The Lesson the ICC Shouldn’t Learn in the Wake of Kenyatta

Posted on December 7, 2014 by Mark Kersten
An IDP camp in Kenya (Photo: AP)

An IDP camp in Kenya (Photo: AP)

This article was originally posted at Justice Hub.

The long-dithering case against Uhuru Kenyatta at the International Criminal Court (ICC) finally came to an unceremonious conclusion this past week. In a long anticipated move, the Prosecution announced its case against the Kenyan President was too weak to proceed.

Over the next few days and weeks, two broad story-lines will emerge in wake of the Kenyatta case collapse: one, that prosecutors at the ICC really messed up their investigations in Kenya and need to learn from their mistakes; and two, that Kenyatta has written the political manual on how to win an election, stay in power and simultaneously quash an ICC case against a sitting head of state. But there is also a lesson that the ICC shouldn’t learn, a lesson that poses a far greater risk to the project of international justice than the Court’s investigation techniques or prosecutorial strategies: that the ICC should stop targeting both sides of a conflict.

There is little point in denying that ICC justice is highly selective. Most critics focus on situation selectivity – i.e which states are chosen for investigations and which aren’t (hence the debate on the Court’s focus on Africa and not the rest of the world). But a more nuanced pattern of selectivity appears when examining the selection of cases within situations under investigation by the ICC.

To date, the Office of the Prosecutor (OTP) has opened investigations into five situations after being invited to do so by the state in question – Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali. In each instance, the Prosecution has focused exclusively on non-state actors (i.e. rebels) and the referring government’s adversaries. Not once has the OTP targeted a leader or government official from any of these states.

The opposite story can be seen in the context of referrals of situations from the United Nations Security Council. The Council has exercised its power to refer situations to the ICC on two occasions: Darfur in 2005 and Libya in 2011. In the wake of such referrals, the OTP has focused almost exclusively on government actors and the Security Council’s enemies.

This brings us to the curious case of Kenya. When the OTP opened an investigation into the 2007/08 post-election violence, it had been neither invited by Nairobi nor requested to do so by the Security Council. Instead, the Prosecutor exercised his ‘proprio motu’ powers, opening a case into a member-state of the ICC ‘upon his own volition’. It was a bold move and not everyone believed the Court was mature – or secure – enough to ‘do things on its own’.

But the ICC had been under pressure to tackle the perception that it was an institution that would only ever mete out selective justice and would always side with governments and the Security Council in their political missions to discredit, delegitimize and dismiss their opponents. As a result, the OTP targeted not one side of the political conflict in Kenya, but both.

(Photo: AP)

(Photo: AP)

Scholars and observers are still trying to sort through the whirlwind of political developments and manoeuvres that came next. Crucially, the two opposing sides joined forces and vowed to run the country together. The resulting Jubilee Alliance won the 2013 elections. In a remarkable twist of fate, Kenya now had a President and Vice President charged by the ICC for crimes against humanity.

Kenyatta and his Vice President, William Ruto, successfully crafted a narrative that pitted the ICC and its supporters as neocolonial tools being wielding by the powerful West against a vulnerable African continent. Leaders across the region – including those that had benefitted from the ICC’s interventions in their own states – raced to the proverbial political microphone, eager to demonstrate to Kenyatta and Ruto that they were their strongest allies against the unholy and unwanted ICC.

In the meantime, justice became essentially obsolete. The storylines were about Kenya (and ‘Africa’) versus the ICC. Very few asked the very simple but crucial question: how will justice be served for the dead and displaced in the wake of the post-election violence? The question had already been answered: it wouldn’t. Six years after violence erupted and left 1,200 dead and 200,000 displaced, one case of murder has been investigated. There is no indication that any other crime, of the thousands that were committed, will ever be investigated or that the perpetrators will be brought to justice. But in the dominant narrative, justice was not a goal for those who perished or survived the post-election violence. Rather, justice could only be served if the unfairly targeted victims of the ICC’s grandeur – Kenyatta and Ruto – were left alone. If we are to believe the hype, the collapse of Kenyatta’s case is the justice that has been delivered to Kenya. Continue reading →

Posted in International Criminal Court (ICC), Kenya, Kenya and the ICC | Tagged , | 3 Comments

(Un)Reasonable Dissent? The Lubanga Trial Comes to Close

Posted on December 4, 2014 by Mark Kersten

Thijs B. Bouwknegt joins JiC for this first-hand account and analysis of the decision by Judges at the International Criminal Court (ICC) to uphold the verdict against Thomas Lubanga Dyilo. Thijs is a legal historian and researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam.

Lubanga attending his Appeal Chamber ruling (Photo: ICC)

Lubanga attending his Appeal Chamber ruling (Photo: ICC)

“All rise, the International Criminal Court is now in session. Please be seated.” Thomas Lubanga Dyilo, dressed in a light blue dashiki, put on his headphones, wringed his hands, blinked his eyes, kicked back, sat up again and then rested his head into his hands. He was nervous. Final judgement day had arrived. Finally. Over two and a half years after he was convicted for three war crimes, the International Criminal Court’s Appeals Chamber convened on a cold Monday afternoon to rule on the appeals of the former Congolese politician-styled warlord. His trial was flawed and unfair, he argues. It runs contrary to the Prosecution’s appeal. They wanted his “manifestly disproportionate” 14-year sentence raised, without explicating with how much.

It was an historic day for international justice. This was the first time the ICC signed off an appeals judgement. But interest has waned, as if the world has forgotten about Lubanga and the endemic conflicts in the east of the Democratic Republic of the Congo (DRC). Empty seats remained in the public gallery, not even half of it to be filled with court staff, a handful of devoted journalists and a single NGO observer. Lubanga himself did not invite his family for the occasion, like most other defendants would do on this type of day. Also shining in absence were his victims. The only Congolese present represent the diplomatic corps. “Is this justice seen to be done?” asked a journalist. “Come on, it is appeals,” replies another. On Twitter, trial observer Iva Vukusic, was “wondering what victims get from listening to judgements. Unless you follow the trials regularly, this stuff is incomprehensible.”

And indeed, 3179 days after Lubanga was brought to The Hague, the trial that dealt with child soldiers in the mass violence that plagued the Congolese Ituri region in the early 2000s, ends with an anti-climax: a sober, legalistic and collegial review of the trial chamber’s first ever verdict and sentence. Flanked by four colleagues, Judge Erkki Kourala monotonously read out a summary of the 193-paged appeals judgement and 50-paged sentencing judgement. They took a distanced view; they would not assess the evidence again, but would “only intervene if the Trial Chamber’s findings were unreasonable.” Then, after the chamber dismissed Lubanga’s request to consider three new pieces of evidence, the former UPC leader overheard the rulings on his seven grounds of appeal, alleging abuse of his fair trial rights, a prejudiced Prosecutor and the lack of clear facts underlying his prosecution.

Point-by-point, Kourala listed how Lubanga had not substantiated or sufficiently argued his complaints, only to rule that the trial chamber had not acted beyond the limits of its discretion and that its findings were “not unreasonable.” All grounds of appeals were rejected, including those of the Prosecution, and the verdict and sentence rubber-stamped. But only by majority. Judge Sang-Hyun Song, only disagreed “partly” with his colleagues, on a legal note. According to the ICC’s President, Lubanga should have been convicted and sentenced for one crime of child soldiering and not separately for three ways of committing it [conscripting, enlisting and using children]. Only the Latvian judge dissented from the majority on fundamental grounds.

If it was up to Judge Anita Ušacka, Lubanga should not have been convicted at all. “In my view, the evidence relied upon by the trial chamber to convict Lubanga was not sufficient to reach the threshold of beyond any reasonable doubt,” she explained. “In practice they have applied a lower standard,” because, according to Ušacka, “the trial chamber was motivated more by the desire to create a record of events, rather than to determine the guilt of [the] individual to the standard applicable in criminal proceedings.” On that note, she expressed her hope “that future prosecutions of these crimes at the Court will adduce direct and more convincing evidence and preserve the fairness of proceedings, which lies at the heart of criminal prosecutions and should not be sacrificed in favour of putting historical events on the record.”

Judge Anita Ušacka enters the Appeal's Chamber at the ICC (Photo: ICC)

Judge Anita Ušacka enters the Appeal’s Chamber at the ICC (Photo: ICC)

Ušacka’s dissent was a sharp indictment against the court’s fact-ascertainment dilemmas. She highlighted two well-known deficiencies in this case: insufficiently detailed charges and the absence of the requisite element of crimes. Regarding the indictment, she said it was mainly based on testimony of nine alleged child soldiers – whose testimony was found to be erratic – but that the “remainder of the allegations regarding a pattern of crime did not contain reference to a single identified victim, while the dates and locations were framed in unacceptably broad terms.” For five years, Lubanga had “no meaningful opportunity to challenge the evidence at trial” which was based on these nine individual cases, “yet he was ultimately convinced of the unspecific charges of a pattern of crime.” This approach has broader implications warned Ušacka, as “ultimately, even the factual conclusions of the Trial Chamber suffered from the same level of imprecision.” Continue reading →

Posted in Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice | Tagged , , , , | 3 Comments

Canada vs ISIS: An Inscrutable Justice

Posted on November 28, 2014 by Mark Kersten

Asad Kiyani joins JiC for this post on Canada engagement against ISIS – and what it means for Canada’s role in the Middle East and the pursuit of international justice. Asad is a Doctoral Candidate at the UBC Faculty of Law and a Visiting Researcher at the Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

Canadian foreign policy in Iraq (Photo: CP / Ryan Remiorz)

Canadian foreign policy in Iraq (Photo: CP / Ryan Remiorz)

Earlier this month, Canadian military forces began their first combat missions in the fight against ISIS. While ISIS is certainly abominable, and the Canadian government defends its choice as acting in a just cause, the present Canadian policy seems a poor vehicle for seeking justice. It prioritizes a contentious and unconvincing military role for Canada over greater humanitarian involvement, a credible position as a broker of peace, and supporting international criminal justice measures.

The Canadian government has yet to explain why Canadians should be fighting ISIS, instead of directly assisting victims and displaced persons. There are many plausible reasons for military confrontation with ISIS, including the demonstrably brutal threat they pose to anyone, Muslim or otherwise, who does not agree with their particular perversion of Islam. Yet this does not explain why Canada should be fighting instead of the regional states directly affected by ISIS, or those foreign powers – the United States and United Kingdom chief among them – responsible for the decade-long meltdown of Iraq. Canada’s connection to this conflict is remote, and its small contribution to the aerial war risks being ineffective – because of a lack of ground troops, faulty or missing intelligence, and the scale of the problem – as well as counterproductive (drawing new recruits to ISIS and reconciling ISIS with al-Qaida).

This is not to advocate for Canadian isolationism; rather, it is to suggest that Canada is looking past pressing humanitarian needs where it could offer more assistance. Whereas European countries have taken in tens of thousands of refugees from the Syrian crisis, Canada has only taken in a few hundred. Meanwhile, the World Food Programme (WFP) has been warning for months that it struggles to feed the millions of refugees displaced by fighting in the region. It recently slashed aid provisions, and has no money for programs starting in December. In terms of direct, uncontroversial, and clear humanitarian assistance, nothing could be more straightforward than boosting support to the WFP and refugees – steps that Canada (and other states) should have taken long ago.

Military involvement demonstrates just how incoherent the Canadian vision of justice is for the region, given the set of foreign policy contradictions it poses. Mission creep and unholy alliances are a serious possibility. A 30-day advisory mission has now become a six-month combat commitment. Given Canada’s 12-year military involvement in Afghanistan, and the near-certainty that the ISIS war will continue beyond next April, a longer Canadian mission seems likely. There is also increasing pressure for Canadian involvement beyond “useless” aerial bombardment, and British, American, and Iraqi commanders are also calling for ground troops. In addition, while the United States and other allies have been attacking targets in Syria for weeks, Canadian Prime Minister Stephen Harper insists that Canada will only do so with the Syrian government’s permission. While this is a pleasant affirmation of international sovereignty, it means the government is willing to deploying Canada’s armed forces in aid of a “despotic dictator” against whom Canada has previously called for military action on account of his government’s atrocities. Even if Canada limits its direct actions to Iraq, this demands alignment with the Kurdistan Workers Party (PKK), listed since 2002 as a terrorist organization in Canada but strongly defending against ISIS in northern Iraq and northwest Syria. Operations in Iraq also require coordination with Iran, whose troops and proxy militias – accused of ISIS-style atrocities and killing large numbers of US soldiers – are defending key sites in southern Iraq (including Baghdad). Canada, of course, closed its embassy in Iran in 2012, expelled Iranian diplomats from Canada, and maintains a special sanctions regime against Iran, over and above that mandated by the UN. And, of course, Iran is a major weapons supplier for the Assad regime in Syria. Every military step here is fraught with contradictions, and erodes Canada’s credibility as an arbiter of justice and partner for peace in the region.

(Photo:Cpl Pierre Habib/Canadian Armed Forces/Reuters)

(Photo:Cpl Pierre Habib/Canadian Armed Forces/Reuters)

Finally, the ISIS war refocuses attention on Canada’s contradictory relationship with the ICC and international accountability mechanisms. Unlike the United States, Turkey, the Gulf states, or even Syria and Iraq themselves, Canada is a State Party to the Rome Statute and risks its troops being summoned to the ICC for acts committed in either Iraq or Syria. Yet the Canadian government seems to have little time for the ICC these days, having threatened Palestine with serious consequences for reaching out to the ICC and refused to support a referral of Syria. While an investigation of Canada would be unlikely given the ICC’s unwillingness to investigate Canadian or any Western crimes in Afghanistan, it raises the question of what Canada’s response would be if the ICC were to prosecute some of the many thousands of ISIS “foreign fighters” from ICC States Parties such as Canada. For it’s part, Canada has responded by invalidating the passports of these fighters, suggesting that it prefers to let them fight or die in the Middle East – possibly via Canadian bombs – rather than have them (or Bashar Al-Assad for that matter) answer for their crimes at The Hague. Surely the ICC has enough problems without being undermined by a State Party that played such a key role in designing the Rome Statute. Continue reading →

Posted in Canada, International Criminal Court (ICC), International Law, Iran, Iraq, ISIS, Syria | Tagged | Leave a comment

Dr Mark Kersten, At Your Service

Posted on November 19, 2014 by Mark Kersten

Screen Shot 2014-11-19 at 9.20.30 AMDear readers,

This past Monday, I was awarded a PhD in International Relations at the London School of Economics. My examiners were Chris Brown, Professor in International Relations at the LSE and William Schabas, Professor of international criminal law at the University of Middlesex. The thesis was entitled: ‘Justice in Conflict: The ICC in Libya and Northern Uganda’. Despite starting an inordinate number of sentences with the words ‘And’ or ‘Because’, the thesis was passed without revisions. I am thrilled beyond words and can’t wait to be able to regularly select ‘Dr’ from various online drop-down menus and applications. Monday was, without a doubt, one of the happiest and fulfilling days of my life.

For anyone interested, this is the abstract of the thesis:

The thesis examines the effects of interventions by the International Criminal Court (ICC) on peace, justice and conflict processes in northern Uganda and Libya. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s interventions into active and ongoing conflicts. The thesis is a response to and engagement with this debate. Despite often seeming persuasive, claims within the ‘peace versus justice’ debate have failed to set out a coherent research agenda on how to study the effects of the ICC’s interventions on ‘peace’. Drawing on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution and negotiation theory, the thesis develops a novel and nuanced analytical framework to study the Court’s effects on peace, justice and conflict processes. This framework is applied to two specific cases: the ICC’s interventions in Libya and in northern Uganda. The core of the thesis examines the empirical effects of the ICC on each case. Approximately 80 interviews were conducted with key figures in Libya, Uganda and at the ICC. In its comparative analysis, the thesis examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the ICC and the ICC’s self-interests and arguing that the negotiation of these interests determines who / which side of a conflict the ICC targets and thus its effects on peace, justice and conflict processes. While the effects of the ICC’s interventions are ultimately mixed, the thesis aims to contribute to a more refined way to study the effects of the ICC and to further our understanding of why the ICC has the effects that it does.

When I first started this blog back in late February of 2011, it was intended to be a place for me to vent excess thoughts and satisfy my itch to write. I simply could not have imagined how much I would learn and gain – personally and professionally – by running JiC. I have said it before, I wrote it in the thesis’ acknowledgements, and I am certain I will say it many times again: thank you!

– Dr Mark Kersten

Posted in JiC News | 5 Comments

Swiss Cheese and Justice: Why North Korea Cares A Lot About the ICC

Posted on November 11, 2014 by Mark Kersten
(Photo: David Guttenfelder / AP)

(Photo: David Guttenfelder / AP)

North Korea is losing sleep. The source of distress for the reclusive last vestige of Stalin-style communism might be surprising: the International Criminal Court (ICC).

It was not that long ago that the government in Pyongyang enjoyed what amounted to a deafening silence regarding accountability for the wanton rights abuses it committed against its own people. That changed, in dramatic fashion, when a report by the United Nations Commission of Inquiry on North Korea led by Michael Kirby compared atrocities in North Korea to the horrors of the Holocaust and recommended that the UN Security Council refer North Korea to the ICC. The debate about justice in North Korea has since seen a quiet but likely irreversible shift. The authoritarian enclave is now firmly on the map of those interested in international justice. Today, the debate is more about how to achieve accountability rather than whether to do so.

This throws up some interesting questions for the world of international criminal justice. Likely the most dominant and permanent debate amongst scholars and observers of the ICC is about the Court’s impact. As I have previously argued, however, we still don’t know much about what the Court’s effects are. One key problem is that, as scholars and observers, we’re often too close to forrest to see the trees: We identify ICC impacts not always because they’re there but because it’s what we’re looking for. We see impacts which either don’t actually exist or are more likely the result of a complex combination – or altogether different set – of political dynamics. Or we see no impact because we’re looking for something too tangible, too obvious and too soon. As a result, some unexpected but remarkable and important trends are lost or neglected.

One of those trends, and one which may seem obvious but isn’t generally analyzed, is that, with some exceptions, governments of non-ICC member states tend to be more concerned about potential interventions by the Court than member-states. The ICC has opened investigations and has issued arrest warrants in the Democratic Republic of Congo, the Central African Republic, the Ivory Coast and Uganda – and there is a long list of state-perpetrated crimes in each. But do the political establishment and leaders of those states have any fear that they’ll be targeted for prosecution by the Court? It is highly doubtful.

Somewhat paradoxically if we expect the ICC to primarily affect member states, the governments that have used the most resources in propagating their position towards the ICC are non-member states. In some cases, this is obvious. Sudan, for example, has exhausted itself in an attempt to undermine the ICC ever since its President, Omar al-Bashir was indicted for war crimes, crimes against humanity and genocide in Darfur. Under US President George W. Bush, spending immense time and energy on undermining the ICC was a cornerstone of foreign policy. But even with the positive turn in ICC-US relations, Washington has invested significant political resources into preventing Palestine from joining the Court and thus exposing alleged Israeli war crimes and crimes against humanity to criminal investigation. Israel, itself a non-member state and one of the select group of seven states to vote against the Rome Statute of the ICC in 1998, has also invested heavily in ensuring that its record stays out of the ICC’s purview.

Denis Rodman with North Korean leader, Kim Jong-un. Could Pyongyang use Rodman for a full-court press and a diplomatic rebound? (Photo: Jason Mojica / VICE Media)

Denis Rodman with North Korean leader, Kim Jong-un. Could Pyongyang use Rodman for a full-court press and a diplomatic rebound? (Photo: Jason Mojica / VICE Media)

But what is just remarkable about non-member states caring this much about the ICC is that their opposition to the Court isn’t quiet. It’s loud, overt and even petulant at times.

Pyongyang has now gone on a “charm offensive” (though it is hard to see what is ‘charming’ about it) to dissuade European states and Japan from pushing forward a UN General Assembly resolution endorsing a referral of North Korea to the ICC. In its efforts to have any ICC language stricken from the resolution, North Korea has offered a number of unprecedented concessions, including allowing human rights inspectors to visit the country. With limited diplomatic resources, the regime has even enlisted the help of two allies – Cuba and China – to do its diplomatic bidding. And, according to some reports, success or failure on the ICC issue may seal the fate of some of Pyongyang’s senior diplomatic core. Continue reading →

Posted in International Criminal Court (ICC), North Korea | 2 Comments

Justice in Syria: If not the ICC, then What?  

Posted on November 10, 2014 by Mark Kersten

Proponents of international criminal justice seem to be searching in vain for perfect justice in Syria. Iva Vukusic joins JiC for this timely post exploring the options for justice in Syria. Iva is an analyst and researcher based in The Hague. She previously worked for the Research and Documentation Centre and Special War Crimes Department of the Prosecutor’s office in Sarajevo.

Fruit vendors in Aleppo, Syria, in July 2014 (Photo: Jalal Al-Mamo / Reuters)

Fruit vendors in Aleppo, Syria, in February 2014 (Photo: Jalal Al-Mamo / Reuters)

Since March 2011, estimates suggest that 200,000 people have died in Syria but the crisis shows no signs of winding down and the future is uncertain. In these circumstances, planning a response to mass human rights violations and war crimes is difficult. But many believe Syria will need justice in order to move towards some sort of recovery. A referral of Syria to the International Criminal Court (ICC) is off the table for the time being so other options are being explored: an ad hoc tribunal or a hybrid institution being those most widely debated. Domestic prosecutions will potentially be possible in a more distant future and universal jurisdiction may provide justice in isolated cases.

So far, debates about justice have largely focused on the ICC. In 2013, the UN Commission of Inquiry concluded it is the appropriate venue to pursue the fight against impunity. Government forces, non-state armed groups and trans-border networks like ISIS all stand accused of crimes against humanity and war crimes but given the Security Council deadlock, other options are increasingly the subject of conversation between states, policy makers, NGOs, activists and the academic community. Even if the ICC got involved, it would not be able to address the immense number of violations as it would likely focus on a handful of perpetrators. Even those, it would probably have difficulty arresting. Other mechanisms, judicial and other, thus have to be discussed and the Syrians need to be included.

Advocates of an ad hoc or hybrid tribunal stress benefits like the capacity to work through a more substantial caseload and the ability to focus all institutional attention on one conflict. Some concrete suggestions have already been made with draft statutes. The ICTY has, for example, been rather successful but it had support from the EU through pressure exerted on states that wanted to join the Union. Critics, on the other hand, ask why establish a separate institution when a functioning ICC exists and if another institution would undermine the Court. In response, it can be said that the ICC may be functioning but it does not have jurisdiction, so in order to respond to the need for justice, exploring other options is legitimate. However, the issue should not be framed as a competition in which the ICC is being somehow ‘protected’ by sacrificing justice or a situation in which another institution somehow ‘threatens’ the Court. The need for justice is vast and there is plenty to do for a variety of institutions if they work in concert. Practical questions of jurisdiction would arise if the ICC worked alongside another court, so there is a need to anticipate potential problems that could arise with these scenarios.

Another issue with regards to the hybrid tribunal option is that such institutions require close collaboration with the state in question. What would that mean for Syria? This issue highlights the fact that all options now seem to center on the assumption of Assad’s regime falling. Much of the efforts go into documenting crimes by the regime (and much less on opposition groups where the hierarchy and command structures appear to be less clear and in flux). What if the regime doesn’t fall? What justice, if any, can we envisage in that scenario? With the recent gains of ISIS and the developments in Iraq, a regional dimension to the conflict is emerging. The longer the conflict goes on, the more complicated it becomes and whatever option will be implemented, prosecutors will have an incredibly difficult task in deciding on strategy and case selection. The work load is immense and the resources will be scarce. Outreach will be important in explaining to victims why some cases have been taken up while others remain unaddressed.

A woman carrying her belongings returns to her home in central Homs (Photo: European Pressphoto Agency)

A woman carrying her belongings returns to her home in central Homs (Photo: European Pressphoto Agency)

Many will ask the question of cost and if it makes sense to pour so much money into justice (and we know from previous experiences that justice cannot be done on the cheap) when so many other needs exist: rebuilding infrastructure, schools, hospitals and roads. Surely, there will be limitations for funds. But it should not be framed as a choice between justice and reconstruction. All of these investments need to be made if Syria is to be turned into a functioning, stable state. Choices such as these are always hard in situations of competing priorities. But that does not mean compromises cannot be sought.

If a new court is established, institutional design and procedures will be discussed: are self-representation or in absentia trials possible? What about victim participation? To what extent would Syrian law be taken into account? How can the court be brought closer to the public and their ownership of the process ensured? Experiences with other courts will be crucial in this regard.  Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), Justice, Syria | Tagged | 2 Comments

When the Ends Don’t Justify the Means: The ‘Morality of Justice’ in Bangladesh

Posted on November 5, 2014 by Mark Kersten

Toby Cadman joins JiC once again for this critical take on the trials and tribunals of the International Criminal Tribunal of Bangladesh. Toby is a barrister from 9 Bedford Row. He is defence counsel at the Bangladesh Tribunal and has been counsel in the Uhuru Kenyatta case at the ICC.

ICT-thumbnailThe 1971 War of Liberation in what is now Bangladesh must be remembered as one of the worst conflicts in modern history. But that there has been no effective accountability mechanism on the international level will forever be a stain on the reputation of the international community.

In 2008, the Awami League Party under the leadership of Sheikh Hasina Wajed, sought to change all that by establishing a national war crimes tribunal with a mandate to end 40 years of impunity.  The United Nations sought to assist the national efforts with offers of international experts.  Regrettably, all efforts to assist were thwarted.  Allegations emerged that Pakistan campaigned against international involvement. Considering that Pakistan has the most to lose from a credible judicial process, the allegation would appear to have some credibility.  The Government of Bangladesh has also been blamed for the lack of international engagement, preferring for a national institution that it can control rather than ceding to a process under international supervision.

The Bangladesh International Crimes Tribunal was established in 2010 and whilst it was lauded by the international community as a valiant effort at accountability, it has been widely criticized since then for failing to adhere to any real standards of due process.  It is important to note that the criticisms, of which there are many, are not merely procedural irregularities; there are serious allegations of failing to meet even basic human rights standards.  There are credible allegations of prosecutorial and judicial misconduct, political interference, subordinating perjury and witness abduction.  These are not insignificant concerns.

Some commentators have taken the point that due to the scale of atrocities committed during 1971, of which there cannot be any real dispute, any concerns as to the procedural fairness of the proceedings does not impact upon the notion of establishing “moral justice”.  What this effectively means is that if we believe a person to be guilty and that is only by virtue of their position in society and the weakness of forty-year-old evidence, then they cannot be acquitted and there is no requirement to guarantee a trial according to the highest international standards.  This is, of course, a fallacy.  It was the Nuremberg Chief Prosecutor, Justice Robert Jackson, who stated that “if you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.”

The last two weeks have seen the Bangladesh Courts issue three verdicts and three death sentences, one final sentence on appeal for which there is no further remedy and two sentences of death for which there is a right of appeal.

As noted earlier, it is beyond doubt that atrocities were committed on a staggering scale and it is right that steps have been taken to address these crimes so as to enable the victims and the country more widely to seek justice and to move forward towards peace, stability and lasting reconciliation. But whilst the maxim states that justice delayed is justice denied, justice removed is absolute.  The passage of time is no barrier to justice and accountability as long as it is done with justice in mind and not merely the settling of ancient political scores.

Any process should not be taken at the cost of an accused’s fundamental rights, or at the cost of present day social cohesion.  Regrettably, this is precisely what is happening. The very rights and obligations that underpin any democracy and in particular, a democracy that Bangladesh fought so hard for, have effectively been ignored and dispensed with.  It is also deeply regrettable that any challenge to the current ‘judicial’ process, if it may be termed as such, is construed as going against the very ideals upon which Bangladesh independence was founded.

I have served as a member of the defence team since early 2011. I travelled to Bangladesh on a number of occasions during 2010-2011 and have spoken to many of those involved in this process of accountability. I have observed the very difficult conditions under which its various actors are forced to operate and the very unrealistic expectations placed on the judges, prosecutors and defence counsel to deliver a pre-determined conclusion to these proceedings.

I am no longer permitted to enter Bangladesh because I have actively campaigned for international intervention. I have strived, in my own words, for my clients to receive a fair trial.  I believe that this is only possible under international supervision. I recognise that I only speak for one side – the defence.  However, I am most certainly not alone in voicing this opinion. Independent commentators such as Human Rights Watch, Amnesty International, International Center for Transitional Justice, Center for Justice and Accountability, International Commission of Jurists, to name just a few, have openly criticised the process.

Delwar Hossain Sayeedi is escorted into the Bangladesh tribunal (Photo: AP)

Delwar Hossain Sayeedi is escorted into the Bangladesh tribunal (Photo: AP)

Following the events of the last few days, a number of commentators in Bangladesh have put forward what is suggested to be reasoned arguments as to why the recent verdicts, and presumably the rest of the trials, are not revenge or retribution, nor are they about politics.. They are, these commentators argue, about holding political leaders accountable for serious allegations of war crimes, crimes against humanity and genocide.

It is clear that war crimes, in the generic sense, are political in nature.  It is also clear that not a single international judicial mechanism over the few decades is without criticism.  and that justice on the international level is not a replacement but a complement to the national level.  However, we must consider whether the national authority is willing and able to deliver impartial and independent justice at the national level. In the case of Bangladesh it is painfully obvious that it is neither prepared nor able to deliver justice impartially and independently. Continue reading →

Posted in Bangladesh, International Criminal Justice | Tagged , | 3 Comments

The ICC and its Impact: More Known Unknowns

Posted on November 5, 2014 by Mark Kersten
(Photo: Still Burning)

(Photo: Still Burning)

As I mentioned yesterday, OpenDemocracy is hosting a symposium on the trials and tribulations of the International Criminal Court (ICC). Today’s article is my contribution to the debate and focuses on the impact of the ICC on the conflicts in which it intervenes. Here’s a snippet:

Given the amount of ink spilled on elaborating the ICC’s impacts, it may be surprising that we actually know very little about the Court’s effects on peace processes and conflict resolution. Indeed, as the former Chief Prosecutor of the International Tribunal for the Former Yugoslavia and the former Director of the International Crisis Group, Louise Arbour, observed: “We all repeat the mantra that there can be no lasting peace without justice; and that’s true enough. But I don’t think that we have yet resolved the inevitable tensions between the two in a workable fashion.”

This is at least in part because we haven’t been asking the right questions. To achieve a firmer grasp of the effects and non-effects of the ICC, three issues need to be explored in greater depth. First, how is a situation referred to the ICC? It surely matters whether the ICC intervenes in a conflict at the behest of the UN Security Council versus a referral by a member-state. Different referral mechanisms bring with them different kinds of political baggage for the ICC to sort through. Crucially, the Court needs to achieve cooperation in collecting evidence and to potentially enforce arrest warrants. That cooperation depends on the referring party—and likely means that they won’t be targeted for prosecution. This, in turn, leads to asymmetrical attribution of accountability and responsibility for political violence and atrocities. In this context, it should come as little surprise that Security Council referrals have led the ICC to primarily target government officials while self-referrals by ICC member-state have resulted in the Court targeting government adversaries and rebel groups.

This brings us to a second issue: who is targeted for prosecution and who isn’t? Research on the ICC has focused primarily on the targets of judicial sanction. It has assumed similar behaviour across target-types. Potential differences in targeting a head of state like Muammar Gaddafi versus a hardened rebel like Joseph Kony are rarely considered. Instead, they are both said to either have the same incentives to negotiate because of the ICC, or the same predilection to dig their heels in and fight to the death because of the ICC.

More attention needs to be focused on how the Court’s interventions affect non-targeted parties. In Libya, the ICC’s intervention against the Libyan regime bolstered the resolve of the opposition to reject negotiations with the “criminal” Gaddafi and emboldened rebel forces to pursue a military solution to the war. In Uganda, the ICC’s intervention legitimized the Government of Yoweri Museveni, which was able, in turn, to rescue its reputation after a disastrous—and possibly criminal—handling of the war in northern Uganda.

Lastly, it is critical for scholars of the ICC to consider what other contextual dynamics of peacemaking and conflict waging can explain developments that would otherwise be ascribed to the ICC. To use the example of the LRA committing to the Juba peace talks in 2006, research suggests that the 2005 Comprehensive Peace Agreement between Sudan and South Sudan (both of which were proxies in the war between the LRA and Uganda) had as much, if not more, of an impact on pressuring the LRA to come to the negotiation table.

Here it would also be useful for researchers to examine cases of ICC non-intervention. All things being equal, Syria is a case in which few would deny a Court intervention is warranted, but where an ICC investigation simply cannot take place because Syria is not a member-state of the ICC and the Security Council has not referred Syria to the Court. Yet many of the presumed effects of ICC interventions—failed peace negotiations, prolonged violence and the continued commission of atrocities—can be seen in Syria. Learning from cases of non-interventions can help scholars better refine analytical frameworks for studying the impacts of the ICC and the interplay between the Court’s interventions and key causes and drivers of political violence.

You can read the whole article here.

Posted in Conflict Resolution, International Criminal Court (ICC), Peace Negotiations, Peace Processes, Peacebuilding | 2 Comments

The ICC Needs Political Advice – Here’s One Way It Can Get It

Posted on November 4, 2014 by Mark Kersten

and-opaque-glass-boardroom-doors-whilst-openOver the next few weeks, OpenDemocracy will host a number of articles on the history, impact, challenges and future of the International Criminal Court (ICC). There are already number of fantastic contributions including from always cogent David Petrasek. Today’s post was from Priscilla Hayner, who hardly needs an introduction amongst observers and practitioners of international criminal justice. Hayner is a co-founder of the International Centre for Transitional Justice and the author of the widely-cited Unspeakable Truths – Transitional Justice and the Challenge of Truth Commissions.

In her article, Hayner tackled the issue of the “interests of justice” and when it might be invoked in the context of ICC interventions in ongoing and active conflicts. She concluded with a terrific suggestion:

… there may be a greater risk in not being attentive to the range of justice concerns that extend beyond the specific prosecutorial interests at hand.

What may be missing is a process by which the prosecutor could more comfortably evaluate the likely impact and timing of her actions in each different national context. For example, independent country-specific advisors on the “interests of justice” could offer assessments, while leaving all decisions entirely to the prosecutor. Such advisors could evaluate a host of factors: victims’ interests; the credibility of national (criminal and non-criminal) justice initiatives; whether ICC actions might rattle an ongoing or developing peace process. Admittedly this may overlap with “complementarity” assessments, but the interests of justice might allow an analysis beyond strictly prosecutorial criteria.

Hayner’s suggestion that the ICC have in-country advisors on the interests of justice is spot-on and, given its source, it will hopefully gain traction.

The piece also reminded me of a different but related proposal I made a few years ago, in suggesting the creation of a ‘Referral Review Panel’ (RRP). I know it’s not particularly tasteful to quote my own blog post, but it beats having to re-write the same point with different words:

The role of the panel would be to critically assess ICC referrals, whether it be from a state, from the UN Security Council or in cases where the Prosecutor opened the investigation him/herself. Upon receiving a referral or deciding to open of an investigation proprio motu, the panel would examine the legality of a referral and its substantive content. Referring to past experiences, rulings and academic analyses, the panel would also address the potential legal and political risks and drawbacks of each referral to the Court’s legitimacy and independence. Moreover, in situations where a state should be – but has not been – referred to the ICC, the panel could convene to consider how best to engage the international community on referring the situation to the Court but doing so in such a way that does not hinder the institution’s independence. Syria would be a case in point here.

Importantly, the RRP would be independent from the Court itself. It could be established by the Office of the Prosecutor (OTP) or perhaps by the ICC’s Registry. But once created, it would not be composed of OTP or any other ICC staff. This would be particularly important because it would allow the OTP – and the ICC more broadly – to insulate itself from any harsh findings that the RRP may have with regards to particular referrals. In other words, the independence of the RRP could protect the OTP from any significant disturbance in its relations with the state(s) in question… Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC) | Tagged , | 3 Comments

The ICC to the Rescue… Kind of, Maybe.

Posted on October 31, 2014 by Mark Kersten

ICC in the New YorkerI received the above snippet from a friend (and friend of the blog) and wanted to share it with readers. It appeared in a recent New Yorker article entitled “The Preist, the Killers, and a Looming Genocide” which covers how civilians are coping with ongoing violence and instability in the Central African Republic.

For observers, practitioners and scholars of international criminal justice, it is a fascinating anecdote for a number of reasons. First, it is a small but notable piece of evidence that individuals mired in the context of political violence view the International Criminal Court (ICC) as a tool with which they can leverage their security and safety. Second, and just as notably, it suggests that even those individuals who use the ICC as a means to prevent violence or atrocities don’t actually believe it is particularly effective (i.e. “It was a lie” that the antibalaka leader would ever end up in The Hague).

Such anecdotal evidence has important implications for the study of the ICC’s ability to deter crimes and atrocities. If this anecdote is true, then the ICC has been usefully used by people who do not believe in its power to deter potential perpetrators of atrocities from doing so.

In recent years, the study of deterrence has stagnated quite a bit, in large part because of a broad consensus that it is virtually impossible to research the subject and demonstrate that a potential perpetrator did not commit an atrocity as a direct result of potential sanction from the ICC. Notably, however, fantastic forthcoming scholarship by researchers such as Michael Broache and David Mendeloff has begun to reinvigorate deterrence literature. Identifying, analyzing and assessing deep, empirical examples like the one cited in the New Yorker article may hold the promise of reviving a relatively stagnant domain of international criminal justice.

Posted in Central African Republic (CAR), International Criminal Court (ICC) | 6 Comments