The Africa-ICC Relationship – More and Less than Meets the Eye (Part 2)

Posted on July 24, 2015 by Mark Kersten
(Illustration: Dave Simonds / The Economist)

(Illustration: Dave Simonds / The Economist)

The International Criminal Court (ICC) has an ‘Africa problem’. The Court is widely perceived as a Western, neo-colonial institution that unfairly targets African states. The ICC and its champions insist this isn’t the case. The Court is simply misunderstood and is, in fact, a court for not against Africa.

In the first part of this three-part series, I detailed how the Africa-ICC relationship is mired in an unhelpful and harshly dichotomous impasse. All of the relevant actors – African states, the ICC, and observers of international criminal justice, are complicit in reifying this stalemate, one which does more to obfuscate than illuminate the intricate and complex relationship between African states and the ICC.

In this second post, I will explore three recent cases – the surrender of Dominic Ongwen to the ICC, the visit of Omar al-Bashir to South Africa, and the prosecution of African heads of state – in order to demonstrate that the relationship between African states and the ICC is far more dynamic and complicated than typically portrayed. The view that the ICC is either a neo-imperial tool of the West or a misunderstood force for good does injustice to our ability to understand and assess how African states engage and interact with the Court.

Dominic Ongwen walks with members of an African Union Regional Task Force prior to his surrender to the ICC (Photo: AP)

Dominic Ongwen walks with members of an African Union Regional Task Force prior to his surrender to the ICC (Photo: AP)

The Surrender of an LRA Commander

Earlier this year, Dominic Ongwen was captured in the Central African Republic and surrendered to the ICC. For nearly two decades, Ongwen had been a senior commander in the Lord’s Resistance Army (LRA), a notorious rebel group that has been engaged in a brutal war with the Government of Uganda since 1986. He was also one of five individuals indicted by the ICC in 2005 – and one of only three that is still alive.

As many readers will know, the initial investigation into the war in northern Uganda was the ICC’s first intervention and one that proved particularly controversial. Set against widespread acknowledgement that both the LRA and government forces have committed mass atrocities, there is a broad consensus amongst northern Ugandans as well as external observers that the Court wrongly targeted only LRA rebels and thus demonstrated a bias in favour of the Ugandan government.

This selective targeting of LRA commanders has legitimated the government of Uganda by helping to foster a narrative that presents the government as a ‘good’ and ‘legitimate’ force fighting against an illegitimate band of crazy criminals. However, despite benefiting tremendously from the ICC’s intervention, Museveni has emerged as the ICC’s harshest critic amongst African heads of state.

Thus, when it emerged that Ongwen had been captured, many wondered what the government would do. Which Museveni would stand up? Would Museveni cooperate with the ICC or not? The story itself is worth outlining as it demonstrates just how many moving political pieces were at play in what has otherwise been treated as a simple surrender to The Hague and victory for the Court.

To begin, we need to take a step back. A few years ago, the United States put what amounts to a bounty on Ongwen’s head through an expansion of the US State Department’s Rewards for Justice Programme. As a result, anyone who provided information that would lead to Ongwen’s capture could receive up to $5 million. This became problematic when it emerged that Séléka rebel forces, which have allegedly committed mass atrocities and stoked genocidal violence themselves, had captured Ongwen and transferred him to the custody of US forces in the Central African Republic (CAR).

Of course, the US will not pay the bounty. Washington can’t be seen to be providing funds to a rebel group whose brutality is akin to that of the LRA itself. Rather cunningly, the US government insists that Ongwen was not captured but defected from the LRA. The government is thus presumably off the hook in terms of any bounty payment.

Once Ongwen was in the custody of US troops, there were seemingly two possible scenarios: either the US forces could surrender him directly to the ICC or they could transfer him to the custody of the Ugandans. Neither transpired.

First, the US could not surrender Ongwen to the Court. Old anti-ICC legislation from the Bush era, the American Servicemembers’ Protection Act (2002), prevents the US from providing any material aid to the Court. So that nixed the first option.
Second, the government of Uganda decided that it did not want Ongwen to be transferred to Uganda, nixing the second option. Instead, a crafty new plan was hatched: the US would transfer custody of Ongwen to the CAR military, which would then surrender him to the ICC.

But why would the Ugandan government not want custody of a prized LRA leader? And why would Museveni allow Ongwen to be transferred to the ICC, an institution he insisted “blackmailed” African states?

Firstly, putting Ongwen on trial in Uganda would have been a massive political headache for the government. Ongwen was 10 or 14 (it isn’t clear) when he was abducted by the LRA. He then spent twenty-some years fighting in the bush. The fact that Ongwen was a child soldier and thus an LRA victim has re-ignited a passionate debate in northern Uganda where many, if not most, citizens still support amnestying and re-integrating former rebels who were abducted as children.

Had President Museveni insisted on keeping Ongwen, he would have had to prosecute Ongwen – thus attracting the ire of many northern Ugandans. Doing so would also run directly counter to Museveni’s political interests. His party, the National Resistance Movement, would have risked reversing many of the political gains it has made in northern Uganda in recent years. Instead, Museveni can now stand aside as northern Ugandans criticize the ICC for prosecuting a former child soldier. Not only that, but Museveni can claim that he did not, in fact, have anything to do with Ongwen’s surrender. After all, it was the CAR authorities who sent the diminutive former rebel off to The Hague.

Secondly, by allowing the ICC to get its hands on Ongwen, Museveni ensured that the Court would be dependent on him for cooperation in building the case against Ongwen, protecting witnesses and, potentially, holding some trial proceedings in Uganda. For the government, this is crucial. As long as the ICC is reliant on Uganda for cooperation, Museveni can rest assured that the Court will not target him or any army officers. After all, targeting them would immediately eviscerate any cooperation.

In short, despite being a vociferous critic of the Court, Museveni managed to play hot potato with Ongwen’s fate and outsource responsibility over him to the ICC for reasons of political expediency. Doing so ensured that the Museveni’s domestic political gains in the north were preserved and that the government would continue to enjoy impunity. This story, however, simply does not fit within the dominant narrative of the ICC as a neo-colonial institution targeting African states.

An empty seat, reserved from President Bashir, at the AU Summit in South Africa (Photo: Getty Images)

An empty seat, reserved from President Bashir, at the AU Summit in South Africa (Photo: Getty Images)

An Indicted President Visits South Africa

In a development that captured global attention earlier this summer, Omar al-Bashir, the President of South Sudan and the only individual wanted for every core crime at the ICC – war crimes, crimes against humanity and genocide – made a very controversial visit to an AU summit in South Africa. The popular reaction was to invoke the crisis mentality that I outlined in my previous post. Did Bashir’s visit demonstrate that the ICC is irrelevant? Could the institution survive this crisis?

No one can argue that Bashir’s visit wasn’t a low point for the Court. While this wasn’t the first time that Bashir had travelled to an ICC member-state (the Sudanese leader had previously visited the Democratic Republic of Congo, Kenya and Nigeria), Bashir’s visit to South Africa was somehow worse because the country has traditionally been a strong supporter of the ICC and is a significant regional leader (not to mention a growing international power). Continue reading →

Posted in Africa, African Union (AU), Central African Republic (CAR), Chad, Child Soldiers, Darfur, Democratic Republic of Congo, Dominic Ongwen ICC, Hissène Habré, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Lord's Resistance Army (LRA), Omar al-Bashir, Senegal, Special African Chamber (CAE), Sudan, Uganda, UN Security Council | 11 Comments

Victims in the Driver’s Seat: The Trial of Hissène Habré

Posted on July 20, 2015 by Mark Kersten

Oliver Windridge joins JiC for this timely guest-post on the role of victim groups in pushing for the prosecution of Hissène Habré. Oliver is the founder of the ACtHPR Monitor, a website and blog dedicated to the African Court on Human and Peoples’ Rights, which you can follow on Twitter here.

(Photo: BBC)

(Photo: BBC)

The trial of the former Chadian leader Hissène Habré begins today at the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal. Habré faces charges of crimes against humanity, war crimes and torture, crimes that allegedly took place in Chad during his tenure as the country’s president (June 1982 – December 1990).

Let us be clear: this trial would not be taking place without the vital work of the victims of Habré’s reign. From the outset, they have constituted a highly organized campaign group and doggedly pursued accountability. The Habré trial therefore serves as a fascinating and important example of a victim-lead campaign for justice at state, continental and international levels and provides a positive example of a successful campaign by victims group seeking accountability against its leaders. This post seeks to explore the approach taken by the Habré victim group, which is made up by the The International Committee for the Fair Trial of Hissène Habré, a coalition of the victims, along with the leading human rights groups in Chad and Senegal, Human Rights Watch, and the Fédération Internationale des Ligues des Droits de l’Homme. How will this victim-led approach affect the Habré trial and how can the unstinting efforts of the Habré victim coalition be used to encourage future cases in Africa and beyond?

As recounted by Reed Brody of Human Rights Watch, the paths taken by the Habré victim coalition to arrive at today’s trial includes domestic prosecutions in Senegal and Belgium, as well as cases before international tribunals and committees including the UN Committee Against Torture, the International Court of Justice, the African Union’s Committee of Eminent Jurists and the ECOWAS Community Court of Justice. While it should be acknowledged that this trial also owes a great debt to the hard work of Chadian and international NGOs within the victim coalition, it is no exaggeration to say that, without the tireless persistence of the victims themselves, the trial of Hissène Habré would not be taking place. That the Habré victims, with support from international NGOs, did so much of the heavy-lifting and, crucially, did so with a real sense of ownership of the case demonstrates how alleged victims of serious international crimes such as genocide, crimes against humanity, war crimes and torture, all of which are contained in the CAE Statute, can bring those accused of perpetrating mass atrocities to trial despite political and legal barriers as well as successive setbacks.

Faced with these obstacles, flexibility through a sense of ownership of the case has been key to the ultimate success of victim coalition. Although I am sure the victims would have preferred immediately achieving a trial of Habré, where they were faced with defeat or a dead-end, the victim coalition was able to pivot between domestic and international, tribunals and committees, in order to keep alive their pursuit of accountability. Setting the victim coalition at the fulcrum upon which the campaign for justice pivots meant failure to achieve the aim of accountability in one court or tribunal did not affect the ability of the groups to make further decisions on litigation strategy, the collection of evidence or to petition another court or tribunal. This stands in stark contrast to the institutional processes of handing over materials and painstakingly gathering evidence for investigation by a permanent institution such as the ICC, where the victims have a much reduced role at the investigation stage and possibly lack the same sense of ownership. Here, flexibility looks attractive but it is worth bearing in mind that the reason why the Habré victim coalition needed flexibility to toggle between courts and tribunals was a lack of success. Compare this with handing over the case to an investigation at an international criminal tribunal. Yes you lose a degree of ownership over the matter, but at least you know the institution is capable of prosecuting the matter – something the Habré victim group was never able to rely on.

Put another way, the victim groups approach used with such effect by the Habré victims allowed the victims to handle the wheel and steer the ship in the direction they considered best. With a tribunal or court as captain of the ship, the victim groups would have to be content with a second-class berth and to allow the ship to be steered in the direction the permanent tribunal or court – and not necessarily the victims – consider best.

Until now, the Habré victim coalition has controlled the ship. This leads us on to my second point: what happens to that control and ownership when you succeed in reaching your destination of accountability? As mentioned above, the Habré victim coalition can quite rightly claim ownership of the campaign and the resulting victory of seeing the CAE established. But what now? Continue reading →

Posted in Chad, Guest Posts, Hissène Habré, Human Rights, Justice, Senegal, Special African Chamber (CAE) | Tagged | 4 Comments

The Trial of Hissène Habré: Five Thoughts

Posted on July 20, 2015 by Mark Kersten
(Photo: HRW)

(Photo: HRW)

In descriptions of the trial of former Chadian president Hissène Habré, no word has been used more often than “finally”. After a quarter century of regular twists and turns along the way as well as a healthy dose of disappointments and failures, those victims and survivors of Habré’s reign that are still alive may finally see a degree of justice and accountability.

The Habré trial officially opens today at the Palais de Justice in Dakar, Senegal. For many reasons, the prosecution of Habré, who faces charges of war crimes, crimes against humanity and torture, is a momentous event. Here are five thoughts on the trial of the former Chadian dictator.

1) Victim’s Advocacy and Might

Firstly and most importantly, as Oliver Windridge argues, today would never have come about without the almost messianic commitment of victims and survivors. Quite frankly and for the most part, states only showed effective leadership in putting Habré on trial in recent years. Victims groups have been struggling to do so for two-and-a-half decades, often in perilous conditions. The achievement that is the prosecution of Habré is, above all, theirs.

2) Africa and International Criminal Justice

Observers have been infatuated with the mercurial relationship between African states and the International Criminal Court (ICC). But while the relationship certainly deserves scrutiny, focusing so myopically on it obfuscates the broader relationship between Africa and international criminal justice.

In this context, the Habré is remarkable. The former Chadian despot is being prosecuted in the Special African Chamber (CAE), set up by Senegal (where Habré sought refuge after the end of his rule). The Chamber was set up in 2013 with help from the African Union, which also provides the judicial body with significant funding. When it first requested Senegal to establish the CAE, the African Union asked Dakar to prosecute Habré “on behalf of Africa”.

At the same time, the creation of the CAE will reverberate beyond the borders of Senegal. Other states are watching the trial closely and taking note. In the process of setting up a hybrid tribunal to prosecute war crimes and crimes against humanity committed by anti-Balaka and Seleka forces, officials from the Central African Republic (CAR) have said that they want to “learn lessons” from the CAE.

None of this is to say that setting up such institutions is easy. The CAE and CAR’s hybrid tribunal will confront their share of obstacles and controversies. But the interest of African actors and states in investing in and championing international criminal justice is a welcome development that needs more attention. African states may have significant problems with the ICC – but many are also and simultaneously leaders in international criminal justice.

3) Universal Jurisdiction – Still Kicking

The principle of universal jurisdiction, which allows the judiciary of one state to prosecute the citizens of another for serious international crimes, has long been battered and bruised. Attempts to invoke it, as in the case of former Chilean dictator Augusto Pinochet and against former officials in the administration of George W. Bush, led to a global cooling over its use. Moreover, there has always been a fear amongst states that universal jurisdiction is just a fancy term for highly politicized judicial activism.

But the Habré trial suggests that, at least in some exceptional instances, universal jurisdiction cases can successfully be brought forward. Despite the fact that Belgium repealed its own universal jurisdiction legislation in 2003, investigations into Habré’s alleged crimes continued. While Habré was never extradited to Belgium, the CAE could only prosecute the former Chadian leader by amending its domestic laws to allow for the prosecution of international crimes under universal jurisdiction – something it did in 2006.

Former US President Ronald Reagan and Hissene Habre (Photo: Jean-Louis Atlan / Sygma / Corbis)

Former US President Ronald Reagan and Hissène Habré (Photo: Jean-Louis Atlan / Sygma / Corbis)

4) Rupturing the Narrative – Western Complicity?

Some of the states currently funding the CAE were also complicit in propping up the Habré’s rule as a counter-balance to the Libyan regime of Muammar Gaddafi. According to one recent report by Human Rights Watch:

The United States and France supported Habré, seeing him as a bulwark against Libya’s Muammar Gaddafi, who had expansionist designs on northern Chad. Under President Ronald Reagan, the United States gave covert CIA paramilitary support to help Habré take power in 1982 and then provided his government with massive military aid. The United States also used a clandestine base in Chad to organize captured Libyan soldiers into an anti-Gaddafi force in the late 1980s. Despite Habré’s abduction of the French anthropologist Françoise Claustre in 1974 and the murder of Captain Pierre Galopin, who went to Chad to negotiate her release in 1975, France also supported Habré after he arrived in power, providing him with arms, logistical support and information, and carrying out military operations “Manta” (1983) and “Hawk” (1986) to help Chad push back Libyan forces.

Continue reading →

Posted in Central African Republic (CAR), Chad, Special African Chamber (CAE), United States, Universal Jurisdiction | Tagged , , | Leave a comment

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