would also need to have the necessary mens rea. In civil law jurisdictions, mens rea requires criminal intent (dolus). In most common law systems, it requires either criminal intent or criminal negligence (culpa). Civil law jurisdictions generally recognise three forms of dolus: dolus directus, dolus indirectus, and dolus eventualis.

Dolus directus means the perpetrator knew the consequence of their actions would occur and wanted it to; dolus indirectus means they knew the consequence would occur, even if they did not want it to; and dolus eventualis means that they foresaw, without knowing with certainty, that the consequence would occur. The closest common law equivalent to dolus eventualis is recklessness. The rules around mens rea in international criminal law are primarily borrowed from civil rather than common law standards.

The recognition of dolus eventualis in international criminal law

With a few minor exceptions (such as the Blaskic judgment, which recognised ‘serious criminal negligence’ as a form of criminal intent), international criminal law jurisprudence is generally clear that negligence/ culpa alone will not support a finding of criminal liability. Decisions around dolus eventualis, or recklessness, are less consistent.

Many Trial and Appeals Chambers at the ICTY considered recognition of dolus eventualis to be uncontroversial: Blaskic; Galic; Kordić & Čerkez; Strugar. The test applied by these cases was often wide and flexible: the Galic Trial Chamber, in a decision upheld on appeal, found that criminal intent includes circumstances in which a perpetrator ‘acts without having his mind on the act or its consequences’. Blaskic found recklessness was sufficient. Strugar required that the perpetrator knew the consequence of their action was ‘probable’. Continue reading →

Posted in Crimes against humanity, International Criminal Court (ICC), International Criminal Justice, Lebanon | Tagged | 4 Comments

The ICC’s Work in Congo Isn’t Done

Posted on August 11, 2020 by Mark Kersten

Maria Elena Vignoli joins JiC for this guest post on the need for the International Criminal Court to investigate senior military and political figures responsible for international crimes committed in the Democratic Republic of Congo. Maria is a counsel in the International Justice Program at Human Rights Watch.

Military figures march in the Democratic Republic of Congo (Photo: BBC / AP)

On June 17, the Canadian Partnership for International Justice submitted a letter to the prosecutor of the International Criminal Court (ICC) urging her to investigate the former Congolese president, Joseph Kabila, and senior officials from his government for atrocities in the Democratic Republic of Congo. This letter is a reminder that the work of the ICC in Congo is far from over. A look back at the court’s promises, achievements, and missteps in Congo reveals that the ICC should do more to bring cases addressing the accountability of senior officials for the gravest crimes and to provide increased support for domestic investigations and prosecutions.

The ICC opened its first investigation in Congo in 2004, following a referral by the Congolese government. The prosecutor’s investigations have since focused on alleged war crimes and crimes against humanity in eastern Congo, Ituri as well as North and South Kivu, since July 1, 2002. The ICC’s Office of the Prosecutor (OTP) has publicly brought cases against six individuals, all former rebel leaders. Some of these cases resulted in important achievements, including the historic conviction of Bosco Ntaganda in 2019 for 18 counts of war crimes and crimes against humanity. At the same time, the court developed innovative initiatives for outreach.

The Congo investigations led to the first cases to reach the court. These faced significant challenges and were marked by controversies that highlighted gaps in the court’s practices and investigative strategies. In addition, although the number of Congo cases is among the highest for any situation before the ICC, the choice of cases has fallen short of expectations.

Of course, with the ICC’s role as a court of last resort, it was never envisioned that it would take on all cases of serious crimes in Congo since 2002. However, as we have contended based on our observations of court practice across situations, if the ICC is to deliver meaningful justice and maximize impact, the cases the prosecutor selects should seek to impartially establish individual criminal responsibility at senior leadership levels and include incidents representative of the gravest crimes. This is necessary to ensure that the court’s work resonates with affected communities and addresses legitimate expectations for justice. The Congo cases brought before the ICC have not met these criteria.

For example, the OTP’s investigation in the Kivus appears to have focused solely on the rebel group Democratic Forces for the Liberation of Rwanda (Forces démocratiques de libération du Rwanda, FDLR). Cases brought against two leaders of the FDLR did not reach trial—in one, the group’s military commander was killed without facing arrest and in the other, there was insufficient evidence to confirm charges against the group’s executive secretary. The omission of cases against other actors allegedly involved in serious crimes in North and South Kivu is striking given the scale and widespread nature of the mass atrocities documented there.

In addition, the Congo cases brought before the ICC have failed to address accountability by senior political and military officials. With Ntaganda, who had risen to the rank of general in the Congolese army and was shielded from arrest and prosecution for many years, the court did prosecute a high-level suspect considered untouchable until he defected to form a new rebel group and eventually surrendered in 2013. But his trial only covered crimes committed when he was a rebel leader in Ituri and did not include charges for atrocities allegedly committed by forces under his command in the Kivus, including the Congolese army. The ICC has brought no charges against the military and political leaders who allegedly supported abusive armed groups in eastern Congo over the last two decades. Continue reading →

Posted in Democratic Republic of Congo, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | 1 Comment

“Give Me a Smile”: The Sexism at Play During ICC Prosecutor Proceedings

Posted on August 5, 2020 by Mark Kersten

Başak Etkin joins JiC for this guest post exploring issues of sexism that plagued last week’s interviews with candidates to be the next chief Prosecutor of the International Criminal Court (ICC). Başak is a teaching and research fellow as well as a Ph.D candidate at Université Paris 2. Her research focuses on sources of international law and international law theory.

(Image from The Female Lead)

The issues that undermined the hearings for the next Prosecutor of the International Criminal Court (ICC) did not stop at the technical difficulties that plagued the proceedings. After Ugandan candidate Susan Okalany rejoined the interviews following internet connection failures, the Vice-President of the Assembly of States Parties and Slovakian Ambassador Michal Mlynár asked Justice Okalany, the only short-listed woman: “give me a smile”. The incident has since been dubbed #smilegate by Surabhi Ranganathan. This request is part of larger, structural issues that plague national and international institutions.

Having powered through connectivity issues and repeated her answers, Okalany had just finished replying to the questions she had missed when Ambassador Mlynár made the inappropriate request. His intentions were likely intended to cut through the awkwardness of the proceedings or to make Okalany more comfortable after numerous internet connection failures. However,  Okalany had remained calm despite the difficulties, had not complained and was focused on her answers. Later in the interview Fergal Gaynor, another short-listed candidate for the position, congratulated Justice Okanaly for her “grace” under pressure (instead of, say, persistence). This seems to be one of her qualities; the June 2020 Report of the Committee on the Election of the Prosecutor pointed out that “Ms  Okalany  provided  […] resilience in the face of pressure”.

Sexism in international organisations is, dare I say, an epidemic. For the ICC, the fact that the current Prosecutor is a woman does not change that – it might even be a factor that helps hide the ugly truth. The higher one goes up the ladder, the less women there are. And the fall is steep. It goes from 76% and 63% female staff at P-1 and P-2 levels to 45%, 35%, 33%, and finally 11% at respectively P-3, P-4, P-5 and D-1 levels, according to the Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the ICC from December 2019, Danya Chaikel highlighted after the first day of the hearings. While the Irish candidate Gaynor pledged to put forward names of women for the position of Deputy Prosecutor if he were elected, there aren’t any rules guaranteeing gender balance in these higher positions.

Sexism is, of course, not specific to the ICC or the international criminal law world. Replying to Chaikel, Judy Mionki mentioned a UN Women study from 2016 on the on the Status of Women in the United Nations System, which notes that “a negative correlation exists between the representation of women and seniority – as grade levels increase, the proportion of women decreases. […] Such decreases indicate there are blockages in the pipeline hindering the career advancement of women within the UN”.

The so-called #smilegate is merely a symptom of a deeper issue, although a particularly telling one. As it has been remarked elsewhere, I doubt that the Ambassador would have asked a man to smile. It bears asking: are such questions posed equally to European or North American white women as they are to African women and women of colour? It seems doubtful and some have pondered whether race and colonial legacies are at play in such situations. Ranganathan, for example, underlines that Justice Okalany is a “woman, black, and African. The assumption that the likely frustration of her personal ambition is unimportant, even the carrying on of the interviews despite her technical troubles, and the expectation that she should set aside all that to restore comfort in the room by smiling has much to do with her being at the intersection of all [three] categories […] [one] really cannot imagine the Slovakian delegate would have asked an American candidate to respond in the same way. [One does] not imagine the Slovakian delegate condones racism or imperialism yet it is those very factors that underlie, if in a subliminal way, that encounter”. Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Justice | Tagged | 1 Comment

Optional Justice: The African Court’s Relationship with Human Rights Protection in Africa

Posted on August 3, 2020 by Mark Kersten

Ruwadzano Patience Makumbe and Jonathan Ochom join JiC for this post on the African Court on Human and People’s Rights and states withdrawals from declarations permitting NGOs and invidious to file cases before the Court. Ruwadzano is a Zimbabwe human rights lawyer and is currently a Hillary Rodham Clinton Global Challenges Scholar at Swansea University. Jonathan is a Ugandan human rights lawyer; the co-founder of Legal Hub Uganda and is a Chevening Scholar at Swansea University. The views and opinions expressed in this article are those of the authors alone and do not represent the position of any organisation.

(Photo: African Court on Human and Peoples’ Rights)

The African Court on Human and Peoples’ Rights (hereinafter, the Court) remains critical to Africa’s quest for human rights accountability. The mechanism provides states the discretion to accept the declaration allowing NGOs and individuals to institute cases before the Court. This is significant as almost all cases that the Court has heard have been filed by individuals. However, a growing number of member states are withdrawing their declarations, with Benin and Côte d’Ivoire being the latest states to withdraw, in early 2020. This casts doubt on the Court’s sustainability and ability to deliver on its mandate. In this piece, we scrutinize the strengths and limitations of direct access of individuals and NGOs as well as the option to withdraw the declaration available to member states, the political undertones shaping States’ withdrawals, and the implications on Africa’s human rights trajectory.

African Regional Human Rights System and Accountability

The Protocol  to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights recognises human rights as a tool for achieving the legitimate aspirations of the African peoples. Article 3 gives the Court jurisdiction to interpret and apply the Charter, the Protocol, and any other applicable human rights instruments ratified by member states of the African Union. Article 5 (3) grants the Court discretion to permit relevant NGOs with observer status before the Commission as well as individuals to directly initiate cases before the Court in accordance with article 34 (6). This provision broadens the Court’s jurisdiction to address gross human rights concerns. It also raises technical issues with a bearing on human rights accountability. Firstly, granting observer status to NGOs is a discretionary power and is thus inherently exclusionary. Secondly, the reliance on State declarations to permit direct access to NGOs and individuals inadvertently makes accountability optional to States. Whereas this route is politically expedient, it is disappointing as it delinks the Court from the primary rights holders: African citizens. It has essentially made human rights accountability at the regional level an elective matter, empowering States to decide who can hold them answerable for human rights violations in their countries and who cannot.

 “Optional” Accountability

Generally, international law permits parties to international treaties and agreements to withdraw from such arrangements in conformity with the provisions of the treaty or through parties’ consent. For risk-averse governments, withdrawals are a strategy for dealing with the unpredictable nature of international commitments as well as unforeseen domestic developments. A withdrawal, according to the Vienna Convention on the Law of Treaties discharges a State party from the obligations under a particular instrument. In the human rights context, the inclusion of discretion in article 34 (6), stems from the pervasive fear of embarrassment by NGOs and individuals among African States. However, for victims of human rights violations, the existence of voluntary accountability mechanisms such as the declaration under article 34 (6) has grave implications.

The primary consequence of a withdrawal of the declaration allowing NGOs and individuals direct access to the Court is that it deprives victims of human rights violations access to an effective judicial remedy at the regional level. It therefore threatens the right to an effective remedy which is well established in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Moreover, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) articulates the right as a means to protect the right to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered and the right to truth. Continue reading →

Posted in African Court on Human and Peoples’ Rights, Human Rights, Ivory Coast / Côte d'Ivoire | Tagged , | Leave a comment

“This is a Circus” – Technical Difficulties Undermine ICC Prosecutor Interviews

Posted on July 30, 2020 by Mark Kersten

Internet connectivity around the globe (Image: Max776/Bigstock)

Access to technology is unevenly distributed within and between countries, privileging some over others. That was on full display during live-streamed interviews with candidates vying to be the next Prosecutor of the International Criminal Court (ICC).

On several occasions, Susan Okalany’s connection to the internet failed. Okalany is the only woman short-listed for the job. She is also only candidate based in Africa (the Nigerian candidate is based in the United States). Some might note that internet connections are notoriously poor in countries like Uganda. And sure, that is true. We know that. The Assembly of States Parties of the ICC, which organized this event, knows that. The ICC knows that. The international community, however one might define it, knows that. That widespread, collective knowledge didn’t stop Okalany from being put at a distinct disadvantage during the proceedings.

None of this is new. The inequality experienced by individuals and communities with uneven internet access is often referred to as the global digital divide. The United Nations Conference on Trade and Development (UNCTAD) has warned that inequality will be exacerbated by the prevalence of digital platforms. Others have pointed out that the digital divide and, specifically, unequal internet access risks deepening inequality both domestically and internationally. According to UNCTAD, out of the box thinking to address the divide is needed.

In this context, it is worrying that the technical issues were not effectively addressed prior to the interviews. While Okalany impressed with her perseverance and calm, at one point, after the connection failed multiple times, Okalany rightly exclaimed: “this is a circus”.

To be clear: I do not know what went wrong. I do not know who, if anyone, didn’t do enough to ensure that Okalany had what she needed to participate fully in the proceedings. I do not know what other methods of live-streaming were considered or whether organizers offered Okalany the technology and support she needed to maintain a stable connection. While the interview was stopped at some point so that Okalany’s connection could be repaired, I do not know why it then continued without her able to participate fully.

I do hope that these questions are answered in the coming days, because it is abundantly clear: somewhere along the line, something or someone failed Okalany. It is not good enough to say, “that’s just how it is; everyone has internet problems these days.”

One possible retort to this issue that should be immediately dispelled is that providing Okalany with the technological means to participate fully in the interviews would have demonstrated bias towards her. There are surely ways to loan out the necessary technical resources for candidates who are disadvantaged by no fault of their own. More to the point, not doing so biases the interviews against Okalany and for the other three candidates. I am also quite sure that none of the other candidates would have protested because the live-streaming issues didn’t just hurt Okalany, but all of the candidates as well as the process. Continue reading →

Posted in Assembly of States Parties, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Next ICC Prosecutor | Tagged | 2 Comments

Voices for International Justice, a Video Gallery for International Justice Day

Posted on July 17, 2020 by Mark Kersten

Voices for International Justice (Image: Kris Kotarski and Christine Cheung / Wayamo)

Today marks the twenty-second anniversary of the adoption of the Rome Statue of the International Criminal Court. But this International Justice Day is like no other. With the coronavirus pandemic ongoing, the global justice community cannot come together to mark the occasion. International has ground to a virtual standstill. Economies around the world are battered.

Still, perpetrators of mass atrocities and human rights violations are undeterred. The demand for accountability for international crimes has not abated.

Colleagues at Wayamo Foundation and I therefore wanted to mark the occasion of this International Justice Day with a special event, a video gallery featuring luminaries around the world reflecting on the achievements, challenges, opportunities facing international justice. Voices for International Justice features practitioners, academics, diplomats, journalists, and human rights advocates. Speakers include Navi Pillay, Betty Murungi, Dapo Akande, Silvia Fernandez, Christian Wenaweser, Alex Whiting, Mark Drumbl, Lorraine Smith van Lin, Shehzad Charania, Thierry Cruvellier, and Amanda Ghahremani, and Christine Alai.

They cover a diversity of issues that extend to the challenges facing the ICC, but also focus on subjects beyond that: international law and Covid-19; Black Lives Matter and the project of international criminal law; surprising transitional justice successes around the globe; the needs of victims and survivors; holding  perpetrators of sexual and gender based violence to account; state cooperation in international criminal justice; corporate accountability for human rights violations; and much more.

Check out all of the videos here and, from everyone at the Wayamo Foundation, have a happy International Justice Day!

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Writing the Jurisprudence of Gender-Based Persecution: Al Hassan on Trial at the ICC

Posted on July 15, 2020 by Mark Kersten

Georgiana Epure joins JiC for this guest post on the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud and the prospects of adjudicating gender-based persecution at the International Criminal Court (ICC). Georgiana is a fellow at the Open Society Justice Initiative. She holds an MPhil in Politics and International Relations from the University of Cambridge and an MA in Interdisciplinary Social Research from the University of Leeds. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organisation.

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud during an appearance before the ICC in July 2019. (Photo: ICC)

Yesterday marked the opening of the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second Malian jihadist to appear before the International Criminal Court (ICC). After the ICC Prosecutor’s first investigation into the Mali situation pioneered the first conviction of destruction of religious and historical buildings as a war crime, the Court is now writing the jurisprudence on gender-based persecution as a crime against humanity. Whilst persecution on grounds of ethnicity and religion has been subject to extensive prosecutorial attention, gender-based persecution has never been adjudicated before.

Al Hassan’s alleged crimes in Mali

 One reason why the trial of Al Hassan is significant is because it concerns crimes that the Al Mahdi case left unaddressed. Al Hassan is facing charges of crimes against humanity and war crimes, including torture, persecution on religious and gender grounds, rape, sexual slavery, forced marriages, sentencing without due process, and attacking religious buildings.

The alleged crimes took place between April 2012 – January 2013. During this period, two Islamist extremist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM), occupied Timbuktu and the surrounding region in the north of Mali. Al Hassan was a de facto head of the Islamic police – one of the institutions through which the armed groups sought to impose their ideology and vision of religion. He was in charge of enforcing the new rules of a harsh version of Sharia law, by taking part in police patrols, arresting and detaining civilians, implementing sanctions imposed by the Islamic court, and participating in the policy of forced marriages. Considering that, so far, the ICC has handed down only one conviction of sexual and gender-based violence, the expectations regarding Al Hassan’s trial are high.

Gender-based persecution before the ICC

Apart from the Al Hassan case and the initial charge of gender-based persecution in the 2010 case of Callixte Mbarushimana, which was ultimately left out at the confirmation of charges stage, this crime was included in only one other investigation. The Prosecutor’s 2017 request for the authorisation of an investigation in Afghanistan – authorised by the Appeals Chamber earlier this year – alleges that, pursuant to the ideology of the Taliban, women and girls were targeted “to prevent them from studying,teaching, working or participating in public affairs, through intimidation, death threats, abductions and killings”. Due to the climate of fear, women and girls stopped working or going to school (para.116).

According to the 2018 Preliminary Examinations Report (para.225), the Office of the Prosecutor (OTP) is also considering evidence of gender-based persecution committed by Boko Haram and national security forces against female and male victims in Nigeria. The OTP found reasons to believe that the targeting of girls for attending public schools, the use of girls as suicide bombers, the targeting of males to fight for Boko Haram, and the selective execution of men of fighting age constitute acts of persecution on gender grounds.

What’s in a name?

The Rome Statute was the first international tribunal statute to include persecution on the grounds of gender as a crime against humanity. It was also the first statute to define the term ‘gender’. According to Article 7(3), gender refers to “the two sexes, male and female, within the context of society”. The definition has been criticised for conflating notions of gender and sex and for risking reinforcing binary notions of gender. As one commentator put it, the definition “awkwardly sits somewhere between a sociological and biological conception of gender […] but this constructive ambiguity also leaves room for creative lawyering”. Ultimately, it leaves much of the interpretation to the judges. Continue reading →

Posted in Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Gender, Guest Posts, Mali, Sexual and Gender Based Violence, Sexual Violence | Tagged , | 2 Comments

Long live the Empire? Seeking justice and the case of the Chagos Islands

Posted on July 2, 2020 by Mark Kersten

Thamil Venthan Ananthavinayagan joins JiC for this post on the Chagos Island and the self-determination of its people. Thamil, LLM. (Maastricht University), PhD (NUI Galway), is a lecturer at Griffith College Dublin since September 2017. Prior to this lectureship at GCD, he worked as a Fellow and research assistant to the Irish Centre for Human Rights in Galway, Ireland.

The Chagos Islands (Photo: Al Jazeera)

Colonialism has not ended – this is the brief, yet accurate description of the current state of affairs in light of the aftermath to the International Court of Justice (ICJ) Chagos Advisory Opinion (AO).  In summary, the Court held that the separation of the Chagos archipelago from the British colony of Mauritius contravenes international norms, in particular the right to self-determination. More precisely, the ICJ enunciated:

(…) 177. The Court having found that the decolonisation of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, it follows that the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State. It is an unlawful act of a continuing character which arose as a result of the separation of the Chagos Archipelago from Mauritius.

178. Accordingly, the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonisation of its territory in a manner consistent with the right of peoples to self- determination. (…)

Despite this, the United Kingdom has failed to meet the obligations to complete the unfinished  business of decolonisation with a deadline which was set for the 22nd of November 2019, with the Foreign Office (and hence her Majesty’s Government) quietly rejecting to abide by the AO of the ICJ.  The Chagos case reveals the weaknesses of an AO – despite the moral impetus, international law is eviscerated of its force due to prevalent hegemony of powerful states, here with the existence of the United States and the United Kingdom. Postcolonial international law continues to be manipulated to serve the interests of the powerful few. It is simply a sequel to colonial international law. Second, the Chagos case reveals a far more important aspect in postcoloniality: justice cannot be achieved as long as imperialism lives an afterlife in the shadows of colonialism. To this end, this article will consider the following questions: what is the role of justice in postcoloniality? More precisely: what is the liberating force of justice in postcoloniality?

A harrowing monument of the Empire in the Indian Ocean:

 The Court is the gravity centre for international justice within the United Nations systems, its prime judicial organ. However, the Chagos case has amplified the limits of international justice when faced with imperialism, which requires the heritage of its Empire to thrive and aggravate its power. French imperial theorist Jules Harmand held once 

there exists a hierarchy of races and civilisations, and (…) we belong to the superior race and civilisation (…) The basic legitimation of conquest over native peoples is the conviction of our superiority, not merely our mechanical, economic, and military superiority, but our moral superiority. Our dignity rests on that quality, and it underlies our right to direct the rest of humanity. Material power is nothing but a means to that end.

Insofar as British government holds that ‘the UK has no doubt about our sovereignty over British Indian Ocean Territory (BIOT), which has been under continuous British sovereignty since 1814’ , it begs the questions: what kind of sovereignty replaced the existing one? The Chagos Islands tale is the evidence that colonialism is not only existing, but reproducing and reinforcing the structures of Western imperialism in the present. For China Mieville, by contrast, colonisation was to be understood not so much in terms of its content, but in terms of the imperialism of its form:

Colonialism is in the very form, the structure of international law itself, predicated on global trade between inherently unequal polities, with unequal coercive violence implied in the very commodity form. This unequal coercion is what forces particular content into the legal form.

 It would go beyond the scope of this article to give a full picture of the colonial injustice the Chagossians had to endure (and a snapshot would not give any justice to the suffering). But it is necessary to give an idea of the origins of this suffering. Continue reading →

Posted in Chagos Islands, Guest Posts, International Court of Justice (ICJ), United Kingdom | Tagged | 1 Comment

Short-List for the Next ICC Prosecutor is Out!

Posted on June 30, 2020 by Mark Kersten

The International Criminal Court (Photo: SHL)

So, there you have it.

After months of waiting in anticipation, we now know that one of the following four individuals will become the next chief Prosecutor of the International Criminal Court (ICC):

  • Morris A. Anyah (Nigeria), currently a trial attorney in the Law Office of Morris A. Anyah, LLC in Chicago, Illinois, U.S.A.
  • Fergal Gaynor (Ireland), currently Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia;
  • Susan Okalany (Uganda), currently a judge of the High Court of Uganda and a judge in the International Criminal Division of that Court; and
  • Richard Roy (Canada), currently Senior General Counsel with the Public Prosecutor Service of Canada.

The immediate reaction to the list has been shock. That largely has to do with the fact that some international criminal law heavy-hitters were rumoured to be in the running – and they’re not on the list. As Patryk Labuda states, “none of the favourites made the cut”. Indeed, many qualified candidates applied for the post, undoubtedly making the process a better and richer one, but did not make the final cut.

The list is undoubtedly far from what the rumour mill and speculation would have led one to believe. Few of the so-called ‘favourites’ made the list, some for good reason. In the coming days and weeks one hot-top to be debated is whether the ICC needs fresh blood. For those that believe it does, this list may be a starting point.

Alexandra Lily Kather has said that the list had “no alarms” but some positive surprises. For ML Simms, it seems that the list brought together “fairly neutral candidates, persons without a huge footprint” in the international criminal law world.

Others may feel that while the Court could have used new blood, some of the candidates are simply too distant from the international criminal law world. That can come with its own downsides. Owiso Owiso observes, for example, that lesser known candidates will have their work cut out form them: “they probably have to ‘introduce’ themselves to a very unforgiving, impatient and insular [international criminal law] world. I don’t envy them.”

For yet others, their favoured candidate’s absence from the list will surely be a source of consternation.

The regional, gender, and legal system breakdown of applications for the ICC Prosecutor job can be seen in the chart below, and indicate that the largest group pf applications came from Africa and the ‘Western European and others group’. Just under 71% of applicants were male.

The list will no doubt take some digesting. In full disclosure, I only know anything substantive about the work of two of the four candidates, Gaynor and Okalany, although I know a bit about Mr. Roy’s work in Canada, on the SNC Lavalin case, about which I have previously written. A full report (update: now available here) on their qualifications and expertise will be forthcoming, permitting greater understanding of their backgrounds and abilities. On Twitter, Kevin Jon Heller has already begun posting some of that information. Hopefully the candidates will also engage transparently with civil society actors and speak to their abilities and visions for the ICC too (see below). Continue reading →

Posted in ICC Prosecutor, Next ICC Prosecutor, Next Prosecutor Symposium | 1 Comment