The Complementarity Turn in International Criminal Justice

Posted on September 30, 2014 by Mark Kersten
ICC DRC

Former ICC Chief Prosecutor Luis Moreno-Ocampo in Ituri District, DRC (Photo: ICC)

It is no secret. The last few months and years have not been kind to the International Criminal Court (ICC). Fairly or not, the Court has been the target of a growing chorus of criticisms which insist that it unfairly targets African states and embodies the latest line of neocolonial tools imposed on weak states by the powerful West. In Libya, the ICC was left desperate and empty-handed in what was supposed to be its most recent legitimating exercise: i.e. intervening against the regime of Muammar Gaddafi. The Kenya cases – the first investigations opened by the Prosecutor’s office itself (rather than by referral from the UN Security Council or an ICC member-state) – are hanging by the thinnest of threads. Some of the Court’s biggest fish – like Joseph Kony and Omar al-Bashir, and the targets many expect should be in the Court – like Bashar al-Assad, seem more than comfortable evading justice. For adherents of the ICC, it isn’t a pretty picture.

One result of all of this calamity in the realm of international criminal justice has been a re-calibration of the expectations of what the ICC can – and cannot – deliver. This has happened not just within the halls of NGOs, academic institutions and political institutions like the UN but more subtly, within the Court itself.

Most notably, there appears to be a softening of the lofty rhetoric that the ICC can “end impunity” for war crimes, crimes against humanity and genocide. Instead, there is a nuanced but important shift towards maintaining that the ICC can contribute to ending impunity – not by prosecuting bad guys in The Hague – but by helping states prosecute perpetrators themselves.

As readers will know, a foundational premise of the ICC is that it acts in a complementary fashion to national jurisdictions. This is embodied within the Court’s principle of complementarity wherein the ICC can only investigate or prosecute crimes when the relevant state is unable or unwilling to do so itself. The Court’s first Prosecutor, Luis Moreno-Ocampo, famously exclaimed that the ultimate success of the ICC would be a world where there were no cases being prosecuted in The Hague because states were able and willing to prosecute international crimes themselves.

Kwoyelo Uganda

The judges of the ICD in charge of the Kwoyelo case (Justice and Reconciliation Project)

As the ICC has been unable to demonstrate that the majority of its warrants would be enforced, that it could have uncontroversially positive effects on the conflict and post-conflict situations in which it intervenes, and that it had the capacity to deter crimes or “end impunity”, the importance of the Court’s role in encouraging states to prosecute crimes themselves has achieved a new level of relevance.

Again, this is a nuanced shift. Complementarity has always been a core element of the ICC’s mandate. So-called “positive complementarity”, wherein the ICC galvanizes domestic interest and capacity to prosecute crimes, was placed centrally in the Office of the Prosecutor’s 2009-2012 prosecutorial strategy. But what we are witnessing now is a move from an expression of complementarity as a principle that differentiated the ICC from previous tribunals (especially the Rwanda and Former Yugoslavia tribunals) and a lofty end-goal, to entrenching complementarity as a current, primary and strategic goal of the the Court.  Continue reading →

Posted in Complementarity, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | 5 Comments

Justifying Justice: Verdicts at the ECCC

Posted on September 16, 2014 by Mark Kersten

Kirsten Ainley, an Assistant Professor of International Relations at the LSE and the Director of the Centre for International Studies, joins JiC for a guest-post on the recent verdicts at the Extraordinary Chambers in the Courts of Cambodia. Kirsten has published on the politics of war crimes trials, transitional justice, the International Criminal Court and responsibility for atrocity. She is currently editing a book evaluating transitional justice in Sierra Leone.

(Photo: Khmer Times)

The ECCC. (Photo: Khmer Times)

The Judgment in the first phase of Case 002 at the Extraordinary Chambers in the Courts of Cambodia (ECCC) was received with fanfare and considerable hyperbole on 7 August 2014. At a press conference to mark the verdict, David Scheffer, UN Secretary-General’s Special Expert on UN Assistance to the Khmer Rouge Trials, announced that: “Today, the winds of international justice swept though the fields, forests, and towns of Cambodia where millions perished.”

After a conflict that killed a quarter of the population of Cambodia and caused incalculable damage to its society, two defendants, Khieu Samphan and Nuon Chea, were found guilty of crimes against humanity relating to the forced transfer of millions of civilians and the extermination of deposed Khmer Republic officials during the Khmer Rouge’s evacuation of Phnom Penh and other urban areas in 1975. It has taken the ECCC more than 8 years and more than $200m to get to this point (and the case is not over yet – the recent verdict is only for a limited number of charges. Case 002 was split to enable efficient handling, with the second part of the trial just started). The first phase of the trial lasted 222 days, included testimony from 92 individuals and 166,500 pages of written evidence, and was attended by over 100,000 people. So, was it worth it? As a follow-up to my previous critique of the ECCC, this post assesses initial responses to the verdicts in Case 2.

The responses I focus on below are from, for the most part, Western politicians, lawyers and NGOs. This is not to suggest that responses from Cambodians are unimportant – just that my focus here is on the way the Cambodian case plays into or disrupts the dominant discourse on international justice propagated by predominantly Western commentators. This discourse, as demonstrated by Leslie Vinjamuri, has moved from a focus on justice as intrinsically valuable towards claims that justice is instrumentally valuable because of the goods it can deliver. The outcomes or consequences of justice that are most frequently asserted are deterrence and peace, on the one hand, and democracy and rule of law, on the other. Much work has been done recently to provide evidence for these outcomes. For instance, Katherine Sikkink claims that prosecutions for human rights abuses deter future human rights violations, and Olsen, Payne and Reiter claim that transitional justice mechanisms have a positive effect on human rights and democracy measures.

Reactions to Case 002 at the ECCC are of particular interest because of the paucity of democracy and respect for human rights in contemporary Cambodia. Claims that justice has had instrumental value there would be very hard to substantiate. So what do its supporters claim? Early analysis shows that, in the absence of strong claims to make about the instrumental value of justice, proponents revert to making claims about its intrinsic value. Critics of the Court also focus on the intrinsic qualities of justice (criticising the court for delivering a poor quality of justice or too little justice) but do not engage with questions of whether justice has brought positive consequences for democracy, the rule of law and so on.

As would be predicted by Vinjamuri, supporters of the ECCC made some, though rather weak, claims about the instrumental value of justice soon after the Case 002 verdict. For instance, Stephen Rapp (US Ambassador for War Crimes) said the verdict would deter future crimes by sending a message to future generations that ‘[a]nyone in a position of committing such crimes will know that “Their day of judgment will arrive. There is no escaping it in this life.”’ ECCC National Co-Prosecutor Chea Leang stated
that the ECCC process had been ‘good for Cambodia, the rule of law and democracy’ and Kip Hale (formerly of the Office of the Prosecutor at the ECCC) argued that ‘[m]any thousands of Cambodians personally witnessed a functioning court of law conducting transparent and fair trials while delivering justice’ and that ‘[t]hrough day-to-day interactions between Cambodians and internationals, the ECCC has trained many Cambodian lawyers, court administrators, and other professionals who will work in various Cambodian public and private sectors once the ECCC closes.’ However, the contemporary situation in Cambodia refutes claims that the ECCC has had a positive impact on democracy and the rule of law. The HRW World Report 2014 lists multiple HR violations on behalf of the ruling CPP government or its allies, including excessive use of force by the police in response to protests about the fraudulent national elections; widespread land-grabs by economically and politically powerful actors; violence from security forces towards people peacefully protesting these land-grabs; political imprisonment; arbitrary detentions; and frequent and large-scale abuses by the security forces which are allowed to go unpunished. In a sign of its concern, the UN HR Council has extended the mandate for the Special Rapporteur for Human Rights in Cambodia until Sept 2015.

Police crack down on garment factory workers seeking higher wages in Phnom Penh (Photo: Joe Freeman and Jethro Mullen / CNN)

Police crack down on garment factory workers seeking higher wages in Phnom Penh (Photo: Joe Freeman and Jethro Mullen / CNN)

Equally, there is no evidence that the ECCC has had positive effects even in the more narrow field of the Cambodian justice sector. The US State Department’s report on human rights in Cambodia in 2013 found that: ‘A weak judiciary that sometimes failed to provide due process or a fair trial procedure remained a leading human rights concern as large portions of society were unable to receive fair adjudications of their legal concerns … The government prosecuted some officials who committed abuses, but impunity for corruption and most abuses by government forces persisted.’

In the absence of evidence of that the ECCC has instrumental value in Cambodia, rather than reassess their prior views of the value of the Court, supporters assert the intrinsic qualities of justice. Rapp, for instance, praised the verdict for recognising the death and suffering that victims and survivors had endured and argued that the ECCC had given Cambodians a lesson in their recent history. Chea Leang noted the participation of the Civil Parties and the attendance of the public (a position which assumes participation in justice is a good in itself) and Hale asserted that the verdict ‘has immense symbolic value’ both because it managed to place ‘formerly untouchable leaders in the dock’ and also because the grudging apologies or expressions of regret by defendants were ‘important cathartic moments for a still-healing nation’. The International Center for Transitional Justice (ICTJ) commended the role the ECCC played in giving ‘an opportunity for victims and civil society to contribute to shaping a shared narrative of the past’ and Craig Etcheson (formerly an investigator in the OTP at the ECCC) emphasized the ‘extraordinary cache of documents and testimonies’ amassed during the investigation and trial processes.

In short, supporters of the Court focused predominantly on the intrinsic value of justice, rather than its consequences. What about criticisms of the Court in the aftermath of the verdict? These, too, were directed at the quality or quantity of justice rather than its results. Human Rights Watch stated that ‘[t] he convictions of Nuon Chea and Khieu Samphan are too little and too late to save the Khmer Rouge tribunal from being regarded as a failure … The goal of justice for Khmer Rouge victims has been irrevocably tarnished by Prime Minister Hun Sen’s political interference, long delays, and pervasive corruption.’ Amnesty International expressed similar views: “the … refusal of senior Cambodian government officials to give evidence, as well as allegations of political interference in other ECCC cases, is troubling and raises concerns around the fairness of the proceedings and respect for victims’ right to hear the full truth regarding the alleged crimes.’ Continue reading →

Posted in Cambodia, Extraordinary Chambers in the Courts of Cambodia (ECCC), Human Rights, International Law, Justice, Transitional Justice | Tagged | 4 Comments

Laying the Law for a Future Syria

Posted on August 28, 2014 by Mark Kersten

The following is an interview conducted by Adrian Gallagher with Yasmine Nahlawi of the Syrian Legal Development Programme. Adrian is a lecturer at Leeds University and the author of Genocide and Its Threat to Contemporary International Order. 

(A man scours rubble in Aleppo. Photo: Pablo Tosco / AFP / Getty Images)

(A man scours rubble in Aleppo. Photo: Pablo Tosco / AFP / Getty Images)

2015 will mark the 10th anniversary of the World Summit Outcome which endorsed the Responsibility to Protect (R2P) agreement. R2P embodies a three-fold responsibility:

1. ‘Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.

2. Second, ‘the international community should as appropriate, encourage and help states to exercise this responsibility’.

3. Third, if the state in question is deemed to be ‘manifestly failing’ to protect its population from genocide, war crimes, crimes against humanity, and ethnic cleansing then the international community, ‘through the United Nations’ has a responsibility to use coercive and non-coercive measures in a ‘timely and decisive manner’ under Chapters VI, VII, and VIII of the UN Charter on a ‘case-by-case’ basis.

Against this background, the on-going crisis in Syria – which clearly fits within the remit of R2P – has led critics to question whether ‘Syria marks the death of R2P as a viable, functional concept’.2 Analysts began to debate its demise.3 Amidst this debate, UN Special Advisor on the Responsibility to Protect, Dr. Jennifer Welsh, has stressed the need to recognise that there are actors in international society, other than the UN Security Council (UNSC) which can help facilitate the R2P.4 This is not to downplay the failings of the UNSC but to highlight that if we look beyond it, we may see the valuable role being played by other actors as they strive to help protect civiliansin Syria. It is with this in mind that I takes this opportunity to interviewed Yasmine Nahlawi (YN) the External Affairs Director of the Syrian Legal Development Programme The following is a transcript of our discussion.

Adrian Galagher (AG): Can you tell us a little bit about your organisation?

Yasmine Nahlawi (YN): We are a Manchester-based non-aligned and non-governmental organization that promotes and disseminates legal education (most particularly but not limited to international law) to enable the Syrian people to work towards a Syria that is premised upon human rights and the rule of law. We do this through a combination of educational media segments (both radio and video) as well as on-the-ground training workshops, and currently focus on three main areas of public international law (PIL), international humanitarian law (IHL), and international human rights law (IHRL). Our PIL programme, for example, is aimed at helping Syrians to contextualise their situation within the wider international legal framework and to understand why and how certain measures are being imposed upon their country (for example, what is the Security Council, and what is its significance in authorising international action on Syria? What is asylum, and what does it mean to be a refugee?). The IHL programme is targeted at non-state armed groups and wider civilian population to facilitate an understanding of the basic laws of war, with hopes that such awareness will help to minimise the adverse consequences of the conflict upon civilians and state infrastructure. Finally, our IHRL programme is designed to create an understanding of the rights and responsibilities of the governing and the governed, enabling the Syrian people to hold their governments accountable for securing them their basic rights.

We operate from the premise that an informed civil society in which citizens are aware of their rights and responsibilities is most conducive for a successful post-conflict rebuilding process. We also infuse our programmes with cultural, linguistic, and religious elements to increase the receptiveness towards our work. In carrying out our work, however, we do not advocate for any specific solution, nor do we seek to impose our own vision of what should happen in Syria. Rather, our sole purpose is to disseminate knowledge of the law among the Syrian people to enable them to make informed decisions when charting the future of their country.

AG: Why do you identify yourself as a non-aligned, non- governmental organisation?

YN: Our commitment as an organisation lies to the Syrian people. A number of Syrian organisations are already working towards specified political solutions for the crisis, or, with respect to states, each is pursuing its own national interest in the country and wider region. We are not interested in engaging in the debate of what should happen in the immediate or long-term future of the country. Rather, we are keen on ensuring that the Syrian people are in a position to understand and engage with the legal issues that are most pressing to their current situation, but also to appreciate the globalised nature of the international legal order and determine what role they envision their country assuming within it. In our role as education providers, we strive to ensure that we are neutral and independent so that we can best accomplish these goals.

AG: What do you think are the key challenges facing the Syrian crisis and how are you addressing these in your approach?

YN: Primarily, the fragmented nature of Syrian society, combined with the international community’s failure to take meaningful action to alleviate the current situation, has led to the deterioration of confidence in any sort of authority, inclusive of the state, opposition groups, and international bodies (most notably the UN Security Council). This lack of acceptance or recognition of any sort of authority has severe implications for Syria’s future. It has already led, for example, to the proliferation of ad hoc legal systems (both civil and religious-based) as well as the multiplication of armed groups. It could also lead to a Libya-like scenario in which armed groups refuse to lay down weapons in the post-conflict phase, thus making it extremely difficult to establish law and order. Continue reading →

Posted in Guest Posts, International Law, Justice, Syria | Tagged , , | 2 Comments

International Justice and ISIS – An ICC Intervention in Iraq?

Posted on August 18, 2014 by Mark Kersten
Young men are covered in dust as they flee violence in northern Iraq (Photo: Rodi Said / Reuters)

Young men are covered in dust as they flee violence in northern Iraq (Photo: Rodi Said / Reuters)

Despite ongoing violence and the alleged massacre of eighty Yazidi men in northern Iraq by Islamic State militants, there is remarkably little debate about whether or not the deteriorating situation in northern Iraq should be referred to the International Criminal Court (ICC). But if violence continues, it should be expected that the murmur of voices calling on events in Iraq to be investigated by the ICC will grow. In some respects, the unfolding crisis and conflict in northern Iraq is tailor-made for an ICC intervention. But what would such an intervention look like?

It is important to keep in mind that Iraq is not a member-state of the ICC. As a result, the Court cannot investigate current events in northern Iraq without a United Nations Security Council referral. However, despite it not being a member-state of the ICC, it is also important to remember that the Court is already investigating events in Iraq. Specifically, investigators are examining a trove of evidence suggesting that officials from the UK (which is an ICC member-state) are responsible for the commission of mass human rights violations in Iraq between 2003 and 2008. But, again, because Iraq itself is not a member-state of the ICC, the Court does not have jurisdiction to investigate, let alone prosecute, other crimes committed on Iraqi territory.

One might be tempted to argue that, because of the UK and US’s 2003 invasion of Iraq and the incessant allegations that individuals from both states committed international crimes during that time, these permanent, veto-wielding UN Security Council member-states would be loathe to refer Iraq to the ICC. Indeed, this might even explain some of the radio silence regarding a referral of Iraq to the Court.

There is no doubt that Western citizens allegedly responsible for crimes committed in Iraq should be held accountable – and it is a welcome sign that these crimes are currently being investigated the ICC. But those allegations can be held separately from the alleged atrocities currently being committed in the north. As they have in the past, UN Security Council states could tailor a referral to ensure that any ICC investigation be strictly focused on recent events in northern Iraq. Of course, whether or not they should is another matter.

The 2011 referral of Libya to the ICC restricted the Court to investigating crimes committed since 15 February 2011. This had the effect of shielding Western states from scrutiny or investigation for their role in rehabilitating the regime of Muammar Gaddafi and entering into nefarious political, economic and intelligence relationships with him.

An ISIS convoy in Iraq (Photo: AP)

An ISIS convoy (Photo: AP)

The UN Security Council’s referral of the situation in Darfur to the ICC in 2005 provides a precedent for restricting an ICC investigation to a specific region – rather than an entire state. So too does the 2003 referral of northern Uganda to the Court (albeit after the Government of Uganda first sought to refer the Lord’s Resistance Army to the ICC).

There should be no doubt that any Security Council referral of Iraq to the ICC would seek to constrain both the temporal and spacial jurisdiction of the Court. This is how the political relationship between the Council and the Court works. Certain states (i.e. Russia and, to a lesser extent, China) won’t want an ICC investigation leaking into neighbouring states (i.e. Syria). Other states (i.e. the UK and the US) won’t want an ICC investigation delving into events in the rest of Iraq and into the past.

Crucially, there exists a broad consensus that ISIS is beyond the pale. The militant group and its allies do not need to be additionally demonized for a consensus about their savagery to emerge. The Security Council has already passed a resolution which levied targeted sanctions against six individuals associated with ISIS and Al-Nusra Front. The Council took the unusual step of immediately naming its targets and noted, of ISIS and the Al-Nusra Front, “the negative impact of their violent extremist ideology and actions on the stability of the region, the devastating humanitarian impact on the civilian populations and the role of these groups in fomenting sectarian tensions.” Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS | 12 Comments

Rough Justice: A Review

Posted on August 14, 2014 by Mark Kersten
(Photo: John Sinden / American University)

(Photo: John Sinden / American University)

I recently had the opportunity to review David Bosco‘s Rough Justice – The International Criminal Court in a World of Power Politics, for the Journal of International Criminal Justice. Bosco’s is one of the best books published on international criminal justice to date. I highly encourage anyone and everyone interested in the politics of the International Criminal Court (ICC) and international justice more broadly to read the book.

Here’s a snippet of the review:

Despite a growing body of literature on the politics of the International Criminal Court (ICC), remarkably little is known about how states view and engage in the project of international criminal justice. Even less is known on how the ICC relates to states, state power and how this shapes its decision-making.

David Bosco’s Rough Justice is one of — if not, the — most significant contributions to understanding relationships between states and the ICC in recent years. Impressively researched, accessibly composed and cogently argued, Bosco — an Assistant Professor of International Politics at American University — skilfully lays out a political history of the Court that not only elucidates why and how powerful states engage with the ICC but also how the Court manages its relations with the states upon which its legitimacy and effectiveness depend.

The primary aim of Bosco’s monograph is to interrogate major power relations with the ICC. How can the differential engagement between major powers and the ICC be explained? How should changes in the engagement of specific states with the Court be understood? How does the ICC prosecutor respond to the political interests of states? To answer these questions, Bosco offers a conceptual framework for analysing and assessing relations between states and the ICC.

Bosco suggests that major powers display one of four types of strategies in their engagement with the Court: active marginalization, passive marginalization, control or acceptance. What makes Bosco’s work unique is his subsequent consideration of the feedback in the relationship between powerful actors and the ICC, namely the prosecutor’s behaviour towards states. As Bosco observes, the ‘singular focus’ on how major powers interact with the ICC is ‘characteristic of much scholarship on international institutions’. This occludes, however, the interaction between the institutional interests of actors like the Court and the political interests of states. Bosco maintains that the prosecutor can respond to state strategies towards the Court by assuming its own strategic positions, which he describes as: apolitical, pragmatic, strategic or captured behaviour. Continue reading →

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

Both Israel and Hamas have a Responsibility to Protect Civilians

Posted on July 25, 2014 by Mark Kersten

This is the sixth and final post in our symposium on Palestine, Israel and the Responsibility to Protect. The other contributions can be found here, here, here, here, and here. Simon Adams is the Executive Director of the Global Centre for the Responsibility to Protect.

R2P Israel Palestine Gaza

(Photo: Amir Farshad Ebrahimi / Creative Commons)

There is arguably no conflict in the world as politically polarising as the one between Israel and Palestine. While the conflict has been on the agenda of the United Nations since at least 1947, it wasn’t until 2005, at the UN World Summit – the largest assembly of heads of state and government ever convened – that the “Responsibility to Protect” (R2P) was unanimously adopted as a means of protecting people from four mass atrocity crimes – genocide, crimes against humanity, war crimes and ethnic cleansing. The current crisis in Gaza has posed difficult and proximate questions for some of R2P’s advocates, raising awkward issues regarding selectivity, sovereignty and responsibility in Israel and the Palestinian Territories.

At the heart of R2P is a global commitment to protect people, regardless of ethnicity, religion or statehood (or lack thereof), from crimes that offend and diminish us all as human beings. This means, as UN Secretary-General Ban Ki-Moon insists, that the Responsibility to Protect applies everywhere and at all times. That includes Israel and Gaza.

But there is also a requirement for political and legal precision. As the Gaza crisis escalated in mid-July, the Global Centre for the Responsibility to Protect began closely monitoring the situation and assessing whether the human rights abuses being perpetrated had elevated to the level of mass atrocity crimes. When we released a public statement on Thursday 17 July, right as the temporary five-hour “humanitarian ceasefire” ended in Gaza and armed hostilities between Israel and Hamas resumed, we argued that attacks on civilians and civilian property in Gaza and Israel violate international humanitarian law and may constitute war crimes.

The distinction between military and civilian targets is central to international humanitarian law and must be adhered to regardless of where a conflict is occurring, or whom it is occurring between. With ongoing rocket attacks on Israel and unrelenting retaliatory airstrikes in densely populated parts of Gaza, both Hamas and the Israeli government appeared to be potentially violating the fundamental laws of war.

At the time of our statement, Palestinian armed groups operating in Gaza had launched more than a thousand rockets into Israel, with most aimed towards residential areas. These rocket attacks were indiscriminate and fired with the deliberate intention of killing or wounding civilians and destroying civilian infrastructure. As such they were war crimes, despite the fact that the inaccuracy of the rockets and the effectiveness of the Israeli “Iron Dome” defence system had kept Israeli civilian fatalities to a minimum. Responsibility for the rockets lay with Hamas, which is clearly the controlling authority in Gaza and is culpable for the attacks.

In our statement we also addressed the issue of Israel’s ongoing military operations in Gaza and the grave consequences for Palestinians living there:
“In declared retaliation for these rocket attacks the Israeli Defense Forces (IDF) appear to have imposed collective punishment upon the people of Gaza, with more than a week of sustained airstrikes killing at least 160 civilians and wounding 1,500 people. At least 44 children have been killed and more than 430 injured. More than 1,600 homes have been destroyed and 79 schools damaged. The UN estimates at least 22,600 Palestinian civilians are now sheltering in UN facilities in Gaza.”

Israel’s response to the rocket attacks appeared to be unlawful and was clearly inflicting extreme hardship and death upon Palestinian civilians. While Israel had a right to defend itself against rockets raining down upon its cities, issues of proportionality and distinction (discriminating between civilian and military targets), appeared to have been repeatedly violated by the IDF. Although Hamas and its allies were using some civilian structures to hide rockets and launch attacks, international law still required that the IDF strike at Hamas and other Palestinian armed groups in a way that intentionally minimised the loss of civilian life. Israel insisted that it was exercising due care, but the mounting civilian death toll, including the sickening deaths of four boys innocently playing soccer on a Gaza beach, seemed to indicate recklessness rather than precaution and precision. Continue reading →

Posted in Israel, Palestine, Palestine and R2P Symposium, Responsibiltiy to Protect (R2P) | Tagged , , | 1 Comment

R2P Isn’t a Useful Framework for Gaza – Or Anything

Posted on July 25, 2014 by Mark Kersten

This is the fifth part in our symposium on Israel, Palestine and the Responsibility to Protect. The other contributions can be found here, here, here, and here. David Rieff is a writer and journalist. He has authored dozens of articles and is the author of many books, including A Bed for the Night: Humanitarianism in Crisis (2003), Against Remembrance (2011) and The Reproach of Hunger (Forthcoming 2015). 

Israel Palestine R2P

An Israeli soldier and a reporter take cover from rocket fire in Sderot in 2008 (Photo: Amir Farshad Ebrahimi / Creative Commons)

It is important distinguish between two questions posed in this online symposium, the first being whether R2P is applicable to the war now going on in Gaza and the second being whether looking at the conflict through the lens of R2P is helpful or counter-productive?

There is simply no absolutely clear-cut answer to the ‘applicability’ question. R2P only applies to intra-state wars. However, as Gaza is part of the internationally-recognized State of Palestine, the conflict between Israel and Hamas is formally an inter-state conflict. On the other hand, since apart from the commerce that takes place through the smugglers’ tunnels under the Rafah border crossing with Egypt, Gaza is wholly cut off from the outside world as demanded by Israel. The Israeli government controls movement in and out by land, sea, and air, making the citizens of Gaza wholly dependent either on Israel directly or on essential goods and services trans-shipped through the Jewish State. A strong case can thus be made that Israel remains the de facto occupying power, even if it has no longer been the de jure one since it closed its military bases, dismantled its settlements, and ceased its participation in the joint Israeli-Palestinian Erez Industrial Zone in September, 2005.

Assuming R2P does apply, or at least could be applied without traducing the spirit of the 2005 World Summit Outcome Document, is that the same thing as saying that R2P is a helpful of way not just of framing the conflict but of trying to think through at least how to halt the atrocities and war crimes now being committed against civilians, mainly by Israel but by Hamas as well, or at least lessen their toll as the fighting continues? It is worth remembering that R2P was explicitly referred to in 2011 in United Nations Security Council Resolution 1970, which, along with a successor resolution (UNSC 1973) set the stage for the UN-authorized NATO intervention in Libya. While it may have begun as an ‘R2P compliant’ effort to protect civilians, NATO’s intervention in Libya soon became an exercise in regime change. All roads to hell are indeed paved with good intentions, but the particular road named R2P has already proven to be especially and opulently well paved with them!

Whatever the intentions, though, even assuming that R2P applies to the latest round of fighting in Gaza, the disadvantages of viewing events in Gaza through its prism should be obvious. It should be clear from the Israeli government’s dismissive responses to criticisms of the way it has conducted its assault in Gaza from the UN and from relief, development, and human rights NGOs, that the various non-military international responses and sanctions available under R2P would have no effect, even assuming the major EU governments would be prepared to join in them – which they most decidedly are not. As for the military response permitted under R2P, it could not fulfill the so-called reasonable prospect of success criterion that is one of the six threshold questions that all must be answered in the affirmative in order to justify a coercive intervention. Israel, lest it be forgotten, is a nuclear power. In any case, the question is purely academic since an armed intervention under R2P requires a UN Security Council resolution, which, in the infinitesimal chance that such a resolution were ever allowed to be put on the table would, without the slightest question or doubt, be vetoed by the United States.

To be sure, an advocate of invoking R2P with regard to what is now taking place in Gaza might argue that if its practical utility is nil, using it as a moral and legal frame for the conflict has a certain rhetorical value. But this seems quite far-fetched to me. Given the profusion of available images of what is going on in Gaza, many of which continue to appear on social media in real time, those who believe that Israel is committing mass atrocity crimes in Gaza have no need whatsoever of R2P to buttress their case. And it is hardly as if the relevant UN specialized agencies, most importantly UNRWA and the Office of the High Commissioner for Human Rights, but a number of others as well, or mainstream relief, development, and human rights NGOs need R2P in order to find the courage to denounce what is taking place. To the contrary, if there was a correlation between denunciation of war crimes and their cessation, the war would have been over days – or perhaps even years – ago. Continue reading →

Posted in Israel, Palestine, Palestine and R2P Symposium, Responsibiltiy to Protect (R2P) | Tagged , , | 4 Comments

Gaza and Israel – A Case for International Humanitarian Law, Not R2P

Posted on July 24, 2014 by Mark Kersten

This is the fourth contribution in our symposium on Palestine, Israel and the Responsibility to Protect. The first three can be found here, here and here. James P. Rudolph is an attorney in Washington, D.C. and California where his work focuses on international law. He is a regular contributor to JiC. 

(Photo: IDF / Creative Commons 2.0)

(Photo: IDF / Creative Commons 2.0)

The Responsibility to Protect (R2P) initially appeared in the Report of the International Commission on Intervention and State Sovereignty. The goal was, and remains, the reconciliation of the traditional concept of sovereignty, which involves exclusive control and supremacy over a defined territory, and the more modern notion that the sovereignty of a state includes the primary responsibility to protect its own people.

This notion of sovereignty has, by and large, been adopted by the international community, and is now enshrined in the so-called “three pillars” of R2P. First, the State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing; second, the international community has a responsibility to encourage and assist States in fulfilling this responsibility; and finally, the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action in accordance with the Charter of the United Nations.

With respect to the ongoing conflict in Israel and Gaza and applying the first pillar, the issue is whether any of this is dispositive. Are we, in other words, witnessing genocide, war crimes, crimes against humanity or ethnic cleansing? If we are not, R2P does not apply. Notwithstanding comments from Turkish Prime Minister Recep Erdogan that Israel is “committing genocide”, most people would likely conclude that Israel is not engaged in any kind of genocidal behavior. In the same vein, it appears doubtful that anybody would seriously claim that ethnic cleansing is occurring. Thus, the question is whether Israel is (or has) engaged in war crimes or crimes against humanity, the two remaining crimes recognised under the R2P rubric.

A crime against humanity requires that certain acts — murder, enslavement, deportation, imprisonment, torture, rape — must be directed against a civilian population, and that they be part of a widespread or systematic attack.  Widespread means massive, large-scale action, whereas systematic means part of a preconceived policy. Israel’s response to the rockets from Gaza certainly has had consequences for Palestinian civilians, many of whom have been children. But none of these acts are occurring in Israel itself (if, indeed, they are occurring at all). R2P means that Israel has a responsibility to protect its own population from crimes against humanity. We are thus left with war crimes.

There may be a convincing argument that Israel’s self-defense has become excessive, and this would have ramifications under the laws of war (Geneva Conventions and customary international law). But, if anything, this is being directed at Hamas and Gaza.  Stated differently, neither Israel nor Gaza is engaging in excessive force against its own population, so R2P, while an attractive prism through which to view the conflict, seems not to apply.

With respect to pillar two, moreover, the international community has been assisting both Israel and the Palestinians to fulfill their obligations under R2P,as evidenced by the recent Egyptian-sponsored cease-fire that was rejected by Hamas. Interestingly, this assistance has included diplomatic, humanitarian and other means to protect populations from these crimes. Accordingly, the use of force, which is contemplated under pillar three, is altogether inappropriate at this juncture, as it is to be used as a last resort after the state has manifestly failed to protect its own population. This is all to say that R2P has not, and likely will not, be triggered by this recent conflict.

Who has the responsibility to protect civilians in this ongoing war?

Civilians are, of course, protected by R2P. Indeed, the raison d’être of R2P is the protection of civilians. But, as noted above, R2P probably does not apply to the current conflict in Israel and Gaza. This is not to say, however, that civilians are devoid of any protection. International humanitarian law, the purpose of which is the protection of those who do not or cannot take part in armed hostilities, is considered the human rights component of the law of war, and it is codified in the four Geneva Conventions of 1949 and the two 1977 Protocols Additional to these treaties. (These conventions are also considered customary international law). The Fourth Geneva Convention, to which Israel is a party, deals with the protection of civilians during war.  In each of the four Geneva Conventions, the High Contracting Parties assume a large number of obligations for the benefit of the protected persons. Article 33 of the Fourth Geneva Convention, for example, outlaws collective punishment, defined as mass punishment without an individual assessment of guilt. The Fourth Geneva Convention also imposes on signatories various due process requirements for trials and sentencing.  Furthermore, the Geneva Conventions provide for a system of supervision administered by the so-called Protecting Powers, which, by and large, means the International Committee of the Red Cross. Continue reading →

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In Palestine, R2P Isn’t Dead. It Could Never Have Existed.

Posted on July 24, 2014 by Mark Kersten

This is the third post in our symposium on Palestine, Israel and the Responsibility to Protect (the others can be found here, here and here). Michael Kearney is a Lecturer in Law at the University of Sussex and has written extensively on Palestine and the International Criminal Court.

(Photo: AP / Creative Commons)

(Photo: AP / Creative Commons)

My response to students’ queries on the matter of Responsibility to Protect (R2P) has generally been that the whole narrative is a bit of a distraction: R2P merely repackages a principle that already existed, namely that states have a moral – and kind of legal – obligation to act in the face of genocide and widespread human rights abuses. The ultimate sanction against a state engaged in such abuses, the use of armed force in order to protect civilians at risk, is on the R2P table, but remains subject to Security Council approval. So, R2P gives us a significant statement of intent and principle on behalf of the international community, but means very little in practice and cannot be considered as having changed international law.

As a student when R2P became a hot topic, around 2003/4, most activists were focused on Palestine and Iraq, which we saw as major human rights issues. R2P, though clearly important, was generally perceived by us as a diversion from the immediate concerns. A non-confrontational, inherently establishment and liberal- friendly north American, ‘lets make the world nice’, kind of movement, not unlike the weird ‘Stop Kony’ fad of several years later. Rather than try and fight abuses by holding power to account, R2P proponents developed a safe ‘protest’ type discourse-conversation with neo-liberal governments, essentially limited to asking them to sort out the bad guys.

We are now asking why R2P isn’t being applied to Palestine today. In reality, it never was –not at its inception and not since. The second (al Aqsa) Palestinian intifada against Israeli occupation began in September 2000, while the original International Commission on Intervention and State Sovereignty (ICISS) report on R2P was published in December of that year. Throughout the second intifada, the invasion of Afghanistan and the invasion of Iraq, R2P supporters had nothing of consequence to say about any of this. Their enthusiasm and focus was squarely on Darfur, sometimes stretching to Burma and Zimbabwe. Those were, in keeping with the R2P paradigm, the classic bad guys. Those places were seen to have no veneer or hint of liberal democracy, unlike, for example, ‘very democratic Israel’.

I have done a search for ‘Palestine’ through the journal Global Responsibility to Protect. Only having access to issues from 2012, but Vols 1-3, 2009-11, I found a total of four mentions of ‘Palestine’ in ‘the premier journal for the study and practice of the responsibility to protect (R2P)’.

Forgive the speculative generalisation, but this capacity to not see certain massacres, while thinking that R2P could halt others, might be traced to a particular north American style liberalism, not entirely feasible in the culture on this side of the Atlantic. Such an approach can be seen in this statement made by Michael Ignatieff, academic and former leader of the Liberal Party in Canada, in which he frames the possibility and imagination of activism as so: ‘The best human rights activists can ever hope for is to keep democratic regimes honest and to shame undemocratic ones into being less brutal’.

Can political activists or legal scholars, reluctant to see the world in terms of a democratic/non-democratic binary, and who seek to further justice and human rights, think and imagine a little more broadly than this? One might suggest that the aims and purposes of the Boycott, Divestment, and Sanctions (BDS) movement against Israeli institutions allied to the occupation, actually chime nicely with the R2P narrative, i.e. placing sanctions on a state perpetrating widespread human rights abuses until such time as it lives up to its obligations under international law. It could then be that the function of R2P as per Palestine has operated for many years, and vigorously so, except under the grassroots BDS banner. This movement is distinguished from the formal, academic R2P set, insofar as it is aligned against power and the western liberal states, as well as against university managers and administrators, rather than being reliant on them1.

To speak of R2P as applying to Palestinians at all, one must accept that there is a need to protect a vulnerable population against genocide, war crimes, ethnic cleansing, or crimes against humanity. Many people and institutions, such as Canada, refuse to acknowledge that ethnic cleansing, apartheid, war crimes, or crimes against humanity are being, or could be, perpetrated by Israel. Continue reading →

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The Israeli-Gaza Crisis and the Responsibility to Protect: Does the Norm Apply?

Posted on July 23, 2014 by Mark Kersten

This is the second post in our symposium on Israel, Palestine and the Responsibility to Protect. Other contributions can be found here, here and here. Megan Schmidt is a Senior Program Officer at the International Coalition for the Responsibility to Protect. 

(Photo: Al Jazeera English / Creative Commons)

(Photo: Al Jazeera English / Creative Commons)

The present conflict in Gaza between Israel and Hamas has revived the complex debate on the applicability of the Responsibility to Protect (R2P) to this crisis. The central questions that make the norm’s relevance murky are: What is the status of Gaza? What entities have governing authority over and responsibility for the people of Gaza? And what does said governing mean in practice?

Such questions are important because R2P is first and foremost a political commitment and obligation of states to protect their own populations. The issue of governing authority over Gaza is one of great complexity with arguments to support views on all sides, showing the many grey areas that exist. This article in no way attempts to make a clear determination on the status of the territory or who holds governing authority, but rather seeks to present if and how R2P could or could not apply to the present crisis based on the stance one takes over Gaza’s status. Still, R2P’s applicability in this crisis, or any situation for that matter, does not trump the legal obligations parties already have, including those under international humanitarian law (IHL) and customary international law. Rather, R2P’s application could provide an additional framework for understanding the crisis, as well as an additional tool for advocacy by actors seeking to prioritise civilian protection.

What does the Responsibility to Protect entail and who has this obligation?

In the 2005 UN World Summit Outcome Document, heads of state and governments made a historic commitment to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. In addition to the primary responsibility of the state to prevent these crimes, including their incitement, R2P places an obligation on the international community to assist states in building their capacity for prevention. Should a state be unable or unwilling to protect their populations, or is in fact perpetrating the crimes itself, the international community has a responsibility to take timely and decisive action using a range of non-coercive and coercive measures, including force (as a last resort and only when authorised by the United Nations Security Council).

As the UN Secretary-General has stated, the emerging norm is narrow but deep – narrow in its limited scope to the four crimes and violations, but deep in the tools available for prevention and response. While not legally binding itself, R2P is grounded in existing legal doctrine and normative frameworks, with its added value resting in the re-framing of state sovereignty as not solely entailing the rights of the state but also its obligations to protect its people.

A last point critical in setting the stage for the discussion on Gaza and R2P is the norm’s relationship with international humanitarian law (IHL) – or the law of war. Rooted in international treaties and conventions, IHL sets out the legal obligations to parties in an armed conflict regardless of if that conflict is between states or happening internally, with violations of IHL amounting to war crimes. Such obligations are to protect civilians, as well as prisoners of war, the wounded or sick, and medical and religious personnel, among others. In addition to the protection of civilians, IHL sets out legal obligations to protect objects and infrastructure, including hospitals, cultural property, and ambulances. It also articulates the illegality of targeting infrastructure for the survival of the civilian population, such as water supplies. While mass atrocity crimes frequently occur during conflict, there are distinct differences with regards to scope and applicability of IHL and R2P. As stated earlier, the norm’s focus is restricted solely to the four crimes and violations and such atrocities can be committed in and outside of conflict, with IHL not applying to the latter. Additionally, while R2P includes war crimes as one of the four crimes and violations from which states are obligated to protect their populations, such crimes within the norm’s scope are limited to those directed against civilian populations and committed in a widespread and systematic manner. As such, crises will arise where IHL and R2P will both be applicable, but there will also be those in which R2P will not be relevant due to the nature of the conflict. This brings us to the question of the present crisis in Gaza.

The Question of Gaza’s status and R2P

Central to understanding R2P’s applicability in this present crisis is the question of Gaza’s standing as either an occupied or independent entity. This is in no way a clear-cut issue, and not one that this article seeks to determine. But what can be assessed is how the norm of the Responsibility to Protect could apply if one were to view the territory as occupied or not. A recent analysis by the International Coalition for the Responsibility to Protect reflects on the question of status and what this would mean for the obligations of parties involved.

To start, let us explore the argument of if Gaza were not considered an occupied territory. This position stems from the fact that, in 2005, Israel undertook a disengagement plan in which, some would argue, the state relinquished its occupation of Gaza. The territory was then seized by Hamas, which declared its authority as the governing entity. If one were to view Hamas as the governing authority, then under R2P, Hamas would have the obligation to protect its populations within its borders from the commission of the four crimes and violations, a responsibility that would also exist for Israel with regards to its populations residing within its territory. Such obligations would not, however, carry over into an inter-state crisis. As the ICRtoP states:

While both governing bodies would have the obligation under the Responsibility to Protect to prevent the commission of atrocity crimes within their borders, RtoP would not be applicable for the protection of civilians across borders in the crisis. IHL and the protection of civilians framework would be applicable in this context, legally obligating all parties to the conflict to ensure that civilians are not indiscriminately targeted or impacted.

Those obligations under IHL and customary law would place a range of legal restrictions on the actions of all parties to the conflict and include protections for populations from atrocity crimes, as well as from other violations. Continue reading →

Posted in International Law, Israel, Palestine, Responsibiltiy to Protect (R2P) | Tagged , , | 2 Comments