Not All it’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy”

Posted on February 6, 2017 by Mark Kersten
Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

I want to make something clear from the outset: what follows is not a defence of the International Criminal Court (ICC). Seriously. It may sound like one or be interpreted as one, but it is not one. What follows is an attempt to clarify what actually happened last week when states at the latest African Union (AU) summit adopted an “ICC Withdrawal Strategy”. In doing so, they set parts of the internet ablaze with a new round of reports of a mass exodus of states from the ICC and the Court’s pending demise. It’s not going to happen — at least not now.

First, let’s tackle the actual resolution of the AU adopting the ICC Withdrawal Strategy. It is purposefully weak. Like, really, really weak. The non-binding resolution includes reservations from eight states. As Elise Keppler has pointed out, “Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.” That’s a lot of reservations.

Further, the resolution’s operative paragraph declares that the Assembly of the AU “ADOPTS the ICC Withdrawal Strategy along with its Annexes and CALLS on member states to consider implementing its recommendations”. There are few things weaker in the vernacular of international legalese than calling on states to consider something.

But what about the ICC Withdrawal Strategy that was adopted? Its title certainly sounds menacing. But in substance, it is anything but. For one, it doesn’t actually call on a mass withdrawal of states from the Court. Here’s what the Strategy lists under “objectives”:

screen-shot-2017-02-06-at-3-02-22-pmIn reading the strategy, it is difficult not be left with the impression that African states remain engaged with the ICC. It certainly doesn’t sound like they’re collectively jumping ship. That’s because the Strategy reads like a largely reasonable list of possible reforms to the Rome Statute and the Court. Indeed, the arguments contained within the Strategy should be taken seriously and continue to be debated. There are at least a handful that should be acceptable to the Court and its champions, such as the long-standing request from Kenya to include “regional criminal jurisdictions” in the section of the Rome Statute’s pre-amble pertaining to the principle of complementarity. More attention also needs to be paid to the fact that the majority of the grievances and concerns expressed within the Strategy ultimately relate to the ICC’s relationship with the UN Security Council.

Perhaps the most unfortunate aspect of the Strategy is its misleading title. It is difficult, if not impossible, to read it and conclude that it proposes a roadmap for states to withdraw en masse from the Court. It really should be called “ICC Reform Proposals” or something similar. However, is clear that certain states prefer to muddy the waters and perhaps even want the media and observers to dramatize the possibility of a mass withdrawal. Advocates of the Court shouldn’t play into that game and, instead, ought to focus on encouraging African ICC member-states to advocate more accurate, and less inflammatory, titles for their documents and resolutions. That alone would help re-balance the narrative. Continue reading →

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, Nigeria | 3 Comments

Could Yahya Jammeh End Up at the International Criminal Court?

Posted on January 23, 2017 by Mark Kersten
Yahya Jammeh fled to exile on 21 January (Photo: BBC)

Yahya Jammeh fled to exile on 21 January (Photo: BBC)

It was unthinkable just a few short weeks ago. But today, Yahya Jammeh is no longer in power in The Gambia. Following last-minute mediation efforts by West African leaders, Jammeh’s twenty-two year-long rule came to a much-anticipated conclusion last week. After weeks of heightened tensions and fears that violence might erupt in the small country of just 2 million people, the crisis concluded peacefully — and Jammeh fled into exile. Adama Barrow, elected President of The Gambia on 1 December 2016, currently remains in neighbouring Senegal, but is set to return to Banjul and assume power. So what will come of Jammeh, a leader widely seen as responsible for political repression and a host of human rights violations? Could he end up facing charges at the International Criminal Court (ICC)?

The ICC, and the issue of retributive justice more generally, lurked in the background throughout The Gambia’s political crisis. Just weeks before the presidential elections, Jammeh declared that The Gambia would withdraw from the ICC. In response, Barrow pledged to keep the country a member of the Court, a promise he says he intends to keep following his ascension to the presidency.

Jammeh famously accepted the election results only to flip-flop on the decision a week later. In that intervening period of time, one of Barrow’s political allies stated that Jammeh would be prosecuted for his crimes within a year. Some thus speculated that Jammeh’s volte face was spurred by his fear that his giving up power would lead to his prosecution. But as Jammeh dug his heals in, the issue of investigating, let a lone prosecuting, Jammeh, was put on the back-burner. The priority was to ensure a peaceful transition of power and to avoid any bloodshed. Through successive rounds of negotiations, led by Economic Community Of West African States (ECOWAS), neither states nor major international human rights organizations voiced demands for justice and accountability. While both Nigeria and Morocco offered Jammeh asylum, Barrow smartly reiterated that Jammeh would be welcome to stay in the country.

As the political crisis unfolded, Senegalese troops, endorsed by ECOWAS and the UN Security Council, entered the country. The feasibility of Jammeh remaining in The Gambia evaporated. The question was no longer whether Jammeh would leave, but rather under what conditions. In the end, ECOWAS brokered a deal with the former despot. According to the terms of the settlement, Jammeh will not receive immunity but he did receive certain protections and a free path out of The Gambia. During the night of 21 January, he boarded a plane with Guinean President Alpha Conde. After reported stop-overs in Conakry and Malabo, Jammeh arrived in Equatorial Guinea.

Upon Jammeh’s departure, Barrow was asked about whether the former leader might be prosecuted. The President, however, said that his priority is to set up a truth and reconciliation commission to find the ‘truth’ of what transpired during Jammeh’s tenure:

We aren’t talking about prosecution here. We are talking about getting a truth and reconciliation commission. Before you can act, you have to get the truth, to get the facts together.

Still, there have been implicit suggestions that Jammeh may be concerned that he could find himself before the ICC and that his choice of Equatorial Guinea reflects that fear. According to a report in the BBC,

Equatorial Guinea does not recognise the International Criminal Court (ICC) and has weak civil society and opposition groups, reducing the chances of the government coming under pressure to hand over Mr Jammeh to either the ICC or Mr Barrow’s government for prosecution.

The CBC has similarly referred to the apparent importance of Equatorial Guinea not being a member of the ICC:

The unpredictable Jammeh… is now in Equatorial Guinea, home to Africa’s longest-serving ruler and not a state party to the International Criminal Court.

But does Jammeh have anything to fear from the ICC? Sure, the Court’s prosecutors may see Jammeh’s fall from grace as an opportunity to investigate and target him for prosecution. But it seems very unlikely. Here are four reasons why we shouldn’t expect the ICC to go after Jammeh.  Continue reading →

Posted in Africa, International Criminal Court (ICC), International Criminal Justice, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Tagged , , | 7 Comments

Your Call! Sending Copies of Justice in Conflict (the Book) to African Libraries and Universities

Posted on January 17, 2017 by Mark Kersten

screen-shot-2016-03-29-at-11-20-31-am

As readers will know, Oxford University Press (OUP) and I have hatched a plan to send copies of my book, Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, to libraries and universities across Africa. The falls in line with our commitment to give something back to the countries and communities we study. OUP has set aside 200 copies of the book and all of the royalties that I receive will go to paying for the costs of shipping the books.

But we need your help. I have come up with a list of institutions where the book will be sent and I am hoping that you, as readers, will have some ideas of your own. So, with that said, please do share any ideas you may have in the comment section below. I will include them in the list of institutions to send a copy of the book to.

Thanks as always,

Mark

Posted in JiC News | 11 Comments

Confronting the Use of Child Soldiers in Iraq

Posted on January 12, 2017 by Mark Kersten

Laura Nacyte joins JiC for this post on need for accountability for the use of child soldiers in Iraq. Laura is an MSc graduate of Global Security from the University of Glasgow where she wrote the dissertation “The Copenhagen School Meets International Law: Has the International Criminal Court Impeded the Securitisation of Sexual and Gender-Based Violence?”. She has previously written for JiC on the the limits of the conception of gender under the Rome Statute of the International Criminal Court.

Groups, including Shiite militias, have been accused of using child soldiers in Iraq (Photo: Getty Images)

Groups, including Shiite militias, have been accused of using child soldiers in Iraq (Photo: Getty Images)

The issues pertaining to child soldiering have occupied much attention in recent global justice debates. In Colombia, minors were released from the rebel group of the Revolutionary Armed Forces. Their reintegration is beset with difficulties. At the International Criminal Court, a former child soldier Dominic Ongwen is tried for atrocities committed in Uganda. Indeed, children’s involvement in military activities poses the dilemma of their victimhood and agency.

The dilemma is likewise acute in Iraq, where the number of minors incorporated into diverse armed groups has surged following the emergence of the so-called Islamic State of Iraq and al-Sham (ISIS) in 2014. Despite the accession to the Optional Protocol on the Involvement of Children in Armed Conflict, which forbids the conscription of persons under 18 years of age, the Iraqi government failed to fully implement it. As a result, minors entered military groups and have engaged in wrongdoing.

Systematic recruitment, as well as children’s heightened vulnerability, diminish — although does not exclude — accountability of Iraqi child soldiers. Therefore, its determination by the means of juvenile justice in Iraq is defective. As the remainder of the post shows, it is politically biased and disregards limited minors’ agency. An alternative might be a truth and reconciliation commission; a national inquiry body concerned with past human rights abuses and restoration of social relationships. As ISIS declines in power, the creation of such commission appears both desirable and plausible.

The Flawed Iraqi Regulations of Child Soldiering

Under Iraqi law, children’s recruitment and use in armed conflict is not a criminal offence. The minimum age for voluntary recruitment is 18 years; nevertheless, the age verification system is not reliable.

Currently, the only robust safeguards for minors are set down in laws determining the status and conduct of non-state armed groups. The 2005 Iraqi Constitution prohibits the formation of such entities. The 1969 Iraqi Criminal Code and the 2005 Terrorism Act foresee sentences for those who conscript other persons, including children, into forces outside state control.

While important, these mechanisms are nonetheless problematic. They may offer a substantial protection against ISIS, the major Sunni-dominated recruiter of minors, but they simultaneously enable forces loyal to the Iraqi government to employ children with impunity. The Popular Mobilisation Forces, a Shia militia, is an emblematic example. Operating under the command of Iraq’s prime minister, it enlists children, some as young as 10 years old, on account of a religious duty. Other pro-government forces include the Kurdish Workers Party and self-defence groups.

Absent specific, child-orientated national policies, underage Iraqi soldiers tend to bear a high degree of personal responsibility for the acts of political violence. Pursuant to the 1983 Juvenile Welfare Act of Iraq, 9-17-year-olds affiliated with armed opposition groups are treated as juveniles. Once arrested, they are placed into an observational centre to undergo a physical, mental and social study of their behaviour. If convicted — typically on charges of terrorism — juveniles are sent to a correctional facility.  Continue reading →

Posted in Child Soldiers, Iraq, ISIS, Islamic State, Truth Commission | 2 Comments

The “Forgotten Genocide” that was a Precursor to the Holocaust

Posted on January 11, 2017 by Mark Kersten
A cover of a book by Georg Rau and Lothar von Trotha (1907) depicting the subjugation of the Herero people.

A cover of a book by Georg Rau and Lothar von Trotha (1907) depicting the subjugation of the Herero people.

It is a sad truth. Few know, let alone speak, of the mass murder and policies of extermination wrought upon by colonial Germany against the Herero and Nama people in German South West Africa — what is today Namibia. But in recent weeks, that “forgotten genocide” has received renewed attention as descendants of its victims seek compensation from Germany. While German political figures have accepted that the political violence waged against the Herero and Nama people constituted genocide and have apologized for it, the country, which ruled Namibia from 1884-1915, has steadfastly refused to pay individual reparations to the descendants of victims, arguing instead that it will to Namibia in the form of development aid.

While the notion that states have an obligation and responsibility to try to atone for past wrongs isn’t in itself particularly controversial, the issue of reparations remains a bit of a mind field. Should reparations be given to individuals, including those who haven’t suffered direct violence? Should it be given by governments that weren’t directly involved? Or should reparations be given collectively to communities? If so, in what form? What ‘amount’ of reparations is appropriate? Indeed, what counts as enough enough? Who gets to decide?

However one answers these difficult questions, Namibia’s push for reparations has increased public awareness of a much-neglected genocide. The lack of public knowledge of the the genocide of the Herero and Nama peoples is particularly striking because, in many respects, it acted as a precursor to the Nazi’s genocide of the Jews during The Holocaust — the twentieth century’s darkest stain and most horrific act of mass murder.

In this excellent 2005 article on the subject, From Africa to Auschwitz: How German South West Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe, Benjamin Bradley describes how key concepts, methods, and tools, including the use of concentration camps (Konzentrationslager) were developed during colonial Germany’s genocide of the Herero and Nama. As Bradley observers, “[t]hese ideas and methods were communicated to Germany and future Nazi leaders through speeches, the press, and colonial literature.” Here are a few excerpts from his essay:

The German terms Lebensraum and Konzentrationslager, both widely known because of their use by the Nazis, were not coined by the Hitler regime. They were minted years earlier in reference to German South West Africa, now Namibia, during the first decade of the twentieth century, when Germans colonized the land and committed genocide against the local Herero and Nama peoples. Later use of these borrowed words suggests an important question: did Wilhelmine colonization and genocide in Namibia influence Nazi plans to conquer and settle Eastern Europe, enslave and murder millions of Slavs and exterminate Gypsies and Jews?

…

German South West Africa was colonial, but not typically so. Its violent subjugation had as much in common with the Holocaust as with other colonial mass murders and may be regarded as a transitional case between these two categories of violence. What distinguishes the German South West African genocide from most other colonial mass murders is the fact that the Germans in colonial Namibia articulated and implemented a policy of Vernichtung, or annihilation.

Wilhelmine rule in German South West Africa was not the sole inspiration for Nazi policies in Eastern Europe, but it contributed ideas, methods, and a lexicon that Nazi leaders borrowed and expanded. Language, literature, media, institu- tional memory, and individual experience all transmitted these concepts, methods and terms to the Nazis.

…

Continue reading →

Posted in Genocide, Germany, Holocaust, Namibia | Tagged | 1 Comment

Looking Back to 2016 and Forward to 2017 in the World of International Criminal Justice

Posted on January 3, 2017 by Mark Kersten

3d Jahreswechsel von 2016 auf 2017

Since the emergence of international criminal justice as a regular practice in international relations and law, there has never been a dull year — and there is unlikely to be one any time soon. The year 2016 brought with it remarkable moments, significant disappointments, and some rather weird developments. Here’s a look back on some of those stories as well as some stories to anticipate in the year to come.

The Best of 2016

While some have expressed (not unfounded) concerns about the future of the International Criminal Court (ICC), there were a number of ‘victories’ in the realm of international criminal justice in 2016. Given the consistent criticism that international criminal justice is too slow and inefficient, the guilty plea and conviction of Ahmad al Faqi al Mahdi for the war crime of destroying shrines and religious sites in Timbuktu, Mali, stands out. It further appears that al Mahdi isn’t just a ‘1’ in the ICC’s ‘win column’ — his cooperation with the Court’s prosecutors could lead to additional charges, although in a rather surprising move, the Office of the Prosecutor did not include Mali as a situation under active investigation in 2017. It thus remains to be seen: is the prosecution and conviction of al Mahdi all the justice the ICC will achieve in Mali?

Another outstanding development was the landmark conviction of Hissène Habré in May 2016 for a raft of atrocities and human rights abuses perpetrated against the people of Chad. Finally, the creation of a tribunal to focus explicitly on the Kosovo Liberation Army during the 1998-2000 war there. While it is only just getting off its feet, the Kosovo Relocated Specialist Judicial Institution (KRSJI) marks the first time that an international court has been set up with the express purpose to examine the crimes of the victors of a war.

The Worst

There were a lot of rough moments in 2016. The withdrawals of Burundi, South Africa and, for the time being, The Gambia, have done significant damage to the ICC, although it must also be said that rarely have so many African states publicly expressed support for the Court. While it seems like ancient history, April 2016 brought the end of the ICC’s case against Kenyan Vice President William Ruto, marking the final death throes of justice for Kenya’s 2007-08 post-election violence.

But what really stands out is the absolute lack of accountability in Syria, after nearly 6 years of civil war. There are signs that this could potentially change in the future (see below), but 2016 is in the books as a year when, once again, no justice was brought for the victims and survivors of atrocities in Syria.

The Weirdest 

There were some weird moments in 2016. The oddest was likely the announcement that the ICC’s first chief Prosecutor Luis Moreno-Ocampo as well as renowned international criminal law scholar Mahmoud Cherif Bassiouni were working for Philip Morris International (i.e. ‘Big Tabacco’) to combat worldwide smuggling rings and “related crimes” — despite the fact that institutions like the World Health Organization have called efforts to fight illegal tobacco smuggling by tobacco companies “insincere”.

The Blog

2016 was a very good year for the blog. Over the 12 months, 104 blogs were published, including a series of fantastic interviews with key actors in international criminal justice by Shehzad Charania (see here). We ran two fantastic online symposiums: on child soldiers and the trial of Dominic Ongwen and on peace and justice in Colombia. Readership grew by a healthy 7%. The United States led to way in view, followed by the UK, The Netherlands, Canada, and Germany. Kenya and South Africa were easily in the top-10.

Of course, 2016 was also the year that my book, Justice in Conflict, was published. I cannot thank everyone enough for their support, particularly the team I worked with at Oxford University Press. The book has been selling very, very well — and I look forward to using the royalties to ship copies to libraries and universities in Africa and ICC-related states. More on that soon!

Looking Forward — What To Expect in 2017

The biggest thing to expect in 2017 is the opening of an official ICC investigation into Afghanistan. Prosecutors still need to seek the approval of ICC judges, but it in their words, that decisions is “imminent”. Such a move would be unprecedented. It would mark the first time that US officials came under investigation of an international criminal tribunal. As I wrote in November, a potential ‘win’ for the ICC whatever happens. But it’s unlikely to be pretty. Under the incoming administration of Donald Trump, we are likely to see the rockiest US-ICC relationship in years. Continue reading →

Posted in Hissène Habré, ICC Prosecutor, Impartial and Independent Mechanism (IIIM), International Criminal Court (ICC), International Criminal Justice, JiC News, Kenya, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), Syria | 2 Comments

United We Stand, Divided We Fall — The UN General Assembly’s Chance to Bring Justice to Syria

Posted on December 30, 2016 by Mark Kersten
An aerial photo of Aleppo shows damage to the city from ongoing civil war (Photo: Hosam Katan / Reuters)

An aerial photo of Aleppo shows damage to the city from ongoing civil war (Photo: Hosam Katan / Reuters)

For all the talk of justice for mass atrocities in Syria and myriad mechanisms aimed at forcing the international community to bring Syrian war criminals to account, the world has very little to show. But several recent developments at the United Nations General Assembly could lay the foundation for the day when justice in Syria becomes possible.

With the leadership of small and middle powers such as Lichtenstein and Canada, the U.N. General Assembly achieved something historic and unprecedented on Dec. 21: It voted overwhelmingly in favor of a resolution creating “the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.” The International, Impartial and Independent Mechanism (IIIM) is mandated to collect and analyze evidence of mass atrocities and human rights violations in Syria with the aim of facilitating future international criminal proceedings.

The initiative to create the IIIM via the General Assembly is both remarkable and positive. But, as it stands, it is unlikely to immediately deliver meaningful accountability or justice to Syrians, especially not in the short term. The General Assembly does not have the power to set up a tribunal or to compel states to cooperate with its investigations. The work of the IIIM may one day lead to the creation of a war crimes tribunal, but it itself is unlikely to morph into a court. But without the approval of the Syrian government or additional approval of the Security Council — neither of which will be forthcoming — no functioning court can be established from the General Assembly’s resolution.

What, then, is the point? If properly constituted, the IIIM has a unique opportunity to lay the groundwork for eventual justice in Syria — be it at the International Criminal Court (ICC) or some other tribunal. As such it has the chance to achieve two aims: delivering accountability for atrocities in Syria as well as addressing the cost and the inefficient pace of trials, endemic concerns of war crimes tribunals. The states behind the effort hoped that, if the outline of a court were agreed to, it could be subsequently fleshed out — if we build it, they will come. There is some risk to this approach, of course. Global justice already suffers from heightened but unmet expectations. Treating the establishment of the IIIM as a fait accompli, without a plan for its development, risks widening that expectations gap.

A number of critical issues are yet to be determined. Who will fund the IIIM? Who will be in charge? What would its terms of reference and specific mandate be? My research on accountability mechanisms in Syria suggests some possible answers.

I have previously written about the emergence of a “marketplace” of international justice institutions. The massive asymmetry between the demand for accountability and its supply, particularly in the case of Syria, has produced competition between judicial institutions and accountability mechanisms. Civil society organizations like Amnesty International and Human Rights Watch document human rights violations and atrocities. The Commission of Inquiry on Syria, set up by the U.N. Human Rights Council, studies evidence of crimes and issues substantive reports on the matter. While the ICC lacks jurisdiction in Syria, it could target belligerents who are citizens of ICC member states. Domestic prosecutorial authorities have generally been sluggish, despite the many Syrians  in their jurisdictions. Finally, the Commission for International Justice and Accountability (CIJA) is a private nonprofit organization, whose network of investigators has been collecting linkage evidence on the ground since 2012 with the aim of producing case-ready files for inclined prosecutors to use.

Despite their shared goals, these organizations and institutions don’t always get along. They view the most appropriate approaches to achieving accountability for atrocities differently and defend those approaches vehemently. They often view new developments as threats to their institutional interests. This has been especially clear in the Syrian case. Continue reading →

Posted in Commission for International Justice and Accountability (CIJA), Commission of Inquiry, Impartial and Independent Mechanism (IIIM), International Criminal Court (ICC), International Criminal Justice, Syria, UN General Assembly | 5 Comments

In Withdrawal? Africa and the International Criminal Court

Posted on December 21, 2016 by Mark Kersten

Kenyan President Uhuru Kenyatta (right) speaks with Kenyan Attorney General Githu Muigai and Foreign Minister Amina Mohammed (Photo: Getty)

Kenyan President Uhuru Kenyatta (right) speaks with Kenyan Attorney General Githu Muigai and Foreign Minister Amina Mohamed (Photo: Getty)

With speculation regarding the future of the relationship between African states and the International Criminal Court (ICC) ongoing, I was recently asked by the International Institute for Strategic Studies to pen a longer piece explaining the sources of tensions in the Africa-ICC relationship, the reasons and meaning behind the withdrawals of a handful of states from the Court, and potential alternatives to the ICC on the African continent. The article is a critical overview which seeks to bring together various strands of thinking on the Africa-ICC relationship and offer new insights regarding recent developments, particularly the withdrawals of South Africa, Burundi, and The Gambia. There is, of course, much more to be said about the Africa-ICC relationship. But here’s a snippet of the article, which can be found in full at the IISS’s Strategic Commentary section here.

The International Criminal Court (ICC) was established under the Rome Statute of 1998 as the first international legal body with jurisdiction to prosecute genocide, crimes against humanity and war crimes. African governments enthusiastically joined the Court and formed the largest regional bloc of member states (34 of 124), sensing its potential to transcend global power politics. But during the first 14 years of the ICC’s existence, the Court intervened exclusively in African states. With respect to Darfur in 2005 and Libya in 2011, the body targeted heads of state for mass atrocities at the behest of the United Nations Security Council (UNSC) – an institution whose permanent, veto-wielding members include three states (the United States, Russia and China) that have not joined the ICC. The ICC also investigated the future president and deputy president of Kenya for alleged atrocities committed during the 2007–08 post-election violence, although the ICC’s cases against them collapsed. For many, the Court’s record gave the impression of an institution that was focusing inordinately and prejudicially on African states. In late 2016, Burundi, South Africa, and The Gambia decided to begin the process of withdrawing from the ICC. This development has given rise to fears of a mass exodus, and raised the question of whether the ICC could remain a viable institution in Africa.

Tensions between the ICC and some African states have been both overstated and over-simplified. Some African government officials have lambasted the ICC as a ‘neo-colonial’, ‘racist’ and ‘race-hunting’ institution that ‘blackmails’ African states. In response, ICC officials and supporters have often ascribed anti-ICC sentiment to a ‘few bad apples’ – namely, African dictators and despots afraid of the ICC’s scrutiny. While there certainly are African autocrats who loudly oppose the ICC, there are also subtler, multi-faceted aspects of the Court’s activity in the region. The fact that it took 14 years for the ICC to investigate a situation outside the African continent reinforces perceptions of anti-African bias. Yet the majority of the African situations under ICC investigation were referred to the Court by the African state in question, and all cases involved alleged international crimes of sufficient gravity to merit ICC attention for which there were no prospects of domestic accountability. Some governments, like Uganda and the Democratic Republic of the Congo (DRC), have benefited from the ICC’s having targeted their political adversaries.

…

The possibility of developing alternative institutions capable of prosecuting international crimes has gained traction in Africa. Central to this idea is the potential creation of an African Court of Justice, Human and Peoples’ Rights with a mandate to prosecute the same crimes, among others, as are currently under the jurisdiction of the ICC. Such an expansion would be achieved by the ratification of the so-called Malabo Protocol, an agreement drafted by the Pan African Lawyers’ Union, which is impressive in its breadth and depth. Although Bensouda has welcomed such a development, not a single African state has ratified the Protocol. There is also disagreement over how such an institution would be funded and concern about the possibility that any expansion of the African 

Court would include immunity not only for sitting heads of state but government officials in general. 

Other developments on the continent, however, do suggest growing expertise and interest in international criminal justice. In 2008, Uganda set up the International Crimes Division, which is now hearing its first war crimes case. Kenya has consistently declared that it would create a similar institution, the International and Organised Crimes Division, although it would not examine any alleged atrocities perpetrated during the 2007–08 post-election violence that spurred the ICC to intervene. Hybrid tribunals – courts that combine international and domestic elements and staff – are reportedly ‘in the pipeline’ in the Central African Republic and South Sudan. In Senegal, the Extraordinary African Chambers has prosecuted and convicted former Chadian president Hissène Habré for crimes against humanity. 

Any discussion of ‘alternatives’ to the ICC should take into account the reality that most ICC member states in Africa have been unwilling to rescind their membership to the Court. There is a need to address how these alternative would interact in a cooperative arrangement with the ICC in the service of a coherent system of global justice. One reasonable proposal in this regard would be, as requested by African member states of the ICC, to alter the preamble of the Rome Statute to describe the Court as complementary to regional as well as national institutions.

The full article can be found here.

Posted in Africa, Burundi, Gambia, International Criminal Court (ICC), International Criminal Justice, South Africa | Leave a comment

Politics, Justice, and the Politics of Justice — Partisanship and the International Criminal Court

Posted on December 12, 2016 by Mark Kersten
Canadian Foreign Minister Stéphane Dion speaks with ICC chief Prosecutor Fatou Bensouda (Photo: Stéphane Dion)

Canadian Foreign Minister Stéphane Dion speaks with ICC chief Prosecutor Fatou Bensouda (Photo: Stéphane Dion)

At this point, it is almost a cliché to call international criminal justice “political”. For years, calling war crimes tribunals political was the gravest of insults critics could levy against the field. Slowly, however, it has become more acceptable — even among proponents of institutions like the International Criminal Court (ICC) — to describe the project of international criminal justice not only as infused by politics but, in and of itself, political. There are still probably some hold-outs, folks living on (metaphorical) islands where the pursuit for accountability for the worst human beings on earth needs to be a project devoid of politics. But the fact that international criminal justice is political should be as obvious as the fact that it must be, that it cannot be any other way. Indeed, the most alluring aspect of the ICC and other tribunals is not that they represent unfettered judicial or legal projects but that they represent the promise of a global political landscape where the expectation that perpetrators of mass atrocities are held to account is actually met.

Still, “politics” has no singular definition. When a critic rips into the ICC for being “political”, they surely don’t have the same notion of “political” in mind as either those who defend the Court for representing good politics nor more even-handed observers who simply see the institution as the product of politics. While there has been much progress in recent years, there is still a need to think through exactly how the ICC is political. We might, for example, distinguish how the Court acts as a “political weapon” of states that “use” it for “political purposes”; the politics of its selection of prosecutorial targets; the degree to which the ICC represents and reflects the global, political distribution of power; and the internal politics of the Court as an institution with its own institutional interests.

It is also unlikely that the same “politics” infuses the various actors that constitute the project of international criminal justice with life. The politics of defence lawyers and prosecutors, registry officials and victims’ representatives, the presidency and the ICC Assembly of States Parties; all allude to and represent different politics.

One aspect of the politics of international criminal justice that has seldom been explored, however, is the extent to which it is a partisan issue and how it consequently shapes relationships between domestic political parties. This may have something to do with how state-centric international criminal justice is and the consequent focus on binary of the “state” and the “non-state actor” as the key units in the study and observation of the ICC.

Of course, the effects of the ICC on domestic politics have often been addressed. How the Court affected domestic power dynamics in Uganda, the Democratic Republic of Congo, the Ivory Coast, and so on, has been the focus of many studies. Much has also been written about how the Court’s intervention determined the outcome of the 2013 Kenyan presidential elections, in which two ICC targets, Uhuru Kenyatta and William Ruto bridged partisan differences to be elected President and Deputy President respectively. But it seems evident that, even in situations where there has not been an intervention, the ICC affects domestic — and partisan — politics. Consider the following recent examples. While it is important to stress that each of these cases is complex and includes various issues and actors beyond political partisanship (and I do not mean to reduce them to partisan dynamics), they all illustrate how international criminal justice can resonate in partisan politics. Continue reading →

Posted in Canada, Gambia, International Criminal Court (ICC), International Criminal Justice, South Africa | 1 Comment

Living up to its Reputation – Complementing Justice and Achieving Accountability in Nigeria

Posted on December 7, 2016 by Mark Kersten

James P. Rudolph joins JiC for this guest-post on the International Criminal Court’s ongoing preliminary examination into war crimes and crimes against humanity committed in Nigeria. James is an Attorney in California and Washington, D.C.  LLM, international law and a former Franklin Fellow in the U.S. Department of State, Bureau of African Affairs.

Damage to a mosque following a suicide attack in Maiduguri, Nigeria (Photo: AP)

Damage to a mosque following a suicide attack in Maiduguri, Nigeria (Photo: AP)

Nigeria was an early member of the International Criminal Court (ICC), joining in September 2001. On paper at least, its commitment to international criminal justice has never been seriously questioned. It has, moreover, been one of the largest contributors of troops for African peace operations. The Economic Community of West African States, for example, has received most of its military resources from Nigeria. In other words, despite its declining military prowess, Nigeria has over the years been a bulwark of stability in a troubled region. This is why, in many ways, it was a foregone conclusion that Nigeria would join the ICC and throw its weight behind the burgeoning movement for increased accountability in Africa. But now that both the ICC and the world have placed alleged crimes committed in Nigeria under scrutiny, this rock-ribbed commitment has, lo and behold, shown signs of softening.

The ICC has jurisdiction over genocide, war crimes, and crimes against humanity. Pursuant to the principle of complementarity, the ICC’s ongoing preliminary examination into alleged war crimes and crimes against humanity in Nigeria is bifurcated. The first phase looks into whether the court has jurisdiction, meaning that one of the listed crimes in the Rome Statute allegedly has been committed. The second phase determines whether, despite having jurisdiction, the court’s case is admissible. If national authorities are responding adequately to the situation, then the ICC case is not admissible. The idea is that national authorities have the primary responsibility to investigate alleged crimes and, if warranted, prosecute them. The ICC steps in — i.e., complements — and can investigate only when a state is unable or unwilling to prosecute. The ICC, then, is seen as the court of last resort, to be activated only when it appears that national authorities are unresponsive to, or perpetuating (rather than ending) impunity.

Thus, vis-a-vis the conflict in the north with Boko Haram, the focus of the preliminary examination (initiated in 2010) has been twofold: first, whether Boko Haram has committed crimes; and second, whether Nigerian security forces have done the same. With respect to Boko Haram’s alleged crimes, the evidence overwhelmingly points to guilt. Indeed, Boko Haram has on several occasions admitted to committing war crimes and religiously targeted persecution. This is why this aspect of the examination is not terribly controversial. Boko Haram has been very explicit about wanting to target civilians; indeed, this has become part of its modus operandi. But with regard to atrocities committed by the Nigerian security forces themselves, the situation is much more challenging.

First and foremost, the Nigerian security forces are battling a brutal and nihilistic terrorist organization bent on creating a retrograde form of Islam and imposing it by force on the rest of the country. In other words, the Nigerian security forces have, on balance, had an easier time garnering sympathy. After all, the mission is to destroy a group that is almost universally loathed.

Yet this support for the mission has unfortunately led to some excesses by the armed forces. At Giwa barracks, for instance, Boko Haram detainees managed to escape, only to be rounded up by Nigerian forces that were hell-bent on exacting as much summary justice as possible — i.e., mass, undifferentiated arrests and on-the-spot executions. In the town of Baga, the U.S. State Department’s Human Rights Report notes that up to 228 people may have been killed following a security operation. Human Rights Watch, in its own report, notes that upwards of 2,200 homes were destroyed in Baga by Nigerian security forces. And it was determined by the Department of State (and reported to the White House) that Nigeria’s use of child soldiers in the fight against Boko Haram violated the Child Soldier Prevention Act.

Needless to say, this aspect of the ICC’s examination is politically and institutionally very sensitive. The Nigerian government rightly views Boko Haram as an existential threat. The Nigerian military, especially the army, sees its reputation on the line. Thus, the temptation to do whatever it takes to eliminate the threat is almost overwhelming. This is precisely why the notion of complementarity is so vitally important. The examination is not just about whether Nigeria’s institutions are unable to perform their duties; it’s also about whether Nigerian officials are unwilling to provide a fair and impartial forum in which to hear these issues. Continue reading →

Posted in Admissibility, Complementarity, International Criminal Court (ICC), International Criminal Justice, Nigeria, Preliminary Examinations | Leave a comment