The Case for a Permanent Hybrid Tribunal for Mass Atrocities

Posted on January 8, 2016 by Mark Kersten
Muslim civilians in Bangui take cover to avoid heavy gunfire directed towards the Baya Dombia school where voters were gathering for the Constitutional Referendum on December 13, 2015. (Photo: Marco Longari / AFP)

Muslim civilians in Bangui take cover to avoid heavy gunfire directed towards the Baya Dombia school where voters were gathering for the Constitutional Referendum on December 13, 2015.
(Photo: Marco Longari / AFP)

There is no point denying it. The current global production of mass atrocities far outweighs the tools and institutions that exist to respond to them. There is a far greater demand for, than supply of, international justice. We often hear about the development, growth, and entrenchment of a “system” of international justice. But Stephen Rapp, the former U.S. Ambassador-at-Large for War Crimes Issues, recently remarked: “there isn’t a global system of justice, just some cases in The Hague and a few other places”.

Despite lofty rhetoric, the International Criminal Court (ICC) was never going to be a silver-bullet solution to creating a system of international justice. That’s not the institution’s fault, but it is high time the international community look beyond the ICC towards establishing a network of institutions and organisations that can, together, cohere into such a system of global accountability. As just one part of that, serious consideration should be given to the establishment of a permanent hybrid tribunal to prosecute mass atrocities.

In 1998, when states gathered to negotiate the Rome Statute of the International Criminal Court, the preponderant idea was to move away from an ad hoc approach of international criminal justice to a permanent system that would, eventually, become universal in reach. And who knows, it might yet achieve that aim. But it won’t do so any time soon. While most states are members of the ICC, the most powerful countries — including Russia, China and the U.S., as well as the vast majority of the world’s population — lie outside of the Court’s jurisdiction. Moreover, if the lack of adequate funding of the ICC as well as the UN Security Council’s apathy and inaction on matters of international criminal justice are any indication, state interest in an effective and independent ICC is lukewarm — at best.

Making matters worse, states that were once staunch supporters of the Court are, at the very least, re-thinking their allegiances. The ICC’s Office of the Prosecutor itself understands its limitations, publicly admitting that the institution has a “basic size”, meaning that it can only afford to open a small number of investigations and have a small number of ongoing trials in any given year moving forward. Some, like Elizabeth Evenson of Human Rights Watch and Jonathan O’Donahue of Amnesty International, have described this situation as “the ICC’s capacity crisis”. But even if the ICC wasn’t facing such difficult times, the Court is inherently limited in what justice it can mete out. Even in an ideal world, the Court is structured in such a way that it would never be able prosecute all actors responsible for international crimes. And neither can states, particularly those emerging from violent political conflict. Some ‘outside the box’ thinking is needed.

The limits of what the ICC can achieve with regards to delivering justice and accountability point to the need to think beyond The Hague as the sole capital of international criminal justice. In the world of international criminal law, the ICC should not be, does not need to be and cannot be, the only game in town. Today, the widespread view that the Court should displace all ad hoc and hybrid tribunals seems as trite as it is misplaced. No tribunal type should be discarded entirely, certainly not in the name of the ICC, an institution that structurally and politically can only prosecute a tiny sliver of perpetrators.

As a result of the ICC’s limited reach, the incapacity of states to prosecute international crimes themselves, and the increasing expectation that justice be pursued in the wake of mass atrocities, we are witnessing the rehabilitation of other forms for tribunals, including the hybrid model. Last year, the Central African Republic (CAR) passed legislation establishing the Special Criminal Court. Early signs suggest that if any criminal tribunal is set up in South Sudan to deal with recent unrest, it also will take the form of a hybrid tribunal. While the push for a Security Council referral of Syria to the ICC has absorbed the lion’s share of global attention, there has also been persistent talk of the potential to create an ad hoc, possibly hybrid, court to deal with crimes perpetrated during the Syrian civil war. All of these tribunals, like their predecessors for Cambodia, Sierra Leone, Lebanon, etc., would be temporary. But what if there was a single institution which could host all of these hybrid courts? Continue reading →

Posted in Complementarity, Human Rights, Hybrid Tribunals, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), International Law | 6 Comments

The UN Library’s Most Checked-Out Book Doesn’t Bode Well for International Justice

Posted on January 7, 2016 by Mark Kersten
The United Nations Dag Hammarskjöld Library, New York (Photo: John Gillespie/Flickr CC)

The United Nations Dag Hammarskjöld Library, New York (Photo: John Gillespie/Flickr CC)

The United Nations’ Dag Hammarskjöld Library has announced its most checked-out book of 2015. Maybe something on the UN, you say? Maybe a breezy read on climate change? Or perhaps the latest treatise on the refugee crisis? Okay, maybe diplomats and staff go to the UN’s library for less serious matters and the most popular book is E L James’ Fifty Shades of Grey or the latest release of Stephen Covery’s Seven Habits of Highly Effective People (wouldn’t that be great!). But no. The most checked-out book was entitled Immunity of Heads of State and State Officials for International Crimes. According to Dylan Matthews of Vox,

The book in question isn’t a UN document — it’s a doctoral thesis from the University of Lucerne by Ramona Pedretti, pursuing the question of when heads of state and other government officials can be charged in foreign courts. Generally, she explains, there are two forms of immunity in international law from which heads of state can benefit.

“Immunity ratione personae prevents incumbent Heads of State from being subjected to foreign criminal jurisdiction,” Pedretti writes. “In contrast, immunity ratione materiae protects official acts, i.e. acts performed in an official capacity on behalf of the State, from scrutiny by foreign courts.”

She concludes that immunity ratione personae is absolute, and thus that domestic courts in one country can’t indict the sitting leader of another nation, whereas ratione materiae can be invalidated for defendants who’ve left office — as happened with the arrests of the Nazi fugitive Adolf Eichmann by Israel and Chilean dictator Augusto Pinochet by Spain. Basically, Pedretti is arguing that incumbent heads of state can’t be charged and prosecuted by a foreign court, whereas past heads of state can.

This isn’t exactly great news for proponents of international justice and, in particular, the principle of universal jurisdiction.

Weirdly, the UN Library sort of bragged about the book on Twitter – despite the institution’s mission to, you know, fight global impunity. As Hayes Brown rightly chirped: “…Guys. Why would you brag about this [-] this is not good.” There is a silver lining, though. Clearly diplomats are taking international criminal justice seriously and evidently some (rightfully, we should add) see it as threatening. Like it or not, the possibility of heads of state being prosecuted for international crimes is indelibly part of the world of diplomacy.

Now, how badly do you want the catalog of people who checked out the book – and the breakdown of states they work for?

Posted in International Criminal Justice, United Nations | 3 Comments

An Institution within an Institution – An Interview with the ICC President

Posted on January 6, 2016 by Mark Kersten

Just a few days after the International Criminal Court moved to its permanent premises, Shehzad Charania was honoured to be received as ICC President Silvia Fernández de Gurmendi’s first-ever visitor in her new office. On that unusually mild and sunny December afternoon, there was a spring in everybody’s step. But how does the President see her time at the ICC, the Court’s record to date, and the future of the institution?

ICC President FernandezA New Dawn

I began by asking the President how she was settling into her new surroundings.  She described the building as impressive. Being purpose-built, the new premises were, above all, a much more “functional” group of buildings than the ICC’s previous home. They now had an excellent library, and the courtrooms were modern, light, and much less claustrophobic. The President also sensed a feeling of renewal, and boost in morale among staff. She would look to take advantage of this rejuvenated atmosphere, and ensure that it created momentum towards a improved working environment as well as better leadership and management.

Becoming a Judge …

The President had been involved with the International Criminal Court in one way or another since the mid-1990s. I asked her why she had wanted to become a Judge in 2008. She explained that this had never been her intention when she was part of the Argentinean delegation in Rome. After the Rome Conference in 1998, she remained involved as the Chair of the Drafting Committee of the Rules of Procedure and Evidence. The former Prosecutor Luis Moreno Ocampo then invited her to join his office (OTP), where she worked for four years. After this, she returned to Buenos Aires, thinking that her ICC days were over. But when her government proposed her nomination as an ICC judge, she felt compelled to give it serious thought. In the end, she realised that this was an offer and a challenge she was unable to resist; she has never regretted that decision since.

… and then the President

Standing for ICC President in March 2015 was a natural progression for Judge Fernández. When she was elected as a Judge in 2008, she thought she could change many things such as expediting proceedings and making the Court generally more efficient. But she soon saw that the changes she could implement in her position as a Judge were limited to a single chamber; it was much more difficult to have an impact beyond that. In order to expedite proceedings in any serious and meaningful way, there had to be a more collective judicial effort in conjuction with collaboration with the other organs. This required a systemic shift in thinking and, with that in mind, Judge Fernández decided to stand for President.  She thought that her previous experience would be an advantage: having been at Rome, part of the OTP, and then a Judge, she was intimately familiar with the interconnections and synergies between all the different parts of the Court.

Expediting Trials

I asked the President why she had singled out expediting proceedings as her “number one priority”. Surely dispensing international justice while ensuring the rights of the accused were preserved would, and should, take time, and not be rushed for the sake of efficiency. The President agreed that justice takes time.  But the issue was how long the Court could take in conducting its trials while still maintaining credibility. Anyone involved in the prosecution of international crimes, nationally or internationally, recognised that such proceedings were slow, and complex. But, with respect to the length of proceedings at the ICC, the Court could do better. Of course, the trials during the Court’s first decade were testing the Rome Statute system. They revealed many procedural obstacles, which the Court now understood better how to overcome, and could avoid in the future. But it was also clear that the reasons for the slowness of the trials was not just because of the complex nature of the crimes, but also due to issues such as the Court’s working methods, and the lack of harmonisation between the different chambers. These were factors within the control of the Judges; the move from four to three years for a trial would provide an opportunity for  substantial improvement.

Achievements to Date

I then asked Judge Fernández what she felt she had achieved in her first nine months in her role as President. Her response was: “a lot”. After her election, she had organised a retreat in Nuremberg. Even the issue of what the Judges would discuss, and the basis of those discussions, could have been contested. But it had been an excellent retreat and the Judges made real and tangible progress in achieving common agreement on how to handle certain aspects of the proceedings. Upon their return, they had produced a Pre-Trial Manual reflecting such agreement. The first part of the Manual had focussed on Pre-Trial issues, but they had now added sections on common systems applying to various stages of proceedings, including handling of evidence, disclosure, and victims applications.  The updated version would be issued shortly.

Looking towards the next twelve months, the Judges would formally propose adoption of an amendment to the Rules of Procedure and Evidence (RPE) to reduce the number of Judges required to sit in Article 70 trials (cases involving offences against the administration of justice). Other proposals for amendments to the RPE were also in the pipeline. The Court as a whole would also be taking forward the issue of performance indicators – an important mechanism through which the Court’s progress could be assessed.

Improving and enhancing the governance of the Court was another key focus. The first step therein was to improve the budget process. Discussions on this question had already begun between the principals — the President, the Registrar and Prosecutor. For the President, the budget was not just about mere numbers; it involved aligning visions and required that all parts of the Court move forward together in the same direction. Continue reading →

Posted in ICC President, International Criminal Court (ICC), International Criminal Justice | Tagged , | Leave a comment

The Best, Worst, Weirdest, Funniest, and Most Frustrating of 2015 – Plus a Surprise for to 2016!

Posted on January 4, 2016 by Mark Kersten

Happy 2016!

The Best Development of 2015

It has been yet another fascinating year in the realm of international criminal justice. After twenty years, the International Criminal Tribunal for Rwanda finally closed its doors. By opening an investigation into Georgia, the International Criminal Court (ICC) made its first intervention outside of Africa. A peace deal between the rebel FARC rebel group and the government of Colombia included widely touted plans for transitional justice. Ukraine opened itself up to an ICC investigation since 2014. Dominic Ongwen, a former child solider turned Lord’s Resistance Army rebel, was detained and transferred to The Hague. Hissène Habré finally went on trial for his crimes against the people of Chad. The Central African Republic moved to establish a hybrid Special Criminal Court to prosecute international crimes perpetrated during its most recent bout of political violence. Palestine provided the ICC jurisdiction crimes committed on its territory since June 2014. And these are just a some of the key developments in international criminal justice in 2015 that we covered here at JiC.

But what, in my view, takes the cake for the best development in 2015 is the growing possibility and expectation of the ICC doing what it always promised: pursuing impartial justice globally, without fear or favour. They may not be overwhelming, but there are growing signs that the Court is taking crimes perpetrated by powerful states more seriously. This was evidenced most strongly in the ICC’s 2015 preliminary examination report, released last November. Within it can be found an implicit warning to Western states, particularly the UK and the US, that if they don’t hold senior perpetrators of international crimes perpetrated in Iraq and Afghanistan to account themselves, the Court will open an official investigation into their conduct. It is worth stressing: the ideal here, as in any situation where the ICC intervenes, is for states – and not the Court – to conduct fair and genuine investigations and, if necessary, prosecutions. But if they don’t or choose note to, Court prosecutors should move to open investigations. Refusal to do so is increasingly untenable. Of course, questions abound as to whether the ICC will ever have the gumption to prosecute powerful actors from powerful states. It’s far from clear and global politics don’t lean in the institution’s favour. But if the ICC is to move beyond the rampant allegations that it is a biased institution that targets the weak and protects the powerful, being bolder and more confident in how it deals with Western crimes is of the essence. As Toby Cadman recently argued: “With the world beset by conflict, an equitable system of international justice – and a functioning institution to deliver it – is needed more than ever.”

The Weirdest Development of 2015

There are couple of nominees for the strangest development in 2015. Who can forget the stunningly whacky idea, proposed by a former senior official in the administration of George W. Bush, that it should be a federal crime in the United States to prosecute American citizens at the ICC? Yeesh!

At the Court itself, while unforseen developments are seemingly always around the corner, the surrender of Ahmad Al Faqi Al Mahdi to The Hague from Mali certainly took  justice followers by surprise. Al Faqi had been charged with perpetrating cultural crimes — specifically the destruction of religious shrines in Timbuktu, Mali. The exact details of how he ended up at the ICC remains shrouded in secrecy and the ICC’s Office of the Prosecutor decided against shedding any light on the matter. It issued a press release on his surrender in the wee hours of a Saturday morning (ensuring that few, if any, media would cover the story) and then chose not to elaborate on this major event the following week. Remarkably, this should be a good story of the institution — one that demonstrates close cooperation from a number of African states and the Court’s willingness to effectively go after perpetrators of cultural crimes. While JiC did cover what we do know to date, hopefully 2016 brings new details.

The Worst Development in 2015

While the lack of any justice for the people that desperately deserve it in places like North Korea and Syria is an ongoing stain on the international community, there is no doubt about what was the worst single development for international criminal justice, and the ICC in particular, in 2015: the visit of Sudanese President Omar al-Bashir to to South Africa. Bashir has been indicted by the Court on charges of crimes against humanity, war crimes, and genocide. South Africa, on the other hand, has historically been a strong supporter and defender of the ICC. While there may be ‘silver linings’ and important details to the story, Bashir’s visit seemingly put a spanner into the notion that South Africa would continue to stand strong with the Court and defend the institution against its political interests in currying favour with other African states. Moreover, it should make observers think twice about how states’ preferences towards the institution have evolved with time — it simply isn’t good enough to insist that, because African states joined the ICC, they must approve of, or support, the Court fifteen years later. States change and so do their interests and preferences. We need much richer thinking on the Africa-ICC relationship. But perhaps more than anything else in 2015, Bashir’s bolstered the widespread view that the ICC has a serious ‘Africa problem’. Continue reading →

Posted in JiC News | Leave a comment

The Rwanda Tribunal Closes — But Who Owns its ‘Legacy’?

Posted on December 18, 2015 by Mark Kersten
Archives of the ICTR's cousin, the ICTY (Photo: Damir Sagolj / Reuters)

Archives of the ICTR’s cousin, the ICTY (Photo: Damir Sagolj / Reuters)

The relationship between Kigali and the International Criminal Tribunal Rwanda (ICTR) has always been a sensitive balancing act. Ever since 1994, when the United Nations Security Council decided to establish the tribunal in order to investigate and prosecute senior perpetrators of the Rwandan Genocide, the relationship has been marked by periodic bouts of controversy and heightened tensions. The tribunal never seemed to truly trust the regime of Paul Kagame and the Rwandan president never seemed to truly trust the tribunal. As the ICTR concludes its work and closes its doors twenty year after its creation, this mutual mistrust is still rearing its ugly head.

The closing of the ICTR, as well as that of its cousin, the International Criminal Tribunal for the Former Yugoslavia, has brought forward important questions about the so-called ‘legacy’ of both tribunals. What will these institutions will leave behind and bequeath to future generations? As Viviane Dittrich, a leading expert on the subject of tribunals and their legacies, has cogently observed:

Talk about legacy often arises in a valedictory or commemorative setting when reflecting upon accomplishments and the meaning of being… [But t]he concept of legacy seems to be engulfed in a paradoxical situation: it is understudied, yet rhetorically overused… Ultimately, constructions of legacies are both a reflection and a sideshow of broader debates about the Court’s raison d’être, international involvement in conflict and post-conflict settings and the meanings of justice.

One of the primary raisons d’être of the ICTR — and indeed any international criminal tribunal — is the volumes of records it has accumulated regarding the crimes investigated and prosecuted under its purview. For the Court, these troves of documents were crucial to establishing who bore the greatest responsibility for the Genocide. Moving forward, the ICTR’s archives will prove an indispensable resource to students, scholars, historians, and journalists hoping to establish a detailed and accurate account of not only who perpetrated the Genocide but how and why.

And for this very reason, the closing of the ICTR has been met with some controversy. According to one report:

Rwanda will not relent in its push to host the International Criminal Tribunal for Rwanda (ICTR) genocide archives even when the court closes. Senior ICTR officials met with Rwanda judicial leaders, last week, in Kigali ahead of the official court closure after 20 years of adjudication…

…Rwanda and the tribunal established in 1995 have disagreed over several issues, including lengthy but minimal trials, refusal to transfer archives of the court to Rwanda and breach of sentence enforcements of convicts…

…At least 900,000 pages of transcripts, audio and video recordings of more than 6,000 trial days, 10,000 decisions, on top of 1,020 terabytes digital content are shelved at the tribunal centre in Arusha, Tanzania.

According to the tribunal officials, the court documents, including those classified as ‘confidential’, are the sole property of the United Nations.

But why is the ICTR so hesitant to hand over its archives to Rwanda? After all, this is the history of the people of Rwanda and not that of a now-extinct tribunal. It was Rwandans who lived these crimes and who undoubtedly deserve ownership over the documents which spell out, in harrowing detail, the forensic and factual truths behind the 1994 Genocide.

The problem is, once again, that there remains very little trust between the Kagame government and the broader international community, of which the ICTR is just one part. Kigali has always been suspicious, not only of the tribunal, but of the broader project of international criminal justice and the human rights community that propels it. Kagame’s government, which has ruled since the end of the Genocide and which many consider to be authoritarian, has also earned a reputation of hunting down, intimidating, and assassinating political figures opposed the regime. There are thus pertinent fears that, in the wrong hands, the archives could be used for rather nefarious purposes. Continue reading →

Posted in Archives, International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Legacy, Rwanda, Rwandan Genocide | Tagged , , | 2 Comments

Open for Business – An Interview with the ICC’s First-Ever Staff Members, Sam Muller and Phakiso Mochochoko

Posted on December 15, 2015 by Mark Kersten

Imagine being in a team of just two and having the responsibility of opening the first-ever permanent international criminal court. That was the unique and challenging task that Sam Muller and Phakiso Mochochoko faced in 2002. Today, with the ICC entering its new premises, it is an opportune time to look back on the very first days of the Court’s existence. Continuing his series of interviews at JiC, Shehzad Charania, Legal Adviser and Head of the International Law Team for the British Embassy in The Hague, recently spoke with Sam and Phakiso, the ICC’s very first staff members. Shehzad asked them about those early days, the work involved, the challenges they faced, how the Court has progressed through the years, and their hopes for the future of the ICC.

Long before the ICC had a groundbreaking ceremony for its new premises, Sam Muller and Phakiso Mochochoko had to break new ground in opening the first-ever permanent international criminal court (Photo: ICC Permanent Premises)

Long before the ICC had a groundbreaking ceremony for its new premises, Sam Muller and Phakiso Mochochoko had to break new ground in opening the first-ever permanent international criminal court (Photo: ICC Permanent Premises)

The Idea of an Advance Team

The Advance Team was the idea of the late Hans Peter Kaul, the Head of the German Delegation at the Rome Conference, and later Vice President and Judge of the ICC. The Court became a reality less than four years after the Rome Conference and the speed of ratifications had taken everyone by surprise. There had been those who had thought the milestone of sixty ratifications [required before the Rome Statute could come into force, and the ICC established] would take at least ten years. But by 2001, 47 States had ratified, and it became clear that there would be 60 within the year.

There was, therefore, a fear that once the UN Secretary General received the 60th ratification, there would be no physical premises ready to begin work, which would have a serious impact on the ICC’s credibility.  Many recalled that when the ICTY was set up, the Judges had to work out of the Peace Palace until a permanent building was established; this meant it was slow to get off the ground.

At the same time, John Bolton, then the US Permanent Representative to the UN was leading a campaign against the ICC, in particular going round the world persuading States to sign up to so-called “Article 98 agreements”. This was proving damaging to the ICC’s image, especially as there was no physical institution through which the Court could respond.

Members of the Advance Team

Once the Bureau of the Assembly of States Parties (ASP) had overcome the opposition to an Advance Team, the next step was to appoint its members. This proved controversial. The larger states took the view that those individuals who were part of the Advance Team would gain an advantage in shaping the structures and personnel to reflect their national legal system. To avoid such a situation, the Bureau appointed Sam and Phakiso, nationals of the Netherlands and Lesotho, on the basis that they were considered as “not posing any danger” to the interests of larger member-states.

Eventually, the Advance Team created a number of positions: Sam as the Head of the team, Phakiso as the Legal Adviser; and other positions which would eventually be filled dealing with IT, security, public information and human resources. Later, experts on IT and law (Klaus Rackwitz), the Office of the Prosecutor (Morten Bergsmo) and chambers (Gilbert Bitti) were also brought in.

The Advance Team reported their early progress in monthly reports to the Bureau of ASP. They would apprise the Bureau of every small detail, including the fact that they had acquired desks and chairs, mobile phones – as well as an intern. Because of the ICC’s lack of legal status, Sam was paying for this from his own personal funds.

And even in those early days, they were asking the same “big” questions the ASP, the Court, and commentators are asking now: what should the ICC look like in five, ten or twenty years? What should its optimal capacity be? How should the courtrooms be designed?

The Day the Court Opened Its Doors

On Monday morning, 1 July 2002, Sam and Phakiso were ready to meet the press outside the ICC building in Voorburg, having worked all weekend (with the expert assistance of Claudia Perdomo, Public Information Officer) to ensure everything would run smoothly. The building still had the sign for KPN (the Dutch Telecoms Company) blazed across it. This was Sam’s first experience of facing the cameras; but he had rehearsed what he was going to say all weekend. He made a barnstorming speech, concluding with the announcement that the ICC was as of that day open for business. After answering questions, Sam and Phakiso turned around and purposefully marched into the building. Once in, they had to wait until the media throng had departed before they exited though the back. Their offices had not yet been set up, so they returned to their temporary location at the Dutch Ministry of Foreign Affairs to continue their work.

First Challenges

The ICC was beginning its life from scratch. There was a statute and there were rules of procedure and evidence. But there was no broader governance structure beyond that. The Advance Team soon entered into negotiations on behalf of the Court with the Government of the Netherlands in order to conclude a Relationship Agreement, so that the ICC would have legal status. Sam and Phakiso also began negotiating an agreement with the Netherlands Forensic Institute, to ensure that any evidence they received, for example, bullets, or even body parts, could be stored safely, and correctly. They also had to think about letters/submissions from the public/third parties (i.e. Article 15 communications). There was not yet an Office of the Prosecutor (OTP) which could formally receive such communications. But they all had to be acknowledged and recorded regardless.

Dealing with the Dynamics

The Advance Team was later replaced by the Directorate of Common Administrative Services headed by Bruno Cathala, who would later become the ICC’s first Registrar, while Sam and Phakiso remained as Deputy Director and Legal Advisor respectively.

The Court then saw the arrival of the first set of elected Judges and the first Prosecutor. This created a new dynamic as the Court began to grow and become a fully-fledged and fully-staffed institution. The Judges soon elected a President, and then selected the Registrar. The three organs of the Court were now a reality.

But the establishment of the organs also created natural tensions. All of the principals – with very different personalities, demeanours and styles of working – clung steadfast to their independence. The Coordination Council was, therefore, set up to deal with issues of common concern. One of the first major areas of disagreement was over who should be running Field Offices, the OTP or the Registry. Another pressing issue was deciding whether the OTP should have its own, separate, staff rules, or if there should be one set common to the ICC as a whole. Further complicating matters, each organ also wanted control over its own services. While the  Division of Common Services had been established to provide services common to all three organs, it soon turned out that each organ wanted to retain ownership over services as much as possible. This immediately reinforced the idea of three very separate, independent organs, rather than a one-court principle.   Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Interview, Interviews | Tagged , , | 1 Comment

The Responsibility to Protect isn’t Dead, but its Proponents’ Hubris has Wounded it

Posted on December 9, 2015 by Mark Kersten
A 2011 scene from Tripoli street in the Libyan city of Misrata (Photo: Zohra Bensemra / Reuters)

A 2011 scene from Tripoli street in the Libyan city of Misrata (Photo: Zohra Bensemra / Reuters)

It has been a decade since the international community endorsed the principle of “Responsibility to Protect.” But with hundreds of thousands dead in civil conflicts around the globe, it is clear that the expectations set by this doctrine are not even close to being met.

Adopted by the United Nations in 2005, Responsibility to Protect (R2P) encompasses a deceivingly simple, two-part proposition: First, states have a primary responsibility to protect their citizens from war crimes, crimes against humanity, genocide and ethnic cleansing; and second, if states are unable or unwilling to protect their citizens from such crimes, the responsibility is transmitted to the international community.

When the United Nations Security Council evoked R2P language in response to the 2011 Libyan civil war, many academics and diplomats found cause to celebrate. R2P had finally arrived. Five years later, however, states have refused to apply R2P to the crisis in Syria while a spiral of political violence ravages Libya. What does this mean for the fledgling doctrine?

The international community’s disregard for R2P in Syria certainly does harm to the doctrine. So too does Libya’s languishing in a violent political crisis and the allegations that R2P acted as a veneer for regime change. But what has also wounded R2P is the hubris of some of its proponents — those who over-confidently insisted that R2P had been invoked when it hadn’t and that it existed where it didn’t. By raising expectations bound to be frustrated, these advocates have hurt the R2P doctrine they hoped to elevate.

R2P’s architects and supporters saw the doctrine as a means to fundamentally transform how we conceptualized state sovereignty and responsibility, overlapping the two concepts to entrench and propagate respect for universal human rights and the sovereign integrity of states. But the principle experienced a rather rocky birth. Despite a multitude of candidate situations, in its first years R2P was never successfully invoked as a means to effectively protect civilians. While the doctrine had achieved what international human rights expert David Scheffer called “rhetorical presence” in international relations and law, little substantive advances have been made. In 2008, Gareth Evans, one of R2P’s chief proponents, asked whether it was “an idea whose time has come … and gone,” and observed that states seemed to exhibit “buyers remorse” towards the idea. Making matters worse, when R2P-type language was eventually evoked by states, it was done to advance nefarious political interests. Russia, for example, employed R2P-style rhetoric to justify its invasion of Georgia in 2008 and, later, its annexation of Crimea. In short, R2P’s future looked bleak.

But as the regime of Moammar Gaddafi threatened to indiscriminately slaughter citizens protesting the dictator’s forty-year rule in early 2011, Libyan diplomats joined states across the region and world to call for an intervention to protect civilians. The U.N. Security Council responded by passing two resolutions. On Feb. 26, 2011, Resolution 1970 was passed unanimously. In referring the situation in Libya to the International Criminal Court, the council recalled “the Libyan authorities’ responsibility to protect its population.” A few weeks later, the council passed Resolution 1973, which evoked the language of R2P even more substantively by “[r]eiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians.” Resolution 1973 subsequently authorized U.N. member states to take “to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.”

Proponents of R2P immediately heralded the language of Resolutions 1970 and 1973. For Ramesh Thakur, one of R2P’s architects, the apparent invocation of the doctrine was a “game-changer” that “breathed life” into R2P. Academics Alex Bellamy and Paul Williams went so far as to assert that, “Libya reflects a new politics of protection.” U.N. Secretary-General Ban Ki-moon emphatically declared that “Resolution 1973 affirms, clearly and unequivocally, the international community’s determination to fulfill its responsibility to protect civilians from violence perpetrated upon them by their own government.” International relations and U.N. expert Thomas G. Weiss similarly stated that Libya signaled that R2P was “alive and well.”

The problem with such proclamations was that, in their overzealous drive to read R2P into Resolutions 1970 and 1973, many scholars and diplomats alike failed to realize that neither resolution actually operationalized the R2P doctrine. Continue reading →

Posted in International Law, Libya, Responsibiltiy to Protect (R2P), Syria | 9 Comments

1990s Hollywood Film Covers Meet Anti-ICC Propaganda – A Lighter Moment from this Year’s ICC Conference

Posted on December 8, 2015 by Mark Kersten
(Photo: Carrie Comer)

(Photo: Carrie Comer)

Last week, I reported at length about the trials and tribulations of this year’s Assembly of States Party’s conference. Most of the conference had a rather somber tone, due to frustrations and concerns over the Kenyan government’s attempts to subvert the independence of the ICC. But at such events, funny – even silly – things are bound to happen. One such moment came, inadvertently, thanks to members of Kenya’s delegation. That’s probably unsurprising given the sheer size of their delegation – estimated to have been around one-hundred people strong (and paid for by the Kenyan taxpayer!). In comparison, the core delegation of the UK consisted of five members.

Some of that public money apparently went to designing and disseminating the flashy flyer posted above with the title “Wrong Suspects – Flawed Trials”. The flyer, featuring Kenyan Deputy President William Ruto and his co-accused at the ICC, Joshua Sang, were distributed throughout the conference hall. As more than one commentator I heard ask, in all seriousness and quite rightly, if Ruto and Sang are the wrong suspects, then who are the right ones? If the Kenyan government knows, then why has no action been taken?

On a less serious note, the inspiration seems to be early-to-mid 1990s Hollywood flicks (just look at that snazzy gold banner!). But given Kenya’s insistence that the ICC is a tool of neo-colonial Western powers and a racist institution, I just wish they had taken the opportunity to give their handouts the title “White Men Can’t Jump Judge”.

Posted in Assembly of States Parties, Humour, Kenya, Kenya and the ICC | 1 Comment

Kenya Gambled and Lost at the ICC’s yearly Conference – But it’s not Game Over Yet

Posted on December 4, 2015 by Mark Kersten
Kenyan Foreign Minister Amina Mohamed (Photo: AFP)

Kenyan Foreign Minister Amina Mohamed (Photo: AFP)

The African Group for Justice and Accountability (AGJA) had just been launched at one of the dozens of Assembly of States Parties (ASP) side events. There were a few minutes left and so, as the moderator of the event, I opened the session up for a public Q & A. A man seated near the front of the packed room introduced himself as the senate leader from Kenya and asked the panelists to discuss the International Criminal Court’s alleged double standards towards African states.

After a round of questions had been gathered, Navi Pillay, the former UN High Commissioner for Human Rights and member of AGJA, began to answer the senate leader’s question. But his attention was diverted. Instead of listening, he was playing on his phone and joking with those around him. “Mr. Senate leader”, Pillay sternly said, “I am talking to you…” Finally, he looked up only to be confronted with the best quip of the evening: “Before considering double standards on the  international level, you should confront double standards at home”. Understandably taken aback, the Kenyan senate leader could do little but nod in agreement.

In many respects, this episode was symptomatic of Kenya’s experience at the 14th ASP in The Hague. The country sent a one-hundred-person-strong delegation to the ICC’s annual conference. The bill for their flights, accommodation and expenses was footed by the Kenyan taxpayer. No delegation came remotely close to matching Kenya’s numbers. Delegates were instructed to attend all of the side events and make their presence known. The word ‘hijack’ came up on more than one occasion. A permanent feature at the World Forum, the convention centre where the ASP was held, was a gaggle of Kenyan representatives who persistently loitered in the halls of the ASP. They certainly succeeded in making their presence known, but in a way that frustrated not only ICC officials but delegates of all stripes.

The Kenyan delegation, headed by Foreign Minister Amina Mohamed, arrived at the ASP with one goal in mind: to ensure that Deputy President William Ruto would be acquitted on all charges relating to his role in the country’s 2007-08 post-election violence. To achieve their aim, Kenyan representatives put pressure on the ASP to guarantee that recanted evidence in Ruto’s trial could not be used retroactively to changes to ICC rules made in 2012. In fact and effect, they wanted the ICC’s member states to intervene in an ongoing judicial matter before the Court. Their efforts failed spectacularly.

Both the sheer size, as well as the undiplomatic behaviour of Kenya’s delegation, did the country no favours. When, in the opening plenary sessions, Kenya expressed its views, no other African states, other than Uganda, spoke in favour — not even South Africa, which many expected to buddy up with Kenya at the ASP. Throughout sensitive, behind-the-door negotiations, Foreign Minister Mohamed tweeted dozens photos of herself and other delegates, leaving the impression that she was more interested in giving the appearance of goodwill than actually searching for useful compromises.

In another public session, when a member of a civil society organisation mentioned allegations of the Kenyan government’s efforts to eliminate the Mungiki – a notorious and violent group that is responsible for many bouts of atrocities in the country – Mohamed exclaimed that the NGO representative was defending terrorism and needed to be expelled from the ASP. It wasn’t pretty.

Continue reading →

Posted in Assembly of States Parties, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , , | 2 Comments

The ICC, A Victims’ Court? It Could Happen

Posted on November 21, 2015 by Mark Kersten

Stephen Smith Cody joins JiC for this post discussing a recently released, timely, and must-read report on victim’s expectations with, and engagement at, the ICC: The Victim’s Court – A Study of 622 Victim Participants at the International Criminal Court.

(Photo: Amnesty International)

(Photo: Amnesty International)

Many victims of war crimes and other atrocities have said they are disappointed in the International Criminal Court (ICC). As one victim said: “The court hears the voices of the people who perpetrated this violence, not the victims.” In a study of ICC victims, released this week at the Assembly of States Parties Conference in The Hague, we document the concerns of more than 600 of them.

Our findings suggest that the ICC has reached a critical juncture: It must invest in greater outreach and education programs to give victims the tools to meaningfully participate in trials or accept that it’s failing to meet its mandate to include them.

Our study shows that most victims participating in the court have insufficient knowledge to make informed decisions about their cases, rarely meet with court personnel, and feel frustration at the lengthy trial process, which can go on for years. “As victims, we do not understand. We need more information so we understand our case. Intermediaries are struggling to inform us. They provide information when they have it, but the problem is to reach us. Their means are limited. There are not enough efforts to keep the victims informed,” explained one victim.

When the Rome Statute created the ICC in 1998, it promised survivors of mass violence a new kind of international court—one that would give them an influential voice in criminal trials. Many at the court have made admirable efforts in The Hague and in victims’ communities to realize this promise, but much more needs to be done.

Unlike other courts where victims only testify as witnesses during trial, the ICC gives victims the right to present their views to judges at various stages of the proceedings, and even question witnesses during trials, so long as judges determine that they are exercising these rights in a manner consistent with a fair trial for the accused. Victims also have a right to receive reparations, including individual compensation in some cases.

These victim-centered innovations—controversial and vigorously debated during the Rome Statute negotiations—reflect a growing consensus that international criminal courts should not just punish the guilty, but also ensure that the voices of victims are heard.

But our study shows this experiment in international criminal justice is not fully succeeding, at least not yet. Our interviews in Uganda, Democratic Republic of Congo, Kenya, and Côte d’Ivoire show that ICC prosecutions to date have scarcely affected victims’ the daily lives. Others say the court built up hopes of convictions and reparations only to disappoint them.

Victims’ said that their satisfaction with international justice depends largely on their personal interactions with court personnel and feedback on their cases. Regular contact and communication can be even more important to victims than securing convictions of high-level perpetrators, who victims may see as less responsible for violence than local offenders. Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), International Criminal Justice, Victim Participation | Tagged , | 2 Comments