Time to Look in the Mirror: ICC Community in Need of Perspective

Posted on May 27, 2020 by Mark Kersten

Christopher “Kip” Hale joins JiC for this guest-post. Kip is an attorney specializing in atrocity crimes investigations and litigation. He has worked with the prosecution, defense, as well as judges at numerous international courts. Kip is currently a legal advisor to atrocity crimes investigations in conflict zones and was previously the Director of the American Bar Association’s (ABA) International Criminal Court Project. 

(Image: GetVoip)

It is a common refrain among International Criminal Court (ICC) observers that the Court always seems to be facing a crisis. Oftentimes, the Court is indeed in some degree of a “crisis”. Perhaps this can be chalked up to the nature of the field. After all, international criminal justice is no proverbial walk in the park, and those who profess to know better have seldom practiced in the field in any meaningful way. Other times, the so-called “crisis” is exaggerated.

Still, it cannot be denied that in 2020 and in the immediate years thereafter, the ICC is and will be in a period of transition. The ongoing Independent Experts Review mandated by the Assembly of States Parties will bring about extensive discussion on the performance of the Rome Statute system. Civil society and other external actors have already begun this discussion in full force. Look no further than the Justice in Conflict’s and Opinio Juris’ Symposium on the election of the next Prosecutor to show the intense interest that these subjects generate.

However, one critical component of evaluation and reasoned debate has been almost completely overlooked: us – ICC observers, commentators, stakeholders, and the larger engaged community outside of the Court. It is about time our community takes a long, hard look in the mirror. The ICC stakeholder community is not beyond reproach. Self-scrutiny among ICC commentators is much needed. Too often, we do more harm than we realize.

It is too unwieldy (and likely of little use) to identify the multiplicity of problematic tendencies that occur in the ICC engaged community. Rather, this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community. With that said, my experience investigating and litigating atrocity crimes cases in combination with work in the policymaking and strategic components of international criminal justice has put me face-to-face with both the great forces in this field as well as the deeply troubling ones.

Nevertheless, to help explain why self-scrutiny is so needed, let us begin with the obvious: bad faith actors. To say there are agenda-driven and unprincipled agents engaged in the field of international criminal justice often flabbergasts newcomers to the field. Some of these players have nefarious goals to undermine the Court for whatever reason, and deliberately engage in smear campaigns and creating false narratives. Others have personal ambition above all else. The only human rights they are interested in is their own – to wit, to advance their own ambitions and to be “seen” and heard. Sideline commentators are not immune from this malaise.

Then there are those well-intentioned actors who undoubtedly help the ICC and the field writ large, yet can also inadvertently and ironically frustrate the Court and its work. The road to hell, indeed, is paved with good intentions. We have seen it with our own two eyes. Commentators and entities that are “holier than thou”, make perfect the enemy of the good, and/or give off the air of “if only I [or we] were in charge.” Often, such commentary is devoid of any real insight or practical hands-on experience to constitute helpful criticism.

Let me be abundantly clear. The Court should not be impervious to honest, well-reflected constructive critiques about making improvements when and where necessary. Like any institution of import, the overall health of the Court and its work requires constructive and learned criticism from a range of stakeholders, and the Court should welcome it as it has and will continue by all indications. Without such engagement, the ICC would suffer, if not drift into irrelevance. In this respect, the intensity of interest in the ICC, and the negatives that come with it, are a good problem to have.

However, it is a two-way street. The Court and its crucial mandate also deserve the utmost seriousness from external commentators. While, of course, these people and entities are free to comment as they see fit, their freedom does not diminish the fact that such commentary can unduly undermine the reputation and credibility of the Court and distract from its important mission. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 4 Comments

Killing Soleimani: A View through the Prism of International Human Rights

Posted on May 25, 2020 by Mark Kersten

Marilena Stegbauer joins JiC for this guest-post on the killing of Qassim Soleimani. Marilena is a socio-legal researcher who strongly believes in promoting accountability for human rights violations worldwide. She holds an LL.M. in International Criminal Law (cum laude) from NUI Galway and a BA in Liberal Arts and Sciences from University College Freiburg.

The wreckage following a drone strike that killed Soleimani (Photo: BBC)

On 2 January 2020, Iranian General Qassim Soleimani was killed by a US drone strike on the outskirts of Baghdad international airport in Iraq. Next to him, at least seven others died. Soleimani was a military commander of the Quds Force, a military unit belonging to Iran’s Islamic Revolutionary Guard Corps specialising in unconventional warfare operations.

Since the attack, the US has faced criticism concerning the legality of the drone strike and questions as to whether it was a violation of International Human Rights Law (IHRL). UN Special Rapporteur on Extra-judicial Executions, Agnes Callamard scrutinised the US President’s justifications for the drone strike. Trump explained in a press conference that he ordered the strike against Soleimani to “end his reign of terror” before he could carry out any further attacks on US interests.

The UN Security Council emphasised that any measure taken by states to combat terrorism must comply with all obligations under International Law, in particular IHRL and International Humanitarian Law. States must thus respectboth bodies of law “whether at home or abroad and implicitly recognise that upholding human rights and protecting the public from terrorist acts are not antithetical, but rather complementary responsibilities of states.” The US is therefore required to comply with these provisions, de jure.

Article 3 of the Universal Declaration of Human Rights guarantees the right of every individual to life, liberty and security of his or her person. Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) reaffirms the right to life, stipulating that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Having ratified the ICCPR on 8 June 1992, the US is required to fully comply with the provisions in Article 6 (1) ICCPR.

Article 2 (1) ICCPR stipulates that State parties must respect and ensure the rights of all persons, enumerated in under Art. 6, who are found within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power of effective control. General Comment 36 (2008) to the ICCPR stipulates that this includes “respect and protect[ion of] the lives of individuals located in […] occupied territories, and in territories over which they have assumed an international obligation to apply the Covenant.”

As Callamard observes, “as a general principle, the intentional, premeditated killing of an individual […] be unlawful under IHRL.” There are exceptions to this rule, such as the death penalty which is permitted but only under stringent legal conditions as stipulated under Art. 6(2) ICCPR, and even then only for crimes of the most serious nature and in accordance with the law in force at the time the crime was committed.

Under the UN Basic Principles on the Use of Force and Firearms by Law Officials, the resort to intentional lethal use of force through drones against an individual “may only be made when strictly unavoidable in order to protect life.” This implies that the only situation in which the use of force would be permissible necessitates a scenario of “self-defence or defence of others against the imminent threat of death or serious injury […].” The phrasing of the law suggests a temporal concept of imminence, that is, “immediately antecedent, presently exercised or still enduring.”

Thus the armed attack which would render the right to self-defence legal under IHRL would only be applicable to situations in which either that “armed attack occurs,” echoing the standard set out in Article 51 of the United Nations Charter, or if the attack is immediately antecedent, that is, it is literally “about to occur” at any time from the moment it becomes apparent that such a threat exists. All other use of force responding to a peril that is not imminent, in the sense of proximity, would not fall under the exception.

Additionally, the use of force under IHRL is only permitted “to prevent the perpetration of a particularly serious crime involving great threat to life […].” The threat must be “realistic,” that is, it must be proven through the presentation of evidence pertaining to the incident. Shortly after the killing of Soleimani, Trump said that the reason for the attack on Soleimani was to end his “reign of terror… before he could carry out any further attacks on US interests.”

The US Department of Defense backed that narrative by claiming “that the US military had taken “decisive action” against the Iranian general at the request of Trump because he “was actively developing plans to attack American diplomats […] in Iraq.” However, no proof had been presented in support of these allegations, which leads to the conclusion that the attack had been a pre-emptive act of self-defence not meeting the legal threshold of an “imminent attack,” required by IHRL. Continue reading →

Posted in Drones, Guest Posts, International Law, Iran, Iraq, United States | Tagged , | 2 Comments

The Arrest of the Rwandan Genocide’s Bankroller is a Warning to Others, including Western States

Posted on May 21, 2020 by Mark Kersten

A version of the following article was originally published at the Toronto Star.

(I took the liberty of amending the MICT (formerly ICTR) website)

Time has a funny way of catching up with people.

Perhaps that thought crossed Félicien Kabuga’s mind when police raided an apartment on the outskirts of Paris this past weekend and arrested him. Kabuga had been on the run for over twenty-five years when he was finally detained on several charges relating to his role in 1994 the Rwandan Genocide. Kabuga is alleged to have bankrolled the Hutu extremists that killed some 800,000 Tutsis and moderate Hutus. He was also the founder and funder of Radio Mille Collines which broadcast the blood-thirsty propaganda which fueled the genocide.

Kabuga’s arrest shows that when states have the desire, those responsible for mass atrocities can be found and held to account. It also signals that the financers of international crimes are in the cross-hairs of courts and human rights advocates.

That Kabuga was finally tracked down serves as a warning to all those who aid, abet, fund or do business with despotic regimes. And not just in post-conflict and fragile states like Rwanda. With Kabuga’s arrest, the institutions of western democracies, including in Canada, are being put on notice.

Investigations into human rights violations are increasingly pointing the finger at companies and corporations. Committing atrocities doesn’t come cheap. It is often assumed that everything has to go wrong for something like a genocide to occur. In fact, everything has to go right for those with genocidal intent to succeed. It requires a supply chain, planning, implementation and, yes, a lot of money.

With some exceptions, like the Nazi industrialists who faced trial at Nuremberg following World War II, companies and countries that do business with or fund perpetrators of mass atrocities have historically escaped scrutiny. That is changing.

Today, business human rights is a booming field. Both international courts and domestic prosecutors have targeted companies for their complicity in atrocity crimes. The French oil giant Lafarge has been indicted for crimes against humanity and financing a terrorist enterprise in Syria. The chairman and chief executive officer of Swedish oil company Lundin has been charged with aiding and abetting crimes against humanity committed in South Sudan, where a United Nations Commission on Human Rights has reported that oil companies are complicit in mass atrocities. In Colombia, the International Criminal Court (ICC) is reportedly exploring an investigation of companies for their role in funding para-militaries during the country’s civil war with the FARC. Even seemingly innocuous entities like banana companies, such as Dole and Del Monte, have been accused of financing Colombia’s “death squads”. Continue reading →

Posted in Canada, Colombia, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Rwanda, Rwandan Genocide, Saudi Arabia | Tagged | 1 Comment

Capturing a Crisis: What lessons can we learn from the “overdocumentation” of the Rohingya crisis?

Posted on May 20, 2020 by Mark Kersten

Eva Buzo joins JiC for this guest post on the documentation of human rights abuses and atrocities committed against the Rohingya people. Eva is an Australian lawyer, and the Executive Director of Victim Advocates International. She lived in Cox’s Bazar between November 2017 and September 2019.

A Rohingya refugee camp in Cox Bazar, Bangladesh (Photo: RedR Australia)

The term ‘overdocumentation’ is frequently associated with the situation facing the Rohingya. As a humanitarian crisis that took place in a relatively accessible area to civil society and governmental organizations, groups from all over the world came to document the gross human rights violations that had occurred in northern Rakhine state and that led to the exodus of over 700,000 people from Myanmar to Cox’s Bazar, Bangladesh. This process of documentation occurred almost in real-time, as a steady stream of new arrivals into the camps in Bangladesh brought new stories of horror from events that were still unfolding.

But overdocumentation is not an accurate description of what happened. Today, a careful review of the masses of information gathered in 2017 and 2018 reveals gaps in the story. A victim interviewed by the Arakan Rohingya Society for Peace and Human Rights recounts,

‘When we were fleeing, we stayed in Ba Da Nar overnight. The town was empty and full of bodies.’

When Ba Da Nar is cross-referenced against the wealth of existing reports on crimes committed against Rohingya, there are no matches. In this supposed crisis of overdocumentation, how is it possible to find nothing about a town that was apparently was wiped out?

Commentary and discussions dedicated to gaps in the documentation of the Rohingya crisis have thus far focused on the form of the material collected, and the distinction between “human rights documentation” versus the collection of “evidence” for use in international criminal prosecution. However, when it comes to the Rohingya, there was a far more fundamental problem at play – the lack of coordination of evidence / documentation efforts.

In the scramble to piece together the scope and scale of the clearance operations against the Rohingya, the numerous groups who came to Cox’s Bazar neither coordinated in any meaningful sense, nor benefitted from each other’s knowledge. Unsurprisingly, this has led to significant duplication on one hand, and large gaps in the narrative of what happened in northern Rakhine state on the other. The fact that these gaps exist would certainly seem to weaken the position adopted by Myanmar’s in the December 2019 provisional measures hearing before the International Court of Justice that the number of 10,000 deaths was an “exaggeration” and could not constitute an attempt to destroy the Rohingya ethnic group. Regardless, effective documentation processes are important. The purpose of this article is to suggest why these gaps exist in relation to the Rohingya, and to suggest a path to a more effective and complete process in future situations of humanitarian crisis.

The Problem

The scene in Cox’s Bazar following the clearance operations of August 2017 was a crowded one. As the Rohingya fled across the border from Myanmar at a rate of up to 9,000 people per day, they were settled across 30 camps located between Kutapalong and Teknaf, 55 kilometres south. Almost 600,000 refugees, two-thirds of the total population in Bangladesh, were settled in “megacamp” in Kutapalong, the world’s most densely populated refugee camp. The camps are a labyrinth, with some inhabitants reporting that they were too afraid to leave their shelters in case they got lost and couldn’t find their way back.

In this environment, groups came to the camps to investigate and document the alleged atrocities on short-term missions that invariably lasted between 7 and 14 days. A quick scan of the “Methodology” section of some of the reports show that groups were often conducting between three and five interviews each day. These short-term “parachute” missions which aim to obtain as much information as possible as quickly as possible, seem to have been the only model used by the teams. This model gave rise to a series problems.

A) A small pool of “fixers”

Parachute missions don’t allow sufficient time for investigators to learn the lay of the land; they must hit the ground and start interviewing. To do this, they rely on “fixers”; people from within the affected community who connect alleged victims and investigators, and often act as translators.

It is a marked feature of the early reports on the Rohingya crisis that they discuss events in the same three to five areas. This is a result of the early groups using fixers drawn from the same small pool. Some of these fixers advertised their services on Twitter, others would wait at the airport at Cox’s Bazar and approach foreigners arriving and offer their services. For a daily fee of between $100-200, they would accompany the teams and take them to speak to victims. Continue reading →

Posted in Bangladesh, Burma/Myanmar, Guest Posts, Investigations, Rohingya | 2 Comments

We Must do Better: An Open Letter on Assessing Complaints of Misconduct Against Candidates for ICC Prosecutor

Posted on May 4, 2020 by Mark Kersten

Joining friends and colleagues in the international justice world, including our friends at Opinio Juris, I wanted to share this powerful open letter from ATLAS, a global community of female-identifying lawyers that works to empower, support and connect women work in, or embarking on, a career in public international law.

The letter calls for “a fair, transparent and safe procedure for receiving and assessing complaints of misconduct against the candidates for ICC Prosecutor” as well as “a permanent reporting process for all ICC elections of officials, including judges.” The issues addressed in it should concern all of us, irrespective of background or gender. I hope readers find the time to read the letter. Many thanks to the great folks at ATLAS for writing and sharing it. Their work, on behalf of over 7,400 women international lawyers, has never been more important.

(Image: WSJ)

The allegation of sexual misconduct against a prospective candidate for the position of Prosecutor of the International Criminal Court (ICC) is both serious and concerning. Asa network of over 7,400 women international lawyers whose mission is to empower, support, and connect women working in, or embarking on, a career in public international law, ATLAS calls on the Committee on the Election of the Prosecutor andICC States Parties to ensure there is a fair, transparent and safe procedure for receiving and assessing complaints of misconduct against candidates under consideration. Crucially, ATLAS calls on States Parties to develop a permanent reporting process for all ICC elections of officials, including judges.

Under Article 42(3) of the Rome Statute, it is a key requirement that the ICC Prosecutor possesses “high moral character”. ATLAS considers the moral character of candidates to be of primary importance to the qualifications required of the Prosecutor and as such, a fulsome examination of the integrity, courage, fortitude, honesty and empathy of the individual holding this office should form a considered part of the selection process. While there is an important focus on sexual misconduct, we wish to emphasise that there is a wide range of unacceptable and disqualifying unethical conduct across genders, including but not limited to abuse of authority, corruption, racism, ableism, homophobia, sexual assault and other forms of violence.Given the substantive and symbolic value of the ICC Prosecutor, it is essential that the candidates for this role must have conducted themselves in a manner which is beyond reproach.

The character of the Prosecutor also has an indelible, radiating effect on the Office.Article 44(2) of the Rome Statute requires the Prosecutor to “ensure the highest standards of efficiency, competency and integrity” in the employment of staff. Confirming the high moral character of the next Prosecutor is integral to the recruitment and retention of staff who meet these standards. Indeed the moral integrityof the leadership, management and staff of the Office of the Prosecutor is of primaryimportance in executing the mandate of the Rome Statute, including the redress ofsexual and gender-based crimes. Furthermore, to ensure a safe working environment, the next Prosecutor must prove themselves able to ethically and effectively deal with any allegations of misconduct made against their staff.

The importance of this should not be under-estimated. The ICC Audit Committee’s interim report, published in April 2019, highlights findings from a Court-wide 2018 Staff Engagement Survey, which had a 71% response rate and found that only 19% of respondents were “positive” that cases of bullying, harassment or discrimination were dealt with appropriately. The Audit Committee further found that the ICC had not communicated any intended corrective measures relating to instances of misconduct that staff said they had faced.

A 2017 ICC Staff Union report on ‘ICC Staff Feedback on Harassment, Bullying, Discrimination and Abuse of Power’, provided the result of a survey taken by 128ICC staff members in which 48.4% of respondents said that they had been victims of one of the listed behaviours (discrimination, (sexual) harassment, abuse of authority, or misconduct). Equally concerning was the fact that only 18.7% of thosewho had stated having been victims of these behaviours said that they reportedthem. Reasons given for deciding not to report included: lack of faith that measures would be taken (35.9%), fear of retaliation (28.9%), lack of support from peers(13.3%) or supervisors (29.7%) and having to undergo a lengthy process (15.6%).

Continue reading →

Posted in #MeToo, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Next ICC Prosecutor | Tagged | Leave a comment

“Rethinking Peace and Justice” Symposium: Concluding Reflections

Posted on May 2, 2020 by Mark Kersten

Ron Slye and Louise Mallinder join JiC for the concluding piece in our symposium on ‘Rethinking Peace and Justice’. Ron and Louise are the authors of the IFIT report to which the contributors responded. Ron is a professor of law at Seattle University. Louise is Professor of Law at Queen’s University Belfast. All of the other contributions to the symposium can be found here.

(Photo: ~W~ / Flickr)

We are grateful to Justice in Conflict for hosting this symposium on the publication of Rethinking Peace and Justice, which we co-authored on behalf of the Law and Peace Practice Group of the Institute for Integrated Transitions. We are also grateful to all the contributors for sharing their reflections on how themes explored in our report resonated in the contexts in which they work. Their thoughtful commentaries underscore the importance of the issues we raise in the publication and provide concrete illustrations of how taking a more flexible and less ideological approach to accountability and justice can further justice and efforts to negotiate peaceful outcomes to conflict.

The five different contributions illustrate how adopting a more nuanced and creative approach to balancing peace and justice is relevant at different points in a process of conflict resolution. Galuh Wandita’s post on peace efforts in Asia focuses on the importance of adopting a more creative approach in the context of an ongoing justice process in Aceh, where peace efforts paid insufficient attention to the importance of justice. Stephen Rapp’s post on Syria emphasizes that providing relief to victims is as important to include in efforts to influence an ongoing conflict as it is in developing a post-conflict road-map.  He also underscores the importance of creative approaches in the context of an ongoing conflict that is yet to enter into a serious phase of negotiation. Sarah Dunne’s contribution illustrates the importance of creative approaches to peace and justice in the context of an ongoing peace negotiation in Ukraine. The contribution by Juan Carlos Botero and Mateo Merchán illustrates the importance of continued flexibility and assessment of the balance struck between peace and justice in the early stages of a newly-created justice process in Colombia. Finally, Mark Kersten takes a more global perspective, exploring some of the implications and possibilities that arise if a more creative approach to balancing peace and justice is adopted at the international level, including by the Security Council and the ICC.

While each of the posts contributes unique perspectives to the conversation we aimed to encourage through our publication, we here highlight four cross-cutting themes that are present to some degree in each:

  • The challenges of delivering justice during and after conflict

  • Victim community empowerment and agency

  • Social reconstruction and victim healing as complements to prosecution

  • Legal leniency measures that can prevent violence and facilitate truth, justice, and reparations

The challenges of delivering justice during and after conflict

Over the last two decades, it has been increasingly common for human rights actors and international policymakers to contend that criminal prosecutions are a necessary component of sustainable peace and an obligation under international law in response to international crimes and gross human rights violations. This position, while laudable, does not reduce the profound legal, security, political and social challenges to delivering justice during or after armed conflict.

The contributions to this symposium each make clear that these challenges remain in different ways in each setting. For example, Stephen Rapp argues that the IFIT report “is timely because these issues continue to resonate in some of the most significant policy debates of our time.” He further observes that the relevance of these questions endures as we have not reached a point where “there is a greater possibility that high-level actors will face criminal prosecution for serious violations of human rights that constitute international crimes. Far from it.” Mark Kersten similarly observes that the peace versus justice debate “isn’t going away” and he draws on empirical research to report that leading experts have acknowledged that there is “no obvious answer” to these dilemmas. Indeed, as Juan Carlos Botero and Mateo Merchán observe, these challenges can remain even for comprehensive transitional justice approaches such as Colombia’s, which encompass prosecutions, truth recovery and reparations. These authors state that addressing questions of scale will continue to be the great challenge “in scenarios of mass atrocities, where it is not possible to prosecute all those responsible and satisfy the rights of all victims individually.” Continue reading →

Posted in Peace Negotiations, Peace Processes, Peacebuilding, Rethinking Peace and Justice Symposium, Transitional Justice | Tagged , | Leave a comment

Peace versus Justice, Round 10,000? Nah. Some Options for the International Criminal Court

Posted on April 30, 2020 by Mark Kersten

The following is Mark Kersten’s contribution to the ‘Rethinking Peace and Justice’ symposium. All other contributions to the symposium can be found here. 

(Photo: Reuters)

Since the dawn of humankind, communities have been thinking and rethinking the relationship between peace and justice. From the advent of international and transitional justice, however, the stakes have been raised and qualified. The problem at the core of the symposium isn’t going away: how can the pursuit of justice and accountability for mass atrocities be pursued while bolstering, or at least not undermining, peace processes?

In the 1990s, the so-called “peace versus justice” debate gained steam. Many worried that targeting perpetrators for prosecution would complicate conflict resolution efforts. The debate got particularly heated in the mid- to late- 2000s following the intervention of the International Criminal Court (ICC) in northern Uganda. The fears of the ICC spoiling peace now follow in the wake of every actual and potential intervention of the Court into an ongoing and active conflict.

Today, the tension that engulfs the peace-justice debate has diminished. Not long ago, the mention of ‘peace’ in the context of some international criminal law circles was interpreted as a threat. The inverse could be said about peace and conflict resolution circles. Since then, senior figures in international criminal justice circles have admitted that there is no obvious answer to the peace-justice debate. Negotiators have acknowledged that criminal justice for atrocities is an important part of the conflict resolution landscape. This period of relative calm and mutual understanding represents a useful time to discuss the peace-justice relationship without the emotional or professional baggage that often comes with it. In this context, the focus of Louise Mallinder and Ron Slye’s report on creative and realistic options for accountability is highly welcome.

Of course, transitional justice is far more than just international criminal justice. When confronted with the so-called “peace versus justice” debate, many observers stress the availability and appropriateness of other transitional justice mechanisms: truth commissions, traditional justice, lustration, amnesty laws, etc. Such mechanisms are indispensable. Yet they don’t resolve questions about the effects of pursuing international criminal justice in the context of ongoing conflicts or where sensitive peace negotiations are underway. This post and the suggestions below therefore focus on the ICC and what might be done to help (re)shape it as a positive actor in peace processes.

Take Advantage of the Lull

The lull in the peace-justice debate is unlikely to last. The next time that the ICC intervenes in an ongoing conflict, the debate will rear its head. This is therefore a good time to assess the Court’s impact and for proponents of the institution to work with experts in conflict and peace studies on a full-cost analysis of the Rome Statute as well as ICC decision-making vis-à-vis fragile, transitional states and peace processes. The fact that there will be a new Prosecutor in place by this time next year is also relevant. Many believe that a core part of the next Prosecutor’s mandate will be to be more sensitive to politics and to maximize the positive effects of the Court.

Preliminary Examinations and Investigations

Such a mapping exercise should be realistic and honest and cover a number of different elements. There are structural limitations in the Rome Statute that need to be recognized. For one, arrest warrants, once issued, can’t be revoked. That means that the deterrent potential and positive impact on the targeted individual is essentially spent once the warrant is issued. Positive behaviour can’t be rewarded if a warrant can’t be withdrawn. Continue reading →

Posted in "Peace versus Justice" Debate, International Criminal Court (ICC), International Criminal Justice, Justice, Justice in Conflict, Peace Negotiations, Peace Processes, Rethinking Peace and Justice Symposium | Leave a comment

Balancing Peace and Justice in Negotiated Transitions from Conflict in Asia

Posted on April 30, 2020 by Mark Kersten

Galuh Wandita joins JiC for this contribution on balancing peace and justice in the context of ongoing conflicts in Asia. Galuh is the Director of Asia Justice and Rights. Her post is the latest in our ongoing symposium on ‘Rethinking Peace and Justice’. Be sure to check out the other posts here.

Nepalese soldiers on patrol (Photo: AP)

The recently published IFIT report on Rethinking Peace and Justice offers a nuanced approach for those of us working in the reality of conflict. This report avoids the approach of slinging stones from the outside, while repeating mantras about accountability, which may not be helpful while peace is being negotiated. For many of us, knowing that there are principles that we hold firmly (i.e. if you commit serious crimes, there should be justice someday) is like having the stars to guide us as we walk in the darkness of night. It is what can inspire our determination and creativity, while allowing us to create short and mid-term interventions with justice as a long-term goal.

I think similar to how we have always used the idea of ‘practical and strategic’ needs in gender and development approaches, we can also use the same idea when balancing peace and justice. Practical needs in relation to justice are measures to preserve life and bring peace (and thus could include the offering of some kind of amnesty). Strategic justice needs would be measures that brings us closer to acknowledging victims and sanctioning perpetrators. During peace negotiations, we work on the practical needs, with the long-term goal of achieving some kind of justice.

Pursuing accountability for mass atrocities while trying to get warring parties to agree to lay down their arms is like adding a heavy backpack to the shoulders of a trapeze artist attempting to walk an aerial line. The extra weight could cause the aerialist to fail to reach the other side. However, if it is balanced well, it could support her journey across the thin wire. Similarly adding accountability to peace process, if balanced right, could contain important tools to carry the peace process forwards. Peace mediators/negotiators should think of useful “hooks” for anti-impunity advocates who may be working on these issues decades later.

In Asia, several peace accords have included truth and justice measures, but implementation of these commitments remains weak. For example:

The Comprehensive Peace Agreement in Nepal (2006) provided for creation of a truth commission and a disappearance commission, but it was 2015 before both commissions were established. In addition, their mandates reflect the precarious transition. Civil society groups have criticized these commissions for lacking independence and have all but abandoned positive engagement with them.

In the Mindanao region of Philippines, the Framework Agreement on the Bangsamoro (2012) recognizes that acknowledging past violations is a necessary foundation for peace, and it includes provisions for land reform, vetting and other transitional justice measures “to address the legitimate grievances of the Bangsamoro people, correct historical injustices, and address human rights violations” (ch VIII, para 12). A preparatory commission (the Transitional Justice and Reconciliation Commission, TJRC) worked between 2014 and 2015; however, the truth commission promised under the peace agreement has yet to be established.

Let me dive in more deeply into one context. In Aceh, Indonesia, after more than three decades of conflict, the Indian Ocean tsunami (Dec 2004) ravaged the coastal villages and towns killing some 200,000 persons. This shocked the Indonesian government and the Acehnese rebel group (GAM, the Free Aceh Movement) into agreeing to re-enter peace negotiations. According to those who participated in the process, the main points of contention during the negotiations centered on the establishment of local parties, a stepping-stone to self-governance in Aceh.

At a national level, as part of push for democratic reform within Indonesia, a law on a truth and reconciliation commission had been passed in 2004 and a court with jurisdiction over atrocity crimes was already in place when the peace talks were underway. Nonetheless, further commitments to truth and accountability were contained in the resulting Helsinki Memorandum of Understanding (2005). In a 2007 interview, a GAM negotiator reflected that “[d]uring the negotiations, to be frank, we thought all of this [push towards justice] would be an academic pursuit. NATO was attempting to try perpetrators in former Yugoslavia. Would it be possible to actually bring to trial a general in Indonesia? Impossible.”[1]  Provisions on a truth commission and a “human rights” court were added in the 11thhour of the negotiations by the chief negotiator, Finland’s Martii Ahtisaari. Both parties agreed without much discussion.

However, a Constitutional Court decision in 2006 annulled the national TRC, and this posed almost an insurmountable block to the Aceh TRC. Civil society groups at local and national level reacted swiftly, with a national coalition of more than 50 groups adopting a parallel strategy. The KKPK (Coalition for Justice and Truth) pushed for the redrafting of a national TRC law, and a local coalition in Aceh, KPK Aceh, created a draft law on the Aceh TRC in 2007. Fast-forward to the present, there is NO national TRC, but local parliament in Aceh established a TRC for that region. Continue reading →

Posted in "Peace versus Justice" Debate, Asia, Rethinking Peace and Justice Symposium | Tagged | Leave a comment

What Justice is Required before Aid to Syrian Reconstruction?

Posted on April 29, 2020 by Mark Kersten

Stephen J. Rapp joins JiC for this contribution to our ongoing symposium on ‘Rethinking Peace and Justice‘. Rapp is is an American lawyer and the former United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice. 

(Photo: Anadolu Agency)

The publication of Rethinking Peace and Justice is timely because these issues continue to resonate in some of the most significant policy debates of our time.  But this is not because there is a greater possibility that high-level actors will face criminal prosecution for serious violations of human rights that constitute international crimes.  Far from it.  It is because of the potential legal consequences of doing business with such actors in the absence of a process of justice for their victims.

At present, international criminal justice is receiving less support from major powers than at any time since the end of the Cold War.   It has been eleven years since an ICC arrest warrant was issued for Sudan’s Omar al-Bashir.  He is now out of power, jailed for corruption in Khartoum, and may finally be on his way to the ICC.  But if it happens it will be without the kind of US-supported ‘carrot and stick’ strategy that brought Milovevic to The Hague in June 2001, two years after his indictment.  And what has happened to Saif Gaddafi, more than six years after the ICC held that he was not facing genuine proceedings in Libya, and must be transferred to its custody?

Sudan and Libya were referred to the ICC under UN Security Council resolutions adopted under Chapter 7 of the UN Charter, albeit with no ongoing political support. Meanwhile, the Syrian people have suffered the worst atrocities of the 21st Century, while Russia has cast or threatened vetoes of even the weakest UNSC resolutions critical of the Syrian regime.  While European prosecutors have issued arrest warrants for key subordinates of Bashar al-Assad, and mid-level officers will soon go on trial in Germany, is there a realistic possibility that Assad will ever be sought by an international court?

But this is to put too much focus on what happens in international criminal courtrooms, and not enough on the economic consequences for countries whose leaders have scorched the earth, killing so many of their own people while disabling and impoverishing so many more.  What if the means to rebuild such countries are blocked?  For a dictator it can be possible to live in luxury while ruling over ruins, but what of those who have killed in his name, when there is insufficient reward for their service, and what about those less loyal supporters for whom there is nothing?  Unless the funds begin to flow, even a dictator can become dispensable.

But how long should the surviving population be forced to live in the ruins?  For how many years will unsettled refugees need safe haven and sustenance from third countries?  What of the risk that an even more brutal conflict will arise from the ruins?  So the peace vs justice argument is renewed in today’s debate over whether to allow the aid and trade that would reconstruct Syria with no real change in the Assad dictatorship.

Interestingly, major powers are providing much more support for the justice side on the reconstruction issue than they are for justice in international criminal courts.  Consider the “Caesar Civilian Protection Act” that became US law on 20 December 2019 after large bipartisan majorities in both the US House and Senate voted to include it in the annual National Defense Authorization Act (NDAA).  The Caesar Act sets forth a “Statement of Policy” that

…diplomatic and coercive economic means should be utilized to compel the government of Bashar al-Assad to halt its murderous attacks on the Syrian people and to support a transition to a government in Syria that respects the rule of law, human rights, and peaceful co-existence with its neighbors.

To implement this policy, it mandates that the Secretary of State to develop “…a strategy to deter foreign persons from entering into contracts related to reconstruction in the areas…in which civilians have been subject to forced displacement.”   It requires the Secretary of the Treasury to determine if “…reasonable grounds exist for concluding that the Central Bank of Syria is a financial institution of primary money laundering concern,” and if he so determines to proceed to implement ‘special measures’ imposing onerous conditions on entities having transactions with the Central Bank.  Treasury is also mandated to apply sanctions to “foreign persons” who are supplying various services to Damascus, including those who “…knowingly, directly or indirectly, provide significant construction or engineering services to the Government of Syria.” Continue reading →

Posted in Omar al-Bashir, Peace Negotiations, Peace Processes, Rethinking Peace and Justice Symposium, Sudan, Syria | Tagged | Leave a comment

Rethinking Peace and Justice: A Balancing Act in Ukraine

Posted on April 28, 2020 by Mark Kersten

Sarah Dunne joins JiC for this contribution to our ongoing symposium on ‘Rethinking Peace and Justice‘. Sarah is an independent consultant, with experience in policy and conflict. Be sure to check out the rest of the posts in this symposium here. 

A soldier in Donetsk, Ukraine (Photo: Reuters)

In the context of Ukraine, there is certainly merit to considering flexible approaches to transitional justice (TJ) in order to balance peace and justice, as noted in the IFIT publication. On the issue of amnesty for conflict-related crimes, there has been a tendency to emphasize a punitive approach in Ukraine, which is understandable given the pain caused by conflict. However, jumping to this as a legal policy approach would miss a key step in the process, namely consulting broadly with conflict victims, ideally on both sides of the contact line, about what their needs may be and how to further their rights to truth, reparations, accountability, and guarantees of non-repetition. The agreement for the formal peace process sets out very broad parameters for amnesty, which arguably could benefit from creativity to search for acceptable modalities for the parties who diverge on how far amnesty should go. The issue of international crimes and their exclusion from amnesty, however, is one thing that arguably all conflict parties can currently agree on. This is important in a situation where agreement on any of the political aspects of conflict settlement has been exceedingly difficult to date.

The armed conflict in Ukraine continues, with the two eastern Luhansk and Donetsk oblasts (regions) both divided between territory controlled by the Ukrainian government (government controlled areas or GCA) and areas administered by the Russian-backed so-called Luhansk and Donetsk people’s republics (non-government controlled territory or NGCA). The 2014 and 2015 Minsk Agreements attempted to outline a framework for settling this conflict. Point 5 of the February 2015 Package of Measures addresses amnesty and pardon, proposing to ‘ensure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Luhansk regions of Ukraine’. Security still remains fragile in eastern Ukraine, with continuing ceasefire violations preventing substantive progress on the political elements of the Minsk Agreements, including amnesty.

Despite this, peace negotiations continue in the Minsk Trilateral Contact Group (Minsk TCG). Overseen by the OSCE, this format includes representatives from Ukraine and Russia, as well as from the NGCA, who meet fortnightly to work out the details of Minsk Agreement implementation. There have been no visible results on the question of amnesty and pardon. Not only is there a lack of full agreement between conflict parties on these issues, but consensus is also lacking within the Ukrainian population and political elite. There will be issues with acceptance if the debate on these controversial topics is only conducted behind closed doors in the formal peace process.

Within Ukrainian society, the level of public discussion has highlighted the sensitivity and controversy around key amnesty and TJ concepts. This stems in part from the fact that armed hostilities in eastern Ukraine are ongoing with continued ceasefire violations and casualties. Additionally, the recently experienced trauma and pain, which is common to any armed conflict, creates resistance to any form of leniency or exemption for those who are perceived to have committed crimes. Arguably in Ukraine, there is a need for more public understanding on the concept of amnesty and related TJ issues, and what it sets out to achieve, with some equating it purely with capitulation.

An additional challenge is that, in the past, those with a hard-line view have tended to dominate and influence the debate. For example, two draft laws registered in 2017 by MPs from the Narodniy Front faction focused on the need to punish collaborationism. One draft involved 12-15 years of criminal responsibility for those who organised and participated in rallies in favour of ‘occupying’ authorities, or for those who called for support for these authorities in public. However, both draft laws were recalled by those that had initiated them in August 2019. There was also a draft law ‘on forgiveness’, which in its latest version was entitled ‘on accountability’. This proposed that those eligible submit a written appeal for forgiveness to a local court. In return they would receive an alternative punishment that may include temporary limitation of their right to vote or right to work for state or local self-government authorities. With regard to one version of the draft law, the number of people this law would cover was estimated at approximately 500,000, applicable to both Donbas and Crimea – a significant number for Ukraine’s judicial system. The need to submit a request for ‘forgiveness’ alone could be seen as problematic to some. Continue reading →

Posted in Amnesty, Peace Negotiations, Peace Processes, Rethinking Peace and Justice Symposium, Transitional Justice, Ukraine | Tagged | 1 Comment