It is More Dangerous than Ever: Chaos and Vigilante Justice in Libya

Posted on September 10, 2019 by Mark Kersten

Marieke Wierda joins JiC for this post, part of our ongoing joint symposium with Opinio Juris on Libya and International Justice. Dr. Wierda is the rule of law advisor at the Dutch Ministry of Foreign Affairs and ex-Transitional Justice Advisor to UNSMIL (2011-2015).  This blog is written in her personal capacity. Earlier today, Mary Fitzerald’s contribution to the symposium was published at OJ. Be sure to check it out!

Migrants sit outside of the Tajoura detention camp following an airstrike by militants (Photo: Reuters)

Libya has always been a dangerous place for migrants and refugees. They are often at the mercy of ruthless human traffickers, militias who trade them for money, or abusive state authorities who detain them indefinitely. Now it is more dangerous than ever. On 3 July, an airstrike hit a migrant center in Tajoura, killing 53 and injuring another 150, many of them women and children. The UN’s Libya envoy, Ghassan Salame, called the attack a war crime.  In the current chaos, those most vulnerable, such as migrants and refugees, are the first to suffer.

The response of the Security Council to the airstrike is illustrative of how difficult it has been to pursue accountability in the Libyan context. The Council condemned the attack but did not attribute it to any side. The international community remains deeply divided on Libya, and this complicates any efforts to call any of the parties to account for their actions.

It was not always this way. During the Revolution in 2011, the Security Council unanimously adopted Resolution 1970, which sought to protect civilians and to refer the situation to the International Criminal Court. The Resolution also enabled international armed intervention in Libya and eventually helped the revolutionaries to prevail against the regime of Muammar Qadhafi.

The demand for justice was there from the outset and helped to drive the Revolution.  Protests from the victims of the Abu Slim massacre in 1996 are what sparked the uprising against Qadhafi. Within two days, over 1,200 prisoners of the infamous prison in Tripoli were mowed down with machine guns. Family members were not informed about their deaths until 2008.  The Abu Slim massacre was a hallmark of the repressive nature of the Qadhafi regime and inspired the country’s opposition to rise against Qadhafi in 2011.

When they prevailed, the victory of the revolutionaries quickly seemed complete. In October, Qadhafi himself was captured alive near Sirte. Qadhafi was then tortured and killed. In the aftermath of the killing, around 65 bodies were found executed near the Mahari hotel, civilians mixed with members of Qadhafi’s close protection unit. No one was held to account. Continue reading →

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Libya and International Justice: A Symposium

Posted on September 9, 2019 by Mark Kersten

Libya and International Justice: A joint JiC and Opinio Juris Symposium

It isn’t for a lack of attention. Violence in Libya is covered almost daily in major newspapers and media outlets. Attacks on migrant camps, wanton executions of political prisoners (filmed a disseminated on social media), the thousands of refugees and asylum seekers perishing in the Mediterranean, and other acts of barbarity and violence, are widely known. Dozens of reports have been published on the subject, highlighting high levels of criminality, a widespread culture of impunity for international crimes, and a lack of recourse for those who seek accountability.

Yet there is no justice for these atrocities. There is no accountability for atrocities and human rights violations committed in Libya.

This status quo has resulted in the deaths and abuse of thousands of civilians. Many have demanded action and an end to impunity. But how can this be achieved? What options for justice and accountability are available and which would most appropriately address atrocities of the past and those that continue to be perpetrated?

Over the next week, JiC and Opinio Juris will host a symposium that delves into these questions and sheds light on ongoing atrocities and political violence waged in Libya. Contributors will outline why Libya finds itself in the violent political quagmire that it is in today. Options for justice that will explored include the creation of an independent investigative mechanism, additional action by the International Criminal Court (ICC) in the country, and political accountability for those entities and states that support actors on the ground known to commit international and transnational organized crimes. The pieces will explore what Libyan groups and factions as well as the international community can do to address injustices and how justice and accountability need to be prioritized if a sustainable solution to ongoing conflict in Libya is to be found.

Expert contributors to the symposium include:

Some posts will be available at both JiC and Opinio Juris, but the majority of the pieces will be posted at one or the other, so make sure to check in at both.

Of course, and as always, please do share your thoughts and views in the comment sections of the blog, on Twitter, or any other social media you use.

Posted in Libya, Libya and International Justice Symposium, Libya and the ICC, Symposium | 1 Comment

A New Chapter: Off to Law School

Posted on August 28, 2019 by Mark Kersten

If you squint, you can actually see McGill.

It was time to scratch that itch.

It is with great excitement that I announce a new chapter in my life and career: after ten years of pondering it, I have finally decided to go to law school. Beginning next week, I will be attending McGill University, where I will be enrolled in the school’s BCL / LLB programme. I’m thrilled to join a world-class department, to steep myself in both common and civil law, and to combine this new adventure with my continuing work in the field of international justice.

There are many reasons that I have decided to take on this new challenge in my career. As readers of JiC will know, I have studied and worked at the intersection of law and international criminal justice for the past ten years. However, I have always felt that there was something more that I could, and should, do. That something was to gain a greater understanding of the law and its practices, adding it to my career toolbox.

While I strongly believe this should not be the case, the reality is that even after years of working in international criminal justice, there are still some ‘rooms’ into which some of us are not invited or to which we do not have access, for the single reason that we are not lawyers. Law at various levels continues to exclude many people – including those whose rights it seeks to uphold. I remain frustrated and worried about the lack of fluency that exists among citizens around the world to the law and legal issues, often due to the fact that law often remains practiced through inaccessible jargon and verbiage. From the outset, this blog was an attempt to translate complex legal ideas and developments into an accessible format that wouldn’t require much, if any, expertise in international criminal law. Over the coming years at McGill, I hope to spend much of my time thinking about and working on how to continue translating key legal developments and subjects as well as working to decolonize international criminal justice.

I am particularly excited to gain a richer understanding of the fascinating and unique logic and forms of argumentation that exists within legal practice. At a time where the demand for global accountability far outweighs its supply, I want to look for creative ways to apply new skills and tools to issue areas of interest, including the linkages between transnational organized crimes and core international crimes and the nexus between migration and atrocity crimes. I would also like to explore the relationship between population flows, relevant laws, evidence collection, and global accountability efforts.

I sincerely hope that my decision does not suggest a belief that one cannot carve out a career in international criminal justice without a legal foundation. Let me stress: it is absolutely possible. My decision is not due to being ‘stuck’ and it does not represent a career-change. It instead reflects a desire to add new tools to a career in international justice and conflict resolution that I will continue in the coming years. My aim is to be fluent in both the politics of law as well as the law of politics.

This is just the beginning of a long journey, but rest assured that JiC will continue to publish the work of leading scholars and thinkers in global and transitional justice. In the next couple of weeks, the site will play host to a number of new articles as well as a symposium on Libya and international justice. Stay tuned! Continue reading →

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Marginalization and Conflict – The Politics of Memory in Mozambique

Posted on August 12, 2019 by Mark Kersten

Natália Bueno joins JiC for this guest-post on the latest battle for Mozambique’s politics of memory. Natália is a Postdoctoral Researcher Project CROME, CES-University of Coimbra. 

Landmines were used extensively during Mozambique’s civil war (Photo: Skoll)

Troubling news has dominated media coverage in Mozambique in recent months. The devastating impact of Cyclones Idai and Kenneth, former Finance Minister Manuel Chang´s extradition stalemate, and difficulties in voters’ registration have dominated the news cycle. In the midst of such urgent matters, the verbal attack of the member of parliament Alice Tomás from the ruling party Frelimo against the activist and researcher of the NGO Centro of Integridade Pública(CIP), Fátima Mimbirewas, was also in the news. Why? Because in Tomás’ reply to a Facebook post made by Mimbire, she argued that the activist deserved no less than “to be raped by 10 strong men”. In case the reader has not guessed yet, Mimbire’s post pertained to Afonso Dhlakama, the former leader of the opposition Renamo party; or more precisely, it was a post in which she raised questions about Mozambique’s national heroes and whether or not Dhlakama deserved to be part of this select club. Mimbire attacked the very heart of Frelimo’s politics of memory: the reproduction of a narrative in which its members are the saviors of the country and, therefore, the ones to be remembered. To include Dhlakama in such a club would either call this narrative into question or lead to its fundamental revision.

First things first. For 38 years, Dhlakama was the number one of the National Mozambican Resistance (Renamo), Mozambique’s second political force and former guerrilla movement. He had shortly joined the movement in 1976 when he became its leader following the death of André Matsangaíssa in 1979. Considering that the civil war between the Mozambique Liberation Front (Frelimo) and Renamo lasted for almost sixteen years (1977-1992), Dhlakama commanded Renamo nearly for its whole duration.

The number of war-related deaths from the civil war was close to one million. In addition, 1.5 million were forcibly displaced and made refugees in the neighboring countries due to the horrors of the war. According to UNICEF estimates, 90 percent of the population was living in poverty and 60 percent living in absolute poverty by the early 1990s. Against this backdrop, no one could argue that the war had not left Mozambique in shatters. Disagreement was reserved for ascertaining the root causes of the war.

On the one hand, Frelimo’s authorities portray the civil war as an extension of the war of external aggression, initially led by Rhodesia, and then continued by the Apartheid regime in South Africa; or, in a simpler way, a war of destabilization. On the other hand, in characterizing the civil war as a battle for democracy, Renamo emphasizes the internal element of it, namely as a violent response triggered by Frelimo’s post-independence authoritarian regime and repressive policies. Boiling down these understandings, if one agrees with Frelimo’s interpretation of events, Dhlakama should never be considered a national hero. Conversely, if one puts themselves on Renamo’s side, Dhlakama surely deserves a spot in the pantheon of heroes as the “father of democracy”. Continue reading →

Posted in Memorialization, Mozambique, Politics of Memory | Tagged | Leave a comment

Launched! The Dakar Guidelines on the Establishment of Hybrid Courts

Posted on July 30, 2019 by Mark Kersten

The Dakar Guidelines on the Establishment of Hybrid Courts

Look ma, we made something useful!

I am beyond excited (and proud) to announce that my colleague and friend Kirsten Ainley and I have published the Dakar Guidelines on the Establishment of Hybrid Courts! They can be found, in full (and for free), here.

Here is the gist of what the Guidelines offer:

The goal of the Dakar Guidelines is to provide a reference guide on the establishment of hybrid courts. As such, the Dakar Guidelines do not represent a roadmap, nor are they a best practices manual. Rather, the Guidelines offer national, regional, and international actors involved in the establishment of hybrid tribunals a set of key decision points and design options that should be considered when establishing and running a hybrid court. The Guidelines are particularly tailored to two purposes: (1) to highlight issues that have proven complicated or had long-term implications for past hybrid courts and so should be given special consideration in the design phase, and (2) to suggest design components that may increase the resilience of the court (i.e., the court’s own capacity to act independently and to resist political, financial, and other pressures), and the resilience of affected communities through engagement with the court. They further offer interested observers, academics, researchers, and students a comprehensive and coherent study of the hybrid court model. They are, in short, a practical set of guidelines on the establishment of hybrid tribunals meant to be of utility to a broad array of constituencies.

The Dakar Guidelines are an output of the Hybrid Justice Project. The project, which is a product of its members’ interest in the intersection between international criminal law and international relations, focuses on hybrid courts and resilience. Resilience in this context refers to the ability of hybrid courts to withstand political and other pressures in order to deliver justice and account- ability, while also bolstering the resilience of affected communities. The interest of the project in hybrid courts is thus not on the traditional focus of efficiency, rates of convictions, prosecutorial strategies, or the value for money that hybrids offer. Rather, its interest is in the design options available to the creators of hybrid tribunals as well as how their design affects the resiliency of these institutions.

The issues arising when designing a court are complex, and the Guidelines endeavour to outline the choices available and to explain their advantages and disadvantages in different contexts. The Guidelines do not propose a single model to fit all situations. This is not a checklist or a box-ticking exercise. The Dakar Guidelines offer a series of lessons learned, questions to ask, and recommendations based on prior experience. In each section of the Guidelines, we discuss the design choices to be made, their implications and, in many sections, recommendations. These recommendations are based on extensive research, the experience of the practitioners who have been involved in drafting the Dakar Guidelines, reports by courts, legal practitioners and civil society organisations, and academic literature.

The Guidelines are the product of over two years of work and research. We are indebted to a brilliant team of drafters with whom we have been working since our first meeting in Dakar in the summer of 2017: Philipp Ambach, Fidelma Donlon, Elena Baylis, Tiya Maluwa, and Angela Mudukuti. For their indispensable contributions and support, thanks also go to Stephen Rapp, Dov Jacobs, Sareta Ashraph, Maddalena Procopio, Claire Wilmot, Kelly-Jo Bluen, and Hanna Rodehau-Noack. Finally, none of this would have been possible without the unflappable encouragement and support of the Wayamo Foundation and the LSE Institute of Global Affairs.

The Dakar Guidelines can be found and downloaded here. They were part of a larger project on Hybrid Justice. For more, see our website here.

Posted in Hybrid Courts, Hybrid Tribunals | Tagged , | 1 Comment

The ‘Fallen’ Miss Venezuela – The Sexualisation of the Venezuelan Tragedy

Posted on July 26, 2019 by Mark Kersten

The following is a guest-post by Noemí Pérez Vásquez, an independent human rights law consultant and PhD Candidate at SOAS, University of London. This blogpost and Noemí Pérez Vásquez’s attendance to the Siracusa Institute 19th Specialization Course in International Criminal Law for Young Penalists was supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada. The article can also be found in Spanish, here.

Venezuelan women await food donations in Boa Vista, Brazil (Photo: Andre Coelho / Bloomberg)

One of my childhood memories is being in a playground and playing Miss Venezuela. It was no small thing. We grew up taking pride in our origins, a country where the large range of mixed races contributed to our ‘mestizaje’ and the Miss Venezuela, a night when families would get together to support the representative of their local region, was at the centre of this narrative. Only after several years did I realise not only the self-inflicted damage that this wrought upon our national psyche, but that other countries would also have this image of ourselves as the country of beauty pageants. What we did not know, was that in times of crisis, this was to become a double-edged sword.

Due to a political, economic and humanitarian crisis, Venezuelans are fleeing and leaving everything behind to reach safety. According to the UN Refugee Agency, as the number of refugees and migrants from Venezuela tops 4 million, this has become the largest migratory flow in the history of the American region and after Syria it is currently the second largest in the world. Recently, it was announced that while for the first-time applications of asylum seekers in the European Union from Syria were down 8% from 2018 to 20,392, Venezuelans also came as the second largest nationality represented, with 14,257 citizens. While a government accused of committing gross violations by the UN High Commissioner for Human Rights is in denial, Venezuelans are living a daily nightmare without seeing a light at the end of the tunnel.

Last month, the Organization of the American States (OAS) released a report according to which Venezuelan migrants and refugees could reach between 5.3 and 5.7 million by the end of 2019, and between 7.5 and 8.2 million by the end of 2020. That would mean that with a former population of 30 million, the expectation is that around 30% of them will be gone by next year. While Venezuelans are desperately trying to leave the country and hoping to send money for food and medicines back to their beloved ones, the whole situation has become a breeding ground for trafficking, sexual slavery, child exploitation, forced prostitution and survival sex of Venezuelan women and girls.

The sexualisation of this tragedy is widespread. Starting with the Dominican Republic, where Venezuelan women have arrived to work as sex workers. I was told by a friend working in this sector that because many Dominican men prefer to hire the services of the Venezuelan women due to the novelty and their appearance, this has altered local dynamics and generated rivalry among local sex workers. In Mexico, the aspiring model Kenny Finol, who ended up working as an escort, was brutally tortured and murdered by a drug dealer and hitman. Last year, the Colombian police detained in Cartagena a Navy Captain accused of pimping, prostitution and trafficking more than 250 girls and adolescents, mainly from Venezuela. While the ring was comprised of foreigners and Colombians, including members of the state security apparatus, the Captain dared to order the minors to have a tattoo bearing his name, a trait indicative of ownership and thus sexual slavery.

Something similar is happening in Trinidad and Tobago, where the police have detained corrupt police officers with ties to gangs, money laundering and human trafficking – Venezuelan girls being their preferred targets. Moreover, because the Venezuelan government decided to close the borders, there are accounts of women being sexually and physically abused when they attempt to cross irregular paths and of sex workers being returned by Colombian immigration officers aware that they could be raped upon their return. But the tentacles of trafficking also extend outside the Americas region. In Spain, the police continue to uncover trafficking rings that bring and force Venezuelan women and transgender persons to engage in prostitution. The list of cases that are surfacing seems endless. From stories of women being forced to pay their rents in Colombia through sex, to a pejorative rap song in Panama, to underwear that read ‘to your service, I am your Veneca’ in Peru, our dignity has been stripped away. Continue reading →

Posted in Guest Posts, Latin America, Migration, Sexual and Gender Based Violence, Sexual Violence, Venezuela | Tagged | 5 Comments

A Reality-Check: The Need for Reform and a Culture Change at the ICC

Posted on June 17, 2019 by Mark Kersten

His Honour Judge Keith Raynor joins JiC for this post on the need for reforms and a culture change at the International Criminal Court. Keith is a Circuit Judge at Woolwich Crown Court in London and Vice President of The Kosovo Specialist Chambers. This blog is based on a talk he gave at Lincoln’s Inn in London on 22nd May 2019, a full copy of which can be found here.

(Photo: Schmidt Hammer Lassen)

Not long ago, a fellow judge of mine at the Kosovo Specialist Chambers argued that the moment has come for the International Criminal Court (ICC) to “re-calibrate and to do a reality-check”. That is right. The time has come to reform. This post offers some views – and many questions – on what may be needed for the ICC not only to survive, but to prosper in the future.

The recent Afghanistan Pre-Trial Chamber (PTC) decision is equivalent to the child’s unmasking of the reality of The Emperor’s New clothes. No more pretence that the law is supreme.  An acknowledgement or perhaps a surrender to the reality that power politics will inevitably influence decisions and that powerful States are unlikely to be held to account.

To expand the Emperor’s clothes metaphor, it is going to be difficult for the Court to conceptualise, design, cut, create, modify, produce , brand and market a real set of clothes embroidered with a clear message of legitimacy for Emperors to wear – especially if weavers believe that they are now participating in a “rigged” market.

For victims, the news is depressing. The Afghanistan decision indicates that their expectations amount to no more than aspirations; that the institution in which they had placed enormous trust may actually be incapable of recognising their suffering because judges have determined that investigations might not be feasible, might  inevitably be doomed to failure or, because the prospects for successful and meaningful investigations are unlikely, for instance due to limited prospects of meaningful cooperation from relevant authorities.

So, the time has come for practitioners, members of staff at the ICC, judges, observers, academics, diplomats and all others who have an interest in the survival of the court, to encourage immediate, tough institutional reform and the emergence of a more positive culture. The recent PTC Afghanistan decision should be viewed as the catalyst for immediate change. True, meaningful proposals for reform can only be implemented through the Assembly of States Parties (ASP). But the ASP must act now. If not, the future of the court will remain at risk.

Former presidents of the ASP have together recommended that a group of experts undertake an independent assessment of the court’s functioning is a move in the right direction. But is appointing a team of experts to produce a UN- style report really enough?  In times of crisis, the unimaginable become the imaginable. We are dealing here with the failure of a business model and there is a pressing need for fundamental restructuring. Appointing a traditional UN panel of experts may not be the best available option. Has the time come for the court to look to experts in business restructuring to assist?  Should a Chief Executive Officer of a multi-national corporation be recruited to investigate and re-shape the ICC? The key, regardless, will be the effective implementation of sensible, even if radical, proposals.

Perhaps now, after the Afghanistan decision, we have a  catalyst for meaningful reform aimed at making the ICC more focused, re-shaping procedures that currently have little value(for instance, the confirmation process being transformed into a mini-trial) , ensuring personnel truly of the highest calibre are  employed, building a more positive, united culture. Doing this would provide a greater opportunity for the ICC to operate more effectively and avoid being reduced to a “pointless” exercise.

Coming Clean?

If an enhanced awareness of Realpolitik is now the name of the game, should the ICC Office of the Prosecutor (OTP) “come clean” and ditch other investigations, which have no realistic prospect of success or, in other words, to be honest with everyone (and especially victims) and say “this situation is not going to end up with accused being indicted and trials taking place, so we’re abandoning ship”?

The OTP is spread too thinly. That is clear. It cannot deliver quality investigations across so many fronts, given its budgetary restrictions. Should the OTP now prioritise and concentrate on, say 10 matters only? If this was done there would no doubt be severe criticism, especially from victims. But what is the alternative? Potentially allowing weak investigations and cases to trundle on for years, using up resources that can more effectively be deployed elsewhere. It is a depressing prospect I accept, but the Court cannot perform an “Everyman” function properly. We have enough evidence of that as it stands.

Does the OTP need to put concrete action before expressivism?  The Emperors’ New Clothes have been revealed. Now politics trumps expressivism. The PTC Afghanistan decision now suggests that, far from casting its shadow, the court has in effect encouraged powerful States to act with impunity and disregard international law and sent the message that bullying wins and non-cooperation is rewarded”. Continue reading →

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

Justice for War Crimes in Liberia? An Interview with Adama Dempster

Posted on May 29, 2019 by Mark Kersten

Adama Dempster speaks at an event organized by the Wayamo Foundation in Accra, Ghana, on 21 March 2019. Photo: Elise Carreau, Wayamo Foundation)

Will there ever be justice for the mass atrocities committed during Liberian civil wars? The pressure is mounting.

Ever since footballer / soccer player-turned politician George Weah was elected as President of Liberia in 2018, there has been a growing demand on the Liberian government to finally create a war crimes tribunal to investigate and prosecute atrocities committed during the country’s civil wars. While similar demands had been thwarted under previous President Ellen Johnson Sirleaf, many saw an opportunity to renew pressure when Weah was elected. Weah had no involvement with any of the factions at the heart of Liberia’s civil wars (and therefore faces no allegations) and had been on record supporting justice and accountability efforts in Liberia. As a United Nations Goodwill Ambassador, Weah declared in 2004 that “Those who armed the children and committed heinous crimes against them should be brought to book.” Many also point out to the fact that Liberia’s Truth and Reconciliation Commission specifically recommended the creation of a hybrid tribunal to investigate and prosecute alleged perpetrators for war crimes committed during the civil wars.

While efforts to create a war crimes court in Liberia have gained momentum, significant attention, as well as some international support, to date, they have been stymied be a reluctant government in Monrovia. Weah’s tone has changed from his days as a Goodwill Ambassador. He now insists that Liberians have to choose between a pursuit of justice and the privilege of stability: “I think what we need to do is that, we got to find out what we need. Do we need war crimes court now to develop our country? Or do we need peace to develop the country?” Some personalities implicated in atrocities during the civil wars are also in positions of political power in the country, surely eager to keep a lid on any momentum towards the creation of a war crimes tribunal.

None of this, however, has quelled the efforts of civil society groups to advocate for a hybrid court. One of those pushing for accountability is Adama Dempster, an eloquent human rights and justice campaigner who has worked tirelessly to advocate for justice for victims of atrocities in Liberia. For all readers interested, here is my interview with Adama. It was conducted in March 2019 in Accra, Ghana, during events organized by the Wayamo Foundation.

Posted in Hybrid Courts, International Criminal Justice, Interview, Interviews, Liberia, War crimes | Tagged | 1 Comment

Is the International Criminal Court Still an Aspirational Institution? Can it Be?

Posted on May 22, 2019 by Mark Kersten

The following piece was originally posted at EJIL:Talk!. Many thanks to Dapo Akande and Mary Guest for agreeing to publish the piece there and allowing it to be cross-posted here are Justice in Conflict. 

(Sketch: ArchDaily)

What is the promise of the International Criminal Court (ICC)? What do we, as observers, scholars, and constructive critics of the Court, believe that the ICC should do in a world of populism, altered balances of power, and persistent atrocity? Why has the Court been able to achieve so little and what would be required, in terms of new strategies and reforms, to build a better ICC? What do we believe that the institution should look like in the future? What is our vision of the ICC?

Over the past few weeks, EJIL:Talk! has hosted a number of thoughtful and thought-provoking essays seeking to answer some of these questions. With this piece, I want to ask admittedly less than legal questions: is the ICC becoming a less aspirational institution and can we balance the aspirations of ICC justice with the need to deliver meaningful accountability?

The Shadow of Expectations

It is now conventional wisdom that, for the majority of its existence, the ICC and its backers promised too much to too many. As is often pointed out, the Court and its most fervent champions set expectations that the ICC could never meet. They insisted that the Court would end impunity for international crimes, put victims front and center in all of its work, transcend global power relations, deter mass atrocities, hold the most powerful to account, promote reconciliation… you name it. It’s a laundry list of things that the ICC didn’t achieve because it couldn’t achieve them. It should never have been asked to.

The ICC hasn’t been a panacea for political ills such as violent political conflict or social challenges such as reconciliation. Unmet expectations have thus left many proponents privately regretful of having espoused unrealistic expectations about the Court and worrying about the disappointment that ensued. Now, the aim of many – both inside and outside of the ICC – is to focus on being realistic and on what the Court can realistically achieve. But there may be a cost to bending too far towards practicality: the loss of an institution that is meaningfully aspirational. The goal must be to strike a balance practicality and aspiration.

The Turn to the Practical

The ICC’s turn to the practical has been subtle, though unsurprising given the turmoil surrounding the institution. The Court has very few successes to show for itself. It can count more recent controversies (the President suing his own court, a sitting Japanese Judge preferring to be an ambassador) and controversial decisions (on head of state immunity, on the Afghanistan investigation), than trials that end in verdicts.

It is also clear that in situations where the Court took potentially greater risks and where it would have, at best, limited access to crime scenes or cooperation from relevant states, it hasn’t paid off. For example, the interventions in Darfur and Libya at the request of the UN Security Council have not resulted in a single person from either situation being prosecuted at the ICC. But they have led to serious concerns about the Court’s relationship with the Council.

Against this backdrop, it makes sense that the Court and those who support it would want to be cautious and focus on more manageable goals in order to get some ‘wins’ – trials that lead to convictions – rather than on ‘hard’ cases that may or may never be won. But it shouldn’t be an either / or scenario. The ICC needs to find ways to be both realistic and aspirational.

The turn to the practical has been defined by arguments that are increasingly evident in the thinking of many of those who cover the institution: the ICC should focus on what it can achieve, biting off only so much as it can chew; never more. After so many setbacks, the Court’s ‘institutional interests’ should be put first. It should investigate only those situations and those cases that can be investigated and that have a decent chance of leading to prosecutions. It shouldn’t pick fights with states that have an arsenal of politically and legally coercive comebacks. If a situation or case isn’t likely to add ‘1s’ to the prosecution’s columns and to member-states’ performance indicator tables, it probably isn’t worth it.

The “interests” of the ICC and the Afghanistan Decision

More than anything else, I believe that this turn to practicality helps to explain the decision of ICC Judges not to approve an investigation into Afghanistan as well as the support that observers lent to it. It was not about victims or justice. It wasn’t about “interests of justice” either. It wasn’t even – and this bears stressing – about whether the situation in Afghanistan met the threshold required to open an investigation.

The decision was about what outcome would be best for the International Criminal Court. What was best, according to this logic, was to avoid an investigation into a situation where cooperation wouldn’t be forthcoming and which would lead to additional scorn from Washington. In its justification, it was all about saving the ICC from its aspirational self. An investigation was deemed too difficult, so it wasn’t even worth trying. Three robed officials decided that delivering justice didn’t look likely, so it wasn’t worth aspiring to. Continue reading →

Posted in Afghanistan, International Criminal Court (ICC), International Criminal Justice | 37 Comments

“When We Read a Story, We Inhabit It.” Selectivity and the International Criminal Court

Posted on May 21, 2019 by Mark Kersten

The following piece was originally posted as part of a symposium at Opinio Juris on Jonathan Hafetz’s excellent new book, Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism. Make sure to drop by OJ to check out some of the other posts this week!

Understanding selectivity is something of a holy grail among scholars of observers of international criminal justice. If we could just grasp the reasoning behind why courts go after some people in some places some of the time, we would be able to explain the law and politics of the international tribunals. What is obscured by a multitude of theories, conflicting accounts, and empirical evidence would suddenly become clear. The clouds would part, the mystery gone. It is no wonder, then, that the quest to understand selectivity has been as persistent as efforts to cement international criminal justice as a feature of global politics.

In his smart and thoughtful book, Jonathan Hafetz tackles this “thorniest” of issues and asks us to consider questions of how selectivity might relate to ideas of legitimacy and fairness in international criminal law. The primary target of his analysis is the International Criminal Court (ICC). Hafetz observes that the ongoing tensions between the ICC’s selection of situations to investigate and cases to prosecute have been intimately related to perceptions of the institution’s credibility:

Continued asymmetries in the selection of situations and cases – even if largely the product of a tribunal’s design and the practical obstacles it faces – will hinder the ICC and other international tribunals from satisfying broader conceptions of fairness rooted in the equal application of criminal responsibility under international law.

Only the most insincere advocate of international criminal justice would say that the selection of situations and cases before the ICC is justifiable or “fair”. It is not, and it has never been. Whether it be the overwhelming focus on African situations and cases, the asymmetrical selection of cases within those situations, or the reluctance to investigate and prosecute powerful global actors, selectivity – perhaps even more than the enforcement of warrants – has been the Achilles heel of ICC legitimacy. And to be clear: selectivity is not just a matter of institutional design or jurisdictional limitations. It is a matter of prosecutorial strategy and institutional prerogatives.

So, what then can be done? Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice | 2 Comments