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 | 2 Comments

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

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