‘Injustice Anywhere is a Threat to Justice Everywhere’ – Palestine, Israel, and the ICC

Posted on February 3, 2020 by Mark Kersten

The following post was written for a symposium entitled ‘Sometimes They Come Back’: The Question of the ICC’s Territorial Jurisdiction in Palestine. The symposium organizers are Triestino Mariniello and Chantal Meloni. Be sure to check it out over at Opinio Juris!

Rockets fired from Gaza city into Israel in March 2019 (Photo: Amir Cohen / Reuters)

You would think it was reason to celebrate: there is a distinct possibility of an international court investigating alleged international crimes in a region of the world where such atrocities are well-documented, yet accountability scant. Then again, we are talking about a subject that gets many people’s knickers in a knot: the possibility of the International Criminal Court (ICC) investigating crimes committed in Palestine. Even respected proponents of international justice have lined up to proffer reasons as to why an ICC investigation should be thwarted. In doing so, they project a vision of international criminal justice that should only be available some places, some of the time. There are major costs to this view – for both Palestine and Israel, for the ICC, and for the project of international criminal justice. The ICC route has its limitation, but efforts to achieve even a modicum of accountability for Palestinians and Israelis deserve support.

Is it really that complicated?

There continues to be a debate among international lawyers and scholars as to whether Palestine is a state. The ICC Prosecutor herself acknowledged that “the question of Palestine’s Statehood under international law does not appear to have been definitively resolved.” Some observers are genuinely interested in this debate. Others pipe up when there is a possibility of accountability in the region and instrumentalize the debate to foment uncertainty about whether Palestinian and Israeli victims deserve international criminal justice.

But it may not actually be all that complicated for the ICC. As the ICC Prosecutor has explained:

there are sufficient indicia of statehood to enable the ordinary operation of the ICC Statute… [M]y office has analyzed as relevant — the assessment conducted by a number of different competent and informed bodies, such as the International Court of Justice, the UN General Assembly, the UN Security Council, the Secretary-General and several UN coordinators, rapporteurs and committees.

The real question before judges isn’t whether Palestine is a state for the purposes of an ICC investigation, but where, exactly Palestinian statehood starts and stops. There are good arguments to suggest that a criminal court is not best placed determine the territorial boundaries of states. For those concerned and interested in being productive, however, energy would be better spent in finding an appropriate forum to determine the territory of Palestine, rather than pretending that it somehow isn’t a member-state of the Court.

Today, the majority of the world’s states (137 in total) recognize Palestine statehood, including most ICC states. The only major regional outliers in are states in Europe and North America. The Court itself not only recognizes Palestine as a member state for the purposes of the Rome Statute, but spelled out to Palestinian authorities exactly what was needed to be recognized as such. It would be unimaginable now for the Court to tell Palestine that, while it followed every step required of it, it doesn’t matter because judges have decided now that it’s not enough. As Prosecutor noted, “it would be strange to permit Palestine to join the court, but to deny to it the natural consequence of its accession, which is to exercise the court’s jurisdiction on its territory.” It wouldn’t just be strange, though. It would be insulting and unjust.

Any decision by ICC Judges to deny Palestinian statehood (for the purposes of the Rome Statute) would also have devastating political consequences for the Court’s relations with key constituencies. There are states, state actors, as well as critics expecting the ICC to keel before the political bullying of powerful states. It will only fulfil their view that the Court only works against the weak and bows before the strong.

Netanyahu’s bumbling and bullying campaign to discredit the Court

Palestine became a member-state of the ICC in January 2015. Israeli Prime Minister Benjamin Netanyahu, who also held the same position then, had over five years to organize an effective campaign to preclude the Court’s Prosecutor seeking to investigate atrocities in Palestine. He has failed to do so but has, incidentally, raised the costs of opposing an ICC investigation into Palestine. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | Tagged | 1 Comment

The thousands still missing: Sri Lanka after decades of war and a decade of ‘peace’

Posted on January 23, 2020 by Mark Kersten

B. Aloka Wanigasuriya joins JiC for this post on the ongoing injustice of missing persons in Sri Lanka. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Sri Lankan mothers from the “Dead and Missing Person’s Parents” organisation holding photographs of their loved ones during a protest in Jaffna (Photo: AFP)

During Sri Lanka’s civil war and following its aftermath, many people disappeared. To this day, many still remain missing. 15 November 2019 marked 1000 days since family members of missing persons from the formerly war-ravaged north of Sri Lanka started protesting against the disappearances. The continuous roadside protests, held in five key locations across the island nation, Kilinochchi, Mullaithivu, Trincomalee, Vavuniya and Maruthankarny (Jaffna district), started in January 2017. Those protesting, seek detailed information regarding their missing loved ones and demand closure. However, their calls for answers seem to have fallen on deaf ears. Instead of providing them with answers, last week, the Sri Lankan president stated that their relatives were dead. Against this backdrop, this post outlines the general state of reports of disappearances that emerged during and following the civil war, steps taken in Sri Lanka to address the situation and a brief, final note on prospects for obtaining justice and answers.

The civil war in Sri Lanka, fought between Sri Lankan government forces and the guerrilla force, the Liberation Tigers of Tamil Eelam (LTTE), came to an end in May 2009. An estimated 20,000 individuals, many of whom belong to the minority Tamil ethnic group, are still missing. Most disappeared during and following the final stages of the war. Some were forcibly conscripted by the LTTE and have not been heard from since. Others disappeared throughout the 26-year-long civil war but well before the final military offensive too place. Stories abound of how some surrendered themselves to the security forces during the last stages of the war, never to be heard from or seen again.

One such incident relates to the Tamil Catholic priest, Father G.A. Francis Joseph who is said to have negotiated the surrender of over a 100 (some claim the number to be as high as 360) individuals (including LTTE members and young children) to the Sri Lankan military in Mullaitivu. They were last seen being driven away in military busses. They are still missing. Others are claimed to have been abducted by security forces before the civil war entered its final stages. During the formal screening process for internally displaces persons (IDPs), some were arrested by the authorities at military checkpoints for suspected LTTE membership. Family members believed they would be processed by the military and then returned back to their families. Some still believe that their relatives are alive and being held by the security forces. This blog post does not attempt to provide a comprehensive overview of all missing persons cases. However, the reality remains that a decade has elapsed since the end of the civil war with relatives having received little or no information regarding the whereabouts of the missing individuals or what happened to them.

Hopes were dashed last week when the newly elected Sri Lankan president Gotabaya Rajapaksa (the former controversial Sri Lankan defence secretary during the last phases of the civil war), stated that those who disappeared during the final stages of the war were dead. Rajapaksa has informed the United Nations Resident Coordinator Hanna Singer that his government would provide the necessary support to families of the missing persons. He has further contended that most of the missing individuals were either taken or forcibly conscripted by the LTTE. According to the president, following necessary investigations, death certificates would be issued for missing persons (indicating the end of the practice of issuing ‘certificates of absence’ for missing persons, which started in 2016).

During the weekend, many took to social media, declaring the president’s statement insufficient. Some see it as a way to bypass accountability and avoid investigations. Many demand an explanation as to how the missing persons perished and where their remains are located. Human rights activists had previously expressed similar views. For instance, the executive director of the Colombo-based Centre for Policy Alternatives, Dr. Pakiasothi Saravanamuthu, places emphasis on the quest for information regarding what happened to the missing persons.

Previously, families of some of the missing persons filed habeas corpus applications in Sri Lankan courts seeing information regarding the whereabouts of their loved ones. They have also met with senior government officials including the former Sri Lankan president (during his term in office), but to no avail. Continue reading →

Posted in Guest Posts, Missing Persons, Sri Lanka, Transitional Justice | Tagged | 5 Comments

Could Iran Seek the International Criminal Court’s Intervention for Sanction Relief?

Posted on January 20, 2020 by Mark Kersten

The following guest post, by Mohammad Hadi Zakerhossein, explores the possibility of the International Criminal Court investigating alleged harms wrought upon civilians by the U.S. sanctions regime against Iran. Mohammad is a lecturer at the University of Tehran. The views here expressed here are his and do not necessarily represent those of the JiC. 

A woman walks past a mural depicting Iran’s flag (Photo: Getty)

In recent days, the world’s attention has been focused on the assassination of General Soleimani and the Iran’s military response to the attack. Much of the current debate centers on conflict between two states and legality of their actions against each other. But what about the wider picture and the legality and effect of Washington’s sanctions regime on the people of Iran?

The current military conflict has occurred against the backdrop of what many view as an economic war. Following withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the US re-imposed stringent and comprehensive sanctions against Iran. Sanctions have been designed to put Iran under a “maximum pressure campaign”, “placing unprecedented stress on Iran’s economy, [and] forcing Tehran to make increasingly difficult choices”. Despite US government claims that it has kept a ‘humanitarian window’ open in its sanction’s regime, according to Human Rights Watch, “the consequences of US sanctions have posed a serious threat to Iranian’s right to health and access to essential medicines”. Given the fact that the US policy is targeted against the civilian population in Iran too, many view the US sanctions as an inhumane act causing great suffering and serious injury to the health of its people and possibly even a crime against humanity. If so, would Iran have recourse at the ICC?

In response to the US economic war, Iran has waged a campaign of lawfare. In 2018, Iran established proceedings against the US in the International Court of Justice (ICJ), claiming that the US should be held responsible due to violations of its treaty-based obligations arising from Treaty of Amity.

A factual account should be provided to reveal the true nature of sanctions, and to represent the US measures as potentially criminal actions against Iranian civilians who appear to be taking the brunt of the sanctions regime. Given their adverse effects on the health of Iranians, sanction might be labelled as an inhumane act as referred to in paragraph ‘K’ of Article 7 of the Rome Statute. This act that is inhumane due to its harmful and injurious consequences occurs in the context of a systematic and widespread attack against the civilian population in Iran. There is no humanitarian window in the US sanctions’ regime. Medicines are apparently excluded from the sanctioned items. Nonetheless, because of the strict limits on banking and financial services, Iran is absolutely unable to obtain what is necessary for the survival of its citizens. Again, it is civilians who suffer the consequences. Although the US may lack an intent to directly cause suffering and injury for Iranians, it is clear that in this suffering would the logical consequence of the sanctions. In spite of its knowledge, the US deliberately fails to change the circumstances that could grant Iranians access to what is necessary for their survivals.

Therefore, given the overwhelming and probative evidence of the adverse effects of sanctions on Iranians, Iran could seek to show that sanctions on medicines and what is necessary for survival constitute a crime against humanity as defined in the Rome Statute. Iran therefore might become interested in bringing sanctions to the attention of the ICC’s prosecutor in order to establish the truth and create its own narratives of the nature of sanctions and their actual effects of Iranians. Bringing the sanctions to the ICC could be an effective way to internationalize the current crisis in Iran that hurts the civilian population, but it might also come at the risk of exposing Iranian actions to criminal investigation and prosecution by the Court. Now, a procedural question arises: how can Iran bring the situation to the ICC, given the fact that Iran is neither a State Party to the Rome Statute and does not intend to join the Court.

There is a solution. As a non-member State, Iran has a right to accept the Court’s jurisdiction under Article 12(3) exclusively over a specific ‘situation’, namely the situation of the US sanctions against Iran. An accepting State has an authority that resembles the United Nations Security Council (UNSC). Under the Statute, the UNSC has a right to refer to the Office of the Prosecutor (OTP) a ‘situation’ in which one or more of the ICC crimes appears to have been committed. Referrals pertain to situations, which differ from the notions of crimes and cases. It is in the context of a situation that one or more crime is committed, and a case is formed.

Put simply, an accepting States have a similar right. A non-member State may accept the Court’s jurisdiction over a specific ‘situation’. Here, crimes without nexus with the referred situation clearly fall outside of the Court’s jurisdiction. However, an accepting State has a right to accept the Court’s jurisdiction in a general mode, that is without limiting the Court’s jurisdiction over a specific situation, whereas the Security Council’s referrals are necessary situational. Continue reading →

Posted in Crimes against humanity, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Iran, Sanctions, United States | Tagged | 2 Comments

What is the Use of the ICC?

Posted on January 13, 2020 by Mark Kersten

Shehzad Charania joins JiC for this brilliant review of a recent debate and conversation regarding the future of the International Criminal Court (ICC). Shehzad is the Director of the Attorney General’s Office and International Law Adviser to the PM’s Office. He was the Legal Adviser to the British Embassy in The Hague between 2013 and 2016. He is on the Steering Group of the London Conference on International Law. Previous contributions by Shehzad (including some terrific interview of ICC staff) can be found here.

Members of the panel (Photo: Shehzad Charania)

Background: The inaugural London Conference on International Law (LCIL) in October 2019 brought together international law academics, judges, practitioners, representatives of civil society, business leaders, and other stakeholders to see how States and other actors engage with international law. Panels ranged from subjects as diverse as international law and cyber and the prohibition on the use of force, to trade and investment, maritime security and climate change. Shehzad Charania chaired a panel entitled What is the Use of the ICC, with the former ICC President Silvia Fernandez de Gurmendi, ICC Deputy Prosecutor James Stewart, British Ambassador to the Netherlands Peter Wilson and Dr Sarah Nouwen of Cambridge University. 

With the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998, then UN Secretary General Kofi Annan called the ICC “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law”.  Philippe Kirsch, Head of the Canadian Delegation and Conference Chair, and later the Court’s first President, called the ICC “the future of humanity”.  The President of the Conference, Giovanni Conso of Italy, said the international community had written “a new page of history with a message that it would never again tolerate impunity. Yet in April 2019 four former Presidents of the ICC’s Assembly of States Parties, some of whom were at the Rome Conference, made the following observations in a joint Op-Ed:

the powerful impact of the Court’s central message is too often not matched by its performance as a judicial institution. We are disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential.

With the panel, I set out to explore the stark contrast between the messages of hope and optimism 21 years ago, to the Court’s most prominent supporters questioning the value of the Court today. I begin by asking James Stewart whether the ICC and specifically the Office of the Prosecutor (OTP) has lived up to the expectations set down in Rome. Stewart responds by accepting that “it is not going to satisfy the audience to say that it is too early to tell”. Rather, he recognises the “anxiety and impatience for results”. At the same time however, he notes that the ICC has been designed by States to act as a “backstop” or “failsafe mechanism” so that where States who have the primary responsibility to prosecute genocide, war crimes and crimes against humanity are unwilling or unable to investigate or prosecute Rome Statute crimes, “only then will the ICC step in to ensure justice is done”. Stewart accepts that the OTP has experienced “real setbacks”, but he emphasises the notable successes which are evidence that the OTP is able to achieve results, such as the successful convictions of Ahmad Al Faqi  Al-Mahdi, Bosco Ntaganda – on all counts of war crimes and crimes against humanity, and Jean-Pierre Bemba Gombo and his co-defendants for crimes against the administration of justice.

But wasn’t referring to over twelve failed prosecutions compared to only three final convictions for core crimes, and excoriating criticism from Judges as merely a “setback” somewhat of an understatement, I ask?  With respect to the judgments, Stewart is clear that the OTP is open to constructive criticism – emphasising the word “constructive”. But he is clear that the way the OTP operates today is very different to how it has operated in the past. “The Office is continually improving the way it works,” he says, “optimising systems, bringing out the best in our people, and creating a culture to ensure critical thinking and self-reflection”.

I ask Silvia Fernandez to consider the challenges facing the judiciary. Fernandez replies that “they are the same as when I left”, the key challenge being to “expedite proceedings and enhance their quality”. Picking up on Stewart’s comment, she notes that while the judges have indeed been critical of the OTP, “it is important that they too exercise self-reflection to look into their own actions and processes”. Fernandez accepts that this is easier said than done. First, many of the problems which impact on the length of proceedings are beyond the control of the Judges, such as insufficient cooperation and the protection of witnesses. Second, she says that the “lack of a collegial approach” from the Judges must be tackled. Without addressing the problem, there will be “even more fragmented decision-making with multiple separate and dissenting opinions, leaving real uncertainty as to the state of the law”. Third, while the harmonisation of practices and procedures will go some way towards achieving the goal of greater efficiency, there will be times when Judges have to recommend changes to the Rules of Procedure and Evidence. But Fernandez laments that “this avenue has been virtually closed off because of an insistence by States to seek unanimity for amending the RPE”.  This is not required under the Rome Statute but, she argues, “States are prepared to allow a single one of their member to block – sometimes for political reasons – what are technical changes necessary to increase the efficiency of proceedings”.

I then ask Peter Wilson to set out the challenges for States Parties to the Rome Statute. He names three. First, there must be real engagement by States in order to articulate common objectives vis-a-vis the Court. This is not easy within a context where it is “difficult enough just to agree the ASP agenda”. The second challenge is non-cooperation: tackling this is vital to the Court’s success. It goes to the heart of the relationship between States and the Court, and, he says, “it remains imperative that every State voices its concern when the Court makes findings of non-cooperation, rather than let a small handful of States who do speak out suffer repercussions when they take a stand”. Third, it is important for States like the UK “to have the space to speak out to say that not everything is right with the Court”. This should not be taken to mean that those who do this – like the four former ASP Presidents – do not support the Court. In the past, States have been reluctant to say publicly what they have been voicing in private. But this has changed, enabling “an open conversation about the need for reform”. To the UK, a reform process will be “a chance to strengthen the Court, not undermine it” – but Wilson accepts that those within the institution feel under attack and so there is a need to ensure the message is delivered correctly. Continue reading →

Posted in Guest Posts, ICC Prosecutor, ICC Registry, International Criminal Court (ICC), International Criminal Justice | Tagged | Leave a comment

All but a Pipe Dream? Seeking Justice for Wartime Atrocities in Sri Lanka

Posted on November 14, 2019 by Mark Kersten

B. Aloka Wanigasuriya joins JiC for this post on the chances of Sri Lanka achieving justice and accountability for atrocities committed during the country’s civil war. This piece coincides with the ten-year anniversary of the end of the war. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Instead of being prosecuted for alleged war crimes, Shavendra Silva was recently appointed to Sri Lanka’s second-highest army ranking (Photo: Reuters)

In May 2019, Sri Lanka marked ten years since the end of its civil war that raged for nearly three decades between government troops and the guerrilla force, Liberation Tigers of Tamil Eelam (LTTE). An estimated40,000 civilians perished during the final offensive, which lasted from January to May 2009, and allegations emerged of the commission of serious international crimes by both parties to the war.

Calls to establish a UN-mandated international justice mechanism to investigate the alleged international crimes appear to have fallen on deaf ears. As Sri Lanka has not ratified the Rome Statute it is not subjected to the jurisdiction of the International Criminal Court (ICC). Therefore, the ICC cannot currently prosecute alleged crimes committed in Sri Lanka. The only avenue for ICC prosecution is through a UN Security Council referral of the situation to the Court – and the chances of that happening are slim to none. No domestic prosecutorial avenues exist for seeking criminal justice for these alleged international crimes. Since the end of the war, several attempts have been made by victims and human rights groups to bring the alleged perpetrators of these crimes to justice either through utilizing the national laws of other states not party to the conflict (for example through filing civil suits) or through the application of universal jurisdiction. However, due to a host of political reasons, the current possibilities of accountability look bleak.

Extraterritorial prosecution

 In September 2017, citing “the absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law”, the UN High Commissioner for Human Rights advocated for the use of universal jurisdiction. However, as repeated previous failed attempts indicate, the exercise of universal jurisdiction to bring perpetrators of the alleged international crimes to justice isn’t an easy task. In 2012, a US court rejected a lawsuit against the then Sri Lankan president, Mr. Mahinda Rajapaksa reasoning that as a foreign head of state, he enjoyed immunity from prosecution. Similarly, in late 2010 an attempt at seeking an arrest warrant against Mr. Rajapaksa and senior members of his entourage during a visit to the UK came to naught. In 2011, a similar attempt seeking his arrest during his visit to Australia for the Commonwealth Heads of Government Meeting was rejected by the then Australian Attorney-General due to head of state immunity.

In the past, incumbent and former heads of state such as Charles Taylor (former president of Liberia) and Slobodan Milosevic (former president of Serbia and the Federal Republic of Yugoslavia) have been prosecuted by international criminal courts and tribunals. However, such cases have been rare. Recently, states have been reluctant to arrest current or former heads of state from other countries. For example, despite an ICC arrest warrant being in place for his apprehension, the former Sudanese president, Omar Al Bashir managed to travel unhindered to numerous countries. However, in a recent turn of events, the Appeals Chamber of the ICC in its judgment in the Jordan Referral re Al-Bashir Appeal, held that neither State practice nor opinio jurissupports the existence of head of state immunity under customary international law vis-à-vis an international court. This was also held to be relevant “for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State”. However, given indications of a possible request for an advisory opinion from the ICJ, this is unlikely to be the final word on the immunities issue.

Previously, in instances such as in (i) the prosecution of former Chilean leader, General Pinochet, and (ii) the ICJ Arrest Warrant Case (Democratic Republic of the Congo v. Belgium, 2000) concerning the Belgian arrest warrant issued against the incumbent foreign minister of the DRC, attempts were made to apply universal jurisdiction to prosecute individuals using a second state’s domestic legal system. Of these, the latter could be relevant to the Sri Lankan situation given its links to the alleged commission of war crimes and crimes against humanity, and the personal immunities extended to certain categories of state officials. Here, the ICJ found no exception under customary international law that strips away the immunity from criminal jurisdiction granted to incumbent government ministers who are suspected of committing war crimes or crimes against humanity. This suggests however that this personal immunity terminates at the cessation of the state official’s official duties, hence exposing them to the possibility of prosecution. Still, due to states not wishing to be exposed to a diplomatic minefield, the chances of a second state arresting and prosecuting individuals such as the former president of Sri Lanka on international atrocity crime charges through exercising universal jurisdiction remains slim. Continue reading →

Posted in Guest Posts, International Criminal Justice, Sri Lanka, Transitional Justice | Tagged , , , | 2 Comments

Empty promises? Why State Leaders Renege on the Commitment to the International Criminal Court

Posted on October 30, 2019 by Mark Kersten

Marco Bocchese joins JiC for this piece exploring why state leaders renege on their commitments to the International Criminal Court (ICC) and, especially, why they do so after joining the ICC. Marco is currently a visiting assistant professor at the University of Illinois at Chicago (UIC), Department of Political Science. His academic article on this subject, After Ratification: Predicting State Compliance with ICC Treaty Obligations, can be found here. 

Rodrigo Duterte, President of the Philippines (Photo: Aaron Favila / AP)

This is not a good moment in time for international law, let alone for human rights. Leaders of developed and developing nations alike are increasingly pushing back against legal obligations which, while often enshrined in international treaties their very governments ratified, now assertedly hinder the adoption of bold measures and policies aimed to address serious domestic issues.

To give but one example, Filipino president Rodrigo Duterte must have seen international laws as unnecessary hurdles in the way of his signature ‘war on drugs’ when in March 2018 he announced the decision to withdraw his country from the Rome Statute of the International Criminal Court (ICC). According to official figures, Duterte’s‘war on drugs’has resulted in 6.600 people killed since his election to the presidency in 2016, although human rights activists claim the death toll is much higher, at 27.000 casualties.  Unfortunately for the ICC and its remaining—but unwavering—supporters, Duterte was neither the first nor the only to bail out of the international criminal justice system established in Rome twenty-one years ago.

Just like Duterte, other heads of state who allegedly ordered or were otherwise implicated in the commission of serious crimes have either withdrawn or threatened to withdraw their country from the Rome Statute. The list includes former Gambian president Yahya Jammeh, former South African president Jacob Zuma, and current Burundian president Pierre Nkurunziza, though only the latter was  eventually able to withdraw his country from the Rome Statute. Legal and ethical considerations aside, the decision to leave the Rome Statute systems prompts a question which is not just theoretically intriguing, but also rich with policy implications: Why do countries that leave the ICC ratify a treaty like the Rome Statute in the first place?

In my latest study, published in the International Criminal Law Review, I carried out the first survey of diplomats from over 190 permanent missions to the United Nations headquarters in New York City. These are foreign policy experts—many, but not all, with legal expertise—whose responsibilities include advising their respective capitals on international law issues and negotiate the content and precise wording of treaties and other international law instruments. These diplomats, along with their predecessors, were the main actors in drafting the Rome Statute before its text was finalized in Rome in the summer of 1998; but their active involvement in the ICC never stopped. Today, permanent missions are involved in the vetting of judges, budget discussions and earmarks, advocacy and public diplomacy initiatives, and the monitoring of country situations whose gravity may warrant a UN Security Council referral to the Court—as happened in the past with Sudan-Darfur (2005) and Libya (2011). Most notably, many of these missions have worked tirelessly alongside NGOs to persuade non-state parties to ratify the Rome Statute and join the ambitious international criminal justice enterprise.

My study reveals that diplomats see state motives for ratification as a reliable predictor of future compliance with treaty obligations. In other words, they do not trust countries whose ratification was either pressured or rewarded to comply with Rome Statute provisions or cooperate with international investigations or prosecutions. While it is theoretically possible for state authorities to change attitudes towards the ICC after ratification, diplomats remain skeptical that governments who ratify the Rome Statute for interest-driven reasons will later come around and uphold the values underpinning said treaty. If states join the ICC for reasons other than to be good stewards of human rights and international criminal justice, they won’t become such stewards just by becoming part of the Rome Statute system. In all, the mere ratification of a treaty no longer warrants expectations of future compliance. Continue reading →

Posted in Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice | Tagged | 2 Comments

Impunity, Amnesty, and Incoherence: What justice for International Crimes committed in Mali?

Posted on October 28, 2019 by Mark Kersten

Janine Lespérance is a Legal Advisor for Lawyers without Borders Canada (LWBC – http://www.asfcanada.ca). LWBC supports Malian civil society and works to strengthen the ability of civil society actors and victims of the conflict, especially women and children, to participate in the transitional justice process. LWBC also directly supports the Malian Truth, Justice, and Reconciliation Commission.

Militants in Mali (Photo: AFP)

The effects that the Rome Statute has on the domestic prosecution of international crimes is often overlooked and overshadowed by analysis and critique of the International Criminal Court’s own results in terms of prosecutions and convictions. It is worth considering not only the effects of the ICC’s preliminary examinations on domestic prosecutions, but also the impacts of the ICC’s involvement in countries where it has active investigations or cases. One such situation is Mali, where the Court’s intervention may be having the unintended consequence of reducing the possibility of national justice for international crimes.

No national justice for international crimes in Mali

One of the ICC’s few convictions to date was in Al Mahdi, in which the accused pled guilty and was convicted of war crimes for the destruction of culturally significant buildings in Timbuktu. More recently, charges before the ICC were confirmed against another Malian: Abdoulaziz Al Hassan, accused of crimes against humanity and war crimes for several acts, including sexual violence. These two cases result from the ICC’s investigation into Mali following the country’s self-referral to the ICC in July 2012. In its request to the ICC, Mali indicated its inability to investigate the grave crimes committed on its territory since January 2012.

The Al Mahdi conviction is significant for victims of the conflict in Mali, especially given the absence of justice at the national level: there has yet to be a conviction for international crimes in Mali’s courts. One former Islamic Police Commissioner was convicted for crimes (assault and battery, illegal detention, amputation, etc.) committed during the occupation of Gao, but not for war crimes or crimes against humanity. He has since been freed from prison.

There is no doubt that the challenges for the Malian state are significant and its capacity is limited. The security situation in the North remains precarious and there has been a disturbing rise of violence in the central region of the country, including several massacres of civilians. State institutions, including of the justice system, are largely weak and absent in the North.

Thousands of victims of violence in Mali thus await justice and reparation for the human rights violations they have experienced. Yet, recent developments raise questions as to the will of the State to prosecute perpetrators of serious crimes.

A contested and flawed amnesty law

Over the summer of 2018, Mali’s Council of Ministers approved a draft bill for the “Loi d’entente nationale” (or “National Accord Law”), an amnesty law that civil society organizations decried as a threat to victims’ rights. They succeeded in having it removed from the legislative agenda in December 2018. Consultations with civil society organizations were subsequently held and some changes were made to the Bill, integrating some of their recommendations. However, these changes were minor.

The Law, as adopted by the National Assembly in June 2019 and promulgated by the President in July, is deeply problematic (see Lawyers without Borders Canada (LWBC)’s full analysis of the law in French, or the executive summary in English). In short, it is vague and essentially incomprehensible as to the crimes that it applies to. It also sets out an overly simplistic process for perpetrators to be amnestied. Continue reading →

Posted in Amnesty, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Mali, Peace Processes | 1 Comment

Unreliable and Piecemeal: The Canadian Government’s Record on Global Justice

Posted on October 18, 2019 by Mark Kersten

Suspected members of ISIS wait to be searched by Kurdish forces (Photo: AFP)

The gap between the demand for global justice and its supply has widened. Victims of atrocities in Syria, Myanmar, Burundi, Venezuela, Ukraine and elsewhere demand justice — but very few are heard. Canada’s approach to international accountability efforts has become unreliable. The current federal election in Canada indicates that the issue is far from the minds of the parties vying for votes. It shouldn’t be.

The Liberal government has done some good on global justice. In 2018, it joined five other states in referring the alleged crimes against humanity committed in Venezuela to the International Criminal Court (ICC). It also lent financial support to some NGOs investigating war crimes in Syria, championed work to stem gender-based violence, and quietly engaged the government of South Africa to keep the country in the ICC.

But these efforts were piecemeal. International justice simply hasn’t been a foreign policy issue for this government or for the parties seeking to replace it. This represents a lost opportunity and is in contradiction to Canadian interests — at both the international and domestic level.

The Trudeau government has frustrated global justice more than it has bolstered it. In 2017, a definition for the crime of aggression was finally negotiated and added to the ICC’s mandate. It allows individual leaders to be held accountable for starting illegal wars and committing acts of aggression. Canada joined a small group of Western states in attempting to stymie those negotiations and dilute the crimes’ definition. At the same time, while Ottawa sent a peacekeeping contingent to Mali, it did nothing to support efforts to hold war criminals there accountable. Following the Trump administration’s bullying over the ICC’s possible investigation into Afghanistan, Ottawa’s silence was deafening. While it did support the referral of Venezuela to the ICC, it has not pushed for the Court to receive more funding for its increased workload.

The Trudeau government also framed two major issues with global justice ramifications as domestic ones: the SNC-Lavalin scandal and relations with Saudi Arabia. Despite what Ottawa says, the SNC-Lavalin debacle isn’t simply about jobs here in Canada; it’s also about a company that helped sustain the brutal regime of Muammar Gaddafi, one which eventually turned on and slaughtered its own civilians.

Saudi Arabia and its proxy forces have committed atrocities in Yemen (including the killing of children on a school bus). It is also clear that Saudi Prince Mohammed bin Salman was directly involved the murder of journalist Jamal Khashoggi. Yet Canada continues to sell military hardware to the Saudis. The Trudeau government has insisted that getting out of the deal is not so much about Saudi crimes as it is the cost to taxpayers. Khashoggi’s death — and not those of thousands of Yemeni civilians — led to the government finally stating that it would review its sale of military hardware to the Saudis. That was a year ago. No word yet on where that review will lead.

Successive governments, both Liberal and Conservative, have also been reluctant, if not flat-out negligent, when it comes to international criminals born, bred or living here in Canada. The most recent government estimates suggest that some 200 perpetrators of war crimes, crimes against humanity and genocide currently reside in Canada. We’ve known this for years. Yet no action is taken to prosecute them because, in the view of the government, it would cost too much.

Continue reading →

Posted in Canada, International Criminal Court (ICC), International Criminal Justice, ISIS, Islamic State, Kurdistan, Saudi Arabia, Syria | Tagged , | 4 Comments

Options on the Table: A Hybrid Tribunal to Prosecute ISIL fighters

Posted on September 18, 2019 by Mark Kersten

Amr Jomaa joins JiC for this post on the possible means to prosecute Islamic State fighters for international crimes. Amr a Project Officer for the MENA division at the Centre for Humanitarian Dialogue, specializing in international human rights and transitional justice issues.

Iraqi special forces conduct identity checks in search Daesh fighters in Mosul, Iraq, in 2017 (Photo: Reuters)

Achieving accountability for crimes committed by ISIL fighters and their accomplices seems like an arduous task. Many believe that the seven thousand detained individuals, nationals of 81 different countries, are not deserving of a trial. Those who do believe in due process seem bewildered on how best to attain justice. To date, the preferred solution has been to kick the can down the road and leave suspected fighters and those authorities detaining them to their fate. The solution seems limited, if not outright dangerous. Absent realistic and legally sound solutions, ISIL fighters might be gradually released from the Syrian Democratic Forces (SDF) prisons and participate in the resurgence of the Caliphate, a development recently noted by the Pentagon.

On 3 June 2019, the Swedish Ministry of Foreign Affairs convened a meeting to discuss matters of accountability for crimes committed in Syria and Iraq. Even though the meeting was inconclusive, the Swedish proposal to create a hybrid tribunal, a court that mixes both national and international elements – such as applicable law – to prosecute fighters has definite merits: it would allow a unified, streamlined process to investigate crimes committed by ISIL. Doing something is a necessity given US-backed forces holding the fighters warned they lack resources to prosecute and detain suspects indefinitely. However, there are still many obstacles impeding the creation of the court.

Determining the geographical location of the tribunal, which would directly affect the applicable laws and the nationality of the judges sitting on the bench, remains among the most significant point of contention. The tribunal should be hosted in Syria or Iraq, parts of which were previously considered territories of the so-called Caliphate. Domestic law, political interests, and questionable human rights practices might nonetheless get in the way of creating the court.

As Article 22 of the Iraqi Criminal Code proscribes the death penalty for “political crimes”, Article 21 excludes terrorist offences from this category, to allow indicted terrorists to receive the death penalty. The consensus among donor states is in rhetorical opposition to the death penalty as recently stated by French Minister of Foreign Affairs Jean-Yves le Drian who confirmed that France opposes the death penalty “in all places and at all times”. Additionally, compliance with due process of law in Iraqi courts in cases relating to ISIL fighters is questionable. Zeid Raad al-Hussain, at the time UN High Commissioner for Human Rights “expressed serious concerns at the creation of a committee tasked with making recommendations to accelerate implementation of death sentences in Iraq”.

Moreover, many donor states that would be instrumental in the creation of a hybrid court do not recognize the Syrian Government as the legitimate representative of the Syrian people.  Notwithstanding the significant allegations of violation of human rights in Syrian Government courts and prisons, which would preclude the creation of a hybrid court in government held-areas. France recognized the Syrian National Council “as the legitimate interlocutor” on 21 November 2011. Likewise, the United Kingdom’s Foreign Secretary William Hague declared that the “Assad Regime […] lost its legitimacy in the eyes of the wider world”. Absent recognition, states are unlikely to allow for any form of cooperation with the Syrian Government as long as it is under current president Bashar al-Assad. The creation of a hybrid tribunal requires, as a sine qua noncondition, at least some association with the host-state. Furthermore, legal systems in both Iraq and Syria are ill-prepared to host a hybrid court as both central governments remain hostile to the idea of accountability, even more so when it is internationalized.

The recently issued Dakar guidelineshighlight the need for personalizing the hybrid court to the conflict that gave rise to the contentious crimes. To do so, a hybrid tribunal would need to absorb the political sensitivities of both Iraq and Syria, a discouraging task. For example, a difficulty would arise if the Syrian Kurdish “Autonomous Administration” was to host the court. States hostile to Kurdish autonomy such as Turkey, a NATO member, could read the establishment of the court in northeast Syria as a step towards recognition by donor states of Kurdish independence. If it loses the territory it controls, for example, it would greatly hinder the functioning of the court, which needs to operate in a relatively stable environment. Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, Syria | 4 Comments

Hi Venezuela, You’ve Reached the ICC. Can We Put You on Hold?

Posted on September 16, 2019 by Mark Kersten

This article was originally published at CEPAZ, where a number of other posts on Venezuela and international criminal justice will be published over the coming days. The post is also available in Spanish here. 

A demonstrator rests during protests against the government of Nicolas Maduro (Photo: BBC)

In September 2018, six states – Argentina, Canada, Chile, Colombia, Paraguay, and Peru – jointly referred the situation in Venezuela to the International Criminal Court (ICC). Their decision to ask the ICC to investigate alleged crimes against humanity committed by the regime of Nicolás Maduro was unprecedented. Never before had states pooled their power and influence in order to issue a multi-lateral referral to the Court. Observers of the ICC and those affected by violence in the country could be forgiven for thinking that the joint referral would lead to swift action by the Prosecutor of the ICC. An investigation into Venezuela seems as likely to be opened next week as in ten years – or perhaps even never at all. The timing of events at the Court is unpredictable. But that may soon change.

Why the Joint Referral?

Seven months prior to the joint referral, the ICC Prosecutor had launched a preliminary examination into the situation in Venezuela. The country is a state party to the ICC and, despite purportedly being in the Court’s crosshairs, has not intimated any interest in withdrawing its membership. Any alleged international crimes being committed in Venezuela are therefore fair game for the ICC; they fall under the Court’s jurisdiction. One might then ask: what was the added value if the situation in Venezuela was already being examined?

Firstly, the referral obviated any need by the Prosecutor to seek the approval of judges to open an official investigation. This removed a legal obstacle that would, invariably, delay the opening of any investigation by at least the few months it takes ICC Judges to decide on such matters.

Second, the coalition’s referral was a demonstration of multilateral interest in an ICC investigation and an act of political support for such an outcome. As Nicholas Ortiz opines, “the referral does bolster the work of the Prosecutor by demonstrating that there is political will towards addressing the situation of Venezuela at the Court (…) It gives the Prosecutor, in the long term, the ability to expedite the opening of an investigation.”

Notably, investigations are opened much more quickly into situations that have been referred to the ICC by states (or the United Nations Security Council) than those that are opened proprio motu – upon the Prosecutor’s own volition. In theory at least, the referral should therefore have spurred action by the ICC Prosecutor to move towards an official investigation while raising the costs of dithering or not doing so. As Daniel Marín López and Aaron Acosta write, it should provide the ICC with an “undisputable opportunity to investigate grave crimes in Venezuela”.

Of course, we cannot discard the possibility that the referring states were more interested in the political ramifications of an ICC referral than the consequences of an investigations. Their actions may have been borne more of a desire to put pressure on the Maduro government than a conviction about the utility of an ICC investigation. But for all intents and purposes, the joint referral communicated political interest in an official investigation and removed a legal obstacle to doing so. The real impact of the referral was therefore to speed up the timeline of decision-making, to spur on the preliminary examination, and to galvanize an investigation.

It has been almost a year since those six states jointly referred the situation in Venezuela to the ICC. And yet, Venezuelans wait. The coalition of states that referred the situation to the ICC wait. Observers of the Court wait. We all wait.

The Gears of Justice Grind Slow – And Patience is Wearing Thin

It is not so much that the ICC is slow, although that has been a common critique levied against the institution; the real problem is that there appears to be little-to-no coherency to the timing and duration of decisions at the Court. Be it the Office of the Prosecutor requesting to open investigations or issue warrants or Judges deciding whether or not to grant such requests (hello, Afghanistan!), there is no apparent logic to why the organs of the ICC do what they do or when they do it. Sometimes things move deftly. At other times, decision-making seems glacial. This unpredictability could plausibly be strategic– but there is no indication that this is the case.

For the better part of its existence, the ICC could point to ‘growing pains’ for the lack of efficiency or the seemingly ad hoc manner in which many decisions were made. Many of the decisions that the ICC had to make were being made for the first time by any international tribunal. The leash was fairly – and rightly – quite long. But with a string of stinging prosecutorial defeats in the courtroom, protracted decision-making on cases like Afghanistan, poor crisis and communication management in response to states opposed to the Court, self-defeating and tone-deaf moves such as the Court’s own President suing the institution, and concerns about the quality of staff, state patience is running thin. Just a year ago, the United Kingdom – whose conduct in Iraq is under preliminary examination – declared that some investigations and examinations “are as old as the Court itself. This situation is not sustainable.”

Most member-states of the ICC, including the UK, remain committed. But they want more bang for their buck – and a better return on their moral and political investment in the Court. One area they are increasingly homing in on is preliminary examinations. Continue reading →

Posted in Argentina, Brazil, Canada, Colombia, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Paraguay, Peru, Preliminary Examinations, Venezuela | 1 Comment