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

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