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

The Clock is Ticking – Keeping South Africa in the ICC is a Tall, but Not Impossible, Order

Posted on November 25, 2016 by Mark Kersten
(Photo: Mark Kersten)

(Photo: Mark Kersten)

The clock is ticking. In just about eleven months, South Africa will officially withdraw from the International Criminal Court (ICC). Here at the Assembly of States Parties (ASP), though, the overall feeling is optimistic. Many participants, especially those representing civil society and human rights organizations, seem convinced that South Africa will consider withdrawing its ICC withdrawal. There is little doubt that the country has sent some signals it will remain engaged with the Court. The country’s delegation was led by Justice Minister Michael Masutha — itself an important indication that the government remains serious about its engagement with the ICC. Masutha also had a highly publicized meeting with ICC President Silvia Fernández de Gurmendi and declared to the country delegations present here in The Hague that South Africa would continue to work with the Court and push to improve the institution. There may indeed be a crack in the wall of South Africa’s commitment to withdrawing from the ICC. But proponents of the ICC and, in particular, ICC member-states need to realize that, right now, nothing has yet been achieved. The clock is still ticking.

Much has been said at the ASP about the need for continued ‘dialogue’. Indeed, the word ‘dialogue’ seems to be the theme of this conference, despite the fact that it should really be the theme of all ASP meetings. Still, when it comes to South Africa, while continued and respectful dialogue is essential, what is needed now is a period of bargaining and negotiations. As time runs down on South Africa’s withdrawal, we have entered a period of conflict resolution. A number of important issues should be considered in this context.

First, there is a need to recognize that addressing South Africa’s withdrawal will require both political and legal responses and considerations. Those hoping — and pushing — for South Africa to reconsider its ICC exit must understand what they are asking the government to do: a very significant political flip-flop. That is not easy for any government and will require a narrative that allows the South African government not just to save face but to show that they ‘won’ their case at the ICC. Right now, it isn’t clear whether this is possible, but it is evident that without such a story-line, the African National Congress (ANC) government of Jacob Zuma is unlikely to budge.

Of course, some are trying to re-set the clock. There is ongoing domestic litigation aimed at getting South Africa’s Constitutional Court to fule that the executive order issued by Zuma to withdraw South Africa from the ICC was unconstitutional because the government did not consult Parliament. To be clear, all civil society actors should be supported in their right to challenge the government’s actions — especially when they threaten South African rule of law. However, part of the litigation effort has been led by the Democratic Alliance — the ANC’s primary political opposition. This complicates matters for the government. If they are to rescind their withdrawal — either temporarily or permanently — they now most ‘lose’ to the Democratic Alliance and not just to the country’s courts and civil society. In other words, the Democratic Alliance’s direct involvement risks raising the costs of the government conceding and remaining a member-state.

So what can be done? Here are three proposals which, I believe, should at the very least be on the table. None are full-proof — there is no perfect way out of this. But assuming that states and the ICC want South Africa to remain a member of the Court, here are three options that could be explored. Continue reading →

Posted in Africa, Assembly of States Parties, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, South Africa | 3 Comments

‘We Stay. We Respond’ – A Speech on Africa and the International Criminal Court

Posted on November 21, 2016 by Mark Kersten

The following is a speech delivered by Njonjo Mue to the plenary session of the Assembly of States Parties of the International Criminal Court. Njonjo is a human rights lawyer and transitional justice expert. He is currently a Senior Advisor to Kenyans for Peace with Truth and Justice (KPTJ) and serves as the Chair of the Kenyan Section of the International Commission of Jurists.

(Photo: K. Tjart / The Hague Institute for Global Justice)

(Photo: K. Tjart / The Hague Institute for Global Justice)

Mr. President, distinguished delegates, ladies and gentlemen:

When I received news of South Africa’s intention to withdraw from the Rome Statute, like all other people who have dedicated their lives to the fight for human dignity and accountability around the world, I was deeply saddened.

I also remembered an incident that occurred during the negotiations that led to majority rule in South Africa, held at Kempton Park, Johannesburg. The then State President F.W. De Klerk had made some remarks that greatly offended Nelson Mandela. In fact, I have never seen Mandela so angry in public. But what was Mandela’s response to De Klerk? He did not storm out of the hall; he stood and walked majestically to the podium and confronted De Klerk firmly and honestly. That is the African way: We do not withdraw and walk away; we stay and we respond.

Mr. President, there have been long-running allegations that the International Criminal Court targets Africa. These allegations have often been met by recounting statistical evidence to the contrary, by recalling that most of the African cases at the ICC were referred to the Court by African states themselves. But I would like to respond here by giving another statistic. As of August 2016, there were 16 UN Peacekeeping Missions around the world. 9 of these are in Africa. This comprises 56% of all missions. We know that Africa does not make up 56% of the global population, but I have never heard anyone claiming that the UN is targeting Africa. Could it be that the like the UN, the ICC is most active where it is most needed?

We all know from recent history that the need for post-conflict justice is self-evident. Where there is no accountability, where warlords fighting for power know that they will not be held to account, there is no motivation to end conflict. And if there is a pause in the fighting, without justice, the ensuing peace is ever only temporary. This was amply demonstrated in Sierra Leone where the Lomé Peace Agreement of July 1999 included a blanket amnesty for combatants. It was just a matter of time before fighting resumed. When accountability was introduced into the equation through the establishment of the Special Court for Sierra Leone, sustainable peace was assured and continues to hold to this day.

Part of the grievance by African states against the ICC flows from a deeper pathology of governance in Africa where what is regarded as bad for the leader of a particular country is automatically assumed to be bad for the entire state. It also flows from a narrow and outdated definition of sovereignty that dictates that states should be left to mind their own business no matter how the decide to do so. But sovereignty is not a blank cheque nor can sovereignty mean that African states – whether governments or warlords – should be free to brutalise, murder, rape and loot from their own people in pursuit of power and resources without consequence.

The AU political leadership regularly complains about the role of the ICC in Africa. But these conversations are held behind closed doors in Addis Ababa and in other African capitals. Spaces where civil society and the press, let alone ordinary citizens, have to struggle to gain access. The tone of the communiqués that are issued after the AU summits make it clear that the leaders are speaking from their own perspectives. But who speaks for the victims?

The ICC is our court, created through the demand and with overwhelming support of African states, governments and civil society alike, to try to overcome their own legacies of massive human rights violations, including apartheid, genocide and multiple civil conflicts. It is time to tell those who complain that the Court is targeting Africa that the true position is that it is rather African victims who are accessing their Court in pursuit of justice. This is especially true when we remember that the ICC is a court of last resort which only intervenes where states are either unwilling or unable to investigate and prosecute serious crimes according to the principle of complementarity. There is a simple answer to African states that feel ‘targeted’ by the ICC to address the situation: Prosecute atrocity crimes occurring in your territories or committed by your nationals and deliver justice to the victims at home.

But this said, ICC is not a perfect institution. We should also remember that the Court is a small island of law that exists in a vast sea of politics. And as with all islands, sometimes the tide rises and the storms blow and the waves of politics come crashing onto the shores of the law and this clearly presents some challenges. There are three notable examples this:

First is the role of UN Security Council in referring cases to the ICC and deferring ongoing cases. 3 of the 5 permanent members of the Security Council are not members of the Rome Statute and yet they have the power under the Rome Statute to refer other states, including non-members, to the ICC as they have done with Sudan and Libya. This is clearly problematic. The situation is exacerbated by the fact some members of the Security Council have used their veto power to prevent serious crimes taking place in countries such as Syria from being investigated by the ICC. This blatant display of double standards that sacrifices the demand for justice at the altar of geo-strategic interests of the great powers can only hurt the global fight against impunity. Continue reading →

Posted in Africa, Assembly of States Parties, Guest Posts, International Criminal Court (ICC), International Criminal Justice | Tagged | Leave a comment

Whatever Happens, the ICC’s Investigation into US Torture in Afghanistan is a Win for the Court

Posted on November 17, 2016 by Mark Kersten
An American military guard looks over detainee cells at a detention facility near Bagram Air Field.(Photo: Dar Yasin / AP)

An American military guard looks over detainee cells at a detention facility near Bagram Air Field.(Photo: Dar Yasin / AP)

It was predicted when the US Senate released its so-called ‘Torture Report’. A few weeks ago, it was reported to be true. And now the Office of the Prosecutor of the International Criminal Court (ICC) has confirmed it. A decision to request an official investigation into war crimes committed in Afghanistan is “imminent”. What this means is that the ICC will finally investigate atrocities committed by the Taliban and Afghan forces. It also, and most remarkably, means the ICC will investigate crimes committed by American forces — particularly allegations of widespread torture against detainees. The momentous nature of this development is worth appreciating. In the history of international justice, never has an international criminal tribunal confronted the alleged crimes of the United States.

There are understandable fears that investigating alleged US war crimes in Afghanistan could end up undermining the ICC, particularly if the incoming administration of Donald Trump adopts malicious and antagonistic policies towards the Court. But here are three possible outcomes (in order of least-to-most likely) of the ICC’s investigation and reasons why they could each be ‘wins’ for the Court.

Outcome 1: The United States Prosecutes Perpetrators of Torture Itself

This would be the best case scenario for the ICC. For years, prosecutors at the Court have signaled to US lawmakers that they could open an investigation into Afghanistan which included US conduct. There has been an ongoing back-and-forth between American and ICC officials on the possibility of opening an investigation. The hope of prosecutors was that this would push US authorities to investigate and prosecute the senior-most perpetrators of these crimes themselves. However, the lack of any meaningful domestic justice and accountability for alleged US-perpetrated torture in Afghanistan forced the ICC’s hand. After including “enhanced interrogations techniques” in their preliminary examination reports, the Court set itself on a path that could only end with two outcomes: 1) the US took the signal seriously and prosecuted senior perpetrators itself; or 2) the ICC would open an investigation. With nothing forthcoming on the former option, the latter was inevitable.

It seems unlikely, although not impossible, that the decision to open an investigation would push the US to finally take accountability for its crimes in Afghanistan seriously. But if the US miraculously decided to do so, it would be a huge win for the ICC and its policy of pursuing “positive complementarity” — the belief that the Court has a role in encouraging and galvanizing domestic justice and accountability for international crimes.

Outcome 2: The ICC Manages to Prosecute American Perpetrators of Torture in The Hague

This is the least likely scenario. The prospect of ever seeing Dick Cheney, Donald Rumsfeld, or John Yoo facing judges in The Hague is virtually non-existent. It is unthinkable that the US or a third-party country would arrest senior American officials and surrender them to The Hague. Moreover, the US retains an archaic law (often referred to as “The Hague Invasion Act”, but actually called the American Servicemembers’ Protection Act) which grants the US President executive authority to use “all necessary measures” to repatriate any American citizen surrendered to the ICC. You can’t make this up: the President is authorized to order an invasion of The Netherlands if any US nationals ended up facing prosecution in The Hague. Further, the US judicial system would never allow itself to be characterized by the media or ICC proponents as “unable and unwilling” to genuinely investigate and prosecute crimes perpetrated by American citizens. Option one — prosecuting them domestically — is vastly more likely. Continue reading →

Posted in Afghanistan, International Criminal Court (ICC), International Criminal Justice, Preliminary Examinations, Torture, United States | 9 Comments