Meeting International Standards: Amnesty in the Colombian Peace Deal

Posted on October 14, 2016 by Mark Kersten

Josepha Close joins JiC for this post on the issue of amnesty in the peace agreement between the FARC and the Colombian government. Josepha PhD graduate from Middlesex University. Her research focuses on the status of amnesties granted for serious crimes under international law. She is also the author of the International Law Blog.

(Photo: AFP)

(Photo: AFP)

Colombia’s Final Accord for the Termination of the Conflict and the Construction of a Stable and Lasting Peace, signed on 26 August 2016, was hailed by the UN Secretary-General as ‘a bright flare of hope that illuminates the entire world’. Its rejection by Colombian voters in the referendum of October 2nd has been attributed in part to the view that it offers impunity to persons responsible for international crimes and serious human rights violations. This post considers the extent to which the peace agreement provides for an amnesty compatible with international law and human rights.

The Amnesty

Different types of amnesties have been endowed with different degrees of legitimacy under international law. While amnesty laws covering international crimes and serious human rights violations are generally considered to be contrary to international law, those applying to political crimes against the State, such as rebellion, are less controversial.

Article 6(5) of the Second Protocol to the Geneva Conventions prescribes that, at the end of non-international armed conflicts, the ‘broadest possible amnesty’ should be granted to persons having participated in the conflict. Accordingly, peace agreements concluding internal armed conflicts have often included an amnesty clause.

Over the last quarter-century, there has been a growing tendency to consider that amnesties extending to serious crimes are incompatible with international conventions requiring the prosecution of international crimes and the provision of redress to the victims of human rights violations. This trend has been driven by the UN, which has adopted a policy of rejection of amnesty for serious crimes in the late 1990s. International courts and human rights bodies have also considered that amnesties are generally incompatible with international law, though some of them have qualified their position in respect of amnesties forming a necessary part of a peace and reconciliation process.

The UN policy has had an impact on the practice of including amnesty clauses in peace agreements. According to my PhD research, while only a small proportion of peace agreement amnesties introduced in the 1990s excluded serious crimes, about a third of those issued since the turn of the 21st century have made such an exception.

The Colombian peace agreement is a case in point. It extends an amnesty for political and related crimes, such as rebellion, sedition, mutiny, the lawful killing of enemy combatants and the illegal possession of weapons. However, pursuant to international standards, this amnesty makes an exception for international crimes and serious human rights violations, including crimes against humanity, serious war crimes, torture, the taking of hostages, enforced disappearances, extrajudicial executions, sexual crimes, forced displacement and the recruitment of child soldiers.

The Alternative Sentence Scheme

The Colombian agreement thus explicitly excludes amnesty for perpetrators of serious crimes. However, subject to two main conditions, those perpetrators are eligible for an alternative sentence entailing reparative labour and some restrictions on their liberty of movement but no prison term. First, they must confess their crime and acknowledge responsibility for it. Second, they must devise an individual or collective reparation project covering a period of 5 to 8 years, which needs to be approved by a special tribunal. Offenders who refuse to submit to those conditions face terms of imprisonment of up to 20 years. Continue reading →

Posted in Amnesty, Colombia, Peace and Justice in Colombia Symposium | 4 Comments

The Great Escape? The Role of the International Criminal Court in the Colombian Peace Process.

Posted on October 13, 2016 by Mark Kersten

As our online symposium on peace and justice continues, Kirsten Ainley joins JiC for this contribution on the role that the ICC played in the Colombian peace process. Kirsten is an Assistant Professor of International Relations at the LSE and the Director of the Centre for International Studies. She researches the development and politics of international criminal law, transitional justice, human rights, and international ethics.

FARC troops patrol a roadway near to San Vicente de Caguan, in 1999. (Photo: Reuters)

FARC troops patrol a roadway near to San Vicente de Caguan, in 1999. (Photo: Reuters)

As the shock of the referendum result in Colombia dissipates, there is an inevitable search for culprits. How can it be that this opportunity to end a fifty-year civil war has been squandered? The guilty parties must be found – former President Alvaro Uribe, Human Rights Watch, or perhaps the weather? One of the actors which has long been criticised in terms of its effects on the prospects for peace and accountability in Colombia is the International Criminal Court (ICC). But to what extent can the ICC be held responsible for the fate of the peace process between the Colombian government and the FARC?

Before setting out the details of ICC’s role, it’s worth questioning whether the referendum result is a catastrophe. A ‘Yes’ vote seems, on the surface, to be the right result, and the Yes campaign was supported by the current government, the leaders of the FARC, a wide range of NGOs, regional governments, the US government (who seem willing to prop up the peace financially), the ICC Prosecutor and many of the Colombian electorate – particularly those in areas most affected by conflict. But peace may not be worth having at any price, and one doesn’t have to buy Uribe’s ‘fight to the death’ position to reject the current deal as going too easy on war criminals — on all sides of the conflict. If the Colombian electorate has really voted against the peace deal because a large proportion of it is dissatisfied with the accountability provisions contained therein, then this is a very significant moment, and a big challenge to some of the existing scholarship on peace and justice. Critics of international criminal law have tended to assume that populations will favour peace even at the cost of impunity, and that international actors (international courts and institutions, human rights NGOs and so on) are the ones who impose their own values that justice must be done no matter what the effects are upon peace processes. Yet many in the Colombian electorate seem to have voted to some extent in favour of accountability at the expense of peace. For all that observers might disagree with their views, it is not straightforwardly mistaken to have voted as they did.

What is the role of the ICC in all of this? For an institution which is expected to be staunchly principled – pursuing justice though the heavens may fall – it has been remarkably pragmatic when dealing with Colombia. The Colombian conflict was in the midst of its most violent period (1996-2002) when the Rome Statute was drafted. Paramilitary groups were carrying out massacres of civilians, thousands of people were assassinated and thousands more were kidnapped (mostly by FARC and the ELN) or disappeared. The FARC’s biggest military victories also took place during this period, and drawn-out peace talks failed. There existed significant evidence of a long list of probable war crimes and crimes against humanity, and a government that seemed unwilling and incapable of holding anyone to account for these crimes. Colombia was identified by Luis Moreno Ocampo, upon taking office, as one of three countries in which the gravest of crimes within the jurisdiction of the Rome Statute were being committed. However, because national proceedings of a fashion were underway in Colombia, the ICC’s Office of the Prosecutor (OTP) focused on Uganda and the Democratic Republic of Congo. Later, in June 2004, the OTP launched a preliminary examination into the situation in Colombia (an examination that was made public in 2006) and, in March 2005, the Prosecutor informed the government of Colombia that he had received information on alleged crimes in Colombia that could fall under the jurisdiction of the Rome Statute. However, an official investigation has never been initiated, despite the harms caused by the war continuing to increase: by 2013, the war has resulted in more than 220,000 deaths, around 80% of whom were civilians, and the displacement of more than 5 million people, making Colombia home to the world’s second largest population of internally displaced people (behind only Syria).

The ICC has been criticised both for doing too little, ie. for failing to progress from preliminary examination to investigation, and also for doing too much, that is, for interfering in the peace process. The truth is rather more prosaic: the OTP has done what it sensibly could, in the face of enormous challenges to Colombia and to the Court itself as a fledgling institution, to achieve its mandate. Its actions have contributed to the drafting of a peace agreement few would have predicted to be possible, and have also developed a model of how to use the threat of ICC action to help to support domestic justice initiatives. There is much to be learned from the ICC’s dealings with Colombia, and many of the lessons are about what the OTP got right. Continue reading →

Posted in Colombia, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Peace and Justice in Colombia Symposium, Peace Negotiations, Peace Processes, Preliminary Examinations | Tagged | 2 Comments

Peace with Justice in Colombia: Why the ICC isn’t the Guarantor

Posted on October 13, 2016 by Mark Kersten

Lesley-Ann Daniels joins JiC for this post on the role of the International Criminal Court in the ongoing struggle for peace in Colombia. Lesley-Ann is a post-doctoral researcher at the Barcelona Institute for International Studies (IBEI). Her doctoral thesis examined the effects of amnesty on civil wars termination and her research interests are civil war and post-conflict peacebuilding. This is the fourth piece in JiC’s ongoing symposium on peace and justice in Colombia. You can find links to all of the contributions here.

(Photo: ABC)

(Photo: ABC)

On 4 October, the people of Colombia voted on whether to support the peace agreement signed only a few weeks previously by President Santos and the FARC rebel group leader, known as Timochenko. The peace accord had the potential to end a conflict that has lasted 52 years and resulted in a quarter of a million dead and many millions displaced, and it earned President Santos the Nobel peace prize.

While a popular referendum on the accord was not necessary, Santos had been promising for many years to put any agreement to a popular vote, as a way to ensure buy-in and gain legitimacy for the agreement. In the end, it was the government who lost, with a paltry turn-out (37.41% of the voters) and a wafer-thin majority rejecting the agreement (50.2% against). In the midst of the anguish and soul-searching, some themes are emerging that try to explain the defeat. One is that old favourite of peace versus justice. Voters in Colombia did not feel that “criminals” should be rewarded with “injustice, money and political representation”.

The question that remains is why the idea that justice will be sacrificed for peace still has so much resonance in a world where the International Criminal Court (ICC) exists, and especially in a country that is a state party to the Rome Statute. Surely, with the ICC as the backstop of international criminal justice, voters should be sure that anyone guilty of war crimes, crimes against humanity or genocide will end up in court. Voters should have felt reassured that either the deal meets ICC requirements (in order to avoid a post-agreement ICC intervention) or that the deal did not meet ICC requirements, in which case they could rely on the ICC to intervene. Why was the threat of ICC action not enough to reassure voters that rebels would face justice, even if the government was prepared to make concessions?

If the ICC is going to work anywhere, it should work in Colombia. The country has a long-standing support for international norms. For example, Colombia jealously promotes its reputation for signing international treaties and following international norms – “we are not some pariah”. Also, Colombia has a strong track record of conforming with rulings against it at the Inter-American Court of Human Rights. This is important because the ICC has no independent enforcement powers and much of its effects are through moral traction.

Furthermore, the ICC has had its eye on Colombia for some time; the Office of the Prosecutor (OTP) opened a preliminary examination in 2004, which makes Colombia one of the earliest and longest-running cases at the court. A preliminary examination is the step before opening a formal investigation; however, a case need not move forward to that next stage. The OTP will not act if the crimes are being sufficiently investigated by national authorities, and the maintenance of an open preliminary examination has enabled the OTP to keep up this pressure on the Colombian government and justice system. Continue reading →

Posted in Colombia, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Peace and Justice in Colombia Symposium, Peace Negotiations, Peace Processes, Peacebuilding, Preliminary Examinations | Tagged | 2 Comments

Manipulating Truths: Media Coverage, Democracy, and the Colombian Referendum

Posted on October 12, 2016 by Mark Kersten

Carlos Fonseca Sánchez continues our ongoing symposium on peace and justice in Colombia after the referendum. Carlos is a researcher in international criminal law, humanitarian law and human rights law. Adv. LL.M graduate in Public International Law from Leiden University. He was previously a stand-by Defence Legal Intern in The Prosecutor v. Radovan Karadzic at the International Criminal Tribunal for the Former Yugoslavia.

A young "yes" campaigner. (Photo: Fernando Vergara / Associated Press)

A young “yes” campaigner. (Photo: Fernando Vergara / Associated Press)

“Do you support the Final Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace?”

On 2 October 2016, that was the question that 6,432,376 people in Colombia answered. In doing so, they voted, by a tiny margin, against the agreement between the Colombian government and the Colombian Armed Revolutionary Forces – People’s Army (FARC-EP). Did this amount of people have the intention to reject a peaceful solution to the Colombian 52 year-long armed conflict with Latin America’s oldest guerrilla group? Obviously not. The plebiscite did not ask Colombians whether they wanted a military solution to the armed conflict. In fact, when the current government sought its reelection, two years ago, the negotiated settlement became its rallying flag. In the end, the support of a coalition comprising the government and opposition parties (but not the one created by former president Alvaro Uribe who lead the ‘no’ campaign) and the goal of peace ensured the reelection of President Juan Manuel Santos. That day, 15 June 2014, more than 7.8 million people supported Santos and the peace process that had started two years earlier, incidentally more than a million than the turnout for the referendum.

Many of the headlines following the referendum stated that the Colombian people rejected peace and, logically, preferred war with the FARC-EP. Although the government and many supporters of the agreement argued that a renegotiation of the agreements wasn’t possible, today the cease-fire remains, and both those for and against the agreement have showed signs of calm. Both the Colombian and the international community were shocked by the result, especially with surveys pointing for a clear win for the “yes”. But the overall coverage of the peace negotiations, referendum and its results painted a sloppy, and inaccurate picture of realities on the ground.

Between Reality and Fiction

Although the international media and the international community’s support of the agreement was well-meaning, it failed to recognize the complexities of the agreement, the polarization of Colombian society and the disconnection many of the voters had with the plebiscite.

The 297 page-long peace agreement covered a multiplicity of issues such as a comprehensive rural reform, the political participation of the former combatants, the conditions for the final ceasefire and dereliction of weapons, the reincorporation of the former FARC combatants to civilian life, the creation of a multiplicity of bodies that would ensure the implementation of the agreement, provide protection to political minorities and prosecute the successors of paramilitaries. Perhaps the most polemic issue was the one related to the victims of the armed conflict. The agreement created what it called a “Comprehensive System of Truth, Justice, Reparation and Non-repetition” that integrated a Truth Commission, a Unit for the Search of Missing Persons, a Special Jurisdiction for Peace, Measures on Comprehensive Reparation, and Guarantees of Non-Repetition. The implementation of the agreement would require the creation of a separate judicial entity, the Special Jurisdiction for Peace, that would have the power to review all the prior judicial decisions related to the conflict.

Before the vote, the negotiators and the government constantly repeated that the agreement was imperfect, but that it was the best one possible. The final text of the agreement was released on 24 august 2016, merely one month before the plebiscite. Most of the voters wouldn’t have the time to carefully read the agreement.

Since most wouldn’t read the agreement, many relied upon the media and the opposing sides to communicate the advantages and disadvantages of the peace deal. Since the negotiations were private, people also couldn’t tell how the negotiations had proceeded or which proposals were incorporated, discarded or not even presented. The role of the media and the main political leaders was crucial. As has happened on previous occasions around the world, they presented a combination of lies mixed with reality. Continue reading →

Posted in Colombia, Guest Posts, Peace and Justice in Colombia Symposium, Peace Negotiations, Peace Processes, Transitional Justice | Tagged | 2 Comments

The Fallacy of Prescribing Peace and Justice for Colombia from a Washington Cubicle

Posted on October 12, 2016 by Mark Kersten

Derek Congram joins JiC, as our symposium on peace and justice in Colombia after the referendum continues. Derek is an anthropologist and archaeologist based at the Munk School of Global Affairs. He specializes in medico-legal, human rights, and humanitarian investigations and has worked at United Nations, International Criminal Court, International Committee of the Red Cross, among others.

A man places a flower on a Colombian flag (Photo: Luis Robayo / AFP)

A man places a flower on a Colombian flag (Photo: Luis Robayo / AFP)

In the run-up to the Colombian plebiscite on the peace deal between the government and the FARC, Ian Vásquez, of the CATO Institute published an opinion piece in a number of Latin American newspapers. He opened by citing a highly technical, acronym-heavy paragraph from the 297-page peace accord. He used this single, carefully-selected paragraph to argue that Colombians would never understand the accord and thus should vote against it. Vásquez, it seems, believes that ending a decades-old conflict can be accomplished with a Peace for Dummies manual, and one that makes no concessions to the FARC, the rebel group which has effectively governed (by force) swaths of Colombian territory for two generations. Vásquez cited critiques of the agreement made by Human Rights Watch and called the accord an embarrassment and a step backwards for Colombians.

Vásquez’s article was entitled: “Colombian Shame” (Vergüenza colombiana). How easy it must be to write from the presumably comfortable confines of a Washington, D.C. office in an organization that has assets of $70 million, and to urge Colombians to reject peace. By this, I do not mean to say that outsiders with certain experience and specialized knowledge have nothing to contribute to the debate. Instead, in doing so we have a professional and, I would say, moral obligation to speak in a clear and complete way on the subjects of our expertise and we should refrain from telling Colombians what they should or should not think or how they should or should not vote.

In his piece, Vásquez argued that, instead of supporting the agreement, Colombians should conform with “international practice” of justice and peace. If we consider “international practice”, as if it were a simple copy-paste formula, we might look to the former Yugoslavia. Is Vásquez suggesting that the UN Security Council create safe zones in Colombia (from which thousands might be taken, slaughtered and dumped in mass graves over the course of a few days), then finance a multi-billion-dollar ad hoc tribunal in Europe, unleash NATO planes to drop bombs across the country until the rebels relent and surrender unequivocally? And if they did so, would we have to wait 20 years for the main culprits to be captured, commit suicide, die of natural causes or be tried abroad while survivors clamoured for justice at home? In Vásquez’ defence, he didn’t say “best international practice”.

What Vázquez neglected to mention, however, is that Fatou Bensouda — the Chief Prosecutor of the International Criminal Court (as good a harbinger of international justice as I can think of) — acknowledged her support of the Colombian peace accord, noting that it excluded amnesties for war crimes and crimes against humanity, which other Latin American governments have relied on over the last few decades. Bensouda also stated that the agreement was in line with the Rome Statute of the ICC and that it gave victims a central place in the pursuit of post-conflict justice. Continue reading →

Posted in Colombia, Guest Posts, Peace and Justice in Colombia Symposium, Peace Negotiations, Peace Processes | 2 Comments

The Way Forward: What the ‘No’ Vote Means for Peace in Colombia

Posted on October 11, 2016 by Mark Kersten

Sophie Haspeslagh joins JiC for this first installment in our symposium on Peace and Justice in Colombia. Sophie is conducting research the engagement of armed groups and the effects of proscription on peace processes at the London School of Economics and Political Science. She has been working on Colombia as a researcher and peace practitioner for over a decade with the International Crisis Group, ABColombia and Conciliation Resources. Sophie has previously published at JiC on the importance of finding balance on transitional justice in Colombia.

An indigenous woman votes in the referendum to determine whether the peace deal between the government and the FARC would be adopted. (Photo: Reuters)

An indigenous woman votes in the referendum to determine whether the peace deal between the government and the FARC would be adopted. (Photo: Reuters)

On October 2nd, the peace deal in Colombia was rejected by a narrow margin, throwing the peace process between the Colombian government and the FARC (Fuerzas Armadas Revolucionarias de Colombia) off the rails. To comprehend what this could mean for the future of the peace process we first have to understand where this ‘No’ vote came from.

The Geography of the ‘No’ Vote

This result took everyone by surprise. But looking at the geography of the vote, it is clear that those who voted against it live in the inland regions of Colombia that are more densely populated and have not been directly affected by FARC-related violence in recent years. People in the regions most affected by the conflict, in the peripheries of Colombia, voted overwhelmingly in favour of the deal. In the town of Bojayá, where more than a hundred people were killed by a FARC mortar bomb against a church, 96 per cent of residents voted for the peace deal. The victims of the conflict, and specifically of FARC violence, were much more open to compromise than those who have just followed it remotely from their TV screens and have less to lose if the war keeps raging.

Polarisation and Responsibility

The leading figure of the ‘No’ campaign, ex-President Álvaro Uribe, focused his presidency on defeating the FARC militarily and framing the war as a fight against terrorists. This framing allowed for a simplification of how the Colombian conflict is understood, labelling the FARC as the only threat and perpetrator of violence. Uribe succeeded in his endeavour, digging a deep breach in Colombian society, increasing polarisation and making the FARC hugely unpopular.

Of course, the FARC is responsible for its own undoing. It is abhorred by a majority of Colombians for becoming involved in the drugs trade and committing human rights violations such as attacks against civilians and infrastructure, the use of landmines, and kidnapping. But the part of the story that is often left untold is that they are only responsible for a minority of the killings in the Colombian conflict. The majority of the 220,000 victims who lost their lives were killed by paramilitary groups, often aligned with state security forces.

In the context of this heightened rhetoric, the two main complaints of the ‘No’ camp are what they see as judicial leniency towards the FARC in the deal – particularly the absence of jail terms – and allowing the FARC to participate in politics. But these two points – restorative rather than punitive justice and the FARC’s future participation in politics – are the backbone of the agreement, so how can Colombians now square the circle?

What’s next for peace? The Pessimist’s Perspective

The agreement signed in Cartagena between President Juan Manuel Santos and the FARC is a good agreement. It was carefully crafted over a period of four years with much innovation and had already been widely hailed as an example of successful conflict resolution. It succeeded in breaking a number of deadlocks and is the expression of deep compromises on both sides that were hardly imaginable just a few years back. It is hard to see how the FARC would now accept backtracking on the assurances they have received, particularly on guarantees that they would not be jailed. In fact, a number of FARC leaders have taken to social media to say that the signed agreement can no longer be modified. Continue reading →

Posted in "Peace versus Justice" Debate, Colombia, Guest Posts, Peace and Justice in Colombia Symposium, Peace Negotiations, Peace Processes | Tagged | 2 Comments

Peace and Justice in Colombia – A JiC Symposium

Posted on October 10, 2016 by Mark Kersten
Peace and Justice in Colombia - A JiC Symposium

Peace and Justice in Colombia – A JiC Symposium

Earlier this month, Colombians voted in a referendum, one whose results captured the globe’s imagination. The reason for the intrigue was simple: after years of negotiations, the people of Colombia were voting to decide whether a peace deal between the government of Colombia and the rebel FARC group would be implemented. The outcome shocked many. Only a third of eligible voters cast a ballot. And just a hair over fifty percent of those who voted — citizens mostly located in areas downstream of the five decades-long conflict — rejected the peace agreement. The proponents of the peace deal, on both the government and rebel side, insisted this was just a hurdle; they would double-down to find a peaceful solution to the conflict. But a common refrain in the days since the Colombian referendum has been that the agreement was too lenient towards those accused of mass atrocities and human rights violations. Colombians want peace. They also want justice. But what is the appropriate mix?

Over the next few days, JiC will host a number of articles from scholars and researchers of Colombia and transitional justice. The pieces will explore numerous questions, including:

Why did Colombians reject the peace deal between the FARC and the government?

What role did accountability play in shaping the peace agreement?

What kind of justice are the people of Colombia seeking?

What impact did the preliminary investigation by the International Criminal Court (ICC) have on the peace process?

What is the future of the peace process — can it be rescued?

We have a fantastic — and still growing — cast of contributors to this mini-symposium. We hope that you, as readers, find it both interesting and engaging.

Here are the contributions to date:

The Way Forward: What the ‘No’ Vote Means for Peace in Colombia, by Sophie Haspeslagh

The Fallacy of Prescribing Peace and Justice for Colombia from a Washington Cubicle, by Derek Congram

Manipulating Truths: Media Coverage, Democracy, and the Colombian Referendum, by Carlos Fonseca Sánchez

Peace with Justice in Colombia: Why the ICC isn’t the Guarantor, by Lesley-Ann Daniels

The Great Escape? The Role of the International Criminal Court in the Colombian Peace Process, by Kirsten Ainley

Meeting International Standards: Amnesty in the Colombian Peace Deal, by Josepha Close

Peace and Justice in Colombia – I Fought the Law and the Law Won,  by Mark Drumbl

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

Posted in Colombia, International Criminal Court (ICC), Peace Negotiations, Peace Processes | 4 Comments

Referring Kenya to the ICC Assembly of States Parties, Part 3: Implications for the Ongoing Kenya Cases at the ICC

Posted on October 6, 2016 by Mark Kersten

This following is the third post in a three-part series in which Thomas Obel Hansen explores the recent referral of Kenya to the International Criminal Court’s Assembly of States Parties. The referral followed a finding by ICC Judges that the government of Kenya failed to cooperate in the case against President Uhuru Kenyatta. The previous two installations in this series can be found here and here.

Walter Barasa is among those charged by the ICC with interfering with witnesses in the case against Uhuru Kenyatta (Photo: Standard Media)

Walter Barasa is among those charged by the ICC with interfering with witnesses in the case against Uhuru Kenyatta (Photo: Standard Media)

Following the two previous posts on the recent decision of ICC judges to refer the Government of Kenya to the Assembly of State Parties (ASP) for its failure to comply with its obligations under the Rome Statute in the Kenyatta case, this final comment addresses the implications the decision may have for the ongoing cases involving witness corruption and obstruction of justice that have been brought in the Kenyan situation.

The second post in this series concluded that, other than re-opening the debate of what went wrong in the Kenyan ICC cases, the Trial Chamber’s referral of Kenya to the ASP is unlikely to result in Kenya being seriously sanctioned for its failure to comply with the ICC’s Rome Statute. Therefore, in by itself, the Court’s decision is unlikely to make Nairobi fundamentally change its policy towards the ICC. However, this conclusion may be subject to an important qualification, namely that Kenya will likely take seriously the referral’s potential impact on the cases relating to corruptly influencing ICC witnesses in the Kenyan situation. The cases, involving three Kenyan nationals, Walter Barasa, Paul Gicheru and Kipkoech Bett, are based on allegations that their crimes were part of a broader and systematic scheme aimed at bribing Prosecution witnesses to change or recant their testimony.

Kenyan officials have earlier indicated that they are not willing to hand over Barasa, Gicheru and Kipkoech to the ICC. In April this year, Kenya’s Attorney General, Githu Muigai, stated that it is the government’s “position that the charges against the three suspects are for crimes that fall within Kenya’s normal criminal justice jurisdiction and can thus be effectively prosecuted and adjudicated domestically.” Around the same time, President Kenyatta made similar comments, though in less explicit terms, noting: “We have our own courts, we will sort out our own issues. I don’t want to see any Kenyan going out there again, we are not going back there…that chapter is closed…”.

ICC spokesperson, Fadi El Abdallah, responded soon after that the Court “is aware of the news reporting an alleged statement by the President of Kenya declaring that Kenya will not cooperate with the ICC in the future with relation to the implementation of three pending arrest warrants for Mr Barasa, Mr Gicheru and Mr Bett.” He also noted that the Court had not received any official information from the Kenyan government indicating its intention to stop cooperating in these cases, but it had also not received any challenge to the admissibility of the cases, which would be necessary if Kenya was to “take over” prosecution of the three suspects.

Little information is available concerning measures taken by the ICC since then to facilitate handing these suspects over to the Court, although Chief Prosecutor Bensouda stated in a June 2016 interview that she continues “to urge the Kenyan authorities to surrender these individuals to the ICC for trial”. Continue reading →

Posted in Assembly of States Parties, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , | 6 Comments

A Turn to the “Symbolic” at the International Criminal Court

Posted on October 5, 2016 by Mark Kersten
People in the Ituri district of the Democratic Republic of Congo watch proceedings against Thomas Dyilo Lubanga, the first individual put on trial at the International Criminal Court (Photo: Marcus Bleasdale/VII/HRW)

People in the Ituri district of the Democratic Republic of Congo watch proceedings against Thomas Dyilo Lubanga, the first individual put on trial at the International Criminal Court (Photo: Marcus Bleasdale/VII/HRW)

You don’t have to be a critic of the International Criminal Court (ICC) to accept that its first fifteen years have been rough. The institution’s ability to deliver on its mandate of ending impunity for war crimes, crimes against humanity, and genocide hasn’t gone according to plan. Not even close. Now, it seems, the Court is trying a different tack.

Some blame the ICC’s limitations on the system of global politics, others on the Court and its staff. Some see the ICC’s deficiencies as growing pains to overcome, others as an signal to ditch the whole project altogether. Some want to throw out the bathwater, but hold onto the baby. Others would happily ditch both. But whatever side you’re on, it is undeniable that the Court’s achievements, impressive as some of them may be, are modest in comparison to the lofty expectations that its brand of international criminal justice would prevent and deter mass atrocities. Given this reality, the ICC is under intense pressure to remain a pertinent player on the international stage. It shouldn’t be surprising that, in order to do so, it is shifting strategies.

What many critics of the ICC get wrong is their assumption that the individuals who make up the Court, at the highest levels, are oblivious to the institution’s shortcomings. Rightly or wrongly, ICC staff won’t transparently publicly communicate the tribunal’s failures (although, if you’re willing to listen, they’ll often imply them). But it isn’t as if the collapse of all of the Kenya cases or the continued freedom of the likes of Sudanese President Omar al-Bashir or Joseph Kony of the Lord’s Resistance Army, somehow flies over their heads. They hear — and surely feel — the criticism that the Court is one-sided and too dependent on political power. They understand that they are at once seen as leading an institution that runs roughshod on state sovereignty and intervenes too forcefully as well as being too delicate and intervening too infrequently.

This isn’t to defend the institution, but it is to say that it’s not a great hall of deaf ears. Indeed, the internalization of criticisms and shortcomings seems to have affected how the ICC views implementing its mandate. What else can you do when your record on the hardest, yet most important cases, is dreadfully poor but there aren’t any obvious signs that it will improve in the future? Continue reading →

Posted in Child Soldiers, Cultural Crimes, Environment, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | 1 Comment

Referring Kenya to the ICC Assembly of States Parties, Part 2: Implications for Cooperation and Enforcement

Posted on October 4, 2016 by Mark Kersten

This is the second post in a three-part series in which Thomas Obel Hansen explores the recent referral of Kenya to the International Criminal Court’s Assembly of States Parties. The referral followed a finding by ICC Judges that the government of Kenya failed to cooperate in the case against President Uhuru Kenyatta. The previous post can be found here.

Dozens of Kenyan delegates attended last year's Assembly of States Parties (Photo: Courtesy)

Dozens of Kenyan delegates attended last year’s Assembly of States Parties (Photo: Courtesy)

On 19 September 2016, Judges at the International Criminal Court (ICC) referred the Government of Kenya to the Assembly of State Parties (ASP) for its failure to comply with its obligations under the Rome Statute in the Kenyatta case. Following from on my first piece in this three-part commentary, this post discusses the judge’s decision from the perspective of the ICC’s cooperation and enforcement regimes.

The Trial Chamber’s decision follows an extremely lengthy legal process, which not only raises questions about the Court’s efficiency but also whether ICC Chambers should time their decisions in ways to limit controversy with State Parties even if this is to the detriment of the ICC’s cooperation regime.

To briefly summarize: almost three years ago, in November 2013, the Prosecutor filed a petition that the Trial Chamber make a finding of non-compliance under article 87(7) of the Rome Statute against Kenya on the grounds that the Kenyan government did not comply with the Prosecutor’s April 2012 request concerning the provision of evidence. Next, in December 2014, the Trial Chamber decided not to refer Kenya to the ASP, notwithstanding its finding that the conduct of Kenya had “reached the threshold of non-compliance”. In particular, judges held that Kenya had provide none of the requested material with respect to company, land transfer and telephone records. Following the Prosecutor’s appeal of the decision not to refer Kenya to the ASP, in August 2015 the Appeals Chamber decided to reverse the Trial Chamber’s decision and required that it make a fresh determination of the matter on the basis that it had erred in the exercise of its discretion. It took the Trial Chamber more than a year to act on that and to deliver its final decision.

This raises questions concerning the extent to which the Chambers have actually been committed to addressing Kenya’s failure to cooperate with the Court. The last submissions by the parties on the issue were filed in October 2015, and there were no significant legal or factual issues to resolve: The Trial Chamber simply needed to apply the standards set forth by the Appeals Chamber to the factual findings it had already made in its initial decision (tellingly, the Trial Chamber’s 19 September 2016 decision comprises only 18 pages, at least half of which are devoted to a summary of the proceedings and the parties’ submissions). The most obvious conclusion is, therefore, that the Trial Chamber was seeking to limit the controversy an ASP referral of Kenya would create by delivering its decision at a point where there was less attention on the Kenyan ICC cases (and the conduct of the parties).

The timing of the decision may also reflect a broader weariness within the ICC of dealing with anything relating to the Kenyan situation following the embarrassment connected to all of the PEV-related cases collapsing. It could also by symptomatic of a conflict between the Chambers within the Court concerning whom should take responsibility for making “hard decisions”. The Trial Chamber’s legal reasoning for initially not referring Kenya to the ASP, despite its findings on the lack of cooperation, was, at best, dubious. It created a hereto unknown distinction between “formal” and “informal” judicial findings, which the Appeals Chamber called “inappropriate”. In the view of some commentators this was primarily aimed at avoiding referring Kenya to the ASP despite its lack of cooperation. Once before it, the Appeals Chamber could have made the decision itself to refer Kenya to the ASP, rather than deferring the issue back to the Trial Chamber on the grounds that it is “better placed to identify and assess the relevant facts and circumstances” of the case and whether “engaging external actors under article 87 (7) of the Statute would be an effective measure to foster cooperation” when in fact the Trial Chamber had already set out in detail the areas where Kenya had failed to comply with its orders and its reasons for not referring it to the ASP. Continue reading →

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