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

Posted on September 26, 2018 by Mark Kersten

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

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

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

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

The Need for ICC Justice

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

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

Victim Representation at the Court

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

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

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

Grey Zones: Is International Law Fit for Purpose to Protect Civilians?

Posted on September 20, 2018 by Mark Kersten

Mark Lattimer joins JiC for this post exploring whether the current state of international law is succeeding in its aim of protecting civilians. Mark is the Executive Director of the Ceasefire Centre for Civilian Rights. He is co-editor (with Philippe Sands QC) of The Grey Zone: Civilian Protection Between Human Rights and the Laws of War (Hart/Bloomsbury, 2018), launched at the Swiss embassy in London on 12 September.

A former school destroyed in fighting during Syria’s civil war (Photo: Caritas)

As armed conflicts continue to metastasize in many world regions, is the existing international law protecting civilians fit for purpose, or are there gaps in protection? The answer of most lawyers of armed conflict to this question has long been that the gap lies not in the substantive law but in its implementation.

While the need for implementation is plain, it is also clear that the contemporary face of conflict presents aspects which the framers of the Geneva Conventions and their 1977 Protocols – as well as the major human rights treaties – could hardly have envisaged. The growth of transnational armed groups such as Al-Qaeda and ISIS means that a ‘non-international armed conflict’ can now be fought in many states simultaneously or even, according to some proponents, globally. New technologies in warfare, from armed drones to autonomous weapons systems, radically alter the circumstances under which information is made available to commanders and with it the scope and accountability of decision-making.

Such questions are considered in a new book launched this week, The Grey Zone: Civilian Protection Between Human Rights and the Laws of War. Just looking at the fundamental conflict activities of killing and detaining, the grey areas appear to be wide. With conflict conducted in areas of high population density, there are a number of practical problems in distinguishing civilians from combatants or fighters, but also legal ones. Civilians lose their immunity from attack when directly participating in hostilities, but how is direct participation defined and how long does it last? In Iraq and Syria individuals have been targeted on account of their membership of ISIS or Jabhat al Nusra. But what of members of armed groups who do not engage in combat? What of the driver, the cook, or the recruiter? The treatment of ISIS members and their families is a sensitive subject in Iraq, but it appears to encompass the targeting and/or punishment of those who had no combat function.

The growth in armed conflict jurisprudence from human rights and monitoring bodies has in many cases recast the headline question: rather than identifying gaps in the law, the challenge is to determine which set of laws or legal regimes apply. Should it be human rights law or the international humanitarian law (IHL) applicable in armed conflict? Or indeed both? Continue reading →

Posted in Guest Posts, International Humanitarian Law, International Law | Tagged , | 2 Comments

Justice for the Rohingya – What States, like Canada, Can Do Now

Posted on September 18, 2018 by Mark Kersten

This blog was jointly written by Amanda Ghahremani, the Legal Director of Canadian Centre for International Justice, Fannie Lafontaine, a professor at Université Laval and Canada Research Chair on International Criminal Justice and Human Rights, and Mark Kersten, a Fellow at the Munk School of Global Affairs and Deputy Director of the Wayamo Foundation. All are members of the Canadian Partnership for International Justice. This opinion is supported by the Montreal Institute for Genocide and Human Rights Studies and Avocats sans Frontières Canada. A version of this article was originally posted at the Huffington Post (in both French and English).

Rohingya_reuters

Refugees along the journey from Myanmar to Bangladesh (Photo: Jorge Silva / Reuters)

Despite the deportation of hundreds of thousands of civilians as well as allegations of genocide and ethnic cleansing, the Rohingya people have been denied recourse to justice and accountability. Some creative and ground-breaking thinking at the International Criminal Court (ICC) may just change that. Now, Canada has a unique opportunity to punch above its weight and make an indelible and lasting commitment to justice for a people who desperately deserve it.

On 6 September, judges at the ICC ruled that the Court has jurisdiction to investigate the crime of deportation committed by Myanmar’s army against the Rohingya, who have been forced to flee the country into neighbouring Bangladesh. This followed numerous legal interventions by experts, including the Canadian Partnership for International Justice, of which we are members, in support of this outcome.

The decision was not uncontroversial. But the ICC’s chief Prosecutor successfully argued that, because deportation is a crime initiated on the territory of a non-member state of the ICC (Myanmar) but completed in a member-state (Bangladesh), it gave the Court jurisdiction to investigate. With a dithering United Nations Security Council and no regional tribunal set up to mete justice, the ICC’s move represents the best opportunity to achieve a degree of accountability for atrocities committed against the Rohingya people.

The ICC’s decision comes on the heels of a scathing UN report published this month detailing violent measures taken by Myanmar’s army to remove and ethnically cleanse the Rohingya and other minorities in the country. The UN Report specifically recommended that top Myanmar military officials be investigated and prosecuted for international crimes. With the ICC’s ruling, this may become a reality.

The UN report, which highlighted forceful measures employed by the Myanmar army, including extrajudicial killings, rape, and torture – crimes that amount to genocide, crimes against humanity, and war crimes – was rightfully met with outrage in Canada. Prominent lawyers and human rights defenders publicly called on the government to revoke nominal Burmese President Ang Sun Suu Kyi’s honorary Canadian citizenship after Suu Kyi was criticized for failing to use her “moral authority” to prevent the escalating violence.

But Canada has a role to play beyond symbolic measures. As members of a network of Canadian scholars and lawyers working on international justice, known as the Canadian Partnership for International Justice, we believe that Canada should absolutely play a leadership role and we urge the Canadian government to champion accountability initiatives within the international community to address the genocide unfolding before our eyes. Continue reading →

Posted in Bangladesh, Canada, Canadian Partnership of International Justice , Crimes against humanity, International Criminal Court (ICC), International Criminal Justice, Myanmar, Uncategorized | 1 Comment

New Paper Alert! ‘Hybridization – A Spectrum of Creative Possibilities’

Posted on September 12, 2018 by Mark Kersten

Something that came up when I searched “hybridity” in Google images

At a time of great crisis challenge for the International Criminal Court, hybrid tribunals have come roaring back into fashion. But what does it meant to be a hybrid court and how might the very hybridity of such tribunals be designed to address some of the mosts endemic problems facing the project of international criminal justice? To answer these questions, I have co-authored a paper entitled ‘Hybridization – A Spectrum of Creative Possibilities‘ along with Kirsten Ainley of the London School of Economics.

The paper is part of our ongoing project on hybrid justice (see our symposium on the subject here) and will hopefully be included in a book on the Hissene Habré trial and hybrid courts in the coming year.

I have posted the abstract below. The full draft can be accessed here.

Hybridization – A Spectrum of Creative Possibilities

After a sharp decline in interest, it appeared that the hybrid tribunal had become an “orphan” of the international criminal justice project.  That was not to be. Recent years have seen a spate of hybrids established or proposed, from Syria and South Sudan, to the Central African Republic and Sri Lanka. This re-emergence of the hybrid has been addressed by numerous scholars.  Yet it remains unclear what, precisely, it means to be a hybrid court and how the latest hybrids might contribute to furthering the project of international criminal justice.

The answer to the first question is typically assumed to be simple: hybrid tribunals are “of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.” But hybrids are much more than just middle-ground institutions that marry national and international components. As this chapter demonstrates, they are institutions whose very hybridity creates productive space for creative solutions, which can be used to address some of the most pressing shortcomings in international criminal justice.

This chapter demonstrates hybrid creativity through four specific examples, each allocated to a section of the chapter: (i) the outsourcing of outreach efforts at the Extraordinary African Chambers; (ii) combating victors’ justice at the Kosovo Specialist Chambers; (iii) sharing concurrent jurisdiction between the Central African Republic’s Special Criminal Court and the International Criminal Court; and (iv) using the premises of previous hybrid courts to host new tribunals and therefore reduce the financial and security costs of international criminal justice.

The analysis that follows is optimistic in many ways. We outline what we believe to be beneficial innovations in the pursuit of international criminal justice. However, we recognize both the problems inherent in evaluating the success of tribunals and the criticism that has been levelled against hybrids.  The chapter does not seek to justify hybrid justice tout court but rather to highlight creative responses to challenges in the broader practice which have been developed by hybrids.

Posted in Academic Articles / Books, Central African Republic (CAR), Chambres Africaines Extraordinaires (CAE), Hybrid Court for South Sudan, Hybrid Courts, Hybrid Tribunals, International Court of Justice, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Liberia, Sierra Leone, Special African Chamber (CAE), Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL) | 1 Comment

A Graceful Exit for South Africa’s ICC Withdrawal Plans

Posted on September 10, 2018 by Mark Kersten

The following article was written by former UN High Commissioner, Navi Pillay, former Chief Prosecutor of the Rwanda and Yugoslavia tribunals, Richard Goldstone, and myself. Both Navi and Richard are members of the Africa Group for Justice and Accountability. A version of it first appeared in the Mail & Guardian, here. 

South Africa International Criminal Court

(Photo: Mark Kersten)

Almost two years after first announcing its intention to withdraw from the International Criminal Court (ICC), it remains unclear whether South Africa will exit the Rome Statute system. Last December, Justice Minister Michael Masutha told a meeting of ICC member-states that the country was forging ahead with withdrawal. A few weeks ago, however, Minister of International Relations and Cooperation Lindiwe Sisulu insisted that no final decision had been made. In the meantime, Jacob Zuma has been replaced by Cyril Ramaphosa as South African President. The issue at hand is whether parliament will pass legislation that could open the doors for the executive to eventually withdraw the country from the Rome Statute of the ICC. There is, however, more than just a sliver of hope that South Africa could find a graceful exit from any plan to withdraw from the Court.

At a recent event held by the Africa Group for Justice and Accountability and organized by the Wayamo Foundation in Cape Town, Minister Masutha stated that the International Crimes Bill – the first required for an ICC withdrawal – would soon be debated in Parliament. Critically, he stressed that parliamentarians would take into account developments relevant to South Africa’s concerns with the Court.

Masutha was specifically referring to two issues relating to the question of head of state immunity before the ICC: first, ongoing proceedings at the Court over Jordan’s 2017 decision to host Sudanese President Omar al-Bashir, who has been indicted by the ICC on charges of war crimes, crimes against humanity and genocide in Darfur; and, second, the decision by the African Union to seek an advisory opinion from the International Court of Justice (ICJ) on the status of head of state immunity under international law.

These yet-to-be-resolved developments are important because they are likely to address the key concerns that South Africa has with the ICC. According to proponents of withdrawal in Pretoria, South Africa cannot remain a member of the Court because it creates conflicting obligations for the government, between, on the one hand, fulfilling its duties under the Rome Statute and surrendering the likes of Bashir to the ICC, and on the other, meeting its obligations to fellow governments and international organizations such as the African Union to protect head of state immunity. This quandary, South Africa insists, makes it impossible to play mediator and peacemaker during negotiations to end violent political conflicts.

This leads to numerous questions: Why would South Africa rush towards an ICC exit before its core concerns are resolved? Why not wait until there is greater clarity and perhaps even compromise on the issue of head of state immunity before throwing in the towel, exiting the ICC, and therefore having no say in the Court’s future development? Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, International Law, Omar al-Bashir, South Africa | Tagged | 8 Comments

Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea?

Posted on August 31, 2018 by Mark Kersten

Rohingya refugees at the fence before “no man’s land” between the Myanmar and Bangladesh borders. (Photo: AFP / Getty)

Confirming what close observers have long suspected, investigators from the United Nations have determined that Burmese authorities have committed genocide against the Rohingya population. Without any prospects of the Burmese government investigating and prosecuting atrocities committed against a people they won’t even recognize, the latest revelations have predictably led to renewed calls for the United Nations Security Council to refer Myanmar to the International Criminal Court (ICC).

Before proceeding, let me be unequivocal: the ICC or some other competent judicial body should absolutely investigate crimes committed in Myanmar. While I do not purport to speak on their behalf, the Rohingya deserve justice and accountability. But there are real questions as to whether a UN Security Council is the best way to deliver that. Indeed, experience suggests that such referrals can do more harm than good to victims, survivors, the ICC, and justice itself.

The first Security Council referral of a situation to the ICC came in 2005, when Darfur was referred to the Court. The second came six years later, when the 2011 uprising and civil war in Libya was referred to the ICC. Both referrals have done damage to the institution. They included political carve-outs which ensured that citizens of states that were not members of the Court were excluded from its jurisdiction. This violates the very premise of equality before the law. Despite saddling the Court with a significant and difficult task in both Libya and Darfur, the Council also refused to provide the ICC with any commensurate funding.

The results have been brutal for the Court. Not a single individual for whom the ICC has issued an arrest warrant in Libya or Darfur has ever been convicted. Not one. Making matters worse, the Council’s role in referring situations to the ICC has become a keystone criticism of African states towards the Court. While it is true that the Security Council, and not the ICC, should be criticized for the failures to achieve justice in Darfur or Libya, it is clear that the Court has received the brunt of criticism.

Security Council referrals have also done little for those victims who favour ICC justice. They have elevated expectations that justice will be delivered and that the ICC’s investigations and prosecutions will be supported by a united Council. Not only has no justice been achieved in any Council-referred situation in over thirteen years, but in some cases, victims have resigned from participating in the cases altogether.

We should further avoid an argument which suggests that, because Darfur and Libya received referrals to the ICC, Myanmar should have one too. If the tool is broken, it needs to be fixed – not applied again, in the same way with us expecting different results.

Incredibly, none of the organizations, such as Human Rights Watch, that have pushed for a referral by the Security Council of Myanmar to the ICC, have spelled out why anything would be any different this time. Nor have they put forward a vision of what an appropriate referral would look like – one that would be good for victims, survivors, and the ICC. One possible reason for this is that they know a referral will fail, but that the process is, in and of itself, valuable. Continue reading →

Posted in Burma/Myanmar, Genocide, International Criminal Court (ICC), International Criminal Justice, UN Security Council | 7 Comments

On the Human Rights Pitch, FIFA Scores an Own-Goal

Posted on July 31, 2018 by Mark Kersten

FIFA President, Sepp Blatter, with former Liberian President, Charles Taylor, convicted by the Special Court for Sierra Leone for aiding and abetting war crimes in Sierra Leone.

Earlier this month, Sudanese President Omar al-Bashir took in the FIFA World Cup Final between France and Croatia. Bashir was among world leaders in the VIP section of Luzhniki Stadium, in Moscow. But he is unlike anyone else who watched from the crowd that day. He has the singular distinction of having been charged with all three major crimes before the International Criminal Court (ICC): crimes against humanity, war crimes, and genocide. The Sudanese leader is allegedly responsible for countless mass atrocities in Darfur since 2003 and has been on the run ever since he was first indicted in 2008, visiting numerous states in defiance of international law. Even if it is entirely predictable that he would want to travel like a typical head of state and thumb his nose at the ICC, FIFA’s willingness to host him at its premier event is shameful. Given the Association’s history however, it is also sadly unsurprising.

The global football association has infamously battled allegations of corruption. Less known is FIFA’s affiliation with war criminals. Officials from the organization have long cavorted with notorious international criminals. The soccer world’s purported respect for human rights appears to be cosmetic and its practice of fostering relationships with war criminals continues.

FIFA has a storied history with regimes responsible for mass atrocities. In 1978, the World Cup was held in Argentina. The festivities came in the midst of the country’s “Dirty War”, a period when an estimated 30,000 opponents of the right-wing military junta were disappeared. Decades later, many senior junta members responsible for atrocities during the Dirty War are incarcerated following convictions on charges of crimes against humanity and genocide. The intimately interwoven nature of atrocity crimes and celebration of soccer in Argentina led one survivor of the Dirty War to remark that “the 1978 World Cup is one of the deep wounds of Argentine society. Every four years, a new World Cup reactivates those wounds.”

Reports have also long suggested that a senior FIFA official, Alfredo Hawit, collaborated “in unspecified forced disappearances with General Gustavo Alvarez Martinez, the point man for CIA and Argentina intelligence operatives attempting to replicate Operation Condor in Central America.” Still, FIFA has escaped responsibility.

Throughout the 1990s and 2000s, FIFA continued this trend of working with war criminals. In 1999, then Liberian President Charles Taylor was engaged in the long-standing civil war in neighbouring Sierra Leone. Civilians were raped, maimed, in some cases cannibalized, and killed in the thousands. The country’s riches – especially its diamonds – were looted and traded by Taylor for the guns that in turn killed more civilians. In 2013, Taylor was convicted and sentenced to a fifty-year sentence by the Special Court for Sierra Leone for having aided and abetted war crimes during the war. But even in 1999 it was clear to anyone who cared to know that Taylor and the rebels he sponsored were engaged in horrific abuses of civilians. In the midst of this carnage, Taylor hosted an opulent dinner with FIFA’s now disgraced boss, Sepp Blatter. Continue reading →

Posted in Argentina, Darfur, FIFA, Human Rights, Omar al-Bashir, Sierra Leone, War crimes | 3 Comments

Making a Distinction: the Rome Statute is not the ICC; it is much more than that

Posted on July 17, 2018 by Mark Kersten
A snapshot from the signing of the Rome Statute in 1998. The International Criminal Court would become a functioning reality four years 

As this piece goes to publication, dozens of events covering the International Criminal Court (ICC) and its record are taking place or are in the pipeline. It’s a veritable deluge. The reason for this onslaught is an anniversary. July 17 marks twenty years since the treaty upon which the ICC was built was voted into existence in Rome, 1998. But there is good reason to make a subtle distinction in marking the anniversary of the Rome Statute, rather than the the ICC itself. The Statute in its own right has had a curious and remarkable impact and influence that reaches far beyond the ICC’s walls. The Rome Statute made the Court but, in many ways, it is also much more than than just the ICC.

There is no doubt that some stocktaking of the ICC’s record is warranted. The Court has had a tumultuous journey since it came into existence in July 2002. There have undoubtedly been some wins. As of today, 124 states have joined the ICC.  It has secured a number of landmark convictions and managed to get a number of influential leaders in the dock, such as former Ivorian President Laurent Gbagbo. It has ensured that the voices of many victims – especially those who have chosen to participate in ICC proceedings – have been heard. It shouldn’t require an idealistic stretch of the imagination to say that it has offered a glimmer of hope for some justice in some places when there otherwise would be none. In places like Palestine and Afghanistan, where justice is regularly, repeatedly, and violently denied to victims and survivors, the ICC may represent the only option for accountability. The Court has further pushed some states, like Colombia, to place the achievement of justice and accountability at the heart of their peace processes. It has changed expectations of what justice may be possible in the wake of violence. Justice is now part of the equation. As soon as atrocities or violent conflicts erupt, observers invariably ask: how soon can the ICC become involved?

At the same time, the demand for ICC justice far outweighs its supply. Some of the Court’s most high-profile cases have collapsed or led to acquittals. Some, including Kenyan President and Deputy President Uhuru Kenyatta and William Ruto, have used the ICC’s cases against them to consolidate and expand domestic power bases. Just days after being acquitted on charges of war crimes and crimes against humanity – following a trial that took a decade, no less – Jean-Pierre Bemba was nominated as a presidential candidate in the Democratic Republic of Congo and now stands as the best challenger to President Joseph Kabila’s rule. Researchers have long observed that governments often ‘use’ the ICC in order to delegitimize their opponents and rid themselves of their adversaries. But given the Kenyatta, Ruto, and Bemba cases, one might also ask: can being targeted by the ICC sometimes help politicians?

Moreover, the ICC’s jurisdiction is severely, and frustratingly, restricted. Despite two-thirds of states joining the ICC, the vast majority of the world’s population live outside of its jurisdictional reach – and ratifications of the Statute have stalled. Major powers are, to say the least, skeptical. Russia, China, India, the United States and others have made it clear that they won’t be joining any time soon, if at all. This isn’t something that the ICC should be blamed for. But it remains worthwhile reflecting on the purchase of the ICC moving forward.

It is a challenging time for proponents of the ICC. The spread of global populism, tensions with major powers, and the persistence of austerity, often make the project of international criminal justice more of a Sisyphean task than a marathon with a clear destination. But against all of these challenges, the Rome Statute itself has had an indelible impact beyond the walls of the ICC itself – and even beyond the court’s member-states. This impact is worth praise irrespective of the what transpires in The Hague.

Again, it is worthwhile making the distinction between the Statute and the Court, similarly to how one might distinguish between a country’s constitution and the state itself. While intimately related, they’re not the same – and, indeed, the  20th anniversary of the ICC, which became a functioning entity in 2002, will be in 2022. When we de-couple the Statute from the Court, we can observe some curious but important impacts of the Rome Statute. Take two examples: India and the Democratic Republic of Congo (DRC). Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Rome Statute | Tagged | 1 Comment

Justice for the Rohingya? An Amicus Brief and the Road(s) to Accountability

Posted on June 26, 2018 by Mark Kersten

Hundreds of thousands of Rohingya have been deported from Myanmar to Bangladesh in recent months. (Photo: Reuters)

We have all heard of the devastating situation facing the Rohingya people. Many believe the abuses committed against this vulnerable population by Burmese authorities amount to genocide. Yet almost a year since the Rohingya crisis captured global attention, the situation facing the Rohingya continues to deteriorate. Justice for the atrocities committed against them appears to be a very remote possibility. There is reason, however, for at least some hope on this front.

A few weeks ago, the Office of the Prosecutor at the International Criminal Court (ICC) sought to ascertain whether the Court might have a sliver of jurisdiction over the crimes committed by Myanmar forces against the Rohingya. In particular, the Prosecutor — in an unprecedented move — asked judges in the Pre-Trial Chamber whether she might have jurisdiction over the deportation of the Rohingya from Myanmar (a non-member state of the ICC) to Bangladesh (a member-state that seems willing to engage with the Court on this question). In putting her argument forward, ICC Prosecutor Fatou Bensouda usefully explained that:

the crime of deportation is analogous to a cross-border shooting: the crime, for example murder, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime.

In this context, the Canadian Partnership of International Justice under the leadership of Fannie Lafontaine and Amanda Ghahremani filed an amicus curiae at the ICC. I’m proud to have been part of that initiative. You can read our full brief here. You can also find a list of other submissions here.

The Canadian Partnership of International Justice’s filing supports the position of the ICC Prosecutor that she can request the Pre-Trial Chamber, under Article 19(3), to ascertain whether she has jurisdiction over the deportation of Rohingya people from Myanmar into Bangladesh. It also support the view that the Office of the Prosecutor should, indeed, be granted jurisdiction to investigate this crime.

Bangladesh too has filed its observations, which many hope and believe will be favourable to an ICC investigation. For obvious geopolitical reasons, this is a sensitive issue for Dhaka. Officials in Myanmar, on the other hand, have stated that they will ignore the Court’s request to share their views on the matter, saying that they have “no reason to respond”. Ignoring the ICC is Myanmar’s way of effectively saying that they do not recognize the authority of legitimacy of the Court and therefore will not participate in its proceedings. We can expect that to turn to mud-slinging if and when the Prosecutor opens an investigation.

It is worthwhile stressing that this is not an ideal situation. Far from it. But the ICC Prosecutor should be commended for trying to make the best, or at least something, out of a bad situation where any jurisdictional reach is extremely limited. The world has stood by watching as hundreds of thousands of Rohingya have been forced to leave their homes in Rakhine State only to enter devastating conditions in camps across the border in Bangladesh. Along with their often-meagre belongings, they carry with them stories and burden of untold violence and harm. Adding insult to criminal injury, neither side will recognize them as what they are: Rohingya. They are disenfranchised and disregarded. To call it abhorrent is an understatement. Continue reading →

Posted in Bangladesh, Burma/Myanmar, Canadian Partnership of International Justice , Deportation, International Criminal Court (ICC), International Criminal Justice, Rohingya | 4 Comments

It’s Not Too Late — A Proposal for South Africa to Stay in the ICC

Posted on June 13, 2018 by Mark Kersten

A version of the following article was originally published in the Mail & Guardian and was co-authored with Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and a member of the Africa Group for Justice and Accountability

South African President Cyril Ramaphosa giving a speech in Cape Town, South Africa (Photo: AP)

South Africa’s Justice Minister has presented the International Crimes Bill to the Justice Portfolio Committee of the South African parliament. This process could be a precursor to the country repealing the Rome Statute of the International Criminal Court Act (2002) and eventually withdrawing from the International Criminal Court (ICC). This is very troubling news — for South Africa and the project of global justice itself. It is also unnecessary. South Africa can and should be a champion of the ICC and seek to improve the institution it has already invested so much into. What happens next will determine whether South Africa is a leader or a laggard on international justice. It still has an opportunity to be the latter — and avoid the former. 

This is not the first time that South Africa has moved towards withdrawal from the ICC. In October 2016, the government of Jacob Zuma announced that it would withdraw from the ICC due to a host of reasons, including its belief that, in order to be an active and effective mediator in peace processes, it could not remain a member of the Rome Statute of the ICC. 

Zuma’s efforts to withdraw South Africa from the ICC were thwarted by deft domestic legal action. According to the High Court, which found Zuma’s efforts to withdraw South Africa from the ICC to be unconstitutional and that parliamentary approval of any effort to repeal the ICC Act of 2002 and withdraw the country from the Court was necessary.

After Zuma’s resignation, many observers hoped that his successor, President Cyril Ramaphosa, would not proceed towards withdrawing South Africa from the ICC. This hope was not met by any confirmation that the ANC’s policy of seeking withdrawal from the ICC had changed. For his part, President Ramaphosa has been silent on the matter. Still, as someone widely regarded as a proponent of international law and global justice, many believed that the President would see the value and interest of remaining a state party of the Court. Ramaphosa was on the International Commission on Intervention and State Sovereignty whose conceptualization of the Responsibility to Protect posited the International Criminal Court as a cornerstone of the anti-impunity firmament. South Africa itself has a proud and impressive history of supporting efforts to achieve justice and accountability for mass atrocities, including at the ICC. In his Africa Day address last week, the President emphasised the importance of South Africa supporting international law and the United Nations. Everything should be done to avoid undermining that hard-earned reputation and record.

The government’s decision to continue pushing forward the International Crimes Bill means that the merits of South Africa’s withdrawal from the ICC will be debated in Parliament in the coming weeks and months. Hope in South Africa’s commitment to the ICC now resides amongst the country’s Parliamentarians. But President Ramaphosa and the ANC leadership could still play a role in making the best out of a bad situation. Here’s how. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa | Tagged | 3 Comments