“It is a good thing that we don’t know.” — An Interview with Bekim Blakaj on the Travails of Transitional Justice in Kosovo

Aidan Hehir joins JiC once again with this interview of Bekim Blakaj on the trials and tribulations facing Transitional Justice in Kosovo. Aidan is a Reader in International Relations at the University of Westminster. He has previously written for JiC on the new Kosovo hybrid tribunal.

(Photo: ScrapedTV)

While academics, NGOs and governments have repeatedly extolled the virtues of reconciliation and transitional justice, actually implementing policies and procedures has often proved very challenging; this has been particularly the case in the former Yugoslavia. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established to prosecute those responsible for the horrific carnage and violence which engulfed Yugoslavia in the early 1990s. In tandem with this juridical approach to dealing with the internecine violence which scared the region, various transitional justice initiatives aimed at fostering inter-community reconciliation were also launched, the most notable being the regional commission for the establishment of facts about war crimes and other serious violations of human rights, known as RECOM.

Yet, the reluctance of Yugoslavia’s various successor state governments to engage with, and support, RECOM’s efforts, coupled with societal apathy – and at times open hostility – towards the very idea of reconciliation and accountability, have contrived to undermine the organization’s work. In spite of the various obstacles they face and their limited achievements to date, transitional justice organisations aimed at promoting reconciliation continue their work throughout the former Yugoslavia; once such organisation linked to RECOM is the Humanitarian Law Centre Kosovo.

Kosovo Specialist Chambers 

Since its establishment in 1997, The Humanitarian Law Centre Kosovo has collected an impressive amount of detailed data on people killed, displaced and still missing in Kosovo. The organization is in the process of making this data available online, and has to date published a number of  studies reflecting on past violence, including a “Memory Book”. While the majority of the victims of violence in Kosovo were Albanians targeted by Serbian forces, the organisation has also sought to highlight the plight of the minority communities who were targeted in particular after the conclusion of NATO’s intervention which routed Serbian forces in June 1999. In keeping with the broader trend relating to RECOM’s work, his aspect of The Humanitarian Law Centre Kosovo’s work has received little governmental support and frequently encountered opposition from within Kosovo’s majority Albanian population.

Efforts to deal with past violence in Kosovo have received renewed importance in recent years with the establishment of the “Kosovo Specialist Chambers”. Based in The Hague, this hybrid tribunal is mandated to prosecute crimes allegedly committed by the Kosovo Liberation Army (KLA) between 1998 and 2000. While the new court has yet to issue any indictments, it has already stoked controversy and hostility amongst the Albanian population; the KLA are widely perceived as heroes in Kosovo, and the official narrative promoted since NATO’s intervention has, unsurprisingly, presented the Serbs as the aggressors. By challenging this narrative, the Specialist Chambers run the risk of generating both societal discontent and instability in Kosovo, a country already reeling from persistent misrule, a contested international status, and deep economic malaise.

Given the imminence of the Specialist Chambers’ proceedings, the work of The Humanitarian Law Centre Kosovo has arguably never been so important. I met with Bekim Blakaj, Executive Director, in Pristina on the 18th July to discuss the organisation’s work and the likely impact of the Specialist Chambers.

How does your organisation work and what are your key objectives?

We are not funded by any government as we want to avoid any potential for governments to influence our agenda and our work. This also helps our credibility with the non-Albanian communities in Kosovo. In the past, other organisations that engaged in this work, here and elsewhere in the region, were supported by governments and they tended to become biased.

Essentially, we want Albanians to have empathy with Serb victims, and we have previously achieved this. There have been eleven forums on transitional justice held across the former Yugoslavia, including here in Kosovo. Each one had public hearings; half-day sessions which involved the victims talking in front of over 400 people. Of course, it was often hard to organise; people were fearful of the reactions they would get. Naturally, Serbs were worried about speaking in Pristina. But nonetheless, in October 2008, it went ahead and it was amazing. People supported the victims and many cried. When they are face to face, human beings have empathy with victims whoever they are.

In this sense, any attempts to establish “facts” about the past are likely to cause controversy; have there been any negative reactions to your work?

We did have some bad experiences. Associations of the families of the missing were set up after the war. Unfortunately, some of these became political and many were not staffed by people with relatives who were actually missing. They were not interested in our project and were more one-sided. Also, in general these initiatives are difficult to undertake as participants and organisers are often seen as “traitors” by both sides.  Continue reading

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Posted in Guest Posts, ICTY, Interview, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Serbia, Transitional Justice | Tagged | 1 Comment

Call for Papers! Hybrid Justice – Building Resilience After Conflict

The following is a call for papers for a special issue on hybrid courts, edited by Kirsten Ainley and myself, as part of our ongoing project examining the use, role, and impact of hybrid tribunals.

One of the most dramatic shifts in international politics in the last thirty years has been the increase in the use of international or internationalised criminal justice mechanisms in post-conflict states. Such mechanisms are intended not just to provide accountability, but also to underwrite stable and resilient peace. Early mechanisms included criminal tribunals established under the auspices of the UN Security Council for the former Yugoslavia and Rwanda, and ‘hybrid’ criminal mechanisms for East Timor, Sierra Leone, Iraq, Cambodia, Bosnia and Lebanon. These hybrids featured varying combinations of international and domestic staff, operative law, structure, financing and rules of procedure. The establishment of the International Criminal Court (ICC) was expected to make hybrids redundant, but we have seen a recent resurgence of hybrids – in Senegal, Kosovo, Central African Republic and South Sudan; and proposed for Colombia, DRC, Syria, Sri Lanka, Ukraine and ISIS. Yet, because hybrids were thought to be a relic of pre-ICC justice, there has been little academic research on their impact. In addition, there is demand from practitioners currently in the process of establishing hybrids for rigorous comparative work on past tribunals to contribute to our understanding of how to design such institutions to be resilient in themselves and to contribute to resilient societies.

The Call is for articles to be published as a special issue of a leading international law journal, as part of the Hybrid Justice project. Articles will compare and evaluate the internal resilience of hybrids, and their impact on external resilience. Internal resilience is understood as the extent to which the design of hybrid mechanisms enables them to function robustly and with legitimacy in the face of external pressures from donors, host states, actors which oppose the mechanism and other interested parties. External resilience is the extent to which hybrid mechanisms enable post-conflict states and societies to heal, reconcile, strengthen and address the root causes of prior conflict. Indicators of, and pathways to, internal and external resilience are contested in the current literature, and articles in this collection are likely to take different positions on what counts as resilience and the extent to which hybrids exhibit or contribute to it. Abstracts are welcome for articles focused on any of the hybrid mechanisms, but all papers must be comparative in some way rather than focused on a single mechanism.

Abstracts are also welcome for articles considering broader issues such as the reasons for the recent recurrence of hybrids; the relationship of hybrids to other transitional justice mechanisms, including the ICC; and the robustness of the evidence available on the impact of hybrids as a contribution to the wider ‘transitional justice impact’ literature. Authors are likely to come from a variety of disciplinary backgrounds.

To ensure a consistent and rigorous collection, all authors will be invited to receive feedback on their work at a workshop in London on 4th and 5th January 2018. Limited funding is available for travel and accommodation.

Timing:

  • By 30th Sept 2017: abstracts to be submitted to k.a.ainley@lse.ac.uk and mark.s.kersten@gmail.com.
  • By 22nd Dec 2017: full draft papers to be circulated
  • 4-5th Jan 2018: workshop to be held in London
  • End Feb 2018: final copy to be submitted, to be sent to peer review
  • July 2018: publication of Special Issue

Please also feel free to circulate this call among your networks, and let us know on k.a.ainley@lse.ac.ukand mark.s.kersten@gmail.com if you have any questions.

Posted in Academic Articles / Books, Hybrid Courts, Hybrid Tribunals | Leave a comment

Will the International Criminal Court’s latest target in Libya be brought to justice?

Mahmoud al-Werfalli (right) with LNA leader General Khalifa Haftar (Photo: The Libya Observer)

A version of this article was originally published at the Washington Post’s Monkey Cage website.

The International Criminal Court (ICC) has issued an arrest warrant for Libyan militant Mahmoud Mustafa Busayf al-Werfalli. The court claims that Werfalli — who operates under the Libyan National Army (LNA) — committed the war crime of murder over a series of brutal executions. With so many deserving perpetrators around the world, why go after Werfalli and what might this mean for Libya and the ICC itself?

The ICC has sought to address atrocities in Libya since the U.N. Security Council referred the country to the court in 2011. That includes its ongoing and tumultuous struggle to prosecute Colonel Muammar Gaddafi’s son, Saif al-Islam. But in those six years not one of the ICC’s five targets in Libya has ever faced judges in The Hague.

Under current chief prosecutor Fatou Bensouda, however, the ICC is increasingly opportunistic in its approach. Rather than targeting the most responsible perpetrators of international crimes, the court increasingly issues arrest warrants under circumstances the prosecutor believes there to be a high probability that suspects will be surrendered.

In Mali, Bensouda indicted Ahmad al-Faqi al-Mahdi for the war crime of destroying UNESCO-protected heritage sites in Timbuktu. When the warrant was issued, Mahdi was already in a Niger prison. Unusually for ICC targets, it took just days from the court issuing an arrest warrant to al-Mahdi standing before judges in The Hague. This seems to be the logic behind the targeting of Werfalli.

The LNA’s potential response

The self-styled LNA, for which Werfalli fought, is “a coalition of army units, ex-revolutionary groups and tribal militias” based in Eastern Libya that purports to combat Islamist terrorism. In May, following a series of brutal executions caught on film, LNA leader General Khalifa Haftar stood by his commander, rejecting Werfalli’s resignation and declaring that he was “one of the sincere fighters who has given a lot in the battlefields for years.”

The ICC prosecutor initially and secretly requested an arrest warrant for him on Aug. 1 and, according to the LNA, Werfalli was arrested, and investigations into his alleged crimes were launched, the very next day. While details remain sketchy, the proximity of these events is too close to be coincidental.

The LNA has three options: 1) to genuinely investigate and prosecute al-Werfalli and concomitantly challenge the admissibility of the case at the ICC; 2) give only the appearance of a genuine investigation of al-Werfalli with little or no punishment; or 3) surrender al-Werfalli to the ICC.

In response to the ICC’s actions, a LNA official said, “[w]e announce our readiness to cooperate with you [the ICC] in informing you of the result and course of the judicial case.” Neither the LNA, nor its supporters, have any intention of surrendering al-Werfalli to the ICC. But it remains to be seen whether they will genuinely investigate and prosecute Werfalli or simply run a sham probe into his alleged crimes.

Undermining victors justice

Some see the move against Werfalli as significant in part because it breaks with a controversial pattern of ICC interventions. The ICC generally pursues only one side of a conflict — rarely both. When the court initially intervened in Libya in 2011, it singularly targeted officials from the Gaddafi regime, overlooking or actively ignoring a litany of opposition atrocities. As a result, many subsequently criticized the court for practicing one-sided justice and entrenching impunity in order to curry favor for anti-Gaddafi forces and U.N. Security Council member-states. Continue reading

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Libyan National Army, Mahmoud al-Werfalli, Qatar | Tagged | 1 Comment

New Paper Alert! Casting a Larger Shadow – Pre-Meditated Madness, the International Criminal Court, and Preliminary Examinations”

US soldiers on patrol in Afghanistan (Photo: Global Research)

Attention among observers and scholars of international criminal justice has increasingly focused on what happens before the International Criminal Court (ICC) intervenes in a situation and issues arrest warrants for perpetrators of international crimes. Prior to the ICC opening an official investigation, the Office of the Prosecutor must conduct a so-called “preliminary examination” to determine whether a full-out intervention is justified. Despite growing scrutiny, the practices encompassed within the preliminary examination stage of ICC interventions remain under-examined and under-theorized.

In this context, I drafted a paper last year, one that I hope will be published soon, entitled “Casting a Larger Shadow – Pre-Meditated Madness, the International Criminal Court, and Preliminary Examinations“. The article promotes a view of ICC preliminary examinations as a unique and strategic moment in which the Court can and should attempt to affect state behaviour, namely through the deterrence of atrocities as well as by galvanizing states to pursue justice and accountability for international crimes themselves. Of course, no single approach should be applied across all situations under preliminary examination. The focus of the piece is on particularly hard cases where major powers interests are involved – such as Afghanistan, where American forces may be the ICC’s cross-hairs.

I have posted the full draft article online. The introduction follows below. As always, please do share your views!

It has been repeatedly put forward that that the International Criminal Court (ICC) has a “shadow”. This notion has been regularly and increasingly invoked in scholarship on the ICC. In their 2012 article entitled Kenya in the Shadow of the ICC, Chandra Lekha Sriram and Stephen Brown pondered “whether the shadow of the ICC is likely to deter future atrocities.” Kevin Jon Heller has offered an analysis of the “shadow side of complementarity” — the effects of the Court “on the likelihood that defendants will receive due process in national proceedings.” Louise Chappell et al have described what they see as the institution’s “gender justice comple- mentarity shadow”, an effect they argue results from the lack of linkage between the gender jus- tice provisions under the Rome Statute and the Court’s foundational principle of complementarity. Even ICC Chief Prosecutor Fatou Bensouda has spoken of the Court’s shadow, which she describes as its “capacity to set precedents that would meet the global challenges of our times” and something that “should be considered as the most important impact of the court.”

This article is likewise concerned with the shadow cast by the ICC — but from an altogether different angle. The focus of this paper is on identifying and exploring novel strategies at the pre- liminary examination stage of ICC interventions, strategies which could enlarge the ICC’s shadow. Above all, it is argued that the Office of the Prosecutor (OTP) should consider deploying more intrepid strategies at the preliminary examination phase in order to positively influence the behaviour of the Court’s potential targets. But what is meant by the ICC’s “shadow”?

Given the diverse use of the term “shadow” in international criminal law and justice scholarship, it is worthwhile briefly outlining what this paper means by it. “Shadow” here is taken to entail the indirect impression and impact that the ICC has on various actors and, in particular, on those whose behaviour the Court seeks to affect through its actions and decisions. These effects and impressions can exist at any time and at any stage of the Court’s interventions — including prior to the opening of an official investigation.

Continue reading

Posted in Afghanistan, Deterrence, International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, United States | 1 Comment

Good Politics or Bad Law? The International Criminal Court, Bashir, and South Africa

Presidents Zuma and al-Bashir meet in Khartoum in 2015 (Photo: DoC)

It came as quite the surprise. To be sure, observers of South Africa’s relationship with the International Criminal Court (ICC) fully expected that the Court’s Judges would eventually find that Pretoria had failed to cooperate in arresting and surrendering Sudanese President Omar al-Bashir to The Hague when he visited in 2015. But few could have guessed that the Court’s Judges would decide that no further action was necessary, that South Africa would not be referred to either the United Nations Security Council nor the ICC’s Assembly of States Parties (ASP) for additional sanction.

Some view this decision as a betrayal of justice, a finding of criminality without punishment, and a legally precarious proposition. The most cogent and eloquent critic of the ruling, Angela Mudukuti, has argued that “it may do the ICC more harm than good as far as being taken seriously as a legal institution”. In this post, I will argue that the ICC’s decision was, in fact, good politics and law, and that it remains unclear, at best, whether it will hurt the institution.

Firstly, the core of South Africa’s concerns with the ICC remains unsettled. This is far too often and too easily overlooked. Human rights and international justice advocates rightly want to see al-Bashir held to account for atrocities committed in Darfur. However, while South Africa clearly had obligations to arrest Bashir (which was made clear in successive court rulings in the country), it is not clear whether ICC member-states have an obligation to do away with the immunity of heads of state of non-member states like al-Bashir of Sudan. Even when the UN Security Council is involved and refers a non-member state of the ICC to the Court, the legal consequences of such a referral are debatable. This debate is often caricatured as one between proponents of justice and advocates of impunity. But the legal scholars and diplomats concerned with the legal status of head of state immunity of non-member states are not endorsing impunity. They are recognizing a reality: that states and courts have been purposefully ambivalent on this issue and it thus remains unsettled. It does not push the accountability ball forward to neglect this fact. It would be better, as that some observers (including myself) have previously argued, to refer this issue to the International Court of Justice.

Second, a concern among critics of the ICC’s ruling is that a “message has been sent to all states parties: non-compliance has no consequences.” But is it really the case that South Africa has faced no consequences? While South Africa has not been punished or sanctioned by the ICC, it has faced numerous consequences, both domestically and internationally as a result of its decision to host al-Bashir. Pretoria has had to explain itself to the international community and to its own citizens on innumerable occasions and do so very publicly. It has also had to muster legal reasons for its actions.

Indeed, an all-too-apparent consequence is that South Africa has engaged the Court on the issue of head of state immunity. The form and substance of that engagement will never satisfy those who only see one outcome as appropriate: full legal compliance from Pretoria, punishment of the South African government, and the surrender of al-Bashir to the ICC. And fair enough. But what South Africa has done is, nonetheless, engage to the ICC throughout this process. As Allan Ngari rightfully points out: “South Africa has engaged constructively with the ICC, proposing procedures that states parties should take when consulting with the court on cooperation requests.” Moreover, part of the reasoning of the Judges in not referring South Africa to the ASP or Security Council was based on their acknowledgement of South Africa’s positive engagement with the Court. That can’t be said for many, indeed any, member-states that have previously hosted al-Bashir.  Continue reading

Posted in African Union (AU), Darfur, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 1 Comment

Non-Compliance But No Referral – The ICC Muddies the Waters

Angela Mudukuti joins us for this take on the decision by the International Criminal Court (ICC) regarding South Africa’s failure to arrest and surrender sudanese President Omar al-Bashir to the ICC. Angela Mudukuti is an international criminal justice lawyer with experience in advocacy and strategic litigation gained from her time in civil society, the ICC, and in private practice. The piece was written in Angela’s personal capacity and does not necessarily reflect the views of the Wayamo Foundation. Look out for a response to this piece tomorrow – and, as always, share your own thoughts!

South African President Jacob Zuma with his Sudanese counterpart Omar al-Bashir (Photo: Mohamed Nureldin Abdallah / Reuters)

Last week, the judges at the International Criminal Court (ICC) handed down their long-awaited judgment regarding South Africa’s failure to arrest Sudanese President Omar al-Bashir. The Court was tasked with determining whether South Africa failed to comply with its obligations and, in the case that it had, if a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the United Nations Security Council (UNSC) was warranted. The ICC found that South Africa had indeed failed to comply with its obligations, yet curiously, the judges failed to make a referral to the ASP or the UNSC. Not only is this a significant departure from previous rulings on non-compliance with respect to Bashir’s presence in signatory states, but it may do the ICC more harm than good as far as being taken seriously as a legal institution.

Bashir’s June 2015 arrival in South Africa for the 25th African Union Summit is where South Africa’s woes began. Legally obligated in terms of domestic and international law to arrest Bashir, the South African government chose instead to welcome him.  Not only was this a breach of domestic and international law as well as the beginning of what many referred to as a constitutional crisis, it was also a significant departure from South Africa’s previous stance on Bashir’s presence in the country.

In 2009 Bashir was invited to the inauguration of President Jacob Zuma. He was told behind closed doors that should he arrive, he would be immediately arrested and subsequently surrendered to The Hague. The then director general of the Department of International Relations and Cooperation made this very clear in a public statement released by the government.

Unfortunately, in 2015, the government chose to disregard its domestic and international obligations. The South Africa based non-governmental organisation, Southern Africa Litigation Centre (SALC) took action to address this blatant disregard for the rule of law (as SALC’s international criminal justice lawyer at the time, this case was my responsibility). They approached the domestic courts seeking the implementation of the arrest warrant. The High Court began by issuing an order to prevent Bashir from leaving the country and later, it ruled that failure to arrest Bashir was unlawful. The Supreme Court of Appeal made a similar finding.

Having lost the battle at the domestic level, South Africa still had to face the proverbial music before the Pre-Trial Chamber on 7 April 2017.

A non-compliance hearing of this nature, though unprecedented, provided a vital opportunity for the South African government to defend its actions. In addition to questioning the Article 97 consultation process, the South African government submitted that the ICC’s previous judgments in this regard were inconsistent and that head of state immunity in terms of customary international law prevented South Africa from arresting Bashir.   Continue reading

Posted in Darfur, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 10 Comments

Symposium: Doing Justice to Truth in International Criminal Courts and Tribunals

Today marks the launch of a symposium that I have convened with Jakob Holtermann on Humanity’s blog platform. Entitled Doing Justice to Truth in International Criminal Courts and Tribunals, the symposium should be of interest to readers of Justice in Conflict. Below is the introduction to our opening post, which should give you an idea of the main themes that will be examined:

Continue reading

Posted in Archives, Historical Justice, ICTY, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Justice, Legacy, Nuremberg Trials, Special Court for SIerra Leone (SCSL), Symposium, Transitional Justice, Uncategorized | Tagged , , | Leave a comment