The International Criminal Court Can and Should Investigate Violence in Gaza

Posted on May 17, 2018 by Mark Kersten

Palestinian protesters on 14 May (Photo: EPA)

As the United States moved its embassy from Tel Aviv to Jerusalem, the Israeli government was ecstatic. In contrast, Palestinians were irate, organizing public demonstrations throughout the spring. When the embassy opened its doors on May 14, Israeli soldiers fired live ammunition into large crowds of mostly unarmed demonstrators, some of whom were attempting to cross the border. 

The result was at least sixty deaths— the deadliest day in Gaza since the 2014 Israeli-Gaza war. 

What justice can be done for the victims of violence wrought by both Palestinian militants and Israeli forces on Palestinian civilians? One avenue would be the International Criminal Court (ICC), which already has jurisdiction in Palestine. This week’s events likely make an investigation by the ICC inevitable. But such a probe would not be without its challenges.

The ICC in Palestine

In response to the 2014 war in Gaza and a subsequent request from the government of Palestine, the ICC opened a preliminary examination into alleged war crimes and crimes against humanity perpetrated on Palestinian territory. The most recent unrest in Gaza will only add fuel to the fire — and add pressure on ICC Prosecutor Fatou Bensouda to open an official investigation into those responsible for atrocities. 

Despite some disagreement from a dwindling number of states who do not recognize Palestine as a state— and therefore do not believe that Palestine could request an ICC investigation into alleged crimes committed in Gaza— the ICC has both accepted Palestine as a state-party to the court and opened a preliminary examination into violence committed in Gaza since 13 June 2014.

It is important to stress that any investigation into Palestine would rightly require the ICC to investigate all sides of the conflict. While often and purposefully framed as such, the court cannot be used by Palestine against Israel. The indiscriminate shooting of rockets from Gaza into Israeli communities and other violent activities by Hamas would also be investigated and prosecuted.

Before an official investigation can be launched, however, the preliminary examination must be concluded. Doing so requires the ICC prosecutor to consider numerous factors, including whether: crimes under the court’s jurisdiction have been committed; relevant states are investigating and prosecuting the crimes themselves; the alleged crimes are sufficiently grave to merit investigation from the ICC; and if an investigation would be in the “interests of justice.” 

Palestine has been under preliminary examination for over three years. Prosecutor Bensouda insists that she cannot provide a timeframe for when the examination will conclude. This week’s violence in Gaza— including the deaths of an eight-month-old child and a disabled man in a wheelchair wielding a slingshot—should change her calculus.

A challenge to the ICC prosecutor

This week’s violence also poses a challenge to the prosecutor’s ability to effectively deter atrocities— something Bensouda said is a “crucial function” of her office. In reaction to the deaths of Palestinian protesters in March, Bensouda issued a statement, warning that “[a]ny person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She issued a similar response to the most recent violence in Gaza. 
Continue reading →

Posted in Gaza, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | 1 Comment

Policy Paper Alert: “Building Bridges and Reaching Compromise: Constructive Engagement in the Africa-ICC Relationship”

Posted on May 16, 2018 by Mark Kersten

Building Bridges and Reaching Compromise: Constructive Engagement in the Africa-ICC Relationship

Dear JiC readers,

I am thrilled to announce the publication of a policy paper entitled “Building Bridges and Reaching Compromise — Constructive Engagement in the Africa-ICC Relationship” that I have authored with contributions from colleagues at the Wayamo Foundation, where I work as Deputy Director.

The paper is the result of long-term research and was inspired by dialogues on the Africa-ICC relationship initiated by the German Ministry of Foreign Affairs and held in Pretoria in March 2017. The comprehensive and in-depth report offers policy-relevant analysis across numerous issue areas, with a particular focus on: the perception and misperceptions of the ICC, the Court’s relationship with the Security Council, the so-called “peace versus justice” debate, and reforms of the ICC from within. These core areas are assessed with regards to their impact and influence on the relationship between the ICC and African states and constituencies.

The relationship between Africa and the International Criminal Court (ICC) has received a tremendous amount of attention in recent years. Not only have dozens of articles and reports been written on the subject, but numerous conferences, symposia and diplomatic meetings have sought to assess the crux of the relationship and the concerns that African states and communities have regarding the Court. Despite allof this time, effort, and energy, it cannot be said todaythat the problems at the heart of this relationship have been resolved.

Over many years, the Wayamo Foundation has engaged with scholars, researchers, diplomats, practitioners, human rights advocates and politicalfigures on the subject of the Africa-ICC relationship. Indeed, understanding and improving the relationshipis a core feature of Wayamo’s mandate. This report thus represents much of the knowledge regarding the relationship that the Wayamo Foundation has built up and gleaned over the last year.

This policy report was further inspired in part by discussions held during the South African-German International Justice Dialogue. The event was initiated by the German Ministry of Foreign Affairs and organised by the Wayamo Foundation. It was held under Chatham House Rules, from 27-28 March 2017 in Pretoria.

In the following pages, the report focuses on four keytopics that have proven central to the relationshipbetween the Court and the African continent:

1. Perceptions regarding the ICC;

2. The relationship between the Court, the Security Council and Head of State Immunity;

3. The Peace-Justice debate; and

4. Reforms of the ICC.

The report offers analysis as well as recommendationson each of these critical subjects.

Above all else, this report urges continued engagementon the Africa-ICC relationship by all relevant actors, including ICC member states, the Court itself, civil society organisations, scholars and researchers, as well as victims and their representatives. Only through positive engagement can the legitimate concerns of African states and African communities be heard. Only through dialogue and negotiation can abetter and more effective ICC be realized.

The full paper can be accessed here.

Posted in Africa, African Union (AU), Amnesty, Article 16, Assembly of States Parties, ICC Prosecutor, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, Peace Negotiations, Peace Processes, Peacebuilding, Policy Papers, UN Security Council, Wayamo Foundation | 1 Comment

Lecture in Berlin: Africa and the International Criminal Court — Building Bridges and Reaching Comprise

Posted on May 9, 2018 by Mark Kersten

(Photo: Wikimedia Commons)

Dear (Berlin-based) Readers,

I am happy and very excited to announce a lecture that I will be giving entitled ‘Africa and the International Criminal Court — Building Bridges and Reaching Comprise’. The event will take place at the WZB in Berlin on 17 May at 18:00. I will be presenting findings from a research and policy paper on the Africa-ICC relationship that I have written in collaboration with colleagues at the Wayamo Foundation. Here are the details:

Africa and the International Criminal Court — Building Bridges and Reaching Comprise 

According to many observers African states and the International Criminal Court (ICC) are at loggerheads. Government leaders have derided the ICC as racist and neo-colonial in its pursuit of justice. A number of states have stated their intention to withdraw from the Court and one, Burundi, withdrew from the ICC in October 2017. At the same time, African communities affected by conflict have raised concerns about the impacts of the ICC and the apparent gap between the institution’s promise and what it can deliver. In such trying times many urgent questions arise: What is the future of the ICC-Africa relationship? What drives the antagonism of certain African states and communities towards the Court? What can be done to build bridges and reach compromises that enhance the ICC’s relationship with Africa whilst simultaneously strengthening the project of international justice?

Based on a newly released research and policy paper, this lecture will delve into these questions, elaborating the core motivations of African critiques of the Court, offering an detailed view into the current issues at the heart of the Africa-ICC relationship, as well as outlining concrete measures that can be taken to improve it. African states helped build the ICC; their engagement with the institution will determine what kind of Court — and indeed what kind of system of global justice — the world and its people can expect. 

The event is organised and moderated by Sassan Gholiagha.

More details and info for RSVP are available here.

If you are in (or near!) Berlin, please come join us. It would be great to see you — or see you again!

Mark

Posted in Africa, International Criminal Court (ICC) | 2 Comments

“I wanted to be the ICC President because I had a clear idea of what I wanted to achieve” — An Interview with Silvia Fernandez de Gurmendi

Posted on April 27, 2018 by Mark Kersten

Shehzad Charania joins JiC for this interview with outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi. Shehzad is the Head of International and EU Law at the Attorney General’s Office and International Law Adviser to the Prime Minister’s Office. Between 2013-16, he was the Legal Adviser and Head of International Law at the British Embassy in The Hague.

This marks the second time that Shehzad has interviewed Fernandez. The first interview was conducted in January 2015 when Shehzad was her first visitor at the Court’s newly opened premises. This time, he interviewed  Fernandez as part of her very last engagement before leaving the Presidency and the Court for good. The interview focussed on her legacy, her view of the Court today, and her hopes for the future. It was conducted on 9 March 2018.

Outgoing ICC President, Silvia Fernández de Gurmendi (Photo: International Criminal Court)

Outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi is in a reflective mood, for obvious reasons. It had been a “moving day”, she says. She has just that morning presided over a ceremony of the swearing-in of six new Judges, while the day before the Appeals Chamber issued four judgments. “We had to work like mad,” she says, “so I haven’t until now had the chance to reflect.”  

To add to the sense of finality, while we are speaking the Court issues the President’s End of Mandate Report setting out progress against the priorities she outlined at the start of her term in 2015.  She hails the emphasis on expediting and improving the judicial process. “I was so proud that we even managed to have a discussion on it,” she says.  Previously, many of the Judges had not wanted to enter into a dialogue around judicial processes, citing judicial independence as the concern. In the end, it has been a collective effort to improve trial procedures, and establish a “more cohesive judicial culture”. By issuing the report, she hopes that the new bench, including the six new Judges, will continue the dialogue. “Much has been done,” she says, “but there is much more to do.”  

In addition to the work on the judicial process, Fernandez also picks out the focus on restorative justice in the report and, in particular, her efforts to integrate the Trust Fund for Victims into the work of the Court. “The Trust Fund is a crucial part of the Rome Statute system,” she says. While the Trust Fund zealously guards their independence, she is clear that the “Court needs the Trust Fund and the Trust Fund needs the Court”. She has recently undertaken a trip to Uganda with the Trust Fund to see some of their work being carried out in the field.  Fernandez describes it as “one of the highlights of my Presidency”. She says she saw first-hand how much could be done with relatively little resource. “The new leadership should continue the engagement with the Trust Fund,” she advises, “because of the centrality of victims in the work of the Court.” Improving judicial process is key, she stresses, but it is equally important to raise awareness of the plight — and role — of victims, and the work of the Trust Fund.

What if she had another three years, I ask?  She is keen to emphasise that, in her view, three years is sufficient for a Judge to hold the Presidency. While it means that there is a limited amount of time to drive through an agenda, it means that you are “truly independent” because you are not spending your time “trying to make friends to ensure your reelection”. It is now time to pass on the torch, to bring in new ideas, she says. During her time, she has had to make hard choices which not everyone has agreed with or been happy about. If she were to have another three years, she would focus on harmonising the system for victims’ applications and participation. But she doesn’t think she could have done much more than she has. There needs to be a greater degree of experience in these areas, she says. 

So no regrets, I ask? “I did what I could,” she says, “and maybe I could have done better, but I wanted to be the President because I had a clear idea of what I wanted to achieve.” The biggest challenge had been to bring others with her in her vision for the Court and the judiciary.  But, she says sombrely, “there will always be a few individuals who do not want the same thing.”

As President, one of Fernandez’s responsibilities would have been dealing with the politics of the institution and the role of States in particular. The role of the ASP has grown, she notes. She doesn’t think that the extent of the role as it stands today was envisaged in Rome. States Parties in The Hague had in the past a tendency to “micromanage” the Court, she says. While Fernandez notes that she maintained good relations with States, and has no doubt about the key role they have to play, she has tried to persuade them not to interfere with the day to day running of the Court. “We need space to function,” she says, “so we need to find the right balance, because we need the ASP and we must engage with them.” But, she continues, “States need to think about whether they believe in the goals of the Rome Statute as they were envisaged twenty years ago, around accountability and sustainable peace.” If States want these aspirations to become a reality, she says, they have to face down the lack of cooperation and other current disputes, such as around immunities.  Continue reading →

Posted in ICC President, International Criminal Court (ICC), International Criminal Justice, Interview, Interviews, Trust Fund for Victims | Tagged , | 3 Comments

Reframing the ICC Selectivity Debate? The Importance of Consistency and Transparency

Posted on April 24, 2018 by Mark Kersten

Benjamin Nutt joins JiC for this guest-post which critically explores issues of selectivity at the International Criminal Court (ICC). Benjamin is an Associate Lecturer in Politics and International Relations at Plymouth University. He has recently completed his PhD, titled: ‘A Search for Justice: An Analysis of Purpose, Procedure and Stakeholder Practice at the International Criminal Court‘.

From ‘victors’ justice’ at Nuremberg and Tokyo to the alleged ‘anti-Serbian bias’ at the International Criminal Tribunal for the former Yugoslavia (ICTY), allegations of unfair selectivity have long shrouded the search for international criminal justice. The International Criminal Court (ICC) is no exception. Whether it be an ‘African bias’ or a focus against rebel leaders and deposed politicians, claims of unfair selectivity by the Office of the Prosecutor (OTP), and subsequently the ICC, are as vociferously purported by the Court’s opponents as they are rebuked by its supporters. It is this binary division that signifies how this debate surrounding the OTP’s practice is framed. By criticising and defending the OTP’s actions in the context of selectivity, selectivity has manifested itself as an issue in itself and something to be avoided, thus creating the impression that universalism in terms of where and who is targeted by the OTP is not only possible but also desirable and synonymous with justice. It is not that simple and it is important to recognise that transactions of justice are, by their nature, inherently and inevitably selective.

Justice transactions involve choosing, or selecting, between competing claims for resources and entitlement. Furthermore, there is often no correct or perfect approach. Different theories or conceptions of justice offer different outcomes and solutions. This reality is demonstrated by Amartya Sen’s ‘flute analogy’, in which three children stake competing claims to a flute. Each of the children’s claim to the flute is championed by a different theory of justice and Sen notes that — absent the possibility of chopping the flute in three and thus rendering it useless — there is no realistic, workable outcome that could reconcile all the children’s claims simultaneously. The point here is that notions of justice are selective by nature. In the context of the ICC, this is particularly relevant as the OTP is selective by design. The OTP has a mandate to be selective, driven by the concepts of complementarity and gravity. In other words, the most pertinent question regarding the OTP’s practice is not if it is selective but how it is selective.

Instead of focusing on selectivity as a primary issue within OTP practice, the debate should be reframed so that consistency and transparency become the chief focus. Consistency and transparency are central elements of just decision-making, underpinning both the processes through which decisions are made and the outcomes they produce. But, of these factors, consistency and transparency of outcomes ranks as the most important with regards to the OTP’s, and subsequently the ICC’s, credibility and legitimacy because, as the most visible component of any justice transaction, outcomes are most vulnerable to criticism.

When analysing the OTP’s actions, it is important to note that the ICC Prosecutor is mandated to investigate and prosecute those individuals responsible for atrocities from the most severe situations and that historically international criminal justice processes have been reserved for situations with high mortality rates. However, concerns could plausibly be raised regarding the seeming inconsistency in the gravity of the situations currently under Full Investigation by the OTP, particularly when gravity is measured quantitatively (in terms of the scale of the crimes committed) and viewed as synonymous with a situation’s death-toll (or a ‘litres of blood’ measurement). For example, there appears to be a large inconsistency between the death-toll statistics for the Democratic Republic of Congo (DRC), Uganda and Darfur situations, all of which are extremely high (hundreds of thousands), and those of Kenya, Central African Republic and Burundi, which are noticeably lower in comparison (a few hundred). These are realities that perhaps serve to highlight inconsistencies in the OTP’s selection criteria and/or practice. Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 3 Comments

The Trial of Hissène Habré and What it Could Mean for Justice in Africa

Posted on March 27, 2018 by Mark Kersten

Celeste Hicks joins JiC for this post exploring the trial of Hissène Habré and what it could mean for future justice and accountability efforts in Africa. Celeste is a freelance journalist focusing on Africa and the Sahel. She was a BBC correspondent in Chad and Mali from 2008-10. ‘The Trial of Hissene Habre – How the people of Chad Brought a Tyrant to Justice‘ is her second book. 

Celeste Hicks is the author of ‘The Trial of Hissene Habre – How the people of Chad Brought a Tyrant to Justice’, (forthcoming, Zed Books 2018)

The legal vagaries and judicial details of the Extraordinary African Chambers (EAC), which sentenced Hissène Habré to life imprisonment in 2015, was not at the top of the list of concerns of many of  the former Chadian president’s victims. What matters most was the EAC’s success in reaching a guilty verdict on charges of war crimes, crimes against humanity and torture on a remarkably tight timeframe and on a budget of just over 8 million euros.

However, for wider African justice, the EAC’s status as an ad hoc hybrid court established inside the existing Senegalese justice system is significant. There were a lot of firsts: it was the first time that the African Union (AU) had established a court; the first time a former African head of state had been tried before a court in another African country; and the first time a universal jurisdiction case had proceeded to trial in Africa. Being founded at a time when many legal analysts had largely concluded that hybrid trials would soon cease to be relevant, the EAC was part of something like a re-birth in hybrid justice. Although the EAC has been described as residing ‘at the limits’ of what a hybrid trial could be because only a handful of its officials were not Senegalese, it was widely praised for its status as an ‘African’ hybrid court. In practise this meant the judges, defence and prosecution teams were all African and, significantly, the Chadian victims were allowed representation through the forming of ‘civil parties’ to the litigation, mostly organised by Chadian lawyers.

The EAC thus provides us with some interesting lessons as attempts are now being made to set up similar hybrid trials in other African countries. As efforts to establish a court for South Sudan have been delayed by political blockages and the fact that political violence there has not yet ceased, the EAC has shown us how a court could be established in another country — in this case Senegal where Habré had sought exile in 1990. Basing the trial in Senegal defused some of the political tensions which could have been stoked by attempting to hold a trial in Chad itself, and removed the need to extradite him abroad (possibly to Europe).

As momentum builds behind efforts to establish a hybrid trial to investigate human rights abuses in Central African Republic (CAR), the EAC’s failure to secure the extradition of five co-accused former members of Habré’s secret police also provides valuable learning opportunities with regards to how to choose who to prosecute. In the CAR there may be many thousands of individual perpetrators, and the EAC has created much food for thought about the relative merits of going for the top leadership or middle level officials who may have been more involved in the day-to-day acts of torture.

Among the situations being most closely watched today is that relating to the former president of The Gambia, Yahya Jammeh, who fled into exile in Equatorial Guinea in early 2017 after losing a presidential election and negotiating his departure with regional powers. Reed Brody from Human Rights Watch, who played a major role in bringing about Habré’s trial before the EAC, has already met victims of alleged human rights abuses under Jammeh and has expressed an interest in using a similar approach in bringing a prosecution. There are certainly parallels to the Habré case, with Equatorial Guinea seeming to offer the former president a similar kind of protection that the Chadian leader enjoyed for more than ten years under Abdoulaye Wade in Senegal. Yet while the use of universal jurisdiction (a so-called ‘unique pillar’ of the EAC) is unpopular with many African heads of state in Africa, it could in theory be used to secure Jammeh’s extradition. Continue reading →

Posted in African Union (AU), Chad, Chambres Africaines Extraordinaires (CAE), Gambia, Guest Posts, Hissène Habré, Senegal, Yahya Jammeh | 2 Comments

Hybrid Justice for Victims of Mass Crimes – Making the System Meaningful

Posted on March 19, 2018 by Mark Kersten

Philipp Ambach joins JiC for this last instalment in our Hybrid Justice Symposium. You can access all of the terrific contributions to this symposium here. Philipp is the Chief of the Victims Participation and Reparations Section in the Registry of the International Criminal Court (ICC). 

Residents of northern Uganda watch the opening of the trial of Dominic Ongwen, a former commander in the Lord’s Resistance Army (Photo: CICC)

The International Criminal Court (ICC) pioneered a set of new victim-centered features in its normative and procedural framework that are unprecedented by the ICC’s famous predecessors, the UN ad hoc tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR). A number of internationalised ad hoc criminal courts and tribunals were established subsequent to the ICC’s creation and, interestingly, almost all of these justice mechanisms include more or less comprehensive victim participation and reparation regimes. The Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon, the Kosovo Specialist Chambers, the African Union-sponsored Chambres africaines éxtraordinaires (established to try former Chadian dictator Hissein Habré), and the Cour pénale spéciale Centrafricaine in the Central African Republic all contain specific provisions on victim participation and, to varying degrees of detail, on reparations for victims in case of a conviction. It would thus appear that a more or less comprehensive victim participation regime has become a necessary component of any modern international criminal justice mechanism. This trend is guided by the idea that the traditional retributive justice paradigm has to be paired with restorative/reparative justice elements in order to have the long-term positive societal impact that modern international criminal justice is designed to achieve.

Yet the victim participation and reparations regime at the ICC is not without its challenges. These include procedural and budgetary challenges, as well as challenges associated with rendering meaningful the impact the system has on victims and affected communities. At the same time it needs to be acknowledged that the ICC is presently the best-equipped international criminal justice mechanism in operation, with a budget of over 147 million Euros, six field offices in different countries where the ICC investigates/operates, and a Trust Fund for Victims which is designed inter alia to render the ICC’s reparations mandate meaningful by supplementing the money available for reparations to victims through States’ and other funders’ voluntary contributions. It may be even more difficult for internationalized ad hoc justice solutions operating in singular situations alongside the ICC particularly where the latter has no jurisdiction, to succeed with their victim participation and reparation systems. A number of key challenges can be identified which may ‘make or break’ the general framework of meaningful participation of victims in criminal proceedings and reparative elements at the end of the process:

Identification of and Outreach to Victims for the Purpose of Participation and/or Reparations

In order to ensure meaningful participation of victims in judicial proceedings, victims need to have knowledge of the mandate of the institution, and sufficient information on how to access the proceedings. It is insufficient if a court or tribunal simply provides a legal framework allowing for the participation of victims, but remains inactive in terms of reaching out to affected communities on how they can best gain access. There needs to be a coherent outreach strategy for every institution to contact relevant victims and affected communities in order to explain what the court/tribunal is about, what victims’ participatory rights are and, importantly, what they can expect quite concretely from their participation in the proceedings.

There are a number of lessons learnt from the ICC and ECCC context on the development of outreach strategies to victim communities that should be devised at the outset of every new hybrid court/tribunal, most prominently the Kosovo Specialist Chambers and the Central African SCC which are both, while in different phases of establishment, still to commence their work. Only through a comprehensive and long-term outreach strategy will a hybrid court be able to generate the local legitimacy required for long-term, positive impact on affected communities.

Victims’ Choice of Counsel and the Provision of Legal Representation in the Proceedings 

The more effectively the victims’ procedural rights are communicated and exercised, the more effective is the victims’ perceived access to justice. At the ICC, Rule 90(1) of the Rules of Procedure and Evidence starts off with the general principle that “[a] victim shall be free to choose a legal representative.” Reality, however, has shown that in almost all cases victims are organised in groups and assigned common legal representatives paid through legal aid funds provided by the ICC. This system has been reproduced by subsequent hybrid courts and tribunals, where bundling victim representation in the proceedings into one (or exceptionally more) team of common victim lawyers is increasingly the norm. In the prosecution of mass crimes (presumably involving large numbers of victims) before an international(ised) court with finite resources, it is likely that common legal representation will increasingly become the rule. The accused’s right to a speedy trial is another factor that speaks for a streamlined and not too time-consuming victim appointment and representation regime. Continue reading →

Posted in Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Court of Justice, International Criminal Court (ICC), Outreach, Victim Participation | 3 Comments

Hybrid Justice for Heads of State? The Habré Trial and the Norms of African Sovereign Immunity

Posted on March 16, 2018 by Mark Kersten

How have hybrid courts dealt with the question of head of state immunity and how might they in the future? In this latest contribution in our ongoing symposium on Hybrid Justice, Kerstin Carlson joins JiC to explore these questions in the context of the trial of Hissène Habré and its aftermath. Kerstin is an Associate Professor in the Department of Law at the University of Southern Denmark. She is also affiliated with The American University of Paris and iCourts at the University of Copenhagen. She is the author of Model(ing) Justice: Perfecting the Promise of International Criminal Law (Cambridge University Press, forthcoming 2018).

(Photo: Jean-Louis Atlan / Sygma / Corbis)

There is an ongoing disagreement in international criminal law regarding sovereign immunity. International humanitarian law takes the possibility of challenging impunity as a central element of its mandate, in part because of the fundamental norm of rule of law practice that none is above the law and in part because leaders are those who arguably bear the greatest responsibility for the types of collective harms international humanitarian law would criminalize. Thus international criminal law as practiced by ad hoc tribunals and the International Criminal Court promises that sovereigns are not immune from prosecution for atrocity crimes, and suggests that violations of international humanitarian law by those in positions of power are more worthy of prosecution that the infractions of low level offenders. This norm does not distinguish between sitting and former heads of state.

At the same time, there has been significant pushback, especially across Africa, over the prosecution of sitting leaders. This pushback has arisen in many forms, with perhaps the most public being the refusal of South Africa and others to comply with the ICC’s open arrest warrant against Sudan’s president Al-Bashir. More subtle, but no less significant, are examples such as amendments to the Malabo Protocol, the guiding document of the African Union’s proposed African Court of Justice and Human Rights, which explicitly grant sitting heads of state immunity from prosecution (but also references norms that would limit sovereigns to two terms in office, thereby in principle making them available for prosecution when they leave office). While this court is far from the 15 ratifications required to make it operational, Kenya has promised to join Uganda and ratify the proposed court by March 15 2018.

In this contested environment, the recent prosecution and conviction of former Chadian head of state Hissène Habré by an ad hoc, hybrid tribunal in Senegal was momentous. The Chambres Africaines Extraordinaires (CAE), a cooperative effort supported by western governments, the African Union, Chad and Senegal, was a temporary tribunal nestled in Senegal’s local juridical architecture that applied international criminal law to try Habré. The outcome of a 25-year saga by Chadian victims groups and international NGOs to bring Habré to justice, the CAE was novel in several ways. It was the first court set up in one country to try the leader of another, and the first African application of universal jurisdiction, a doctrine enabling any judge in any court to consider commissions of internationally recognized crimes. Despite these characteristics, the CAE’s greatest claim seems to be that it is an African institution that successfully prosecuted and convicted a former head of state. Other such attempts have always been the purview of internationally governed institutions such as the Special Court for Sierra Leone or the International Criminal Court.

The experience of the Habré process leads to the question: what does the trial of the former Chadian President tell us about current resistance to sovereign impunity on the African continent?  Continue reading →

Posted in Chad, Chambres Africaines Extraordinaires (CAE), Hissène Habré, Hybrid Courts, Hybrid Justice Symposium, Senegal | 9 Comments

Outreach, In-Reach or Beyond Reach? Lessons Learned from Hybrid Courts

Posted on March 15, 2018 by Mark Kersten

In this sixth instalment in our ongoing symposium on Hybrid Justice, Eva Ottendoerfer joins JiC for this post on the critical role of outreach in hybrid tribunals. Eva is a Post-Doc Fellow at the chair for international institutions and peace processes at Goethe-University Frankfurt. She has done research in Sierra Leone, Timor-Leste and at the Trust Fund for Victims at the ICC. The topics she works on are the contestation and localisation of international norms in the field of transitional justice and the design and implementation of reparation programmes.

Sierra Leoneans sit in front of a television relaying images from the Special Court for Sierra Leone in The Hague on the day of the Taylor verdict, April 26, 2012. The Special Court Outreach and Public Affairs section sponsored the outdoor event, which took place at the site of mass graves near the village of Mathiri in Port Loko district. (Photo: SCSL Outreach)

Outreach has been identified as a crucial function of international criminal tribunals, a means to ensure that the purpose of prosecuting those most responsible for mass crimes is well understood by affected communities and to prevent false rumours about the proceedings from spreading. While hybrid tribunals in most cases have the advantage of being located in-country, this does not automatically mean that they are better at reaching out to the population. Accordingly, a communications strategy via the media is insufficient in making sure that people will be able to follow (and understand) the proceedings. Instead, as the International Center for Transitional Justice argues in its guidelines on outreach, it is necessary to establish structures for a direct engagement with the population and to find culturally sensitive ways of communicating the message that justice is being done. Still, the question remains: how should outreach be designed and organised and what roles can it fulfil for a hybrid tribunal?

Tribunals have developed their own understanding of outreach which differ with regard to: what messages should be communicated communicate; whom to address with outreach; and how to communicate with the identified target groups. A conservative model of outreach limits its functions to a mere provision of information about the court, its mandate, and the proceedings to those affected by massive human rights violations. This represents a one-way street of communication. A more holistic model allows a broader educative function of outreach, going beyond the provision of information and instead aiming at the communication of the principles of rule of law and their function in a democratic society. It accordingly addresses a broader range of segments of society and also provides an interactive forum for dialogue in which opinions and ideas are communicated back to the court. This gives people a voice and agency in making their input reach back into the court.

Both of these approaches have already been applied in hybrid tribunals. The outreach section of the Special Panels for Serious Crimes in Timor-Leste was put in place in 2003, three years after the establishment of the tribunal. It consisted of one person and was instituted under the investigation unit of the tribunal. The section was based in Dili and undertook trips to the rural areas — together with the investigation unit — to meet people in community meetings. These only started to take place on a regular basis in 2005. At the same time, outreach efforts drew a one-sided picture of the court’s aims and mandate. Any cooperation with NGOs to compensate for the lack of staff and equipment was difficult since the leading East Timorese NGOs rejected the work of the hybrid tribunal and demanded the establishment of an international ad hoc tribunal instead.

The Special Court for Sierra Leone, in contrast, conducted outreach from its inception. During the Court’s first year, the first chief prosecutor, David Crane, and the first registrar, Robin Vincent, travelled across the country and organized townhall meetings. In the second year, an outreach section was established under the registry and set up district offices across the country, staffed with people who spoke local languages. Apart from providing information for affected communities, meetings also took place with stakeholders such as local chiefs and the media, as well as with school children and university students. Outreach events not only focused on providing information about the court’s proceedings but also on general principles of rule of law. The first head of the outreach section, Binta Masaray, was a well-connected member of Sierra Leone’s civil society and set up a strong network with civil society organisations. This contributed to effective engagement with the wider population. A Special Court Interactive Forum also served as a dialogue forum in which civil society representatives could exchange their views and opinions with the court’s staff.  Continue reading →

Posted in Central African Republic (CAR), Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, Outreach, Special Criminal Court | 3 Comments

So We Can Know What Happened? The Curious Impact of Hybrid Courts on Education

Posted on March 15, 2018 by Mark Kersten

Caitlin McCaffrie joins JiC for this fascinating post on the impact of the Extraordinary Chambers in the Courts of Cambodia’s impact on educating youth about the crimes that this hybrid court examined and addressed. This marks the fifth installation in our ongoing symposium on Hybrid Justice. Caitlin is the Co-Director of Cambodia programs for the WSD Handa Center for Human Rights and International Justice.

Cambodian school children in Phnom Penh (Photo: AP Photo/Heng Sinith)

Many have remarked on the recent re-emergence of hybrid tribunals as mechanisms of international criminal justice. It is thus timely to further explore the particular characteristics of hybrids and what potential impacts they can have on the societies they are intended to serve. This post takes the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to demonstrate an often overlooked impact of hybrid tribunals: their potential to educate future generations about crimes of the past.

The ECCC began its operations in 2006 after lengthy negotiations between the United Nations and Royal Government of Cambodia. This unique tribunal, sometimes referred to as ‘internationalised’ rather than hybrid, is mandated to try crimes committed on Cambodian territory between 17 April 1975 and 6 January 1979 by “senior leaders and those most responsible.” Hearings in the first case against Kaing Guek Eav, alias Duch, began in 2009. That case ended in 2012 when Duch was given a life sentence on appeal. Two other men, Nuon Chea and Khieu Samphan, remain on trial for a slew of charges with a verdict expected in June 2018. Criticisms of the ECCC are not hard to come by and often centre on its cost (around $300 million) and duration to conviction rate (three elderly men in twelve years). However, can the value and impact of a tribunal really be measured in such terms alone?

The hybrid elements of the ECCC are chiefly its mixed composition and location. All major functions of the tribunal are carried out by both Cambodian and international staff – prosecution, defense, judiciary, administration, security. Also, as opposed to The Hague or Arusha-based tribunals, the ECCC is located on the outskirts of Phnom Penh, within the country affected by the crimes being tried. Perhaps most importantly, proceedings are simultaneously translated into Khmer, English, and French, making them more accessible to the local population. To date, close to half a million Cambodians have either visited the court or attended public information briefings in the countryside. This level of engagement – not to mention those people who have benefited from numerous civil society programs inspired by the ECCC — is unlikely to have occurred if the trials were taking place outside of Cambodia.

It is often said that unrealistic expectations are placed on hybrid courts to be all things to all people. They have variously been expected to achieve ‘justice’, promote reconciliation, provide reparation to victims, symbolise an end to impunity, and improve the capacity of the domestic legal community. In part, this is a reflection of the different motivations of the multiple parties to such tribunals – lawyers may be more interested in improving domestic legal systems, some victims may prioritise ‘justice’ while others are more concerned with punishment or some form of reparation. One group which is often left out of these discussions are the children and grandchildren of survivors. What do they want from a hybrid court? Are their views different from those of their elders?

A recent study carried out in Cambodia asked just this question. Between July and December 2017 the Cambodia Programs of the Stanford-based WSD Handa Center for Human Rights and International Justice (Handa Center) conducted focus group discussions with university students in Phnom Penh to gather their opinions about the ECCC. Interestingly, when asked what they believed was the biggest ‘legacy’ of the Tribunal, the majority of students named the court’s ability to educate their generation about what happened as the ECCC’s most important contribution. This was rated higher than the tribunal’s ability to provide justice, reconciliation or reparation.  Continue reading →

Posted in Cambodia, Extraordinary Chambers in the Courts of Cambodia (ECCC), Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Criminal Justice | 4 Comments