Perceptions of Justice: When and How the ICC Should Meet with ‘Bad’ Leaders

Posted on February 21, 2019 by Mark Kersten

Nigerian President Muhammadu Buhari (middle) with the ICC Registrar, President of the Assembly of States Parties, President of the Court, and the chief Prosecutor)

Yesterday, my good friend and colleague Patryk Labuda wrote an important piece on a salient subject: the publication and dissemination of photographs of the Prosecutor of the International Criminal Court (ICC) with figures known to be less than favourable to human rights and the international justice project. In his post, Patryk responded with frustration to a photograph published by the ICC of Prosecutor Fatou Bensouda meeting with Rwandan President Paul Kagame. Patryk describes Kagame as “no friend of the ICC… with a questionable human rights record.” In this post, I want to address some of Patryk’s concerns and hopefully add some nuance to the difficult position that ICC staff sometimes find themselves in – especially when dealing with undemocratic states.

Photos O(o)ps

Photographs of the ICC Prosecutor with “unsavoury” figures are nothing new. Most notoriously, former chief Prosecutor Luis Moreno-Ocampo was caught on camera laughing it up with Yoweri Museveni prior to Uganda’s referral of the Lord’s Resistance Army (later the “situation in northern Uganda”) to the ICC. That show of bias still haunts the Court in northern Uganda and unsurprisingly so. That photograph was an unambiguously bad idea.

Moreno-Ocampo was also caught on camera cozying up on a couch with Ivorian President Alassane Ouattara in Paris, in 2011, just a few days before Ouattara shipped out his rival, Laurent Gbagbo, to The Hague. Current ICC Prosecutor Fatou Bensouda has also appeared with Museveni (despite his rather vicious attacks on the ICC) as well as DRC President Joseph Kabila.

According to Patryk, these photo ops hurt the perceived legitimacy of the ICC in the eyes of the victims of these leaders. One might also add that it is confusing to see the chief Prosecutor pose happily with some of the harshest critics of the Court. Less than a year ago, Kagame stated that “[f]rom the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used. I told people that this would be a court to try Africans, not people from across the world. And I don’t believe I have been proven wrong.” At his swearing-in in 2016, Museveni famously called the ICC “a bunch of useless people.”

So why meet and pose for photos with such figures?

The Prosecutor and her team surely make some form of cost-benefit analysis prior to accepting or convening these meetings. What costs and benefits they measure is not clear, and more openness or a policy paper on the subject would be useful. They are, however, certainyl aware of the allegations facing these leaders and what they’ve said about the ICC. The Prosecutor’s team therefore clearly views meeting these figures as beneficial to the mandate of the Court. It could be, as pointed outastutely by Carrie McDougall, that “such photo ops help counter criticisms that the ICC is targeting Africa”. Among audiences who are exposed to photos of Kagame or Museveni engaging with the ICC Prosecutor, it becomes less tenable to believe their anti-ICC antics.

In general, such meetings will almost certainly boil down to an attempt by the Prosecutor to bolster state cooperation with the Court. As Patryk writes, “the ICC relies on states for cooperation, so the Prosecutor has no choice but to work with official state representatives… This will inevitably include unsavory personalities.” This could include cooperation in investigations, but it could also mean cooperation in witness protection programming. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, northern Uganda, Outreach, Rwanda | 4 Comments

Perceptions of Justice: Does the ICC Need A Policy on Non-Essential Contacts with Government Officials?

Posted on February 20, 2019 by Mark Kersten

Patryk I. Labuda joins JiC for this guest-post on the publication and dissemination of photos of meetings between the Prosecutor of the International Criminal Court and world leaders. Patryk is a Hauser Global Fellow at New York University.

(Photo: ICC Twitter account)

The image is troubling. On 16 February, the International Criminal Court (ICC) tweeted a photo of Prosecutor Fatou Bensouda shaking hands with the President of Rwanda, Paul Kagame. The photo was taken at the Munich Security Conference, an annual gathering whichaims“to build trust and to contribute to the peaceful resolution of conflicts”. Kagame can be seen grinning, while Bensouda sports an awkward half-smile, half-cringe.

As noted by Dov Jacobs, similarly awkward photos exist of the first ICC Prosecutor, Luis Moreno Ocampo, trading laughs with Yoweri Museveni, the President of Uganda. Here is one of the current Prosecutor shaking hands with Museveni a few years ago. And last September, the ICC tweeted a photo of Bensouda meeting with the then ‘President’ of the Democratic Republic of Congo (DRC), Joseph Kabila, at the UN General Assembly.

It is hard not to feel some discomfort looking at these images. To state the obvious: these three men are not known for their human rights credentials. At the same time, it is a fact of life that the ICC relies on states for cooperation. Sois there something inappropriate about these photos? Or is this just (an unpleasant) part of the job? In this post, I argue that the ICC should do a better job of managing public perceptions. It may also want to adopt a policy on non-essential contacts with government officials to avoid public relations mishaps in the future.

Perceptions of (In)-Justice

Why are these photos a problem? When they were announced in 2004, Uganda and Congo’s invitations to the Prosecutor to launch investigations in their territories were quite a surprise. At the time, few expected states would affirmatively encourage ICC scrutiny. Self-referrals, as these invitations came to be known, came under sharp criticism almost immediately, with academics and civil society worrying that the first Prosecutor had cut a deal with the leaders of self-referring countries in exchange for their cooperation.

That criticism has not abated since then. It does not help that fifteen years later the Prosecutor has failed to bring a single case against a sitting government official from any self-referring state (in addition to Uganda and Congo, that includes the Central African Republic (CAR), Mali and Cote d’Ivoire). Not only has there not been a single trial of a sitting government actor – there are no publicly available arrest warrants, which couldmean that the ICC has never even tried toinvestigate government crimes in these contexts. Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), Rwanda | Tagged | 7 Comments

Transitional Justice at Sites of ‘Dark Tourism’: The Case of Genocide Memorials in Cambodia

Posted on January 28, 2019 by Mark Kersten

Cheryl Lawther, Rachel Killean, and Lauren Dempster join JiC for this post on sites of ‘dark tourism’ in Cambodia. Cheryl, Rachel, and Lauren are Lecturers at the School of Law, Queen’s University Belfast. Their post draws on a period of fieldwork in Cambodia conducted by them in January 2018, with the team carrying out over 30 interviews with survivors, members of staff at Tuol Sleng and Choeung-Ek, representatives of NGOs and other stakeholders to examine how victims and survivors are represented at these sites. In addition to Tuol Sleng and Choeung-Ek, the team visited a number of former prison sites in the provinces. Using a transitional justice lens and drawing on the interviews conducted, this blog examines how these sites can be argued to be, and be critiqued as, spaces of: truth, justice, and reparations.

A visit walks past photographs of some of those killed in Prison 21, now the Tuol Sleng Genocide Musem (Photo: Tang Chhin Sothy / AFP / Getty Images)

The practice of ‘dark tourism’, whereby members of the public visit sites associated with atrocity and violence, has received growing attention in recent years. Thousands of visitors travel to Auschwitz, Cambodia’s ‘Killing Fields,’ ports used in the global slave trade, and to other sites of mass atrocity. While these sites appeal to (some) tourists, how do those impacted by the violence perpetrated in these places view them? And what do these sites say – or not say – about those harmed there? Focussing on two sites associated with such activity in Cambodia, Tuol Sleng Genocide Museum and the ‘killing fields’ of Choeung-Ek, this blog post explores how transitional justice can provide a framework for analysing the value of these sites to survivors of the genocide, and for unpicking whose, and what, experiences are represented there.

Tuol Sleng Genocide Museum in Phnom Penh is a former site of torture and detention run by the Khmer Rouge regime between 1975 and 1979. Those detained at Tuol Sleng were transported to Choeung-Ek, a site to the south of the city, where they were executed and buried in mass graves. Both sites have become popular places for tourists to visit.

Sites of Truth

For many interviewees, Tuol Sleng and Choeung-Ek are considered to be places where the truth of past harms is acknowledged. Tuol Sleng is used as a space of truth-telling by survivors, often working with NGOs and victim support organisations. Survivors at the sites spoke of the importance of telling their stories, of theirrole as ‘living documents’ of what had happened, and in some cases of feeling a ‘duty’ to share their stories with researchers and visitors. At a more instrumental level, Tuol Sleng’s iconic photographic exhibition of former detainees has been a place where relatives of those killed in the detention centre can learn the fate of their loved ones. One survivor told us of visiting Tuol Sleng in order to ‘search for the truth.’

While playing an important truth telling function, neither site is viewed as telling the ‘full’ ‘truth’ about Cambodia’s past. For example, some interviewees drew attention to the fact that many of those tortured at Tuol Sleng and subsequently killed at Choeung-Ek were themselves former Khmer Rouge cadres subsequently detained by the regime. We found thatsuch complexities of victimhood are not fully engaged with at the sites. Increased representation of the ‘shades of grey’ of victims and perpetrators might facilitate the telling of a more comprehensive and nuanced truth. Others drew attention to the harms that are less visible within the sites, such as the widespread death caused by overwork, exhaustion and starvation during the regime. Some suggested that the development of other sites associated with the regime might help highlight these abuses. We found that the sites created a hierarchy of harm which prioritised violent death, rather than exposing a more comprehensive truth of the harms experienced during the regime. A number of interviewees expressed a desire for these stories to be amplified.

Sites of Justice

The sites are very much viewed as places of evidence, where the proof of past crimes is preserved and presented. The role of these sites as repositories of evidence was raised by interviewees in two ways. Firstly, many of our respondents emphasised the importance of these sites in authenticating the experience of those who suffered under the Khmer Rouge regime and ‘showing the world’ what happened. One interviewee described the sites as ‘the best place to show the public about the crime committed during the Khmer Rouge regime.’ Continue reading →

Posted in Cambodia, Genocide, Guest Posts, Transitional Justice | Tagged , , , , , | 2 Comments

Some Quick Reflections on the Gbagbo Acquittal at the ICC

Posted on January 18, 2019 by Mark Kersten

Over the last few days, I have had the opportunity to contribute to a few articles and programmes covering the acquittal of former Ivorian President Laurent Gbagbo and his political ally Charles Blé Goudé at the International Criminal Court (ICC). Here are some quick reflections on the case based largely on the contributions I’ve made to the media over the past week. Above is also an interview with Al Jazeera Inside Story that I gave, alongside Jim Wormington and Yabi Gilles. I hope that readers will find it interesting.

Why did it happen? Put simply, the judges are not convinced that the prosecution’s evidence is sufficient to warrant the trial continuing. The Trial Chamber asked the prosecution for a “mid-trial brief” last year. In doing so, they cast a pall of doubt on the ability of the prosecution to prove Gbagbo and Blé Goudé’s guilt beyond a reasonable doubt as well as on the narrative put forward by the prosecution regarding their alleged common plan to commit crimes.

Critically, we don’t know why the prosecution wasn’t able to gather sufficient evidence to proceed with the trial. A number of theories have been floated: political interference in the trial on behalf of Gbagbo and his supporters, insufficient cooperation from the government of the administration of current President Alassane Ouattara, and poor case construction by the ICC. It’s entirely possible that it is all of the above. Moving forward, one challenge for the Prosecutor is to better understand how political actors opposed to the Court can undermine investigations and, therefore, how to build cases that compensate for severe interference and avoid being eviscerated at the trial stage.

Acquittals are part and parcel of any normal criminal court. They are integral to the credibility of such institutions. As is an effective defence of any suspect brought before the ICC. However, whenever a case involving mass atrocities essentially collapses at the ICC, it does damage to the perception of the Court as a credible and effective institution of international justice. This is particularly true given that the ICC is still reeling from the bombshell acquittal of former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba, for alleged atrocities perpetrated in the Central African Republic. The ICC needs wins and it’s racking up losses. States are nervous about the record of the ICC and what they see as the return on the investment they make in terms of funding the Court. Victims will be deeply disappointed. Expectations of the ICC are being left unmet. The Prosecutor’s office needs to convince the Court’s constituencies – especially victims, survivors, and states – that their personal, financial, and political investments into the ICC are worth it.

I want to stress here that saying that such acquittals hurt the credibility of the ICC should not take anything away from the importance of acquittals to a criminal court or the work of defence counsel. Moreover, as Rachel Kerr stresses, we shouldn’t conflate ICC credibility with the credibility of the ICC Office of the Prosecutor. In my view, however, the perception of the credibility and legitimacy of an institution is a measure of the expectations actors have for it. When expectations are met, credibility is high; when there is a gap between expectations and reality, credibility will be lower. The ICC has multiple constituencies, meaning it has different sources of credibility. For victims and survivors who dedicate themselves and put so much of their time and energy into participating in trials — and hoping for justice — acquittals dash the expectations that the Court, and especially the Prosecutor, set for them. For states that want, rightly or wrongly, particular trial outcomes, the credibility of the Court is also damaged with multiple high-profile acquittals. The Gbagbo decision is yet another reminder of the need to exercise expectations management from the very outset of investigations. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Laurent Gbagbo | 16 Comments

A Special Declaration: Towards a Culture of Accountability in The Gambia?

Posted on January 10, 2019 by Mark Kersten

Tetevi Davi joins JiC for this post on The Gambia’s recent decision to permit individuals and NGOs direct access to the African Court on Human and Peoples’ Rights – and its implications. Tetevi is a visiting Lincoln’s Inn scholar at the European Court of Human Rights. He regularly writes on the work of the African Court and other regional courts in Africa and is a consultant for the African Foundation of International Law.

Gambia President Adama Barrow following his return to the country and his electoral victory (Photo: EPA)

On 23 October 2018, the Republic of The Gambia deposited its special declaration with the African Court on Human and Peoples’ Rights (‘the Court’). For those who may be unfamiliar with this process, in addition to ratifying the African Charter on Human and Peoples’ Rights (‘ACHPR’) and the Protocol to the Charter, states must also deposit an additional or “special” declaration with the Court in order to allow it to receive applications directly from individuals and NGOs. The African Court on Human and Peoples’ Rights is a continental court that was established by the African Union in 1998 to ensure the protection of human rights in Africa. With the deposition of its declaration, The Gambia becomes the 9th country to permit individuals and NGOs direct access to the Court, following Tunisia, which deposited its declaration in April 2017. A host of interesting implications arise from The Gambia’s deposition of its special declaration.

Growing State Engagement with the Court?

To begin with, it can be argued that The Gambia’s decision to deposit its declaration reflects an increasing willingness of African states to engage with the Court. Although the number of declarations that have been deposited is still low overall, it has recently grown at an increased pace, with 3 out of the 9 states who have deposited their declarations (Benin, Tunisia, The Gambia) having done so since 2016. Prior to this, only 6 declarations had been deposited over the span of almost 20 years. Whilst there was concern that Rwanda’s withdrawal of its 2013 declaration in the wake of the Ingabire affair  would lead to more states following suit, it appears that the reverse has been true, with three more nations depositing their declarations since then. In addition to this, the Court has been coordinating awareness-raising missions with a growing number of African states, which again is indicative of their increasing willingness to engage.

Whilst states’ improved engagement with the Court can be said to be a positive development, any optimism must be tempered by the persistent problem of the weak implementation of the Court’s judgments at the domestic level. The Court’s judgments are binding on states and its Protocol places an obligation on them to execute these judgments. Despite this, the Court’s most recent report on the status of implementation of its judgments shows that, in the majority of cases, states have either outright refused to comply with its rulings or have offered no update on the status of implementation. It is not sufficient for states to provide access to the Court for individuals and NGOs without redressing violations once they have been identified. Much more needs to be done, both by states and also by the African Union at an institutional level, to ensure that Court judgments are complied with.

Shift Towards a Culture of Accountability in The Gambia?

The Gambia’s deposition of its special declaration can also be seen as a manifestation of its desire to bring an end to the culture of impunity which existed during the 22 year rule of former President, Yahya Jammeh. Large-scale human rights abuses are reported to have been committed under the Jammeh regime including extra-judicial killings, torture, rape, and enforced disappearances. The nation’s media were also silenced through a campaign of violence and repressive laws. This repression led to a landmark judgment of the ECOWAS Court in 2015, in which it held that The Gambia’s sedition and libel laws, which had been principally used to stifle the media, were a violation of the right to freedom of expression enshrined in the African Charter, the International Covenant on Civil and Political Rights and in the Revised ECOWAS Treaty. In addition to these egregious human rights violations, it must be recalled that in 2016 The Gambia was on the verge of leaving the International Criminal Court, having notified its decision to withdraw from the Rome Statute to the Secretary-General of the United Nations. This move was interpreted by many as a flagrant attempt to shield the presidentfrom international prosecution for gross human rights abuses, as opposed to being based on any legitimate gripes with the ICC’s functioning. Continue reading →

Posted in African Court on Human and Peoples’ Rights, African Union (AU), Gambia, Guest Posts | Tagged | 7 Comments

Between Ordinary and Extraordinary Justice – The Contentious First Steps of the Special Jurisdiction for Peace in Colombia

Posted on January 8, 2019 by Mark Kersten

Shoshana Levy joins JiC for this post on the Special Jurisdiction for Peace and the ongoing struggle to achieve justice and accountability for mass atrocities committed in Colombia. Shoshana is a lawyer in International Criminal Law and International Humanitarian law, expert on the Colombian conflict and its transition to peace. The opinions expressed in this article are solely her own.

Special Jurisdiction for Peace President Patricia Linares and Attorney General Néstor Humberto Martínez. (Photo: Revista Semana)

Back in October of 2016, then-Colombian President Juan Manuel Santos asked the people of Colombia to vote in a referendum on the Peace Agreement that he had arduously negotiated for five years in Havana with the armed guerrilla FARC-EP. Santos may have not expected that this referendum would launch a divisive electoral campaign, one that would cause a deep fracture in Colombian society between supporters and opponents to the peace deal. This tense and polarised social context foresaw the difficulties in concretely applying the agreement, particularly one of its most contentious provisions: the Special Jurisdiction for Peace (SJP).

Officially set up in March 2018, the SJP is comprised of a 38 judges court whose mandate is to investigate and prosecute perpetrators of crimes committed “because of and in the context the armed conflict in Colombia”. Its temporal jurisdiction covers crimes committed since the beginning of the conflict until 1 December 2016, the date of the final ratification of the Peace Agreement. Onlythose most responsible for serious crimes under the Rome Statute and international conventions ratified by Colombia will be prosecuted; political crimes are covered by an amnesty law. The SJP is a court negotiated bilaterally between the FARC and Colombian government and it will hand down lighter sentences to those who confess their crimes and become involved in reparatory activities for victims.

Tensions around the SJP’s work peaked only a few weeks after its entry into function, when Jesus Santrich, one of the highest FARC representatives in Havana and who had been appointed as a congressman in March 2018, was arrested in Bogota on charges of exporting cocaine to the United States. The alleged crime was allegedly committed in January 2017 – after the signature of the Peace Agreement – meaning the crime was outside the SJP´s jurisdiction and could not be covered by the amnesty law. Denying his implication in any criminal activities after his demobilization, Jesus Santrich went on hunger strike. The SJP, which had been specially designed to hear former FARC combatants such as Jesus Santrich, requested access to evidence purportedly incriminating the congressman in order to ascertain whether it had jurisdiction over the case.

A legal controversy thus arose over the question of which court had la compétence de la compétence, i.e.the authority to decide whether the SJP has jurisdiction over cases such as this Santrich’s. In other words: could the SJP claim access to the case and decide for itself whether it had jurisdiction over it?

In June 2018, the Constitutional Court decided that the SJP, as an exceptional tribunal, has jurisdiction to decide upon its jurisdiction and that the General Attorney had to handover Santrich’s file to the SJP.Despite this clear decision, General Attorney Nestor Humberto Martinez refused to release Santrich. Various legal arguments have been proffered to defend this position, among which is the fact that an extradition procedure to the United States had already been launched. Continue reading →

Posted in Colombia, FARC, Guest Posts, International Criminal Court (ICC), Special Jurisdiction for Peace, Transitional Justice | Tagged | 5 Comments

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