Response: Strengthening Justice for Victims Through Complementarity

Posted on December 11, 2018 by Mark Kersten

This post, by Elizabeth Evenson and the team at HRW concludes our joint symposium with EJIL:Talk! on the impact of the ICC on national justice. Their opening post is available here. Thanks for tuning in!

Orphaned children in Afghanistan stand beside the graveyard where their father, uncle, aunt and cousins are buried. (Photo: Amnesty International)

Many thanks to the editors and the contributors for making this online symposium possible. Our primary goal with Pressure Point was to identify whether and how the Office of the Prosecutor at the ICC could become more effective in pursuing its policy goal of encouraging national prosecutions through engagement at the preliminary examination stage.

But we also hoped that Pressure Pointcould play a role in bringing broader awareness about this dimension of the prosecutor’s work, and to stimulate others to consider how they might be able to contribute to efforts to spur national prosecutions as part of expanding the reach of justice.  In this response, we address some key areas of agreement among the contributors while also addressing some differences in perspective or conclusions.

As we make clear in the report and as Emeric also emphasizes, pursuing national prosecutions is only a secondary goal of preliminary examinations, which primarily are focused on determining whether the ICC should exercise jurisdiction. When it comes to how the prosecutor should approach those determinations, it is clear there are a number of important considerations that go far beyond our report’s focus on positive complementarity. Carsten Stahn’s contribution here impressively covers that vast terrain, and brings in additional voices from the recently published Quality Control in Preliminary Examinationsto set out a number of areas where further consideration is helpful.

We also acknowledge in the report that catalyzing national prosecutions will not be a policy goal that the prosecutor does or should pursue in all situations. The prosecutor was not actively seeking to catalyze national proceedings in the UK, and only to a limited extent in Georgia. We included these case studies in our final report to assess the extent to which conducting preliminary examinations may have passive effects on encouraging national prosecutions even without an active strategy.

When it does come to actively encouraging national prosecutions, Paolina’s piece helpfully distills from past practices by the prosecutor’s office a clear and precise “tool kit” for the prosecutor, highlighting additional examples from other case studies beyond those in our report. She helps to bring additional content to what Camilo describes as the acupuncture needles the prosecutor can use to stimulate national processes, a very apt metaphor for the strategic, informed approach our case studies suggest is essential.

Emeric’s piece queries the extent to which the prosecutor really can or should adopt what he describes as NGO or UN-like advocacy strategies, which we assume includes public statements at strategic moments. He also questions how prescriptive it can be in identifying steps national authorities should take, noting that the prosecutor cannot provide instructions or deadlines.

Our recommendations seek to push the  prosecutor in these directions, although  we agree that it is not about demanding action as the term “instruction” might suggest, but rather benchmarking, publicly if possible, expected investigative steps. Public benchmarks can also help make the prosecutor’s  work more accessible and credible with affected communities. The prosecutor has used these tools, including benchmarks, with particular effect in Guinea. Indeed, our recommendations are really rooted in encouraging the Office of the Prosecutor to be as effective as possible in making use of the tools at its disposal.   Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, The ICC’s Impact on National Justice Symposium | Tagged | 1 Comment

The Ethos of “Positive Complementarity”

Posted on December 11, 2018 by Mark Kersten

Emeric Rogier joins JiC for this penultimate contribution to our joint symposium with EJIL:Talk! on the ICC’s impacts on national justice. Emeric is the Head of the Situation Analysis Section, in charge of preliminary examinations, at the Office of the Prosecutor of the ICC. The views expressed by the author do not necessarily reflect those of the Office of the Prosecutor.

(Photo: ICC)

I am grateful to Dapo Akande and Mark Kersten for their invitation to contribute to this “symposium” on HRW’s valuable report on the impact of the preliminary examinations (“PE”) of the ICC Office of the Prosecutor (“OTP” or the “Office”) on national justice. I happen to respond to this invitation in-between “complementarity missions” to two countries selected as case studies by HRW, namely Colombia and Guinea. I therefore hope that my modest input will be seen as being informed by first-hand field experience in the practice of the Office’s “positive approach to complementarity.”

In past years, preliminary examinations have been recognized as a core OTP activity. They have thus become the subject of increased attention by multiple stakeholders and a topic of academic research. To an extent, this new scrutiny is a recognition of the relevance and importance of “PE activities” and has been partly triggered by the OTP’s own transparency as demonstrated by its annual reporting and open-door policy. Inevitably, however, increased scrutiny comes with increased criticism, which are always welcome when constructive and well-informed, less so when they are speculative or based on lack of knowledge and understanding of the OTP’s work in practice.  In this regard, I am grateful to the HRW team for engaging substantively with the Office over the course of their project and for taking the time to better understand our modus operandi,as well as the challenges, dilemmas and limitations faced by the OTP in its endeavours.

While the HRW report offers a generally balanced and reasonable assessment, I do not share some of their findings. It is nonetheless comforting to read an acknowledgment of positive changes introduced in the OTP practice in the past years, particularly those under Prosecutor Bensouda’s tenure. It appears that the Office’s efforts to explain its policy and activities have borne fruit over time, as also recognized by the contributions of Sanchez and Stahn to this symposium.

A virtue out of a necessity

However, some issues still need to be clarified. First, it is worth recalling that the essential purpose of a preliminary examination is not to encourage national proceedings. It is to enable the ICC Prosecutor to make an informed decision as to whether the statutory criteria for opening an investigation in a given situation are met. If the criteria are met, the Prosecutor has a duty under the Rome Statute to open an investigation. Such a decision is of great significance to the victims and affected communities. It commits the Office and the Court for a number of years, including financially. It is therefore of critical importance – comparable, in these respects, to requesting the pre-trial chambers to issue a warrant of arrest. The majority of the preliminary examinations initiated by the Office since 2003 have been completed (exactly 19 out of 28). Most have resulted in a decision to open an investigation (12). Given the large number of self-referrals by States Parties, very few preliminary examinations ultimately served the purpose of implementing the OTP’s positive approach to complementarity.

Second, “positive complementarity”, as it is called, is first and foremost an ethos that stems from the letter of the Statute, in particular the inescapable fact that State Parties retain the primary responsibility to investigate and prosecute crimes falling under the jurisdiction of the Court which is complementary to national judicial systems. Since its early days, the Office has looked “positively” at the principle of complementarity – a cornerstone of the Rome Statute – and has sought to make the best out of it. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, The ICC’s Impact on National Justice Symposium | Tagged | 4 Comments

The Times They Are A-Changin’: Why the ICC Should Re-Visit Strategies on Preliminary Examination

Posted on December 10, 2018 by Mark Kersten

Carsten Stahn joins us for this sixth contribution in our ongoing symposium, with EJIL:Talk!, on the ICC’s impacts on national justice. Carsten is a Professor of International Criminal Law and Global Justice at the Leiden Law School and the Programme Director of the Grotius Centre (The Hague).

The ICC’s latest preliminary examination is into Bangladesh/Myanmar. Will the Office of the Prosecutor follow the same strategy as it has in other preliminary examinations? (Photo: Mohammad Ponir Hossain / Reuters)

It is a pleasure to contribute to this joint EJIL:Talk! and Justice in Conflict debate on ICC preliminary examinations (PEs). Elizabeth Evenson and Human Rights Watch (HRW) have done pioneering work in this field. I am grateful for the opportunity to offer a few reflections on the state-of-the art of PEs, certain points raised in the HRW reports, and some thoughts to re-visit ICC strategies, based on a joint research project with CILRAP/Morten Bergsmo.

“The line it is drawn, The curse it is cast”

Preliminary examinations operate at the intersection of law and politics. As Mark Kersten has illustrated, they constitute a form of productive power of the ICC. They frame narratives about conflict, shape the use of crime labels, entail classifications of armed violence or expressions of stigma or victimhood. The drafters of the Rome Statute of the International Criminal Court (ICC) have devoted relatively limited attention to the issue.

At other international criminal courts and tribunals, PEs had traditionally lesser importance, since the jurisdictional scope was pre-defined and complementarity had lesser space. At the ICC, policies and practices were largely developed through the managerial practices of the OTP. The goals of PEs were defined by prosecutorial strategy. The way in which they are conducted differ from national systems. PEs were not only treated as a gateway to investigations, but as a broader policy instrument to foster deterrence and incentivize domestic investigations and prosecutions. This approach is guided by noble intentions and the desire to make most of the ICC’s limited capacity. However, it poses difficult tensions and dilemmas.

PEs have essentially turned into a novel procedural stage of its own. The OTP has developed an elaborate system of assessment (i.e. a  four-phase process) in its Regulations and Policy Papers, one which closely mirrors human rights monitoring. This process is designed to translate the complex reality of atrocity contexts into legal determinations, including the determination of jurisdiction, the determination of the crime-base, admissibility, or situational gravity.

Some the methodologies have come under critique. The ICC has accumulated a docket of highly delicate political situations, with limited analytical resources, restricted on-site access, lack of cooperation, or a clear exit strategy. The scope of situations varies from a single incident (e.g., North Korea, Comoros) to decade-long conflicts with long-standing historical roots (Afghanistan, Palestine). There is a bottleneck problem. Many situations have stayed under analysis for long periods of time, ranging from several years to over a decade. This may be helpful for expressive purposes, monitoring of violations, or complementarity objectives. But it can also have counterproductive effects. The OTP needs to navigate between political dialogue, strategic ambiguity, credibility of threat and vigilant monitoring. It can easily become an instrument of national politics. Skeptics have questioned to what extent the OTP should speculate on complementarity or deterrence outcomes, set benchmarks for domestic jurisdictions, or provide advice in transitional justice contexts. PEs should be approached with greater  modesty.

“Come writers and critics …And keep your eyes wide”

Initially, the opening of a PE is a ‘quick-win’ for many sides. It is tempting for human rights institutions, civil society organizations and victims to call for an ever-growing list of ICC preliminary examinations. For them, the fact that a situation is under PE can be branded as a success. For states, PEs may be a convenient way to signal concern or moral outrage. For the ICC, PEs are a means to demonstrate political relevance in relation to atrocity or equality before the law. The OTP can use the unpredictability of the PE process to exercise influence over national justice processes, without having to ‘lock itself’ in or determine hard targets of investigations.

Over time, however, PEs may become a trap, due to prolonged silence, lack of decision-making or false or inflated expectations. The ICC’s leverage may be impeded by the relatively stable number of open PEs (i.e. around 10 at any given moment in time) and the phase-based approach to assessment, which makes OTP action predictable. The effects have remained mixed. The opening of PEs involving ‘Big Powers’ did not necessarily detract from African critiques of the geographical distribution of ICC scrutiny. In several contexts, the OTP has faced political deadlock during the PE or after its decision to move to investigations (e.g., Burundi, Philippines).   Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, The ICC’s Impact on National Justice Symposium | Tagged | 2 Comments

The ICC and National Justice: Pressure Point or Tipping Point?

Posted on December 10, 2018 by Mark Kersten

Marieke Wierda joins us for this fifth installation in our ongoing joint symposium with EJIL:Talk! on the ICC and its impacts on national prosecutions. Marieke is a PhD candidate at Leiden University and is an expert on transitional justice working at the Dutch Ministry of Foreign Affairs.

In this piece, Marieke Wierda asks whether the ICC’s impact on national justice is a “pressure point” or a “tipping point”. (Illustration: iStock)

The Human Rights Watch report Pressure Point: The ICC’s Impact on National Justice describes an aspiration that many of the supporters of the International Criminal Court continue to harbor 20 years after the Rome Statute came into force. The report could be renamed “Tipping Point”: the aspiration of Human Rights Watch and others is that the existence, and actions of the ICC will decisively tip the scales of justice in favor of accountability for the world’s worst crimes at the international or domestic level.

Increasingly, the focus of advocates of the ICC has been fixed on the ICC’s impact at the domestic level. Long after its creation, the courtrooms in The Hague remain dramatically underutilized. As of 2018, the ICC had issued only four convictions: Thomas Lubanga Diyolo, convicted on 14 March 2012; Germain Katanga, convicted on 7 March 2014; Jean-Pierre Bemba, convicted on 21 March 2016; and Ahmed al-Farqi al-Mahdi, convicted on 27 September 2016 (pursuant to a guilty plea).

The Court faced many problems during these trials. In a major setback to the Office of the Prosecutor, on 8 June 2018 the Appeals Chamber acquitted Jean-Pierre Bemba. With only three convictions since 2002 (including a guilty plea), comparisons are inevitably made with the ICTY, which concluded proceedings against roughly 140 accused in 20 years with 18 were acquitted. In the age of austerity, where questions about cost versus impact of international interventions abound, this raises questions about the 1.5 billion Euro investment in the Court, and whether it really is the only road to the noble intentions that prevailed in Rome.

Hence the focus by HRW and others on the domestic level: “positive” complementarity through strengthening domestic legal systems gradually assumed such prominence amongst the ASP and supporters of the ICC that it was retroactively coined as perhaps the main impact of the Rome Statute. In the words of Burke-White: “encouraging national prosecutions within the “Rome System of Justice” and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity.”

The question is what is the impact of the ICC, and how can it be measured? Is the existence of the ICC a game-changer in prompting domestic investigations and prosecutions? However, as this carefully researched report indicates, hope burns eternal. In fact, pressure exerted from the Office of the Prosecutor has yet to lead to significantly more prosecutions in the countries highlighted in the report. It appears that the existence of the ICC alone is not the magic bullet that advocates for the fight against impunity had imagined.

This is for several reasons. Crimes of the magnitude to fit the definitions of the Rome Statute are often committed in complex political conflicts in countries that suffer from a breakdown in the rule of law. The Court alone is not well placed to address these broader rule of law challenges, and with its current resources and the many situations under its purview, the Court is not even particularly well placed to analyze and decisively influence the political context.

Additionally, the Court’s current policies on case selection and prioritization mean that its focus will rest on a limited number of cases. In situations where national authorities lack political will, they can play a careful game of complicating admissibility of specific cases, rather than pursuing genuine accountability. Investigations of these crimes can be highly complex, and creating a game of fog and mirrors, at which some national authorities excel. This is particularly the case where state agents may be involved, as is the case in Colombia, Georgia and the UK. The Court’s interactions with national authorities have been more adversarial than amicable. Continue reading →

Posted in Germain Katanga, International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, The ICC’s Impact on National Justice Symposium, Thomas Dyilo Lubanga | Tagged | 2 Comments

From the Sword of Damocles to Acupuncture Needles – A Commentary on Pressure Point: The ICC’s Impact on National Justice

Posted on December 7, 2018 by Mark Kersten

Nelson Camilo Sanchez-Leon joins JiC for the third post in our ongoing joint symposium with EJIL:Talk! on the ICC’s impacts on national justice. Camilo is an Assistant Professor at the University of Virginia School of Law. This piece is greatly influenced by his experience of more than a decade of research and advocacy in Colombia with Dejusticia. He thanks Rachel Davidson Raycraft and the blog editors for comments on a draft version of this post. Opinions expressed are solely his own. 

(Photo: ABC)

Twenty years since the adoption of the Rome Statute, the concept of “positive complementarity”—the idea that the International Criminal Court (ICC) and national authorities should collaborate to form a two-tiered response to impunity—still represents a bone of contention among scholars and practitioners of international criminal law.  Beyond the academic and legal debates over its meaning, it is clear that the ICC’s Office of the Prosecutor (OTP) plays an unusual role in operationalizing the complementarity principle both in policy and in practice.  I argue that advancing the OTP in this role, requires comprehensive policy analysis and a critical eye toward case-specific advocacy.

The Pressure Point report recently released by Human Rights Watch (HRW) acknowledges the OTP’s thorny task of bolstering national capacity to combat impunity for serious crimes.  The ICC Prosecutor must strike a balance between “opening a space to national authorities while proceeding and being seen to proceed with a commitment to act” if authorities fail to deliver.

At risk of misrepresenting the report’s conclusion, I would analogize it as follows: to be effective, the OTP must maintain the “Sword of Damocles” over domestic authorities while simultaneously stimulating them through the strategic insertion of thin acupuncture needles within complex local structures.

Positive Complementarity and Colombia

The HRW report begins with a list of practices that it later transforms into policy proposals.  At first glance, the recommendations seem constructive and reasonable.  Indeed, international justice would benefit from transparent international institutions that prioritize deep alliances among stakeholders and act strategically when deploying their resources.

However, when it came to the Colombian case, I found myself disagreeing with the legal and policy analysis of the report on various accounts. This difference of opinion comes as no surprise. The report assesses difficult, almost impossible, decisions made during times characterized by unrest and uncertainty: a thorny peace process was in the making. There is, therefore, much room for second-guessing as to how local authorities and the OTP have handled prosecutorial decisions in the midst of this transition.

My goal here is not to promote my analysis over that contained in HRW’s recent report.  Instead, I want to highlight additional factors that I believe deserved more attention within the report and, if taken into consideration, would likely lead to different policy conclusions.  By raising my contrasting assessment of the Colombian case, I suggest that the report’s recommendations provide important, but incomplete guidance “for strengthening the OTP’s complementary specific approaches to increase impact in the future.”

The Backdrop

I agree with much of the report’s core analysis.  First, the OTP’s approach to the problem of complementarity has been erratic at times.  During the tenure of the ICC’s first chief Prosecutor, Luis Moreno-Ocampo, there was little indication that any coherent policy was in place.  It was practically impossible to know what the goals of the intervention in Colombia were, which made it very difficult to assess whether or not his actions matched the OTP’s intentions. Incidentally, part of the domestic human rights community in Colombia similarly criticized Fatou Bensouda’s early approach as chief Prosecutor as being no different from her predecessor.

Second, it is undeniable that the OTP has put significant effort into developing a more coherent policy toward complementarity. Through general policy documents, annual reports on countries under “preliminary examination,” and public statements, the OTP now provides a clearer picture of how it conceives its intervention and its approach to each ongoing examination and investigation. One can disagree with the method, but it is fair to say that we know there is one.

Third, much uncertainty remains. In the Colombian context, for instance, nobody knows what it would take for the preliminary examination to move forward or to be terminated. There have been positive domestic outcomes. The proceedings before the Special Jurisdiction for Peace have begun to take effect and senior military officials have acknowledged responsibility for the murders and misrepresentations known as “False Positives.” But there has also been backlash. To name but one, the Constitution was amended to include a definition of “command responsibility” that is inconsistent with international law.  Continue reading →

Posted in Colombia, FARC, International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, The ICC’s Impact on National Justice Symposium | Tagged | 1 Comment

The ICC’s Impact on National Justice Can the ICC Prosecutor Catalyze Domestic Cases?

Posted on December 6, 2018 by Mark Kersten

Elizabeth Evenson, Balkees Jarrah, Elise Keppler, Juan Pappier, and Param-Preet Singh join JiC for this first instalment in our joint symposium with EJIL:Talk! on the ICC’s impacts on national justice. Elizabeth, Balkees, Elise, Juan, and Param-Preet are staff members of Human Rights Watch and the authors of the organization’s May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom.

The situation in the Philippines is currently under preliminary examination by the ICC. Here, a policeman in Manila investigates the scene where the body of an alleged drug user lies after being killed by unidentified assailants on 8 December 2017. (Photo: Getty Images).

The International Criminal Court (ICC) is a court of last resort. Under the court’s treaty, the Rome Statute, which marks its 20th anniversary this year, the world’s worst crimes are   admissible before the ICC only if national authorities do not genuinely investigate and prosecute cases.  Far from simply a jurisdictional limitation, this principle of “complementarity” transforms the ICC from a single institution into a broader system for prosecuting international crimes, rooted in national courts.

Bolstering national proceedings is crucial to giving full effect to the Rome Statute system.  It’s also necessary to broaden victims’ access to justice. The number of situations in which the ICC should act is probably far greater than the court’s founders envisioned. The ICC’s limited resources—provided all too sparingly by its member countries—mean it is struggling to keep up.

More attention should be paid to the ICC’s potential as an active player on national justice. Under the concept of “positive complementarity” it can serve as part of a wide array of efforts to press and support national authorities to carry out genuine investigations and prosecutions. The ICC is not a development agency, but it can lend expertise, broker assistance between other actors, and maintain focus on the need for accountability.

This is the case when the ICC opens its own investigations, as there will be a need for additional domestic investigations and prosecutions to bring comprehensive accountability. But the ICC’s Office of the Prosecutor has a particularly important role to play when it is still considering whether to open an investigation, during “preliminary examinations.”

This is because the prosecutor’s office has unique leverage in some of these preliminary examinations. If national authorities have an interest in avoiding ICC intervention, they can do that by conducting genuine national proceedings. By making the most of this leverage, the prosecutor’s office can be an effective catalyst for justice. The office recognizes that opportunity and has made it a policy goal to encourage national proceedings when it is feasible.

Human Rights Watch supports these efforts, given that they could help extend the reach of justice. But building on a set of 2011 recommendations, we wanted to take a fresh look at whether and how this policy is working, with a view toward strengthening its effect.

Our findings are set out in a May 2018  report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom.We assessed the extent to which the prosecutor’s office had pushed forward the investigation and prosecution of ICC crimes relevant to its preliminary examinations in these countries. We interviewed government officials, investigating and prosecuting authorities, judges, members of civil society groups, journalists, and representatives of diplomatic missions and UN agencies, about 140 people in all, as well as staff in the ICC prosecutor’s office.

Our research makes clear that it is important not to overstate the prospects for success.

Of these four countries, trials of relevant crimes have, for the most part, only taken place in Colombia. And there- where we looked at one aspect of the ICC preliminary examination, the unlawful killings that military personnel officially reported as lawful killings in combat, known as “false positive” killings—proceedings against high-ranking military officials have been marked by prolonged delays, in spite of hundreds of cases against low- and mid-level soldiers.

There are persistent and stubborn obstacles to trying the most serious crimes before national courts. Objective factors—such as the peace process in Colombia or the cross-border nature of the Georgia-Russia conflict—also place significant constraints on what the preliminary examinations can achieve to spur national justice. And the prosecutor’s office, with only 13 staff members in its preliminary examinations unit, has limited resources for this work. Continue reading →

Posted in Preliminary Examinations, The ICC’s Impact on National Justice Symposium | 4 Comments

The ICC’s Impact on National Justice – A Symposium

Posted on December 6, 2018 by Mark Kersten
ICC preliminary examinations

(Photo: Reuters / Soe Zeya Tun)

This post introducing JiC’s joint symposium with EJIL:Talk! was written by Dapo Akande and Mark Kersten. Dapo is Professor of Public International Law, Fellow of Exeter College (since April 2018) and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC). He is also the founding editor of EJIL:Talk! and a member of the Africa Group for Justice and Accountability. 

While investigations by the International Criminal Court (ICC) have received the lions’ share of attention and scrutiny from scholars and observers, there has been a growing interest in the impact of the ICC’s preliminary examinations. The preliminary examination stage requires the ICC Prosecutor to ascertain whether alleged crimes fall within the Court’s jurisdiction, whether the crimes are of sufficient gravity to warrant investigation, whether there are ongoing proceedings related to those alleged crimes, and whether an investigation into alleged atrocities would be in the “interests of justice”. If the answer to each is ‘yes’, then the Prosecutor can seek an official investigation.

There are currently ten open preliminary examinations across four continents: Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Bangladesh/Myanmar, Ukraine, and Venezuela. But what have the political and legal impacts of these preliminary examinations been? Have they galvanized greater interest in achieving accountability? What lessons can be drawn from preliminary examinations to date in order to improve the prospects of justice?

To answer these and other questions, EJIL:Talk! and Justice in Conflictare delighted to host a discussion of the Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, and of ICC Preliminary Examinations more generally.

The symposium coincides with the Assembly of States Parties (ASP) to the ICC, which begins its annual session this week. One of the highlights of the ASP will be the release of the Office of the Prosecutor (OTP) 2018 Report on Preliminary Examination Activities. The report will summarise the activities of the Office with regard to situations which are under preliminary examination by the Prosecutor. Continue reading →

Posted in Afghanistan, Assembly of States Parties, Colombia, Gabon, Georgia, International Criminal Court (ICC), International Criminal Justice, Iraq, Preliminary Examinations, The ICC’s Impact on National Justice Symposium, United Kingdom | Tagged | 5 Comments

Referring Venezuela to the ICC: A Tumultuous Shift in Latin American Politics?

Posted on December 4, 2018 by Mark Kersten

Daniel Marín López and Aaron Acosta join JiC for this post on the legal and political causes and implications of the joint referral of Venezuela to the International Criminal Court (ICC). Daniel is a researcher and Aaron is a Fellow at Dejusticia, a Colombia-based research and advocacy organization dedicated to the strengthening of the rule of law and the promotion of social justice and human rights in Colombia and the Global South.

Opposition activists clash with police in Caracas, Venezuela in July 2017 (Photo: AFP)

Political events like that of today honor the memory of the murdered and restore the hope of justice for the tortured, the political prisoners and their families, the forcibly exiled and all the Venezuelans who suffer, who go hungry, who are forced to search for food in the garbage, who lack access to medicine…

Those were the words uttered by the Secretary General of the Organization of American States (OAS), Luis Almagro, when six countries (Argentina, Colombia, Chile, Paraguay, Peru, and Canada) sent a referral to the Prosecutor of the International Criminal Court (ICC) on 27 September 2018 urging her to open an investigation in Venezuela. Similar to the sentiment expressed by Almagro, the international community also reacted with excited approval. Media sources from across the globe repeatedly highlighted the historical significance of this referral – this was the first time that States Parties to the Rome Statute referred a situation to the Prosecutor concerning a situation in the territory of another State Party.

Yet, amidst the commentary concerning the novelty of the referral, a greater momentous occasion was largely missed. The referral, which involved five Latin American countries, marks a momentous shift in Latin American regional politics and diplomacy. Indeed, Mr. Almagro was correct to call this move a “political event.” Breaking from the regional norm of the principle of nonintervention and the unspoken culture of fraternity among countries, these five Latin American countries have opened the door to a new wave of visceral politics in the region. With the rise of right-wing presidents in Latin America, measures like the referral can be abused by such governments to advance their political agendas in the region, thereby delegitimizing the crucial cause of seeking justice for victims in Venezuela as a common goal. The Prosecutor of the ICC should keep these regional concerns in mind before she decides to open an investigation in Venezuela.

The Referral: A Legally Undisputable Opportunity to Investigate Grave Crimes in Venezuela

 The referral appears to be a response to a 29 May 2018 report by the OAS regarding alleged crimes against humanity committed in Venezuela. In a set of recommendations issued by the report, the independent experts appointed by the OAS and who wrote the report recommended that Almagro invite States Parties to the Rome Statute to refer the situation in Venezuela to the ICC for alleged crimes against humanity committed since at least 2014.

To date, the Venezuelan government has not publicly reacted to the referral itself, but has instead, focused on insulting countries like France and Costa Rica, who have subsequently supported the referral. However, on 2 October 2018, the National Assembly of Venezuela, the government organ that once held legislative power until the Maduro government controversially reassigned power to the Constituent National Assembly, approved an accord which supported the referral of the situation in Venezuela to the ICC.

As a result of the referral, the legal character of the ICC’s preliminary examination, which the Prosecutor opened on 8 February 2018, remains unchanged. In other words, the referral does not automatically result in the opening of an official investigation. However, an Article 14 referral does eliminate the requirement that the Prosecutor receive judicial approval before proceeding to open an investigation, thus giving her the sole discretion in deciding whether to open an investigation in Venezuela.

With this in mind, it is necessary to present some of the legal challenges that have been discussed concerning head of state immunity and the problems presented if Venezuela were to withdraw from the Rome Statute, a situation which Venezuela has not yet expressed, but may occur, especially considering Venezuela´s 25 April 2018 decision to withdraw from the OAS.

With regard to head of state immunity, the concerns that an indictment of President Maduro would cause the same problems as did the indictment of President Omar Al-Bashir in the ICC’s situation in Sudan are unfounded. In its decision on South Africa’s noncompliance, the ICC emphasized that “[b]y ratifying the Statute, States Parties have in fact accepted the irrelevance of immunities based on official capacity, including those that they may otherwise possess under international law.” Unlike Sudan, which is not a State Party to the Rome Statute, Venezuela has ratified the Rome Statute, and has therefore surrendered any claim to immunity before the ICC.

With regard to the withdrawal issue, the legal concerns are similarly without a basis. According to Article 127 of the Rome Statute, a State Party may withdraw from the Rome Statute, which becomes effective 1 year after the notice of withdrawal. However, the ICC still retains criminal jurisdiction over crimes committed during the period of time the State was a party to the Rome Statute.

Having dispelled these legal concerns, it is important to emphasize that the significant challenges for the ICC would be more practical rather than legal, including the difficulty of gaining custody of the accused. Continue reading →

Posted in Crimes against humanity, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Venezuela | Tagged , , , | 3 Comments

New Paper! Taking the Opportunity: Prosecutorial Opportunism and Case Selection at the International Criminal Court

Posted on October 18, 2018 by Mark Kersten

Why does the International Criminal Court target the individuals that it does?

What determines which individuals the International Criminal Court (ICC) targets for prosecution — and which ones escape the Court’s scrutiny? This is a question that has concerned virtually everyone interested in international criminal law and justice. The cases that the ICC selects determines what kind of Court the ICC can hope to be and what sorts of impacts it can hope to have.

Building on research that I conducted for my book, Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, my latest draft paper seeks to develop a theory to explain the thinking behind ICC selection across cases. In doing so, it explores what I call “prosecutorial opportunism”: the identification of opportunities to prosecute particular actors at particular moments in time in order to further the institutional interests of the Court. In the paper, I explore the implementation of prosecutorial opportunism in situations where it has worked (Mali), where it hasn’t (Kenya), as well as situations where a state uses an ICC prosecutorial opportunity to further its only political interests (Uganda).

The chapter will be published in The Elgar Companion to the International Criminal Court, edited by Margaret deGuzman and Valerie Oosterveld next year. An abstract for the paper can found below. A copy of the full draft article can be found here. Please do share your thoughts and feedback!

The decision to prosecute some international criminals but not others has captured the imagination of scholars, observers and communities affected by atrocity since the very onset of the international criminal justice project. Today, it is common to ask: why do prosecutors at the International Criminal Court (ICC) pursue the investigation and the cases that they do? Despite a growing global demand for accountability for international crimes, the ICC has managed to charge just a handful of perpetrators. In some cases, this is due to limitations on the territorial and / or personal jurisdiction of the Court or the resources available to prosecutors.But in others, it is not. In situations in which the ICC has intervened and there is evidence of systematic and widespread atrocities, the Court has only charged a tiny fraction of perpetrators and, typically, only one side of a given conflict. So, what, then, makes ICC prosecutors decide to open specific investigations and target certain perpetrators and not others?

Continue reading →

Posted in Academic Articles / Books, Ahmad Al Mahdi Al Faqi (Abou Tourab), Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, Mali, northern Uganda, Uganda | 1 Comment

Afghans Don’t Know the ICC, but its Hope to Deliver Justice Depends on Making Sure They Do

Posted on September 26, 2018 by Mark Kersten

Ehsan Qaane joins JiC for this post on the role and importance of proactive outreach by the International Criminal Court (ICC) in Afghanistan, where the Court is likely to investigate allegations of war crimes and crimes against humanity,. Ehsan is a co-founder of the Transitional Justice Coordination Group (TJCG), a coalition of 28 Afghan individuals and civil society organisations working on raising the voice of war victims in Afghanistan.

Labourers rebuilding a destroyed shop in Kunduz city, in December 2015 (Photo: Najim Rahim / AP)

Afghanistan is awaiting the apparently imminent announcement of the International Criminal Court (ICC) on whether it will launch an investigation into the allegations of crimes against humanity and war crimes committed by various factions since 2003. But few Afghans feel part of the ICC’s processes, let alone are aware of the Court’s interest. Little has been done by the ICC in over ten years of preliminary examinations to communicate with the Afghan public. But rather than diminishing, the need for the Court to actively and effectively engage with Afghan public and explain its role grows with each passing day.

Judges’ deliberations on the Prosecutor’s request to launch the investigation are taking place in The Hague, which could not be more distant from the realities of Afghanistan. The United States made it clear they will go all out against the ICC in trying to protect its nationals from prosecution. This stance has emboldened all actors in Afghanistan looking to get away with impunity for crimes their forces committed. It is these realities that make the Court’s timely outreach to different groups and constituencies so crucially important, probably more so than in any other context the ICC has dealt with.

The Need for ICC Justice

The first factor driving the need for the ICC to enter the public discourse in Afghanistan is the sheer volume of victims’ demands for justice. These have been the driving force behind the Prosecutor’s request for the investigation to be launched. There is little hope for hundreds of thousands, if not millions, who have suffered at the hands of various combatants in the past 15 years that they will see justice through the state institutions any time soon. The country’s police and judiciary are woefully weak. In some areas it can hardly deliver on simple cases of “ordinary” crimes, let alone in complex cases of crimes against humanity in circumstances where potential perpetrators wield political, military and financial power that almost guarantees them impunity.

While the ICC cannot deliver justice to these multitudes, it has clearly provided hope to many that impunity is not inevitable, as witnessed by the large number of victims who have made some 6000 submissions during the victims’ representations phase, as a result of efforts undertaken by a number of civil society groups. However, before they were reached by activists, victims knew very little about the Court’s existence, let alone about how it operates. Crucially, victims know little about the limitations of ICC’s capacity to properly investigate, indict and arrest potential suspects in contexts like Afghanistan, how it depends on states’ cooperation in most areas of operation, how complex its procedures are and other important aspects of its work. Nor do they understand that the Court will likely narrow its focus to a few individual cases, which in this conflict afflicted low trust society will result in accusations of selective justice, unless the Court’s work is properly understood – and ideally accompanied by significant improvements in the government’s own accountability efforts.

Victim Representation at the Court

The representations phase, which extended from December 2017 to the end of January 2018, could be seen as a test of sorts of the Court’s commitment and capacity to engage with victims in Afghanistan and it would be hard to give it a passing grade. While the Participation and Reparations Section made as much effort as they could within their limited mandate, they were heavily dependent upon civil society.

Parts of the court have been congratulating themselves for relatively high levels of victims’ participation, but the lion’s share of work on informing the victims about the right and means to make submissions to the Court fell to civil society activists who undertook this effort at great risk, in a fairly hostile atmosphere. Continue reading →

Posted in Afghanistan, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Outreach, United Nations, United States | Tagged | 1 Comment