The Africa-ICC Relationship – More and Less than Meets the Eye (Part 1)

Posted on July 17, 2015 by Mark Kersten
(Cartoon: The Economist)

(Cartoon: The Economist)

This is part one of a three-part series on the ICC-Africa relationship. Click here for part 2 and here for part 3.

There is no point denying it. The International Criminal Court (ICC) has a problem with its relationship with African states. Well over a decade into its existence, the ICC has never opened an official investigation outside of the African continent. Over the last five years, a significant number of African governments have spoken out against the institution and its interventions, insisting that they are biased against Africans. While some may wish it otherwise, these states cannot be swept under the rug of Africa’s dictatorships and autocracies, as offensive as that otherwise would be.

While proponents of international criminal justice have often blamed growing anti-ICC sentiment on the unyielding lobbying of autocrats, such as indicted Sudanese President Omar al-Bashir, today the Court’s sharpest critics are members of democratically-elected governments that previously made a point of supporting the ICC, including those in Kenya and South Africa. Even within the hallways of the ICC and amongst the Court’s champions, there is an acknowledgement that the institution has lost some of its high ground and needs to find a ‘road out of Africa’, i.e., some case or conflict that challenges the widespread perception that the Court is biased or unfair to African states.

Still, it is remarkable just how little we actually know about the relationship between the ICC and African states. In fact, our understanding of the ICC-Africa relationship seems entrenched within a harsh and overly simplistic dichotomy, wherein the Court is either viewed as a neo-imperial, colonial project bent on subjugating members of the Global South or as a deeply misunderstood force for good and a legal institution that rises above politics.

In this first part of a three-part series on the Africa-ICC relationship, I attempt to assess why we tend to view the relationship in such limited terms. Over the next two weeks, I will examine recent cases that demonstrate the rich political complexity of the relationship between African states and the ICC, as well as some new avenues for assessing and judging the relationship.

The Africa-ICC Relationship – More and Less than Meets the Eye

The understanding of diplomats, the media, and yes, even scholars, of the ICC-Africa relationship is overly simplistic and misleading. There are (at least) three key reasons for this.

First, many African states have presented their criticisms of the ICC in over-simplified and factually misleading terms. They often describe the Court as a neo-colonial institution, a tool of the West, or even as a “race hunting” institution. There is little evidence that the ICC is any of these things. Such labels are leveled at the institution not because they are accurate or based on reality, but because such tropes resonate with many constituencies for political and historical reasons. Indeed, such criticism makes little sense when the record shows that the ICC has legitimated more African governments than it has undermined.

Just as problematically, the ICC has responded to the concerns of African states and communities by invoking equally simplistic ripostes. The institution’s response to African criticisms is, at this point, a broken record: that the institution isn’t against Africa but is, in fact, a Court for Africa; that dozens of African states joined the Court; that they have numerous preliminary examinations outside of Africa. These arguments, as I have previously argued, have been repeated so often that the Court’s public relations strategy now borders on Einstein’s definition of insanity: repeating the same behaviours or arguments and expecting different results.

In short, neither African states critical of the ICC nor the Court itself are willing or able to have an open or candid dialogue about the politics behind their relationship because 1) it is more politically expedient for certain African governments to invoke the tropes of neo-colonialism and racism and, 2) the ICC has a phobia of even suggesting that it is a political institution or that the situations it investigates are the result of politics or political decision-making.

Compounding matters is the third reason why the ICC-Africa relationship is so poorly understood: that, with a few exceptions, we as observers of the ICC have been remarkably ineffective in assessing and analysing what is really going on in this relationship and teasing out its political complexities.

Observers have typically indulged and created what might be called a “crisis industry” that presents the Court as an institution that moves from one breaking-point and crisis of legitimacy to another.

Such a crisis mentality prevents us from understanding ICC selectivity. It places our focus on successive crises instead of the bigger picture of why the Court investigates some cases and not others. Specifically, observers of the ICC need to do better a much better job at disaggregating and differentiating two questions:

1)    Why has the ICC targeted those states that it has?

2)    Why hasn’t the ICC targeted those states that should be investigated?

In the dominant discourse on the ICC and Africa, these two questions are collapsed. We look at a map, see that all of the states the Court has intervened in are in Africa and assume that this surely must demonstrate some unfair bias.

But there are, in fact, answers to both questions that explain, at least to some extent, the distribution of interventions by the ICC around the globe. Continue reading →

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, Justice | 22 Comments

Weighing Punishment and Peace: The Case of Colombia

Posted on July 14, 2015 by Mark Kersten

Louise Mallinder joins JiC for this timely essay on the need to weigh competing prerogatives in Colombia: negotiating a peaceful transition and achieving accountability. Louise is a Professor in international law and human rights at the Transitional Justice Institute, University of Ulster. She has previously written for JiC on the relationship between accountability and amnesty.

Small arms seized by government troops from the FARC are put on display (Photo: RTÉ)

Small arms seized by government troops from the FARC are put on display (Photo: RTÉ)

At the end of a conflict, calls to punish murderers and torturers for their crimes generally carry an intrinsic moral force. However, debates on the need to impose proportionate punishments on perpetrators can be one of the most divisive elements of peace negotiations, as the prospect of facing robust sentences may deter combatants from signing an agreement. The question of how to reconcile demands for amnesty and punishment has been an increasingly pivotal issue in Havana peace talks that are seeking to find a negotiated settlement to end the five-decade old conflict between the Colombian government and the FARC guerrilla movement.

Just this month, both parties agreed to set up a truth commission upon successful completion of the peace negotiations. The statements issued made clear that the evidence uncovered by this truth commission could not be used in criminal proceedings, and the commission would not be able to impose penalties on perpetrators. This does not rule out the possibility of criminal justice as trials could operate in conjunction with this truth commission.

Still, it is unclear at this stage to what extent FARC will acquiesce to some of its members facing criminal liability. For example, when the truth commission was announced, FARC reiterated its position that ‘no guerrilla is willing to do prison time for exercising [their right to rebellion]’. However, it may be possible that they are willing to accept some punishment for crimes against humanity and war crimes, provided state agents responsible for such crimes are also tried, and that FARC members responsible only for lesser crimes, such as rebellion, are exempt from punishment. The government of Juan Manuel Santos is facing strong pressure from right-wing forces within Colombia that guerrillas face criminal liability for serious violations and any proposed measures in this regard are also likely to face scrutiny from international actors, particularly the International Criminal Court and the Inter-American Court on Human Rights.

Given the vexed and highly politicised nature of debates on the need for prosecution and punishment of serious crimes resulting from Colombia’s civil war, a recent report by Paul Seils of the International Center for Transitional Justice using the Colombian context as a lens through which to explore the policy objectives of punishment, is particularly welcome.
A central question asked in this report is the extent to which commonly invoked rationales for punishment of ordinary crimes in peaceful, democratic contexts are appropriate or desirable in the exceptional circumstances of a transition from war to peace. While Seils is careful to make clear that he does not regard transitional justice as ‘criminal justice lite’, his analysis recognises that complex circumstances faced by post-conflict societies may mean that the ‘normal response to violations is unavailable and insufficient’ to meet the needs of victims.

The report then reviews the rather limited guidance on sentencing for serious human rights violations provided in international human rights law. Given that his focus is Colombia, his (as well as this) analysis understandably looks particularly at the case law of the Inter-American Court of Human Rights (IACHR). With respect to punishment post-conflict, two of the most notable decisions of this Court are Rochela Massacre v Colombia (2007) and the Mozote Massacre v El Salvador (2012). In the former, the Court made clear that punishment for serious violations must result from a judicial decision and should be proportionate to the gravity of the offence. Interestingly, this case related to Colombia’s Justice and Peace Law under which right-wing paramilitaries responsible for international crimes and serious human rights violations were able to benefit from substantially reduced sentences, in exchange for truth telling, contributing to reparations, and pledging to refrain from further violence. Given these leniency arrangements, it is hard to describe the penalties that resulted from the Justice and Peace Law process as proportionate. Nonetheless, in this judgment the IACHR found it to be compatible with the State’s obligation to punish under the American Convention on Human Rights.

The understanding of proportionality applied in the La Rochela case relates solely to the gravity of punishment imposed, whereas the later El Mozote case opens the possibility of weighing different issues when considering what is a proportionate response to serious violations. In the main judgment, the IACHR highlighted the state’s obligations to investigate, prosecute and, if appropriate, punish serious violations of human rights, and provide reparations to victims. The judgment did not grapple with the question of what punishment would be appropriate for such crimes. However, in a detailed and persuasive Concurring Opinion, Judge García-Sayan considered the tensions that can arise between states’ obligations to investigate, prosecute and punish serious violations and the duty on war-torn states to prevent future violations by ending conflict. With respect to punishment, he argued that it should be proportionate to the gravity of the violations. However, in keeping with the seeming contradiction of the IACHR’s judgment in La Rochela, he then favourably noted the possibility of sentence reductions and alternative sanctions for those responsible for serious crimes who admit responsibility and provide information. He concluded that:

in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately.

Here, the meaning of proportionality has shifted from solely being focused on imposing punishments that are proportionate to the gravity of the offence. Instead, he reframes proportionality to argue that any limitations or reductions in punishment should not be disproportionate to the aims being sought through holistic transitional justice approaches that seek to achieve peace and to fulfil victims’ rights to truth, justice and reparations. This in turn suggests that determinations of appropriate levels of punishment should take into account whether the application of punishment could have a detrimental effect on the state’s ability to fulfil its other obligations. Continue reading →

Posted in Amnesty, Colombia, Complementarity, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Peace Negotiations, Peace Processes | Tagged , , | 3 Comments

Lessons from Nuremberg: Why Obama Should Rethink His Gitmo Strategy

Posted on July 9, 2015 by Mark Kersten

JiC welcomes Jonathan Hafetz for this fascinating essay on the lessons the U.S. can and should learn from Nuremberg for its prosecution of alleged terrorists in Guantanamo Bay. Jonathan is Associate Professor of Law at Seton Hall University and is currently writing a book about the tension between justice and legality in international criminal law. He also co-authored an amicus curiae brief in Bahlul v. United States.

Omar Khadr, a former detainee at Guantanamo Bay, appears before a military commission in 2010.

Omar Khadr appears before a military commission in 2010. Like Ali Hamza Al Bahul, Khadr was a detainee at Guantanamo Bay.

While the United States played an important role in laying the foundations for an international criminal justice system after World War Two, its record in recent years has left much to be desired. The U.S. has not only refused to join the International Criminal Court (ICC), but has also flouted principles of international justice by failing to hold accountable those responsible for the commission of torture and other grave human rights violations after 9/11. The U.S., moreover, has demonstrated considerable chutzpah by seeking to capitalize on concepts borrowed from international criminal justice where convenient.  One example is the continued effort to prosecute suspected terrorists in military commissions, where the U.S. has invoked the concept of war crimes to defend its creation of a specialized court system that limits the fair-trial rights of defendants.

The recent ruling by a federal appeals court invaliding the military conviction of Guantanamo detainee Ali Hamza Al Bahul could set the stage for another high stakes legal battle over the commissions.  As the Obama administration contemplates whether to appeal the ruling to the Supreme Court (or to the full D.C. Circuit), the President should consider closely the lessons of the prosecution of Nazi leaders at Nuremberg, widely regarded as the most important war crimes trial in history and one in which the United States played a leading role.

In overturning the defendant’s conviction in Bahlul v. United States, the D.C. Circuit ruled (2-1) that military commissions cannot exercise jurisdiction over offenses, such as inchoate conspiracy, that are not recognized as war crimes under international law.

The panel grounded this ruling in Article III of the U.S. Constitution, which requires that crimes be tried by juries and that defendants be afforded the protections outlined in the Bill of Rights.  The Supreme Court has recognized limited exceptions to this constitutional rule, including for military commissions.  In the World War II case, Ex parte Quirin, the Court permitted the military trial of Nazi saboteurs for violations of the law of war.  (The law-of-war violation the Court identified in Quirin was the saboteurs’ burying their German military uniforms and secretly entering the United States).

In Bahlul, the appeals court held that this law-of-war exception to Article III (federal court) criminal jurisdiction referred exclusively to violations of international law, thus rejecting the U.S. government’s argument that the exception also encompassed violations of a separate domestic common law of war. In other words, if the U.S. government is going to prosecute someone in a military commission for a war crime, it has to be for a war crime recognized by international law, and not some bastardized U.S. version. I have previously described some weaknesses in the U.S. legal theory here and here.

Inchoate crimes such as conspiracy are useful tools for counterterrorism officials.  Like material support for terrorism, which was invalidated on ex post facto grounds by a previous D.C. Circuit ruling, conspiracy allows prosecutors to expand the net of liability to capture suspects before a terrorist attack is committed, in some cases based on little more than guilty association.  In Bahlul, the defendant was convicted of conspiracy and material support (as well as solicitation) for producing propaganda videos for al Qaeda.

Those charges, however, remain available to federal prosecutors in terrorism cases. The Bahlul ruling asks only whether they should also be available in military commissions.

In her dissent, Judge Karen Henderson claimed the mantle of Nuremberg to defend military commissions.  She invoked Supreme Court Justice Robert Jackson, who served as the chief U.S. prosecutor at Nuremberg and pointed to the Nuremberg tribunal’s adaptation of international law to meet “the needs of a changing world.”

Judge Henderson is certainly correct that the International Military Tribunal (IMT) at Nuremberg demonstrated some flexibility in holding Nazi officials individually responsible for the commission of aggressive war and crimes against humanity, neither of which was clearly outlawed at the time. The Nuremberg judges overcame accusations of ex post facto punishment by appealing to higher principles of justice: Nazi leaders had to be held accountable because of the enormity of their crimes, which were obvious to the world.

But here’s the rub.  There is no corresponding need for military commissions to prosecute terrorism offenses. Federal courts have capably handled terrorism cases for decades and have gotten even better at it since 9/11. In fact, a federal court in New York was preparing to try alleged 9/11 mastermind Khalid Shaikh Mohammad and four co-conspirators before the Obama administration succumbed to political pressure and charged the defendants in a military commission. Nuremberg, in short, resorted to innovation to do justice, not avoid it.

U.S. Prosecutor Robert H. Jackson addresses the court at the Nuremberg Military Tribunal in 1946.

U.S. Prosecutor Robert H. Jackson addresses the court at the Nuremberg Military Tribunal in 1945.

Another important difference is that Nuremberg emphasized fair trial rights from the outset. Jackson set the tone early on in a speech to the American Society of International Law:

You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty… the world yields no respect to courts that are merely organized to convict.

The Guantanamo commissions, by contrast, were originally organized for the very purpose of convicting all of their defendants. Before they were first struck down by the Supreme Court in Hamdan v. Rumsfeld, commissions allowed for the use of evidence obtained by torture and were pervaded by politicized decisions about whom to charge and command influence from superior officers to produce convictions.  To take one example, in 2006 the Deputy Defense Secretary instructed the former Chief Prosecutor about the “strategic political value” of charging some prisoners before the upcoming midterm elections.  While Obama has made various improvements to the reconstituted commissions, the system is still plagued by flaws, including persistent interference with defense counsel and excessive secrecy.   Continue reading →

Posted in Guest Posts, International Criminal Justice, Terrorism, United States | Tagged , , , , | 2 Comments

On Darfur, the ICC Prosecutor Lays It Down

Posted on July 2, 2015 by Mark Kersten
(Photo: Mark Knobil)

(Photo: Mark Knobil)

The International Criminal Court (ICC) has always had something of a phobia of politics. The Court has a deep-seated fear of appearing to be political. The Rome Statute and only the Rome Statute, its prosecutors insist, informs its decision-making. Politics simply cannot and does not affect or impinge on any decisions the Court makes. To admit otherwise would somehow destroy the integrity and independence of the Court.

To many observers, however, the ICC isn’t just in denial. The idea that the ICC isn’t or shouldn’t be political is neither possible nor desirable. Sure, the Court shouldn’t be beholden to the political interests of the most powerful states. But in a world dominated by self-interested and easily distracted states, the Court needs to be political and to act politically in order to survive. Without politics, international criminal justice would be a tick-box exercise alien to those against whom political violence and crime have been perpetrated. Without embracing its politics, the ICC would never be able to fulfil its ultimate promise, one that is itself fundamentally political: a world in which the prosecution of atrocities is a well-established and entrenched norm.

Of course, the ICC’s Office of the Prosecutor (OTP) does practice politics if for no other reason than the fact that it has to. Residing in the uncomfortable intersection between law and politics, the OTP can’t simply say that law is its territory and politics is the prerogative of other actors. It cannot wish politics away, nor should it.

Thus, the question we need to ask is not whether this or that decision by the ICC is “political” or not. Rather, we need to ask whether the decisions the Court makes with regards to its selection of situations and cases, its relations with states, and its communication strategies are politically intelligent and positively contribute to propelling international criminal justice as a project.

All of this is a rather long-winded lead-up to the main focus of this post: the political decision by the OTP to really up the ante on justice in Darfur.

As I wrote in my last article, we are still waiting to know what will define the tenure of current ICC Prosecutor Fatou Bensouda. But one of the most obvious differences between Bensouda and her predecessor, Luis Moreno Ocampo, is her timidity in public relations. Where Moreno Ocampo chased the spotlight and thus claims a legacy of putting the Court ‘on the map’, Bensouda has been much more measured in her public appearances. That is, with the exception of one case: Darfur.

Towards the end of last year, Bensouda took the rather remarkable decision of ‘hibernating’ active investigations in Darfur. After having referred the situation in Darfur to the ICC in 2005, the United Nations Security Council has done close to diddly-squat to support the Court’s investigations. Some seven years after the ICC charged Sudanese President Omar al-Bashir with war crimes, crimes against humanity and genocide, he remains in power. On one of her bi-yearly visits to update the Security Council on her investigations in Darfur, an evidently frustrated Bensouda essentially told Council members that their complete lack of interest and support for the ICC’s work made continued investigations in Darfur pointless.

In international justice circles, Bensouda’s challenge to the Security Council was met with widespread approval. The relationship between the Council and Court has long been a sore point for observers of the ICC, a problem made worse by the OTP’s periodic moments of infatuation with the Security Council as well as its history of pandering to its permanent members. Bensouda’s Security Council visit signalled a different – and welcome – tone.

Still, surprising exactly no one, the Security Council returned to doing diddly-squat on Darfur. Continue reading →

Posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Office of the Prosecutor, Sudan | Tagged | 4 Comments

Innovating Justice: The Mobile Apps Aiming to Transform How We Respond to Situations of Mass Atrocity

Posted on June 23, 2015 by Barrie Sander
Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions, recently released a report on the use of information and communication technologies to secure the right to life (photo: OHCHR)

Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions (photo: OHCHR)

International criminal courts have often been a source of inspiration for technological innovation. At Nuremberg, the trial of the leading Nazis was facilitated by the creation of a pioneering interpretation machine by IBM, which enabled the simultaneous translation of the proceedings into English, Russian, French and German. In addition, the prosecution took the unprecedented step of relying on a documentary film, Nazi Concentration Camps, to provide a visual register of the unimaginable atrocities that had been perpetrated under Nazi rule.

Fast-forward seventy years, however, and the field of international criminal justice is struggling to keep apace with the lightning speed at which new information and communication technologies (ICTs) have been developing. In 2010, Philip Alston, then-UN Special Rapporteur on Extrajudicial Executions, observed that the use of ICTs in human rights work was “only at a nascent stage”. In a new report released in April this year, Alston’s successor Christof Heyns revealed that the full potential of these new technologies is still yet to be systematically investigated or internalised by the human rights community.

Nonetheless, recent evidence suggests that the tide may be beginning to turn. Initiatives such as the Satellite Sentinels Project and Amnesty International’s Eyes on Darfur campaign have begun to reveal both the possibilities and limitations of leveraging the power of high-resolution satellite imagery to document and deter the commission of atrocities in Sudan. Similarly, in response to the 2007-08 post-election crisis in Kenya, the Ushahidi crowdsourcing platform was created to visually map the violence by accumulating reports submitted by Kenyans from all around the country via text or email. As these developments suggest, the age of digital humanitarianism has very much arrived and the field of international criminal justice is beginning to take note.

(Photo: Satellite Sentinel Project)

(Photo: Satellite Sentinel Project)

Arguably one of the most revolutionary technological developments of recent years has been the rise of smartphone applications. Recognising the potential of these new technologies, a range of organisations have been hard at work developing humanitarian apps that aim either to enhance the documentation of atrocities or raise awareness of applicable legal frameworks. With these developments in mind, this post takes a closer look at three humanitarian apps that are currently under construction or have recently been launched. After providing a brief overview of how each app works, the post concludes with a discussion of some of the risks that may arise from their deployment in practice.

Continue reading →

Posted in Activism, International Criminal Justice, Journalism, Justice, Sexual Violence, Uncategorized | 3 Comments

Making Human Rights Violations Visible: The UN Commission of Inquiry on Sri Lanka

Posted on June 21, 2015 by Mark Kersten

Thamil Ananthavinayagan joins JiC for this guest post on the UN Commission of Inquiry of Sri Lanka’s soon-to-be released report and the challenges in achieving justice and accountability. Thamil is PhD researcher at the Irish Centre for Human Rights at NUi Galway and where his work focuses on the UN Human Rights Council.

A soldier carries a small child during the Sri Lankan civil war (Photo: Reuters)

A soldier carries a small child during the Sri Lankan civil war (Photo: Reuters)

“Only the dead have seen the end of war.”
– George Santayana

In the concluding phases of their thirty-year civil war, Sri Lankan security forces and the Liberation Tigers of Tamil Eelam (LTTE) repeatedly committed mass atrocities. Although both sides had committed atrocities throughout the conflict, the scale and nature of violations radically worsened in the final five months that led up to the government’s declaration of victory in May 2009, resulting in the deaths of thousands of civilians and the displacement of more than 350,000 people. This post explores the consistent failure of the Sri Lankan government to adequately respond to these violations and points to recent developments that suggest how the tide may finally be beginning to turn.

Sri Lanka’s Culture of Impunity

In light of mounting pressure for an international inquiry into alleged crimes committed during the civil war, in June 2010 Secretary-General Ban Ki-moon set up a Panel of Experts to advise on accountability issues relating to violations of international human rights and humanitarian law in the final stages of the Sri Lankan civil war. The Panel, whose members included Marzuki Darusman of Indonesia (chair), Yasmin Sooka of South Africa and Steven Ratner of the United States, identified credible reports that war crimes had been committed by both the Sri Lankan security forces and the LTTE during the conflict.

Despite these conclusions, to date no credible domestic investigations have been initiated to examine the alleged commission of international crimes; similarly, there has been a notable lack of domestic efforts to prosecute suspects. Nonetheless, in the face of immense international pressure, the now-former Sri Lankan President, Mahinda Rajapaksa, did agree to appoint a Lessons Learnt and Reconciliation Commission (LLRC) which, in its final report, finally acknowledged that serious human rights violations had been committed. Yet, despite the LLRC making a number of valuable recommendations, the Sri Lankan government has failed to implement most of them. Moreover, the government has also refused to conduct any independent investigations into alleged war crimes, thereby fostering a broad culture of impunity for crimes committed during the civil war – and since.

The International Community Takes Action: The UN Commission of Inquiry on Sri Lanka

Against this background, the international human rights community decided to take action. In light of the idleness of the Sri Lankan government, a Commission of Inquiry on Sri Lanka was established by the United Nations Human Rights Council (UNHRC). The creation of the Commission was spearheaded by the United States and was in operation for a 10-month period beginning in mid-June 2014. It was staffed by 12 commissioners, including two forensic experts, a legal analyst, a gender specialist, and investigators.

In the past, the UNHRC has established numerous commissions of inquiry and fact-finding missions covering a range of human rights crises, including Cote d’Ivoire, Syria, Lebanon, North Korea, and Gaza. These commissions are innovative vehicles, specifically designed to investigate urgent human rights situations; they are temporary, non-judicial mechanisms, crucial for promoting human rights, deterring future human rights violations and ensuring respect for the rule of law.

One of the major challenges faced by any commission concerns impediments experienced by its members with respect to access and cooperation; lack of cooperation can include governments refusing to speak with or provide information to these bodies or refusing Commission members entry to a country or particular areas where the incidents under investigation allegedly took place.

In the case of Sri Lanka, the government not only consistently refused to cooperate, but also waged a war of words on the Commission, branding its investigators unprofessional, selective and biased for refusing to divulge details of their witness interviews. UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein felt compelled to counter these allegations in an official statement, declaring with unaccustomed sharpness that the government of Sri Lanka had “refused point blank” to cooperate with the investigation, instead creating “a wall of fear” to deter people from submitting evidence to the commission.

Change? The current and former Presidents are formerly close allies.

Change? The current and former Presidents are formerly close allies.

The Sri Lankan Presidential Election 2015: A Turning Point?

In a surprise election outcome in early January 2015, voters shocked themselves by dismissing Mahinda Rajapaksa, whose administration had led the country to the brink of authoritarianism. The new president, Maithripala Sirisena, has promised to restore freedom of the press, independence of judges, and the rights of religious and ethnic minorities. Moreover, after weeks of intense lobbying by the new Sri Lankan government, the UNHRC has agreed to hold off its consideration of the long-awaited report of the Commission of inquiry until September 2015 as part of a “one time only” deferral in the words of UN Human Rights Commissioner Zeid Ra’ad Al Hussein. At the same time, the new President of Sri Lanka has indicated that his new administration will consult the United Nations concerning plans to set up a domestic inquiry into the worst crimes committed in the final stages of the war. This move has been received as both surprising and welcome, particularly given the bitter encounters that had marked the previous administration in Sri Lanka.

However, Sri Lanka is going to face tremendous challenges and also hindrances: firstly, one should not ignore that the political elite is -despite all assurances- interdependent and interwoven. Mr. Sirisena was acting defence minister during the last stages of the war. This gives rise to the question if the people of Sri Lanka can expect impartiality and genuine conduct of war crimes investigation. One should also not ignore the strong support Mr. Rajapakse is enjoying among politicians and the rural Sinhala voters. Secondly, Sri Lanka is still a polarized nation, where Sinhala nationalism is still on the rise; the majority of the Sri Lankan political and social elite is Sinhala, while the minorities are left as social outcasts. Reconciliation is key for making the country a united nation, rather than a nation of communities. After years of erosion of the rule of law, a proper investigation into the alleged war crimes can establish confidence and set the first steps towards true reconciliation. Continue reading →

Posted in Guest Posts, Sri Lanka, UN Commission of Inquiry on Sri Lanka | Tagged , , | 8 Comments

What will define Bensouda’s tenure? We’re still waiting

Posted on June 18, 2015 by Mark Kersten
Fatou Bensouda with her predecessor, Luis Moreno-Ocampo (Photo: ICC)

Fatou Bensouda with her predecessor, Luis Moreno-Ocampo (Photo: ICC)

It has been three years since Fatou Bensouda assumed her position as chief prosecutor of the International Criminal Court (ICC). When the Gambian lawyer took over the post from Luis Moreno-Ocampo, it was widely believed that she would strike the right balance between continuity and change. While Bensouda had been Moreno-Ocampo’s loyal deputy prosecutor, her election also held out the promise of a shift in tone and substance.

One-third of the way through her tenure, there has been a palpable and seismic shift in the atmosphere within the Office of the Prosecutor (OTP). It is more open and transparent. It is a less hostile institution to outsiders, and there’s an absence of distracting and salacious rumours swirling through the Office’s halls. While the Court can never avoid media attention – and it shouldn’t – there has not been a single instance when Bensouda has brought disrepute or embarrassment to her Office. But here’s the catch: it still isn’t clear what the defining features of Bensouda’s tenure are or will be.

Consider this: with the exception of indictments issued for Jean-Pierre Bemba and his legal team on what amount to counts of obstructing justice, Bensouda’s office has yet to issue a single arrest warrant in three years. What explains this recalcitrance?

One hypothesis that certainly can’t explain the lack of new arrest warrants is opportunity. Under Bensouda, a number of official investigations have been launched, including in the Central African Republic and Mali. Preliminary examinations have also been opened in Ukraine and Palestine. Moreover, ongoing examinations have inched towards official investigations in Afghanistan and Iraq. The results of these decisions could very well come to define Bensouda’s tenure, but they haven’t yet. Still, these various interventions and potential interventions do point to an Office that has its fingers in a number of different pies and that isn’t lacking for work.

Relatedly, it is impossible to explain any decision made by the OTP without reference to the Office’s resource constraints. The OTP has a smaller budget than organisations like Human Rights Watch or Amnesty International and it is either at, or very close, to its maximum case and trial capacity. Taking many more cases would require a dilution of resources that would hinder the justice and accountability the Court can hope to deliver.

Still, the ICC doesn’t always have control over when its docket fills up. During Bensouda’s tenure, the Court surprisingly managed to get its hands on a number of suspects, mostly notably the Lord’s Resistance Army commander Dominic Ongwen, the former Democratic Republic of Congo rebel leader Bosco Ntaganda, and former President of the Ivory Coast Laurent Gbagbo. In other words, Bensouda’s hands have been full as her office enjoys the fruits of the Moreno-Ocampo era’s labour.

Of course, we can’t dismiss the mess of an institution that Bensouda inherited and, as the former deputy prosecutor, she has some responsibility for this situation. There is widespread recognition that the OTP under Moreno-Ocampo prioritised the impact of having arrest warrants issued over building cases strong enough to result in convictions. In Libya, the Court issued arrest warrants within just a matter of weeks of opening an official investigation.There have long been questions about the strength of the evidence against the prosecutor’s targets there. As a result of hastily constructed cases, the ICC’s first-ever trial – that of Thomas Dyilo Lubanga – almost collapsed on two occasions. At the same time, even if allegations of witness intimidation prove to be true, the case of Uhuru Kenyatta also collapsed in late 2014, at least in part because the structure of the case against the Kenyan President was weak. Continue reading →

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Luis Moreno-Ocampo | 3 Comments

A Funny Aside to the Whole Bashir-South Africa Debacle

Posted on June 16, 2015 by Mark Kersten
(Photo: White House photo / Pete Souza) This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

And then he said : “we’re not even a member of the ICC!” (Photo: White House / Pete Souza)

With the exception of basically everything written at Wronging Rights, “transitional justice jokes“, and occasional pieces from The Onion, the world of international criminal justice rarely produces funny moments. Franky, it would have shocked exactly no one if there wasn’t an ounce of humour to be found in the whole debacle that was Sudanese President Omar al-Bashir’s recent visit to South Africa in defiance of international and domestic law. But then there was a rather hilarious exchange between journalists and Jeff Rathke spokesperson for the US State Department. As with all humour, it’s the truthiness of the subject matter that has the best comedic effect (but I’ll let the transcript speak for itself):

QUESTION: What makes South Africa different from other countries where Bashir has traveled to before?

MR RATHKE: Do you have some specific —

QUESTION: You want me to speculate or what?

QUESTION: He was also in Egypt.

MR RATHKE: No, the specifics. I said you —

QUESTION: He – for example, the Secretary was recently in Nigeria for an inauguration. He was on the same VIP tribune as Bashir. There was no call to take action then. Is South Africa special, or you expect more of them than other African countries?

MR RATHKE: Well, I’ll let the South Africans speak to their own —

QUESTION: No, I’m asking about you.

MR RATHKE: — to their standards.

QUESTION: I’m not asking about South Africa.

MR RATHKE: Right, but —

QUESTION: I’m asking why you ask – demand this from South Africa in this instance, but you don’t demand it in other instances.

MR RATHKE: Well, again, we set —

QUESTION: That has nothing to do about South Africa.

MR RATHKE: We strongly support the ICC’s efforts to hold those accountable who are responsible for genocide, for crimes against humanity, and for war crimes.

QUESTION: Except when they go to Nigeria?

MR RATHKE: Well, I don’t have the detail of every place where President Bashir may have traveled, so I’m not —

QUESTION: He was there. You’re – I mean, the Secretary of State was there probably within 10 meters of him.

MR RATHKE: Well, I mean —

QUESTION: I was there.

And then it actually gets even better:

QUESTION: And then just to follow up to what Matt was saying, do you believe he should have been arrested?

MR RATHKE: Well, again, the – we strongly support the ICC’s efforts to hold those accountable who are accused of crimes like genocide, war crimes, crimes against humanity. So we certainly are disappointed that no action was taken.

QUESTION: So why is it that you haven’t joined up?

MR RATHKE: Pardon?

Continue reading →

Posted in Humour, International Criminal Court (ICC), South Africa, Sudan | Tagged | 3 Comments

Bashir in South Africa: Defeat, Victory or Both for International Criminal Justice?

Posted on June 16, 2015 by Mark Kersten

JiC is thrilled to welcome Kurt Mills for this guest-post on the implications of Sudanese President Omar al-Bashir’s visit to South Africa. Kurt is a Senior Lecturer in International Human Rights at the University of Glasgow and the author of the forthcoming book International Responses to Mass Atrocities in Africa: Responsibility to Protect, Prosecute and Palliate.

Omar al-Bashir South Africa

Omar al-Bashir upon his return to Khartoum from the AU Summit in South Africa (Photo: Reuters)

A remarkable scene played out in South Africa on 14 and 15 June. Over the course of two days, global and regional geopolitics were pitted against international justice norms as a wanted war criminal – President Omar al-Bashir of Sudan – defiantly came to the country to attend an African Union summit and stealthily fled ignominiously in fear of being arrested.

In 2005, the UN Security Council referred the situation in Darfur, where Bashir’s government has been accused of committing and supporting war crimes, crimes against humanity, and genocide,, to the International Criminal Court (ICC). An arrest warrant was issued by the ICC in 2009. While African countries were some of the strongest supporters of the ICC from the beginning, and there are 34 African states which are members of the Court, the case against Bashir has played out against the backdrop of accusations of bias on the part of the ICC against Africa and charges of neo-colonialism. The African Union has asked (to no avail) that the Security Council suspend the case against Bashir (as well as those against the President and Deputy President of Kenya) and called on African states not to cooperate with the ICC. Some African leaders have called for a mass withdrawal from the Rome Statute of the International Criminal Court.

Yet, while various statements from the AU appear to project a unanimous antipathy to the ICC on the part of African States, the reality is more complicated. Indeed, South Africa has asserted a number of times that it would arrest Bashir if he came to South Africa. But because of a number of regional and global dynamics, South Africa, like many other African countries, is in a difficult position with a contradictory relationship to the ICC and human rights more generally and is pulled in multiple directions simultaneously. Two issues, in particular, are most relevant here.

First, there has been a sea-change globally with regard to the relationship between human rights and state sovereignty; it has been recognised that States cannot do whatever they want to their people and that sovereignty entails responsibilities toward citizens. The AU Constitutive Act has specifically recognised the right of the AU to intervene when states commit mass atrocities against their people. Yet many leaders are having a hard time accepting that they and their colleagues in other countries are not immune to charges of mass atrocities.

Second, (many) African states are torn between supporting human rights and pan-African solidarity. When faced with supporting global human rights norms or showing support for a fellow African leader, two aspects of contemporary African politics come into conflict.

In the current situation, South Africa, even though it has repeatedly stated that it would arrest Bashir, appears to have chosen African solidarity over its global human rights obligations.

On 14 June, the South Gauteng High Court, in response to an application by the South African Litigation Centre, ordered the government to temporarily prevent Bashir from leaving South Africa until a full hearing could be held on the request to arrest Bashir and send him to The Hague. On 15 June, the court held a brief hearing and then adjourned for an hour at the request of government lawyers who argued they needed more time to review documents. Minutes later, Bashir was allowed to leave on his plane, which had been moved from a civilian airport to a military base. The court, before being informed of Bashir’s departure, subsequently called the government’s actions unconstitutional and ordered it to arrest Bashir.

A village in Darfur burns following an attack (Photo: Eric Reeves)

A village in Darfur burns following an attack (Photo: Eric Reeves)

What are the implications of what appears to be a blatant disregard for the rule of law and international legal obligations?

First, the fact that Bashir was forced to surreptitiously leave the AU summit early demonstrates that the ICC does, in fact, have an effect. Bashir has been delegitimised and is on the run like a common criminal. He had twice previously refrained from coming to South Africa because of fear of arrest. This time it appears that he decided to try to test the ideational power of the ICC. The South African Government tried to endow Bashir – and all other leaders attending the AU summit – with immunity. It argued that this is based on general principles of international law, but an exception to head of state immunity has developed in cases of the commission of international crimes. Further, the Rome Statute clearly indicates that nobody is immune to prosecution. Although Sudan is not party to the Rome Statute, the Security Council referral gave the ICC jurisdiction and removed Bashir’s immunity in this situation. Continue reading →

Posted in African Union (AU), Darfur, Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice, South Africa, Sudan | Tagged , | 2 Comments

Silver Linings: Bashir’s Visit to South Africa
 and its Implications for the ICC

Posted on June 15, 2015 by Mark Kersten

There has been much speculation over the controversial trip by Sudan’s President, Omar al-Bashir to South Africa this week and its implications for the International Criminal Court (ICC). Here are some of my thoughts on subject. This article was originally posted at the Monkey Cage Blog here.

Omar al-Bashir earlier this week in South Africa (Photo: BBC)

Omar al-Bashir earlier this week in South Africa (Photo: BBC)

When Sudanese President Omar al-Bashir decided to attend the recent African Union (AU) Summit in South Africa, he must have thought it presented yet another opportunity to escape his pariah status. Bashir holds the notorious distinction of being the only person whom the International Criminal Court (ICC) indicted for the unholy trinity of international crimes — crimes against humanity, war crimes and genocide.

South Africa has been a traditional defender of the ICC and has previously insisted that it would arrest Bashir if he stepped foot on its territory. His visit to South Africa with impunity seemingly sent a powerful signal that the ICC’s indictment no longer constrains his movements. Instead, South African courts moved to ban Bashir from exiting the country as they considered whether and how to fulfill its legal obligation to arrest him and turn him over to The Hague. Thus, while Bashir managed to escape the country and the ICC’s credibility was certainly taken a hit, there are also positives to take from the Sudanese president’s visit — and the responses to it.

Bashir was first indicted by the ICC in 2009 for his alleged role in ordering mass atrocities in Darfur. The fact that he has never been tried for those crimes and has successfully traveled to several countries including Saudi Arabia, Kenya and the Democratic Republic of Congo, is an ongoing stain on the court’s record and an insult to the victims of atrocities in Darfur. To date, however, South Africa is the most diplomatically influential ICC member-state to host the Sudanese president. Had his visit passed smoothly, other states may have felt emboldened to host Bashir in the future. That would have been potentially catastrophic for the ICC and its champions. However, the outcome of Bashir’s South African visit was something very different.

While his arrival took observers by surprise, given the ICC warrants against Bashir, coverage of the AU Summit was dominated by questions over the wisdom and legality of hosting Bashir. The South African government was forced to consider whether it was obliged to arrest the Sudanese president — and to legally justify its position. Further, the government felt it necessary to identify legal loopholes, such as having Bashir depart from a military, rather than civilian, airport, in order to guarantee his safe passage out of South Africa. In other words, it is wrong to assume that South Africa could simply do whatever it wished. The ICC had an impact on the country’s political and legal calculus — even if the results left much to be desired.

The AU Summit will also help to clarify the complex and dynamic relationship between African states and the ICC. South African diplomats and lawyers have argued that there are ambiguities with regards to their obligation to arrest Bashir and that they are torn between their obligations to the ICC and those they have to the African Union. In time, those arguments will be tested and judged. Moreover, African states and diplomats continue to play an indispensable role in supporting the work of the ICC. What we have witnessed in the past few days is an outpouring of criticism of the government of South Africa, not only from Western states but, most importantly, from across Africa. It will be increasingly implausible for African governments not to clarify their positions regarding their support of, and obligations to, the court.

The plane said to be carrying Bashir takes off from a military airport in Pretoria (Photo: AP)

The plane said to be carrying Bashir takes off from a military air base near Pretoria (Photo: AP)

Although Bashir has already left South Africa, the order of arrest from a court in Pretoria will also help set a precedent and clarify the precise obligations states have toward the ICC. By hosting Bashir, the South African government unwittingly raised the costs of its insolence. Not only are they in violation of their legal obligations to the court but they have been, in essence, found to have violated domestic law as well. The likelihood of a repeat visit has surely been diminished.

While fears over the repercussions of Bashir’s visit have received the majority of public and media attention, African leaders’ support for the ICC has also been on full display. Just days before the summit, Tanzanian President Jakaya Mrisho Kikwete visited the court to declare that: “Our support for the ICC is based on the important work that the Court is doing.” That followed Malawi’s decision to undermine any attempts by Zimbabwean President Robert Mugabe to push for an Africa-wide pull-out from the ICC at the AU Summit. In response to Bashir’s arrival to the summit, Sidiki Kaba – who is the president of the Assembly of States Parties of the ICC as well as the justice minister of Senegal – exclaimed his “hope that South Africa, which has always contributed to strengthening the court, will spare no effort to ensure that the warrants of arrest are executed.” In short, there was no shortage of support for the court and anti-ICC sentiment in Africa is far from universal. Continue reading →

Posted in African Union (AU), Darfur, Genocide, International Criminal Court (ICC), International Criminal Justice, South Africa | Tagged | 6 Comments