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

Ten Years Later: Seeking Justice for Wartime Atrocities in Sri Lanka

Posted on May 18, 2019 by Mark Kersten

B. Aloka Wanigasuriya joins JiC for this post on ongoing efforts to achieve justice and accountability for atrocities committed during Sri Lanka’s brutal 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 (Dernmark).

(A Sri Lankan soldier surveys damage during the country’s civil war. Photo: Association for Diplomatic Studies and Training)

In 2009, during the final stages of its nearly three-decade long civil war, Sri Lanka was the subject of much international attention due to allegations of war crimes and crimes against humanity committed by its government armed forces and the Liberation Tigers of Tamil Eelam (LTTE). A UN report estimates that 40,000 civilians perished during the final offensive that lasted from January to May 2009.

Since the end of the war, multiple internationalorganisations have repeatedly called for a UN-mandated international justice mechanism to be established in relation to Sri Lanka. Those efforts have failed. In order to quell both internal and external calls for justice, the Sri Lankan government has engaged in several box-ticking exercises. However, with the 10thanniversary of the end of the conflict falling in May, and in the absence of any viable means through which victims and aggrieved communities can seek justice for the alleged crimes, initiatives to achieve justice and accountability have fallen short of any real attempt at combatting impunity.

International scrutiny

In May 2009, the UN Security Council expressed concern regarding the humanitarian crisis in northeast Sri Lanka, calling for urgent action by all parties to the conflict to ensure the safety of civilians.Earlier that year, the UN Secretary-General (UNSG) recommended establishing an accountability process for any international crimes. The government agreed. However, faced with a lack of concrete action, ayear after the end of hostilities,the UNSG appointed a panel of experts to advise him on the implementation of this joint commitment. The Panel’s report concluded that serious violations attributable to both sides of the conflict had taken place, warranting accountability under domestic and international law. It recommended establishing an international mechanism to carry out independent investigations into the alleged violations, whilst also monitoring and assessing the extent to which the government was carrying out an effective domestic accountability process. The report received a cold reception from the Sri Lankan government.

Calls for setting up a legal mechanism to try the alleged perpetrators of wartime atrocities continued. In 2013, UK prime minister David Cameron urged the Sri Lankan government to hold an independent international inquiry into the alleged war crimes. In March 2014, the UN Human Rights Council passed a resolution on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ stressing the importance of Sri Lanka complying with its obligations to prosecute those responsible for crimes under international law. Moreover, in September 2015, the United Nations Office of the High Commissioner for Human Rights (OHCHR) released its investigative report on Sri Lanka, recommending the establishment of “truth-seeking mechanisms, investigations, prosecutions … and measures to prevent the recurrence of … abuses”.

Instead of trying the crimes under domestic law, the OHCHR recommended establishing a hybrid accountability mechanism with international judges, prosecutors, lawyers and investigators. The rationale was to provide legitimacy to and instill confidence in the process, particularly among victims who doubted the impartiality of any process given the “politicisation and highly polarised environment in Sri Lanka”. Less than a month afterwards, UN Human Rights Council Resolution 30/1 again echoed the findings of the OHCHR report.Additionally, in his 11 September 2017 opening remarks to the Human Rights Council, the UN High Commissioner for Human Rights, called on Sri Lanka to establish transitional justice mechanisms, urging it to treat its obligations not as a mere“box-ticking exercise to placate the council but as an essential undertaking to address the rights of all its people”. To date, however, very limited action has been taken by Sri Lanka to address impunity.

National action

In terms of establishing an accountability mechanism, the three main steps taken by the Sri Lankan government have been the (i) Lessons Learnt and Reconciliation Commission (LLRC), (ii) Consultation Task Force (CTF) on Reconciliation Mechanisms, and (iii) Office on Missing Persons (OMP).

Of these, the LLRC was criticized in the UNSG Report for failing to meet international standards for an effective accountability mechanism.Instead of being an investigative commission, its mandate was limited. Thereafter in January 2016, following its pledge to the UN Human Rights Council with regard to Resolution 30/1 (which Sri Lanka co-sponsored) the CTF was established. Through conducting consultations with the Sri Lankan public, the CTF was to ascertain the public’s views on the mechanisms for transitional justice and reconciliation proposed in Resolution 30/1. It recommended granting effective remedies (including through criminal justice) to those having suffered harm during the conflict. Outlining the illegality of granting amnesties for international crimes, it also recommended the establishment of a hybrid mechanism consisting of national and international judges. However, its recommendations faced an uphill battle from the outset. Merely days after the release of its final report, the Sri Lankan justice minister opined that he had ‘no confidence’ in the CTF.
Continue reading →

Posted in Guest Posts, Sri Lanka, Transitional Justice, War crimes | Tagged | 2 Comments

The Long Read: Waiting for Bashir – Will the Deposed Sudanese Dictator Ever Stand Trial in The Hague?

Posted on May 14, 2019 by Mark Kersten

Victor Peskin, Eric Stover, and Alexa Koenig join JiC for this piece on the prospect of holding deposed Sudanese President Omar al-Bashir to account at the International Criminal Court. Victor is an associate professor in the School of Politics and Global Studies at Arizona State University and a senior research fellow at the Human Rights Center, University of California, Berkeley. Eric is the faculty director and Alexa is the executive director of the Human Rights Center. Peskin, Stover, and Koenig co-authored Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror (University of California Press, 2016).

(Sudanese protestors rally against the regime of Omar al-Bashir in 2019. Photo: Sky News)

Sudanese President Omar al-Bashir has long been the bane of the International Criminal Court (ICC). For the last decade, the Court has sought his arrest and transfer for atrocity crimes in Darfur. But with Bashir’s dramatic ouster last month, his detention by the Sudanese military, and ongoing protests urging a transition to civilian rule, could his days of evading international justice soon be over? Justice advocates certainly hope so. But are their expectations misguided?

At the behest of the UN Security Council, the ICC launched an investigation of atrocities in Sudan’s Darfur region, which resulted in Bashir being charged with war crimes, crimes against humanity, and genocide for the slaughter of some 300,000 people and the displacement of another 2.5 million. Initially, the ICC appeared to enjoy the backing of the 120-plus ICC member states and even the support of the United States, China, and Russia, who are not members.

While activists and Darfuri victims applauded the decision of the ICC’s first chief prosecutor, Luis Moreno-Ocampo, to target Bashir, there was also pushback. His indictment of the head of state of one of Africa’s most strategically important states sent shock waves through the region while discomfiting Western officials who had sought Bashir’s cooperation to end the war in Darfur, allow peacekeeping missions, and facilitate humanitarian relief. Consequently, the international community never mustered the political pressure to bring the Sudanese leader to trial.

Moreno-Ocampo, meanwhile, lost his best chance to apprehend the Sudanese leader when he failed to use a sealed arrest warrant. Once the warrant became public, Bashir strategically avoided travelling to ICC member states that might have arrested him. However, he made numerous visits to African ICC member states, like South Africa and Nigeria, that were legally obligated to transfer him to The Hague but instead welcomed him with open arms. Bashir also travelled with seeming impunity elsewhere in Africa, throughout the Arab world, and to his patrons in Beijing and Moscow.

Even worse for the ICC, the Bashir indictment – and a subsequent indictment of Kenyan President Uhuru Kenyatta – prompted the African Union to call for an end to ICC prosecutions of sitting heads of state. Soon thereafter, Kenya launched a campaign urging the 30-plus African state parties that belonged to the ICC to withdraw their membership. To date, Burundi is the only African country that has withdrawn, but the threat of a mass exodus still looms. Accusing the ICC of anti-African bias, some states have argued that the Court is nothing more than a political tool deployed by the West to topple African leaders. This claim of Western control now has greater resonance in light of an April 12 ICC pre-trial chamber ruling denying Chief Prosecutor Fatou Bensouda’s request to investigate crimes in Afghanistan, including those by US armed forces and the CIA. The pre-trial chamber blocked the Afghanistan investigation, citing the low prospects of American cooperation from an avowedly obstructionist Trump administration, arguably incentivizing other countries to refuse to assist ICC investigations.

In the initial wake of the ICC indictment, Bashir became a pariah, at least in the West. But as the years passed, his notorious image began to fade. Global attention to the crimes of the Khartoum regime had been buoyed by the activism of the prominent U.S.-based Save Darfur movement and celebrity figures like George Clooney. For a time, as Rebecca Hamilton wrote in a recent commentary in Foreign Policy, “Bashir’s face appeared on wanted posters on subway platforms and online platforms were designed to track Bashir’s movements.” But activist scrutiny of Sudan has since subsided.

Until anti-government protests broke out in December, several Western states were even warming up to Bashir in an effort to secure Khartoum’s assistance in combating terrorism and curbing the flow of refugees crossing the Mediterranean. Late in the Obama administration, the U.S. lifted some sanctions on Sudan despite on-going government atrocities, including a 2016 chemical weapon attack that reportedly killed some 200 Darfuri civilians including scores of children. Bensouda grew so disillusioned with the Security Council’s lack of support that, in 2014, she suspended her investigation of the Bashir case, prompting the Sudanese president to declare victory.

What does the fate of other fallen leaders tell us about Bashir’s future? 

What are the ICC’s chances of prosecuting Bashir now that he is reportedly confined to a jail cell In Sudan’s notorious Kober prison? Examining the fate of other heads of state can illuminate the conditions that could possibly lead to an international trial of the deposed Sudanese leader. Continue reading →

Posted in Darfur, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | Tagged , , | 2 Comments

Between Punishment and Mercy – Alternative Sanctions and the Special Jurisdiction for Peace

Posted on April 17, 2019 by Mark Kersten

The following post on the use of alternative sentences to blend restorative and retributive justice in Colombia was written by Luke Moffett. Luke is a senior lecturer at Queen’s University Belfast and the Principal Investigator on the ‘Reparations, Responsibility and Victimhood in Transitional Societies‘ project.

(Photo: Colombia Informa)

How do you deliver peace and justice after fifty years of conflict that saw millions of civilians victimised? This has been the core issue Colombia has been grappling with as part of the peace agreement between the FARC and the Colombian government in 2016. One of its main bodies of the comprehensive transitional justice system is the Special Jurisdiction for Peace (JEP), established to investigate and prosecute international crimes. The JEP is attempting to tackle the perennial challenge of how to square the circle of doing justice, ascertain the truth and achieving peace in a post-conflict society that is facing ongoing violence and insecurity. It hasn’t been easy and has required compromise, especially on the question of combining restorative and retributive justice through its alternative sentences for those who perpetrated crimes during the civil war.

The JEP

It began its work in March 2018 and currently has seven cases including kidnappings, forced disappearances, use of child soldiers and a range of violations in different territories. The JEP has only recently received approval for its governing law from the lower house, but awaits the Senate vote later this year, reflecting the continuing and contested transition in Colombia since the peace agreement.

Beyond political contestation, the JEP also faces the legal challenge of attenuating punishment to encourage perpetrators to tell the truth, contribute to community service, and provide symbolic reparations to victims. In return for being truthful and expressing remorse, perpetrators in the FARC and Colombian government could benefit from reduced sentences of 5-8 years through alternative punishment arrangements, such as house arrest or other restricted freedoms.

There are some who view these alternative sanctions as impunity. However, this overlooks the experience of transitional justice, the demands of victims and human rights jurisprudence that doing nothing and remaining silentis impunity. Providing a space to coax perpetrators to confront, acknowledge and remedy some of the harm they have caused can go a long way to reconstituting the dignity of victims and their lived experience. More broadly, courts in post-conflict societies play an important expressive role through prosecution and punishment in re-establishing the rule of law and reaffirming moral values.

In light of these challenges, over the past few months our project team have been engaging the JEP and drawing from international practice in order to inform the alternative sanction regime. In our recently released report on alternative sanctions at the JEP, we outline the experiences of other states and international jurisprudence on matters of restorative justice, victim participation, sentencing and the contribution of ex-combatants. This report in part draws from our ongoing research project on reparations in post-conflict transitional societies, in particular the contribution of non-state armed groups.

Restorative Justice 

Victims are a central part of the peace agreement and restorative justice is the paradigm under which their rights and restoration is key.

Restorative justice in transitional justice is nothing new, it was used in the South African Truth and Reconciliation Commission along with ubuntu. The Community Reconciliation Process in Timor Leste, paramilitary punishment attacks in Northern Ireland and to a lesser extent the gacaca courts in Rwanda, have used more measured forms of retributive justice informed by restorative principles to adjudicate on international crimes. This is the compromise that the JEP is also seeking to make in trying to break new ground in addressing international crimes by evoking the notion of restorative justice, by bringing the victims and perpetrators together to acknowledge, and by finding appropriate responses to the crimes through community service and symbolic reparations. Continue reading →

Posted in Colombia, Reparations, Restorative Justice, Sentencing | Tagged | 4 Comments

Bashir to the ICC? Seeing the Forest for the Trees, While Preparing for One to Fall

Posted on April 16, 2019 by Mark Kersten

This article was originally published at Open Canada.

A large percentage of protestors in Sudan have been young women. (Photo: Reuters)

After 30 years as president of Sudan, Omar al-Bashir is out of power. It is difficult to overstate how remarkable it is to write those words. After four months of popular protests, Bashir has been deposed and, according to the Sudanese military, is currently in detention.

The question on the minds of observers is: what happens next? Who will replace Bashir and where will the former president end up? Could it be in The Hague to face justice at the International Criminal Court (ICC)?

Bashir has had arrest warrants issued against him for over a decade. In 2005, the United Nations Security Council referred the situation in Sudan’s Darfur region — where, under Bashir’s watch, hundreds of thousands were killed or displaced from their homes — to the ICC. Over the next four years, the court issued two arrest warrants against Bashir for the alleged crimes he is responsible for in Darfur. Collectively, the warrants charge him with the unholy trinity of the court’s core crimes: war crimes, crimes against humanity and genocide.

Unsurprisingly, Bashir has rejected the very premise of the ICC and, despite the arrest warrants, has been able to secure diplomatic support from various states around the world, as well as from the African Union, and travel abroad regularly — including to a number of ICC member-states.

Many hope that his luck has finally run out.

However, while recent events are undoubtedly remarkable and demonstrate the power of people coming together to demand change, the situation in Sudan remains precarious. Despite heaps of evidence, we often forget just how dangerous and volatile transitional contexts can be in the wake of the removal of a head of state. This is perhaps especially so when a state’s military subsequently takes over, which is currently the case in Sudan despite protestors clamouring for a civilian government.

Proponents of international criminal justice often believe that getting rid of a political leader will invariably lead to peace. But that is not enough. Getting rid of Bashir will rid Sudan of its figurehead, but not of a system that is replete with perpetrators of atrocities. The figures that are currently serving as Sudan’s ‘new’ leaders were core members of Bashir’s regime. They are not ‘nice guys’ with democratic or peace-loving credentials. As international justice expert Thijs Bouwknegt points out, the first to take over was the head of the military, General Awad Ibn Auf, who faced American sanctions from 2007 to 2017 and has been referenced at least five times in the warrants of arrest for Bashir, regarding his own alleged role in atrocities in Darfur. Auf has now stepped down and retired, but it remains unclear who will ultimately come out ‘on top’ in Sudan. It would be wrong to assume that they will invariably be proponents of international justice and human rights.

Right now, the safety of civilians needs to be prioritized. There remains a real risk of civil strife and potentially civil war.

When it comes to the ICC and its interventions, there is also an ever-present need to see the forest for the trees. Observers should avoid over-emphasizing the role or impact of the ICC simply because it is what observers and proponents of the court focus on. According to Alex de Waal, perhaps the most important writer and researcher on Sudanese politics and history outside of the country:

One thing that the opposition has not demanded is that Mr Bashir be handed over to the International Criminal Court (ICC), where he faces prosecution for crimes committed in Darfur 15 years ago. For them, the fate of the country is bigger than bringing one man to justice.

This is not to say that the ICC or its warrants against Bashir are irrelevant. On the contrary, reports suggest that a council set up to elect — or, more likely, select — someone as interim leader of the country is apparently looking for someone specifically not wanted by the ICC. But it is important to stress that the ICC has had a minimal impact on developments on the ground in Sudan to date.

Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan | 3 Comments

Why the ICC Should have Opened an Investigation into Afghanistan. And How it could ‘Win’ a Confrontation with Washington

Posted on April 12, 2019 by Mark Kersten

A version of this article originally appeared in Al Jazeera. Readers interested in today’s decision should also these excellent commentaries from Dov Jacobs and Kevin Jon Heller.

(Photo: BBC)

Judges at the International Criminal Court have denied a request to open an investigation into atrocities committed in Afghanistan. Their decision comes 1.5 years after the Prosecutor requested authorisation from the judges to open an official investigation into war crimes and crimes against humanity in Afghanistan. That was a momentous request for one reason in particular: prosecutor Fatou Bensouda made it clear that the torture allegedly committed by US forces and the CIA would be investigated. For the first time in history, the alleged atrocities committed by US forces would be put under the scrutiny of an international criminal tribunal.

But ICC Judges ruled today that an investigation would not be in the “interests of justice”. This marks the first time that Judges have invoked this argument, yet the ruling was meagre on its application, devoting just 3.5 pages to the subject (short for any international judge!) and, remarkably, did not reference any other cases or jurisprudence on the subject. Prosecutors will now seek appeal that decision and the Court still has a chance to reverse course.

For some, however, the decision is a ‘good’ one for the Court. Many believe that an investigation could only hurt the court because no American would ever end up before judges at the ICC. In denying the investigation, Judges stated that noted that changes in the “political landscape” in non-member states (i.e. the U.S.) “make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future.” In short, they believed that an investigation would be too difficult to be worth trying and therefore not in the interests of justice or the court.

But they are wrong. A lack of cooperation from Washington or other states should not have prevented the ICC from investigating alleged atrocities in Afghanistan. Even without cooperation, such an investigation would likely bolster – not undermine – the court’s credibility.

The waiting game

That it took judges 1.5 years to come to today’s decision will only fuel speculation that the they were acting politically, fearful of the political implications of an investigation and, possibly, Washington’s wrath.

At the same time, the ICC prosecutor’s office has been plagued by numerous high-profile setbacks. Within the last 12 months alone, judges acquitted both former Vice President of the Democratic Republic of the Congo Jean-Pierre Bembaand former President of Ivory Coast Laurent Gbagbo. It has also come to light that the ICC’s own President, Chile Eboe-Osuji, is suing the Court for higher pay at a time when the institution is struggling to resource its current workload.

Against this backdrop, it is tempting to conclude that the ICC should be risk-averse, focusing only on suspects who are likely to be surrendered to the court. In line with such thinking, it would have been ill-advised for the ICC to investigate atrocities in Afghanistan as cooperation wouldn’t be forthcoming. Such is the advice of many observers of the ICC.

The cooperation game

Followers of the ICC have repeatedly pointed out that US cooperation with the court would cease if the ICC opened an investigation into Afghanistan. They insist that there “will be no cooperation from the Afghan government, the Taliban, or the US”. Moreover, without any prospects of a successful trial of US officials along with the cessation of cooperation, “[t]here would be significant cost to the ICC, for little gain”.

These fears were confirmed when US NSA John Bolton threatened the ICC and its staff with sanctions while declaring that the US would “use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.” They were further corroborated when Washington revoked ICC chief Prosecutor Fatou Bensouda’s entry visa to the United States. Continue reading →

Posted in Afghanistan, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, United States | 9 Comments

Companies Helped Sustain the Gaddafi Regime. They Should be Held to Account

Posted on April 8, 2019 by Mark Kersten

The following was written for and initially published by the Global and Mail, in response to the ongoing scandal surrounding the Canadian government and the Canadian company, SNC-Lavalin. 

Damaged tanks outside of Misrata, Libya (Photo: joepyrek / Creative Commons)

Canadians have been battered with news about the SNC-Lavalin scandal. The Trudeau government wants to compel people to make a choice: Do we want jobs, or do we want to hold SNC-Lavalin to account for accusations of bribing officials in Libya? But this affair isn’t just about Canada, Canadians or jobs. Holding SNC-Lavalin to account represents an opportunity to challenge the status quo where states and companies can underwrite brutal dictatorships with impunity. It’s an opportunity to tell a different and all too rare kind of story about holding the enablers of autocracy to account.

I first came across SNC-Lavalin when conducting research into the 2011 civil war in Libya. The company’s name popped up in discussions about what (and who) had sustained the regime for so long. At that time, images of then Libyan leader Moammar Gadhafi sharing the stage with world leaders were still fresh. A litany of states and businesses – including Western ones – had spent a decade rehabilitating a regime and lavishing it with contracts. Those entities have never been held accountable for their role in legitimizing a regime that would ultimately exchange its accumulated wealth for the weapons and mercenaries needed to commit atrocities against its own people.

What we tend to believe is Mr. Gadhafi went berserk in response to the 2011 uprising in Libya. This isn’t the whole story.

When conflict erupted in Libya, states sought to minimize scrutiny of the previous 10 years. But that decade is crucial to understanding the conditions which sustained the regime and created fertile ground for Mr. Gadhafi’s subsequent atrocities. From about 2002, countries engaged in a concerted effort to rehabilitate the regime in exchange for vague promises of democratization (which didn’t happen), dismantling a nuclear program (which was nascent at best and which Mr. Gadhafi did not fully comply with) and withdrawing support for terrorist organizations (which he did).

A coterie of Western leaders, including former prime minister Paul Martin and former British prime minister Tony Blair, embraced Mr. Gadhafi. Mr. Martin would later say that his visit was a reward for the Libyan leader’s “fundamental shift in position” away from sponsoring terror to being a responsible member of the international community. Britain and Italy (whose former prime minister Silvio Berlusconi “went gaga for Gadhafi”) signed lucrative oil deals with the Libyan leader, who, in turn, promised to tighten controls on immigration from Africa to Europe via the Mediterranean. France, the United States, the European Union and Russia had arms deals. Canada sold Libya almost $250-million in goods in 2010 alone, while SNC-Lavalin allegedly wooed regime figures for contracts.

As I wrote in my book, which covers the Libyan conflict, countries – especially Western ones – tethered the popular notion in the 80s and 90s of Mr. Gadhafi as the “mad dog of the Middle East” to the 2011 image of a lunatic lashing out at his own people. The inconvenient middle bit – the rehabilitation of Mr. Gadhafi and the political, military and financial investment into the regime – fell out the bottom. Continue reading →

Posted in Canada, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC | Tagged | 2 Comments

Filling the Vacuum: Syria and the International Criminal Court

Posted on March 19, 2019 by Mark Kersten

Toby Cadman and Carl Buckley join JiC for this post on their recent application requesting the Prosecutor of the International Criminal Court (ICC) to investigate the deportation of Syrians into Jordan. Carl is a Barrister with Guernica. Toby is the Co-founder of The Guernica Centre for International Justice, which submitted an amicus curiae to the ICC on Myanmar and which also submitted an Article 15 submission to the ICC Prosecutor concerning jurisdiction for Syria by way of application of the Myanmar decision.

(Photo: Getty Images / D. Souleiman)

It’s your turn, Doctor’. These were the words that initiated one of the cruellest conflicts in the recent history of the Middle East.

A group of seven teenagers in the Syrian town of Daraa, inspired by the winds of freedom and democracy blowing from the Arab Spring in Tunisia, Egypt and Libya, adorned their school walls with these words in defiance of the Syrian oppressive regime. Basher-al-Assad, the Syrian dictator whose family has tyrannically ruled the country for more than four decades, is a doctor specialized in ophthalmology.

The response of the Syrian State Security Forces was brutal and prolonged. It treated with extreme violence the young authors of the graffiti. The town of Daraa in turn lit the flames of revolution, initiating with their actions a conflict which is now entering its ninth year and has no clear end in sight.

This war has witnessed unimaginable atrocities. More than half the pre-war population have been either killed, disappeared, or displaced. Most of those who were forced to flee due to the brutal conduct of the Syrian State Security Forces have not been able to return for the very same reasons that forced them to leave. Those responsible, including the Syrian President Assad, must be brought to justice and held accountable.

Spinning the Tires of Jurisdiction?

In recent years, numerous conflicts have been characterized by credible allegations of war crimes and crimes against humanity. The initial reaction to such allegations is to call for the International Criminal Court (ICC) to investigate and prosecute such atrocities.

The basis upon which the ICC can investigate a situation however, is often misunderstood; it does not, contrary to what many believe, have the mandate to investigate any and all instances of conflict-related international crimes, no matter how severe that conflict, no matter how credible the allegations, and no matter how grave the suffering of the victims. The ICC Prosecutor, can commence an inquiry into a situation in one of three circumstances: (i) where the offences are alleged to have been committed within the territory of a ‘State Party’ to the Rome Statute, in which case, jurisdiction is automatically conferred; (ii)  where a non-state party ‘self-refers’ itself and thereby grants jurisdiction; and (iii) where the UN Security Council (UNSC) refers a situation. The net result of this limited form of jurisdiction is that there are many situations that the ICC simply cannot consider, no matter how much it may want to. It is here where the issue lies concerning Syria.

Syria is not a State Party of the ICC and given that it is alleged to be directly responsible for atrocites, it is hardly likely to ‘self-refer’.  As a result, the only other option is through the UNSC.  This in itself has proven to be impossible given its overtly politicised nature and that one of the permanent members, Russia, being an ally of Syria and directly involved in the conflict, has consistently exercised its right of veto over any resolution tabled to refer the matter.  It is noted that China has also consistently sided with Russia vetoing any resolution and the United States has previously argued that it would veto any referral that included the disputed territory of the Golan Heights which borders Israel.

Here’s the catch: the position insofar as jurisdiction is concerned however is now more nuanced than previously thought. In 2018, the jurisdiction of the ICC was widened thus presenting the millions of Syrian victims a route, albeit one that is restrictively narrow in scope, to justice.

Learning from the Rohingya

Like in Syria, the world was horrified by allegations in Myanmar of horrific crimes being committed against the Rohingya in a vacuum of accountability. As a result, the ICC Prosecutor requested a ruling of the Pre-Trial Chamber, asking whether jurisdiction could be exercised for the crime of forced deportation of the Rohingya from Myanmar into Bangladesh.

Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Syria | 4 Comments

Acquittals and the Battleground Over the ICC’s Legitimacy

Posted on March 14, 2019 by Mark Kersten

Victims, survivors and their relatives of the 2010 electoral violence in Ivory Coast gather in Abidjan (Photo: AFP)

For many, the recent acquittal of former Ivorian President Laurent Gbagbo and his political ally, Charles Blé Goudé, marked another failure for the International Criminal Court (ICC). Many close observers were undoubtedly pained to see another high-profile case collapse, leaving the Court with the dubious distinction of having yet to successfully prosecute a government official in its seventeen years of existence. But initial reactions obfuscated the invariably mixed effects that such developments have on the Court’s legitimacy.

Of course, ‘legitimacy’ is a notoriously slippery concept. For our purposes, I define legitimacy as a measure of the distance between expectations and reality. The closer reality lines up to (or exceeds) expectations, the more legitimate the institution. If reality doesn’t live up to expectations, then we have the inverse situation: a legitimacy gap. Whether acquittals bolster or blemish the ICC’s legitimacy depends on whose expectations we are considering.

The Prosecution

Many people expect the ICC to convict. This is due to at least three dynamics. First, the ICC generally focuses on those “most responsible” for war crimes, crimes against humanity, and genocide. As a result, we expect that if the Court issues an arrest warrant for someone, they must be the “most responsible” – and therefore guilty.

Second and relatedly, only a tiny fraction of perpetrators in any given situation are targeted by the ICC. In the Ivory Coast, that amounts to three figures: Gbagbo, Blé Goudé, and former First Lady Simone Gbagbo. This selectivity propels the notion that these few individuals must bear responsibility for the crimes they have been charged with.

Third, the public face of the ICC is the Prosecutor, and because she is the most visible and vocal personality in the Court, this feeds into perceptions that the institution’s primary role is to successfully prosecute – rather than put people on trial.

For many people, then, the Prosecutor’s legitimacy suffers with acquittals precisely because they expect the Prosecutor to secure convictions.

Gbagbo and his Defence

Yet, this view neglects the importance of the defence to the legitimacy of the Court. Sareta Ashpraph, for example, stated in response to the Gbagbo acquittal that we should “be thankful” and recognize the role of the defence in ensuring fair trials. From this perspective, the acquittal of Gbagbo therefore contributes, rather than detracts, from the legitimacy of the ICC because acquittals demonstrate respect for due process and a functioning criminal court.

This shows just how many strands of ‘legitimacy’ are present at any time. The ICC’s legitimacy can suffer and prosper with acquittals. On the one hand, it demonstrates that the law and due process is functioning above the political prerogative of getting convictions. On the other, it suggests that something is wrong with the way that the prosecution is building cases and prosecuting its targets. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Laurent Gbagbo | 4 Comments