An Accountability Game-Changer? Canada opens structural investigation into atrocities committed in the Israel – Palestine war

Posted on June 4, 2025 by Mark Kersten
(Photo: Mohammed Zaanoun; Medical Aid Palestine)

Canadian authorities are conducting a structural investigation into war crimes and other atrocities committed in the Israel-Palestine war. First reported by journalist Ben Mussett, the news comes amidst mounting evidence of the intentional starvation of civilians in Gaza, the refusal of Hamas to return hostages, moves to build new (and illegal) settlements in the West Bank, and open calls among Israeli leaders to depopulate Gaza. The investigation marks the first time that Canada has dedicated tangible resources to investigating international crimes in Palestine and Israel.

Here’s what we know so far.

The RCMP opened the investigation in early 2024, just months after the 7 October 2023 attacks by Hamas, and amidst Israel’s ongoing siege on Gaza. 

A structural investigation collects and preserves evidence of war crimes, crimes against humanity, and genocide in a particular context without necessarily linking that evidence to specific perpetrators. Somewhat akin to a fact-finding mission, such investigations can collect evidence by reaching out to victims and survivors who have fled wars of atrocity events to gather their testimony. They can also include collecting open-source evidence such as videos or photographs.

States like Canada can use the evidence collected if an opportunity to do so arises, for example to support a prosecution of a perpetrator who enters onto their jurisdiction. Alternatively, they can share that evidence with other authorities – the prosecutors of allied states or bodies like the International Criminal Court (ICC). 

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Posted in Canada, Gaza, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC, Structural Investigation, Universal Jurisdiction | Tagged , | Leave a comment

It’s time for states to put their money – and Russian assets – where their mouths are

Posted on April 7, 2025 by Mark Kersten
(Photo: Richard Lautens / Toronto Star)

Given the presence of the Orange Man in the White House, defenders of democracy and the international rule of law can no longer count on the United States for support. Other countries need to step up. One way to do that is to finally act on forfeiting the assets of Russian oligarchs and companies and giving them to Ukraine. It is not Ukraine’s allies, but Russia, who should pay for its illegal war in Ukraine. 

For over two years now, Canada has talked a big game, claiming that it would freeze, seize, and forfeit the assets of private Russian entities and oligarchs and then turn them over to help Ukraine’s recovery. At first, there was some significant movement. In 2022, Canada restrained $26 million dollars held by a company, Granite Capital Holdings, owned by Vladimir Putin’s pal, Roman Abramovich. In 2023, it seized an enormous Antonov airplane from the Volga-Dnepr company. No state had ever tried to forfeit the assets of sanctioned persons before. But Canada had amended its Special Economic Measures Act and was poised to be a trailblazer.

The next step was to get judicial approval of the forfeiture of the assets and then send them to Ukraine. Yet the government has not even filed in court. Global Affairs Canada has refused to shed light on what’s happening and claimsthere is no timeline for action. In Ukraine, death and destruction continues.

Separately, announcements by Prime Minister Justin Trudeau on a recent trip to Kyiv have caused confusion: is Canada now going to seize Russian state assets to help Ukraine? So far, the answer is no. 

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The Past Roams in the Present: Transitional Justice, Fascist Cultural Property, and Mussolini’s Chicago Footprint 

Posted on March 25, 2025 by Mark Kersten

Mark A. Drumbl is Class of 1975 Alumni Professor of Law at Washington and Lee University, where he also directs the Transnational Law Institute. Many thanks to Ana Laura Coria for research assistance, and Inge Gruenwald, Barbora Holá, Mark Kersten, and Alex Klein for comments. All photographs – except for one, as indicated — are taken by the author.

The flight plan of Italo Balbo and the Italian Air Armada, from the Official Book of the Flight of Gen. Italo Balbo and His Italian Air Armada to a Century of Progress (1933); see https://www.publicbooks.org/balbo-monument-chicago-soldier-field/

Italian dictator Benito Mussolini gifted a fascist monument to the city of Chicago in 1934. It still stands, today, in public. I went to see it in early March 2025. I did so when I was in Chicago for the International Studies Association Annual Meeting. 

The monument was easy to find. It’s a twenty-minute stroll from the downtown Chicago Hilton Hotel, where the conference was held.

The story of this monument traces to 1933. In that year, twenty-four seaplanes left Mussolini’s Italy and flew, via several transatlantic stops, to the United States, notably, to the shores of Lake Michigan. These planes were commanded by Italian aviator Marshal Italo Balbo. Balbo was a member of the Blackshirts (fascist paramilitary). He was appointed Air Minister in 1929 and built the Aeronautica (the Italian Air Force). An avowed fascist, Balbo was central to Mussolini’s ascent to power. Mussolini also envied Balbo and saw him as a rival.  So, Mussolini conveniently sent him to Libya, where in 1934 he was named Governor-General of the then colony. Balbo was a key part of Mussolini’s colonial wars in Ethiopia, Libya, and Somalia. Balbo extensively bombed Ethiopia. Although Balbo opposed Mussolini’s alliance with the Nazis, Hitler celebrated his tactics. Balbo died in 1940 at the age of 44. He was reportedly downed by friendly fire over Libya. His remains, initially interred outside of the Libyan capital of Tripoli, were returned to Italy in 1970 after Libya’s then leader, Muammar Gaddafi, threatened to destroy all Italian cemeteries in the country.

(Photo: Mark Drumbl)
In 1934, Chicago held the World’s Fair (entitled the Century of Progress Fair). These World’s Fairs – precursors to the EXPOs – were a really big deal. In it, countries gathered to share their technological, artistic, and scientific innovations. The World’s Fairs were prowess flexes. Many people attended.

All of these threads weave together. The monument takes the form of a Corinthian column dedicated to the honor of Italo Balbo and his aviation accomplishments. Mussolini offered it to Chicago for the Century of Progress Fair. It arrived by boat. It is unsurprisingly called the Italo Balbo Monument. The Balbo Monument was warmly welcomed by Chicago officials, including the mayor, and dedicated on Chicago’s Italian Day in 1934. Erected for the Fair, and placed in front of the plane-shaped Italian Pavilion, the monument remained after the Fair shut down and the Pavilion packed up. The Balbo Monument, ironically, is the only fixed remnant of the 1934 Fair.

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Posted in Cultural Crimes, Fascism, Italy, Transitional Justice, United States | Tagged , , , , , , , | 1 Comment

Rodrigo Duterte’s “Drug War” Lands Him in The Hague: Some Initial Thoughts

Posted on March 12, 2025 by Mark Kersten
Former President of the Philippines, Rodrigo Duterte (Photo: AP)

The brazen and brash former President of the Philippines, Rodrigo Duterte, has been surrendered to the International Criminal Court (ICC), where he faces charges of crimes against humanity, allegedly committed during his so-called “drug war”. A warrant for Duterte was issued under seal earlier this week and communicated to authorities in the Philippines, who subsequently arrested Duterte upon his return from a trip to Hong Kong.

According to the warrant against Duterte, he is charged with murder as a crime against humanity. The ICC judges who authorized the warrant stated that “there are reasonable grounds to believe” that the attack against civilians in the Philippines  was a matter of policy under Duterte and “was both widespread and systematic: the attack took place over a period of several years, and thousands [of] people appear to have been killed”.

So, what does Duterte’s surrender mean and what happens next? Here are a few thoughts on this momentous development.

First and foremost, the arrest of Duterte is a vindication of what victims and survivors of Duterte’s “drug war” have insisted for many years: the former President is responsible for atrocity crimes and should face his day in court on charges of crimes against humanity. Duterte’s arrest is likewise a victory for the tireless and courageous human rights advocates and journalists who never stopped fighting to hold Duterte to account, despite the great risk to their personal safety and well-being. As the ICC’s Office of the Prosecutor has stated, it was the victims, survivors, witnesses and activists whose “strength, courage, and perseverance make these significant developments possible.”

Second, Duterte’s arrest is a timely win for an embattled ICC. It is no secret that the Court is facing a multi-pronged attack from the United States, Israel, and Russia, among others. Even its so-called friends have undermined the institution. In recent weeks, Italy – a member-state of the ICC – refused to cooperate with the Court and surrender an ICC suspect, wanted for atrocities committed against migrants in Libya, to The Hague. 

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New Book Alert! Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes 

Posted on February 27, 2025 by Mark Kersten

Dear readers,

I am very happy and excited to announce the publication of a new book, co-edited by Kirsten Ainley and myself, entitled Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes.

The volume is the product of the Hybrid Justice Project. Here is a synopsis of the book:

The last decade has seen the unexpected re-emergence of hybrid and internationalized courts, tribunals which operate with varying combinations of national and international law, procedure, and staff. The permanent International Criminal Court (ICC) should have made such hybrid mechanisms largely obsolete, yet hybrids have recently been established or proposed for crimes committed in Chad, South Sudan, Israel/Palestine, the Central African Republic, Kosovo, Syria, Sri Lanka, Myanmar, The Gambia, and Liberia, among others. One of the most pressing conversations in international criminal law is whether and how a hybrid tribunal can be set up to address Russia’s commission of the crime of aggression in Ukraine. Hybrid courts are often a response to the need to make justice more—albeit not entirely—local. They operate with differing degrees and elements of national and international law and staff. Some hold proceedings in the relevant situation country, others in third-party states, and yet others offer a mix of both. All contribute significantly to the broader ‘system’ of international criminal justice. This edited volume examines the resurgence of hybrids. The contributors—lawyers, academics, and activists—offer analyses of the ways in which hybrids have succeeded or failed to achieve their objectives and, in doing so, help to clarify what makes hybrids more or less likely to succeed in their mandates and impacts. The authors focus on hybrid courts and resilience: the resilience of hybrid mechanisms to withstand political and other pressures in order to deliver justice and accountability, and the potential contribution of hybrids to the resilience of affected communities. Chapters are grouped into sections on the fields, practices, innovations, and impacts of hybrid courts, to draw out lessons for the future of hybrid justice.

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Posted in Books and Publications, Hybrid Court for South Sudan, Hybrid Courts, Hybrid Tribunals | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

It’s all about control: U.S. sanctions against the International Criminal Court and navigating a path forward

Posted on February 12, 2025 by Mark Kersten
(Photo: AP)

The Trump administration’s Executive Order issuing sanctions against staff of the International Criminal Court (ICC) have been called many things: vindictive, disgraceful, as well as an act “that puts the United States on the side of war criminals at the expense of victims of grave crimes seeking justice.” As severe as they may be, these descriptions are nonetheless accurate. But who is targeted by theses sanctions, why were they issued, what impact might they have, and where do they leave the ICC? In what follows, I endeavour to answer these questions.

American sanctions against the ICC did not come as a surprise. It has been understood for months now that the Trump administration is infected by rapidly anti-ICC sentiments. Since the 2024 presidential election, it was accepted by the Court and states alike that the U.S. would resume its efforts to cripple the Court, initiated at the end of Trump’s first presidency. It is easy to forget the attacks on the ICC by the likes of National Security Advisor John Bolton – who called the Court “dead”, and Trump’s former Secretary of State Mike Pompeo – who called it a “Kangaroo court”. The most recent sanctions are a continuance on a theme, not an aberration.

In January, Republicans tried to pass a bill authorizing sanctions through Congress, but were blocked by Democrats in the U.S. Senate. As a result, the latest sanctions come via Executive Order. The greatest fear in recent weeks among proponents of the ICC was that the U.S. would issue sanctions not just against ICC staff, but against the Court itself. That would pose a potentially existential threat to the institution and its ability to function. Reflecting those fears, it was reported that staff at the Court were backing up data and evidence in case they would not be able to access the Microsoft platforms that the institution had become dependent on in recent years. 

For now, however, the White House has decided not to sanction the Court as a whole but rather focus on a list of individuals to be targeted. As this moment, only one person, ICC Prosecutor Karim Khan, has been listed. If the U.S. continues to target only individual ICC officials, the sanctions will neither paralyze nor destroy the Court. They may interfere with certain actions and will certainly be figured into decision-making. For example, will Khan be permitted to speak at the United Nations Security Council, which he does twice a year, or to attend the Assembly of States Parties of the ICC conference when it takes place at the UN in New York? Regardless of the answers to these questions, sanctions targeting individuals are manageable, especially if the European Union invokes its Blocking Statute to insulate sanctioned ICC staff and ensuring they can access financial and banking institutions.

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Here’s what needs to happen in the wake of Trump’s sanctions against the International Criminal Court

Posted on February 6, 2025 by Mark Kersten
The International Criminal Court (Photo: ICC)

It wasn’t a surprise, but nevertheless, the Executive Order imposing sanctions on the International Criminal Court (ICC) are a deeply troubling development. As Amnesty International’s Agnes Callemard put it, the order “is vindictive. It is aggressive. It is a brutal step that seeks to undermine and destroy what the international community has painstakingly constructed over decades… The sanctions constitute another betrayal of our common humanity.”

It is difficult to know what to do when so much of what we care about and advocate for is under attack. What are we supposed to do? How do we protect the institutions that accountability advocates worked so hard to create – often against the odds? The threats posed by the Trump administration – whether punitive tariffs, arbitrary pauses on foreign aid, or attacks on the ICC – can leave us with a feeling of impending and paralyzing doom. But there are things that can be done to protect and promote institutions like the ICC. While far from perfect and undoubtedly in need of some reform, the Court is worthy of protection from efforts to kneecap and destroy it. In that spirit, here are some things that states and proponents of the institution can do as it faces a potentially existential threat from the U.S.

Hold firm. American decision-making often has the effect of taking all of the oxygen out of the room. President Trump, in particular, has a penchant for ‘flooding the field’: saying and doing multiple atrocious, racist, or hurtful things, in order to fragment media and diplomatic attention. But the ICC must not be deterred by the Trump administration’s bullying. While it may be easier said than done, the Court should not be deterred from continuing its work in the face of Washington’s threats. Its warrants for Israeli leaders are based on firm and compelling evidence. Its investigations into Palestine and Afghanistan are on solid ground. Backing down and showing weakness – especially against Trump – would only leave the Court more exposed to intimidation and vulnerable to interference.

The Court’s staff should likewise remember that when American frustration towards the ICC is at its greatest, that antipathy signals to the rest of the world – which, it should go without saying, matters as much as the United States – that the Court is challenging a political status quo where might is right and Washington can stomp on the rules-based international order when it so pleases. The fact that Trump and his sycophants are so hysterically and unreasonably upset with the ICC is a symptom of the Court’s success, not its failure.

Rally around the Court and its mission. The ICC is far from perfect. It is entirely legitimate and natural to criticize its decisions. But member-states and advocates need to remind themselves and others that the Court is a global achievement worth promoting and protecting, warts and all. It remains the only permanent international court capable of investigating and prosecuting international crimes. It has a role to play in contexts of political violence and it continues to have purchase for states whose civilians have faced atrocity crimes, as demonstrated by the recent decisions of Ukraine and Armenia to join the ICC.

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Trump’s Gaza “Plan” would mean committing every core international crime

Posted on February 6, 2025 by Mark Kersten
(Photo: AP)

It is hard to keep track of the number of international crimes being proposed in Washington as a response to the destruction of Gaza. There are solid arguments to be made that President Donald Trump’s “plan” for the United States to “own” Gaza, transform it into a “Middle East Riviera”, and move Palestinians into neighbouring Arab states would require committing every core international crime under international law: war crimes, crimes against humanity, genocide, and the crime of aggression. It also erases the atrocities that led to the levelling of Gaza. Trump’s thinking must be resisted lest it normalize atrocity crimes.

Trump’s “plan” has now been endorsed by right-wing politicians in Israel and called the “first good idea I’ve heard” by Prime Minister Benjamin Netanyahu. Here is a snapshot of the international crimes that would be committed if it was implemented.

Gazans have every legal right to stay in Gaza. Moving Gaza’s population would constitute a crime against humanity under the Rome Statute of the International Criminal Court (ICC) which prohibits the deportation or forcible transfer of a population. It is important to note that force does not always have to be by way of guns or bombs. It can come in various forms, like threats to violence or coercion. It is likewise worth noting that crimes against humanity need to be widespread or systematic; in the case of Trump’s plan the forcible transfer of Gazans to countries in the region would be both.

By removing Palestinians from their land, the depopulation of Gaza would also constitute ethnic cleansing. Ethnic cleansing is not, in and of itself, an international crime. But it is a harbinger for genocide. In order to ethnically cleanse a territory of its population, that population almost certainly must be destroyed in whole or in part. It is important to emphasize that the theft and colonization of land is among the most common motivations for genocide. It motivated the Nazis who sought to expel Jews and others from European territories to make way for a German “Lebensraum” and it motivated Canada’s genocide against Indigenous peoples. 

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Posted in Crime of Aggression, Crimes against humanity, Gaza, Genocide, ICC Prosecutor, International Criminal Court (ICC), Israel, Palestine, United States, War crimes | Tagged , , , , , | Leave a comment

Settler Amnesty: Canada has a culture of impunity over Residential School atrocities. Here’s what that means

Posted on January 27, 2025 by Mark Kersten

Last October, the Office of the Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools in Canada released its final report. It called for Canada to refer itself to the International Criminal Court and to create an Indigenous-led commission with a 20-year mandate to investigate disappeared Indigenous children. Doing so, Special Interlocutor Kimberly Murray concluded, would help to combat the existence of a “culture of impunity” and “settler amnesty” in Canada over atrocities committed in the Indian Residential School System (IRSS). Some might be naturally ask: what does that mean? Others may wonder: Does Canada really have an impunity problem? The answer is yes.

As readers will know, I was honoured to work for the Special Interlocutor’s Office from 2022 to 2024, applying international criminal law and international human rights law to the horrors perpetrated against children in the Residential School system. Part of that effort sought to understand the particular form of impunity that exists in Canada and articulate how it operates to deny Indigenous Survivors and communities avenues for accountability. We did this by studying amnesty laws, and applying insights from the use and study of amnesties to the Canadian settler colonial context. What follows is based on those findings.

Canadians and people around the world increasingly know that the atrocities and human rights violations committed against Indigenous peoples were not sporadic or the result of ‘bad apples’; they were structural and systematic, committed by specific perpetrators along with the bureaucratic machinery of the Canadian state. There is a belated but growing acceptance of this reality. In 2022, the House of Commons unanimously accepted that the Residential School System constituted genocide – and not ‘only’ cultural genocide. Similar findings were made by the National Inquiry into Missing and Murdered Indigenous Women and Girls in 2019. The indignities and atrocities that children were subject to are increasingly taught in schools across the country. The space of denial has been shrinking.

But it is not just the atrocities against Indigenous peoples that is structural and systematic. Impunity – the lack of justice for these atrocities – has also been structural and systematic. While a small number of perpetrators were held to account for sexual and physical abuse at Residential Schools, none of those most responsible for IRSS atrocities have ever been investigated or prosecuted. The very systems that produced the Residential Schools are still in place; instead of transferring children into the institutions, Indigenous people are today transferred in grossly disproportionate rates into the child state care system and into Canadian prisons and jails, sometimes referred to as “the new residential schools”.

The federal government acknowledges some harms and has offered compensation to some classes of victims and Survivors. But it also fights them tooth and nail in the courts, at enormous expense to Canadian taxpayers.

Canada has likewise closed avenues for justice and accountability that might otherwise be used by Indigenous Survivors and communities. Consider the examples of genocide and enforced disappearances.

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Posted in Amnesty, Canada, Enforced Disappearance, Enforced Disapperances, Indian Residential School System, Residential Schools | Tagged , , | Leave a comment

Impunity for Crimes against Migrants: How and why Italy ruined the best chance to bring accountability for atrocities committed against refugees on the Mediterranean

Posted on January 23, 2025 by Mark Kersten
Refugees on a boat crossing the Mediterranean sea in 2016 (Photo: Wiki Commons)

The biggest concern for advocates of international law and justice this week was supposed to be the Trump administration’s incoming sanctions against the International Criminal Court (ICC). But then came the bombshell news that Italian authorities had arrested an ICC suspect only to release him and send him back to Libya on board an Italian secret services aircraft. With this appalling decision, Italy has just scuppered the best chance to address atrocities committed against migrants and refugees on the Mediterranean. How could this happen?

Here is what we know so far.

Libyan national and militia Osama Elmasry Njeem attended a Juventus-Milan football match in Italy last Sunday after arriving in the country by car, via France. The day before the game, the ICC issued a sealed arrest warrant for Njeem on charges of crimes against humanity and war crimes, including murder, torture, rape and sexual violence. The charges stem from Njeem’s alleged crimes committed in Libya since 2015 in the notorious Mitiga Prison, which Njeem is reportedly in charge of as part of Libya’s “Judicial Police”. According to the ICC, the crimes were committed against detainees for “religious reasons”, “immoral behaviour” as well as their support for other armed groups. Many of those imprisoned at Mitiga are migrants and refugees.

In line with Italy’s legal obligations as a member-state of the ICC, Italian anti-terrorist authorities arrested Njeem in his hotel room after the match. They asked ICC officials not to make any public pronouncements over the arrest, so the Court stayed quiet. But an Italian court decided to release Njeem, citing “procedural irregularities”. Authorities swiftly organized his transportation back to the Libyan capital of Tripoli. Media were alerted to his release twenty minutes after his flight left a Turin airport. How any irregularity could possibly require Italy to send home someone wanted on charges of war crimes and crimes against humanity has not been revealed.

Njeem arrived back in Libya where a crowd of men greeting him and celebrated his escape from justice. According to a statement by the ICC, Njeem was released “without prior notice or consultation with the Court,” and Italy has yet to explain its actions. One Italian Member of European Parliament has demanded answers: “The government must provide explanations, and they should do so especially for prisoners held in Libyan concentration camps.”

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Posted in ICC Prosecutor, Immigration, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Migration, Osama Elmasry Njeem, Refugees | Tagged | Leave a comment