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

Big Fish or Little Fish — Who Should the International Criminal Court Target?

Posted on September 1, 2016 by Mark Kersten
Ahmad al Faqi al Mahdi during proceedings at the International Criminal Court (Photo: ICC)

Ahmad al Faqi al Mahdi during proceedings at the International Criminal Court (Photo: ICC)

The trial of Ahmad al Faqi al Mahdi has exposed tensions over the kinds of perpetrators that the International Criminal Court (ICC) is expected to target. Al Mahdi, a member of Ansar Dine has pleaded guilty to the war crime of destroying religious sites in Timbuktu, during the 2012 civil war in Mali. But was he the type of perpetrator that the ICC should have been going after in the first place?

Just days after al Mahdi was surrendered to the ICC, he was derided as a “small fish”, unfit for prosecution at the ICC because he wasn’t a sufficiently senior-level perpetrator. Fatouma Harber, a teacher in Timbuktu, wrote that al Mahdi “is just a little fish. But in Mali it is the little fish who are caught.” Mixed in with criticisms that al Mahdi didn’t warrant attention from the ICC, there have also been those who claim that he is, in fact, a senior perpetrator — but of sexual violence as well as cultural crimes.

Criticism of al Mahdi’s trial at the ICC derives from a phrase regularly invoked by the ICC’s prosecutors, namely that the institution seeks to bring those “most responsible” for international crimes to justice. The ICC’s Office of the Prosecutor explains on its website that “[i]t is responsible for examining situations under the jurisdiction of the Court where genocide, crimes against humanity and war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes.”

The question is thus whether al Mahdi can be considered the most responsible for the crimes with which he has been charged — the destruction of mausoleums and shrines in Timbuku. In their articulate essay, Eva Vogelvang and Sylvain Clerc recently argued that al Mahdi isn’t likely to be the most responsible:

“It is questionable whether Al Mahdi is indeed the most responsible for the crimes. He might have been involved in the destruction of the religious buildings, but it is likely that other members of Ansar Eddine and al-Qaeda in the Islamic Maghreb were equally involved in the commission of these crimes. The fact that he was the head of the “Hisbah” does not make him the individual who bears the greatest responsibility for the destruction of religious buildings. Coincidentally, it has been argued that Al Mahdi is on trial because all of the militant leaders of the various extremist militia groups have been killed or otherwise escaped.”

Vogelvang and Clerc conclude that the decision of prosecutors to target al Mahdi “can only be seen as an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction”.

The problem here, and one shared by both critics of the ICC as well as the institution’s prosecutors, is that it hasn’t been made sufficiently clear that the Court can, in certain cases, target low- and mid-level perpetrators when doing so will potentially help to identify and prosecute the most responsible perpetrators. Continue reading →

Posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Cultural Crimes, ICC Prosecutor, International Criminal Justice, Mali | 6 Comments

The al-Mahdi Case is a Breakthrough for the International Criminal Court

Posted on August 25, 2016 by Mark Kersten

The following article was originally posted as an op-ed for the Globe and Mail.

The rubble of a destroyed mausoleum in Timbuktu, Mali (Photo: Joe Penney / Reuters)

The rubble of a destroyed mausoleum in Timbuktu, Mali (Photo: Joe Penney / Reuters)

The trial of Ahmad al-Faqi al-Mahdi at the International Criminal Court represents a number of firsts for global justice. It is the first time that the destruction of cultural sites has been prosecuted as a war crime at the ICC. It is the first time that an Islamic radical has been prosecuted at the ICC. And it is the first time that anyone facing judges in The Hague has pleaded guilty.

The trial of Mr. al-Mahdi, a member of Ansar Dine who accepted responsibility for destroying UNESCO-protected shrines in Timbuktu, Mali, is a significant victory for the still-young court. What is less clear is how this case will resonate around the world, and whether it can deter similar crimes.

The first 15 years of the ICC’s existence have been tumultuous. While the court has managed to prosecute a handful of militants responsible for mass atrocities, it has had its fair share of failures. Sudanese President Omar al-Bashir has been free since becoming the first person charged by the ICC for genocide. Joseph Kony, the notorious leader of the Lord’s Resistance Army, continues to wreak havoc in Central Africa, 10 years after being indicted. The trials of Kenyan President Uhuru Kenyatta and Deputy President William Ruto collapsed as a result of a lethal combination of shoddy case construction by ICC prosecutors and Kenyan political interference. Today, the court faces accusations that it is biased against Africa. It also has a woefully limited budget, especially for an institution tasked with ending impunity for international crimes. The al-Mahdi trial represented an opportunity to break with this litany of controversies.

Mr. al-Mahdi’s surrender to the ICC caught observers by surprise. He had been toiling in a jail in Niger when, following the issuance of a sealed arrest warrant, ICC officials flew to Bamako, got the necessary paperwork signed by government officials, and flew Mr. al-Mahdi to The Hague. Insiders immediately believed that he would plead guilty. He couldn’t hide from his crimes; they were captured on camera. Moreover, he was likely targeted by the ICC in part because he promised to co-operate with prosecutors. Maybe he was motivated to do so by genuine remorse. Or perhaps he preferred the ICC’s prison in Scheveningen over detention in Niger or Mali.

His arrest satisfied two of the ICC’s interests. First, it could efficiently conclude a groundbreaking case without expending many resources. Second, it now has custody over someone who is likely to give investigators evidence of violent crimes committed against human victims. This was particularly important given that the ICC has yet to indict anyone for murder or sexual violence in Mali, despite calls to do so.

That at least two African states – Mali and Niger – co-operated with the ICC is likewise useful in combatting the perception that Africa is somehow “against” the court. So too is the fact that the ICC put a terrorist on trial for war crimes. Most crucially, however, the court tapped into global outrage about the destruction of cultural heritage sites. While the court has no jurisdiction in Syria or Iraq, where Islamic State fighters have wantonly obliterated historic sites, it could do something about the destruction of Timbuktu shrines. In prosecuting Mr. al-Mahdi, the ICC joined with UNESCO to form a new front line against the violent destruction of culture. Continue reading →

Posted in Uncategorized | 1 Comment