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 →

Posted in Assembly of States Parties, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , | 4 Comments

Referring Kenya to the ICC Assembly of States Parties, Part 1: A Battle for the Narrative

Posted on October 3, 2016 by Mark Kersten

Last month, Judges at the International Criminal Court (ICC) ruled that the government of Kenya had violated its obligations to cooperate with the ICC in the case against Kenyan President Uhuru Kenyatta. In doing so, the Judges referred the issue of Kenya’s non-cooperation to the Assembly of State Parties, a body of ICC member-state representatives that acts as a legislature for the Court, and which congregates yearly to discuss ongoing issues and challenges facing the institution. Over the next few days, JiC will feature three posts from Thomas Obel Hansen on this impact and implications of this decision. Thomas is a lecturer at Ulster University’s School of Law and a member of the Transitional Justice Institute.

Kenyan President Uhuru Kenyatta attends hearings at the International Criminal Court in October 2014 (Photo: ICC Flickr)

Kenyan President Uhuru Kenyatta attends hearings at the International Criminal Court in October 2014 (Photo: ICC Flickr)

On 19 September 2016, Judges at the International Criminal Court (ICC) referred the Government of Kenya to the Assembly of State Parties (ASP) for what it determined was Kenya’s failure to comply with its obligations to cooperate with the Court in the case against Kenyan President Uhuru Kenyatta. This represents the first time that the ICC has referred a State Party to the Rome Statute to the ASP for failing to cooperate with the Court with respect to a case involving crimes allegedly committed by its own nationals. The decision raises a number of important questions concerning how the Court addresses non-cooperation in practice as well as ongoing ICC-Kenya relations.

This first piece, in a series of three comments on the implications of the ICC decision, looks at what the ruling may mean for the narrative of the Kenyan ICC cases.

Since ICC Prosecutor Bensouda withdrew the charges against Kenyatta in December 2014, the parties to the proceedings have been pre-occupied with the question of whom is to blame for the fact that accountability processes for the 2007-08 post-election violence in Kenya have produced no justice. The Prosecutor has claimed that the case against Kenyatta (as well as cases against other suspects in the Kenyan situation) collapsed, in large part, due to interference with witnesses, because Kenya has obstructed the Court’s cases, and because the government failed to live up to its obligation to cooperate with the Court, including providing prosecutors with requested evidence. Kenya has continuously contradicted this narrative, arguing that the cases could not be taken forward because they were poorly investigated and, ultimately, because the accused were innocent. At the same time, government officials, including President Kenyatta himself, have maintained that Kenya has “cooperated fully” with the ICC throughout the process.

Although the Trial Chamber had previously concluded that Kenya had failed to fully fulfil its obligation under the Statute to provide requested information, it initially refused to act on the Prosecutor’s request to refer the Kenya to the ASP, in part justifying this decision by pointing to the Prosecutor’s own problematic conduct. However, with the Trial Chamber’s most recent decision – which is based on the Appeals Chamber’s guidance, including its observation that the Trial Chamber had evaluated the conduct of the Prosecutor in an “inconsistent manner” – it has been formally established that Kenya failed to perform its obligations to cooperate in this case in a manner serious enough to warrant action by the governing political body of the ICC, the ASP. Although, as Mark has pointed out earlier, neither the narratives proposed by the Prosecutor nor Kenya reflect the ‘whole truth’ as to why all the post-election violence related ICC cases have collapsed, the referral of Kenya to the ASP presents a significant blow to Kenya’s argument that it has fully cooperated with the Court — and therefore that it is the ICC’s fault that its cases collapsed. Continue reading →

Posted in Assembly of States Parties, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , | 4 Comments

Prosecuting War Crimes in Syria: Many Tribulations, But No Trials (Yet)

Posted on September 30, 2016 by Mark Kersten

This article was originally published as a contribution to Cicero Magazine. You can find the original article here.

Citizens of Aleppo salvage goods from an aid convoy that had recently been bombed. (Photo: Reuters)

Citizens of Aleppo salvage goods from an aid convoy that had recently been bombed. (Photo: Reuters)

What the United States called Russia’s “barbarism” in Syria, the United Kingdom referred to as Moscow’s “war crimes”. Russia responded by stating that either characterization was “unacceptable”. And so it continues.

Half a decade after the war erupted in Syria, years after a “red line” was drawn in an attempt to prevent indiscriminate violence against civilians, and just a week after yet another failed ceasefire, developments in Syria are just as shocking as they are eerily familiar: hundreds of civilians dead, Aleppo under siege, access to humanitarian aid languishing, and no prospect for accountability for the endless litany of atrocities on offer. But this has not stopped a group of private war crimes investigators from working tirelessly, and mostly thanklessly, to ensure that when the time comes for justice to be meted, the evidence will be ready.

If there is anything approximating a system of international justice, it has consistently failed the people of Syria. As a proponent of international justice and human rights, this is a difficult conclusion to make — but an obvious one nonetheless. To the frustration of many, it is hard to know where to apportion blame for this failure. The International Criminal Court (ICC), set up in 2002 to end global impunity, does not have jurisdiction over Syrian territory. It could investigate citizens of states that are members of the Court — such as the UK, Jordan, Tunisia and Georgia — and who fight for the Islamic State or other rebel forces. But it has said that those it might target aren’t sufficiently senior perpetrators to warrant prosecution. The United Nations Security Council has consistently failed to put in motion any accountability mechanism to deal with the carnage in Syria. Despite its current bravado, the United States initially expressed no interested in referring Syria to the ICC, with then-Secretary of State Hillary Clinton stating that prosecuting the likes of Syrian President Bashar al-Assad would be unhelpful to the cause of peace. When it finally came on board and lent its support to an ICC intervention in Syria, a Security Council resolution that would have referred the situation to the Court was met by a rare double-veto by China and Russia. Against this background, there has been much chatter over an alternative court, perhaps some form of ad hoc or hybrid tribunal, being set up to investigate and prosecute crimes on the ground. Maybe we will see such a tribunal established. But as it stands, talk of an alternative tribunal remains just that: talk.

This sad story does not mean, however, that there is no action being taken to ensure that justice and accountability for the onslaught of humanitarian horrors in Syria can one day be achieved. For the past few years, the Commission for International Justice and Accountability (CIJA) has used a network of on-the-ground investigators to collect evidence of international crimes in Syria. The CIJA, a private NGO staffed and advised by former investigators from major international tribunals, receives funding from states to collect this evidence and store it in Europe. The hope is that someone, someday, can use it to prosecute perpetrators in Syria.

It is worthwhile taking a step back and recognizing how very novel the idea of using a private organization to investigate war crimes is. Indeed, the out-of-the-box thinking that drives CIJA makes some justice advocates, particularly those focused on human rights documentation, uncomfortable. The reality is that those working in Syria to collect evidence are consistently putting their lives at risk for what continues to be an abstract goal which may, or may not, transpire: justice. Moreover, groups like the CIJA must rely on one set of ‘bad guys’ to ensure they have access to collect evidence. This reliance on nefarious actors, a dependency on power shared by ICC investigators, means that the CIJA has tailored its investigations to focus on state-perpetrated crimes, rather than those atrocities committed by the network or opposition and rebel forces. The CIJA doesn’t run away from these inconvenient truths. It understands and acknowledges them as a valid criticisms of its work. It also understands that it represents a necessary evil. In an ideal world, the international community would find a way to support the ICC or some other tribunal in order to effectively investigate and prosecute crimes being committed in Syria. That world simply does not exist. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, Syria, Yazidi Genocide | 2 Comments

Is the ICC Reconsidering its Policy on the “Interests of Justice”?

Posted on September 29, 2016 by Barrie Sander

(Photo: Still Burning)

Two weeks ago, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) published the final version of its much-anticipated Policy Paper on Case Selection and Prioritisation (“Policy Paper”). To date, reflections on the Policy Paper have focused almost exclusively on the OTP’s stated intention to give “particular consideration” to prosecuting international crimes committed by means of environmental destruction, the illegal exploitation of natural resources, or the illegal dispossession of land. Without diminishing the significance of that announcement, this post is concerned not with what the Policy Paper says, but with what it omits.

In its discussion of the legal criteria that the OTP is required to consider when selecting cases, the Policy Paper confirms that the OTP will only select cases for investigation and prosecution when they would not be contrary to the “interests of justice”. This reference to the “interests of justice” is uncontroversial in and of itself, particularly as it is expressly listed as a factor to be take into consideration within the ICC’s Rome Statute.

Continue reading →

Posted in "Peace versus Justice" Debate, Colombia, ICC Prosecutor, International Criminal Court (ICC), Peace Negotiations, Peace Processes | Tagged , , | Leave a comment

That Time the Bush Administration (Probably) Kiboshed Iraq’s ICC Membership

Posted on September 26, 2016 by Mark Kersten
An ISIS fighters waves a flag in Iraq (Photo: Reuters)

An ISIS fighters waves a flag in Iraq (Photo: Reuters)

In recent weeks, the internet has featured hundreds of articles exclaiming the need to investigate atrocities perpetrated in Iraq. Many continue to insist that UK officials who are responsible for alleged war crimes during the British and American occupation of Iraq must be held to account – either in the UK or at the International Criminal Court (ICC). Others seek to advocate that a tribunal, be it the ICC or some other judicial mechanism,  investigate the carnage perpetrated by the Islamic State in Iraq, as well as Syria. But there’s the rub: the ICC itself can’t investigate crimes on the territory of Iraq because it doesn’t have jurisdiction over Iraq because Iraq isn’t a member-state of the Court. The ICC can potentially prosecute British officials because the UK is a member-state, although it has been famously recalcitrant to do so, deciding in 2006 not to open an investigation into alleged UK abuses because, in the view of then chief Prosecutor Luis Moreno-Ocampo, those alleged crimes weren’t “grave” enough.

But none of this mean that Iraq never came close to joining the Court. Here’s the story of the time that Iraq explored the idea of joining the ICC, courtesy of David Bosco’s must-read book Rough Justice:

For a brief moment, it appears the ICC might get much broader jurisdiction in Iraq. In 2005, an Iraqi minister announced his intention to sign the Rome Statute. The statement created diplomatic shockwaves. Iraq’s deputy ambassador to the United Nations at the time, Feisal Istrabadi, recalled getting two quick phone calls when the news broke. The first was from Jordan’s Prince Zied, a prominent court supporter serving as president of the ICC Assembly of State Parties. He asked excitedly whether the reports were true. Istrabadi confessed that he did not know. Half an hour later, US ambassador Anne Patterson called and asked the same question, with a tone of “grave concern.” That alarm by the United States had an immediate effect; other senior Iraqi officials quickly clarified that the human rights minister had no authority to sign the Rome Statute. When Istrabadi brought up the issue with Iraq’s foreign minister, he was told that the Americas “would have a fit” if Iraq joined the court. It appears that US pressure helped steer the Iraqi authorities away from a move that might have produced an ICC investigation. No other major powers — even those who had vigorously opposed the Iraq war — pushed publicly or privately for an ICC role in Iraq.

We may never know how close Iraq actually was to signing the Rome Statute, let alone ratifying it and thus becoming a fully-fledged member of the ICC. Yet it may not be as absurd as some might assume. After all, Afghanistan signed and ratified the Rome Statute, becoming a member-state of the Court in 2003. At the same time, it seems improbable that any minister would assume the risk of declaring that their country was about to sign the Statute without any preceding and very serious discussion or preparation. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, United Kingdom, United Nations, United States | 5 Comments