The ICC Nabs a Perpetrator of Cultural Crimes in Mali

Posted on September 26, 2015 by Mark Kersten
The partially destroyed Alpha Moya mausoleum in Timbuktu in 2013 (Photo: World Monuments Fund)

The partially destroyed Alpha Moya mausoleum in Timbuktu in 2013 (Photo: World Monuments Fund)

It is a fool’s game to predict what will happen next at the International Criminal Court (ICC). Today, the world woke up to news that the ICC had gained custody of Ahmad Al Faqi Al Mahdi, a member of the Ansar Dine group allegedly responsible for the brazen destruction of shrines in Timbuktu, Mali.

It wasn’t that long ago that I wrote that the Court had gone virtually silent with regards to its intervention in Mali. In response to that post, a number of sources with intimate knowledge of the investigation insisted that Mali was not a blindspot for the Court and that there would be important developments announced in the near future. It is never easy deciphering when such claims are sincere but in this case they certainly have been – and how.

In its public statement, rather oddly released in the early hours of Saturday morning when public and media attention is low, the Office of the Prosecutor went to great lengths to emphasize that it considered cultural crimes to be as serious as acts of direct physical violence:

Ahmad Al Faqi Al Mahdi, also known as “Abou Tourab”, is accused of allegedly committing the war crime of intentionally directing attacks against ten buildings dedicated to religion and historic monuments in the ancient city of Timbuktu, Mali.  A zealous member of an armed group, self-proclaimed “Ansar Dine”, he played a predominant and active role in the functioning of the local structure put in place during the group’s occupation of Timbuktu in 2012, as detailed in my Office’s application for the warrant of arrest which led to his surrender.

The people of Mali deserve justice for the attacks against their cities, their beliefs and their communities.  Let there be no mistake: the charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots.  The inhabitants of Northern Mali, the main victims of these attacks, deserve to see justice done…

…It is rightly said that “cultural heritage is the mirror of humanity.” Such attacks affect humanity as a whole. We must stand up to the destruction and defacing of our common heritage.

In addition to never having prosecuted a member of an extremist Islamic group, the Court, as it noted in its statement, has never prosecuted cultural crimes. But with the destruction of fifteen revered shrines in Timbuktu and the incessant war against cultural sites by the Islamic State in Syria and elsewhere, attacks on such historical monuments have gained unprecedented international attention. The Prosecutor is clearly interested in meeting at least some of growing international demand that those responsible for the wanton destruction of monuments of cultural and historical relevance be held to account. There should thus be no doubt that the Court’s prosecution of Al Mahdi is a test case for future prosecutions of cultural crimes and will expand how the Prosecutor views her mandate.

The arrest and surrender of Al Mahdi also appears to be a pinnacle moment for ICC-state cooperation. It is no secret that the ICC struggles to gain cooperation from relevant states and that, even when it does, states often seek to instrumentals and manipulate the Court for their own benefit. The surrender of Al Mahdi, however, seems to hint at an altogether a different story.

Continue reading →

Posted in Cultural Crimes, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Mali, Niger | 3 Comments

Striking the Right Balance: Truth at the Heart of Transitional Justice in Colombia

Posted on September 25, 2015 by Mark Kersten

Sophie Haspeslagh joins JiC for an analysis of the recent breakthrough on transitional justice in the Colombian peace process. Sophie is a PhD candidate at the London School of Economics where she is researching the engagement of armed groups and the effects of proscription on peace processes.

An awkward handshake but a remarkable breakthrough (Photo: AP)

An awkward handshake but a remarkable breakthrough (Photo: AP)

It wasn’t long ago that the peace process between the FARC and the Colombian government seemed stuck. Little if any progress was being made and the biggest barrier to a final accord – agreeing on how to achieve justice and accountability for past atrocities – was proving impossible to overcome. But just this week all of the parties agreed to a plan to achieve transitional justice. It was undoubtedly a remarkable development. But did Colombia and the FARC strike the right balance between peace and justice?

When I was interviewing the FARC on the peace negotiations in Havana earlier this year, the atmosphere was tense. The FARC, the rebel faction fighting the Colombian government since the early 1960s, responded to renewed military offensive by suspending their unilateral ceasefire. At that moment, reaching an agreement seemed like a distant prospect, despite the fact that the parties had already been negotiating for three years. Energy and stamina were at their lowest point and those closely involved in the negotiations confided that discussions had been at an impasse for over a year on the issue of justice. After having reached substantive agreements on the three previous agenda points (land reform, political participation, and the illegal drug trade), the talks had stalled on the age-old dilemma of peace versus justice.

Fast-forward to this week and President Juan Manuel Santos met with the leader of the FARC, Timoleón Jiménez (in itself an unprecedented event) in Havana, to sign an agreement on the issue of transitional justice and the establishment of the ‘Special jurisdiction for peace’. As the end of the negotiations approaches and the government announces that the final peace agreement will be signed by 23 March 2016, here are some thoughts on how we got to this point and whether the Colombians have succeeded in finding the right balance between peace and justice.

The Victim’s Delegations: An Innovative Scenario

One innovative development during the peace talks has been the efforts to ensure that victims had access to the negotiating table. This is a unique occurrence in peace negotiations across the globe. Five different delegations of victims travelled to Havana to meet and share their stories and recommendations with the negotiating parties. The sixty people who made up the five delegations were chosen based on the principle that they represented a particular category of victimization. They had suffered from all types of crimes (land mines, kidnapping, homicide, threats, extra-judicial execution etc.), from range of armed actors (the FARC, paramilitary and the Colombian army) and came from a diversity of Colombian communities (Afro-Colombian, indigenous, different social-economic classes, human rights defenders etc.).

Not only did these victim’s delegations put a human face on suffering of the 7.6 Million registered victims of Colombia’s conflict, they also had a profound impact on the negotiating parties. Speaking to the FARC in Havana, it was clear to me that they had been deeply moved by their interaction with these delegations. One central message the victim delegations effectively promoted was their demand that the government and the FARC remain at the table until they had an agreement. They also focused on the importance of truth telling so that their experiences and trauma would be recognised.

Indeed, the yearning for truth has been at the centre of the victims’ demands. As Virginia Bouvier points out, a third of the 24,000 proposals put forward by victims have focused on the importance of truth.

‘Special Jurisdiction for Peace’ – Restorative Not Punitive Justice

The FARC had long maintained that they would not allow any of their fighters go to prison. Indeed, why would a group that does not consider itself defeated readily agree to have its members shipped off to jail? Why would they negotiate their way into prison? This has been a central sticking point as a large part of Colombian society rightly expects to see justice achieved, especially for the most heinous crimes committed during the war. Unlike the previous negotiation with other left-wing insurgent groups in Colombia in the late 1990s that led to widespread amnesties, the fact that Colombia ratified the Rome Statute of the International Criminal Court (ICC) in 2002 has meant that a blanket amnesty is no longer an option. Continue reading →

Posted in Colombia, FARC, Guest Posts, International Criminal Court (ICC), Transitional Justice | 4 Comments

Laying the Blame: Justice in Syria Just Got a Bit More Likely

Posted on September 24, 2015 by Mark Kersten
(Photo: Muzaffar Salman / AP)

(Photo: Muzaffar Salman / AP)

Anyone would be excused for believing that things in Syria may get worse before they get better. Millions of civilians live in daily fear for their security. Those who manage to escape do so to a new kind of hell that is migration to and through south-eastern Europe.

Meanwhile, the Western-led intervention against the Islamic State continues unabated without much prospect of success. The Geneva peace process appears moribund. Five years after the Syrian civil war broke out, Russia is now flooding Syria with military hardware, rolling out a programme of drone surveillance over the country, and all the while assuaging Israeli concerns that its support for the regime of Bashar al-Assad won’t strengthen Hezbollah. In short, the situation in Syria is violent and politically messy. It’s likely to remain both for the foreseeable future.

At the same time, during the almost half decade of brutal civil strife, justice and accountability have been severely neglected. An impressive array of commissions, human rights groups, and private organisations have done a remarkable job gathering evidence that might, one day, be used to bring perpetrators of mass atrocities in Syria to account. But the sad truth is there has been no real prospect for criminal accountability in the country. As useful as they may one day prove to be, the investigations that have taken place to date have occurred in the shadows of the war and have often been conducted by individuals taking massive personal risks.

Efforts to set up a body to prosecute perpetrators of crimes in Syria have stalled as well. Every attempt to gain traction for a referral of the situation in Syria to the International Criminal Court (ICC) has been rejected by Russia. No alternative, such as the establishment of a hybrid tribunal, has succeeded either.

In the midst of this inertia, however, a curious thing happened, something that may just make justice in Syria a little bit more likely. After weeks of wrangling, earlier this month Russia dropped its objections to United Nations Secretary General Ban Ki-moon’s plan to create a commission, led jointly by the UN and the Organisation for the Prohibition of Chemical Weapons (OPCW). The inquiry will be mandated not only to determine whether chemical weapons were used against civilians (which is not disputed by any of the warring parties or their proxies). Critically, the three-person commission will also be tasked with determining the individuals responsible for their use.

Laying blame and, by extension, determining liability for a crime is a crucial first step to achieving accountability. Granting the inquiry the mandate to apportion blame for chemical weapons attacks may thus be the single most promising move towards achieving justice for atrocities committed against civilians in Syria. While other institutions, like the International Independent Commission of Inquiry on Syria have previously threatened to ‘name names’, none have had the gravitas of a UN-OPCW investigation, especially one explicitly endorsed by Moscow. Continue reading →

Posted in International Law, ISIS, Islamic State, Israel, Justice, Russia, Syria, UN Security Council | Tagged , , | 6 Comments

Announcement: Expert Seminar on ICC Preliminary Examinations and Legacy/Sustainable Exit

Posted on September 15, 2015 by Mark Kersten

Best images for facebook timeline cover Peace Palace by Night Peace,Palace,Night

Dear all,

Below is an announcement for what promises to be a fascinating and productive workshop on ICC Preliminary Examinations and Legacy/Sustainable Exit at the Peace Palace in The Hague.

I will be attending and will provide some comments on the potential impact of preliminary examinations of conflict and peace processes. I look forward to seeing some of you there!

Mark

The Grotius Centre for International Legal Studies and the Centre for International Law Research and Policy are hosting an international expert seminar on 29 September 2015 at the Peace Palace on:

“The Peripheries of Justice Intervention: Preliminary Examination and Legacy/Sustainable Exit”

In contemporary discussions on the impact and effectiveness of international criminal justice, considerable emphasis has been placed on trials, legal procedures and their effects. Less attention has been devoted to the peripheries of justice intervention (the ‘in’ and the ‘out’), namely preliminary examinations (‘PEs’) and exit/legacy strategies. Both activities are crucial for the accomplishment of goals and mandate of international courts and tribunals, but not yet subjected to systematic discourse. This seminar explores four key themes that require further attention in strategy, research and practice:

  • Context, nature and function of Preliminary Examinations,
  • The legal framework of Preliminary Examinations,
  • The methodology of Preliminary Examinations; and
  • ‘Legacy’ and Sustainable Exit after Intervention.

The purpose of this expert seminar is to take stock of policies and practices regarding the peripheries of justice intervention, to review some of the existing approaches, and to identify potential strategies to address underlying tensions and problems. It is held in context of the project on ‘Post-Conflict Justice and Local Ownership’, carried out by the Grotius Centre for International Legal Studies, with support of the Netherlands Organization for Scientific Research.

If you are interested in attending the conference, please contact Ms. Lieneke Louman at l.louman@cdh.leidenuniv.nl. Registration is upon individual confirmation.

Please click here for the concept note and conference programme.

Posted in Conferences, Preliminary Examinations | 1 Comment

The ICC is Free to Investigate Ukraine since 2014. So What Now?

Posted on September 10, 2015 by Mark Kersten
A row of empty seats from flight MH17 lies in a field in eastern Ukraine (Photo: Getty)

A row of empty seats from flight MH17 lies in a field in eastern Ukraine (Photo: Getty)

After months of speculation, Ukraine has finally decided to refer the violence in the country since February 2014 to the International Criminal Court (ICC). The ICC is now free to open a preliminary investigation and, if it finds reason to proceed, an official investigation into alleged crimes committed not only during the chaos on Kiev’s Maidan Square but in the east of the country, especially in the regions of Donetsk and Crimea. Here are a few thoughts on what the potential ICC investigation into Ukraine means – or could mean.

Why not just join the ICC?

Yesterday’s decision marked the second time that Ukraine has opened itself up to an ICC investigation. It previously referred the months of November 2013 to February 2014, a period captured the violence on the Maidan Square, to the Court. Few people close to the situation believed that the first referral would have led to charges as the crimes were unlikely to meet the ICC’s gravity threshold and Kiev likely wanted to avoid a determination by prosecutors that no crimes had been committed in Ukraine, leading to a second referral.

Ukraine’s most recent decision, taken under Article 12(3) of the ICC’s Rome Statute, expands the ICC’s jurisdiction to events since 20 February 2014. But an important question remains: why won’t Ukraine simply ratify the Rome Statute and become a member-state join the Court? The simple answer is that there remain constitutional barriers to doing so – the same that existed when Ukraine first referred the Maidan square events to the ICC. Despite the fact that Ukraine signed the Rome Statute in 2000, a 2001 ruling by Ukraine’s constitutional court found that ratifying the Statute would be unconstitutional. The question that now arises is: will Ukraine ever become a member-state of the ICC and do the two ‘partial’ referrals make a prospective decision to join the Court more or less likely?

Who will the Court target?

In his letter accepting an expansion of the ICC’s jurisdiction in Ukraine, Foreign Minister Pavlo Klimkin declared that the Ukrainian parliament had previously adopted a resolution entitled “On the recognition of the jurisdiction of the International Criminal Court by Ukraine over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of two terrorist organisations – “DNR” and “LNR”- which led to extremely grave consequences and mass murder of Ukrainian nationals.” This language suggests that Ukraine is attempting, as it did with its first referral, to direct the Court towards exclusively prosecuting its Russian, and Russian-affiliated, adversaries.

This is not the first time a state has sought to refer its enemies – rather than a conflict situation or situation of mass atrocity – to the ICC. The government of Uganda infamously referred the Lord’s Resistant Army to the Court in 2004. As with that case, the ICC will surely interpret the referral as providing jurisdiction to investigate all international crimes committed on the territory of Crimea, irrespective of who committed them.

However, the ICC will also face a familiar quandary. If it does open an official investigation into the situation in Ukraine, the Court will almost certainly be dependent on Ukrainian officials for witness protection, witness testimonies and the collection of other relevant evidence. That may, as it has in the past, lead prosecutors to focus on only one side of the war (Russia and Russian-backed rebel groups) whilst neglecting the alleged crimes of Ukrainian forces. Given increasing evidence of serious crimes committed by Ukrainian troops and government-backed groups, this would make a mockery of the pursuit of impartial justice.

Russia comes under the ICC Microscope – Again

An ICC intervention into Ukraine would not mark the first time that Russia has come under the Court’s scrutiny. It has also been a focus of the ICC’s preliminary examination into the 2008 war in Georgia which is, according to many sources, inching towards official investigation status. And as with the case of Georgia, Russia may not mind – and believe that they could benefit from the ICC’s involvement. Russia could also decide to selectively cooperate with the ICC. Indeed, Moscow will likely flood the ICC’s Office of the Prosecutor with documentation in an attempt to point the Court’s finger in Ukraine’s direction – or at least delay any real action or arrest warrants being issued. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine | Tagged | 15 Comments

Bosco ‘The Terminator’ Ntaganda Goes on Trial: Should Kagame Be Afraid?

Posted on September 3, 2015 by Mark Kersten
Bosco Ntaganda (Photo: Alain Wandimoyi / EPA)

Bosco Ntaganda (Photo: Alain Wandimoyi / EPA)

Nine years after he was originally indicted and over two years after he shocked the world by walking into the American Embassy in Kigali, Rwanda, and asking to be hauled off to The Hague, the trial of Bosco ‘The Terminator’ Ntaganda has finally began at the International Criminal Court (ICC). Ntaganda, a chief warlord in a panoply of rebel movements in the eastern Ituri Province of the Democratic Republic of Congo (DRC) faces thirteen charges of war crimes and five charges of crimes against humanity. Born in Rwanda, Ntaganda also happens to have been a pawn and partner of the Rwandan government, raising the question: does his trial at the ICC pose a threat to the regime of Rwandan President Paul Kagame?

For years now, there has been a growing cohort of scholars, advocates and political figures pushing for investigations into the alleged atrocities committed or sponsored by Rwandan government forces and agents. Their efforts can be divided into three broad aims: one, accountability for alleged mass atrocities committed by Kagame’s Rwandan Patriotic Front (RPF) prior to and in the wake of the 1994 Rwandan Genocide, as laid out in detail in a 2010 United Nations report; two, accountability for aiding and abetting the commission of atrocities by rebel factions in the region; and three, accountability for repressive and violent tactics, including targeted assassinations and torture, deployed against domestic opponents of the Kagame government. Through it all, Kagame has been somewhat of a teflon man. No charges have stuck and, to date, no efforts at a thorough and independent investigation have led to much more than a series of false starts.

Rwanda has proven to be a rather curious case for international justice. While it is the focus of a tribunal that bears its name, the International Criminal Tribunal for Rwanda (ICTR) has a highly restricted temporal jurisdiction which is limited to 1994, the year the Genocide took place. The ICTR, based in Arusha, Tanzania, has experienced a quixotic and often fraught relationship with Kigali despite the fact that it has focused exclusively on the regime’s former enemies – Hutu perpetrators of the genocide. Periodic attempts to expand the reach of the tribunal have been met with sharp condemnation from Kagame and rebukes from the international community. Former Chief Prosecutor of the ICTR Carla Del Ponte has written that she was effectively fired from her position by the UN Security Council after she pushed for investigations into RPF crimes.

Many blame the lack of progress on the accountability front in Rwanda on what they see as the West’s shielding of the Kagame regime. There is little doubt that Rwanda is seen as an ‘African success story’, particularly in the US and the UK, and that there isn’t much appetite to upset this narrative. Domestically, the suggestion that the RPF or any factions associated with Kagame committed mass atrocities is often interpreted as genocide denial.

At the same time, the average well-being of Rwandans is incomparably better today then it was in the mid-1990s. Progress has been stunning and those members of the international community in the strongest position to push for accountability are also those most wont to do so lest Rwanda’s progress be undermined. I will never forget speaking to a senior jurist on the allegations dogging the Rwandan government and the various calls for justice and accountability. His response could be summed up as: ’Perhaps. But they have WiFi everywhere now!’

Bosco Ntaganda plead not guilty earlier this week at the International Criminal Court (Photo: ICC)

Bosco Ntaganda plead not guilty earlier this week at the International Criminal Court (Photo: ICC)

Still, in recent years, efforts to break through the impunity gap seem to have gained steam. Along with the UN report detailing alleged RPF atrocities after the genocide, General Karenzi Karake, the head of Rwanda’s intelligence services was recently detained in the UK after a Spanish judge charged him with war crimes and crimes against humanity allegedly committed in Rwanda and the DRC between 1990 and 2002. Moreover, when it became blatantly clear that the Kigali was supporting, perhaps even controlling, the Ntaganda-led M23 rebel group in the DRC, Rwanda’s’s traditional Western proponents wavered in what had, until then, been assumed to be unquestioned support. US Ambassador for War Crimes Issues Stephen Rapp went so far as to assert that Rwanda could be open to the war crimes charge of aiding and abetting the M23, comparing the role of Kagame to that of Charles Taylor, the former Liberian President convicted of war crimes in 2013:

There is a line that one can cross under international law where you can be held responsible for aiding a group in a way that makes possible their commission of atrocities.

Charles Taylor never set foot in Sierra Leone, and aided and abetted, and was convicted of aiding and abetting, the Revolutionary United Front with assistance that was substantial and, the judges said, without which the RUF could not have committed the atrocities to the extent they did commit them. Because of that evidence, Charles Taylor was convicted and sentenced to 50 years.

…if this kind of thing continued and groups that were being armed were committing crimes … then I think you would have a situation where individuals who were aiding them from across the border could be held criminally responsible.

As Kevin Jon Heller pointed out at the time,”Kagame’s response to Rapp’s statement was completely predictable: to blame the West for forgetting about the genocide.” However, as Heller right added: “Remembering the genocide, however, does not mean ignoring Kagame’s authoritarian rule or overlooking his government’s [alleged] crimes.”

But precisely because of the public uproar, combined with a rare willingness on the part of Western states to openly criticize Kagame’s government, many thought that the trial of Ntaganda would open the floodgates and expose Kigali’s alleged role in destabilizing and perpetuating violence in the eastern DRC. For at least two reasons, this is unlikely to ever occur. Continue reading →

Posted in Bosco Ntaganda, Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Rwanda, Rwandan Genocide | Tagged , , , | 8 Comments

Should War Crime Perpetrators Pursue PhDs?

Posted on August 28, 2015 by Mark Kersten
Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

The first-ever individual convicted by the International Criminal Court (ICC) has asked judges at The Hague-based Court to grant him early release so that he can pursue a PhD. The former warlord and rebel leader Thomas Dyilo Lubanga, a man sentenced to fourteen years for conscripting child soldiers to fight in a brutal war in the eastern Democratic Republic of Congo, wants to attend Kisangani University to study “the sociology of ethnic harmony”. In Lubanga’s own words: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony”.

Most observers appear to be oscillating between a sense of incredulity and simply being incensed. How could a convicted war criminal be granted early release in order to study how to prevent precisely the types of crimes he himself is ultimately responsible for? The mere suggestion smacks of some kind of cruel and unusual joke. As one tongue-in-cheek comment had it, perhaps Lubanga could insist his crimes were simply a result of “participant observation”, the popular research method of imbedding oneself in the very social and political setting under examination.

Whether he is released now or at the conclusion of his sentence in two years, the issue of Lubanga’s interest in pursuing higher education isn’t, in fact, anything new for alleged war criminals and raises important yet insufficiently answered questions within the realm of international criminal law and justice. Let’s take a look at two other examples: Libya’s Saif al-Islam Gaddafi and northern Uganda’s Sam Kolo.

Unlike Lubanga, Saif al-Islam Gaddafi managed to fit in his higher PhD studies before emerging as a central figure in the ICC’s investigation of war crimes and crimes against humanity during Libya’s 2011 uprising and civil war. Gaddafi infamously attended the London School of Economics where he submitted a PhD on democratisation and global civil society. The full name of Gaddafi’s thesis was “The Role of Civil Society in the Democratization of Global Governance Institutions: From ‘Soft Power’ to Collective Decision-Making?”. Remarkably, the thesis often spoke to precisely the kind of world that those who support international criminal justice seek. In one passage, Saif writes: “The international order has a responsibility to protect the basic rights of those citizens who live under non-liberal governments”. Of course, not everyone was fooled into believing Saif would emerge as some pro-democracy, pro-human rights, pro-justice alternative to his despotic father. But most turned a blind eye to the whole fiasco…

…That is until Libya descended into civil war, and it emerged that Saif al-Islam Gaddafi ardently supported his father’s crackdown on civilians in Libya. At the time, it was also revealed that Gaddafi’s academic achievements had been doctored (excuse the pun). Rather, a nefarious network of primarily British political and business connections concocted to promote Saif as the future ‘liberal’ leader of Libya, secure Western interests in the oil-rich nation, rehabilitate the Gaddafi regime, and, as an aside, write Saif’s PhD for him. For a while at least, though, Mr. Gaddafi was Dr. Gaddafi – and very few people had an issue with it.

Not long after the 2011 civil war came to an end, another alleged perpetrator of mass atrocities received a degree in northern Uganda. In January 2012, Sam Kolo, a former senior commander in the Lord’s Resistance Army (LRA) “completed a remarkable journey from the life of a rebel to a graduate” and was rewarded with a degree in business administration from Gulu University. Kolo, who led an LRA delegation during peace talks in 2004, had previously received an amnesty under Uganda’s 2000 Amnesty Law and, according to one observer, following his defection from the LRA, the former rebel commander “provided valuable intelligence to the Ugandan army in their hunt for Joseph Kony, the long-time leader of LRA”. Kolo was eventually supported in his pursuit of a degree by the Ugandan government’s scholarship scheme. Notably, Kolo has regularly expressed regret over his membership in the LRA, stating on the day of his graduation that it prevented him from pursuing his dream of becoming a university lecturer.  Continue reading →

Posted in Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Uganda | Tagged , , , | 2 Comments

Is Local ICC Justice Necessarily Better than ICC justice?

Posted on August 13, 2015 by Mark Kersten
Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

A few weeks ago, the International Criminal Court (ICC) came nail-bitingly close to finally holding proceedings in an affected community rather than in The Hague. Ultimately, the ICC’s president decided that the risks of holding part of the trial of Bosco Ntaganda in Bunia in the Democratic Republic of Congo (DRC) outweighed the benefits of serving some ICC justice locally. The debate over whether to hold hearings in Bunia raises broader questions: should the ICC be a traveling court? Should its judges, prosecutors, and defence lawyers present their cases in the very same contexts and in the same communities where the alleged perpetrators committed their crimes? Beyond issues of security, what are the potential costs of doing so?

The International-Domestic Tension and Dream

In the world of international justice and human rights, it is almost universally accepted that accountability is ideally served locally. Justice is best pursued where victims and survivors reside, where evidence can be collected and presented, and where affected communities can see it being done.

In this line of thinking, global institutions that mete out criminal justice, like the ICC, are not ideal purveyors of accountability. Instead, they are seen as necessary bodies that ‘fill in’ the accountability gaps that result from states being unable or unwilling to investigate and prosecute mass atrocities and human rights violations themselves. Put another way, given the option of having no justice or abstracting accountability from affected societies to The Hague, the latter option is always preferable. And here’s the kicker: many believe that if the international community buys into the project of international criminal justice, over time there will eventually be no need for such international institutions. As the commitment to prosecute international crimes spreads, the ICC will work itself out of business and states will be able to justice themselves. As former ICC Chief Prosecutor Luis Moreno Ocampo regularly suggested during his tenure, the ultimate success of the Court would be realised when it had no cases in its dock because states meted out justice themselves.

The hope that the ICC’s mere existence and mandate will lead to a world where states prosecute all mass atrocities and human rights violations themselves is, at worst, a promise of unicorns and rainbows. At best, given the existence of regimes like those in Syria and Sudan, and the impunity gap in states with robust judiciaries like the United States and the United Kingdom, it is certainly a very long-term aspiration. This is not to say that this isn’t a good or useful aim to have. But it shouldn’t detract from the myriad of obstacles international criminal justice face today. It also shouldn’t obfuscate from the potential of bringing ICC justice closer to ‘home’.

A Traveling Court 

In recent years, there has been a growing interest in seeing the ICC hold hearings in the communities in which the relevant atrocities were perpetrated. This is wholly in line with the Rome Statute of the ICC, which grants the court’s judges the purview to hold hearings, whenever deemed feasible and desirable, in affected communities. Along with the conviction that justice is best served as close to the source of injustice, many also believe that if affected communities truly got to see the Court in action, their oft-stated criticisms would be tempered and those governments that have made a habit of attacking the institution would have a harder time doing so.

In fact, the idea of holding ICC proceedings locally is nothing new. Court officials have previously considered holding hearings in the trials of Thomas Dyilo Lubanga in the Democratic Republic of Congo (DRC), of senior government officials allegedly responsible for the 2007/08 post-election violence in Kenya, and (in a much less public way) for Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya. Apart from the recent decision not to hold the Ntaganda trial in Bunia, there are ongoing and advanced discussions about holding the confirmation hearings of child soldier turned Lord’s Resistance Army (LRA) commander Dominic Ongwen in Gulu in northern Uganda.

Indicative of just how widespread the conviction is that local ICC justice is necessarily better ICC justice, it is hard, if not impossible, to find any public statement or article arguing that Ongwen should not be tried in Gulu. One piece insisted that such an in situ trial would be “great news”. In a rare moment of agreement, both the prosecution and defence are on board, suggesting the public face of the ICC, as well as Ongwen himself, prefer proceedings to be held in northern Uganda. Continue reading →

Posted in Bosco Ntaganda, Democratic Republic of Congo, Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Uganda | 4 Comments

Heading to the University of Toronto

Posted on August 12, 2015 by Mark Kersten
(Photo of Toronto: TsaiProject / Flickr Creative Commons)

(Photo of Toronto: TsaiProject / Flickr Creative Commons)

Dear Readers,

It is with great pleasure that I announce that I, along with the blog, are heading to the University of Toronto. I recently accepted a two-year post doc from the Social Sciences and Humanities Research Council and will be based at the Munk School of Global Affairs, working with Ron Levi.

After five years of working on the nexus of ongoing war, conflict resolution and international criminal justice, the research I am preparing to undertake will examine the historical and political relationship between the International Criminal Court (ICC) and the ‘BRICS’ (Brazil, Russia, India, China and South Africa). The premise of the project is rather simple: in international relations, we have been told two stories: one, that with the creation of the ICC, international criminal justice has become a permanent reality in international politics; and two, that as a result of the rise of new powers, particularly the BRICS, we are witnessing a re-ordering of the distribution of global power. The key question is: are these trajectories compatible?

Over the next two years, my research will explore the engagement of the BRICS with the ICC since the Rome Statute negotiations through to the current day. With a general paucity of literature regarding the relationship between specific states and the Court (with the notable exception of the United States), I hope this work will not only illuminate the relationship between BRICS and the ICC but also contribute to our knowledge of the prickly and political intersection of diplomacy, power and international criminal justice.

As always, thank you from the bottom of my heart and the tips of my fingers for your support and readership.

Mark

Posted in JiC News | 2 Comments

A New War Crimes Court is Born, but Who is Responsible in Kosovo?

Posted on August 10, 2015 by Mark Kersten

Aidan Hehir joins JiC for this critical examination of Kosovo’s war crimes tribunal and the need to pursue accountability for all parties directly and indirectly responsible for mass atrocities in the country. Aidan is a Reader in International Relations at the University of Westminster.

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999. (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999. (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

On 3 August, the Kosovo parliament voted to alter Kosovo’s constitution to enable the establishment of a Special Court. The court will investigate evidence uncovered by the European Union Special Investigative Task Force of forced detention, torture, murder and, perhaps most shockingly, organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) from 1 January 1998 to 31 December 2000.

Kosovo’s war crimes court will deal with important and perhaps unique questions about culpability in transitional justice. The offences under its jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo.

“Monsters” and “Victims”

Kosovo Albanians generally see the KLA as freedom fighters who brought about their “liberation”, albeit with the aid of NATO’s military intervention in March 1999. The idea that the KLA, or the Kosovar Albanian community more generally, could be guilty of human rights violations jars with the popular conception of “Serbian aggressors” and “Albanian victims”. Indicatively, Ramush Haradinaj, the former Prime Minister and current leader of the Alliance for the Future of Kosovo, stated: “By approving this court, we are turning ourselves into a monster…we were not monsters; we were victims.”

Kosovo’s declaration of Independence in February 2008 sparked jubilation amongst the majority Albanian population, but this has given way to spiraling anger and dissatisfaction; unemployment remains cripplingly high, wages are low, and corruption is rife. Between December 2014 and February 2015 some 50,000 Albanians left Kosovo in an ill-fated attempt to reach the EU. In March, the UN ranked Kosovo as the fourth largest source of asylum seekers in the world. Amidst this depravation, many naturally take comfort in KLA nostalgia. Unsurprisingly, the prospect of this source of pride being besmirched doesn’t appeal.

The Court’s perceived legitimacy amongst the Albanian community – which clearly has profound implications for peace and stability within Kosovo – will hinge upon the extent to which the actions of the KLA are acknowledged to have been supported – or simply tolerated – by external actors. This external support involved two distinct phases that lie within the Court’s three-year remit: first, the support afforded to the KLA during the struggle against Yugoslav forces from 1 January 1998 until the end of NATO’s intervention on 10 June 1999; and second, the tacit support provided by the international administration established after NATO’s intervention and lasting until 31 December 2000.

Supporting “Terrorists”?

Prior to NATO’s intervention the KLA were known to engage in attacks against Serbian – and also Albanian – civilians; indeed, in February 1998 the US Envoy to the Balkan stated that “[t]he UCK (KLA) is without any question a terrorist organisation” and, a month later, UN Security Council Resolution 1160 condemned “all acts of terrorism by the Kosovo Liberation Army”. Still, evidence now suggests that a number of Western states covertly sent Special Forces into Kosovo in 1998 to train the KLA (James Pettifer (2012) The Kosova Liberation Army, p. 178). More overtly, during Operation Allied Force NATO coordinated militarily with the KLA.

After NATO’s intervention concluded, the Security Council passed Resolution 1244 giving UNMIK administrative powers in Kosovo and charging NATO-led KFOR with maintaining peace and security. Despite the huge international presence, attacks against the Serbian community increased dramatically when NATO’s campaign ended, precipitating a round of “counter-ethnic cleansing”. Reports by Human Rights Watch and the Red Cross recorded that by October 1999 over 200,000 Serbs and thousands of Roma had fled Kosovo in what was described by the then chief prosecutor for the International Criminal Tribunal for the former Yugoslavia Carla Del Pointe as being “…as serious as what happened there before [NATO’s intervention].”

In its initial phase, the international administration made two fateful decisions: one, to tolerate the mass exodus of Serbs and two, to turn a blind eye to the criminality perpetrated by sections of the former KLA. According to a report produced on behalf of the Council of Europe’s Committee on Legal Affairs and Human Rights, the international administration, “favoured a pragmatic political approach taking the view that they needed to promote short-term stability at any price.”

There was some logic to this of course. Tackling the criminal elements of the KLA would have led to confrontations with an armed guerrilla organisation whose support they needed. Additionally, stopping the Serbian exodus, and confronting those who targeted Serbs, would have been costly, dangerous and angered sections of the Albanian population. Ultimately, the continued presence of Serbs in cities such as Pristina, Peja and Prizren would have constituted a persistent source of instability whereas their relocation to enclaves such as Northern Mitrovica and Gračanica removed various inter-ethnic flash points. Continue reading →

Posted in Balkans, Guest Posts, International Criminal Justice, International Law, Kosovo, Serbia, Transitional Justice | Tagged , | 6 Comments