Striking the Right Balance – Blending International and National Components in Hybrid Courts

Posted on March 14, 2018 by Mark Kersten

Erica Bussey joins JiC for this latest instalment our ongoing symposium on Hybrid Justice. Erica is a Senior Human RIghts Advisor with OHCHR in Sierra Leone.  She previously worked as a Senior Legal Advisor for Amnesty International, focusing on the Special Criminal Court for CAR, the Habre trial, ICC-Africa relations and the proposed hybrid court for South Sudan.  She has also worked as Coordinator of the Transitional Justice Unit at  the Joint Human Rights Office of MONUSCO in the DRC, as well as at the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Tribunal for Rwanda”. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.  This blogpost is a shorter version of a forthcoming article.  

Hybrid Courts

A unique challenge of hybrid courts is bringing in the “right” mix of international, domestic and regional elements and staff

From the outset of the establishment of the first wave of hybrid tribunals including the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL), there have been challenges in determining the “right” division of labour between national and international judges and staff on such tribunals that would ensure credible international participation to allay concerns regarding lack of independence and capacity, while also allowing sufficient national participation to ensure local ownership. These discussions, often framed in light of considerations of legitimacy, have led to intense negotiations between national actors and international partners such as the United Nations regarding the exact composition of these courts.

An interesting phenomenon in the establishment of two recent “hybrid” tribunals – the Special Criminal Court (SCC) in the Central African Republic (CAR) and the Kosovo Specialist Chambers (KSC) – is the extent to which they incorporate national judges and staff.  The SCC in CAR has a majority of national judges and nationals in key staff positions. At the opposite end of the spectrum, the KSC, by design, has no national judges or staff. In the middle there are uneasy compromises – such as the proposed Hybrid Court for South Sudan (HCSS), with a majority of non-South Sudanese judges and with all key positions reserved for non-South Sudanese. While some, such as Harry Hobbs, who has written extensively on the issue of composition of hybrid tribunals, have argued that the presence of national judges can enhance the legitimacy of hybrid tribunals, the question of legitimacy of such institutions can clearly cut both ways – legitimacy underpins both the decision to include a majority of national judges in the SCC for CAR and to exclude or minimize their participation in the KSC and the proposed HCSS.

Although the composition of SCC was disputed throughout the course of its establishment, the ultimate decision to include a majority of national judges was made in part due to concerns about sovereignty, particularly as the SCC is a court entirely within the domestic jurisdiction of CAR dealing with crimes as defined in the CAR Penal Code. The decision is also consistent with one of the avowed goals of the court: contributing to strengthening the capacities of the national judicial system. However, despite the numerical majority of national judges on the SCC, the Chambers which will make final decisions on appeal have a majority of international judges.

On the other hand, the KSC and the Specialist Prosecutor’s Office (SPO) that preceded it have no national judges or staff. The rationale is that their inclusion would diminish the tribunal’s legitimacy, given the particular conditions in Kosovo, with those likely to be accused entrenched in positions of power, and the failure of previous mechanisms which included national judges and staff to be able to independently prosecute former members of the Kosovo Liberation Army.

Decisions regarding the composition of these two tribunals can be tied, to some extent, to the experiences of the tribunals that preceded themsuch as the SCSL) and the (ECCC, which left a mixed legacy for other tribunals to follow. The SCSL, with a majority of international judges and staff, was criticized for a lack of legitimacy as a result of a lack of inclusion of Sierra Leonean judges and staff. The ECCC, with a majority of national judges but a convoluted system to ensure that international judges had the final say, has been criticized for political interference, corruption and a lack of judicial independence.   Continue reading →

Posted in Central African Republic (CAR), Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals | 5 Comments

State Dissent and the Reemergence of the Hybrid Court

Posted on March 14, 2018 by Mark Kersten

Shannon Maree Torrens joins JiC for the third post in our ongoing symposium on Hybrid Justice. Shannon is an international and human rights lawyer from Sydney Australia and a late-stage PhD Candidate in international criminal law at the University of Sydney. She has worked at the international criminal tribunals and courts for Rwanda, the former Yugoslavia, Sierra Leone and Cambodia. She has previously written on political interference, bias and corruption at the Khmer Rouge Tribunal (ECCC). 

Dissent.

Hybrid courts are experiencing a renaissance, one which requires greater examination and understanding by those engaged in the field of international criminal justice. With the closure of the Special Court for Sierra Leone, the stalling of the Extraordinary Chambers in the Courts of Cambodia, and the restricted mandate of the Special Tribunal for Lebanon it was thought that hybrid courts had served their purpose as a transition between the United Nations ad hoc tribunals for the former Yugoslavia and Rwanda and the permanent International Criminal Court. However, the recent re-emergence of hybrid courts as a potential model to achieve accountability in the Central African Republic, South Sudan, Sri Lanka, Kosovo and elsewhere, has called this understanding of relevance into question. The purpose of this post, and the ongoing research it is based on, is to better understand the dynamics underpinning hybrid courts and, in doing so, to contribute to reforms in the field both in terms of internal institutional and external community resilience. More specifically, it aspires to facilitate an analysis of the creation of hybrid courts and the reasons for their current challenges. It also assists in understanding why there has been a reemergence of hybrid courts.

State responses to international criminal justice can be categorised as falling into three general categories: support, acquiescence, and dissent. Support in the context of hybrid justice encompasses a range of responses from simple agreement, to active engagement with the justice process. Acquiescence is the reluctant acceptance of something without actively protesting or objecting to it. It can also mean to comply without creating difficulties or obvious impediments to the process, but in the absence of exhibiting active support. Finally, dissent, the focus of this research means to hold a varying opinion to that which is commonly held. It is the antithesis of support. To dissent means to disagree and to be in opposition to something. It means to refute or to turn away from the status quo and to take a contrary view or stance.

The dissent of a state in response to the creation of a hybrid court can be both open and obvious or diffuse and covert. Dissent can be expressed through a state being unwilling to take part in the justice process such as being unwilling to sign an agreement establishing a court or, in the case of signing, being unwilling to ratify the agreement. It could mean a state being unwilling to implement the terms of the agreement, or even working actively to undermine those terms as an act of dissent in opposition to the justice process.

There is, of course, considerable overlap and blurred boundaries between each of these responses. An assessment of the tension between these three viewpoints, modes of behaviour, and communication styles enables a better understanding of internationalised hybrid courts and, in particular, state responses to these justice mechanisms. Support, acquiescence, and dissent can be evidenced firstly on a historical continuum marking the trajectory of international criminal justice from the UN ad hoc tribunals of the early 1990s, through to the first wave of hybrid courts, then to the ICC and now in the re-emergence of hybrid courts. These three responses comprise not only former and current views on international hybrid justice, they also exist simultaneously within each hybrid court.

State dissent or opposition was expressed against the UN ad hoc Tribunals for the former Yugoslavia and Rwanda namely due to their high cost, restricted mandates, protracted trials and an inability to respond to both the needs of victims and the accused. This inspired the creation of the first wave of hybrid courts which focused on Sierra Leone, Cambodia, East Timor, Bosnia and Lebanon. This dissent is distinct from the more recent dissent which inspired the reemergence of hybrid justice in more recent years through the established or merely conceptualised courts for Kosovo, South Sudan, the Central African Republic, Ukraine, Sri Lanka, Colombia, and ISIS.  Continue reading →

Posted in Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals | 4 Comments

Recognition and Representation — The Continued Relevance of Hybrid Tribunals

Posted on March 13, 2018 by Mark Kersten

Why does the hybrid model of international criminal justice persist? Srinivas Burra joins JiC in attempt to answer this question in the second installation of our ongoing symposium on hybrid justice. Srinivas is a Assitant Professor in the Faculty of Legal Studies, South Asian University, New Delhi. 

A hybrid solution? (Photo: Royal Society of Chemistry)

The idea of international criminal justice gained an irreversible locus in the international legal imagination with the establishment of the permanent International Criminal Court (ICC). Despite this it continues to be subjected to criticism, often rooted in questioning the legitimacy of institutions than in evaluating legal details. This post attempts to underscore the strengths of hybrid model in subduing the criticism faced by international courts.

Criticism of the legitimacy of international criminal justice is primarily directed at the power relations involved in the international criminal trials, focusing on an argument that they target only particular States or regions like Africa. The centrality of power in international criminal justice was underlined in the criticism of victors’ justice after the Second World War too. The other legitimacy criticisms focus on the external nature of international criminal justice being pursued at the international courts and tribunals. These legitimacy issues are linked in a concrete a way to ‘who’ and ‘what form’ of international criminal justice is rendered. It has been the case that international criminal justice through ad hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), and now the ICC are perceived and also professed as the international community’s response, with insufficient domestic participation from the state where the violations took place. Similarly, with regard to ‘what form’ they take, these institutional responses are also seen as performance by external actors as they provide little representation to the domestic actors. These issues, despite their bearing on a few matters of law and legality, are primarily concerns of a political and cultural nature. They are also linked to certain historical and economic factors like the colonial past and their continuing relevance in the present.

Opposite to internationalized courts are the conventional domestic prosecutions.  Prosecuting  cases involving serious crimes before  the domestic courts,  to avoid facing the legitimacy challenges of international courts, may lead to two inferences: First the international criminal prosecutions cannot overcome the crisis of legitimacy; second, there is no viable alternative to domestic criminal prosecutions despite their inherent limitations in respect of certain grave crimes in certain grave situations. As Frederic Megret discusses elaborately, the idea of criminal justice under international law revolves around this binary position.

Hybrid models have the potential to address some of these concerns. But what makes an international criminal justice model hybrid remains contestable. However, a core minimum can be identified as necessary for a criminal tribunal to be classified as a hybrid.  This minimum should include the process of the applicable law, the substantive applicable law (a mix of domestic and international), and the personnel involved in the institutional setup (a mix of international and domestic staff). Equally significant is the location of the tribunal. Domestic involvement in the framing of the applicable law including domestic law and inclusion of the local people as prosecutors, judges and administrative staff makes it manifestly hybrid in comparison to other factors like language of the proceedings of the tribunal and active involvement of victims and local communities.

Contextualization in Global Justice

Megret underlines that a “crucial function of international criminal trials… should be to ‘represent’ the nature of the crimes they are judging, by designating and acknowledging the communities that are being affected by them”. A way to achieve this is to contextualize the crimes and their prosecution as a concern of the international community. Accordingly,  the cosmopolitan character of international criminal justice can be realized only through grounding it in the processes of its realization in the global justice discourses. In this regard, Nancy Fraser’s three dimensional approach to global justice is particularly relevant. The three dimensions include: distribution, recognition, and representation. The distribution dimension deals with economic maldistribution, recognition deals with status inequality, and representation focuses on political dimensions covering issues of participation and membership.  While critically evaluating the idea of justice under international law, B S Chimni convincingly argues that for a just world under law these  “three  kinds  of legitimate  claims  that  constitute  the  idea  of  global  justice… help  establish  a  global  law  of  welfare  in  the  matrix  of  international human  rights  law.”   Continue reading →

Posted in Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Criminal Justice | 3 Comments

International Criminal Justice Redux: A New Wave of Hybrid Courts

Posted on March 13, 2018 by Mark Kersten

Harry Hobbs joins JiC for this first instalment in our symposium on Hybrid Justice. Harry is a PhD Candidate at the University of New South Wales, Faculty of Law. He has written on hybrid tribunals and transitional justice for the Leiden Journal of International Law, Chicago Journal of International Law, Texas International Law Journal, UNSW Law Journal, and Eyes on the ICC.

The “Newborn” display in Pristina, Kosovo. Alleged atrocities committed by the Kosovo Liberation Army are currently under investigation at a new hybrid court based in The Hague (Photo: Marco Fieber, Creative Commons)

In 2015, legislation establishing a Special Criminal Court in the Central African Republic was promulgated. That same year, Kosovar lawmakers passed legislation establishing Specialist Chambers comprised of international judges to try members of the Kosovo Liberation Army accused of atrocities against Serbs, Roma, and Kosovo Albanians suspected of collaboration with the Serbian regime. More recently, reports indicate that South Sudan is ‘inch[ing] closer to a hybrid court’, while a committee appointed by the Sri Lankan government last year recommended the appointment of international and local judges to a Court tasked with investigating allegations of war crimes during that country’s civil war.

Not all of these courts have been set-up, but together they constitute a ‘second generation’ of hybrid tribunals. This nomenclature contrasts them with the first generation, which were established in a relatively short-period between 2000 and 2007, including hybrid tribunals for Sierra Leone, Cambodia, and Lebanon, among others.

This post will explore the reasons for the initial emergence of hybrid tribunals, as well as their return. As their re-emergence suggests, many international criminal law practitioners and scholars believe that hybrid tribunals have the potential to make a positive contribution to international criminal justice. Before the second generation of hybrid tribunals fully take flight, however, it is important to critically examine the failures of the first generation.

First generation hybrid courts

Hybrid courts emerged during the late 1990s and early 2000s. Characterised as ‘international criminal justice 3.0’, their development owed much to a peculiar convergence of three factors: 1) wavering international commitment to the sprawling, costly, and lengthy ad hoc tribunals; 2) the absence of a permanent supranational criminal court; and 3) a growing appreciation that states should have primary responsibility to investigate and prosecute international crimes combined with a keen awareness that post-conflict states may not be able to try cases in accordance with international standards.

This may have reflected somewhat of a cynical compromise—allowing international criminal justice to be done on the cheap, or ‘shoestring’—but it meant international criminal justice would incorporate capacity building as one of its aims. As Laura Dickinson explained in her foundational 2003 article, hybrid tribunals promised a catalytic transition to normalcy, based on a tripartite grounding of legitimacy, capacity building and norm penetration. In other words, hybrid courts were seen as offering greater potential of embedding societal resilience – that is, compared ad hoc tribunals– hybrid courts were seen as being more likely to heal, reconcile, strengthen, and address the root causes of prior conflict — as well embed the rule of law.

Were they successful? 

The first generation of hybrids succeeded in many areas, including successfully investigating and prosecuting ‘those most responsible’ for a range of international crimes across the globe. Whether or not local courts could or would have tried these individuals at some point in the future, the fact is that the first generation of hybrid courts did, contributing to the closing of the impunity gap.

However, they largely failed to achieve their broader (perhaps unrealisable) promise of capacity building and reconciliation. In many cases, the aspirations placed upon these courts failed to acknowledge the inherent limitations to institutions designed for criminal prosecution. Like all criminal courts, the first generation of hybrid tribunals were not necessarily well placed to foment institutional and social trust throughout and within a divided community. For many practitioners working within these courts, their first – and only – job was to investigate and prosecute.

In other cases, however, the very design of these courts was the cause of critical problems. For instance, as Christopher Sperfeldt has noted in relation to the Extraordinary Chambers in the Courts of Cambodia, while hybrids may create a promising framework, the “transfer of knowledge and the strengthening of local capacities rarely happen automatically”. More considered thinking into the structure of these courts was necessary to attempt to realise their aims.

Recognition that hybrids were not meeting their lofty goals led many to dismiss them. By 2011, Padraig McAuliffe remarked that  “international criminal justice’s golden child”, had become an “orphan”.

Second Generation Hybrid Courts

So what accounts for the resuscitation of hybrid courts? Weren’t they failures? Their re-emergence as a viable option in the international criminal justice toolkit reflects the convergence of both pragmatism and principle.  Continue reading →

Posted in Central African Republic (CAR), Guest Posts, Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), South Sudan | 5 Comments

Hybrid Justice – A Justice in Conflict Symposium

Posted on March 12, 2018 by Mark Kersten

Over the past few years, we have witnessed a renewed and revived interest in creating hybrid tribunals as a means to address situations of mass atrocity. Hybrid courts have been set up in Kosovo, the Central African Republic, and Senegal (to prosecute the crimes of Hissène Habré in Chad). Others have been proposed for Syria, Sri Lanka, South Sudan, North Korea, and elsewhere. This marks an important development and juncture in the field of international criminal justice, but one rife with questions that remain largely unexplored. It is thus an ideal time for an online symposium with contributions that seek to tackle some of the following pressing questions regarding hybrid courts:

Why has the hybrid tribunal model come back into fashion in international criminal justice — and why now?

What has been learned from the previous generation of hybrid courts and what can be done to ensure that past mistakes and shortcomings are not repeated?

Does an ideal level of hybridity exist in hybrid courts? Is there a ‘goldilocks zone’ for the mixture of national and international elements in any given hybrid court?

How can hybrid tribunals be better insulated from political interference?

What makes hybrid courts resilient — and what helps to ensure that they themselves can contribute to societal and political resilience in conflict-affected states?

Can the independence of hybrid courts be guaranteed by their design?

What advantages do hybrid courts have over other tribunal types — and how can those advantages be amplified?

Against a backdrop of the rehabilitation of the the hybrid model of international criminal justice, Kirsten Ainley,  Kirsten Ainley, Associate Professor of International Relations at the London School of Economics, and myself as Deputy Director of the Wayamo Foundation initiated the Hybrid Justice Project. Funded by the Rockefeller Foundation and the LSE Institute of Global Affairs, and organized in conjunction with the Wayamo Foundation, the Project seeks to interrogate the law and politics of hybrid courts as well as develop guidelines on the creation and establishment of hybrid tribunals.

The Hybrid Justice Project has brought together dozens of scholars and practitioners with rich insights into the pitfalls and promises of hybrid courts. Over the next week, a number of these participants will share some of their views and ongoing work on hybrid courts.

Posts to date:

International Criminal Justice Redux: A New Wave of Hybrid Courts, by Harry Hobbs

Recognition and Representation — The Continued Relevance of Hybrid Tribunals, by Srinivas Burra

State Dissent and the Reemergence of the Hybrid Court, by Shannon Maree Torrens

Striking the Right Balance – Blending International and National Components in Hybrid Courts, by Erica Bussey

So We Can Know What Happened? The Curious Impact of Hybrid Courts on Education, by Caitlin McCaffrie

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

The Trial of Hisséne Habré and the Norms of African Sovereign Immunity, by Kerstin Carlson

Hybrid Justice for Victims of Mass Crimes – Making the System Meaningful, by Philipp Ambach

As always, JiC’s goal in hosting online symposiums is to create an open, frank, and honest dialogue within a forum that respects the opinions of all participants. And, of course, we always welcome your thoughts and reflections!

Posted in Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Criminal Justice, Symposium | 24 Comments

Negotiated Engagement — The African Union, the International Criminal Court, and Head of State Immunity

Posted on March 5, 2018 by Mark Kersten

(Photo: Embassy of Equatorial Guinea)

At the thirtieth summit of the African Union (AU) last month, African states took a bold decision. They agreed to ask the United Nations General Assembly to seek an advisory opinion from the International Court of Justice (ICJ) on the issue of head of state immunity. For years now, this has been an ongoing point of contention for many states in their relationship with the International Criminal Court (ICC). So what’s behind the AU’s decision and what does it tell us about the ICC and its relationship with African states?

Some observers responded to the AU decision to seek an advisory opinion from the ICJ with skepticism. Due to the ongoing animosity of some African states to the ICC, fuelled by claims of African leaders that the Court is “race hunting” a “toy of declining imperial powers”, or the “International Caucasian Court”, observers were quick to frame the issue as another round of “Africa versus the ICC”. This oppositional binary, however, occludes more that it elucidates. Rather than an attempt to defy the ICC or undermine its credibility, the AU’s decision to seek an advisory opinion from the ICJ should be understood as a product of negotiated engagement with the Court.

Like any supranational institution, the African Union has many moving parts. The AU contains states that are supportive of the Court, states that are generally indifferent to the institution, and states vehemently opposed to it. Their positions are not equally covered. When the AU passed a resolution last summer adopting an “ICC Withdrawal Strategy”, numerous media outlets declared that African states had decided to leave the ICC en masse. On the contrary, the “ICC Withdrawal Strategy”, which in reads more like a platform for engagement and reforms of the Court, explicitly stated that mass withdrawal was not recognized under international law. Moreover, many states entered reservations into the resolution — and many more would have had the session adopting the Strategy not been cut short. Similarly, while the announcements that Burundi, South Africa, and The Gambia would withdraw from the ICC dominated headlines, the domestic legal defeat of South Africa’s pathway to withdrawal and the reversal of The Gambia’s position on withdrawal from the ICC received relatively scarce attention. The result is a cynical narrative that tends to focus on the negative elements of the Africa-ICC relationship, pitting ‘bad’ African leaders against a ‘good’ international organization.

Within the AU, however, pro-ICC states have to negotiate with those colleagues whose view of the Court is (much) less favourable. The same AU resolution which requests an ICJ advisory opinion also “condemns” the October 2017 decision of the ICC to open an investigation into Burundi as “prejudicial to the peace process under the auspices of the East African Community… [and] a move aimed at destabilising” the country.” Given previous statements from Uganda and Tanzania opposing the ICC’s investigation into Burundi as well as the fact that Burundi presided over the AU’s Open-Ended Committee on the ICC when the resolution was drafted, it should be unsurprising that this statement was included. Importantly, however, the statement did not lead to any requests for action. Indeed, it was likely the cost of approving an act of good-faith engagement with the ICC: the request for an advisory opinion from the ICJ.

Focusing on the negative elements of the Africa-ICC relationship fosters a conception of the relationship as inherently and invariably competitive. In this context, the AU’s move to seek an ICJ advisory opinion was seen as yet another attempt by African states to shield their leaders from accountability. This is incorrect. Or at least it is not entirely correct. To be clear, there are governments that want nothing less than impunity for their heads of state and political officials — and the ICC has gotten under their skin. But there are also those who want to ensure that the Court is premised on solid legal grounding and that want the institution improved. The AU decision, as with all AU decisions on the ICC, is the result of a negotiated engagement on behalf of African states with the Court. Continue reading →

Posted in Africa, African Union (AU), ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir | 6 Comments

A Conviction in Question – Lessons from the the International Criminal Court’s Inaugural Trial

Posted on January 17, 2018 by Mark Kersten

Jim Freedman joins JiC for this post examining the core issues covered in his new book on the trial of Thomas Dyilo Lubanga. Jim is a Professor Emeritus and a faculty member at the Centre for Transitional Justice and Post-Conflict Reconstruction at Western University. His book, A Conviction in Question: The First Trial at the International Criminal Court was published by the University of Toronto Press.

A Conviction in Question: The First Trial at the International Criminal Court

As they reflect on the International Criminal Court’s (ICC) on-going challenges, it may be some solace to ardent supporters of the ICC to recall the plague of disquieting matters in the Court’s first trial and how the institution has diligently addressed them in the ensuing five years. This first case involved the notorious warlord Thomas Dyilo Lubanga from northeastern Democratic Republic Congo who committed multiple war crimes and who, in March 2012, was convicted of the single crime of conscripting and using children less than 15 years as soldiers.

Certainly the first trial was something of a circus and the book — A Conviction in Question, the First Trial at the International Criminal Court — chronicles the legal histrionics, the cast of characters, the interminable delays and the awkward, ultimately vain, efforts to hold Lubanga responsible for all that he had done. The adversarial atmosphere in the courtroom was intensified by the ever-present media and the fact that the world was watching. The trial had a perverse quality. The length of time the trial took to arrive at a conclusion, six years in total, was one thing. The judge’s decision to stop the proceedings on the grounds that the prosecution had violated Lubanga’s right to a fair trial and send him home, not once but twice, was equally curious.

The discord in the Chamber was worthy of a lurid television series. The main actors in the Chamber turned even the most innocent of evidence into something hotly contested, generating a cacophony of opposing voices that drowned out much of what the Court needed to know to make an informed decision. The Chamber often saw fit to allow factual and moral matters to be trumped by other matters. Some of this could be discounted as the growing pains of an international court making its way through a first trial and, in truth, some of these unsavoury features were more colourful than anything. But the persistent discord in the Chamber did have some serious consequences.

A number of principled matters were shoved aside or dismissed altogether because they were thought to be making an already long and complicated case even more long and complicated. The status of the victims was one of these. During the trial, the Chamber preferred to keep the victims on the margins of proceedings since none of the actors in the trial wanted to compromise their own stakes in the trial by admitting yet another voice that might arouse an unpredictable element into the proceedings. This in itself might not have been so serious a matter except that, when the trial was over, the Court’s general dismissal of the importance of victims in the Chamber gave rise to a decision which limited the scope of reparations. This was a serious flaw.

Another was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

Yet another shortcoming was the practice of gathering evidence, especially getting it by using individuals — or intermediaries as they were called — to identify key witnesses and prepare key witnesses for their appearance at the court. The Defense’s repeated claim that the Prosecution had conspired with intermediaries to introduce false information ended up consuming an inordinate amount of the trial’s time and consideration. The discordant atmosphere inflated this issue beyond all proportion.  Continue reading →

Posted in Child Soldiers, Democratic Republic of Congo, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Thomas Dyilo Lubanga | 1 Comment

The ICC and Afghanistan: Challenges for a Court, Opportunities for an International Organization

Posted on December 8, 2017 by Mark Kersten

(Photo: BBC)

The decision by the chief prosecutor of the International Criminal Court to seek an investigation into alleged war crimes perpetrated by U.S. military forces and the CIA in Afghanistan has been widely described by some observers and legal scholars as a brave step towards global justice. But as diplomats, advocates, and interested observers gather at the Assembly of States Parties of the International Criminal Court in New York to assess the standing and future of the ICC, the question many are pondering is: can the Court survive its latest challenge?

The possible reasons behind the prosecutor’s decision to seek an investigation on the Afghanistan war have been detailed elsewhere. But the reality is that there is every chance that the Court’s investigation into Afghanistan will never result in a successful ICC prosecution of a U.S. official. While the U.S. may still cooperate with the ICC on cases that advance its interests, self-incriminating cooperation from the United States government regarding its own decisions and actions in Afghanistan won’t happen.

Without any cooperation from states to build cases and enforce arrest warrants, the ICC’s reputation as a criminal court would surely suffer. And Afghanistan is not the only tricky situation the ICC faces. The Court’s ongoing investigation into the 2008 war between Georgia and Russia as well as its most recent intervention in Burundi also may get hung up for lack of cooperation from either Moscow or Bujumbura.

There is a real risk that the ICC may soon face an empty docket. At the current pace, its caseload will wrap up within the next two years. Surprise surrenders of alleged perpetrators could change that, and are not uncommon for the Court. The sparse workload, in combination with the ICC’s decision to directly challenge major powers like the U.S., may require the institution to think carefully about how it communicates its work moving forward.

The ICC is a criminal court — and an international organization

The ICC is a unique institution. It is a court of law, charged with investigating and prosecuting individuals for war crimes, crimes against humanity and genocide. It’s also an international organization, which makes it fundamentally political. As Michael Barnett has shown in the case of the United Nations — and as my research on the ICC illustrates — international organizations operate according to institutional interests and an unyielding drive for self-preservation.

So the decision to investigate alleged crimes by U.S. officials in Afghanistan has led to some confusion — and many questions. The ICC may emerge as the lone tribunal in history to directly confront alleged war crimes committed by U.S. forces. But, again, it is clear the United States will not cooperate in the investigation. So, if cooperation is the lifeblood of an international institution like the ICC, how can the Court survive an onslaught of major power hostility and widespread non-cooperation?

Speaking law to power

The ICC became operational in 2002, designed to be the first permanent and independent international criminal tribunal mandated to prosecute war crimes, crimes against humanity, and genocide. Small and middle-power states states were particularly attracted to it, including African states which viewed it as an institution that could transcend the hierarchy of international politics and challenge what they viewed as the excesses of global superpowers.  Continue reading →

Posted in Afghanistan, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, United States | 5 Comments

A Step Back to Take a Step Forward — The Future of Justice in Conflict

Posted on November 28, 2017 by Mark Kersten

A scene of destruction in Donbass, Ukraine, which faces and ongoing conflict under preliminary examination by the International Criminal Court (Photo: AF)

Over the last year or so, there have been suggestions that we are witnessing a slow-down in the investigation and prosecution of international crimes perpetrated in the context of ongoing violent political conflicts. Is this true? If it is, why might this be the case? And is there anything that the International Criminal Court can do to better address crimes perpetrated in active wars and have more positive impacts on conflict situations?

In a draft chapter for a forthcoming book edited by Matt Killingsworth entitled Who do the Laws of War Protect?: Civility, Barbarism and the Evolution of International Humanitarian Law, I explore these questions. I have uploaded a copy of the draft here and also posted the introduction to the chapter below in case it of interest to readers of JiC.

The piece remains very much a draft, so all comments and thoughts are welcome and greatly appreciated!

The International Criminal Court (ICC) is the first international tribunal that regularly intervenes in ongoing and active conflicts. For many of its most fervent proponents, the ICC signalled that there could be “no peace without justice”. For the ICC’s champions, no longer should peace be negotiated without consideration of the need to hold perpetrators of mass atrocities to account. In the words of former ICC Prosecutor Luis Moreno-Ocampo, “negotiators have to learn how to adjust to the reality. The court is a reality.” (See Allen 2009). The ‘civility’ of international criminal justice can not only curb the violent excesses excesses of war; for its advocates, the liberal cosmopolitan norms that underpin international criminal justice can now be brought to bare to address the ‘barbarity’ of ongoing war and atrocity.

The ICC’s creation indeed represents something of a game-changer in the relationship between conflict resolution and peacemaking, on the one hand, and the pursuit of accountability for mass atrocities, on the other. “The ICC is the archetypal ex ante tribunal”, write Mahnoush H. Arsanjani and W. Michael Reisman (2005, 385). It is a Court “established before an international security problem has been resolved or even manifested itself… established in the midst of the conflict in which the alleged crimes occurred.” (Ibid.). No longer must wars end for international criminal justice to be pursued. On the contrary, in its first decade-and-a-half of operations, the ICC has readily intervened in ongoing and active conflicts — and it is widely expected, and called upon, to do so. The majority of situations into which the institution has opened official investigations have been active conflicts. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace and effecting in-conflict justice, nor to its efficacy in achieving its brand of retributive justice.

Since its first intervention into the conflict between the government of Uganda and the Lord’s Resistance Army (LRA), the ICC has been regularly criticized for undermining peace. This is true even in cases where evidence of such contentions is weak or simply speculative as well as in situations where the Court has not been able intervene, like Syria (see Larcom, Sarr, and Willems 2013). Former U.S. Secretary of State Hillary Clinton, for example, stated in 2012 that pursuing war crimes charges against Syrian President Bashar al-Assad would “complicate a resolution of a difficult, complex situation because it limits options to persuade leaders perhaps to step down from power,” whilst then-Swedish Foreign Minister Carl Bildt said doing so “would put Assad in a head lock and make him less flexible, because we’d be telling him, ‘your only option is to fight to the death.’” (See Spencer 2012; Dworkin 2013).

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Posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Al-Tuhamy Mohamed Khaled, Commission for International Justice and Accountability (CIJA), Conflict Resolution, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Investigations, Justice in Conflict, Libya, Libya and the ICC, Libyan National Army, Mahmoud al-Werfalli, Mali, Office of the Prosecutor, Syria | 3 Comments

Mixing Immigration and Justice… Without Sacrificing One for the Other

Posted on November 19, 2017 by Mark Kersten

Below is an article I wrote, a version of which originally appeared in the Globe and Mail, on the increasingly blurred lines between immigration policy and international criminal justice. While the focus of the piece is on the Canadian experience and what the Canadian government can do better, this is an issue that many — if not all — states which open their doors to refugees and migrants face. The piece delves into the challenge of being open to refugees without sacrificing commitment to justice and accountability for international crimes. As always, your thoughts are welcome!

Za’atri camp in Jordan, which houses thousands of refugees fleeing violence and conflict in Syria (Photo: U.S. State Department)

Two crises define the world today: the perpetration of mass atrocities against civilians and the movement of peoples, often in direct response to those very same atrocities. This poses a distinct challenge for countries like Canada that welcome refugees, some of whom may carry with them criminal pasts.

It is not uncommon for perpetrators of atrocities to cloak themselves among refugees. Due to effective screening procedures, the number of war criminals amongst refugees is tiny. But they do sometimes slip through. When they do, they present an opportunity to achieve justice — and shouldn’t be used to cast a blanket pall of criminality over migrants. But how should governments approach this dilemma?

Earlier this month, and for the first time since the brutal civil war in Syria erupted six years ago, a Syrian soldier was convicted of war crimes. The trial occurred in Sweden. With no prospects of justice from an international tribunal and the increasing likelihood that Syrian President Bashar al-Assad will remain in power for the foreseeable future, the best chance to achieve accountability for the regime’s litany of atrocities lies in the courtrooms of distant states like Sweden, Germany, and Spain. These prosecutions could not happen if these very same countries didn’t open their borders to the millions of Syrian refugees fleeing crime and terror.

According to the Canadian Crimes Against Humanity and War Crimes Program, whose staff works tirelessly with limited resources to achieve remedies for international crimes, 200 perpetrators may currently reside in Canada. But unlike its European counter-parts, the Canadian government’s preference is to deport alleged war criminals for the simple reason that it is the cheapest option at their disposal.

This approach first gained notoriety under the Stephen Harper government when it published a ‘Most-Wanted’-style list of alleged war criminals to be “rounded up and kicked out of Canada”. The United Nations Committee Against Torture responded by stating that if alleged perpetrators “are apprehended and deported, they may escape justice and remain unpunished.” But the current government continues to do nothing to ensure that individuals deported from Canada will be prosecuted and receive a fair trial in their original countries.

Earlier this year, the Canadian government sought to strip Jorge Vinicio Sosa Orantes of his citizenship for his alleged responsibility for a 1982 massacre by the Guatemala military in Las Dos Erres. A decade after the atrocity, he was made a Canadian citizen. But if the government has its way, Sosa Orantes, who is now toiling in a US prison, will never step foot in Canada again. That may be comforting to many Canadians. But it does little-to-nothing to ensure that justice for the types of crimes he is allegedly responsible for is meted. Continue reading →

Posted in Canada, Guatemala, Immigration, International Criminal Justice, International Justice Ambassador, International Law, Refugees, Syria | 3 Comments