David beats Goliath in the Bashir case, but does the International Community give a Hoot?

Posted on March 18, 2016 by Mark Kersten

(Cartoon image: CICC)

The campaign against Omar al-Bashir racked up an impressive win this week. In the latest development in an ongoing legal tug-of-war, the South African Supreme Court of Appeal ruled that the government of South Africa had acted unlawfully when it refused to detain and surrender Bashir to the International Criminal Court (ICC) during a visit to the country last June. The landmark ruling clarifies the legal obligations that states have towards the ICC and could have significant repercussions beyond South Africa. But will this impressive victory bring Bashir any closer to facing justice for his alleged responsibility for mass atrocities in Darfur?

Just days before the Supreme Court of Appeal’s ruling, Bashir made yet another state visit, this time to Indonesia. Coinciding with the seventh anniversary of the first arrest warrant issued by the ICC for the Sudanese president, Bashir’s trip to Jakarta also marked his seventy-fifth foreign foray since he was indicted for war crimes and crimes against humanity. Bashir’s gallivanting undermines one of the key arguments in favour of international criminal justice: that ICC arrest warrants marginalise their targets. But what is particularly irritating for proponents of the ICC is the international community’s deafening indifference to Bashir’s increasingly brazen travels in contravention of the ICC’s warrants.

The failure to arrest al-Bashir and his absence from the ICC’s dock has been one of the most stinging and substantial critiques facing the ICC. Importantly, however, this logic assumes that the Court is actually prepared to put Bashir on trial on genocide allegations — an assumption that is far from evident. Indeed, no one can know right now that the Bashir case would not go the way of the trial of Kenyan President Uhuru Kenyatta, which collapsed due to a combination of political pressure, interference with witnesses and poor case construction on the part of prosecutors at the ICC. Given that the case against Bashir was built prior to Kenyatta and that not a single staff member, let alone ICC investigator, has stepped foot on the territory of Darfur in the ten-plus years since the situation there was referred to the Court by the UN Security Council, it is at least worth being somewhat skeptical that nabbing Bashir would be an immediate and easy victory for the ICC.

What truly undermines the legitimacy and relevancy of the ICC isn’t the fact that Bashir isn’t in the dock, but the fact that states are increasingly silent with regards to justice and Bashir’s responsibility for mass atrocities in Darfur. Beyond commentators and human rights groups, few members of the international community insisted that Bashir had to be arrested by South African authorities. And none will now line up to praise or support the Supreme Court of Appeal’s judgement or its ramifications. In response to Bashir’s trip to Indonesia, the international community was again eerily quiet. The United States, a long-time champion of justice in Darfur, simply said that it was “concerned” about Bashir’s visit. The Sudanese Embassy in Jakarta’s terse reply that the US should either join the ICC or “shut up” really wasn’t necessary given the meek response of Washington to Bashir’s trip. But here is the inescapable, if sad, truth: whatever it was that used to bother states like South Africa and Indonesia enough to reject Bashir from travelling to their capitals, no longer does. Worse than states wanting Bashir to visit is the reality that states simply no longer mind if he does. Continue reading →

Posted in Darfur, International Criminal Court (ICC), International Criminal Justice, South Africa, Sudan | 3 Comments

‘Contested Justice’: A New Appraisal of the International Criminal Court

Posted on March 10, 2016 by Mark Kersten

Christian Lance-De Vos and Sara Kendall join JiC for this announcement of their new and timely edited volume, ‘Contested Justice The Politics and Practice of International Criminal Court Interventions’. The book can now be purchased in hard-cover and is also available in open-access format here.

Contested Justice

Contested Justice

Since its inception, the International Criminal Court has faced a host of challenges, ranging from vexed questions about the role and place of victims and affected communities in the Court’s work to continued criticism that it is a neo-colonial project targeting African states. The Court’s interventions have also raised questions about the social value of its interventions, as well as their political dimensions and effects. The ICC’s troubled engagements in countries like Kenya and Libya, as well as its more recent geographic turn to such post-Soviet states as Ukraine and Georgia, make these issues more urgent than ever.

A new volume recently published by Cambridge University Press promises to contribute a set of fresh and provocative perspectives to these debates. Contested Justice: the Politics and Practice of International Criminal Court Interventions evaluates the ICC’s work from a critical and interdisciplinary perspective, bringing together a diverse group of contributions from scholars and practitioners. Edited by Christian De Vos of the Open Society Justice Initiative, Sara Kendall of the University of Kent, and Carsten Stahn of Leiden University, the collection is the first book of its kind to consider the ICC’s in-country work in such detail, including perspectives from those who have been working alongside the Court in Uganda, Kenya, and the Democratic Republic of Congo.

The book is organised into four sections, each with distinct themes. It first considers the relationship between international criminal law and transitional justice, exploring how the ICC’s constituency/ies, claims of neo-colonialism, and the possibilities opened through the Rome Statute’s ‘in the interests of justice’ criterion offer a way in which to tailor Court interventions to specific contexts, and to open up a space of discretion for more locally based understandings of justice.

The book’s second section is grounded in practice and case studies, examining how the ICC has been received in the countries where it has intervened. Contributors consider the role of complementarity in Uganda, prosecutions in the Democratic Republic of Congo, the work of civil society actors in Kenya, and the Court’s fraught relationship with intermediaries in the Great Lakes region of Africa. The third section then turns to practices of inclusion and exclusion within the Court, touching on a range of related themes: outreach, victim participation, reparations, and the role of the Trust Fund for Victims. Continue reading →

Posted in International Criminal Court (ICC), JiC News | 1 Comment

Mass Atrocity Monday, 3/7/2016: The 1961 Paris Massacre

Posted on March 7, 2016 by Kate Cronin-Furman
DSC_0072

The Seine. Photo credit: Terrence Peterson

Did you know that in 1961, French police massacred more than 100 Algerians as they demonstrated peacefully in the center of Paris?

If you didn’t, it’s not surprising. Even in France, the event has been obscured by decades of official silence. It doesn’t appear in history books and the exact death toll remains uncertain.

The facts, as we know them, are these: On October 5, 1961, following attacks on the Paris police by FLN separatists, a curfew was imposed on North Africans living in the city and its suburbs. When some 40,000 protesters poured into the streets on October 17, the police cracked down. Their chief, Maurice Papon (note: Papon was later convicted of crimes against humanity for his role in the Vichy government’s deportation of Jews to concentration camps during WWII) allegedly ordered his men to take brutal measures. At least 100 people were slaughtered; shot to death in the streets of central Paris, tortured and killed in the courtyard of the police prefecture, or pushed into the Seine to drown.

And then, for decades, no one spoke about their deaths. It was 51 years before the French government formally acknowledged the massacre. But in the aftermath of the November 2015 Paris attacks, many are looking back to 1961, the last time France imposed a state of emergency.

To get some context, I turned to Terrence Peterson, a historian (Ph.D., University of Wisconsin 2015) and expert on the French war in Algeria.  Terry’s book project, Keeping Algeria French: Counterinsurgency, Development, and Colonial Utopianism, 1955-1962, explores and contextualizes French efforts to remake Algerians in the image of Frenchmen. He’s therefore the perfect person to talk to about this (and his office is conveniently right next door to mine at CISAC). Here is our conversation, edited for length and clarity:

KCF: First of all, why is this massacre relatively unknown? 

TP: Perhaps the most important reason why the massacre remained so shrouded in mystery for so long was simply the French government’s refusal to talk about it. The Parisian press covered the events, and the National Liberation Front (FLN) which was fighting for Algerian independence certainly made efforts to publicize the violence. But French administrators categorically denied the massacre had taken place, and they kept archives related to the matter locked down. The number of Algerians killed is still uncertain for that very reason.

KCF: So how do we know about it at all, then? 

TP: It wasn’t until a historian named Jean Luc Einaudi published the first really in-depth investigation of events in 1991 that the public really became aware of events.  And even then, public awareness was highly politicized: debate really began in earnest in 1999, only after Maurice Papon sued Einaudi for libel. After that, 17 October became a potent symbol for state violence against Algerians, but because of that it has remained a really sensitive topic.

KCF: Was the massacre a one-off event, or is it indicative of a broader pattern of treatment of Algerians in France during this period?

TP: The 17 October massacre was unique within metropolitan France in the scale of violence: Police in Paris killed somewhere between 120 and 200 Algerians, and imprisoned another fourteen thousand in detention centers around the city in the days following.

KCF (interrupting): I’m sorry, did you just say the French government put thousands of Algerians in detention camps? Continue reading →

Posted in France, Mass Atrocity Monday | 3 Comments

A Matter of Justice, Not Immigration: What to do with War Criminals posing as Refugees

Posted on March 7, 2016 by Mark Kersten

Life jackets from refugees escaping violence in Syria and elsewhere lay strewn on the shores of Lesbos, Greece. (Photo: EPA)

Life jackets from refugees escaping violence in Syria and elsewhere lay strewn on the shores of Lesbos, Greece. (Photo: EPA)

Rumours that terrorists have been hiding themselves among Syrian refugees and asylum seekers embarking for the shores and capitals Europe are nothing new. Especially in the wake of the Paris attacks last year, it was widely reported that groups like ISIS, or Daesh, as it’s increasingly called, were infiltrating European communities to perpetrate acts of terror. Now too, there is evidence that war criminals have followed suit.

According a report from the Guardian, Dutch authorities have identified thirty war criminals among last year’s influx of refugees into The Netherlands:

Dutch officials have identified 30 war crimes suspects, including 10 Syrians, among tens of thousands of asylum seekers who arrived in the country last year, the justice ministry said Monday.

Immigration authorities found them after investigating 170 people, Deputy Justice Minister Klaas Dijkhoff told parliament in a letter following questions from members of parliament.

Ten of them were from Syria, while the others are from Eritrea, Nigeria, Sudan and Georgia, he said.

Under the Geneva Convention, refugees can be refused asylum “when serious grounds exist to believe that they are guilty of war crimes, crimes against humanity, or other non-political serious crimes”, Dijkhoff said.

But 20 of them could not be sent back because of ongoing wars or fears of inhumane treatment.

If the numbers are accurate, the number of refugee claimants found to be war criminals is a tiny fraction of those seeking asylum — approximately 5 in every 10,000 applicants. Still, this is not the first time that war criminals have been found among migrants — in The Netherlands or elsewhere. A 2006 CMI report on the subject attributed the growth in war criminals cloaking themselves as refugees to the global war on terror, poignantly asking how states could “guarantee fair procedures and humane treatment of all asylum seekers and simultaneously prevent human rights violators or terrorists from wrongfully being granted refugee status?”

Today, the severity of, and popular response to, the refugee “crisis” in Europe could make this issue even graver and more pressing than it otherwise would be. Of course, the flushing out and identification of war criminals can be seen as a positive development. These individuals would otherwise live with impunity and, given the complete absence of any justice for human rights violations in Syria, the detention of 10 Syrian war criminals is the closest thing to accountability for mass atrocities in the five years since the Syrian civil war erupted. Even if these are “small fry”, low-level perpetrators, they could help build cases for more senior-level war criminals.

But the revelation that so many war criminals made it into The Netherlands could also exacerbate and fuel regional racism and xenophobia among those communities and political parties already suspicious of foreigners. Responsible governments and human rights groups thus have a difficult task on their hands. They must needle a particularly tricky thread: demonstrate the need to continue supporting a generous and compassionate refugee policy whilst quelling fears that war criminals pose a threat by assuring communities that perpetrators will be brought to justice. But will they be brought to account? It isn’t entirely clear. Continue reading →

Posted in Canada, Europe, International Criminal Justice, Refugees, Syria, The Netherlands | 11 Comments

Prosecuting the Destruction of Shrines at the ICC – A Clash of Civilizations?

Posted on March 4, 2016 by Mark Kersten
al Mahdi ICC

Ahmad Al Faqi Al Mahdi during his confirmation of charges hearing at the International Criminal Court (Photo: ICC)

The potential trial of Ahmed Al Faqi Al Mahdi marks a series of firsts for global justice. Al Mahdi, who faced confirmation of charges at the International Criminal Court (ICC) this week, is the first individual from Mali to face the prospect of prosecution at the ICC. More pertinently, he is the first Islamic extremist to face charges at the Court and the first individual to be prosecuted at the ICC for the destruction of cultural sites as a war crime. ICC prosecutors insist that al Mahdi, a rebel leader in northern Mali and a member of Ansar Dine, is responsible for the destruction of religious shrines and mausoleums in Timbuktu in 2012. So how will the self-professed teacher and scholar defend himself against the charges against him and what could his trial mean for the global fight against extremism and terrorism?

Notably and somewhat unusually, al Mahdi and the team of lawyers defending him have decided not to present details of their defence. According to Tom Maliti, this suggests al Mahdi’s counsel believe that the charges against him will be confirmed and are simply waiting for the trial to begin.

While some ICC insiders believed al Mahdi was a prime candidate for a guilty plea when he first came into the Court’s custody, that certainly doesn’t appear to be the case. It also appears that he will respect the authority of the Court. But his team appears poised to eschew any direct defence of their client. Al Mahdi’s counsel are likely cognizant of the fact that it would be virtually pointless, given the prosecution’s evidence, to argue that al Mahdi was not involved in the destruction of mausoleums and historic sites in Timbuktu. Moreover, it seems entirely possible that al Mahdi revels in his role in destroying shrines in northern Mali. This is, as his lawyers implied, part of his religious philosophy. Indeed, rather than dealing with the specific allegations, al Mahdi’s defence counsel seem more inclined to pit his radical, Islamic worldview against that which underpins the ICC. As Geoffrey York put it,

[al Mahdi’s] defence lawyers are seeking to turn the trial into a battle over “the definition of the divine.”

The landmark case in The Hague, focused on the destruction of ancient shrines in Timbuktu, is emerging as a clash between two world views, part of a broader global struggle over the meaning of Islam. While prosecutors portray the cultural destruction as an attempt to annihilate a civilization, the defence sees it instead as simply a different “vision” of “good over evil.”

While his lawyers did argue that only the “covers”, and not the tombs, of shrines in Timbuktu had been destroyed, it is evident that al Mahdi’s defence is primarily concerned with demonstrating that what he did was right, rather than arguing that he didn’t do it. One of al Mahdi’s lawyers, Jean-Louis Gilissen, insisted that his client’s decisions were made in line with “a new possibility for Mali.” He stressed that his client’s views were political rather than criminal: “Fundamentalism is a political plan or project and, let’s be clear on this, a political project that is not a crime. This is important and should be stressed.” In this context, al Mahdi was “doing what is right” and “seeking the means to allow his conception of good over evil to prevail.” Rather ominously, Gilissen added: “We’re talking about two visions of the world that are in contradiction.” Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Mali, Terrorism | Tagged | 5 Comments

Event: Prospects of Justice, Avenues for Accountability – Investigating War Crimes and Crimes Against Humanity in Syria

Posted on March 1, 2016 by Mark Kersten

For any and all readers in the Toronto area, I am thrilled to announce that I have organized my first event at the Munk School of Global Affairs: ‘Prospects of Justice, Avenues for Accountability – Investigating War Crimes and Crimes Against Humanity in Syria’. The event will feature Bill Wiley and Nerma Jelacic of the Commission for International Justice and Accountability and Stephen Toope, Director of the Munk School of Global Affairs, discussing the prospects of accountability for war crimes and crimes against humanity in Syria. The event will take place in the Vivian and David Campbell Conference Facility on 8 March from 6 – 7:30pm. Please make sure to RSVP by following the links here.

If you’re in the area, please do join us and make sure to say hi! If you can’t make it, fear not – I will be sure to write an analysis of the event in the coming days. 

Munk EventNow entering its fifth year, the Syrian civil war has been characterized by the perpetration of mass atrocities and human rights violations committed by all parties to the conflict. Will justice ever be served for the perpetrators of war crimes and crimes against humanity in Syria? Can all sides — the Syrian regime, rebel militants, ISIS,— be held accountable for the rights violations they have wrought upon civilians in the region? How can and should evidence of such abuses be collected? Will such evidence ever be used in a courtroom? The Commission for International Justice and Accountability (CIJA) has been on the front lines collecting and protecting evidence of mass atrocities committed during the Syria civil war. Join CIJA’s William Wiley and Nerma Jelacic in a conversation with Munk School Director Stephen Toope on international accountability, international criminal investigations, and the remarkable work being undertaken by CIJA investigators.

William Wiley is the Founder and Director of the Commission for International Justice and Accountability (CIJA). William formerly worked in the Office of the Prosecutor at both the International Criminal Tribunal for the Former Yugoslavia as well as the International Criminal Court, was an infantry officer in the Canadian military and worked on war crimes investigations in the Department of Justice.

Nerma Jelacic is the Director of External Relations and Communications at the Commission for International Justice and Accountability. Prior to joining CIJA, Nerma was the Head of Communications for the International Criminal Tribunal for the former Yugoslavia, the Director and co-founder of the Balkan Investigative Reporting Network (BIRN), as well as an editor at the Institute for War and Peace Reporting.

Stephen Toope is the Director of the Munk School of Global Affairs at the University of Toronto. Stephen has previously been the president of the President and Vice-Chancellor of the University of British Columbia as well as the Pierre Elliott Trudeau Foundation. He has also served as President of the Canadian Council on International Law and member of the Executive Council of the American Society of International Law.

The Commission for International Justice and Accountability (CIJA) is an innovative, non-profit organisation committed to establishing the individual criminal responsibility of high-level perpetrators implicated in violations of International Criminal and Humanitarian Law (ICHL) in conflict and post-conflict areas where public bodies, such as the International Criminal Court (ICC) or domestic prosecutorial authorities, are unable to intervene due to physical risk, insufficient expertise or in the absence of jurisdiction. Its intervention in Syria has already resulted with the completion of three internationally-acclaimed case files inculpating 23 of the highest ranking regime officials.

Tuesday, March 8, 2016

6:00PM – 7:30PM

The Vivian and David Campbell Conference Facility, Munk School of Global Affairs 1 Devonshire Place

Please RSVP here.

 

Posted in JiC News, Syria | Tagged , , , | 10 Comments

How Long Can the ICC Keep States in the Purgatory of Preliminary Examinations?

Posted on February 29, 2016 by Mark Kersten
Children walk along a street in a heavily damaged neighbourhood in Gaza (Photo: AP)

Children walk along a street in a heavily damaged neighbourhood in Gaza (Photo: AP)

The Chief Prosecutor of the International Criminal Court (ICC) recently told journalists that she would not provide a time-frame for the ICC’s preliminary examination into alleged war crimes perpetrated in Palestine during the 2014 war in Gaza. Officials in Israel may derive some comfort in knowing that ICC action against the Israeli Defence Forces (IDF) isn’t coming any time soon. But Tel Aviv will certainly take little-to-no comfort in knowing that an official investigation and the issuance of arrest warrants could come at any time — and likely with little warning. At the same time, it may be a decade or more before victims and survivors in Israel and Palestine know whether or not they’ll ever get ICC justice for the crimes perpetrated against them. This brings forward an important question: is it fair to keep states in the potential purgatory that is the preliminary examination stage of an ICC intervention?

It stands that states under preliminary examination want to have some idea of what that entails — including how long they might be under the microscope of ICC investigators. Without a doubt, one of the most potentially combustable interventions by the Court would be in Palestine. Both opponents and champions of a role for the ICC in Palestine can agree on that. Predictably, then, observers want to know if and when such an intervention might come. According to The Jerusalem Post, ICC Chief Prosecutor Fatou Bensouda wasn’t about to divulge that information and would not even say whether the preliminary examination would be concluded by the time her tenure ran out in 2021 – over five years from now. Bensouda insisted there was no time-frame for her office’s examination:

I cannot sit here and say that it will take seven years, or it will take ten years or it will take any number of years…all of this depends on the facts and the circumstances. The preliminary examination cannot be given a timeline.

Interestingly, if somewhat puzzlingly, on a visit to the Palestine’s Mission to The Netherlands last year, Ambassador Nabil Abuznaid responded to my students by declaring he believed the ICC would not act or come to any significant decision in “less than ten years.”

Legally, Bensouda is on solid ground. The Rome Statute says nothing about how long a preliminary examination should take. While the yearly Preliminary Examination reports released by the Office of the Prosecutor indicate that the institution views increased transparency in its activities as useful and important, the Office is under no legal obligation to be forthright about its preliminary examinations. Some would argue that not divulging timelines is politically astute. After all, no prosecutor would voluntarily pigeon-hole themselves by declaring a cut-off date for a decision.

But is it fair? Should preliminary examinations be allowed to persist indefinitely? The domestic analogy leaves one dumbfounded. Imagine someone being informed by legal authorities that they were under investigation for murder and that they would be seen as a potential suspect indefinitely. At some point, an arrest warrant might be issued for the individual in question. But it also might not. The individual has no ability, let alone right, to know. In this scenario, neither does the victim or survivor. For a potentially indefinite period of time, they are told that justice is on the horizon. Or it might not be.

Of course, using a domestic analogy to measure or illustrate international phenomena is limited and problematic. But still, it seems troublesome to potential targets of prosecution, affected communities in general, as well as the victims and survivors of international crimes, to let preliminary examinations drag on indefinitely. Granted, the ICC has closed some preliminary examinations, most recently in Honduras. However, of its long-lasting examinations like Afghanistan and Colombia, it has often been said that they are left on the ‘low-heat’ of preliminary examination status as a means for the Court to be able to say it is interested and active in those situations and not because it actually is. Continue reading →

Posted in Gaza, International Criminal Court (ICC), International Criminal Justice, International Law, Israel, Preliminary Examinations | 12 Comments

JiC Turns Five – Some Thoughts on Half a Decade of Writing

Posted on February 21, 2016 by Mark Kersten

highfive_1x

It’s hard to believe, but five years ago today, the first-ever post at Justice in Conflict was published. The occasion and anniversary spurred me to reflect on writing at JiC over the last half-decade and to share a bit of the story behind the blog.

I decided to create JiC in late February 2011, during the first year of my PhD in the International Relations Department at the LSE. The push to set up the site came from numerous sources, including a moment of failure. In late 2010, two close friends and I lost an election to become the editor’s of the LSE’s Millennium Journal of International Studies. Our failed bid was to be a blessing in disguise in that it left me with both the time and space to create and maintain the blog. At the same time, my father, Gregory Kersten, an esteemed academic in his own right, had been encouraging me to use my excess energy to create a website. Sometimes, it seems, fathers really do know best. My sister, Marta Kersten, a researcher in image-guided surgery/medical imaging at the McGill University, helped come up with the name of the site. I immediately embraced the idea of calling the blog Justice in Conflict for its double meaning — the pursuit of justice in the midst of active conflict as well as conflicting perspectives on the nature of justice itself.

In creating the blog, I didn’t have any expectations of what I — or the site— could achieve. Of course, I wanted an audience, but I was also largely happy to write for myself. Writing helped me put my thoughts in order — as well as spur new ones. As one American novelist once put it: “I write to know what I think.” Writing on JiC helped me to access, trigger, and string together thoughts and theories that were otherwise obscured or inaccessible.

After it’s launch (if it can even be called that), the blog started to take off rather quickly. Within the first few days, Kevin Jon Heller, whom I did not know at the time but who has since become a close friend, was gracious enough to welcome JiC to the blogosphere on Opinio Juris. I still recall not only my own excitement but the e-mails and comments of people saying: “Did you see? You’re on Opinio Juris!”

With time, more people began subscribing to the site. Today, JiC is closing in on 1.3 million visits and 15,000 subscribers across various platforms. Dozens of both regular and periodic contributors have enriched the discussions and debates we’ve had at JiC (with a special shout-out to Elke Schwarz and Patrick Wegner, both indispensable in the early years of the blog). These are bewildering and humbling numbers and I can’t thank readers for their interest enough.

In subsequent years, there have been other significant achievements for the site. Two stand out: in particular first, my critique of Invisible Children’s Kony 2012 documentary that went viral and ultimately garnered the site some 420,000 hits in two days; and second, when a source gave me permission to publish a draft UN Security Council resolution referring Syria to the ICC, making JiC the first and only place where the full text of the referral was available.

Of course, writing takes time and, as I tell anyone who asks for advice in creating a sustainable blog, new content has to be published on a regular basis. Capturing the interest of readers is one thing — maybe even the easy part; retaining their attention over time is another matter altogether. Looking back at the first-ever comment on the site, Xavier Rauscher wrote: “Very nice, Mark. Good luck with this blog. Whatever you do, don’t stop writing!” And he was right. The trick is to never lapse in producing new content. Thus the single achievement I am most proud of is the consistency of new and original material the blog has been able to put out since it was established. On average, JiC has published just under 100 articles per year since its inception.

It isn’t an exaggeration to say the consistency that the blog achieved wouldn’t have been possible without support from my two PhD supervisors, Kirsten Ainley and Mark Hoffman. Not once did they suggest that I put my blogging aside in order to focus on the thesis or more ‘academic’ pursuits. The end result was, perhaps for some, counter-intuitive. Rather than the thesis being delayed, it took less time because of my engagement with the blog; when I did finally submit the thesis, it was well before its due-date. Writing for JiC kept me constantly involved and interested in ongoing developments. I can’t recall a moment during my research when I wasn’t fascinated by what was happening at the ICC and in the world of international criminal justice more broadly. JiC helped me maintain that fascination and also made me feel like a part of that world. Rather act as a distraction from my research and thesis writing, JiC kept me engaged and allowed me to streamline certain arguments that I worked through on the blog. Writing was also something I could always rely on. I take great pleasure and indeed comfort in crafting posts and doing the necessary research for each piece I publish. Writing gives me what Mihaly Csikszentmihalyi would call “flow” — a state of mind so focused that everything else seems to melt away. Continue reading →

Posted in JiC News | 8 Comments

Concessions from the Half-Way House – Leveraging Membership in the ICC

Posted on February 19, 2016 by Mark Kersten

(Illustration: Robert Neubecker)

In the world of the International Criminal Court (ICC), there are two types of states: the member-states who accept the jurisdiction of the Court and the non-member states who don’t. The ultimate goal of the international criminal justice project, beyond making itself irrelevant by eradicating mass atrocities altogether, is to move as many states from the latter camp into the former. But the relationship of African states, as well as that of the United States, with the ICC, should give us pause. The categories of member states and non-member states may make sense in the black-and-white of legalese, but they occlude the existence of a spectrum states that engage differentially with the Court. We need a new category that encompasses a half-way house of states that fall somewhere between being member-states and non-member states.

In recent months and years, threats — empty or not — of African states withdrawing from the ICC have proliferated. In just the last month, it was widely, if incorrectly, reported that the African Union was establishing some sort of ‘roadmap’ for states withdrawing from the Court. In a Presidential debate in Uganda, current head of state Yoweri Museveni reiterated his view that Uganda should pull out of the “partisan” institution. Observers can debate and discern the validity of such threats but it is undeniable that they currently dominate perceptions of the role and impact of the Court on the continent. But beyond determining whether any state’s intentions to withdraw membership is real, there is a clear need to understand a simultaneous and underlying trend: the leveraging of membership within the ICC for political gain by states occupying the middle ground between member and non-member state status.

Consider recent events across the African continent. In Uganda, Museveni has masterfully employed a schizophrenic policy on the ICC. Going full-throttle janus-faced, Museveni has decried the Court as unfair and racist whilst ensuring that Uganda cooperates with the institution’s investigators, poses for photo-ops with Chief Prosecutor Fatou Bensouda and, most importantly, plays hot potato with the fate of Dominic Ongwen rather than having him prosecuted in the able and functional Ugandan courts. The result is an admittedly brilliant ploy: the only ‘leader’ Uganda has enjoyed in thirty years poses as the rally boy for anti-ICC sentiment on the continent whilst ensuring that the Court remains dependent on him for cooperation and that he enjoys de facto immunity from the institution.

In Kenya, the government famously responded to the charges against current President Uhuru Kenyatta and Deputy President William Ruto with a fully-fledged and devastating attack on the ICC and encouraged a handful of other states to threaten withdrawal from the Court. Moreover, not only have Nairobi’s efforts managed to have most, and at some point likely all, of the charges against its politicians dropped, they have also managed to achieve the appeasement of ICC member-states in the process. In short, Kenya has leveraged its membership, as well as that of others on the continent, in exchange for various ‘victories’ at the ICC. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, South Africa, Uganda, United States | Tagged , , , , | 1 Comment

A Threat to Justice – Ruto Decision a Cautionary Tale on ICC Independence

Posted on February 17, 2016 by Mark Kersten

Elizabeth Evenson joins JiC for this take on recent developments in the cases against Kenya’s William Ruto and Joshua Arap Sang as well as the political appeasement of Kenya by states at the International Criminal Court. Elizabeth is senior international justice counsel at Human Rights Watch.

William Ruto and Joshua Arap Sang (Photo: ICC)

William Ruto and Joshua Arap Sang (Photo: ICC)

Last week, appeals judges at the International Criminal Court (ICC) threw out prosecution evidence in the crimes against humanity case against Kenya’s deputy president, William Ruto, and his co-defendant, Joshua Arap Sang. The decision is significant, and the loss of prosecution evidence casts a shadow on the case’s future. But while the focus has been on Ruto’s co-called “big win,” the background to this decision should be a cautionary tale about the importance of protecting the ICC’s independence, a task its member countries seem at risk of failing.

The ICC’s Assembly of States Parties meets once a year to make decisions that should bolster the court’s work. Last November, however, the vast majority of the meetings were devoted to addressing demands from an out-sized Kenyan government delegation. The government wanted the Assembly to declare that a revised rule used by the Ruto trial court and adopted by the Assembly in 2013 was never intended to apply to the case, because it began before the rule was changed.

The use of the revised rule was the subject of last week’s appeals decision. The Ruto trial court had used the rule to admit evidence—essentially written statements or transcripts of statements recanted by four witnesses when they took the stand—because they found that the witnesses had been improperly influenced to recant, part of a systematic effort to interfere with witnesses in the case, they said. Statements from a fifth witness who disappeared altogether were also accepted. On appeal, however, the judges found that use of the evidence was incompatible with fair trial rights.

Whether the rule could be used in the Ruto case clearly was a legitimate question, as evidenced by the outcome on appeal. But it was squarely before the ICC judges at the time of the Assembly meeting. Putting this issue before the Assembly was a clear attempt by Kenya to apply political pressure on the judges’ decision-making, part and parcel of the government’s long-running campaign against the ICC.

That campaign, unfortunately, is not surprising. Until last year, Kenyan President Uhuru Kenyatta himself faced charges before the ICC. Neither his government nor the previous one have taken any real steps to bring to justice those responsible for atrocities committed during Kenya’s 2007-2008 post-election violence. As a court of last resort for the gravest international crimes, the ICC will inevitably rub up against powerful political figures who have everything to fear from accountability.

But what is perhaps most surprising is how anemic and cowed many other ICC members have been in the face of Kenyan pressure.

At the Assembly, member countries were dragged into days of closed-door negotiations over Kenya’s request. They agreed, in the end, to include a paragraph responding to Kenya’s request in the meeting’s report. The language is best described as a dodge on substance, but one that gave Kenya enough room to claim that the Assembly had backed their version of events regarding the rule’s history.

In their ruling last week, the appeals judges were not persuaded that member countries never intended for the rule to apply to pending cases, and based their decision, instead, on treaty law regarding the application of amended rules. They dismissed the language from November’s Assembly meeting as irrelevant. Nonetheless, the decision risks being seen as tainted by political pressure — and acquiescence. 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