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

The Africa-ICC Relationship – More and Less than Meets the Eye (Part 3)

Posted on August 3, 2015 by Mark Kersten
Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

“All shall be equal before the law”. Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

Over the last two weeks, I have attempted to critically examine and assess the relationship between African states and the ICC. In the first post, I critiqued popular assumptions about the relationship, namely that it is viewed as either the result of an unfair, neo-colonial ICC targeting an unwitting continent or of a misunderstood institution that is, in reality, representing the interests of Africans as a ‘Court for Africa’. Attempting to understand the politics and complexity of the relationship between African states and the ICC, such perspectives do more to obfuscate than illuminate.

In the second installment, I explored three cases: the surrender of senior Lord’s Resistance Army commander Dominic Ongwen to the ICC, the visit of Sudanese President Omar al-Bashir to South Africa, and the prosecution of heads of states. None of these crucial developments and issues can feasibly be explained by the dominant understanding of the Africa-ICC relationship.

Of course, it would be wrong to assume that these posts have been able to do anything more than scratch the very surface of this dynamic relationship. To insist otherwise would be to fall prey to oversimplifying the relationship. But what I have tried to demonstrate is that the Africa-ICC relationship is far more complex, both legally and politically, than presented by the Court, African states, or most observers. We need to do better than seeing the relationship within harsh dichotomies or tropes. If nothing else, that is the result of this three-part series.

In this third and final post, I want to expand the way that we look and judge the Africa-ICC relationship. Specifically, I want to argue that we need to expand the parameters of our understanding by examining and assessing the relationship not between African states and the Court but by taking a broader view of the engagement of African communities with international criminal justice. But first, here are some more direct conclusions that flow from this series.

Open and Honest Discussion

All of the parties involved – African states, the Court, and observers of all stripes – can and should do more to foster a more open and honest discussion and debate regarding the concerns and criticisms that African communities have of the ICC. Proponents of the Court need to understand that the criticisms levied against the institution are either real or so widely perceived to be real that they need to be treated as such.

At the same time, the ICC itself desperately needs to improve the way it communicates its work, particularly to affected societies. The Court’s public relations strategies are ineffective and, as a direct result, the ICC’s role is too often misunderstood, feeding a fertile breeding ground for misperceptions. The Court has done very little to deal with the critical conceptions of its work head-on. Its social media strategy is essentially non-existent and its website does little more than the dead-end of the internet to advance an accessible understanding of the Court’s work. Being more transparent, improving its social media engagements, and instituting a innovative and smart public relations strategy could dramatically improve knowledge of the Court’s work in affected communities and around the world.

At the same time, there is a need, for all parties, to acknowledge that the ICC has not – and perhaps cannot – transcend international politics. A recent op-ed suggested that the Court’s focus on African states is a result of them being ‘low-hanging fruit’. Indeed, there is a debate to be had about whether the Court’s focus on African states is the result not of them being African but because they are weaker states where the Court has jurisdiction. Part of this is structural: many strong states (the United States, Russia, China, etc.) are not members of he Court and are often outside the jurisdictional reach of the Court and yet are able to steer the Court’s focus via referrals from the United Nations Security Council. At the same time, there is at least some correlation between fragile states, political violence, and weak judiciaries – all of which are variables that help establish weak state ‘candidates’ for ICC and other forms of humanitarian intervention.

For scholars and interested observers, it behooves us to interrogate this nexus of power, political interest and justice. The primary focus of analysis of the ICC – both critical and not – has been on the Court’s impacts in those states and regions in which it has intervened. This has spawned an important debate on issues such as the relationship between conflict resolution and accountability as well as how to establish accurate measures of the ICC’s effects. These are no doubt important, but we should also go behind the veneer and explore the largely untapped relationship between diplomacy and the Court. Here, as I have argued elsewhere, we need a much richer understanding of the institutional interests that guide the ICC’s decision-making and, ultimately, its interventions. Gaining such an understanding may just be the key to truly discerning the Court’s selectivity both between situations and within them.

In general, the debate about the Africa-ICC relationship needs much more critical analysis. There is both more and less than meets the eye. But the way the relationship has been presented to date hinders, rather than helps, us see it.

Taking a Broader Look – More than Meets the Eye

Digging deeper into questions of power and diplomacy would enrich our understanding of the Africa-ICC relationship. But we also need to do a much better job understanding the broader relationship between African communities and international criminal justice. There needs to be a shift in focus away from myopically examining the ICC-Africa relationship to the role and development of international criminal justice on the African continent. And here there is a tremendous wealth of projects that needs more sustained attention and scrutiny.

There are numerous ongoing proceedings against alleged perpetrators of war crimes and crimes against humanity. In addition to the ongoing proceedings against Hissein Habré in Senegal, there have been domestic trials of ICC indictees, including Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya as well as former Ivorian first lady Simone Gbagbo. For a host of reasons, these trials, especially those of former Gaddafi regime officials, have been highly controversial and rightly criticized. It may be too soon to announce the onset of an era where we are witnessing an “Africa that judges Africa”, but it does seem evident that states are taking prosecutions for international crimes increasingly seriously and view such prosecutions as  part of their national political interest. Continue reading →

Posted in Africa, African Union (AU), Central African Republic (CAR), Complementarity, Hissène Habré, International Criminal Court (ICC) | 5 Comments

Justice, But Only For Some: The Trial of Hissène Habré

Posted on July 30, 2015 by Mark Kersten

Kelly-Jo Bluen joins JiC for this critical take on the trial of Hissène Habré and the need to pursue justice for all parties responsible for atrocities in Chad. Kelly-Jo is the project leader for international justice at the Institute for Justice and Reconciliation based in South Africa.

(Photo: Jean-Louis Atlan / Sygma / Corbis)

(Photo: Jean-Louis Atlan / Sygma / Corbis)

The trial of former Chadian President Hissène Habré in Senegal last week reflects many of the tensions afflicting international justice. Habré, who is charged with crimes against humanity, torture, and war crimes, relating to the death of an alleged 40,000 people between 1982 and 1990, denounced the court as a colonial project before being forcibly removed from the courtroom. The trial was subsequently postponed until 7 September, for Habré’s defence counsel to review court files.

The Dakar-based Court where Habré is being prosecuted is the Extraordinary African Chambers (EAC), an African Union mandated chamber with jurisdiction to prosecute “the person or persons most responsible for crimes and serious violations of international law” in Chad between 7 June 1982 and 1 December 1990.

This trial presents a critical juncture to reflect on two pertinent issues, both for the case and for the international justice architecture. First, in light of the well-documented role of Western powers in the Chadian conflict’s Cold War dimensions, and those that preceeded them during French colonial rule, the trial presents an opportunity to consider more expansively who “the persons most responsible” for gross atrocities might be in Chad. Second, and related to the divorce between complicity and accountability in the face of politics, the Habré case is revealing in terms of how notions of accountability are framed within the existing lexicon of international criminal justice.

Structural and Direct: Lines and webs of complicity

Unequivocally, the prospect of accountability for Habré is extremely important. A 2010 Human Rights Data Analysis group report that analysed evidence from the Chadian Documentation and Security Directorate (DDS) details abuse, torture, summary executions, and murder, as well as Habré’s knowledge of the abuse.

In addition to Habré, however, there exists a complex web of complicity at both direct and structural levels. While dominant narratives of international justice operate in quasi-biblical binaries of good and evil, the reality of the Chadian case is far more complex. When Habré came to power in 1982, it was, in large part, as a result of a CIA covert operation. The newly-elected US President, Ronald Reagan, was enmeshed in Cold War paranoia about Libyan leader Muammar Gaddafi and was jittery about Gaddafi’s troops’ advance into Chad. Once Gaddafi announced the prospects of a Libya-Chad merger Reagan became increasingly threatened and convinced of the importance of Gaddafi’s defeat. A 1981 CIA report on Libya elucidated the extent of US obsessive Gaddafi apprehension, focusing on the threat nexus of international terror and Soviet expansionism. It specifically detailed the vulnerability of Gaddafi’s “over-extension” in Chad and detailed a subtle approach as “an open Western challenge could rebound to Qaddafi’s advantage transforming him from outcast to Muslim martyr.”

With the explicit aim “to bloody Qaddafi’s nose” and “to increase the flow of pine boxes back to Libya,” Reagan and the CIA enlisted Habré a former Defense Minister who had been based on the Chad-Sudan border since his thwarted attempt on the Presidency in 1980. Habré’s ascent to presidency was seen as critical to the anti-Gaddafi campaign. President Reagan subsequently signed a formal intelligence order releasing several million dollars in covert support to Habré and, by June 1982, the future Chadian leader and 2,000 of his troops, armed and funded by the US, had reached N’Djamena and Habré assumed the presidency in Chad.

In addition to covert financing, the US provided an estimated $182 million in military and economic assistance during Habré’s Presidency. It provided machine guns, jeeps, missiles, surveillance aircraft, among other military hardware. A document from the DDS obtained by Human Rights Watch details training in the US in 1985 of Chadian security agents. Two of those who underwent training were found, during the Chadian Truth Commission to be Chad’s “most feared torturers”.

While the US covert operation was instrumental in cementing and maintaining Habré’s presidency, Chad was a Cold War geopolitical quagmire. Ariel Sharon, then Prime Minister of Israel agreed to provide aircraft weapons, advisors and, together with President of Zaire (present day Democratic Republic of the Congo), Mobutu Sese Seko, provided training for Habré’s troops in concert with the Zairian military.

France’s complicity is altogether more expansive and structural. France, which (officially) colonised Chad until 1960 employed a policy characterised by deliberative disunity between and within the predominantly Muslim north and predominantly Christian South. French colonial officers exploited differences to their advantage, instrumentalising cleavages for purposes of maintaining power and resources. Indeed, the very tensions that fomented decades of civil war and oppression in Chad, so readily dismissed by many Western analysts as “tribal” were entrenched by French colonialism. In the course of Habré’s presidency, keen to maintain its neocolonial hold on Chad, and blighted by the increasingly prominent role of the US in Chad, France supplied 3,000 troops, logistical support, equipment, and air power for Habré. During the course of the Presidency of François Mitterand, the French campaign in Chad from 1983 to 1984 was France’s largest military intervention since Algeria.

In addition to the atrocities committed by US and French forces in the course of the Chadian-Libyan war, western powers were aware and not deterred by the executions and torture being committed by Habré’s security forces in Chad, which in many cases using weaponry, finance, and training provided through by their Cold War allies. An Amnesty International Report as early as 1983 detailed the abuses taking place in Chad. In 2000, a former senior U.S. official remarked, “it is fair to say we…chose to turn a blind eye.” Perhaps the clearest indication of this approach was in June 1987, when President Habré was invited to the White House where President Reagan remarked, “today President Habre emphasized that his government is committed to building a better life for the Chadian people…I assured him that we will continue to do our best…to help reach President Habre’s laudatory goals”.

Habré inspecting some of his troops in 1980 (Photo: AFP)

Habré inspecting some of his soldiers in 1980 (Photo: AFP)

Implications for (International) Justice

International complicity in Chadian atrocities is hardly a secret. Human rights groups, analysts, historians and even the most conservative, status quo Western media outlets refer to Habré as a “western-backed dictator” and many acknowledge the specificites of Cold War dynamics. What is perplexing, but unsurprising then, is the disjuncture between this acknowledgement, and the determination of the appropriate course of action. Western complicity is treated as an unfortunate throwaway eventuality, stripped of its egregious role in the conflict. It is particularly telling that both the US and France are EAC donors, donating $1 million and €300,000 respectively towards the Chambers’ budget.

Temporally, the court has jurisdiction to prosecute international crimes committed from 1982 to 1990. While this precludes accountability for the destruction and systemic preconditions to conflict created by French colonialism, it does include within its timeframe Western responsibility during the Cold War. The Court, however, will try only Hissène Habré as delineated by the prosecution. On the implications of international backing for the case, EAC Prosecutor Mbacké Fall notes, “neither France nor the US felt concerned by the Habré regime’s massive human rights violations. But, having said that, I don’t think it will have an incidence on Habré’s guilt.” There is no scope, at this point, for criminal justice or other forms of accountability for Habré’s Western allies.

The Habré case, perhaps most poignantly, illustrates the politics of a singular focus on individualised criminal accountability and the problematics of negating internationalisation. Without diminishing the importance of holding Habré accountable, it should be noted that he is not singularly responsible. While the precepts of individualised accountability for gross crimes are important, in individualising, and particularly in individualising within the framework of contrived temporal jurisdictional limitations, two critical factors are excluded. First, we exclude accountability for historical complicity in proliferating structural conditions which cause violence because they precede the proscribed temporal mandate. Second, the language around individualised accountability, derived from a specific set of liberal ideas preclude accountability for external actors, in localising that which is often international and designating responsibility and command in ways that exclude external actors.

There is thus is a disjuncture between much of the vocabulary surrounding international criminal justice and the realities it seeks to address. Many conflicts, and specifically those in a Cold War context of protracted neo-colonial relationships are internationalised. The selectively-employed concept of “sovereignty” is flaccid where external advisors, funders, and patrons have the power, through capacity support, technical training, weapons, and money, to directly influence politics. The lenses offer us “civil war” despite international sponsorship and “state terrorism” despite transnational frameworks.

In so doing, they allow for the continued entrenchment of a dichotomy which posits a well-behaved West in opposition to a barbaric Africa. In this context, and specifically in Chad, where there is such an apparent a link between the atrocities committed and the US and French governments, prosecuting domestic actors in isolation without assessing international ones cannot purport to do justice in a fashion that is truly international. Again, this is not to suggest that Habré should not be held accountable; he should. But the focus on Habré to the exclusion of other powerful actors is insufficient and unjust in the context of layered and internationalised complicity for crimes.

 

Posted in African Union (AU), Chad, Guest Posts, Hissène Habré, International Criminal Justice, Senegal, Special African Chamber (CAE), War crimes | 4 Comments

Putting Victims First: The Aftermath of al-Bashir’s Visit to South Africa

Posted on July 27, 2015 by Mark Kersten

Stephen Lamony joins JiC for this timely piece refocusing debates on Sudanese President Omar al-Bashir’s travels in defiance of the International Criminal Court to its impact on victims. Stephen is Head of Advocacy and Policy, UN, AU and Africa Situations and Sina Alavi, Bridge Fellow at the Coalition for the ICC.

Refugees carry water in Sam Ouandja (Photo: Nicolas Rost | UNHCR

Refugees carry water in Sam Ouandja (Photo: Nicolas Rost | UNHCR

The New York Times recently published a video Op-Ed by Nicholas Kristof and Adam B. Ellick on ‘The Worst Atrocity You’ve Never Heard Of’. Kristof and Ellick sneaked into the Nuba Mountain region of Sudan to document the crimes against humanity being carried out by the Sudanese president, Omar al-Bashir. The images Kristof and Ellick captured were horrific. But they also act as a glaring reminder of the grave consequences of al-Bashir’s evasion of arrest, not only in terms of justice served for past crimes, but also with regard to the continued torment of certain pockets of the Sudanese population. Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan.

Last Month, al-Bashir visited South Africa, a State Party to the International Criminal Court, to attend a meeting of the African Union. During his visit, the South African courts ordered that al-Bashir be barred from leaving the country until a decision was made regarding South Africa’s obligations vis-à-vis the ICC arrest warrant against him. Omar al-Bashir managed to flee South Africa shortly after the court’s announcement. The events surrounding his departure are still under investigation.

In the media aftermath of al-Bashir’s visit and hastened departure from South Africa, talk of victims often came after, if at all, a discussion of the international legal nuances and political implications of his dodging arrest. While it is certainly necessary to debate those issues, too little attention has been given to why this matter is important in the first place, namely the need for an end to mass atrocities in Sudan and victims’ rights to justice. As one victim of the conflict in Darfur explained to Niemat Ahmadi of the Darfur Women Action Group,

I have lost many family members to al-Bashir’s genocidal regime and was forced to flee my home to save my own life. As a victim of al-Bashir’s brutal crimes, I am appalled and deeply disappointed in President Zuma. To me, his conscious choice to aid al-Bashir in evading justice for the world’s most heinous crime makes him as guilty as al-Bashir. It not only shows Zuma’s complicity in supporting genocide and endangering thousands of indigenous Africans in Darfur, but it has put into question his ability and desire to protect his own South African people whose struggle is no different than that of the people of Darfur.

Despite such testimonies, the victims of the genocide in Darfur are still waiting for justice, and South Africa’s failure to detain al-Bashir on its territory represented yet another disappointment in that regard.

The topic of victims was, however, brought up during the Parliamentary debate held in Pretoria, South Africa on 23 June 2015. Notwithstanding a criticism of the International Criminal Court (ICC) and its strong focus on the African continent, Bantu Holomisa, a United Democratic Movement Member of Parliament, said that his party “stood firmly with the victims of human rights atrocities, and called on South Africa to clarify its foreign policy ‘unambiguously’”. The Democratic Alliance also stated that the South African government had failed the people of Darfur: “Let us, for a moment, think about what allowing Mr. al-Bashir to evade the laws means to the 300,000 people who were murdered and the two and a half million people who were displaced in Darfur,” said Mr. Mokgalapa. He also accused the government of taking the “moral low-ground.

When the United Nations debated the situation in Sudan on 29 June 2015, in the presence of the ICC Prosecutor Fatou Bensouda, many of the permanent members and 10 members of the Security Council brought up the issue of victims. The representative of the United States, in the final words of his statement, said that the Council and the international community too often lose sight of the victims in this conflict: “It is the victims that make the need for accountability acute”. The representative of the United Kingdom made a similar statement, identifying the strong need for the International Criminal Court to ensure justice for the victims of the conflict. The representative of France also strongly stated that civilians continue to be the primary victims of the conflict in Darfur. The plight of the victims of the ongoing violence was also present throughout the Prosecutor’s speech to the Security Council. Continue reading →

Posted in Darfur, Genocide, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Sudan | Tagged | 3 Comments

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 | 23 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