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

A Steep Slope Awaits the Wheels of Justice in Central African Republic

Posted on November 14, 2017 by Mark Kersten

Elise Keppler joins JiC for this guest-post on the ongoing efforts to achieve justice and accountability for atrocity crimes in the Central African Republic and the current state of the proposed Special Criminal Court. Elise is Associate International Justice Director at Human Rights Watch. 

Destroyed homes in the Paris-Congo neighbourhood of Alindao, Central African Republic. (Photo: Lewis Mudge)

It is too seldom that justice for grave crimes is pursued locally in a country that desperately needs it. But in the Central African Republic, there is cause for cautious optimism over the Special Criminal Court, the country’s first meaningful effort within its domestic justice system at criminal accountability for war crimes and similar atrocities. After nearly five years of the country’s most recent bloody conflict, rife with atrocities, the new court offers a glimmer of hope.

During a week in Bangui, the country’s capital, in early October, victims and lawyers who work on their behalf described the vital need for the recently created Special Criminal Court, a novel hybrid accountability mechanism consisting of both international and Central African judges, prosecutors, and registry staff. It forms part of the domestic national judicial system, but will operate with extensive international support.

“We hope that judgment of these matters in the Special Criminal Court will address impunity,” said one lawyer, who has helped form a collective of attorneys to represent victims of abuse. “The crimes were too much… Pregnant women had their stomachs cut open. We hope this has an educational character. People will learn that actions have consequences.” The leader of an association of war crimes victims, made a similar point. “For many decades, the executioners have never been judged,” he said. “We have no confidence in the national justice system. And the victims continue to multiply.”

But the most striking comment came from a man who works with victims of the recent conflict who was looking toward the future: “We want justice so the youth of today do not become the executioners of tomorrow.”

The Central African Republic’s national judiciary has mostly failed to address the extensive
killings, torture, sexual violence, looting and destruction of villages that have spanned conflicts in the country over the past 15 years.

The International Criminal Court (ICC) has two active investigations in the country, including a conviction for atrocities committed during an earlier conflict, in 2002-2003. But virtually no one has been held to account in national courts despite extensive documentation of war crimes and crimes against humanity by Human Rights Watch and many others. The Special Criminal Court, which will complement the ICC investigations, has the potential to fundamentally shift the narrative of total impunity that defines the country.

Setting up a new war crimes court is a complicated task in the best of circumstances. In the
Central African Republic, the country’s infrastructure, technological capacity, and human resources are woefully ill-equipped to try complex cases, especially with fighting continuing and large parts of the country remaining outside the government’s control.

Security arrangements for local judges appointed to the court remain inadequate, their internet has failed to function, and they work from a makeshift office in an apartment building that doubles as the residence for international court staff. But these setbacks have not diminished the judges’ desire to build a functioning court that delivers justice for those affected by horrible crimes. Continue reading →

Posted in Central African Republic (CAR), Guest Posts, Hybrid Courts, Hybrid Tribunals, Special Criminal Court | 2 Comments

Sexual and Gender-Based Violence: The Case for Expertise and Professionalism in Investigations

Posted on October 25, 2017 by Mark Kersten

Andras Vamos-Goldman joins JiC for this post on the challenges of investigating sexual and gender-based violence crimes. Andras is the Executive Director of Justice Rapid Response, a public-private partnership that provides criminal justice and human rights professionals from a global, stand-by roster to the international community to improve the investigation of mass atrocity crimes.

Yazidi women in Iraq, 2014. Many Yazidis were forced to flee after attacks by ISIS forces. (Photo: Domenico/flickr)

Crimes of sexual and gender-based violence (SGBV) committed in the context of the world’s many conflict situations are no longer beyond the reach of accountability. Jurisprudence, especially from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), as well as the Rome Statute and the work of the International Criminal Court (ICC) have all contributed to breaking down the false myth that “rape in war is regrettable, but unavoidable”. Pressure from survivors, political attention from states, and personal commitments by high-profile individuals have taken the question of addressing SGBV from the halls of academia to the world’s attention. But the single most important factor in taking SGBV investigations from the fringes to the center of investigating mass atrocities in recent years is the ready availability of experienced criminal justice professionals with a background in dealing with the many aspects SGBV. This mean having professionals from every part of the world, with training to work under international criminal and human rights law frameworks and conditions.

One catalyst in this rapid expansion of international capacity to address accountability for SGBV violence in conflict is the UN Women – Justice Rapid Response (JRR) partnership (full disclosure: the author is the director of the latter). This partnership manages and can rapidly deploy from a stand-by roster of currently 217 SGBV justice experts and has already done so on 67 occasions since its inception. While not the only roster that can support work in this critical area, it is the only one where expertise dedicated to SGBV investigations represents every region and legal system in the world—roster members hail from 73 countries. It is also the only roster in which every member, already recruited for their expertise, has been further upskilled to be able to work productively under international legal frameworks and conditions.

This week, JRR and UN Women are launching a short documentary about the work of two such professionals that the partnership deployed to support accountability in the context of the conflicts in Syria and Iraq. Being first shown in the context of the UN Security Council open debate on women, peace and security, the documentary is meant to highlight the benefits and impact—especially to survivors—of investigations into patterns of forced marriage, rape, trafficking and sexual slavery being done by professionals.

The importance of expertise and experience, specialized international training and cultural, legal and linguistic affinity for the places and people where the alleged crimes occurred is even greater today than ever. This is because we appear to be in a paradigmatic shift, where documentation, fact-finding, and even investigations are preceding—not following—the establishment of accountability mechanisms.

This shift seems, in part, to be driven by too few opportunities to hold perpetrators of mass atrocity crimes to account. But it is also creating a serious gap because it is the accountability mechanisms that traditionally establish the rules of procedure and evidence that set the parameters for documenters and investigators on gathering information. Without such rules of evidence (and in the absence of accepted international standards), it mainly comes down to the judgement of those doing the documenting, fact-finding and investigating that will ensure that vital lines are not crossed. Lines such as not taking or accepting information that may have been attained by torture or the fabrication of evidence; and not paying sufficient regard to the danger that its collection poses to victims, witnesses, survivors and those collecting the information – the “do no harm” principle.

There is one other reason why having experienced professionals readily available to the international community is more vital than ever. These experts are also in a position to provide mentoring support to enhance the capacity of other actors. Enhancing capacities has become crucial in both the context of national proceedings relating to international crimes and crisis situations where organizations such as humanitarian responders are the first to come into contact with survivors of conflict related crimes.  Continue reading →

Posted in Investigations, Sexual and Gender Based Violence | Tagged , | 2 Comments

New Academic Article! Targeting Justice: Targets, Non-Targets and the Prospects for Peace with Justice

Posted on September 19, 2017 by Mark Kersten

Dear readers,

I am very happy to announce that I have had a new article published in the Canadian Foreign Policy Journal, entitled “Targeting Justice: Targets, Non-Targets and the Prospects for Peace with Justice“. The piece explores how the decisions at the International Criminal Court (ICC) to target some perpetrators for prosecution and not others determine the ICC’s impact on conflict resolution and peace-making processes. Specifically, I seek to contradict the widespread view that it is the targets of ICC arrest warrants that are most likely to refuse to negotiate peace. Through the cases of Libya and Northern Uganda, I instead argue that it is the Court’s non-targets which tend to ‘dig their heals in’ and commit to political violence in order to win their war.

I have uploaded a copy of the article online, which you can access here. The abstract follows below. I hope it is of interest to some of you and, as always, I’d love to hear your thoughts and read your comments!

Ongoing conflicts are increasingly accompanied by calls for judicial interventions by the International Criminal Court (ICC). This has led to an impassioned debate regarding the effects that ICC interventions have on conflict dynamics and peace processes. A primary argument within this debate is that the targets of ICC arrest warrants will reject participating peace negotiations and instead commit themselves to political violence. This paper argues that it just as likely that actors not targeted by the Court may reject negotiating with their adversaries and thus commit to violence. The paper demonstrates this dynamic by examining two ICC interventions: northern Uganda and Libya. In both cases, the ICC’s intervention legitimized its non-targets – the government in Uganda and the coalition of intervening forces and opposition rebels in Libya – while bolstering their commitment to a military solution and their rejection of a political compromise to their respective conflicts. Ultimately, it is concluded, if both international justice and conflict resolution are to be pursued within the same contexts, it is critical to dispel popular assumptions in order to better understand the full spectrum of the ICC effects on conflict and peace dynamics.

The whole article can be found here.

Posted in Academic Articles / Books, Hybrid Courts, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, northern Uganda, Peace Negotiations, Peace Processes | Leave a comment

Peace, Conflict, and Justice – The Course (And Syllabus)

Posted on September 12, 2017 by Mark Kersten

New course syllabus for Peace, Conflict, and Justice

It’s a wonderful time of the year. In many places around the world, it’s back to school. This year, that holds true for me too.

Coinciding with my new responsibilities as the Deputy Director the Wayamo Foundation, over the next few months, I will be teaching a course entitled “Peace, Conflict, and Justice” at the Munk School of Global Affairs. After a two-year hiatus from teaching, I am thrilled to be back in the teaching saddle. The course, as its title suggests, covers the same topic areas as the blog. It seeks to provide students with a fundamental understanding of the causes and drivers violent political conflict, the necessary ingredients for conflict resolution and successful peace-making, and the gamut of options that conflict and post-conflict polities have in addressing large-scale violence and mass atrocities. The course further delves into the relationship between African states and the ICC, the geopolitics of international justice, the “peace versus justice” debate, and the coverage of mass atrocities and political violence in the media.

This marks the first time that I have been responsible for designing my own course and therefore my own syllabus. For those academics, teachers, students, and interested observers, who follow Justice in Conflict, I thought it would be useful to share the course syllabus with you in case it may be of use and in case you have any suggestions for improvement (I have no doubt there are many!). The syllabus is available online here.

And to all those starting school again, enjoy!

Posted in Teaching Tools | Tagged | 1 Comment

“It is a good thing that we don’t know.” — An Interview with Bekim Blakaj on the Travails of Transitional Justice in Kosovo

Posted on September 11, 2017 by Mark Kersten

Aidan Hehir joins JiC once again with this interview of Bekim Blakaj on the trials and tribulations facing Transitional Justice in Kosovo. Aidan is a Reader in International Relations at the University of Westminster. He has previously written for JiC on the new Kosovo hybrid tribunal.

(Photo: ScrapedTV)

While academics, NGOs and governments have repeatedly extolled the virtues of reconciliation and transitional justice, actually implementing policies and procedures has often proved very challenging; this has been particularly the case in the former Yugoslavia. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established to prosecute those responsible for the horrific carnage and violence which engulfed Yugoslavia in the early 1990s. In tandem with this juridical approach to dealing with the internecine violence which scared the region, various transitional justice initiatives aimed at fostering inter-community reconciliation were also launched, the most notable being the regional commission for the establishment of facts about war crimes and other serious violations of human rights, known as RECOM.

Yet, the reluctance of Yugoslavia’s various successor state governments to engage with, and support, RECOM’s efforts, coupled with societal apathy – and at times open hostility – towards the very idea of reconciliation and accountability, have contrived to undermine the organization’s work. In spite of the various obstacles they face and their limited achievements to date, transitional justice organisations aimed at promoting reconciliation continue their work throughout the former Yugoslavia; once such organisation linked to RECOM is the Humanitarian Law Centre Kosovo.

Kosovo Specialist Chambers 

Since its establishment in 1997, The Humanitarian Law Centre Kosovo has collected an impressive amount of detailed data on people killed, displaced and still missing in Kosovo. The organization is in the process of making this data available online, and has to date published a number of  studies reflecting on past violence, including a “Memory Book”. While the majority of the victims of violence in Kosovo were Albanians targeted by Serbian forces, the organisation has also sought to highlight the plight of the minority communities who were targeted in particular after the conclusion of NATO’s intervention which routed Serbian forces in June 1999. In keeping with the broader trend relating to RECOM’s work, his aspect of The Humanitarian Law Centre Kosovo’s work has received little governmental support and frequently encountered opposition from within Kosovo’s majority Albanian population.

Efforts to deal with past violence in Kosovo have received renewed importance in recent years with the establishment of the “Kosovo Specialist Chambers”. Based in The Hague, this hybrid tribunal is mandated to prosecute crimes allegedly committed by the Kosovo Liberation Army (KLA) between 1998 and 2000. While the new court has yet to issue any indictments, it has already stoked controversy and hostility amongst the Albanian population; the KLA are widely perceived as heroes in Kosovo, and the official narrative promoted since NATO’s intervention has, unsurprisingly, presented the Serbs as the aggressors. By challenging this narrative, the Specialist Chambers run the risk of generating both societal discontent and instability in Kosovo, a country already reeling from persistent misrule, a contested international status, and deep economic malaise.

Given the imminence of the Specialist Chambers’ proceedings, the work of The Humanitarian Law Centre Kosovo has arguably never been so important. I met with Bekim Blakaj, Executive Director, in Pristina on the 18th July to discuss the organisation’s work and the likely impact of the Specialist Chambers.

How does your organisation work and what are your key objectives?

We are not funded by any government as we want to avoid any potential for governments to influence our agenda and our work. This also helps our credibility with the non-Albanian communities in Kosovo. In the past, other organisations that engaged in this work, here and elsewhere in the region, were supported by governments and they tended to become biased.

Essentially, we want Albanians to have empathy with Serb victims, and we have previously achieved this. There have been eleven forums on transitional justice held across the former Yugoslavia, including here in Kosovo. Each one had public hearings; half-day sessions which involved the victims talking in front of over 400 people. Of course, it was often hard to organise; people were fearful of the reactions they would get. Naturally, Serbs were worried about speaking in Pristina. But nonetheless, in October 2008, it went ahead and it was amazing. People supported the victims and many cried. When they are face to face, human beings have empathy with victims whoever they are.

In this sense, any attempts to establish “facts” about the past are likely to cause controversy; have there been any negative reactions to your work?

We did have some bad experiences. Associations of the families of the missing were set up after the war. Unfortunately, some of these became political and many were not staffed by people with relatives who were actually missing. They were not interested in our project and were more one-sided. Also, in general these initiatives are difficult to undertake as participants and organisers are often seen as “traitors” by both sides.  Continue reading →

Posted in Guest Posts, ICTY, Interview, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Serbia, Transitional Justice | Tagged | 4 Comments

Call for Papers! Hybrid Justice – Building Resilience After Conflict

Posted on September 8, 2017 by Mark Kersten

The following is a call for papers for a special issue on hybrid courts, edited by Kirsten Ainley and myself, as part of our ongoing project examining the use, role, and impact of hybrid tribunals.

One of the most dramatic shifts in international politics in the last thirty years has been the increase in the use of international or internationalised criminal justice mechanisms in post-conflict states. Such mechanisms are intended not just to provide accountability, but also to underwrite stable and resilient peace. Early mechanisms included criminal tribunals established under the auspices of the UN Security Council for the former Yugoslavia and Rwanda, and ‘hybrid’ criminal mechanisms for East Timor, Sierra Leone, Iraq, Cambodia, Bosnia and Lebanon. These hybrids featured varying combinations of international and domestic staff, operative law, structure, financing and rules of procedure. The establishment of the International Criminal Court (ICC) was expected to make hybrids redundant, but we have seen a recent resurgence of hybrids – in Senegal, Kosovo, Central African Republic and South Sudan; and proposed for Colombia, DRC, Syria, Sri Lanka, Ukraine and ISIS. Yet, because hybrids were thought to be a relic of pre-ICC justice, there has been little academic research on their impact. In addition, there is demand from practitioners currently in the process of establishing hybrids for rigorous comparative work on past tribunals to contribute to our understanding of how to design such institutions to be resilient in themselves and to contribute to resilient societies.

The Call is for articles to be published as a special issue of a leading international law journal, as part of the Hybrid Justice project. Articles will compare and evaluate the internal resilience of hybrids, and their impact on external resilience. Internal resilience is understood as the extent to which the design of hybrid mechanisms enables them to function robustly and with legitimacy in the face of external pressures from donors, host states, actors which oppose the mechanism and other interested parties. External resilience is the extent to which hybrid mechanisms enable post-conflict states and societies to heal, reconcile, strengthen and address the root causes of prior conflict. Indicators of, and pathways to, internal and external resilience are contested in the current literature, and articles in this collection are likely to take different positions on what counts as resilience and the extent to which hybrids exhibit or contribute to it. Abstracts are welcome for articles focused on any of the hybrid mechanisms, but all papers must be comparative in some way rather than focused on a single mechanism.

Abstracts are also welcome for articles considering broader issues such as the reasons for the recent recurrence of hybrids; the relationship of hybrids to other transitional justice mechanisms, including the ICC; and the robustness of the evidence available on the impact of hybrids as a contribution to the wider ‘transitional justice impact’ literature. Authors are likely to come from a variety of disciplinary backgrounds.

To ensure a consistent and rigorous collection, all authors will be invited to receive feedback on their work at a workshop in London on 4th and 5th January 2018. Limited funding is available for travel and accommodation.

Timing:

  • By 30th Sept 2017: abstracts to be submitted to k.a.ainley@lse.ac.uk and mark.s.kersten@gmail.com.
  • By 22nd Dec 2017: full draft papers to be circulated
  • 4-5th Jan 2018: workshop to be held in London
  • End Feb 2018: final copy to be submitted, to be sent to peer review
  • July 2018: publication of Special Issue

Please also feel free to circulate this call among your networks, and let us know on k.a.ainley@lse.ac.ukand mark.s.kersten@gmail.com if you have any questions.

Posted in Academic Articles / Books, Hybrid Courts, Hybrid Tribunals | Leave a comment

Will the International Criminal Court’s latest target in Libya be brought to justice?

Posted on August 31, 2017 by Mark Kersten

Mahmoud al-Werfalli (right) with LNA leader General Khalifa Haftar (Photo: The Libya Observer)

A version of this article was originally published at the Washington Post’s Monkey Cage website.

The International Criminal Court (ICC) has issued an arrest warrant for Libyan militant Mahmoud Mustafa Busayf al-Werfalli. The court claims that Werfalli — who operates under the Libyan National Army (LNA) — committed the war crime of murder over a series of brutal executions. With so many deserving perpetrators around the world, why go after Werfalli and what might this mean for Libya and the ICC itself?

The ICC has sought to address atrocities in Libya since the U.N. Security Council referred the country to the court in 2011. That includes its ongoing and tumultuous struggle to prosecute Colonel Muammar Gaddafi’s son, Saif al-Islam. But in those six years not one of the ICC’s five targets in Libya has ever faced judges in The Hague.

Under current chief prosecutor Fatou Bensouda, however, the ICC is increasingly opportunistic in its approach. Rather than targeting the most responsible perpetrators of international crimes, the court increasingly issues arrest warrants under circumstances the prosecutor believes there to be a high probability that suspects will be surrendered.

In Mali, Bensouda indicted Ahmad al-Faqi al-Mahdi for the war crime of destroying UNESCO-protected heritage sites in Timbuktu. When the warrant was issued, Mahdi was already in a Niger prison. Unusually for ICC targets, it took just days from the court issuing an arrest warrant to al-Mahdi standing before judges in The Hague. This seems to be the logic behind the targeting of Werfalli.

The LNA’s potential response

The self-styled LNA, for which Werfalli fought, is “a coalition of army units, ex-revolutionary groups and tribal militias” based in Eastern Libya that purports to combat Islamist terrorism. In May, following a series of brutal executions caught on film, LNA leader General Khalifa Haftar stood by his commander, rejecting Werfalli’s resignation and declaring that he was “one of the sincere fighters who has given a lot in the battlefields for years.”

The ICC prosecutor initially and secretly requested an arrest warrant for him on Aug. 1 and, according to the LNA, Werfalli was arrested, and investigations into his alleged crimes were launched, the very next day. While details remain sketchy, the proximity of these events is too close to be coincidental.

The LNA has three options: 1) to genuinely investigate and prosecute al-Werfalli and concomitantly challenge the admissibility of the case at the ICC; 2) give only the appearance of a genuine investigation of al-Werfalli with little or no punishment; or 3) surrender al-Werfalli to the ICC.

In response to the ICC’s actions, a LNA official said, “[w]e announce our readiness to cooperate with you [the ICC] in informing you of the result and course of the judicial case.” Neither the LNA, nor its supporters, have any intention of surrendering al-Werfalli to the ICC. But it remains to be seen whether they will genuinely investigate and prosecute Werfalli or simply run a sham probe into his alleged crimes.

Undermining victors justice

Some see the move against Werfalli as significant in part because it breaks with a controversial pattern of ICC interventions. The ICC generally pursues only one side of a conflict — rarely both. When the court initially intervened in Libya in 2011, it singularly targeted officials from the Gaddafi regime, overlooking or actively ignoring a litany of opposition atrocities. As a result, many subsequently criticized the court for practicing one-sided justice and entrenching impunity in order to curry favor for anti-Gaddafi forces and U.N. Security Council member-states. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Libyan National Army, Mahmoud al-Werfalli, Qatar | Tagged | 1 Comment

New Paper Alert! Casting a Larger Shadow – Pre-Meditated Madness, the International Criminal Court, and Preliminary Examinations”

Posted on August 28, 2017 by Mark Kersten

US soldiers on patrol in Afghanistan (Photo: Global Research)

Attention among observers and scholars of international criminal justice has increasingly focused on what happens before the International Criminal Court (ICC) intervenes in a situation and issues arrest warrants for perpetrators of international crimes. Prior to the ICC opening an official investigation, the Office of the Prosecutor must conduct a so-called “preliminary examination” to determine whether a full-out intervention is justified. Despite growing scrutiny, the practices encompassed within the preliminary examination stage of ICC interventions remain under-examined and under-theorized.

In this context, I drafted a paper last year, one that I hope will be published soon, entitled “Casting a Larger Shadow – Pre-Meditated Madness, the International Criminal Court, and Preliminary Examinations“. The article promotes a view of ICC preliminary examinations as a unique and strategic moment in which the Court can and should attempt to affect state behaviour, namely through the deterrence of atrocities as well as by galvanizing states to pursue justice and accountability for international crimes themselves. Of course, no single approach should be applied across all situations under preliminary examination. The focus of the piece is on particularly hard cases where major powers interests are involved – such as Afghanistan, where American forces may be the ICC’s cross-hairs.

I have posted the full draft article online. The introduction follows below. As always, please do share your views!

It has been repeatedly put forward that that the International Criminal Court (ICC) has a “shadow”. This notion has been regularly and increasingly invoked in scholarship on the ICC. In their 2012 article entitled Kenya in the Shadow of the ICC, Chandra Lekha Sriram and Stephen Brown pondered “whether the shadow of the ICC is likely to deter future atrocities.” Kevin Jon Heller has offered an analysis of the “shadow side of complementarity” — the effects of the Court “on the likelihood that defendants will receive due process in national proceedings.” Louise Chappell et al have described what they see as the institution’s “gender justice comple- mentarity shadow”, an effect they argue results from the lack of linkage between the gender jus- tice provisions under the Rome Statute and the Court’s foundational principle of complementarity. Even ICC Chief Prosecutor Fatou Bensouda has spoken of the Court’s shadow, which she describes as its “capacity to set precedents that would meet the global challenges of our times” and something that “should be considered as the most important impact of the court.”

This article is likewise concerned with the shadow cast by the ICC — but from an altogether different angle. The focus of this paper is on identifying and exploring novel strategies at the pre- liminary examination stage of ICC interventions, strategies which could enlarge the ICC’s shadow. Above all, it is argued that the Office of the Prosecutor (OTP) should consider deploying more intrepid strategies at the preliminary examination phase in order to positively influence the behaviour of the Court’s potential targets. But what is meant by the ICC’s “shadow”?

Given the diverse use of the term “shadow” in international criminal law and justice scholarship, it is worthwhile briefly outlining what this paper means by it. “Shadow” here is taken to entail the indirect impression and impact that the ICC has on various actors and, in particular, on those whose behaviour the Court seeks to affect through its actions and decisions. These effects and impressions can exist at any time and at any stage of the Court’s interventions — including prior to the opening of an official investigation.

Continue reading →

Posted in Afghanistan, Deterrence, International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, United States | 7 Comments

Good Politics or Bad Law? The International Criminal Court, Bashir, and South Africa

Posted on July 21, 2017 by Mark Kersten

Presidents Zuma and al-Bashir meet in Khartoum in 2015 (Photo: DoC)

It came as quite the surprise. To be sure, observers of South Africa’s relationship with the International Criminal Court (ICC) fully expected that the Court’s Judges would eventually find that Pretoria had failed to cooperate in arresting and surrendering Sudanese President Omar al-Bashir to The Hague when he visited in 2015. But few could have guessed that the Court’s Judges would decide that no further action was necessary, that South Africa would not be referred to either the United Nations Security Council nor the ICC’s Assembly of States Parties (ASP) for additional sanction.

Some view this decision as a betrayal of justice, a finding of criminality without punishment, and a legally precarious proposition. The most cogent and eloquent critic of the ruling, Angela Mudukuti, has argued that “it may do the ICC more harm than good as far as being taken seriously as a legal institution”. In this post, I will argue that the ICC’s decision was, in fact, good politics and law, and that it remains unclear, at best, whether it will hurt the institution.

Firstly, the core of South Africa’s concerns with the ICC remains unsettled. This is far too often and too easily overlooked. Human rights and international justice advocates rightly want to see al-Bashir held to account for atrocities committed in Darfur. However, while South Africa clearly had obligations to arrest Bashir (which was made clear in successive court rulings in the country), it is not clear whether ICC member-states have an obligation to do away with the immunity of heads of state of non-member states like al-Bashir of Sudan. Even when the UN Security Council is involved and refers a non-member state of the ICC to the Court, the legal consequences of such a referral are debatable. This debate is often caricatured as one between proponents of justice and advocates of impunity. But the legal scholars and diplomats concerned with the legal status of head of state immunity of non-member states are not endorsing impunity. They are recognizing a reality: that states and courts have been purposefully ambivalent on this issue and it thus remains unsettled. It does not push the accountability ball forward to neglect this fact. It would be better, as that some observers (including myself) have previously argued, to refer this issue to the International Court of Justice.

Second, a concern among critics of the ICC’s ruling is that a “message has been sent to all states parties: non-compliance has no consequences.” But is it really the case that South Africa has faced no consequences? While South Africa has not been punished or sanctioned by the ICC, it has faced numerous consequences, both domestically and internationally as a result of its decision to host al-Bashir. Pretoria has had to explain itself to the international community and to its own citizens on innumerable occasions and do so very publicly. It has also had to muster legal reasons for its actions.

Indeed, an all-too-apparent consequence is that South Africa has engaged the Court on the issue of head of state immunity. The form and substance of that engagement will never satisfy those who only see one outcome as appropriate: full legal compliance from Pretoria, punishment of the South African government, and the surrender of al-Bashir to the ICC. And fair enough. But what South Africa has done is, nonetheless, engage to the ICC throughout this process. As Allan Ngari rightfully points out: “South Africa has engaged constructively with the ICC, proposing procedures that states parties should take when consulting with the court on cooperation requests.” Moreover, part of the reasoning of the Judges in not referring South Africa to the ASP or Security Council was based on their acknowledgement of South Africa’s positive engagement with the Court. That can’t be said for many, indeed any, member-states that have previously hosted al-Bashir.  Continue reading →

Posted in African Union (AU), Darfur, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 1 Comment