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

My Father: The Inspiration Behind Justice in Conflict

Posted on June 10, 2020 by Mark Kersten
Gregory Kersten

My father, Gregory Kersten, in the Tatra Mountains in 2019. (Photo: Marta Kersten)

In writing for Justice in Conflict, and in my career more generally, I have tried not to get too personal. Separating the personal from the professional is unspoken custom in journalism and academia, professions that endeavour to observe and describe the world with objectivity. Though I know that it is impossible for us to totally detach ourselves from what we put out to the world, it is important to try.

Perhaps that is why, when people have asked me why I am interested in justice and conflict, I have been unsure how to answer. I would most often reply that the coverage of arrest warrants issued by the International Criminal Court (ICC) against former Sudanese President Omar al-Bashir was what got me hooked. To some extent it’s true; it is what sparked my intellectual energy and interests on the relationship between peace and justice. But I also knew that there was more. I was interested in justice and fairness long before the ICC targeted Bashir and the international community collectively fretted over its impact on resolving the war in Darfur. In recent years, I began to understand more clearly that it is because of my family that I care about what I care about. Now more than ever, I understand just how much it was because of my father.

My father, Gregory Edmund Kersten, died unexpectedly and suddenly on 26 May 2020. I will be coming to terms with that for many months and years to come. Having dedicated my life’s work to studying and trying to understand the world, I have difficulty understanding it without him in it or why it seems to continue on the same without him here.

But I can say that he left a legacy, one which I will work to ensure is a lasting one. This blog is part of his legacy, though readers are surely unaware of that fact. I want to change that.

More than anyone, my dad encouraged me to write. When I experienced down times or anxiety in my life, he would tell me to work and, especially, to write. I would find solace in doing so. I still do. In 2010, he told me that it would be a good idea to start a blog to focus my energy and interests. I never imagined JiC becoming what it has become. So many of the opportunities that I’ve had and the professional relationships that I’ve developed are due to this site – and are therefore because of my father. He regularly read JiC, and would tell me which pieces he enjoyed, comment on them, and offer constructive criticism. Of course, he would also point out where I had left spelling errors, which was a bit less fun.

My father was wedded to his principles, none of which resonated more clearly than his commitment to fairness. It did not always make him an easy person. I did not always agree with him. We often argued ferociously. But even when I thought he was wrong, I knew he was wrong for all of the right reasons. Weeks later, I would often find my own arguments shaped by his.

My dad’s principles were not instilled in him through an easy life. He was born four years after World War II ended, and grew up in communist Poland under difficult personal and political circumstances. In the 1970s and 1980s, he worked in underground publishing for the anti-Communist Solidarity / Solidarność movement with his parents and my mother. From a very early age, I found their contribution to the resistance and the whittling away of autocratic rule fascinating. It inspired me. That fascination manifests itself in my desire to work on global justice and accountability initiatives and to write openly about regimes and governments complicit or actively engaged in human rights violations.

My father left Poland just before Martial Law was officially lifted with his wife Greta and my two siblings, Marta and Mik. In 1983, they drove to Antwerp, Belgium, in a car on ‘vacation’, crossing into free Europe at Checkpoint Charlie. I can’t imagine the exchange of tension and relief that he must have felt upon making it through the Berlin Wall, with the weight of all of that responsibility resting on his shoulders. Years later, I found it moving to realize that I worked in the field of international justice for an NGO, the Wayamo Foundation, that was based on territory that my family fled just 30 years prior, behind the Iron Curtain. The transformation is remarkable.

During the Cold War, regular emigration to ‘the West’ wasn’t permitted. As they departed Poland, it was not clear to my parents if and when they would see their family and friends again. From Belgium, they applied to emigrate to Canada. Nine months to the day after they arrived on 14 December 1984, I was born.

Immigrating to Canada from a context of political violence and structural oppression opened up many opportunities for my family, as it has for so many others who begin new lives on Turtle Island. But it took an enormous amount of work for my parents to succeed here.

While improving his English, my father became a university professor, and devoted his life to the field of negotiation and group decision-making. It is a theme that I would take up in my work in international criminal justice. It brought me great joy that, while we came to the field of negotiation from different angles, we owned some of the same books and the same dedication to mediating disputes.

Throughout his life, my father’s sense of fairness was unwavering and indiscriminate. He rejected any notion that power or wealth should determine who got justice or who was treated with dignity. He also believed, to his core, that conflicts of all kinds could be resolved if we simply spoke to each other and communicated.

While he did not suffer fools lightly, my father was the most generous person that I have known. Since his death, I have been astounded by the number of people who have reached out with stories about how he touched their lives. He spent hours of his day working with students and colleagues, speaking to them on the phone or online, hosting them at his home – sometimes for weeks. It has been touching, comforting, and heartbreaking to know that I am only one among so many who will miss him.

I hope that some of my father’s principles and faith in humanity resonate through the pages of this site. The blog will continue to serve as a place where students, advocates, and scholars alike can have their say on matters of international and transitional justice.

Meanwhile, my family and I are committed to continuing my father’s work and legacy. In 2011, he started the Kerstens’ Foundation in honour of his parents, Adam and Krystyna, both acclaimed Polish historians. The Foundation has offered scholarships to Polish graduate students for almost a decade. As one way to remember him, we are working to create a scholarship in his memory, in the hopes of fostering in young people the principles that he stood for.

Those principles are the ones that this blog has stood for and will continue to stand for, for many years to come.

I do not believe that my father is ‘gone’, but rather that he lives in and among the many people who loved him. Still, I miss my father beyond what mere words can express.

Thank you, as always, for reading.

Mark

Posted in Gregory Kersten | 7 Comments

Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination

Posted on June 1, 2020 by Mark Kersten

Dov Jacobs joins JiC for this post in response to Kip Hale’s piece from last week, entitled ‘Time to Look in the Mirror: ICC Community in Need of Perspective‘. Dov Jacobs is an Assistant Professor in International Law at the Grotius Centre for International Legal Studies at Leiden University. He is also the author of the blog, Spreading the Jam.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “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”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies.

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats.

First, as pointed out by Kevin Jon Heller on twitter, it would have been welcome, if Kip was going to take the time to write his post, to actually give concrete examples and, most importantly, engage with them, which would certainly have been a more courageous move that make generic unverifiable statements about a whole community’s lack of competence or about unidentified persons’ “personal or professional need to be visible”.

Second, even if I agree with Kip that commentary is obviously enriched by actual and concrete knowledge of how the ICC operates internally, I cannot help but feel that his call for “humility” is a polite way of saying that people who do not know exactly how the ICC works from the inside should simply refrain from commenting. However, I don’t think that things are that simple, and it depends on what you are commenting on. While it might be harder to comment on the inefficiencies of the internal decision-making process without intimate knowledge of the internal workings of the Court, there are myriads of ICC-related matters that can be commented upon without such insider knowledge. It cannot be acceptable that someone who highlights the inadequacy of the legal reasoning of a decision is simply told that they don’t understand the compromise that had to be reached by the Judges, or that someone who criticises the effect of some prosecutorial strategies be told there was a very good reason internally why these strategies were adopted.

But Kip goes further and now we enter into familiar territory for those who have followed the exchanges between Kip and myself on twitter over the years.

Kip concludes his post with the following words of caution : “As we reflect on the Court at this important juncture, and in our respective roles, hope to contribute to its evolution and mandate of fighting impunity for the world’s gravest crimes, let us be guided by a few simple but fundamental words: “First, do no harm.”” Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 3 Comments

Socioeconomic Justice after Conflict: Political Economy, International Intervention and Justice Claims

Posted on May 28, 2020 by Mark Kersten

Daniela Lai joins JiC for this guest-post. Daniela is a Senior Lecturer in International Relations at London South Bank University. Her forthcoming book with Cambridge University Press, Socioeconomic JusticeInternational Intervention and Transition in Post-war Bosnia and Herzegovina, will be available in June 2020. 

(A former shopping centre in the main square of Prijedor, which is today being torn down. Photo: Daniela Lai)

Socioeconomic issues have moved from the margins of transitional justice to being considered an important part of both scholarly debates and ambitious justice programmes. For too long, justice in the aftermath of conflict and mass violence was understood in strictly legalistic terms, producing a partial view of wartime violence and post-war justice, one that had become increasingly alienated from its local constituencies. A more comprehensive (and overdue) analysis of how people experience socioeconomic violence in war and develop socioeconomic justice claims should be grounded in people’s lived experiences. It should also scrutinise international interventions as they shape both post-war justice and political economy.

The evolution of transitional justice

For a relatively young field of research and practice, transitional justice has undergone a lot of change over the past few decades, with some scholars even arguing it is now in its ‘fourth generation‘. The field has been deeply shaped by its connection to international humanitarian law (IHL) and by the political context within which it emerged (transitions to liberal democracy market economies, as well as liberal peacebuilding). For most of this time, socioeconomic issues have remained at the margins of the field, at best addressed through some form of monetary compensation for violations of IHL or personal rights, at worst overlooked even in the face of their evident relevance.

In the past decade or so, however, practitioners and scholars have started calling for a more explicit engagement with socioeconomic issues, be it in the form of social and economic rights or redress for structural inequalities that have led to or stemmed from political violence and atrocity. These developments have generated academic controversies over what transitional justice really is, whether it is realistic or even desirable to expand its scope beyond established mechanisms, or expect it to produce transformative change.

However, these debates still omit an interdisciplinary and bottom-up analyses of how communities affected by conflict experience violence in its multiple forms (including socioeconomic violence), and how these experiences inform the development of justice claims that go beyond conventional transitional justice approaches. In my book Socioeconomic Justice: International Intervention and Transition in Post-War Bosnia and Herzegovina, I address these questions and look at how international interventions interact with socioeconomic justice claims in the aftermath of war I draw on in-depth qualitative research carried out in Bosnia and Herzegovina (including interviews with people living in the cities of Prijedor and Zenica, with activists from all over BiH, and international officials based in Sarajevo). The arguments and findings of my research demonstrate just how much our field has missed by relegating socioeconomic violence and justice claims to its margins. I understand justice as a social practice characterised by contestation around its meanings and the strategies and claims through which it is pursued, and as the process through which violence and injustice are redressed. Justice is also defined as multidimensional: in my book, I focus on its socioeconomic dimension while also looking at how it intersects with other crimes, including ethnic-based violence.

Socioeconomic justice and political economy

Through this focus on socioeconomic justice, the book also makes visible the link between justice and political economy and consolidates it within academic scholarship, both from a transitional justice and international political economy perspective.

The political economy of the war and transition is not just a backdrop against which to analyse wartime violence and post-war justice: the book shows how justice and political economy are inextricably connected. On the one hand, a political economy approach to justice issues brings to light the pervasive nature of socioeconomic violence and justice claims. On the other, a justice perspective on political economy helps to tease out the effects of internationally-sponsored economic reforms on conflict-affected communities. Continue reading →

Posted in Bosnia and Herzegovina, Economics of Conflict, Transitional Justice | Tagged | Leave a comment

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