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

What Counts as Evidence of Syria’s War Crimes?

Posted on October 29, 2014 by Mark Kersten

Over the past couple of weeks, I have been ‘investigating’ ongoing efforts by private non-governmental organizations to document and collect evidence of war crimes and crimes against humanity in Syria. The following is a snippet from an article that I wrote for the Washington Post’s Monkey Cage. It is based on interviews I conducted with international investigators, as well as staff from the Commission for International Justice and Accountability (CIJA), the Commission of Inquiry on Syria, and the International Criminal Court (ICC).

(Photo: AFP / Getty Images)

(Photo: AFP / Getty Images)

There is no immediate prospect for international justice or accountability in Syria. Efforts to have the United Nations Security Council refer the conflict to the International Criminal Court (ICC) have been stymied by Russia and China. The possibility of setting up an “ad hoc” tribunal to investigate allegations of crimes committed in Syria is more of an intellectual project than a political reality. While the U.N. Commission of Inquiry on Syria has produced a host of impressive and damning reports, the response of states has been meager and the conflict rages on. Even the broader debate regarding “transitional justice” in Syria misses a key point: There is no transition.

In this rather gloomy context of injustice and impunity, some have been comforted by the fact that at least someone is doing something: For the last few years, a small number of private non-governmental organizations have been investigating and documenting evidence of crimes committed in Syria. But what are the risks of such investigations? Do they outweigh the benefits? And is this the birth of a new model for investigating mass atrocities in war zones?

On first glance, it seems that groups like the Commission for International Justice and Accountability (CIJA) solve a key limitation facing other justice mechanisms: On the ground and in active conflicts, they are able to investigate crimes immediately following their commission. Other institutions – like the ICC or the Commission of Inquiry – aren’t able to directly gather evidence or document crimes on the ground. And when they finally do get access to the “crime scene” once the conflict has come to an end, key evidence has often been destroyed.

Indeed, international investigations are generally conservative, owing in part to the high-profile nature of international criminal tribunals and the hazards of deploying international investigators into ongoing conflicts. In the 1990s, investigators from the International Criminal Tribunal for the former Yugoslavia faced significant challenges in investigating ongoing atrocities in the Balkans. When the ICC opened an official investigation in the Ituri province of the Democratic Republic of Congo, it initially only dispatched two investigators. Those individuals were tasked with gathering evidence and understanding the commission of atrocities in an area not much smaller than Ireland. A more recent example is the ICC’s intervention in Libya. The Security Council requested that the ICC investigate events in Libya in February 2011 and the court issued arrest warrants in May of the same year. However, the ICC could only put investigators on the ground in October – the same month the Libyan civil war came to an end. Its cases were consequently built on evidence from sources and witnesses from outside of the country and sources within Libya that were able to gather evidence while the conflict was ongoing.

This points to another advantage for private organizations in Syria: They can be much less risk-averse than other institutions. As Nerma Jelacic of the CIJA says, “We have a higher risk tolerance than courts and U.N. agencies and that is what puts us in a unique situation … we are able to make these decisions quicker and without the security burdens that can sometimes prevent other agencies from getting on the ground and collecting such information.”

These two advantages – the ability to investigate in the midst of ongoing political violence and having a greater tolerance to risk in doing so – are important. But do they outweigh the potential costs of such investigations?

A key concern for any investigation – and the pursuit of justice more generally – is impartiality. The Commission of Inquiry has catalogued crimes and human rights abuses committed not only by the regime of Syrian President Bashar al-Assad but also by opposition groups. This poses a serious dilemma for any group investigating atrocities. Any investigation on the ground and in real time requires cooperation – often from the same groups that are perpetrating crimes. Jelacic readily admits that the CIJA needs to cooperate with some groups that may be implicated in the commission of crimes: “We have been quite open about it. In order to gain access to certain areas we need approval of opposition forces … [and] the majority of what we do are regime offences.” Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Syria, UN Commission of Inquiry on Syria, War crimes | Tagged , | 4 Comments

The ICC, Israel, and Palestine – The Time Has Come The Walrus Said To Talk of Many Things

Posted on October 27, 2014 by Mark Kersten

Toby Cadman joins JiC for this guest-post on why there is seemingly a reluctance on the part of the Palestinian Authority to sign the Rome Statute of the International Criminal Court (ICC).  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.

Palestinian Foreign Minister Riad al-Malki following a visit to the ICC (Photo: Reuters)

Palestinian Foreign Minister Riad al-Malki following a visit to the ICC (Photo: Reuters)

There are many matters to resolve in Israel and Palestine and this may appear overwhelming to the extent of not truly knowing where to start.  But the first theme that we can address is justice and accountability.  It is only through the establishment of a system based on the rule of law that there can be an even playing field as a precondition to peace and reconciliation.  Everything else must follow as a natural consequence of this first, most important step.

However, one cannot, and should not, waive the rule of law in front of a menacing foe as a stick and carrot.  One should not choose a political solution at the expense of justice.  It has been said before but change, real change, comes from a position of strength, not of weakness.  The Palestinian Authority must recognise that its position of strength is ratifying the Rome Statute of the ICC and bringing the perpetrators to justice – not threatening its ratification for a greater political solution, however noble that cause may be.

Against that background, on 30 October 2014, I was invited by the Tunisian Presidency to attend a high level conference hosted by the Centre for Strategic Studies for North Africa to discuss Palestine in the broader political sense.  I gave a presentation on the complex jurisdiction of the ICC and alternative mechanisms for ensuring accountability.  I spoke about the role that international law can play in supporting the victims of occupation and the siege of Gaza.  It was made quite clear that there remains significant appetite to see justice done, be it by cases being dealt with before a national or international court of criminal jurisdiction, or through other judicial means, namely consideration to be given to the pursuit of those foreign nationals serving in the IDF who may be responsible for some of the very clear instances of war crimes.

The conference, although covering an array of political considerations, was dominated by the issue of an ICC investigation, following the opening speeches from a host of Palestinian groups, including members of the Palestinian Authority and human rights activists.  The conference also saw a number of international dignitaries including members of the UK Parliament and House of Lords.

I repeatedly made the point during my presentation and follow up discussions that we must not shy away from confronting Israel on these important issues – particularly the very serious allegation that its conduct, taken as a whole, may constitute a crime against humanity.

Having heard the speeches and discussions in Tunis, it is clear that the preferred route to justice and accountability would be to pursue matters before the ICC.  However, President Mahmoud Abbas and the Palestinian Authority are delaying the ratification of the Rome Statute, instead using the ever-present threat as leverage for an Israeli withdrawal from the West Bank and the drawing up of borders.  This is, in my respectful opinion, a dangerous course of action.

A young Palestinian examines damages to house in the Jebaliya refugee camp that had been hit by an Israeli strike. (The Associated Press)

A young Palestinian examines damages to house in the Jebaliya refugee camp that had been hit by an Israeli strike. (The Associated Press)

The position of Fatah therefore would appear to be one of willingness to sign, but only as a last resort, should all other routes of negotiation to achieve the stated objectives fail.  Hamas, on the other hand, has adopted an entirely different position.  It has urged the Palestinian Authority to ratify the Rome Statute, despite there being a significant risk that its own members may also face investigation over the firing of rockets into Israel and the allegation that it has used civilian installations to store weapons.  Hamas has confirmed in writing to Fatah, that the Rome Statute should be signed without delay and that it would welcome its adoption.  The delay therefore is on the part of Fatah rather than Hamas.  Such delay has in itself been criticised, however there may arguably be a method to the madness.

On 1 October 2014 the Palestinian President stated that his Government would join the ICC in The Hague in the event that the proposed UN Security Council Resolution on drawing pre-1967 borders and an Israeli withdrawal from the West Bank failed.  The plan being proposed by the Palestinian Authority would see an end to occupation in two-to -three years.  Abbas stated that if the United States vetoes the plan, as must surely be expected, the immediate ratification of the Rome Statute would follow.  If one is to consider the recent statements made by members of the US Administration in relation to the situation in Gaza and the need for a two State negotiated solution, the underlying message is quite clear. Continue reading →

Posted in Guest Posts, Human Rights, International Criminal Court (ICC), Israel, Palestine, Palestine and the ICC | Tagged | 2 Comments

JiC Hits a Million Hits

Posted on October 27, 2014 by Mark Kersten
Justice in Conflict

Justice in Conflict

At some point last week, Justice in Conflict reached an important landmark: its one-millionth hit. I wanted to take this opportunity to thank all of our readers for your interest and support. It means the world to me. The blog was launched, with modest expectations, in February 2011. It has grown steadily ever since but I could hardly imagine the support and interest it has drawn. It goes without saying that this achievement would not have been possible with you. 

Thank you!

Mark

Posted in JiC News | 3 Comments

An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Posted on October 24, 2014 by Mark Kersten
Ottawa. (Photo: Creative Commons / Endlisnis)

Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on a murderous rampage. This is an attractive explanation because it diminishes the possibility that any of us, and any part of Canada or Canadian society, bears any responsibility for the shootings. But this is too easy and it is simply not true. Being radicalized into Islam or any other sect or religion isn’t “crazy”. And as has become increasingly clear since the attacks, the killer was politically inspired and motivated. Moreover, while he may have acted alone, this is likely a reflection that, in planning and perpetrating acts of terror, it is more effective to work alone than plan in large groups.

Canadians and the Canadian government should look to the case of the 2011 Oslo shootings. The same refrain (“This doesn’t happen here… This is Norway.”) was palpable in the wake of Anders Breivik’s attacks on Oslo and Utøya. The same explanation (“This is the work of a crazy lone wolf”) was popular. Indeed, Breivik was initially declared criminally insane by the country’s top psychologist and thus not liable for his crimes. However, Norwegians en masse rejected the idea that Breivik was “crazy”, instead acknowledging that his attacks were politically motivated and planned. That meant that Norwegians had to ask the toughest of questions: was there something about Norwegian society that could inspire someone to take such horrific actions against innocent civilians? Being introspective in the wake of what looks like senseless violence is never easy. But Canadians can be inspired by the courage Norwegians demonstrated in looking within themselves for answers rather than solely blaming violence on the mental stability of Breivik.

An uncomfortable reality is that Canada is no longer perceived as an innocent, liberal, peace-loving state anymore. Nothing brings this into sharper relief than the attacks on Ottawa. In speaking with a senior Canadian lawyer as the events unfolded, his response was: “This is no surprise. It was only a matter of time.”

Police officers in Ottawa move flowers to the War Memorial (Photo: Justin Tang/Canadian Press)

Police officers in Ottawa move flowers to the War Memorial (Photo: Justin Tang/Canadian Press)

The Conservative government under Stephen Harper has undermined the country’s prestige and reputation as a producer and builder of global peace and justice. This may not be clear to all Canadians but it is certainly evident in the eyes of many across the globe. Having lived abroad for the last five years, I can attest to this. When I arrived in London and told people that my intellectual and academic interests lied with the Responsibility to Protect (R2P) and the International Criminal Court (ICC), I would regularly be chided with: “that’s so Canadian.” It certainly was and I took pride in the fact that R2P was a principle which would not have been developed without the sponsorship of Canada and that the Canadian government played an instrumental role in the Rome Statute negotiations that led to the creation of the ICC.

But these principles have been abandoned. The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values. Continue reading →

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The ICC, Kenyatta and African States

Posted on October 10, 2014 by Mark Kersten
Uhuru Kenyatta (right) at the International Criminal Court (Photo: ICC)

Uhuru Kenyatta (right) at the International Criminal Court (Photo: ICC)

It has been a dramatic and remarkable few days at the International Criminal Court (ICC). For the first time ever, an elected President appeared before the Court. So concerned was Kenyan President Uhuru Kenyatta that, on the eve of his appearance in The Hague, he took the extraordinary measure of temporarily stepping down and handing over his executive powers to his vice president William Ruto – who, as readers will know, also faces charges at the ICC. Over one-hundred Kenyan politicians flooded into The Hague to show their support for Kenyatta and spent the night in one of the most luxurious hotels in the Netherlands (it remains unclear precisely who paid their expenses). With their evidence either weakening or under attack, the Prosecution asked Judges to indefinitely adjourn or terminate the case against Kenyatta. The Defence asked the Judges to throw the case out altogether. It remains to be seen how – or even when – the judges will rule.

While I haven’t had time to blog about recent events at the ICC, I wanted to draw readers attention to two interview programmes that may be of interest to you.

The first was for BBC Newshour on the relationship between the ICC and African states. You can find that interview (and the full program) here.

I also had the opportunity to speak with UN Dispatch’s Mark Leon Goldberg about Wednesday’s hearings at the ICC regarding the Kenyatta case. You can find that interview here.

As always, share your thoughts and opinions!

Posted in Justice, Kenya, Kenya and the ICC | Tagged , | 8 Comments