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

New Leadership in The Gambia is Good News for the International Criminal Court

Posted on December 2, 2016 by Mark Kersten
Canisters in which voters in The Gambia drop marbles to indicate their political support (Photo: AFP)

Canisters in which voters in The Gambia drop marbles to indicate their political support (Photo: AFP)

In a development that has sent shock waves of surprise across the world, Yahya Jammeh has accepted defeat following presidential elections in The Gambia. Many expected Jammeh, who once claimed he was prepared to be in power for a “billion years” and who has ruled The Gambia for the last twenty-two years, to do everything possible to hold onto power. It remains unclear what, exactly, convinced the Gambian president to accept the election results and peacefully hand over power to his rival Adama Barrow. But for the International Criminal Court (ICC) and its supporters, Jammeh’s retirement from the presidency is very good news.

Last month, The Gambia joined South Africa and Burundi in notifying the United Nations Secretary General that they intended to withdraw from the ICC. At the time, Jammeh invoked particularly colourful language in deriding the Court as an “International Caucasian Court for the prosecution and humiliation of the people of color, especially Africans.” The Gambia’s intention to withdraw put the ICC in a particularly awkward position because the Court’s chief Prosecutor, Fatou Bensouda, hails from the country and was previously Jammeh’s Justice Minister. Had twelve months passed (the time it takes for an ICC withdrawal to take effect), the ICC chief Prosecutor would have hailed from an non-member state. But it seems that the Court may not have to worry after all.

Earlier this week, incoming President Barrow, who incidentally was a security guard at a London-based retail chain, pledged to keep The Gambia in the International Criminal Court:

We will ensure that we respect all international agreements we are a signatory to and we will take the country back to the Commonwealth and the International Criminal Court.

The ICC and Commonwealth and other international institutions are advocating for good governance – if you are doing that why should you fear.

According to the BBC, Barrow has now confirmed his intention to keep that promise.

While it has never happened before and there is no precedent to follow, it should be assumed that all that is required to keep The Gambia a member of the ICC is an executive decision to withdraw the country’s notice of withdrawal. So what will this mean for the ICC and for the alleged ‘exodus’ of states seeking to leave the Court? Continue reading →

Posted in Gambia, International Criminal Court (ICC), International Criminal Justice | 3 Comments

Intersex, Outcast – The Limits of Gender at the International Criminal Court

Posted on December 1, 2016 by Mark Kersten

Laura Nacyte joins JiC for this post on the limited conceptualization of gender in the Rome Statute of the International Criminal Court. 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?”. Laura is currently based at the Rape Crisis Centre Glasgow.

A witness gives testimony during proceedings at the International Criminal Court (Image: ICC)

A witness gives testimony during proceedings at the International Criminal Court (Image: ICC)

The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 was momentous for historically neglected victims of gender-based violence (GBV). It was the first international treaty to codify numerous gender-related offences, including those of a sexual nature. The document enlists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other comparable sexual violence, both as crimes against humanity and war crimes. In addition, it proscribes persecution on account of gender.

The ICC’s responsibility to prosecute GBV was further reinforced by incorporating gender elements into the Statute’s procedural architecture. The Court is obliged to apply law without any adverse distinction founded on gender. The latter has also to be taken into account to protect victims and witnesses.

Intuitively, engagement with the concept of gender is required to comprehend gender-specific provisions. Article 7(3) of the Rome Statute provides the following definition:

For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

Much commentary was devoted to this vexed provision. The debate has revolved around the tension between the deterministic (‘the two sexes’) and sociological (‘within the context of society’) dimensions of the definition of ‘gender’. With questions of sexual orientation and gender identity at stake, a status of lesbian, gay, bisexual and transgender (LGBT) persons has been in focus. Yet the first, biological part of the provision received surprisingly short shrift. Insistent upon a binary sex classification, it is overtly exclusive of intersex individuals.

Formerly known as hermaphrodites, intersex people are neither entirely male nor female. Their anatomy reveals the incongruence of sex characteristics — chromosomal, hormonal, gonadal or genital — that can result into any of approximately twenty intersex conditions. Under the law of certain ICC member states — for instance, Germany, Australia and Malta — the sex of these individuals is ‘indeterminate’ or ‘unspecified’.

In fact, not all intersex conditions complicate sex determination. By way of example, men with Klinefelter syndrome possess XXY chromosomes instead of the typical XY sex chromosomes, or male chromosomes. They are often not even aware of this genetic disorder, since no obvious symptoms are present. (But their different physical development may manifest through small testes and penis, decreased body and facial hair, and enlarged breast tissue.)

Other conditions are more troubling and deserve an adequate legal acknowledgment. For instance, infants with complete androgen insensitivity syndrome are born with XY sex chromosomes, or male chromosomes, but possess female external genitalia. Categorised as females accordingly, they nevertheless fail to menstruate at puberty and remain infertile. Similarly, genetic males with 5-alpha-reductase deficiency have XY sex chromosomes and female external genitalia, and are usually raised as girls. During puberty, however, their physical appearance starts to display male characteristics, including increased muscle mass, deeper voice, and development of penis. Around half of these individuals eventually migrate to male gender role. Continue reading →

Posted in Gender, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Rome Statute | 3 Comments

Five Things to Know about the ICC’s Afghanistan Investigation

Posted on November 29, 2016 by Mark Kersten

With the International Criminal Court (ICC) on the verge of opening an investigation into Afghanistan, much has been written about how this might affect Canada. Could the investigation focus on the role of Canadian officials in surrendering detainees who were subsequently tortured by Afghan authorities? How should Canada balance its support for the  Court with its diplomatic proximity to Washington? This post, originally published at Open Canada, covers five things that the Canadian and the Canadian government needs to know about the ICC’s looming investigation.

Canadian soldiers in Afghanistan, in 2010. (Photo: The Chronicle Herald)

Canadian soldiers in Afghanistan, in 2010. (Photo: The Chronicle Herald)

The Canadian government’s renewed and vocal support for the International Criminal Court (ICC) has received a tremendous amount of attention in recent weeks. Global Affairs Minister Stéphane Dion has spoken passionately about his support for the institution and his disappointment that three states (South Africa, Burundi, and The Gambia) have begun the process of withdrawing from the court. Earlier this month, Dion visited the ICC’s premises in The Hague and hosted the court’s chief Prosecutor, Fatou Bensouda, in Ottawa.

At the same time, Canadian activists and legal experts have continued their efforts to get Canada to be considered within the scope of an ICC investigation into torture and other war crimes in Afghanistan. Their focus is on the alleged crimes committed by Canadian officials in transferring detainees to Afghan authorities with the knowledge that they would subsequently be tortured during Canada’s military engagement in Afghanistan.

The prospect of such an investigation received new life when the ICC’s Office of the Prosecutor announced this month that an investigation into Afghanistan was “imminent.” From the court’s statements, it is evident that such an investigation will include alleged torture committed by U.S. forces, as a matter of “policy,” in Afghanistan. Will it include Canada’s involvement? What does it mean for the Trudeau government? And what does it say about the ICC? Here are the five takeaways to note so far.

1. The investigation is historic.

The historic nature of this development is worth stressing: in the history of international criminal justice, from the Nuremberg Tribunals to the present day, the ICC’s investigation in Afghanistan marks the first time a tribunal has sought to investigate and prosecute crimes perpetrated by U.S. nationals. Some assert this poses a threat to Canada’s revived passion for the ICC. Michael Byers, for example, argues that Canada will be “caught in the middle” with the government facing a stark choice: side with the U.S. government or side with the ICC. But we should not pose support for international criminal justice or our closest ally as a binary decision. What is needed is principled and smart diplomacy. More on that below.

2. Canada is unlikely to be under investigation by the ICC in the near future.

It is worth taking a step back and addressing the likelihood of Canadian forces being investigated by the ICC. With an official investigation looming, the possibility is now higher than ever. That much is undoubtedly true. Even if Canada is not currently on the ICC’s radar, investigations often have a life of their own and, without any domestic judicial activity to address alleged crimes by Canadian forces in Afghanistan, the long arc of justice could eventually be directed towards Canada.

For at least two reasons, however, Canada is unlikely to be a focus of the ICC in the near future. One, it is improbable that ICC investigators would be able characterize any possible crimes committed by Canadian forces (which are still in contention) as anything more than “aiding and abetting” the war crime of torture. Aiding and abetting is not a second-rate crime. Charles Taylor, the former President of Liberia, received a 50-year sentence for aiding and abetting war crimes and crimes against humanity in Sierra Leone. But in opening its momentous investigation into Afghanistan, the ICC has signalled that it is focused on the direct perpetration of atrocities — by the Taliban, by Afghan forces, and by U.S. officials. Second, prosecutors at the ICC (rightly) believe that states should receive fair warning of any impending investigation into the conduct of their military or governmental officials. In last year’s report on the court’s preliminary examination of Afghanistan, it listed alleged crimes perpetrated by “international forces.” In this year’s report, that language has been replaced with “U.S. armed forces and CIA.” There is no reference to Canada or Canadian forces.

3. The investigation could prompt a separate look at the detainee scandal.

None of this means that the ICC does not have any role in galvanizing accountability for the dark stain on Canada’s recent past that is the Afghan detainee scandal. The ‘long shadow’ of the ICC should be cast on Canada. But the court’s role should be to encourage the government of Justin Trudeau to finally establish a judicial body to investigate Canada’s role in the abuse of Afghan detainees. At some point, that may require signalling to the government that it at least could investigate Afghan detainee abuses and that it is monitoring the Canadian judiciary’s activities.

4. Canada does not have to choose between the ICC and the U.S. government

The ICC’s investigation of the conduct of U.S. forces in Afghanistan undoubtedly puts the Trudeau government in a political pickle. In this, Byers is absolutely correct. Donald Trump will inevitably defend U.S. forces and is very likely to call into question the court’s legitimacy. But the Canadian government need not and should not see its options as going all-in with the ICC (and against the Trump administration) or all-in with the U.S. (and rally against the court).

Continue reading →

Posted in Afghanistan, Canada, International Criminal Court (ICC), International Criminal Justice, United States | 2 Comments