What Gives? African Union Head of State Immunity

Posted on July 7, 2014 by Mark Kersten
(Photo: AU)

(Photo: AU)

Last week, the African Union (AU) voted to grant immunity from prosecution to all African Heads of State and “senior officials” at the African Court of Justice and Human Rights. Predictably, the human rights and international justice world were up in arms. Some called it the “worst possible signal” to perpetrators of atrocities.

Members of the African Union have pushed for head of state immunity since Sudanese President Omar al-Bashir was first indicted by the International Criminal Court (ICC) in 2009. Their mission has only gathered steam since Kenyan President Uhuru Kenyatta, who is facing trial at the ICC, was elected in March 2013.

So what should we make of the AU’s efforts? Here are a few thoughts.

Not Just Ocampo-Justice

It would be easy, but generally wrong, to ascribe the AU’s motion to a bunch of cronies. There are cronies and they are leading the attack on the ICC. But ICC member-states in Africa aren’t exactly lining up to defend the Court. This seems symptomatic of a widening and deepening wave of discontent with international justice. And this frustration may yet grow amongst the citizenry of African states – ironically in part because the Court has been unable or unwilling to investigate and prosecute some African heads of state.

It wasn’t that long ago that Jean Ping stated that the AU was not against the ICC but “against Ocampo”, referring to the previous, often cavalier, former Chief Prosecutor of the ICC. Some had hoped that the election and tenure of Fatou Bensouda as new Prosecutor would help reconcile relations between African states. There is little evidence that it has and, for the Court and its proponents, that must be troubling.

Before any fervent human rights advocates rush to print placards declaring that African dictators are abandoning international justice, it behooves them to consider where the frustration of many African states comes from – and why it is so easy for generally pro-ICC states to stand idly by.  As I have argued before, there needs to be a re-imagination of that relationship from the Court’s side, along with new strategies for how the ICC communicates and prioritizes its relations with African states.

Small Group, Big Pull

While proponents of international criminal justice shouldn’t interpret the AU’s vote as the work of a group of despots, it is likewise wrong to suggest that the vote reflects the African Union as a whole – let alone ‘Africa’. As Samuel Oakford observes,

Though the AU often projects itself and is frequently reported as a singular voice, the vote reflected a concerted push on the part of a minority of leaders, two of whom have been charged by the ICC. Kenya’s president Uhuru Kenyatta has been accused of fomenting ethnic violence that marred the 2007 elections, and Sudan’s President Omar al-Bashir has been charged with orchestrating genocide in Darfur. Both angled to weaken the African court’s ability to pursue heads of state and high level official[s].

Notably, this small group of vehement anti-ICC figures is willing to put more resources into their cause than their pro-ICC colleagues who, it would seem, are passively content to allow bluster and rhetoric to flourish whilst knowing that little will likely come of it (see below).

In its own right, this is a bad sign for international criminal justice. The path of least resistance amongst AU states is to side with, and not against, immunity for heads of state and anti-ICC resolutions.

Kenyan President Uhuru Kenyatta arrives for an African Union Summit in October 2013 (Photo: Jacey Fortin)

Kenyan President Uhuru Kenyatta arrives for an African Union Summit in October 2013 (Photo: Jacey Fortin)

The Problem of International Justice is…

The problem with international justice is not that it does too much but that it is too limited: that there isn’t enough head of state accountability. Of course, this isn’t an issue that pertains specifically to the African continent, although it would be a welcome sign to see the likes of Uganda’s Yoweri Museveni (who insists that his list of sins is longer than Bashir’s), Rwanda’s Paul Kagame, and Zimbabwe’s Robert Mugabe held responsible for their alleged role in mass human rights violations. Former leaders like George W. Bush and Tony Blair are consensus candidates to be prosecuted for alleged crimes committed in Iraq and Afghanistan and very few proponents of international criminal justice would deny this.

Unfortunately, many dictators and despots around the world who long ago passed their democratic expiry dates can only gain an incentive from measures to ensure and protect head of state immunity. So too will “senior officials” who are covered by the AU’s resolution. That doesn’t sound like an particularly good recipe for democratic development. But maybe I’ve just read too much Chinua Achebe.

The new resolution warps the incentives of government leaders and senior officials to leave power. It thus not only hurts judicial accountability but undermines democratic accountability.

Rebel Justice

The AU’s resolution re-affirms a troubling pattern amongst those African states who have pursued international justice and accountability: justice is for their rebels adversaries and not for governments. This is also evident in essentially every self-referral by an African state to the ICC.

There is a striking correlation between self-referrals and the ICC targeting non-state actors. And it is equally notable that the most controversial cases for African states have come as a result of UN Security Council referrals which have primarily targeted governmental actors.

The AU’s amendment should thus be read not only as an attempt to grant government officials immunity but as a means to narrow the scope of retributive justice to those rebel groups that may threaten those African governments currently in power.

A primary problem of this uneven selection of targets is its effects on conflict resolution. The prosecution (or proscription) of one side and not the other when both are responsible for atrocities is unlikely to be conducive to peacemaking.

Continue reading →

Posted in African Union (AU), ICC Prosecutor, International Criminal Court (ICC) | 4 Comments

Caring and Acting Beyond Borders

Posted on July 3, 2014 by Mark Kersten

“How do we mobilize political will and not only get people to care but to act?” James P. Rudolph joins JiC for this post on the challenges in galvanizing support and action to prevent atrocities. For James’ other posts at JiC, see here.

Bansky art on the Israel West Bank wall (Photo: Buzzfeed)

Bansky art on the Israel West Bank wall (Photo: Buzzfeed)

Americans, like most people, have busy schedules. Our obligations are many: school, family, work. All this activity consumes most of our time and attention. So why, given all this frenetic (and often exhausting) activity, should people care about anyone beyond immediate friends and family? Why, to quote Neville Chamberlain, should we care about a “quarrel in a faraway country between people of whom we know nothing?”

This question is not only a philosophical question; it is also the primary problem bedeviling human rights activists throughout the world. To put it bluntly, if we cared only about family and immediate loved ones, there would be no human rights industry. Thus, mobilizing political will is the sine qua non — the Holy Grail — of human rights activists. How, then, do we mobilize political will and not only get people to care but to act?

The consensus among human rights experts is that mobilizing political will involves four steps: knowing; caring; building confidence; and building or improving institutional processes. This final step — institutional effectiveness — is, notwithstanding the importance of the other factors, first among equals, and it is related to the Responsibility to Protect (R2P) and Secretary-General Ban Ki-moon’s “Rights Up Front” initiative, both of which exhort the international community to assist states in meeting their human rights obligations.

Knowledge is the first step in the process of getting people to care beyond what is close and familiar. Knowing about Syrians being slaughtered pulls at our heartstrings. These are real people — sons, daughters, mothers, fathers — being tortured, gassed and incinerated. Knowing about the abducted schoolgirls in Nigeria, or the terrible tit-for-tat violence in the Central African Republic, pricks our conscience. But knowing is never enough. The so-called diffusion of responsibility, in which individuals in a group assume that somebody else will take care of the problem, always threatens to undermine the utility of knowledge. Knowledge, therefore, must be coupled with concern, the second step, to truly mean anything. But how and why are people motivated to care? Given the multiplicity of religious and philosophical persuasions in the United States, an appeal to morality could work, but for a more broad-based approach, other motivating factors could and should be explored.

0_16531525_303_00An argument based on national interest, for instance, oftentimes works to get people to realize that problems in one part of the world can quickly become problems right here at home. Osama bin Laden was able to operate out of Afghanistan because it was a failed state in which human rights were nonexistent. And Mohamed Salameh, convicted of the 1993 bombing of the World Trade Center, was a Palestinian from the West Bank who complained about oppressive regulations and other human rights violations. People, in other words, can and usually will care when convinced that abuses or deprivations in faraway lands can indeed affect their everyday lives. The corollary to the national interest argument is the financial argument. That is to say, it is much cheaper to spend money on prevention measures than it is to deploy troops for humanitarian interventions.

The third step to mobilizing political will is building confidence. Citizens, as taxpayers, rightfully expect that whatever policy is proposed will actually make a difference. The United States has endured some difficult times in Iraq and Afghanistan, and this history feeds into a perception that “foreign adventures,” whether humanitarian or not, are best avoided. The feeling, of course, is understandable and natural, but it should not overshadow all the quiet and mostly unknown victories achieved by the United Nations and other nongovernmental organizations throughout the world. Notwithstanding Syria, Darfur and the Central African Republic, there has been a decline in the number of genocides and other mass atrocity crimes due, in large part, to the upsurge of conflict prevention measures, conflict management and post-conflict peacebuilding initiatives. Continue reading →

Posted in Uncategorized | Tagged | 1 Comment

The ICC in Libya: Not Done Just Yet

Posted on June 26, 2014 by Mark Kersten
Are more ICC arrest warrants in Libya on the horizon? (Photo: Suhaib Salem / Reuters)

Are more ICC arrest warrants in Libya on the horizon? (Photo: Suhaib Salem / Reuters)

With the ruling that the case against Saif al-Islam Gaddafi is admissible before the International Criminal Court (ICC) and that Libya must surrender him to The Hague, observers might be inclined to think the story between the ICC and Libya is over. After all, there is virtually no way that Colonel Muammar Gaddafi’s son and ‘heir apparent’ will be surrendered to the ICC. But the story between the ICC and Libya may not be over. Indeed, a new chapter may just be opening.

In a New Years post on 2014 predictions, I suggested that another Libyan will be indicted by the ICC and Libya will not have any issue with it. Since then, in speaking with a number of well-connected sources, it has become clear that there is a growing belief that the Prosecutor may proceed in requesting additional warrants for individuals responsible for crimes committed during the Libya’s 2011 uprising and civil war.

Close ICC observers, especially those who tune into online streams of the Prosecutor’s reports to the UN Security Council, might not be surprised. Chief Prosecutor Fatou Bensouda has intimated, on at least two occasions now, that more arrest warrants may be forthcoming.

This is what the Prosecutor told the UN Security Council in November of last year:

There are many others who are alleged to have committed crimes and/or who continue to commit crimes in Libya since February 2011. Some are still inside in the country while others are abroad where they continue to use their influence to destabilise the country and pose a security threat to civilians.  It is impossible for the ICC alone to investigate and prosecute all perpetrators.  Neither can Libya undertake this demanding task alone.  Investigation and prosecution of the few by both ICC and the Government of Libya respectively should not result in impunity for the many. Joint complementary efforts of both the Government of Libya and the ICC, strongly and actively supported by the international community, are thus crucial for ending impunity in the country.

To this end, my Office and the Government of Libya have recently concluded a burden-sharing Memorandum of Understanding, the purpose of which is to facilitate our collaborative efforts to ensure that individuals allegedly responsible for committing crimes in Libya as of 15 February 2011 are brought to justice either at the ICC or in Libya itself.  While my Office will prioritise its investigation and prosecution of those who are outside the territory of Libya and who are thus largely inaccessible to the Libyan authorities, the Government of Libya will prioritise investigations of those suspects who are within Libyan territory. I am also pleased to report that my Office and the Government of Libya have also committed to supporting each other’s investigations and prosecutions through the exchange of information, subject to confidentiality and protection obligations.  To be absolutely clear, this agreement does not relinquish the ICC or the Libyan courts of their respective jurisdiction, nor does it apply and/or affect the ongoing judicial proceedings in either the Saif Al-Islam Gaddafi or the Al Senussi cases.

ICC Prosecutor Fatou Bensouda reports to the UN Security Council in November 2013 (Photo: UN / Eskinder Debebe)

ICC Prosecutor Fatou Bensouda reports to the UN Security Council in November 2013 (Photo: UN / Eskinder Debebe)

And this is what the Prosecutor informed the Council of last month:

Following the conclusion of the memorandum of understanding on burden-sharing with the Government of Libya last year, on 29 January 2014, my Office held fruitful and constructive discussions with the Libyan Prosecutor General Abdul Qader Radwan on practical aspects of the implementation of this MOU and strategies for further investigations, prosecutions and possible arrests. These discussions will be continued during the next meeting with the Prosecutor General’s investigators, scheduled for 15 May. The support of this Council and of all States is critical for these joint endeavours to bring to justice, either in Libya or at the ICC, those responsible for serious crimes.

In particular, and as I have said before, such support is crucial for the colossal task of collecting evidence to untangle the modus operandi of the networks responsible for committing crimes. Amongst others, we will require telephone intercepts and sustained follow-up on the transfers of funds to establish the whereabouts and movements of persons under investigation. This is all information that we can only access through the assistance of States. Above all, we hope we can count on the cooperation of States in facilitating the smooth arrest and surrender of those against whom warrants will be issued. This is key for sending a clear message to would-be Libyan perpetrators and indeed all other would-be perpetrators that the international community is watching and will no longer allow impunity to reign unchecked.

There are a few things to take away from this.

First and most obviously, the level of apparent time and effort that is being spent on investigating and potentially prosecuting additional figures from Libya suggests that the Prosecutor isn’t content with the Court’s legacy in Libya and, in particular, is not satisfied with being left empty-handed in Libya.  Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, United Nations | 2 Comments

ICC Justice in Ukraine May Have to Wait

Posted on June 17, 2014 by Mark Kersten

I recently had the opportunity to write an op-ed for the Moscow Times on the potential investigation of recent events in Ukraine by the International Criminal Court (ICC). Will the ICC intervene in Ukraine? If so, would former President Viktor Yanukovych ever face prosecution or will Russia shelter him from accountability? What would an ICC intervention mean for the (very) tense relations between the ‘West’ and Russia?

(Photo: Valentyn Ogirenko / Reuters)

(Photo: Valentyn Ogirenko / Reuters)

The ongoing crisis in Ukraine has been fuelled by speculation concerning the murder of protestors on Kiev’s Maidan Square during pro-European Union demonstrations. Broadly speaking, supporters of Ukraine’s turn west have accused police snipers. Those in favour of closer ties to Russia, meanwhile, have said far-right anti-Russian provocateurs, hoping to discredit the then-government, were responsible.

Lost in this turmoil are objective answers about who was responsible for the violence on Maidan and whether or not they will be ever be held to account.

Following a request from the Ukrainian parliament, the International Criminal Court, or ICC, opened a preliminary investigation into alleged crimes committed in Ukraine between 21 Nov. 2013 and 22 Feb. 2014. These dates mark the beginning of protests on Maidan and the Ukrainian parliament’s vote to oust pro-Russian President Viktor Yanukovych.

Of course, the ICC’s involvement does not mean that any conclusion about the violence on Maidan will be reached soon.

Opening a preliminary investigation does not, in itself, mean that the court will open an official investigation — let alone issue arrest warrants. Some situations, like the war in Afghanistan or the conflict in Colombia, have toiled for years in the judicial purgatory that is the ICC’s preliminary investigation list.

Moreover, the time-period that the ICC can investigate essentially restricts the court to investigating alleged crimes on the Maidan Square in Kiev. If prosecutors find that the time-period referred to the ICC was intended to narrow the court’s focus against specific parties, namely former President Viktor Yanukovych and his cronies, then the ICC can and should decide not to proceed. Prosecutors may also fear intervening whilst fragile negotiations between the West and Russia over Ukraine’s future are ongoing.

States tend to believe that when they refer themselves to the ICC, they are, in fact, referring their adversaries. While the history of one-sided prosecutions by the ICC in Uganda, the Central African Republic, Libya and elsewhere give credence to their thesis, there is nothing to prevent the ICC from targeting all sides of a conflict.

(Photo: Sergey Supinsky / AFP)

(Photo: Sergey Supinsky / AFP)

If ICC prosecutors do proceed, it is hard to imagine that Yanukovych could possibly escape scrutiny. He is, in the eyes of many, the top-prize for justice in Ukraine, accused by some of ordering the police to open fire on the Maidan protestors. The trouble is, after fleeing Kiev and seeking refuge in Russia in late February, Yanukovych is no longer within easy reach. Would Moscow ever hand over their former political proxy? Or is Yanukovych destined to be a fugitive from justice, protected by his Russian patrons?

In the midst of mudslinging rhetoric between the West and Russia over Ukraine and Syria, it may be tempting to believe that Moscow is inherently opposed to an ICC intervention in Ukraine. U.S. Ambassador to the UN Samantha Power recently placed the blame over the failure to refer Syria to the ICC as well as the selectivity of international justice squarely at the feet of the Kremlin. If we are to believe the hype, big bad Russia is a major obstacle to achieving international accountability. Continue reading →

Posted in International Criminal Court (ICC), International Law, Justice, Russia, Ukraine, Uncategorized | Tagged , , | 1 Comment

Not Everyone Thinks the ICC in Syria is a Good Idea

Posted on June 12, 2014 by Mark Kersten

Not everyone thinks an intervention by the International Criminal Court would be conducive to peace. Professors Rianne Letschert and Marc Groenhuijsen of the International Victimology Institute at Tilburg Law School, argue that there is too little empirical evidence to suggest that the ICC should get involved in active and ongoing conflicts like the one ravaging Syria.

A member of the Free Syrian Army sits amidst rubble in Deir al-xor (Photo: Khalil Ashawi / Reuters)

A member of the Free Syrian Army sits amidst rubble in Deir al-xor (Photo: Khalil Ashawi / Reuters)

A group of international NGOs has been lobbying for a referral of the situation in Syria to the International Criminal Court (ICC) in The Hague. Such a referral is only possible through a UN Security Council resolution and would mean that the Prosecutor may start an investigation into possible committed crimes against humanity, war crimes or genocide by all parties to the conflict. So far, Russia and China have blocked any referral of Syria to the ICC. We have known for a long time that these countries support the regime of Assad and that the West supports the opposition. But is it right to criticize Russia and China for blocking a referral? And should the discussion not focus more on the possible effects of an intervention by the ICC in an ongoing conflict on those most affected? A look at recent history may guide such discussion.

During the Balkan war, the UN Security Council decided to establish the International Criminal Tribunal for the former Yugoslavia (1993) with the aim of bringing about peace and reconciliation in the region (the Tribunal was established under Chapter 7 of the UN Charter which deals with the promotion of peace and international security). But the aim of bringing about peace was an impossible goal, for which a criminal institution cannot be held responsible. Two years after the creation of the Tribunal, after all, the world witnessed the Srebrenica drama (1995) which killed more than 8000 people. And everyone will understand how difficult it was for the Tribunal to start criminal investigations in a country where the war was still ongoing.

Regarding the conflict in Libya, the Security Council adopted Resolution 1970, referring the case to the ICC (2011). The Council unanimously requested the ICC to investigate the violence of the Libyan regime of Colonel Muammar Gaddafi against the protesters. Investigations led the ICC to issue arrest warrants against Gaddafi, his son Saif al-Islam Gaddafi and Abdullah al-Senussi, the Chief of the security services. They were accused of crimes against humanity in the first twelve days of the Libyan uprising. We still know too little about the positive or negative effects of international arrest warrants on finding political solutions aiming to end massive violence. But the arrest warrant against Gaddafi could have been a complicating factor in the search for a political solution to the war that raged for three months. Some commentators argue that if Gaddafi had considered stepping down, it now became very unattractive by the prospect that he could end up in a cell in The Hague. On the other hand, as Richard Dicker of Human Rights Watch noted: “It beggars belief that a dictator who has gripped power for over forty years would be frozen in place by this arrest warrant.”

Lakhdar Brahimi recently resigned from his post as U.N.-Arab League envoy for Syria (Photo: Balibouse / Reuters)

Lakhdar Brahimi recently resigned from his post as U.N.-Arab League envoy for Syria (Photo: Balibouse / Reuters)

With regard to Gaddafi a move to a prison in The Hague became moot when he was eventually killed by his opponents in October 2011. A more recent ICC decision regarding Libya again caused fierce discussion in Libya and beyond. The ICC decided that the case against Gaddafi’s son was admissible because Libya would not be able to conduct the trial back home. According to the NGO ‘No Peace Without Justice’, there is a risk that this decision will ‘further deepen the ongoing crisis and to give another blow to the trust of the Libyans people in the capacity of their State to administer justice on crimes under international law committed on its territory by its citizens.’ We can only guess what the effects of the ICC intervention in 2011 and its more recent decisions have been on this fragile country that is still struggling with many transitional justice dilemmas. What we do know is that the situation in Libya is not getting any better. Just last week the United States called on all citizens to leave the country. And we also know that a proper assessment of victim’s perceptions on how ‘justice’ should be delivered is lacking. Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), Syria | 1 Comment

Event: Syria and International Justice

Posted on June 3, 2014 by Mark Kersten

Dear readers,

On 30 June 2014, the LSE Centre for International Studies Dialogue will be hosting what promises to a fascinating roundtable on Syria and International Justice. The roster of participants will be Kevin Jon Heller, Leslie Vinjamuri, Jason Ralph, Dov Jacobs, Kirsten Ainley and myself. 

The event will also be live-tweeted with the hashtag: #LSESyriaICC

Put the event in your calendars and hopefully we’ll see many of you then!

Mark

Syria and International Justice

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The Onion Targets the ICC

Posted on May 29, 2014 by Mark Kersten
Mark Kersten ICC

(Photo of ICC: Mark Kersten)

International criminal justice and transitional justice are rarely funny. There are a few jokes. But outside of the hilarious, periodically knee-slapping pieces by Amanda and Kate at Wronging Rights, jokes about this stuff are few and far between.

Every now and then, though, international justice is made fun of. And it’s doubtful that anyone has done it better than The Onion. Their jokes are wickedly incisive. In their most recent gag, they take aim at the ICC’s record on sentencing:

Militia Leader Sentenced To 6 Months’ Probation For War Misdemeanors

THE HAGUE—Following his 15-minute appearance today before the Civil Ordinance division of the International Criminal Court, Mai Mai Kata Katanga militia leader Emile Kyenge was sentenced to six months’ probation for several war misdemeanors committed in the Democratic Republic of the Congo, sources confirmed. “Mr. Kyenge’s crimes against the community, from trespassing on private land during nighttime raids to torching entire villages without a burn permit, have been a disruption to public order,” said Chief Prosecutor Fatou Bensouda, adding that Kyenge has previously appeared before the tribunal for littering public grounds with the bones of his enemies, failing to pay taxes on sales of captive women, and allowing child soldiers to sit in his armored vehicle’s front seat. “In light of the damage he has caused, Mr. Kyenge will be required to complete 30 hours of community service and submit a letter to the tribunal apologizing for his actions. He will also be levied the standard fine of $250, as well as the $50 International Criminal Court processing fee.” Bensouda added that under the terms of Kyenge’s probation, the rebel warlord must henceforth inform the court whenever he leaves the state of Katanga to massacre civilians.

This isn’t the first time The Onion has taken aim at the ICC or international justice. They have targeted the lack of public interest in atrocity crimes and genocide. Perhaps their best came in 2011 with this gem: “International Criminal Court Announces New ‘3 Strikes’ Genocide Policy”. They’re funny. But they are also insightful and, because they masquerade deeper truths within absurd story-lines, sad. Maybe there is something to Mark Twain’s observation that “The secret source of humor is not joy but sorrow.”

If you have any good international justice jokes, be sure to share them!

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

Unnecessary & Counter-Productive: Samantha Power Explains US Position on ICC & Syria

Posted on May 28, 2014 by Mark Kersten
Samantha Power and Vitaly Churkin

Samantha Power speaks with her Russian counter-part Vitaly Churkin during a meeting of the Security Council earlier this year (Photo: EPA)

Yesterday, I highlighted Argentina’s eloquent and conscientious defence of the International Criminal Court’s integrity and independence in response to the Security Council’s failure to refer Syria to the ICC. Today, I want to focus on the response by the United States’ Ambassador to the UN, Samantha Power.

As readers will know, about two weeks ago, the US changed its policy towards a referral of Syria to the ICC. That paved the way for a French-drafted resolution to be tabled at the Security Council. Predictably, Russia and China vetoed the referral. I say predictably not because observers of the Court and Council knew it would happen but because Russia, in particular, had been unequivocal that it would veto any referral of Syria to the ICC.

Still, no one really knew why the US had made such a dramatic change in its policy towards an ICC intervention in Syria. But in the wake of the failed referral, US Ambassador to the UN, Samantha Power explained Washington’s position. Here’s a snippet:

“Today is about accountability for crimes so extensive, so deadly, that they have few equals in modern history. Today is about accountability for Syria. But it is also about accountability for this Security Council.

It is this Council’s responsibility to stop atrocities if we can and – at a minimum – to ensure that the perpetrators of atrocities are held accountable. It was toward that minimum that we sought to make progress today. My government applauds the vast majority of members of this Council who voted to support – and the some 64 countries who joined us in co-sponsoring – this effort to refer these atrocities to the International Criminal Court.

Sadly, because of the decision by the Russian Federation to back the Syrian regime no matter what it does, the Syrian people will not see justice today. They will see crime, but not punishment.…

…In the past, when extraordinary crimes have been carried out, the International Criminal Court has been able to act. Why is it that the people of Uganda, Darfur, Libya, the Central African Republic, the Democratic Republic of Congo, Cote d’Ivoire, Mali, and Kenya deserve international, impartial justice, but the Syrian people do not? Why should the International Criminal Court pursue accountability for atrocities in Africa but none in Syria where the worst horrors of our time are being perpetrated? For those who have asked the Security Council this very reasonable question, today you have your answer: the Russian and Chinese vetoes.

Our grandchildren will ask us years from now how we could have failed to bring justice to people living in hell on earth…

…Month after month, and year after year, we have each spoken about the importance of justice and the need for accountability in Syria. Victims and survivors have begged for action and cried for justice. The international community has supported ad hoc efforts to collect evidence, to record testimony. We’ve launched commissions of inquiry to find facts, and we’ve held meeting after meeting. But we have not, before today, brought forward a resolution to refer the situation in Syria to the International Criminal Court. We have not done so because we were afraid that it would be vetoed.

But the victims of the Assad regimes’ industrial killing machine and the victims of terrorist attacks deserve more than to have more dead counted. They deserve to have each of us, the members of this Security Council, counted and held to account. They deserve to have history record those who stood with them, and those who were willing to raise their hands to deny them a chance at justice. While there may be no ICC accountability today for the horrific crimes being carried out against the Syrian people, there should be accountability for those members of this Council that have prevented accountability…”

Let’s break this down.

Wreckage of a car in Kaheel village, Syria (Photo: Mohamed Fares/ Thomson Reuters)

Wreckage of a car in Kaheel village, Syria (Photo: Mohamed Fares/ Thomson Reuters)

First, Power explains that the US did not support ICC involvement in Syria because the US was “afraid” that any referral would have been vetoed. But that was never the driving force behind the US’s position. Just last September, Power intimated that ICC involvement would be futile. For reasons that can be debated (and will be debated when they are eventually clarified in public), the US believed that an ICC intervention could undermine ending the Syria civil war. It also worried that an ICC investigation into Syria might bleed into an investigation of Israel, which controls the Golan Heights. Continue reading →

Posted in International Criminal Court (ICC), Syria, UN Security Council, United Nations, United States | Tagged | 4 Comments

Argentina Slams UN Security Council Over ICC Referral, Entrenching Selectivity

Posted on May 27, 2014 by Mark Kersten
Ambassador Perceval (right) with US Ambassador to the UN, Samantha Power (Photo: UN Photo/Evan Schneider)

Ambassador Perceval (right) with US Ambassador to the UN, Samantha Power (Photo: UN Photo/Evan Schneider)

Some of the best responses to both failed and successful UN Security Council resolutions are seldom read or heard because they come from small or middle-power states and because they get lost in the fray of big-power rhetoric. Just one notable example is Brazil’s insistence, following both the Security Council’s referral of Darfur (2005) and Libya (2011) to the International Criminal Court (ICC), that exempting citizens of non-states parties fundamentally undermines the ICC as an institution and international criminal justice as a project.

Last week, in response to the failed referral of Syria to the ICC, Argentina’s Ambassador to the UN, Ambassador María Cristina Perceval lambasted the Security Council. But she did so not simply for its failure to refer Syria to the Court. Instead, Perceval slammed the Council for its insistence in propagating referrals which undermine the ICC and which entrench a system of uneven, selective justice. In doing so, Perceval covered many of the key – and crucial – concerns within the proposed referral. Below is the relevant section of her hard-hitting and eloquent statement. Hopefully the Security Council – and the ICC itself – take note.

Following our political resolve, our ethical responsibility and respect for international law, Argentina voted in favour of the referral of the situation in Syria to the ICC. Our sole, firm and clear objective was the investigation and prosecution by the Court of perpetrators of crimes under the Rome Statute and the recognition of the inalienable right of victims to “truth, memory, justice and reparation”.

But at the same time Argentina decided not to cosponsor this initiative, because it was also our objective to preserve the integrity of the Statute, which requires that referrals by this Council be formulated in the adequate terms so as to not to undermine the legal foundations of the Rome Statute or its validity as well as the Court’s effectiveness.

Mr. President,

On the one hand, there seems once and again to be the purpose that we accept the exercise of selectivity when it comes to justice; that we are not surprised that faced with comparable situations where heinous crimes are committed are considered to be susceptible of being referred to the Court while not others.

On the other, there seems to be the purpose that we accept the belief that undermining the integrity of legal instruments does not in any way hinder the objective of achieving justice. Sometimes recourse is made to very sophisticated arguments, although mainly applying the pragmatic principle that the end justifies the means. But we learned from experience that not every means leads to the objective sought.

To Argentina, as well as many other Members, normal recourse to arbitrariness, legal regression and pragmatism without values are not valid options.

In our view, every heinous crime has to be taken to justice, wherever it is committed and by whomever. Just as with human rights it is not possible to maintain we respect some but not others, we cannot maintain we defend the applicability of some provisions of a norm, but not its entirety.

Mr. President:

Already in 2005, when this Council adopted Resolution 1593 (2005) referring the situation in Darfur to the ICC and being Argentina one of its members, we maintained that certain elements of the resolution should not become permanent. But today we face the same scenario, as the text of the draft: a) reflects the intention that the referral dealt with today affects certain subjects while not others; b) it admits exemptions from the material scope of the Court’s jurisdiction and from the obligation to cooperate with the Court, and c)it includes a provision indicating that the Council “recognizes” that the expenses arising from this referral will not be defrayed by the United Nations but by States Parties to the Rome Statute or voluntary contributions, thereby contravening the provisions of the Rome Statute.

Is it necessary to remind that the Security Council has the power to oblige all Members of the United Nations -Parties and Non Parties to the Rome Statute- to cooperate with the Court?

It is disappointing that this Council does not put that ethical obligation into practice.

Continue reading →

Posted in Argentina, International Criminal Court (ICC), Syria, UN Security Council, United Nations | Tagged | 3 Comments

The Security Council’s Appalling Record of Referring Situations to the ICC

Posted on May 23, 2014 by Mark Kersten

With the backdrop of the failed referral of Syria to the International Criminal Court (ICC), Jonathan O’Donohue joins JiC for this very timely and critical take on the Security Council’s record of (not) referring situations to the ICC. Jonathan is a legal advisor in the International Secretariat of Amnesty International. 

(Photo: China.org.cn)

(Photo: China.org.cn)

Yesterday, China and Russia vetoed a Security Council resolution to refer war crimes and crimes against humanity committed in the conflict in Syria to the Prosecutor of the International Criminal Court (ICC). Their decision is a massive setback to efforts to ensure international justice for the Syrian people and the international initiative to end impunity for such crimes.

The failure of the resolution sends a dangerous message to all sides of the conflict in Syria that, despite the rhetoric by the UN Security Council on “the need to end impunity”, they can continue to commit horrific crimes with no real or immediate risk of being brought to justice.

This is the first time a referral has been vetoed and the Security Council has in the past referred Darfur and Libya to the Prosecutor. However, statements delivered following yesterday’s vote show that its permanent members are currently deeply divided on the issue of referrals. Therefore, it may be a long time before we see another referral to the ICC Prosecutor. If that is the case, there are many other situations where crimes are currently being committed with impunity in countries that have not ratified the Rome Statute that will be beyond the reach of the ICC.

The double veto does nothing save seek to protect those in the Syrian government, its armed forces and the armed groups from international justice. Russian officials stated that a referral would be “counterproductive” to efforts to resolve the conflict, ignoring the fact that since 2011 war crimes and crimes against humanity have been committed with complete impunity. There is no end in sight to the bloodshed. The referral would no doubt have been met with a strong reaction from the Syrian government and armed groups participating in the conflict who currently benefit from impunity. But it may have forced the individuals who are orchestrating, planning and ordering the crimes to think twice about continuing their actions and the consequences of doing so.

Russia also argued strongly, referencing the experience in Libya, that the proposed referral is an effort to lay the groundwork for outside military intervention. Without getting into the merits of its claims or calls for external military intervention, the Security Council should be able to take action under Chapter VII to refer situations to the ICC independently of any decisions it takes relating to the use of force. The military intervention in Libya was based on Security Council Resolution 1973, not on Resolution 1970 which referred the situation to the ICC Prosecutor.

Protesters in Turkey demonstrate against ongoing violence in Syria. (Photo: Reuters photo)

Protesters in Turkey demonstrate against ongoing violence in Syria. (Photo: Reuters photo)

Russia also implied that there are double standards within the Security Council regarding referrals. Here it was right to do so. The insistence by the USA that all referrals contain an exemption clause seeking to preclude the ICC from exercising jurisdiction over US nationals (and the nationals of other countries which have not ratified the ICC’s Statute) accused of crimes in those situations is unacceptable. The clause is inconsistent with the Rome Statute, which provides that the ICC can investigate and prosecute, regardless of nationality, all persons accused of committing crimes in a situation where it has jurisdiction, if there are no genuine national proceedings against them. It is therefore also at odds with one of the key purposes of the United Nations to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” But these clauses do not justify the decision to veto the Syria referral. Instead, the members of the Security Council should make a strong stand, as Argentina did yesterday, demanding that this language be removed from future resolutions. Continue reading →

Posted in Guest Posts, International Criminal Court (ICC), Syria, UN Security Council | 2 Comments