Cutting Through the Noise – The African Group for Justice and Accountability on the ICC-Africa Relationship

(Photo: ICFR)

(Photo: ICFR)

The relationship between the International Criminal Court (ICC) and African states is coming under renewed scrutiny at the 27th African Union Summit, currently taking place in Kigali, Rwanda. The outcome of the summit for ICC-African relations will be determined over the coming weeks, but various civil society actors and pro-ICC advocates have been doing whatever they can to improve the relationship between the Court and continent. The Africa Group for Justice and Accountability (AGJA)* is one of those groups. Over the weekend, the AGJA published an important and balanced op-ed in The Guardian (as well as other news outlets) on its view of the ICC-Africa relationship. The op-ed acknowledges the leadership of African states on matters of justice for mass atrocities and insists that all sides can do a better job and need to take responsibility for accountability on the continent. Moreover, it calls those African states who insist they support the ICC to stand up and speak up. For those interested, here’s a snippet:

In popular accounts, Africa and the international criminal court are pitted against each other. The ICC is derided as being “biased” against Africa, ignorant of the attitudes and desires of Africans, even neocolonial.

In reality, the relationship suffers from misinformation and misunderstandings. Many parties share responsibility for this. Some African leaders have, on occasion, decried the ICC in order to protect themselves from the court’s scrutiny.

Equally, the ICC has not been able to communicate its message effectively on the continent, leaving it susceptible to misrepresentation by those who seek to undermine the institution.

Some insist that the ICC has no place in Africa and that African states must withdraw from the court because the institution has intervened primarily in African conflicts, while situations outside the continent are not investigated. However, it makes little sense to suggest that because justice cannot be served everywhere, justice should not be served anywhere. Such an attitude insults victims and survivors alike.

Why has the ICC focused its investigations almost exclusively on Africa? Well, can anyone argue that the situations in Africa where the court has opened official investigations – northern Uganda, the Democratic Republic of the Congo, Central African Republic, Darfur, Sudan, Kenya,Libya, Ivory Coast and Mali – are not deserving of an ICC intervention?

Never before has so much been done on the African continent to achieve accountability for international crimes. We welcome the trial of Hissène Habré in Senegal, Central African Republic’s plan to set up a special criminal court, South Sudan’s proposed hybrid tribunal, and the expansion of the jurisdiction of the African Court on Human and Peoples’ Rights to include international crimes.

While none is perfect in itself, these and other recent developments point to a continent with the potential to take a leadership role in international criminal justice, if its leaders keep their pledges.

The ICC must do a better job of responding to overt attempts to politicise its mandate. It must not only do justice, but be seen to be doing justice by being more effective, robust and responsive.

African states are friends of the ICC. African states have continued to refer situations to the ICC. Africans hold the most senior positions in the court. African states fund the institution.

Many African officials and diplomats say they have no intention of leaving the Rome statute system. We call on these governments to speak loudly and courageously in the fight against impunity – both in Africa and beyond.

You can read the whole op-ed, here.

* Full Disclosure: I am the Research Director of the Wayamo Foundation, which acts as the secretariat for the AGJA.

Posted in Africa, Africa Group for Justice and Accountability (AGJA), African Union (AU), International Criminal Court (ICC) | 1 Comment

Everything You Ever Wanted to Know About the International Criminal Court, But Were Too Afraid to Ask

ICC complementarityPerhaps you’re a journalist with an unfortunate penchant for referring to the ICC as “the World Court” (sorry, that’s the ICJ) or suggesting that it will hear cases related to decades-ago atrocities (nope, temporal jurisdiction is a thing). Or maybe you’re a student with a term paper to write on how international institutions affect conflict dynamics (nobody knows). Possibly you just wish you could impress your friends with snarky complementarity-themed jokes (which everyone definitely, definitely loves).

If any of these sound like you, the International Center for Transitional Justice has your back. Their new “Handbook on Complementarity” provides, as advertised, a comprehensive (>100 pages!) overview of the role of the ICC and domestic courts in prosecuting atrocity crimes. It’s also a surprisingly good read.

Written by Paul Seils, the Handbook goes ALL IN on the nitty gritty of how complementarity is designed to operate and how the ICC has implemented it so far. Even for relatively well-informed court-watchers, there’s new information. I learned, for instance, that although the prosecutor ordinarily has to wait until the investigation phase to take testimony, in “exceptional cases” where future access to a witness is threatened, she can request authorization from the Pre-Trial Chamber to take testimony during the preliminary examination. Neat! (That’s Rule 47 of the Rules of Procedure and Evidence for those of you following along at home.)

I also discovered that I have been promulgating an inadequate definition of complementarity. (Sorry everyone!) Check it:

Screen Shot 2016-07-14 at 5.02.38 PMIn fact, per the Trial Chamber in the Katanga case, the question of whether a case is admissible before the ICC requires a two-stage inquiry: The initial question is whether a national jurisdiction is pursuing the same case as the ICC. It’s only if the answer is yes that the issue of “willing and able” comes up. So I guess we’re all going to have to rewrite our lectures.

A couple of broader themes worth highlighting emerge from this bonanza of information:

  1. If you think “is a national jurisdiction pursuing the same case as the ICC” sounds like a simple question, you’re very, very wrong. The meaning of “case” in this context turns out to be a bit of a fraught question, and to have kind of a weird, Heisenberg Uncertainty Principle flavor to it. As a definitional matter, for something to be the same case, it must cover the same suspects, incidents, and conduct. But those elements can remain in flux through several rounds of ICC proceedings. Consequently, a state may be disadvantaged by challenging admissibility before charges are confirmed.
  2. One of the effects of the court’s relative youth, along with its resource and jurisdictional constraints, is that anomalous cases can have outsize precedential effect. (And frankly, they’re all pretty anomalous at this point.) With such a limited docket, every ruling provides an important signal about what the court might do in the future. So, for example: “Many people might feel that if the Colombian peace process successfully establishes a justice program with very light sentences that other countries will be able to cite it as a precedent in the future, thus undermining the aims of the ICC.” I am one of these people, and I suspect this is exactly what would happen.

Continue reading

Posted in Complementarity, International Criminal Court (ICC), International Criminal Justice | 3 Comments

Updated: What We Know (and Don’t Know) About Saif Gaddafi’s ‘Release’

Saif al-Islam Gaddafi, attends a trial hearing in a courtroom in Zintan in May 2014 (Photo: Reuters / Stringer)

Saif al-Islam Gaddafi, attends a trial hearing in a courtroom in Zintan in May 2014 (Photo: Reuters / Stringer)

Where in the world is Saif al-Islam Gaddafi? Rumours about his whereabouts and the circumstances he faces have been swirling for weeks. Saif, the former heir-apparent to his father’s rule over Libya, faces an indictment at the International Criminal Court (ICC) for inciting violence during the 2011 Libyan civil war. But he hasn’t been heard from in months. Until last week — well, sort of. 

Last month, lawyers purporting to represent Saif held a press conference in The Hague demanding that the ICC drop its case against their client. They insisted that Saif couldn’t be put on trial at the Court because he had already been prosecuted — and sentenced to death — in a Libyan court; the principle of double jeopardy, they argued, precluded another trial at the ICC. But there’s a glitch: it remains unclear that the lawyers, which include highly respected defence counsel at the ICC, Karim Khan, have spoken with Saif, have met him, or have power of attorney to represent Saif before the Court. But then, yesterday, a bombshell report was published in France 24 suggesting that Saif has been granted freedom for the last three months:

The former Libyan dictator’s second son “was given his liberty on April 12, 2016”, lawyer Karim Khan said Wednesday, adding that Saif al-Islam was released under an amnesty previously declared by the Tobruk parlement, the internationally recognised authority that governed part of Libya before the national unity government of Fayez al-Sarraj took over in March. According to the lawyer, this release was made “in accordance with (Libyan) law”.

Khan declined to say whether he had spoken to his client, saying only that he “is well and safe and in Libya”.

Marcel Ceccaldi, another lawyer claiming to represent Saif with Khan, has claimed to have spoken with Saif (although it’s not clear when) and insists he is not in detention in Zintan. In another twist to this curious story, Ceccaldi is close with far-right French politician Jean-Marie Le Pen. He claims that Saif is out of prison. Ceccaldi added that Saif has told him he wants to “contribute to the political unification of Libya” and the “fight against terrorism” in Libya.

If true, this would be an astounding development. Not only would this mean that Saif has been “free” for three months but that he — unlike the vast majority of other senior Gaddafi loyalists — has been issued an amnesty. It would also show curious cooperation between the powerful Zintani militia and a government which it doesn’t recognize.

It also seems difficult to fathom that no one on the ground, i.e. in Libya itself, has been willing to report on his freedom or verify Saif’s status for this entire period of time. Indeed, if reports are true, for three months, every actor – the militia, the government, international actors on the ground, Saif’s apparent legal team, and Saif himself – has had an incentive to keep Saif’s circumstances quiet. And, in this scenario, it was an ICC lawyer who may or may not be in contact with Saif, who broke the news – and a three month old secret – to the world.

Some are now reporting this veil of silence is lifting. Stephen has said (on Twitter) that there may be a press conference in Tripoli as early as this evening regarding Saif’s situation. While it’s doubtful that Saif would be present, a press conference in Tripoli would be astounding in its own right.

Now, however, BBC has reported that senior Zintani officials have denied that Saif is free and questioned the motives of Khan in saying he was liberated:

This is a rumour that has been plaguing Zintan for months. This will not be the last time, I do not understand the motive of this lawyer.

Reuters has also reported that a military official in Zintan has denied Saif is free: “We deny that Saif Islam has been released,” the source said.

Still, there may not be much difference between saying that Saif has not been “released” and what exactly, others mean by Saif’s “liberty”. It seems impossible that Saif is able to do what he wants or that he is able to move freely. He is very likely still in Zintan. Had he moved anywhere else and managed to avoid being killed, he would have been recognized and his movements surely reported. Instead, the Zintani militia, which has held Saif in its custody since November 2011, has likely granted Saif some form of limited freedom. Perhaps he has a private home from which he can speak to members of his family; perhaps he can move around Zintan and its outskirts (although you’d think someone, in three months, would snap a cellphone pic if he was out-and-about); perhaps he can entertain some guests and has started a romantic relationship (Mary Fitzerald has tweeted that “in April a Zintani colonel claimed… [Saif] was more under ‘house arrest’ & had married, had child.” But much more “freedom” than that still makes little sense. Continue reading

Posted in Libya, Libya and the ICC, Uncategorized | Tagged | 4 Comments

Let’s Avoid Politicizing the Genocide Against Yazidis


Yazidi refugees present United Nations High Commissioner for Refugees Special Envoy Angelina Jolie with a banner as she arrived at a refugee camp in southern Turkey (Photo: Umit Bektas / Reuters)

There is no doubt that genocidal acts have been perpetrated against the Yazidi people by the Islamic State (ISIS). A recent report by United Nations Commission of Inquiry on Syria has given credence to political declarations in the United States, European Union, United Kingdom, and elsewhere that ISIS is waging a campaign to exterminate the Yazidis. ISIS’s particular brand of violent and radical Islam is unambivalent in its zeal to destroy groups that stand in its way of building an Islamic caliphate. Not only has ISIS committed unspeakable atrocities against Yazidi people, but it has clearly articulated its intent to exterminate them. But not every way of recognizing a genocide is equally appropriate. Over the last week, Canada witnessed one of the most unhelpful approaches towards recognizing that ISIS is genocidal. To avoid such fiascos in the future, the Canadian government — as well as other states seeking a role in mass atrocity prevention and prosecution — should establish its own International Justice Ambassador.

It is worth reviewing what transpired in Ottawa two weeks ago. The Conservative Party, backed by the New Democrats, introduced a motion in the House of Commons to officially recognize that ISIS’s violence against the Yazidis, Christians, and Shias in northern Iraq constituted genocide. The Conservatives provided no evidence for such a finding. They provided no definition of genocide. They referred to no reports nor any investigations. Their ultimate claim, it seems, was to ensure that Canada did what the UK and the US Secretary of State John Kerry had already done— i.e. give ISIS’ crimes the “g-word” treatment, and call their violence a genocide.

After an acrimonious and dramatic debate, the Liberals, with the exception of four MPs, rejected the Conservative motion. The Liberals (rightly) insisted that the House of Commons was not the appropriate place to determine whether the crimes amounted to genocide. In doing so, they did what UK Prime Minister David Cameron had advised British officials to do when he exclaimed that “Not only are the courts best placed to judge criminal matters but their impartiality also ensures the protection of the UK government from the politicisation and controversies that often attach themselves to the question of genocide.”

Remarkably, the very same Conservatives who put forward the bill guaranteed that the vote would fail. A few minutes of research would have revealed that the UN Commission of Inquiry in Syria was on the verge of announcing that the atrocities amounted to genocide. Moreover, any due diligence (i.e. vote counting) would have made clear that the Conservatives would lose the vote with the motion worded as it was. They proceeded anyways. To top it off, at the same time, the Conservatives provided no clear sense of what a finding of genocide would mean or require of Canada. Would they call the UN Security Council to refer Syria and Iraq to the International Criminal Court (ICC)? It seems unlikely, given their mistrust of international criminal justice and the fact that, under former Prime Minister Stephen Harper, the Conservatives were the last Western government to put their support behind such a referral, one which would have allowed the ICC to investigate and prosecute allegations of genocide against the Yazidis.

The obvious conclusion — and a rather grotesque one — is that the Conservatives wanted the vote to fail in order to gain some political brownie points at the expense of the Liberals — and, sadly, the victims of ISIS atrocities. Not to be outdone, however, when they lost the vote, the Conservative MPs grovelled at the bottom of the political barrel, posting a poll on Twitter to determine whether ISIS crimes amounted to genocide.

The very same week and following the UN Commission of Inquiry report (which reported that ISIS was committing genocide against Yazidis but not other groups, including Christian minorities), Canadian Minister of Foreign Affairs Stéphane Dion told the House that the government would recognize that the atrocities being committed by ISIS constituted a genocide. A Liberal motion introduced in the House also stated that “the government of Canada [would] continue its efforts to have these atrocities properly investigated and, where appropriate, referred to the International Criminal Court to formally determine the existence of genocide and to bring the perpetrators of these crimes to justice”. Canada is now leading diplomatic efforts to push the United Nations Security Council to mandate a commission to investigate ISIS crimes.   Continue reading

Posted in Canada, Commission for International Justice and Accountability (CIJA), Genocide, International Criminal Court (ICC), International Justice Ambassador, Iraq, ISIS, Islamic State, Syria, Terrorism, UN Commission of Inquiry on Syria, United Kingdom, United Nations, United States, Yazidi Genocide | Tagged | 8 Comments

It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times

One of the communications staff suspended by Kenyan President Uhuru Kenyatta is now threatening to sue the New York Times (Photo: Tiksa Negeri / Reuters)

One of the communications staff suspended by Kenyan President Uhuru Kenyatta is now threatening to sue the New York Times (Photo: Tiksa Negeri / Reuters)

The Kenya – New York Times saga continues. For those of who haven’t had a chance to follow, here’s a recap:

  • The New York Times published a scathing article and critique of the International Criminal Court’s intervention in Kenya (see here for some highlights and my thoughts on the piece). It was particularly critical of the role of former ICC Chief Prosecutor Luis Moreno-Ocampo and the cases against senior members of the Kenyan government — cases which, as readers will know, ultimately all collapsed.
  • The office of Kenyan President Uhuru Kenyatta (who was among those charged by the ICC but eventually had his case dismissed), released a statement in which it claimed that described the New York Times’ article as “vindictive and unprofessional”. It further asserted that the author, James Verini, did not reach out to the government for its side of the story.
  • In response, the New York Times published a statement in the Kenyan media, defending its story, refusing to apologize, and insisting that the government was given every opportunity to contribute to the piece — but declined or ignored requests to do so.
  • While President Kenyatta is on an official visit to Botswana, he “suspended” four members of his communications staff, apparently as a result of their initial response to the New York Times’ piece. Dennis Itumbi, one of the suspended members of Kenyatta’s communications staff, tweeted that they “were fired because they told off a paper that claimed President Uhuru bribed witnesses.”

That brings us to today. Kenyan media is reporting that Itumbi is threatening to sue the New York Times. Itumbi, Kenyatta’s director of digital innovations and diaspora communications, was named in Verini’s account as someone who had been “investigated (though not charged)” by the ICC over alleged witness interference. In its defence of Verini’s exposé, the New York Times insisted that “Itumbi’s investigation by the International Criminal Court is a matter of public record. As Verini’s article notes, he was not charged.” Now, according The Star, Itumbi is seeking legal action against the Times:

Dennis Itumbi has given the New York Times a seven-day ultimatum for an apology over remarks in an article about the President’s ICC case…

…He asked the media house to apologise or face a defamation suit over making references to him in the article, saying he was not interviewed.

In a letter to the media house on Thursday, Itumbi’s lawyers said the “offending words” were false since their client was not interrogated on any subject.

“You did not contact our client to comment on the issue contrary to your assertions. Your publication was therefore malicious and part of your sustained policy and your self-serving vendetta,” said lawyer Moses Chelanga.

Chelanga said the publication was calculated to disparage and injure Itumbi’s reputation and cause him scandal, odium and contempt in his personal capacity.

He said the Times portrayed Itumbi as one who interfered with the ICC witnesses protection programme.

He also said the media house made it seem the former director “exposed ICC witnesses; killed, abducted and enforced disappearance of ICC witnesses; bribed ICC witnesses; interfered with administration of justice; sabotaged the situation of the Republic of Kenya in the ICC [and] is corrupt.”

The lawyer said his client’s reputation and status as a long-standing public servant have been seriously damaged.

“He has suffered considerable distress and embarrassment to himself, his career, his calling, and his family,” said Chelanga.

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Posted in Kenya, Kenya and the ICC | Tagged , | 5 Comments

As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff


Kenyan President Uhuru Kenyatta

The controversy between the Kenyan government and the New York Times over a hard-hitting story on the International Criminal Court’s record in Kenya has shown no signs of abating. Late last week, the office of Kenyan President slammed the Times for its piece, questioning the newspaper’s place in the world media, suggesting the piece relied on faulty sources, and claiming its author hadn’t contacted the Kenyan government for their views on the ICC’s intervention in Kenya. Yesterday, the Times stood by James Verini’s article and insisted that the author had relied on good sources and done everything possible to include the Kenyan government’s side of the story. It rightly refused to apologize.

Today, it was revealed that Kenya’s response to the Times article has created sharp divisions within parts of the government. According to local media, Kenyan President Uhuru Kenyatta took the dramatic step of suspending four members of his Presidential Strategic Communications Unit (PSCU). From one report:

Four directors of the Presidential Strategic Communications Unit (PSCU) were on Wednesday suspended from office, over what sources said was “conflicting messaging.”

Those affected are Eric Ng’eno, Munyori Buku, Dennis Itumbi and James Kinyua.

At the heart of the latest spat is a story emanating from the New York Times on the International Criminal Court.

The NY Times gave details of lengthy correspondence with State House on the matter, but a statement ostensibly released by some of the PSCU Directors appeared to question the integrity of the NY Times.

A rebuttal sent out to media on official email appeared to suggest that the NY Times never made attempt to seek comment from State House, yet the newspaper has documented a series of correspondence from officials in the Presidency.

Perhaps this is a case of staff wanted to project an anti-West, anti-ICC, anti-media zeal to impress their boss? Or perhaps there’s some greater aim to this rather bizarre decision. Whatever the case, it’s an embarrassment to Kenya’s presidential office.

Questions remain, including whether Kenyatta ever approved of his own office’s statement on the Times article and, if not, how it ended up being released and published by the Kenyan media. Kenyatta himself is currently in the midst of a three-day visit to Botswana, the most vocal supporter of the ICC among African states.

It remains to be seen if there is any more fall-out from this controversy. If there is, I will continue cover it at JiC.

This story has involved a number of remarkable, controversial, and dramatic turns. For more, see:

A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’
A Comment In Defence of Luis Moreno-Ocampo
Kenya’s President Rips into New York Times Article Largely Favourable to Him
The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story
As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff
It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times

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The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story

Kenyan President Uhuru Kenyatta (Photo: Kenya Today)

Kenyan President Uhuru Kenyatta (Photo: Kenya Today)

It’s a fascinating story that, for whatever reason, simply won’t go away. Frankly, maybe it shouldn’t. The more this drags on, the more we learn about the International Criminal Court (ICC) and its intervention in Kenya as well as the mindset of Kenya’s political elite and the struggle to accurately cover accountability issues in the country.

To recap, the New York Times published James Verini’s scathing account of the International Criminal Court’s intervention in Kenya, focusing his critique on the stewardship of the Court’s first Prosecutor, Luis Moreno-Ocampo. Here at JiC, I added some thoughts on Verini’s hard-hitting and, in my view, accurate portrayal of Moreno-Ocampo’s tenure and, over at Wronging Rights, Kate Cronin-Furman also shared her impressions. Some, including Wanda Boker, responded in defence of Moreno-Ocampo and addressed structural issues (see also the responses from Kevin Jon Heller of SOAS and Bill Pace of the Coalition for the International Criminal Court). In a bizarre move, the rationale for which was cogently surmised in a comment by Ken Flottman, the office of Kenya’s President Uhuru Kenyatta, ripped into the New York Times for its “steady descent into the murky, rancid morass of gutter press and has abandoned all pretence of journalistic decency in pursuit of the Prosecutor’s agenda.” It also blamed the publication for not contacting the President’s office and relying on what it saw as faulty sources. Today, the Times shot back. Here’s its response to Kenyatta:

In a June 24 statement sent to Kenyan journalists, the communications office of President Uhuru Kenyatta of Kenya took issue with an article by James Verini in the June 26 issue of The New York Times Magazine, appearing in print with the headline ‘Trial and Error’ and published on The New York Times’s website on June 22 as ‘ The Prosecutor and the President ‘.

The article concerns the International Criminal Court’s failed attempt to prosecute Kenyatta on charges related to the violence that followed Kenya’s 2007 presidential election.

In the statement, the office suggested that the author of the article had not contacted Kenyatta’s office for comment. This is untrue.

Verini attempted on numerous occasions over the course of months to solicit comment from Kenyatta’s office through official communications channels.

Verini’s efforts included numerous emails, phone calls and text messages to Kenyatta’s chief and deputy spokesmen and two other aides.

On two occasions, representatives of Kenyatta’s office briefly answered or returned phone calls and suggested the possibility of further response, and on one occasion they scheduled a meeting to discuss the article with Verini, but the meeting was canceled, and responses to emails, phone calls and text messages eventually ceased entirely.

Throughout this process, Kenyatta’s representatives were informed of the subject of the article and did not at any point address it.

A fact-checker for The Times Magazine also emailed Kenyatta’s chief spokesman and received no response.

The statement also took issue with the article’s reference to Dennis Itumbi, the director of digital innovations and diaspora communications in Kenyatta’s office.

Itumbi’s investigation by the International Criminal Court is a matter of public record. As Verini’s article notes, he was not charged.

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