Why Central African Republic’s Hybrid Tribunal Could be a Game-Changer

Posted on May 14, 2015 by Mark Kersten
People shelter around a derelict plane at a temporary camp for internally displaced persons at the airport in Bangui, Central African Republic (Photo: Reuters)

People shelter around a derelict plane at a temporary camp for internally displaced persons at the airport in Bangui, Central African Republic (Photo: Reuters)

A new international criminal tribunal is born. Following pressure from international human rights groups and the United Nations, the Central African Republic (CAR) has established a hybrid tribunal with the aim of prosecuting atrocities committed by Séléka and anti-Balaka forces during the country’s latest spate of political violence. As readers will know, the International Criminal Court (ICC) is already investigating crimes in CAR. But if the Special Criminal Court (SCC) of CAR emerges as something more than a stillborn institution or paper tiger, it could set new precedents for shared responsibility between domestic and international institutions in prosecuting international crimes.

When the ICC became a reality in 2002, there was a widespread sense that the institution would be a court to end all courts. Proponents were convinced that the ICC was the solution to what had been, until then, piecemeal international criminal justice. With a permanent ICC, there would be no need for ad hoc tribunals. Whatever ad hoc or hybrid tribunals would otherwise investigate would now be handled by the ICC.

In recent years, however, the idea of the ICC being the only game in town has slowly withered. Where the prospects of ICC interventions are slim, members of the international community have instead called for the creation of ad hoc or hybrid tribunals. This has been the case in Syria and, more recently, South Sudan.

The potential hybrid tribunal in the CAR, however, is an altogether different beast insofar as it represents an attempt to complement an ICC intervention rather than present an alternative to the Court.

A number of the SCC’s features have now been clarified. In line with being a hybrid tribunal, key positions at the SCC will be divided amongst domestic and international actors. The court will have twenty-seven judges: 14 from the CAR and 13 from abroad. It will have an international “special prosecutor”, but its chief judge will come be a citizen of CAR. Its jurisdictional reach will extend to all war crimes and crimes against humanity committed on the territory of the Central African Republic since 2003. Crucially, it will not compete with the ICC for cases. Senior officials in CAR have consistently reiterated they will cooperate with the ICC. Those perpetrators from both the anti-Balaka and Séléka forces deemed to be “most responsible” and who are eventually indicted by the ICC will be sent to The Hague.

Of course, important and unresolved questions remain. First, early versions of the law that created the Special Criminal Court included provisions which would prohibit the granting of immunities, presumably via government-issued amnesties. However, these provisions are no longer present, suggesting that the government may offer immunity from prosecution in certain cases. What remains unclear is whether and why Bangui is planning on bartering accountability for peace with some anti-Balaka or Séléka fighters. Moreover, under what conditions will the CAR grant amnesties and will such offers of immunity be conditional on, say, participation in a Truth Commission?

Second, it remains unclear exactly how the SCC will be funded and, as importantly, who will fund it. The CAR is a desperately impoverished state and international criminal justice doesn’t come cheap. It seems almost certain that the lion’s share of funding will have to come via external sources. This, however, comes with certain risks, namely leaving the tribunal susceptible to political manipulation by interested international actors which may seek to guide the tribunal’s focus by tugging on its purse strings. To avoid this fate, international funding must be transparent and should go through the United Nations rather than directly from states. Continue reading →

Posted in Amnesty, Central African Republic (CAR), Hybrid Tribunals, International Criminal Court (ICC), Special Criminal Court | 23 Comments

Victims at the ICC – Who’s Representing Who?

Posted on May 5, 2015 by Mark Kersten

Luke Moffett joins JiC for this fascinating article on the battle for victim participation and representation in the context of northern Uganda. Luke is a law lecturer in Queen’s University Belfast and is author of Justice for Victims before the International Criminal Court (2014).

An IDP camp in Kitgum, northern Uganda (Photo: Outreach Uganda.org/)

An IDP camp in Kitgum, northern Uganda (Photo: Outreach Uganda.org/)

Victim participation before the International Criminal Court (ICC) is one of the innovations that distinguishes it from earlier tribunals. Ten years on from the first indictments being released by the ICC, the role of victims is becoming more settled, allowing more critical insight into how effectively victims’ interests are being represented and considered by the ICC. Important questions remain. How can the ICC effectively enable thousands of victims of international crimes to voice their views and concerns before the Court? Given the importance of victim participation at the ICC, who gets to decide who speaks for victims is under the spotlight in the Dominic Ongwen case.

Despite the first ICC situation in Uganda being dormant for nearly ten years, the beginning of 2015 saw a flurry of interest in the ICC, particularly following the arrest and transfer of Lord Resistance Army (LRA) commander Dominic Ongwen to the Court. Ongwen’s capture and surrender rejuvenated hope that the ICC could hold senior perpetrators to account, overturning the dismal end of 2014 that was marred with the collapse of the case against Kenyan President Uhuru Kenyatta and the Prosecutor shelving her investigation into the Darfur situation.

Yet, while there has been much written about Ongwen’s background as a child soldier, there has been little attention to victims’ views in the case. The question of which victims’ views the ICC is concerned with has been recently brought to the fore with the public fallout between the Office of the Public Counsel for Victims (OPCV), a body that is mandated with providing legal representation and support to victims and their lawyers, and the Uganda Victims’ Foundation (UVF), a coalition of human rights and civil society organisations working on victims’ rights.

The UVF and OPCV: A Battleground

The fallout is documented in submissions made by the UVF and OPCV in the Ongwen case. The UVF wanted to inform the Court that there has been a lack of proper and effective legal representation of victims’ interests before the ICC in the past ten years in Uganda. This is based on their view that there has been inadequate communication from the OPCV regarding relevant proceedings at the ICC. Accordingly, the UVF wanted to appoint independent legal counsel to represent victims before the ICC and to expand the charges against Ongwen to include crimes beyond those initially investigated by the Court’s investigators.

In response, the OPCV wanted the UVF submission rejected by the Court, arguing it was ‘unfounded’ and ‘premature’ as victim participation had not yet been ordered in the Ongwen case. The OPCV had in January 2015 submitted the views of victims. The OPCV also noted that it had kept in contact with the victims it represents but, given the absence of judicial activities in the case, had not been present in Uganda or carried out activities there in 8 years. Notably, the OPCV stated that the UVF “has not shown its legitimacy to speak on behalf of the victims represented” by the legal representatives.

Last month, Pre-Trial Chamber II rejected the UVF submission on the grounds that there are no victims currently participating in the case and any identification of charges is exclusively in the hands of the Prosecutor. This latter point I would argue is incorrect. Victims should be able to request a right to review decisions not to prosecute certain crimes in order to ensure transparency and accountability of the Office of the Prosecutor. The OPCV and UVF have both been arguing for this on behalf of victims, yet such views are not being fully considered at the ICC.

Dominic Ongwen ICC

Dominic Ongwen during hearings at the ICC (Photo: ICC)

What is interesting is the contest of legitimate victim representation; who should speak for victims? Both the UVF and OPCV work closely for victims, but the Ongwen case at the moment focuses only on the 2004 Lukodi massacre in northern Uganda. Based on my research, there has been little or no engagement from either the UVF or the OPCV with the victims of the Lukodi Massacre. Despite thousands of victim applications to participate at the ICC, the mothballing of the Kony and others case means that only a few victims (forty-one) are recognised to participate through the OPCV, most of whom relate to other crimes committed by the LRA and not specifically Lukodi. It really brings into question which victims and intermediaries have access to the ICC and can have their voice heard.

In April 2015, the OPCV conducted a visit to re-establish contact with victims and intermediary groups like the UVF, many of whom were unhappy with the absence of the OPCV in Uganda. Perhaps given the limited resources of the OPCV, it is unrealistic for it to provide in-country support to victim groups in each situation, especially in dormant or long-term cases. However, quarterly or monthly updates, even produced on the ICC website and disseminated to local victim groups or intermediaries could provide an accessible way to keep victims’ informed.

The views from Lukodi

I have been fortunate enough to work with a few victim groups in northern Uganda, including the Lukodi community. In research in 2011 and more recently in April 2015, I found that victims were very keen to participate in ICC proceedings and have their views and concerns presented before the Court. However, the Lukodi community pointed out that the UVF or the OPCV had not yet visited them. The victims wanted to have their own lawyer appointed, either from the OPCV or externally. Their primary concern was to participate in proceedings and to claim reparations, to have their voices represented, not getting bogged down in the politics between the OPCV or UVF. Such divisions inhibit victim representation. With many of the victims in old age, the slow grinding wheels of justice at the ICC will mean that many will not see justice or reparations. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Lord's Resistance Army (LRA), Uganda, Victim Participation | Tagged , , , , , | 3 Comments

Repairing and Reparations: Buying Victims’ Silence in the DRC?

Posted on April 24, 2015 by Mark Kersten

Mattia Cacciatori joins JiC for this post on the challenges of providing effective and appropriate reparations from the International Criminal Court. Mattia is a Ph.D. candidate at the University of Bath, focusing on the role of superpowers in the administration of Transitional Justice.

(Photo: PressTV)

(Photo: PressTV)

In 2012, the International Criminal Court (ICC) found Thomas Dyilo Lubanga guilty of conscripting children under the age of fifteen to fight for his Congolese Patriotic Union. His troops were also implicated in pillaging, torture, and ethnic massacres. Lubanga’s trial was historic and the first in the ICC’s history to be completed. But the verdict also posed a new challenge for the ICC and the project of international criminal justice: how to pay reparations to the victims and survivors of Lubanga’s crimes.

Earlier this month, the Appeals Chambers of the ICC issued its ruling on reparations in the Lubanga case. Specifically, the Appeals Chamber instructed the Trust Fund for Victims (TFV) to present a draft implementation plan in no more than six months to provide victims with reparations. The decision implied that reparations will be awarded on a collective basis, since the number of the victims is too extensive to be dealt with individually.

The decision, which followed a 2012 declaration at the ICC on reparations, is groundbreaking. For the first time, the ICC is actively promoting reparations. However, many questions remain. Despite the fact that today’s presiding Judge Erkii Kourula highlighted the importance of reintegrating young victims into Congolese society as well as providing general rehabilitation, housing, education and training, this decision by the Appeals Chambers still seems to be a shot in the dark in the wider process of national reconciliation. The decision on reparations is taking place in a context where concomitant practices of restorative justice, such as truth telling mechanisms and institutional reform, seem to be largely non-existent. This sheds a skeptical light on the restorative process in the Democratic Republic of Congo (DRC) as a whole as well as the ICC’s ability to contribute positively to reconciliation in the region.

Reparations and the ICC

The ICC is the first international tribunal that has been given the responsibility to issue reparation orders directly against perpetrators in order to (partially) compensate the victims of such ominous crimes. This signals a step forward for transitional justice and it implicitly suggests that punishing criminals via retributive justice is insufficient. Relations must be repaired. But what constitutes reparations?

Luke Moffett has observed that “the most discernable way of people understanding what reparations are, is compensation”. There are various forms of reparations for human rights violations, varying from material compensation, restitution of goods lost during the violations, to more symbolic and collective ways of acknowledging the damage that victims suffered as a consequence of a past of violations.

Broadly, there are two main ways in which the ICC can grant reparations: first, it can demand that the individual responsible for the crimes, in this case Lubanga, repay the victims. But Lubanga is indigent. He lacks the material resources to provide reparations, even if he was inclined to do so. The second mechanism through which the ICC can compensate the victims is through the Trust Fund for Victims, which has the stated aim, under Art.79 of the Rome Statute, to “support and implement programs that address harms resulting from genocide, crimes of humanity and war crimes”. It has to be noted in this context, that the TFV largely depends on voluntary contributions from states, hence the resources to deliver on its mandate may always be thin.

Thomas Lubanga (Photo: ICC)

Thomas Lubanga (Photo: ICC)

Reparations, in their individual manifestation, are tasked with providing victims with a short-term sense of ‘justice achieved’, since victims can almost immediately perceive their personal harms as, at least partially, remedied. In their collective form, reparations constitute only a small part of the restoration process. They have to be understood as a part of a broader attempt to promote post-conflict societal recovery in the wake of past atrocities. Such processes should include reparations, truth telling fora, and institutional reform. All of these processes should converge as a means to promote the more ambitious goal of national reconciliation. Without these pieces of the restorative mosaic in place, reparations are likely to be understood as a way for the international community to buy the victims’ silence, as the International Center of Transitional Justice (ICTJ) warns. Continue reading →

Posted in Democratic Republic of Congo, International Criminal Court (ICC), Reparations, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Tagged | 6 Comments

Is the ICC the Right Response to the ISIS Crisis?

Posted on April 22, 2015 by Mark Kersten
Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters)

Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters)

Their ways are a shock to the collective conscience of humanity. Their brutality is almost universally condemned. The evidence of their crimes is vast, not least because they themselves upload first-hand footage of their massacres and mass atrocities. In many respects, the Islamic State (ISIS, or sometimes ISIL) is a perfect target for the International Criminal Court (ICC), a slam-dunk case that really shouldn’t inspire any political, moral, or legal ambiguity.

But is an ICC intervention an appropriate response to ISIS? For some influential observers, the answer is adamantly yes. John Bellinger III, a former official in the administration of George W. Bush, recently insisted that an ICC investigation was warranted and that the Court was the best venue for bringing ISIS combatants to justice. The New York Times editorial board also threw its support behind a United Nations Security Council referral of ISIS to the ICC, arguing that it could help the council make amends for previous failures to protect civilians in Syria and Iraq. Interest in the ICC’s potential role in castigating and prosecuting ISIS has been so palpable that the Court’s chief prosecutor, Fatou Bensouda, felt the need to announce that she did not have sufficient jurisdiction to investigate senior ISIS leaders and could not do so without a UN Security Council referral.

Without question, the international community can and should do something in response to the massive human rights violations and human devastation being wrought by ISIS. Still, despite the widespread – and growing – support for holding ISIS combatants to account, there is an ongoing need for some sober reflection regarding the wisdom of referring ISIS to the ICC. Here are three reasons why an ICC referral may not, in fact, be the right approach to dealing with the Islamic State.

Entrenching selectivity

If the UN Security Council were to refer ISIS to the ICC, it would mark the first time that a group – rather than a territorial ‘situation’ or conflict – was successfully referred to the Court. But it wouldn’t be the first time that a political actor attempted to do so. In 2004, the government of Uganda sought to refer “the situation concerning the Lord’s Resistance Army” to the ICC. This was perceived as an attempt to instruct the Court to target only the government’s rebel adversaries. Ultimately, and at the behest of then-Chief Prosecutor Luis Moreno Ocampo, Uganda’s referral was re-interpreted so as to provide prosecutors with jurisdiction over the territory of northern Uganda – and not just the LRA.

William Schabas recently pointed out that there is nothing precluding the UN Security Council from referring a group to the ICC. But doing so would risk entrenching the Court’s selectivity. In a region that has experienced devastating violence for four years, most disturbingly the repeated use of chemical weapons against civilians (including children), the ICC would be forced to focus on only those crimes committed by ISIS. Would that amount to justice? Perhaps for some. But it would also be an explicit denial of justice for those victims and survivors in Iraq and Syria whose perpetrators and tormentors murder and plunder under another banner.

isis-flagPolitical manipulation of justice

Any UN Security Council referral of ISIS would highly restrict who the Court could and could not investigate and prosecute. Taken together, Council members currently have a laundry list of actors they would want to protect. The US, UK and France are unlikely to support any referral that would potentially put Syrian rebel groups or the Iraqi forces under the ICC’s microscope. Russia and, to a lesser degree, China, would seek to ensure that the regime of Syrian President Bashar al-Assad was shielded from the Court. All would want to make sure that the ICC’s investigation of ISIS as a group did not leak into an investigation of crimes being committed on the territory of Syria or Iraq. Throw into the mix the Council’s fears that Israel’s occupation of the Golan Heights region of Syria could lead the ICC to investigate Israeli actions, and the picture becomes clear: a UN Security Council referral would have to have so many political caveats as to make a mockery of the very notion of impartial international criminal justice. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Syria | 7 Comments

Palestine’s Accession to the ICC May Strengthen Peace-first not Rights-based Approach

Posted on April 16, 2015 by Mark Kersten

With the fourth contribution to JiC’s ongoing symposium on Palestine and the International Criminal Court (ICC), we are thrilled to welcome Leslie Vinjamuri. Leslie is a Senior Lecturer (Associate Professor) in International Relations and the Co-Director of the Centre for the International Politics of Conflict, Rights and Justice at SOAS, University of London.

(Photo: Mohammed Salem / Reuters)

(Photo: Mohammed Salem / Reuters)

The prospect of the International Criminal Court (ICC) becoming mired in politics has been an ongoing concern for its supporters – and one that is not without just cause. Politics have shaped states’ trysts with international justice since long before negotiations in Rome. Palestine’s recent decision to join the ICC has reignited the passions and interests that infuse debates among civil society, international human rights advocates, and governments about the role of the ICC in ongoing conflicts. References to accountability and justice have figured surprisingly little in the official responses by key government officials to this development. Rather than recasting how powerful regional actors think about the relationship between peace and justice, Palestine’s move to join the ICC has generated a backlash from those most capable of defining the course of the peace process. The US in particular has responded by digging in its heels, reasserting its view that a peace process should be free of the shadow of the Court.

Some analysts suggest that long-term trends favor a new rights-first approach to the Israel-Palestine conflict. Most notable is the repeated failure to achieve a peace settlement that will stick. The growing strength of the boycott, divestment and sanctions (BDS) movement among civil society actors in Europe and the US is also an important driver of change. Some researchers point to a generational shift among American Jews whose emotional commitment to Israel and support for Israeli government policies is far weaker among younger American Jews. This, they suggest, may alter America’s approach to peace between Israel and Palestine, thus creating the possibility for putting rights, and also the ICC, up front.

Recent events have facilitated the mobilization of civil society activists seeking to press forward with a rights-first agenda. Last summer’s Gaza War further diminished international public support for Israel. International human rights NGOs seized this window of opportunity, challenging once again the legitimacy and legality of Israeli government policy towards Palestine. The Gaza War also led to greater mobilization among BDS activists.

Despite these developments, evidence that governments will embrace a rights-based approach remains scarce.

In Europe, where government support for justice, rights, and law is generally robust, official reactions to news of Palestine’s desire for accession to the ICC were negative, stressing the need to protect the prospects for peace, presumably from justice. Now that Palestine’s membership is official, the EU has been cautious. This is most likely driven by pragmatism. Public statements by European officials against Palestine’s membership open the door to allegations of hypocrisy, given the strength of Europe’s commitments to the ICC. This might also create the potential for yet more divisions among the EU’s member states at a time when the risk of division from various corridors is already very high.

Reactions by the US government have been far less nuanced. Palestine’s accession to the ICC has provoked a backlash marked by vehement statements against Palestinian brazenness. It has also inspired a reassertion of the long standing US position, namely, that the question of Palestine’s status should be resolved through peace talks among local parties and should exclude external actors, such as the ICC, which would seek to inject external judgments about justice or accountability into a peace process.

The vehemence with which the United States has protested Palestine’s membership in the ICC may also suggest a degree of pragmatism with respect to its own role in any future talks. If the US recommits to an active peace process, one of its most basic tasks will be to bring Israel to the negotiating table and keep it there. Regional politics do not make this task easy. The recent announcement of a framework deal with Iran over its nuclear program may present a further complication. So far, Israel’s response to this suggests that the Iran deal will continue to antagonize and alienate Israel, possibly making the prospect of its engagement in peace talks less rather than more likely. Given this backdrop, the United States is unlikely to view the ICC as a welcome actor in the region. Nor is it likely to see the ICC as a lever that can help to facilitate peace. Instead, the ICC will continue to be viewed as threatening to throw a monkey wrench into any plans for peace talks. The sustained backlash this is likely to engender from Israel will ensure a steady supply of pressure on the US not to soften its stance on Palestine’s ICC membership. Continue reading →

Posted in European Union (EU), International Criminal Court (ICC), International Law, Israel, Justice, Palestine, Palestine and ICC Symposium, Palestine and the ICC, Peace Negotiations, Peace Processes, United States | Tagged | 4 Comments

What Would A Hilary Clinton White House Mean for the ICC?

Posted on April 13, 2015 by Mark Kersten
(Photo: AFP)

(Photo: AFP)

Whether it has been as First Lady, Senator for New York, or Secretary of State, Hillary Rodham Clinton’s political life has covered the most momentous contemporary developments in international criminal justice. So if she were to become the first-ever female President of the United States, what would Clinton’s tenure mean for the relationship between the ICC and the US? Would it be markedly different than what we’ve seen under Barack Obama?

Under Obama, the US has had an improved yet still mixed relationship with the ICC. The administration supported referrals of Libya and Syria to the ICC. In 2012, the State Department expanded its Rewards for Justice programme to include some individuals indicted by the Court. Even if it hadn’t initially intended to, Washington played an important role in the surrender and transfer of M23 leader Bosco Ntaganda to The Hague. It was also right in the thick of it when Dominic Ongwen, a senior commander in the notorious Lord’s Resistance Army, surrendered to African Union troops and was eventually shipped off to face trial at the ICC.

At the same time, the administration refused to endorse any UN Security Council referral of a situation to the ICC which did not explicitly prohibit the Court from investigating citizens of non-member states. It also continued the practice of endorsing immunity of its soldiers before the ICC, ensuring that its troops in Mali would never be prosecuted by the Court. While UN Ambassador Samantha Power was quick to heap criticism on Russia and China for ensuring that a referral of Syria to the ICC failed, the truth is that Power and her administration refused to do so for three years and had spoken out against doing so. Clinton herself stated that, while referring to Syrian President Bashar al-Assad as a “war criminal” was likely accurate, it also wasn’t useful. More recently, although its protests have been relatively quiet, the administration stood firmly against Palestine becoming a member-state of the ICC.

After six years, the Obama administration’s approach is notable for the fact that it has never developed or implemented a coherent strategy or policy regarding the ICC. This has allowed it to pursue a curious one-foot-in, one-foot-out position of supporting the Court when it comes at little cost (and potentially some benefit) and otherwise giving international criminal justice the cold shoulder.

There is no evidence that a Hillary Clinton White House would mark any significant shift in this approach. Historically, her record on the Court has been mixed – at best.

David Scheffer explaining the Rewards for Justice Program as it pertains to the ICTY (Photo: George Bridges / AFP / Getty Images)

David Scheffer explaining the Rewards for Justice Program as it pertains to the ICTY (Photo: George Bridges / AFP / Getty Images)

In his must-read book, David Scheffer, Ambassador-at-Large for War Crimes Issues under President Bill Clinton, recounts his role as the head of the US delegation to the Rome Statute negotiations. Scheffer pushed for the Clinton administration to embrace the “bedrock principle” of complementarity wherein the ICC could only investigate crimes if the relevant state was not already doing so itself – or was not doing so genuinely. But the American diplomat had to contend with US officials, high on the fumes of late-1990s political exceptionalism, who wanted to see the Court guarantee full immunity for American citizens irrespective of whether the US became a member-state of the ICC or not. A seminal moment in the US’s approach to the ICC was determined in a meeting with First Lady Hillary Clinton and James Baker, who ardently argued for full immunity for US citizens:

… Baker then weighed in with the Pentagon’s view to hold firm on the long-standing American requirements. Hillary asked how the negotiations had gotten so convoluted, with such complexities over jurisdiction. Why not, she asked, just have a global war crimes tribunal modeled on the Yugoslav Tribunal on a world stage. I explained why the International Criminal Court would be a treaty-based court independent of the United Nations and that after years of negotiations the situation had changed as governments expressed their largely negative views about the Security Council controlling a judicial process.

… She absorbed without flinching Baker’s condescending warning that since the president finally understood the role of the military, if he were to support the Pentagon position President Clinton would earn the military’s permanent respect and allegiance. And that meant he needed to back the current U.S. insistence on full immunity from prosecution by the court as both a nonparty state and as a possible state party to the court. In rebuttal, I reminded her of the futility of trying to attain full immunity that would extend even to our status as a state party and that it was undercutting our credibility to achieve major objectives in the treaty. Hillary paused to reflect, thanked us, and told me she sympathized with how difficult my job would be in Rome. I saw that as a signal that she would advise the president to back the Pentagon’s futile position, and that is exactly what he did.

I thus prepared for Rome with stale instructions that forced me to present the status quo…

Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, International Law, United States | Tagged | 10 Comments

ISIS and the ICC: On Fatou Bensouda’s Targeted Use of Symbolic Power

Posted on April 10, 2015 by Barrie Sander
Fatou Bensouda (Reuters)

Fatou Bensouda (Reuters)

Earlier this week, ICC Prosecutor Fatou Bensouda issued a “clarification” regarding communications received by her office with respect to atrocities allegedly committed by ISIS. The statement was unprecedented because, to the best of my knowledge, never before has the Prosecutor issued a formal public statement regarding a decision not to open a preliminary examination into a situation.

Although unprecedented in form, the statement marks the latest in a series of pronouncements by Bensouda that have demonstrated her willingness to use the symbolic power of her office to distribute responsibility and, at times, stigma to States and the Security Council for political limits that have impeded the work of the ICC.

For instance, in September 2014, the Prosecutor issued a striking statement regarding the ICC’s jurisdiction over Palestine. At that time, prior to Palestine lodging a new declaration with the ICC and acceding to the Rome Statute, ambiguity surrounded whether a new declaration was necessary for the ICC to have jurisdiction over the situation. In response to media reports and commentaries suggesting that the Prosecutor was avoiding opening an investigation into alleged war crimes in Gaza due to political pressures, Bensouda issued a forceful statement denying such suggestions as “baseless” and “devoid of any merit”. Bensouda made it clear that in light of Palestine’s status being upgraded to “non-member observer State” by the UN General Assembly, the ball was now firmly in Palestine’s court to lodge a new declaration and/or accede to the Rome Statute. In other words, the Prosecutor used her symbolic power to make clear where responsibility resided for ensuring the ICC’s intervention in Palestine: either on the Security Council to refer the situation or on Palestine to join the ICC.

Later that same year, Fatou Bensouda issued a biting statement to the Security Council reprimanding the Council’s members for failing to adequately assist with the arrest of suspects wanted in relation to the situation in Darfur. Bensouda’s message was unequivocal, noting how in almost a decade of reporting to the Council, “there has never been a strategic recommendation provided to my Office, neither have there been any discussions resulting in concrete solutions for the problems we face in the Darfur situation”. Until the Council demonstrated “a dramatic shift” in its attitude and approach to the situation, Bensouda confirmed that she would hibernate her investigative activities in Darfur. In this instance, therefore, the Prosecutor not only allocated responsibility, but also stigma to the Security Council for its paralysis with respect to the situation.

An Islamic State militant (Photo: Reuters)

An Islamic State militant (Photo: Reuters)

This brings us to the unprecedented clarification issued by the Prosecutor earlier this week concerning communications received by her office regarding ISIS. During media interviews, the Prosecutor had previously supported the idea for a special tribunal for Syria in light of the failure of Syria to join the Rome Statute or the Security Council to refer the situation to the Court, as well as making clear that the UK is responsible for prosecuting ISIS militant Jihadi John. However, this week’s statement was arguably more powerful as it marks the first time the Prosecutor has publicly declined opening a preliminary examination into a particular situation. In the statement, the Prosecutor made clear that although the ICC could exercise personal jurisdiction over some of the alleged perpetrators, the jurisdictional basis for opening a preliminary examination is “too narrow at this stage”. According to Bensouda, what is needed is “a renewed commitment and a sense of urgency on the part of the concerned states” to identify viable paths forward, specifically placing responsibility on Syria and Iraq as well as the Security Council to confer broader jurisdiction on the ICC. Continue reading →

Posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), ISIS, Palestine and the ICC, Syria, UN Security Council | Tagged | 11 Comments

What an Honest UN Security Council Referral of ISIS to the ICC Would Look Like

Posted on April 9, 2015 by Mark Kersten
An Islamic State militant (Photo: Reuters)

An Islamic State militant (Photo: Reuters)

There has been a lot of chatter on the internet about the need to refer the Islamic State or ISIS / IS / ISIL to the International Criminal Court (ICC). In fact, the subject has received so much attention that ICC Chief Prosecutor Fatou Bensouda felt compelled to issue a statement declaring that her office was unlikely to bring forward any prosecutions against ISIS militants unless Syria or Iraq were referred to the Court.

There is no doubt that accountability for atrocities committed by groups in Iraq and Syria would be a welcome development. The real question is how best to do so and, more specifically, whether referring a particular actor – rather than a state or a territorial situation – would help or hinder the pursuit of justice. In this context, even if there is a growing consensus that, one, ISIS atrocities should be prosecuted and, two, that the ICC is the best institution to achieve such an aim, there remain glaring problems with referring a group like ISIS to the Court. Many of these issues have already been raised elsewhere. In order to shake things up a bit, I thought it might be useful to draft what a truly honest UN Security Council referral of ISIS to the ICC would essentially have to look like once all of the political ingredients are factored in. So here we go:

The Security Council,

Expressing its outrage that a civil war in Syria has raged on for four years and has extinguished the lives of somewhere in the environs of 200,000 – 250,000 citizens, the vast majority of which are civilians,

Accepting that its permanent members have, collectively, done very little to stop the suffering – or even really accepted respectable numbers of refugees fleeing the carnage,

Mindful that at the same time, it is somewhat ironic that there’s a debate over whether our member-states should intervene in Syria given that all of us, especially the Permanent 5, have chosen sides and meddled in the conflict, pretty much since day one,

Acknowledging that, precisely because we’ve chosen opposing sides, we have previously failed to refer the situation in Syria to the International Criminal Court,

Stressing that some of us (really, all of us except the United Kingdom and France, most of the time at least) suffer from bouts of ambivalence towards the ICC,

Understanding that international criminal justice isn’t a silver bullet and, while it should probably be part of the equation in achieving peace, not everyone agrees that it should be mixed up with Security Council power politics,

Recalling that Article 16 of the Rome Statute allows us to (at least temporarily) pull the plug on any work we make the ICC do, Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), Iraq, ISIS, Syria, UN Security Council | Tagged | 3 Comments

The ICC in Palestine: Changing the Narrative, Rattling the Status Quo

Posted on April 7, 2015 by Mark Kersten

This is the third piece in our ongoing symposium on Palestine and the International Criminal Court. For all of the contributions, see our list here.

An Israeli security officer peers through a damaged part of the separation wall between Israel and Palestine (Photo: Abbas Momani / AF)

An Israeli security officer peers through a damaged part of the separation wall between Israel and Palestine (Photo: Abbas Momani / AF)

Before delving into how a potential intervention by the International Criminal Court (ICC) could affect the prospects for a sustainable peace between Israel and Palestine, it is important to warn against subscribing to either overly catastrophic or overly optimistic hypotheses that suggest that the ICC will either save or destroy the Middle East peace process. First, both hypothesis give the ICC a potency it simply does not have. The Court cannot – and never will be able to – single-handedly make or break peace. Second, while claims within the so-called “peace versus justice” debate may be intuitive, hard evidence of exactly how the ICC impacts peace processes across different contexts and types of conflicts remains thin. And third, Israel and Palestine are in what might be called a protracted negotiated state. ICC or no ICC, neither party has been able to achieve a solution to the conflict. But neither can they fully leave the negotiation table.

The question is thus not whether either side will all of a sudden leave or agree to everything because of an ICC intervention. Rather, the question should be: how can the Court shape the context in which the peace process is taking place?

My argument is simple. The primary effect of the ICC on conflicts is on the conflict narrative – the dominant understanding of the causes and dynamics of political violence. Any potential intervention by the Court should be seen as a means of changing or challenging the story of one of the most stubborn conflicts in the world. This story is what Noah Feldman has aptly called “the framing” through which we understand the peace process as well as Israel and Palestine’s role in the conflict.

Every conflict has a dominant narrative. It is what informs us of who is right and wrong; of who is responsible and who is a victim; of who needs to be held to account and for whom. Usually these narratives come in the form of a binary: one side is good, the other evil. To date, the conflicts in which the ICC has intervened have tended to have dominant conflict narratives. In northern Uganda, there is a broad consensus that the conflict is between an ‘evil’ LRA and a ‘good’ Government of Uganda. In Libya, there was a clear sense that the Court intervened in support of ‘good’ opposition forces against the ‘evil’ regime of Muammar Gaddafi .

Historically, the Israel-Palestine conflict has been presented with a severely asymmetrical narrative. In recent years, this has been challenged by the work of groups such as the UN Fact-Finding Mission which led to the 2009 Goldstone Report as well as the critical coverage of last year’s military operations in Gaza. But generally speaking and certainly in the West, Israel has been seen as the legitimate democratic ‘good’ side fighting against Palestine, often viewed as “Arab”, terrorist, and ‘bad’.

For Israel, as it is with all ‘good’ sides in conflicts, this perception is invaluable. It thus needs to be continuously cultivated and protected. It should thus come as no surprise that successive Israeli governments have invested heavily in, and have been remarkably good at, ensuring that this is the primary narrative of its conflict with Palestine. Internationally, this narrative is bolstered by the proscription of groups like Hamas and (previously) Fatah as terrorist groups. As a result, Israeli governments can portray Israel as a liberal democratic bastion against Palestinian aggression, justify continued occupation of Gaza, legitimize control of Palestine generally, and insist that periodic demonstrations of force in the occupied territories are necessary and legally permissible.

This vastly asymmetrical conflict narrative constitutes the very backdrop of the peace process. And this narrative can be seen in the official campaign against the ICC. According to Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman, by allowing Palestine to accede to the Rome Statute, the ICC is a sponsor of terror and doing work on behalf of terrorists. Moreover, if we’re to believe Netanyahu and Lieberman, the Court will unfairly target law-abiding Israeli officials and drag them to The Hague at the behest of terrorist groups. What officials won’t say is what everyone else has long known – that if the ICC did intervene it would almost certainly go after alleged crimes committed by Palestinian factions first.

But Netanyahu and other senior Israeli political figures cannot admit that the ICC would investigate Palestinian groups because that would, in a sense, put both Israel and Palestine on equal footing before the Court. In other words, to admit that both will be investigated risks suggesting that both have done something wrong, thus bringing a semblance of balance to a highly guarded asymmetrical narrative.

It is in this context, I believe, that Palestine’s decision to cede jurisdiction over its territory and its citizens to the ICC must be understood – as a means to level the conflict narrative. Here, it is important to note that, if Palestine does decide to refer itself to the ICC, it will mark the first ever referral and first potential ICC intervention prompted by the widely recognized ‘bad’ side of a conflict.

So, by shaping the dominant conflict narrative, can an ICC intervention positively affect the peace process? I think it can in at least three possible ways: Continue reading →

Posted in Gaza, Human Rights, International Criminal Court (ICC), International Criminal Justice, International Law, Israel, Justice, Palestine, Palestine and ICC Symposium, Peace Negotiations, Peace Processes | 7 Comments

The ICC in Palestine: Be Careful What You Wish For

Posted on April 2, 2015 by Mark Kersten

Kevin Jon Heller joins JiC for this second post in our symposium on Palestine and the International Criminal Court (ICC). Kevin surely needs no introduction to readers of JiC, but, just in case, he is a Professor of Criminal Law at SOAS, University of London and a contributor to Opinio Juris.

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

Why It Won’t…

My first concern is that the Office of the Prosecutor (OTP) simply does not have the resources necessary to investigate additional situations – particularly one as complex as Palestine. To say that the OTP is overstretched is a considerable understatement. So you have to ask: why would it spend its limited resources on the Palestine situation, as opposed to all the other non-African situations it has been monitoring for years? Public pronouncements notwithstanding, the OTP has shown very little desire to wade into situations where major superpowers are watching their behaviour. In Afghanistan, where the US is potentially subject to the Court’s jurisdiction, the preliminary examination is now in its 8th year. In Georgia, where Russia is obviously sitting on the sidelines, the preliminary examination is now in its 6th year. So the OTP knows full well how to slow-walk a preliminary examination into oblivion, and that seems to be precisely want it wants to do when superpowers are involved. And very few superpowers are neutral with regard to the situation in Palestine.

Then there is the cooperation issue. I think this is a very serious problem because Israel could easily prevent the OTP from effectively investigating Israeli crimes in Palestine, especially with regards to crimes in Gaza. Yet Israel would be more than happy to help the OTP investigate Hamas’s crimes. We have seen such asymmetrical cooperation from a variety of states – Exhibit A being Al Bashir, who has stonewalled the Court at every turn concerning members of his government (including him) but was more than happy to cooperate when the OTP decided to prosecute Abu Garda, the rebel leader, for masterminding the 2007 attack that killed 12 UN peacekeepers. “You want some tanks? You want some soldiers? We will happily escort you into Darfur…” There is thus a real danger of a formal investigation in Palestine becoming, de facto if not de jure, a one-sided investigation into Hamas. I think that would be very problematic for the ICC’s legitimacy – and represents yet another reason for the OTP to simply stay out of the conflict.

But If It Did…

To be sure, my predictions are not always right. So it is worth thinking about what would happen if the OTP did open a formal investigation. My political sympathies are very much with Palestine, but there are a number of reasons to suspect that a formal investigation would not turn out as well for the Palestinians as many people think. Most obviously, Hamas’s deliberate rocket attacks on civilians would be by far the easiest of all the crimes to prosecute in either Gaza or the West Bank. Not the gravest crime – but absolutely the easiest to prove in terms of its legal elements and evidentiary considerations. So I would be very surprised if the OTP’s initial charges were not against Hamas.

That said, there are clearly some Israeli crimes that would likely attract the Court’s attention. Operation Protective Edge involved deliberate attacks on Palestinian civilians and indiscriminate bombings of entire neighborhoods, such as Sujaiya. But most people seem to think that Israel is particularly vulnerable concerning disproportionate attacks. I don’t doubt that Israel launched many such attacks, but international criminal law (ICL) is not international humanitarian law (IHL). The war crime of launching an attack that causes excessive civilian damage requires a very specific mens rea (mental state); indeed, a violation of Art. 8(2)(b)(iv) – and I’ve written quite a bit about this – is one of the most difficult war crimes in the Rome Statute to prove. Under IHL, all you have to show is that a reasonable military commander would have recognized that the attack would be disproportionate. But if you are going to charge a commander with a war crime, you have to prove that the commander subjectively concluded that it would be disproportionate prior to launching the attack. So unless the IDF commander said to himself “there is absolutely no point to this attack, it’s going to kill dozens of civilians, but I’m going to do it anyway,” he would be entitled to an acquittal. So we cannot forget – particularly with regards to disproportionate attacks, but also with regards to other violations of the Rome Statute – that there is a difference between claiming that Israel committed crimes and proving them in court beyond a reasonable doubt.

Let me be clear: I am not saying that Hamas would be the only side prosecuted during a formal investigation into the situation in Palestine. I am simply pointing out that a rational prosecutor – and ICC Prosecutor Fatou Bensouda is very rational – would be very likely to go after Hamas first. Continue reading →

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), International Law, Israel, Justice, Palestine, Palestine and ICC Symposium | Tagged | 21 Comments