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

Posted on August 5, 2020 by Mark Kersten

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

(Image from The Female Lead)

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

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

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

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

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

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

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

Posted on August 3, 2020 by Mark Kersten

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

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

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

African Regional Human Rights System and Accountability

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

 “Optional” Accountability

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

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

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

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

Posted on July 30, 2020 by Mark Kersten

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

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

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

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

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

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

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

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

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

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

Posted on July 17, 2020 by Mark Kersten

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

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

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

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

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

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

Posted in International Justice Day, Wayamo Foundation | Tagged , , , , , , , , , , , | Leave a comment

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

Posted on July 15, 2020 by Mark Kersten

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

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

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

Al Hassan’s alleged crimes in Mali

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

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

Gender-based persecution before the ICC

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

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

What’s in a name?

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

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

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

Posted on July 2, 2020 by Mark Kersten

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

The Chagos Islands (Photo: Al Jazeera)

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

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

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

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

A harrowing monument of the Empire in the Indian Ocean:

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

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

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

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

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

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

Short-List for the Next ICC Prosecutor is Out!

Posted on June 30, 2020 by Mark Kersten

The International Criminal Court (Photo: SHL)

So, there you have it.

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

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

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

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

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

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

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

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

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

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

It’s About Time: Calling on the ICC investigate Atrocities Perpetrated by former DRC President Kabila

Posted on June 29, 2020 by Mark Kersten

An election poster featuring Joseph Kabila (Photo: Nic Bothma/EPA)

It is no secret: the International Criminal Court (ICC) struggles to bring to justice perpetrators from all sides of the conflicts that it intervenes in. That is true for many of the situations under ICC investigation. In Uganda, only members of the Lord’s Resistance Army have been targeted by the ICC. In Cote d’Ivoire, only members of the former government have been prosecuted by the Court. This one-sided justice is also apparent in the Democratic Republic of Congo (DRC).

The DRC was one of the first situations where the ICC opened an investigation. Yet fifteen years later and despite ongoing atrocities and subsequent warnings from the ICC Prosecutor, only a handful of individuals have been brought to justice. None have been members of the regime of former President Joseph Kabila. That must change.

I am proud to announce that the Canadian Partnership for International Justice (CPIJ), where I am a collaborator, has decided to challenge the asymmetric approach to justice in the DRC and to call on the ICC Prosecutor to investigate atrocities committed by Kabila and his agents. The CPIJ’s full letter (in both English and French) to the Prosecutor can be found here. Here is an excerpt:

Re: Atrocities committed in the Democratic Republic of Congo by former President Joseph Kabila Dear Prosecutor Bensouda:

We write to urge the Office of the Prosecutor (OTP) to investigate former President Joseph Kabila and senior officials from his government for the commission of crimes against humanity in the Democratic Republic of Congo (DRC). Ongoing impunity for these crimes has contributed to a climate of fear and an alarming escalation of political violence in the DRC, including in Ituri, amid rumours that President Kabila is planning to return to power.

Although the OTP has previously investigated and prosecuted a handful of perpetrators of international crimes in the DRC, these cases have been limited to members of rebel and opposition groups. Regrettably, the OTP has yet to seriously address the role and responsibility of President Kabila and relevant government officials in the commission of politically motivated violence including killings, arbitrary detentions, torture, sexual violence, enforced disappearances, and persecution.

We would like to draw your attention to three instances of bloodshed and brutality that exemplify the nature and gravity of crimes attributable to President Kabila and his senior military and political officers.

….

Last year, the OTP did not undertake an investigative mission to the DRC in the face of mounting evidence that national courts are either unwilling or unable to genuinely investigate and prosecute the culprits of these crimes. 24 Former President Kabila and his senior officials still control much of the government in the DRC, including a highly partisan judiciary.25 In 2018, President Kabila further entrenched his impunity by passing a decree that effectively immunises former heads of state from criminal prosecution.26 Conversely, independent judges, prosecutors, and human rights advocates who courageously pursue truth-seeking and accountability regularly face imprisonment, torture, harassment, death threats, and even assassinations.27

Continue reading →

Posted in Canada, Democratic Republic of Congo, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged , | Leave a comment

Crossing the Line – Trump Approves Sanctions against Staff at the ICC

Posted on June 18, 2020 by Mark Kersten

A version of this article was originally published at the CBC.

Canadians attacked by US actions abroad need more than 21 seconds of silence. (Photo: Getty / NPR)

Now, it’s personal.

Washington has long opposed its citizens being investigated for alleged war crimes and crimes against humanity by international tribunals. But the decision of President Donald Trump to issue an executive order authorizing economic sanctions against staff at the International Criminal Court (ICC) is a reckless and irresponsible escalation that deserves a strong response.

This is no longer just a political tiff between Washington and The Hague-based Court. Canadians are being targeted with coercive measures in an act of outright hostility towards civil servants and diplomats.

The Canadian government must stand up to defend them.

Since the ICC’s creation, its relationship with the U.S. has been tumultuous. President Bill Clinton signed the Rome Statute of the ICC, but his successor George Bush “unsigned” it. The U.S. has never come close to becoming an ICC member state.

No American administration has ever accepted that the Court should be an independent institution, free from the political prerogatives of powerful states and the United Nations Security Council. This position has often translated into active hostility towards the ICC, with pressure exerted on states not to cooperate with the Court.

Even during the most productive years in the ICC-U.S. relationship, those under former President Barack Obama, the U.S. did not accept that the ICC could have jurisdiction over American citizens, and its support for the Court was piecemeal.

The relationship has reached new levels of toxicity under Trump.

In response to the ICC’s courage in standing up to U.S. bullying and investigating the alleged crimes of powerful states, Trump rolled out notoriously anti-ICC firebrand John Bolton in Sept. 2018 to declare that the ICC was “dead” to the United States. In April 2019, Secretary of State Mike Pompeo threatened sanctions against ICC staff, including chief Prosecutor Fatou Bensouda whose U.S. visa he revoked. He added Canadian Sam Sasan Shoamanesh, Chef de Cabinet to the Prosecutor of the International Criminal Court, as a possible target this past April.

Now Washington has taken issue, to put it lightly, with the ICC’s decision in March to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan, including by American armed forces and the Central Intelligence Agency. For the first time in history, accusations of atrocities committed by U.S. citizens abroad are being investigated by an international tribunal.

In response, the Trump administration has reacted bombastically, with Pompeo last week calling the ICC a “kangaroo court,” among other pejorative terms. Continue reading →

Posted in Canada, Donald Trump, International Criminal Court (ICC), International Criminal Justice, Sanctions | Tagged | 3 Comments

Struggling with Empathy – Acknowledging the Humanity of Defendants in International Criminal Trials

Posted on June 17, 2020 by Mark Kersten

Radhika Kapoor joins JiC for this guest-post on empathy and defendants at international tribunals. Radhika is a Harvard Kaufman Fellow at the Public International Law and Policy Group, Washington DC. She graduated from Harvard Law School’s Master of Laws Program in 2019, and is currently working on peace negotiations in Sudan and transitional justice in BangladeshThe views and opinions expressed in this article are those of the author and do not necessarily reflect those of her organization.

Viewers watch the trial of Slobodan Praljak (Photo: Reuters / Dado Ruvic)

Given the nebulous structure of the international criminal justice project and the uncertainty of its purpose, it is difficult to formulate a coherent framework to evaluate its efficacy or success. Does an international criminal tribunal intend to establish a historical record, to develop a means to deter potential war criminals from engaging in similarly pernicious acts, or to dampen recurrence rates?

While every one of these options merits lengthy analysis, here I examine one remarkable, albeit contested, function served by international criminal trials: that of humanizing the international criminal defendant. I also assess whether this may be useful in the context of understanding atrocity, transitioning to stability, and finding space for empathy.

Showcasing Humanity at International Criminal Courts

Watching the graphic documentary screened at Nuremberg to illustrate the horrific conditions of German concentration camps, Nazi defendants had varied reactions: while the New York Times recorded the prisoners as “the coolest and most collected spectators,” prison psychologist Gustave Gilbert remembered differently. Per his account in Nuremberg Diary, defendant Hjalmar Schacht refused to watch the film; Albert Speer looked sorrowful; Arthur Seyss-Inquart seemed impassive; Hans Frank was tearful. Gilbert’s insight into the defendants’ psychological states is illuminating, making the viewer realize that while each of these persons was implicated in a systematic policy of murderous criminality, they all nevertheless undertook vastly dissimilar mental journeys during the trial. It also raises questions about the capacity of humans to respond to public castigation: In such a situation, where the worst of one’s acts are revealed to the world – a moment which for some defendants possibly marked their first encounter with the ‘truth’ – would one show dignity, stoicism, or remorse?

Such glimpses into the humanity of the defendant are transformative for the viewer or reader: it precludes her from considering the defendant as a monolithic, one-note monster. This experience can be uncomfortable; there are few things as disconcerting as tempered hatred, or the sensation of lukewarm outrage against an evildoer. However, a confrontation with the humanity of the perpetrator holds tremendous significance.

First, criminal justice processes predicated upon rejecting the humanity of the accused can help perpetuate the precise animosities that they purport to curb; the institutionalized, egregious human rights abuse of suspected terrorists in Guantánamo Bay has become a “rallying point in jihadist propaganda.” Furthermore, dehumanization may have ripple effects, culminating in fear or otherization of an entire group for the actions – real or perceived – of a few. We may muse today, for instance, whether the mere fact of being Muslim plays a part in determining an individual’s susceptibility to detention on charges of extremism. In the 1930s, journalist Rebecca West lamented that every German man, woman and child had not been slaughtered after the first World War. (She argued later that she was capable of distinguishing between decent Germans and Nazis.) Some of these ideas continue to find resonance today, as evinced in the US President’s immigration policy, calling for a border wall on the basis that unregulated migrants brutally kill thousands of Americans, and deserve to be kept out at all costs. Here in India, the otherization of Indian Muslims in the form of generalized blame for the Covid-19 pandemic continues to fuel communal violence. Continue reading →

Posted in Defendants, Defense Counsel, Guest Posts, ICTY, International Criminal Justice, Nuremberg Trials | Tagged | 1 Comment