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

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

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

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

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

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

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

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

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

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

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

Posted on September 26, 2020 by Mark Kersten

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

(Photo: SHL Architects)

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

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

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

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

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

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

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Continue reading →

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

New Paper: This Mass Atrocity was Brought to You by the Ivory Trade: Linking Transnational and International Crimes

Posted on September 23, 2020 by Mark Kersten

Kenya Wildlife Service (KWS) officials display recovered elephants tusks and illegally held firearms (Photo: Reuters)

Yesterday, I posted remarks that I gave to the UN Fact-Finding Mission on Libya with respect to the nexus between international crimes and transnational organized crimes.  My talk was based on ongoing research I have been doing on the subject and a paper that I have been writing for (admittedly) far too long, entitled: This Mass Atrocity was Brought to You by the Ivory Trade: Linking Transnational and International Crimes. It has been in draft form for longer than I’d like to admit, but I hope to finish it in the near future. If you have any comments, please do share – they will help cross the finish line!

The full draft is available here. For those unable to access a copy, feel free to reach out and I will send an PDF version. Here is the gist of the article and its argument:

A supermodel. A Hollywood actress. A Nobel Peace Prize winner. A President-turned-warlord. This is not the beginning of some crude joke or the cast of a TMZ rumour. Rather, it is a list of characters who found themselves together at a party in 1997 which, almost fifteen years after it took place, was examined in what became perhaps the single most dramatic event in the trial of former Liberian President Charles Taylor at the Special Court for Sierra Leone (SCSL). According to Mia Farrow (the Hollywood actress), Naomi Campbell (the supermodel) had accepted ‘blood diamonds’ from Taylor (the President-turned-warlord) during a party hosted by Nobel Peace Prize laureate Nelson Mandela.

Politically, it is possible that the cash-strapped SCSL sought the star-power of such characters in order to raise its profile and receive the funding it needed to conclude proceedings. In the courtroom, however, the prosecution used the testimony of Campbell to demonstrate that Taylor had used illegally traded diamonds to fuel the civil war in Sierra Leone. According to Owen Bowcott: “The diamond donation goes to the heart of the main allegation against Taylor: that he organised and sustained the Revolutionary United Front’s (RUF) invasion of Sierra Leone, trading weapons shipments for looted diamonds.” Still, among the eleven charges of war crimes, crimes against humanity and “other serious violations of international humanitarian law” levied against Taylor, none pertained to the Liberian President’s alleged and direct involvement in transnational and organized crimes. While the illicit trade of diamonds to fuel civil war in Sierra Leone was a key element of the prosecution’s narrative and Taylor was eventually sentenced to fifty years in prison for aiding and abetting war crimes in Sierra Leone, little was achieved in terms of establishing clear links between the perpetration of transnational and organized crimes to international core crimes.

Indeed, such links have been, and continue to be, generally under-examined both in legal practice as well as scholarship on criminal behaviour in war. This paper seeks to fill this lacuna by examining the linkages between these two sets of crimes, exploring a number of conflicts where both crime bases have been concomitantly perpetrated in what will be referred to as a international-transnational crime complex. The paper critically assesses possible means of effectively linking the investigation and prosecution of such crime complexes…

… The paper is organized into four sections. Eschewing a legal analysis, the paper first explores theoretical and analytical contributions from conflict and peace studies. This is done in order to demonstrate how contemporary thinking on the nature of violent political conflict since the end of the Cold War has long identified the propensity of transnational and organized crimes being perpetrated concomitantly with international crimes. This section also explores the question of which crime-type comes first. In other words, do transnational and organized crimes precede or succeed international crimes — or vice versa? It is argued that this is not, in fact, a helpful question. Rather than theorizing the perpetration of these two sets of crimes in a linear fashion, it is more useful to study their interaction within an international-transnational crime complex.

In the second section, the paper examines four conflicts in which the perpetration of both sets of crimes have been a prominent expression of political violence: ethnic cleansing and organ trafficking in the war in Kosovo; the diamond trade and war crimes in the civil war in Sierra Leone; ivory poaching and the war between the Lord’s Resistance Army and the Government of Uganda in central and eastern Africa; and the trade in oil in the war against ISIS, otherwise referred to as the Islamic State or Daesh. These cases were chosen in order to demonstrate the varied manner in which transnational and organized crimes and international crimes interact. These cases also demonstrate that these crime bases are linked irrespective of geographic location or the type of actors involved — governments, rebel groups, paramilitaries, terrorist organizations, and humanitarian actors. In section three, legal and political responses available to relevant actors to link the prosecution and prevention of TOCs and international crimes are explored. The section first examines whether the International Criminal Court (ICC) should play a role in linking the prosecution of TOCs with the international crimes under its jurisdiction. It then explores the potential and limitations of domestic crime divisions, such as those in Uganda and Kenya, which have jurisdiction over both sets of crimes to link the investigation and prosecution of both sets of crimes. The paper concludes by reflecting on further collaborative research between scholars and practitioners of international criminal law / justice and transnational organized crimes.

Thank you as always for reading and please don’t hesitate to get in touch with any comments (or just words of encouragement!).

Posted in Academic Articles / Books, International Criminal Court (ICC), International Criminal Justice, Islamic State, Kosovo, Kosovo Liberation Army (KLA), northern Uganda, Sierra Leone, Transnational Organized Crime | Leave a comment

A Nexus for Justice: Investigating the Intersection of International Crimes and Transnational Organized Crimes

Posted on September 22, 2020 by Mark Kersten

The following are remarks that I gave on 22 September 2020 to the Fact-Finding Mission (FFM) on Libya, which was established by the United Nations Human Rights Council in June of this year. The talk focused on the need to investigate the nexus between international crimes (crimes against humanity, war crimes, genocide) and transnational organized crimes (human trafficking, extortion, drug trafficking, etc.). I have a forthcoming paper on the subject. For more information on the Mission and its mandate, please see here. 

(Photo: UNSMIL)

It is an honour to speak with you on behalf of the Wayamo Foundation, an NGO that works on advocating for global justice and building the capacity of national authorities to investigate and prosecute international and transnational organized crimes.

I would like to use my time to stress the importance of an issue which we believe continues to receive too little attention, namely the interaction and intersection between the perpetration of international crimes and the commission of transnational organized crimes in Libya (and beyond).

Wherever we look at conflicts over the last thirty years, we can see that the same perpetrators of atrocities have also perpetrated transnational organized crimes.

This is now a common thread of political conflicts, the blurring between organized criminality, atrocity, and warfare.

To name but a few examples:

  • Liberian President Charles Taylor aided and abetted crimes against humanity while engaging in the plunder and illegal sale of diamonds in Sierra Leone.
  • In East Africa, the Lord’s Resistance Army survives to perpetrate atrocities for another day by trading Ivory through Sudan.
  • Members of the Kosovo Liberation Army have been accused of not only committing counter-ethnic cleansing against the Serb population, but of human organ harvesting and trafficking.
  • In Syria, the Islamic State not only perpetrated war crimes, crimes against humanity, and genocide, but sustained itself through illegal markets, selling oil through Turkey and cultural artifacts around the globe.

Libya tragically follows this same pattern. It seems almost too obvious to say: Those involved in the perpetration of crimes against humanity and war crimes are likewise engaged in complex networks of organized crime.

The evidence is overwhelming. And yet too little effort is dedicated to acknowledging the fact that transnational organized crimes and international crimes are fundamentally linked and that, therefore, the investigation and prosecution of these two crime sets should be linked as well.

Libyans experience transnational organized crimes via extortion, arms trafficking, and drug trafficking.

But the most obvious and well-known expression of the intersection between transnational organized crimes and international crimes relates to human trafficking and the concomitant crimes committed against migrants by branches of the Libyan government, including the coast guard, and various militias.

These crimes are well documented.

The Prosecutor of the International Criminal Court, Fatou Bensouda, has repeatedly declared that her office would investigate the trafficking of persons in Libya and that “crimes, including killings, rapes and torture, are alleged to be common place in Libya’s holding centres” where those who are trafficked often toil for months, even years.

We now know that such camps, including Tajoura, have been targeted in bombing campaigns that are likely to constitute war crimes. Continue reading →

Posted in Europe, European Union (EU), Human Trafficking, Libya, Libya and the ICC, Transnational Organized Crime, United Nations | 3 Comments

Trump’s sanctions against International Criminal Court staff aren’t just ‘bad’, they’re Racist

Posted on September 10, 2020 by Mark Kersten

(Photo: Eduardo Munoz Alvarez/Getty Images)

The presidency of Donald Trump has been defined by the perpetuation and perpetration of systemic racism. Most observers focus on evidence of Trump’s racism within the domestic realm – and there is heaps of evidence to draw upon. Trump’s outright refusal to admonish the right-wing, racist activists in Kenosha, Wisconsin, whilst supporting the actions of police who brutalize racialized communities is just the most recent example of his disdain for social justice and its advocates. But more and more evidence makes clear that the racist lens through which the Trump administration views America is also true of how it views the world. Case in point: sanctions levied against African staff at the International Criminal Court (ICC).

Those with longer political memories and who successfully resist the temptation to be distracted by Washington’s most recent racially charged comments or policies, will recall that since the earliest days of his administration, President Trump proudly put in place travel restrictions, decried immigrants who came from “shithole countries”, and locked up children in cages along America’s southern border. All of this was evidence enough: if you weren’t American in the way that Trump and his sycophants want Americans to look like, there was an aggressively discriminatory policy tailor-made, just for you.

Much of this has been justified via an alleged need to ‘protect America’. Trump’s United States projects a fragile image. It needs protection, it seems to suggest, from Mexicans, Africans, people from the Middle East, the ‘radical left’; from the Black Lives Matter movement, Indigenous Lives Matter, and so on. A racially harmonious America or more equal and just world, in this context, is itself deemed a threat to the well-being of all Americans.

As part of this incessant need to protect America, the Trump administration has also set its eyes out on implementing coercive measures against international civil servants who dare to dedicate their professional lives to achieving justice for mass atrocities irrespective of who commits them or how much power they have. It is not a stretch of the imagination to suggest that, in the White House’s estimation, the pursuit of justice for alleged torture and related crimes in Afghanistan is a greater nuisance than the real threat caused to the lives of Americans by the COVID-19 pandemic. Continue reading →

Posted in Black Lives Matter, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, United States | Tagged | 3 Comments

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