The ICC and Varieties of Deterrence

Posted on April 17, 2014 by Alana Tiemessen

ocampo simmons 2 carr centerI recently attended an event, hosted by the Carr Center at Harvard’s Kennedy School of Government, to hear renowned scholar Beth Simmons and former Chief Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo discuss the ICC’s ability to deter civilian atrocities.

Simmons — a prolific International Relations (IR) scholar known for her work on international institutions, law, and human rights — presented her theory and findings from an unpublished manuscript (co-authored with Hyeran Jo). Moreno-Ocampo  responded with his points of consensus and contention and ended with his proposal for an ICC response to Syria. What follows is a summary of their comments and my own queries.*

The Effects of Prosecutorial and Social Deterrence

Simmons and Jo’s impressive new study takes on the “widespread skepticism” that the ICC is too weak to punish and deter perpetrators of atrocities. The Court is also, for better or worse, an “irritant to peacemaking.” Their goal is to systematically look at the ICC’s ability to deter civilian killings. To do so, they utilize behavioral theories / economic models of deterring crime and look only to general (not specific) deterrence. They isolate three mechanisms that include direct and indirect prosecutorial deterrence and social deterrence in order to measure their effects on government forces and rebels. Their dataset is a sample of states with some civil war experience (1945-2011), including 297 government-rebel dyads (1989-2011). Their findings show that there are positive deterrence effects, i.e. that there is a decline in civilian killings in states under the ICC’s jurisdiction after the Rome Statute came into effect. (I don’t have the details on the specific indicators.)

One of the most interesting parts of Simmons and Jo’s study is their identification of conditions for social deterrence. For government forces, the likelihood of social deterrence depends on whether they are dependent on the international community (particularly for foreign assistance and trade) and whether human rights organizations are mobilized to advocate for justice. Rebel groups will only be susceptible to social deterrence if they have “governance aims.” As Simmons put it, if they don’t care about social capital they are just criminal actors incapable of being deterred by this mechanism.

icc threatStreamlining Justice and Conflict Resolution

Moreno-Ocampo offered a response that largely concurred with the study’s assumptions and findings. He argued that the “goal of the ICC is to deter crimes within its jurisdiction.” This is a somewhat blunt and simple statement—one that would irk those who argue that the Court is incapable of changing the calculus of perpetrators or that it is inappropriate for the Court to play a political role in conflict resolution. Moreno-Ocampo didn’t offer much on the role of social deterrence, save for the caveat that those individuals who “intentionally terrorize civilians for personal or political purposes are difficult to deter under any circumstances.” But when advocating for the effects of prosecutorial deterrence, the former Prosecutor lamented that politicians want to deter crimes through negotiations and not in the courtroom, and the ICC’s activities and diplomacy need to be “streamlined.”

Moreno-Ocampo concluded with a proposal for an ICC intervention in Syria. He suggested that the UN Security Council should refer the Syria situation to the ICC but with “delayed jurisdiction” that would begin in January 2015.  (Similar to what Mark Kersten and Kip Hale have previously suggested.) This would give all parties to the conflict time to end their commission of atrocities and ensure accountability. This, he argues, would “change behavior without changing the regime.” Moreno-Ocampo offered no comment on whether this proposal would persuade the P5 UNSC members, most of all Russia, who have been relatively silent on the ICC’s potential role in Syria. Continue reading →

Posted in Complementarity, Conflict Resolution, Deterrence, ICC Prosecutor, International Criminal Court (ICC), Syria, UN Security Council | Tagged , , | Leave a comment

7 Random Thoughts on Justice and Stuff

Posted on April 16, 2014 by Mark Kersten

un-security-councilA lot has happened in the world of international justice since my last post at JiC. So here are 7 stories and thoughts on the ICC and other justice-related stuff from recent weeks.

1. A Strong and Weak ICC?

It has become rather popular in recent months to suggest that the ICC is in crisis. The Court has faced numerous problems which have consistently chipped away at its real and perceived legitimacy: its relationship with the African Union; its inability to intervene in ongoing and active conflicts where people think it should (which, it should be noted, is not always the ICC’s fault but still hurts the Court); and flaws in prosecutorial strategies that have resulted in a very mixed record in the ICC’s first verdicts. All of these issues weaken the Court and its standing in international relations.

At the same time, however, it seems that the Court has never been stronger. Numerous scholars and observers have pointed out that the ICC has made international criminal justice the primary, and in some cases, the only approach to conflict and post-conflict accountability. As Sarah Nouwen argued in a talk at the International Studies Association Conference in Toronto, the Court has something of a totalizing effect, pushing consideration of other transitional justice mechanisms to the periphery.

This, of course, has led to heightened expectations of the ICC’s role and potential. Wherever mass atrocities have occurred, we consistently hear calls for the ICC to intervene. As many have pointed out, debates over the Court’s role are not so much about whether it should intervene but how it should and can do so.

Is the ‘strong Court’ – ‘weak Court’ tension paradoxical? It is hard to tell. In any case, it is fascinating that an institution like the ICC can be seen both as teetering on the verge of irrelevance and as being the only game in town at the same time.

2. The Nons

Disciplines like international criminal justice and transitional justice are defined as much by what counts as part of the field as what does not. Boundaries are constituted by the ongoing process of exclusion and inclusion, determining what fits and what doesn’t – and why. But it isn’t clear that either international criminal justice and transitional justice have done a particularly good job with delineating the relationship with what counts as a ‘case’ or unit of analysis and what doesn’t.

There are loads of ‘nons’ in studies and assessments of the ICC, for example: Syria is the case of non-ICC intervention; many are concerned with ICC non-member states, including the role of major powers (Russia, China and the US); scholars like Sarah Nouwen and Sara Kendall are conducting provocative work on how the victim and non-victim is constituted by practices at the Court; as Kirsten Ainley maintains in forthcoming work, the ICC wants to tell a success story of non-prosecutions via its policy of complementarity wherein it induces states to prosecute perpetrators of atrocities themselves.

‘Nons’ are useful insofar as they help us to compare and contrast ‘in’ cases. A classic and popular example of this is assessments of the question: “why was there an ICC intervention in Syria but not Libya?” But I think there is a danger in over-differentiating nons from ins. Nons should be treated not as non-cases but as a different kind of case. For my analysis on how Syria is a case for the ICC and the peace-justice debate, see here.

Kenyan President Uhuru Kenyatta (centre) and Deputy President William Ruto (left). (Photo: Siegfried Modola / Reuters)

Kenyan President Uhuru Kenyatta (centre) and Deputy President William Ruto (left). (Photo: Siegfried Modola / Reuters)

3. The Kenya Cases

The trial of Kenyan President Uhuru Kenyatta was recently delayed once again, this time until October 2014. The prosecution had previously asked for a three-month adjournment. Kenyatta’s defence had wanted the entire trial quashed but judges ultimately rejected their request.

It’s not clear that the ICC’s Office of the Prosecutor (OTP) really wants to continue pursuing the Kenyatta case. The cases are a mess. The trial has cost the Court dearly, both in reputational and financial terms. But the Court also can’t ‘leave’ Kenya empty handed. It has invested far too much and it would untenable for the Court to end up with zilch from the Prosecutor’s first-ever proprio motu investigation. The question on many people’s mind is: is there a way for the Court to save face?

In talking with people familiar with the Kenya cases, there seems to be a potential political plea bargaining process that could take place between Kenya and the ICC. I have previously alluded to this possibility but the idea may be gaining steam. The deal would result in Kenyatta’s case collapsing in exchange for Kenya cooperating fully in the trial of Kenya’s Vice President William Ruto. Some fear this could lead to renewed violence in Kenya. But the idea of such a deal isn’t as crazy as it sounds. Remember, Kenyatta and Ruto were adversaries who came together under the Jubilee Alliance at least in part to present a stronger, united face to the ICC. I should stress, however, that there is zero tangible evidence of this plan coming to fruition. It is merely an increasingly ‘hot’ rumour.

4. The Libya Cases

I have previously argued that the OTP is uninterested in actually pursuing the cases of Saif al-Islam Gaddafi or Abdullah al-Senussi, both of whom are wanted for their role in attacking demonstrators during the 2011 Libyan uprising. Instead, the OTP has sought to frame its role in Libya as inducing local prosecutions through the rhetoric of “positive complementarity“. This isn’t necessarily a bad thing. Few deny that Libya’s transitional authorities should get first crack at prosecuting Saif and Senussi – just not whilst violating international law and fair trial standards.

Like the OTP, Judges at the ICC seem to prefer local prosecutions as well. As readers will recall, Judges found Senussi’s case inadmissible at the ICC (meaning Libya could try him themselves) while Saif’s was found admissible (meaning that Libya had an obligation to surrender him to The Hague). Unsurprisingly, both rulings were appealed. But that was a long time ago. Like a really, really long time ago. Kevin Jon Heller has also brought this issue to light, arguing that Judges at the ICC have been unjustified in taking so long to rule, especially in the case of Saif.

The most plausible reason for the delays is that the Judges want to see Libya ultimately win both admissibility challenges and view this as being in the institutional self-interests of the Court. As a result, they are willing to be very patient and give the Libyan government a long leash to figure out how it can prosecute Saif.

Readers will recall that Pre-Trial Judges ruled that Saif’s case was admissible at the ICC because Libyan authorities did not have him in their custody. Instead, he has been in the detention of a Zintani militia. In dragging their feet over the last year, ICC Judges have given Libya a very long time to figure out this conundrum. For a moment, it appeared that they had. As Heller also points out, Libya took a page out of Kenya’s book by proposing that Saif be put on trial in Tripoli via live video streaming. Unfortunately, when the moment came for Saif to ‘show up’, the video screen set up for the trial “showed only an empty courtroom.” Continue reading →

Posted in Admissibility, Complementarity, Crime of Aggression, Humanitarian Intervention, ICC Prosecutor, International Criminal Court (ICC), International Law, Justice, Kenya, Kenya and the ICC, Libya, Libya and the ICC, Palestine, Palestine and the ICC, Peace Negotiations, Responsibiltiy to Protect (R2P), Transitional Justice, UN Security Council | Leave a comment

A Futile Endeavour: Croatia v. Serbia at the ICJ

Posted on April 1, 2014 by Mark Kersten

Iva Vukusic reports for JiC on the legal dispute between Serbia and Croatia at the International Court of Justice over the alleged commission of genocide during the early 1990s. Iva is a former journalist, analyst in the Special War Crimes Department of the Prosecutor’s office in Sarajevo, BiH. Since 2009, she has worked as a researcher and analyst in The Hague on a variety of war crimes related projects.

(Photo: AP Photo/Jiri Buller)

(Photo: AP Photo/Jiri Buller)

Who was responsible? Who committed genocide? Over the past month, Croatia and Serbia have been making their case at the International Court of Justice (ICJ) in The Hague, arguing that the other side committed genocide during the conflict in the early 1990s and that they were innocent.

During proceedings, both Croatia and Serbia have invoked the Convention on the Prevention and Punishment of the Crime of Genocide, the judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and events that took place between 1991 and 1995. As others have suggested, the case is futile. It may even backfire.

The case at the ICJ is an exercise of politics – and one which does nothing to improve the relations of two neighbors. Croatia initiated its case in 1999, claiming that the mass human rights violations committed by the Serbs and Serbia – supported forces – primarily the JNA (Yugoslav People’s Army) and paramilitaries in 1991 and 1992 amounted to genocide. From 2010, Serbia claimed Croatia committed genocide during and after Operation Storm when, in the summer of 1995, over 200,000 Serbs left Krajina (Serbia argues they were persecuted and Croatia that they left on their own). The ICJ is likely to rule that although horrific crimes were committed in both situations, neither of the two reached the level of genocide.

Seventeen judges of the ICJ have listened to members of both sides’  legal teams. Among them are distinguished academics and experienced practitioners such as William Schabas, Wayne Jordash, Andreas Zimmermann, Philippe Sands and Keir Starmer.

Some of the most interesting points discussed concerned ICTY jurisprudence (Mrksic, Martic, Babic but also the more controversial Stanisic and Perisic) and how much weight, if any, should be given to the decision of the Prosecutor at the ICTY not to charge genocide for either the crimes in 1991 and 1992 or 1995. There was also significant debate about the often-criticized judgment in the Gotovina case where all three defendants were acquitted for crimes against the Croatian Serbs in Krajina. As always in genocide cases, significant attention was given to understanding what constitutes genocidal intent, how it can be proved and what a genocidal plan involves. The Court also heard arguments about the Tolimir case where the ICTY ruled (pending appeal) that genocide was also committed in Zepa (where 3 individuals were killed, distinguished members of the Bosniak community).

Serbia argued that the JNA was not in control of the paramilitaries and that Serbia was constituted as a state only in April 1992 (and therefore was not responsible) while Croatia emphasized that Operation Storm was legal and legitimate, aiming to reclaim territory unlawfully taken by rebelled local Serbs. It was interesting to observe both parties trying to expand the definition of genocide when applied to their neighbor and narrow it down when discussing their own past actions.

Vukovar

Vukovar

There was slight controversy when professor Schabas compared the Brioni meeting where Operation Storm was planned to the Wannsee conference of 1942 (transcript, March 14th, page 54). Other comments, made outside the courtroom, unveiled a deep misunderstanding about what the case is about. Orsat Miljenic, the Croatian minister of justice stated that the case would prove who was the aggressor and who was the victim. Miljenic should know that that is not what the case is about. But politicians have largely insisted on framing this case in terms of winning and losing.

Clever remarks were occasionally made about the arguments of the opposing side. One remark was that one couldn’t heavily rely on the strong language of dissents to prove a point (specifically, Pocar and Agius in the Gotovina Appeal) because when judges dissent they strongly disagree and such language is to be expected. Had they not been firmly opposed, they wouldn’t dissent. Another point was that the math doesn’t matter much – it is irrelevant how many judges agreed and how many didn’t – it is the judgment that matters (otherwise, many can claim that they almost won a case they had in fact lost). There were also arguments about genocide not being a ‘numbers game’. Continue reading →

Posted in Croatia, Genocide, Guest Posts, ICTY, International Court of Justice, Serbia | Tagged | 5 Comments

Acquitted by Law, Prosecuted by Propaganda

Posted on March 31, 2014 by Mark Kersten

Caroline Buisman and Kate Gibson join JiC for this post on Rwandan General Gratien Kabiligi who was acquitted by the International Criminal Tribunal for Rwanda (ICTR) in 2008. Caroline and Kate were members of the defence team of Kabiligi during his trial at the ICTR. They are now both Defence Counsel at the International Criminal Court.

Kabiligi following his acquittal at the ICTR (Photo: Tony Karumba / AFP / Getty Images)

Kabiligi following his acquittal at the ICTR (Photo: Tony Karumba / AFP / Getty Images)

After nearly 20 years in operation, the ICTR in Arusha, Tanzania must finally close its doors at the end of 2014. One burning question left unresolved is the fate of the ICTR’s “acquittees”. Eleven former ICTR-accused remain in a safe house in Arusha, nine having been acquitted, and two having completed their sentences. The longest resident, Mr. André Ntagerura, has been living in the safe house for nearly a decade since his acquittal in 2004. Each is facing an uncertain future.

Unlike at the ICTY, where those acquitted routinely return to their communities without great difficulty, the Rwandan government has consistently expressed outrage at the release of any ICTR accused. The acquittal of two former government ministers in 2013 lead to protests on the streets of Kigali. The ICTR itself has acknowledged that the former accused have a legitimate basis to fear returning to Rwanda. However, drawn-out attempts to join their families in Europe or North America have been, in large part, unsuccessful. The ICTR remains relatively silent on this issue. While arrangements were put in place for the imprisonment in domestic jurisdictions of those convicted by the ICTR, little or no forethought appears to have been given as to where acquitted persons would live following their release.

One of these eleven is General Gratien Kabiligi, the former G3 of the Forces Armées Rwandaises. Having been imprisoned for over a decade, General Kabiligi was acquitted of all charges by Trial Chamber I of the ICTR, and released on 18 December 2008. The Prosecution did not appeal his acquittal. In the interim five years, he has been attempting, so far without success, to join his wife and children in France, from whom he has been separated since his arrest in 1997.

General Kabiligi’s attempt to rejoin his family began on 16 September 2010 at the French embassy in Tanzania. He lodged a request for a long-term visa to allow him join his wife and four children, legally residing in France since 1998. His request was dismissed on the basis that his entry would risk disturbing the public order. This prompted a complicated and lengthy process of review and appeals before administrative tribunals, the Council of State, and the Minister of Interior Affairs. This process, already having spanned a three-year period, is still ongoing. Significantly, in dismissing General Kabiligi’s request for a long-term visa, the administrative court of appeal considered that, although General Kabiligi had been acquitted by the ICTR, he had held an important post in the Rwandan army during the genocide. The court considered that there was no evidence of him having prevented any massacres, even if he was not a direct participant. These same arguments had been dismissed by the ICTR Trial Chamber, which heard direct evidence over the course of six years. The same allegations continue to haunt the General, although he now finds himself without a proper forum to defend against them.

The ICTR (Photo: flickr/Tiff Sim)

The ICTR (Photo: flickr/Tiff Sim)

As the months following his release have turned into years, General Kabiligi’s attempts to rejoin his family may have become even more difficult following the recent by recent slanderous publications, which appear to have as their source an article published by the “News of Rwanda” on 17 February 2014.

The factual errors contained in this article are numerous. Under a heading calling him “God’s man of carnage”, the article claims that General Kabiligi “was acquitted on December 18, 2008 by the controversial judge Theodor Meron who has been accused of deliberately releasing genocide suspects at ICTR and ICTY.” In reality, the General was acquitted by a panel of three judges composed of Judge Erik Möse, Judge Jai Ram Reddy, and Judge Sergei Alekseevich Egorov. The author claims that “the Tanzanian ruling elite has provided new homes with full police protection at the expense of the Tanzanian taxpayer.” In fact, it is the ICTR which has provided safe house accommodation to the 11 former-accused, as well as paying for the 24-hour security. It also claims that General Kabiligi lives in France, while in fact he remains in Tanzania, and that the former Minister André Rwamakuba lives in the “new homes”, which is also untrue. Continue reading →

Posted in Defense Counsel, Guest Posts, International Criminal Tribunal for Rwanda (ICTR), Journalism, Rwanda | Tagged , , | 3 Comments

The ICC’s End Days? Not So Fast

Posted on March 20, 2014 by Mark Kersten

Alex Whiting joins JiC for this incisive guest-post response to Dov Jacobs’ recent analysis of the ‘legacy’ of the Katanga judgement. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia. 

(Photo: International Criminal Court)

(Photo: International Criminal Court)

Dov Jacobs has written an interesting, thorough, and provocative analysis of the recent Germain Katanga judgment at the International Criminal Court (ICC). I appreciate his insights and contributions to the ongoing debate about the case and its legacy. However, in this post, I want to push back on just a few of the points he makes.

I think that Dov in his post is a bit too hard on the Office of the Prosecutor (OTP) at the ICC, and unfairly so. Like Kevin Jon Heller, he describes the Katanga case as “another failure” for the OTP (Kevin described it as a “terrible day”). Really? The prosecution alleged that Germain Katanga was criminally responsible for crimes committed during the attack on Bogoro in the DRC on 24 February 2003. The result? The Chamber found him criminally responsible for some but not all of the alleged crimes. A failure? Hardly. It is true that the Trial Chamber convicted Katanga under a different mode of liability than the one advanced by the prosecution, but it is not an infrequent result of international criminal trials, or domestic criminal trials for that matter, that an Accused is convicted of some but not all charges, or is convicted of committing the offense in one manner but not the other. That is part of the purpose of a trial. And none of the “controversy” surrounding the Trial Chamber’s adoption of an alternative mode of liability would have arisen if the prosecution had been allowed to charge in the alternative from the beginning.

Dov’s critique does not stop there. He is pretty damning about the OTP’s entire record to date – describing it as “bleak” – and the course that the OTP is now on under the new Prosecutor, Fatou Bensouda. Of course, we all view the ICC from our own perspectives and with our own biases. I come to the subject as a former prosecutor with the ICC and the ICTY, but I have repeatedly said that the OTP needs to do better and learn from its mistakes. Still, I don’t think the record is quite as “bleak” as Dov makes it out to be. He cites the cases of four suspects that were not confirmed by the Pre-Trial Chamber, but does not mention that ten suspects had their cases confirmed (an additional two cases are pending confirmation decisions). One Accused was acquitted (Ngudjolo), but two have been convicted (Lubanga and Katanga). Perfect? Certainly not. Bleak? No. At all of the modern international criminal tribunals there have been cases that have not succeeded.

More specifically, Dov piles on with the now familiar criticisms of the OTP’s investigations. Again, I’ve repeatedly acknowledged that the OTP has made some mistakes along the way and that it continues to learn from those mistakes and is adjusting its practices. But here again I think Dov overdoes it a bit in his attacks on the OTP.

Dov relies almost entirely on judicial criticisms of the OTP, apparently assuming that the judges are always right (at least on this subject). Of course, since the judges are the ultimate authority, the OTP will have to adjust to what the judges expect, unless it can persuade the judges to modify their views. But we should not assume that the judges are always right in their assessments of the work of the OTP. For example, in the Pre-Trial Chamber’s decision on confirmation in the Mbarushimana, the Chamber criticized the OTP for asking so-called “leading questions” of insider witnesses. The Chamber failed to recognize, however, that the interviews generally started with open-ended questions and that the investigators only pressed the witnesses later in the interviews when it appeared that the witnesses were not focusing or were not forthcoming. In addition, the judges do not seem to have appreciated that in many instances insider witnesses, who are usually loyal to potential suspects, will be reluctant to provide information, and that therefore it will often be necessary to press them and confront them in order to get them to answer questions truthfully. This is a complicated business with plenty of risks, to be sure, but it is a bit simplistic to say that investigators can only ask open-ended questions.

In the Laurent Gbagbo case, the majority of the Pre-Trial Chamber criticized the quality of the evidence presented by the prosecution for confirmation. But it also revealed that it expected the prosecution to be essentially finished with its investigation by the time of the confirmation hearing and to present its best evidence at that stage. This perspective on the confirmation stage is highly contentious and largely collapses the difference between the confirmation and trial phases. For these reasons and others, Judge Fernandez dissented from the PTC’s decision. The “criticisms” of the two majority judges were therefore informed and colored by the (in my view unreasonable) expectations that these judges had for what should occur at the confirmation hearing.

Jermain Katanga (Photo: RNW)

Germain Katanga (Photo: RNW)

This brings me to another small point about Dov’s analysis. At moments he is a bit selective about which judicial decisions he cites. It would be one thing if he relied always on the decisions of the majority, but he cites again and again the dissent of Judge van der Wyngaert in the Katanaga case. But he never mentions the dissent of Judge Fernandez in the Gbagbo case, which contained a devastating critique of the majority’s approach, or the dissent of Judge Monageng in the Mbarushimana case, in which she concluded that in fact the prosecution had submitted sufficient evidence to warrant confirmation of the charges. I assume that Dov cites those judicial opinions, whether they be in the majority or in dissent, that he agrees with, but it is worth acknowledging that even the judges are not uniform in their views of the prosecution.

Looking to the present and the future, Dov is unfair to the current Prosecutor. He is completely dismissive of Bensouda’s new announced approach to investigations and claims that “nothing has changed at the OTP.” But institutions like the OTP take time to change. It is rather more like turning a super tanker in the ocean than a little speedboat. So it is much, much too early to judge. It is worth noting that not a single case initiated by Bensouda has yet made its way through the process, so on what basis is Dov concluding that nothing has changed? As for the ongoing cases, to the extent adjustments are possible, it will take time for new approaches to manifest themselves in results.

And it is a mistake to focus solely on the OTP, because the OTP is dependent on the work of the other organs and States to succeed. Have those other actors done all that they could to allow the OTP to succeed? Several of the OTP’s cases have been undermined by failures in witness care and protection. What more can the Registry do in this area? A consensus has also developed that the Assembly of States Parties (ASP) has not provided sufficient resources to the OTP to allow it to investigate effectively all of its cases at the same time. Last year, the ASP increased the OTP’s budget. But it will take some time before the OTP can hire and integrate new investigators. Thus it does a disservice to the institution and to the international criminal justice project to announce already at this stage that the new Prosecutor and her team have done nothing to improve the work of the OTP. Give them a chance. Continue reading →

Posted in Germain Katanga, ICC Prosecutor, International Criminal Court (ICC) | Tagged , | 5 Comments

New Opportunities for Justice in Sri Lanka?

Posted on March 13, 2014 by Mark Kersten
Internally displaced persons in Sri Lanka, 2009. (Photo: Joe Klamar / AFP / Getty Images)

Internally displaced persons in Sri Lanka, 2009. (Photo: Joe Klamar / AFP / Getty Images)

Very few people doubt that crimes under the jurisdiction of the International Criminal Court (ICC) were committed during Sri Lanka’s bloody civil war – especially in the final days of the conflict when military and security forces crushed the remaining remnants of Tamil resistance. But a new report, endorsed by an impressive array of international jurists, released by the Sri Lankan Campaign for Peace and Justice suggests that the commission of crimes against humanity didn’t end with the conclusion of the civil war.

According to the organization’s chairman, Edward Mortimer, crimes against humanity continue to be perpetrated in Sri Lanka and should be investigated. If Sri Lanka isn’t interested in doing so itself, then the international community should step in:

Five years after the civil war ended in Sri Lanka, Sri Lankan security forces are still committing crimes against humanity – including rape, sexual violence, torture, murder, imprisonment, enforced disappearance and land grabs – against Tamil civilians in the island’s Northern Province…

Until now, international debate about Sri Lanka has focused mainly on what happened during the last months of the war in 2009, when thousands of civilians perished as government forces crushed the last pocket of Tamil Tiger resistance along the northeastern coast. But this new report is the first to claim that the government’s actions after the war, and through to the present day, include crimes of comparable gravity.

And these findings come at a crucial moment, just when the UN’s Human Rights Council is debating what to do about Sri Lanka’s failure to comply with its last year’s resolution calling for an “independent and credible investigation”.

To date, virtually nothing has been achieved in terms of justice and accountability in Sri Lanka since the end of the civil war. Despite some pressure from the international human rights community, the government of President Mahinda Rajapaksa has largely been able to shrug off pressure to hold perpetrators of international crimes to account.

UN Secretary-General Ban Ki-moon with Sri Lankan President Mahinda Rajapaksa (Photo: UN News Centre)

UN Secretary-General Ban Ki-moon with Sri Lankan President Mahinda Rajapaksa (Photo: UN News Centre)

According to the International Crisis Group, the country has an “entrenched culture of impunity.” Moreover, as The Economist notes, the government has been rather effective in deflecting pressure to take any significant steps to achieve accountability:

Sri Lanka’s rulers see all this as meddling. In recent speeches Mr. Rajapaksa has accused his Western critics of duplicity, talking of law and rights when they really want to do down his country, proud conquerors of terrorists. He expects such talk to go down well with nationalist-minded voters. Sri Lankan diplomats flit to Geneva to deflect criticism. They even suggest that Indian peacekeepers, present in the late 1980s, may have carried out massacres.

The likelihood of any ICC intervention into Sri Lanka – despite its potential merits – is zero-to-none. Sri Lanka is not a member state of the ICC. As a result, the UN Security Council would likely have to refer the situation in Sri Lanka to the Court. However, outside of the international justice and human rights community, there is little political appetite for a full-scale investigation into alleged atrocities and international crimes in Sri Lanka – during or after the civil war. There have been protests, boycotts of conferences and lofty speeches on the need for justice but little in terms of tangible developments. Of course, these acts shouldn’t be derided as they may someday amount to more concerted action. But that day isn’t likely to come in the near future.

Theoretically, another option would be for the Sri Lankan government to refer itself to the ICC. It goes without saying that this isn’t going to happen. The government knows full well, that any criminal investigation would focus primarily on the alleged crimes of government forces. The ICC would almost certainly have the Rajapaksa administration in its cross-hairs. Continue reading →

Posted in Commission of Inquiry, Crimes against humanity, Sri Lanka | 1 Comment

The Katanga Verdict and Its Legacy for International Criminal Justice

Posted on March 12, 2014 by Mark Kersten

Dov Jacobs joins JiC for this provocative and thought-provoking examination of the ‘legacy’ of the Katanga judgement. Dov is an assistant professor at Leiden University and the author of the blog Spreading the Jam. This post concludes his three-part commentary on the Katanga Judgment. The first part can be found here and the second  here.

Germain Katanga (Photo: Phil Nijhuis/EPA)

Germain Katanga (Photo: Phil Nijhuis/EPA)

Having discussed some specific legal aspects of the judgment in my previous two posts on the Katanga Judgement, it is now necessary to take a step back and discuss what is customary to call the Judgment’s “legacy”. This is a difficult term to use, because it is difficult to define. Indeed, it depends on multi-faceted (and sometimes contradictory) perceptions of legitimacy by a number of diverse interested communities (lawyers, diplomats, victims, NGOs, etc.), in a way that makes the concept difficult to pin down. Despite this, it is useful, I think to venture some thoughts on what this judgment shows in relation to the working of the ICC and more generally International Criminal Tribunals, before considering what effect this might have on the broader interested communities.

Legacy from the perspective of the Court

This morning, I came across this remarkable title in an online publication: “Congo warlord’s conviction brings relief to international court”. Usually headlines point towards relief for victims, or broader political considerations. What this headline illustrates is the perception that the ICC might have an internal identity crisis which is deserving of attention. However, I’m not sure that the Katanga Judgment really does bring “relief” to the ICC.

First of all, the Katanga verdict represents another failure for the Prosecutor, as pointed out by Kevin Jon Heller. The only thing that saved the case from total disaster was the Trial Chamber stepping in at the last minute. As a result, one can only continue to note that the record of the ICC’s Office of the Prosecutor (OTP) since the entry into force of the Rome Statute is bleak at best.

Indeed, it has been a rough few years for the ICC’s Prosecutor. A number of cases at the ICC have not gotten past the confirmation stages (Bahar Idriss Abu Garda, Callixte Mbarushimana, and two accused in the Kenya cases); the Laurent Gbagbo confirmation hearing was adjourned due to a lack of evidence; the Thomas Dyilo Lubanga trial was smeared by allegations of prosecutorial misconduct and evidence of OTP intermediaries influencing certain witnesses; the Jean-Pierre Bemba trial only went forward following a change in the mode of liability proposed by the Pre-Trial Chamber; Mathieu Ngudjolo Chui was acquitted and Germain Katanga only convicted due to the judges taking over a prosecutorial role. The fact is that little has changed since Luis Moreno-Ocampo has left office and there is something seriously wrong with the strategies adopted by the OTP. These will need to be addressed because it is currently doing harm to the legacy of the Court.

Second of all, the Katanga judgment is a travesty of justice from the perspective of the rights of the defense. The notice of possible recharacterization in November 2012 was essentially a notice of conviction and the past year and a half pretending to be fair proceedings has been a waste of time. The only people who benefited from these prolonged proceedings are the two majority judges who got 18 extra months of international organisation salary and benefits because their mandate was meant to end with the Katanga and Chui verdict in December 2012.

The judges basically took over from the Prosecutor in a fashion that led the dissenting Judge, Christine van den Wyngaert, to express her disagreement in very strong terms, as I noted here.

But this travesty of justice can only be understood if it is set within the context of the general workings of international criminal law, with which, in fact, it appears to be perfectly in line.

Indeed, while the criticism of judicial involvement is certainly justified in the present case, it should be noted that judicial involvement in prosecutorial activities is nothing new. As I argued here, the adoption of Regulation 55 has shifted the balance of power from the Prosecutor to the Judges. More generally, judges have never shied away from taking on managerial roles in the cases. Some years ago, in the CAR and Darfur situations, faced with the Prosecutor’s delays in investigations, the pre-trial chambers in both instances made insistent enquiries in relation to this lack of progress. More recently, in the Laurent Gbagbo case, the Pre-Trial Chamber provided the Prosecutor with a detailed list of questions and issues that should be investigated further because they were inadequately handled in the document containing the charges.

ICC Judges in the Katanga case visiting the DRC (Photo: ICC)

ICC Judges in the Katanga case visiting the DRC (Photo: ICC)

Moreover, in relation to protection of the rights of the defense, while the use of Regulation 55 in this case to recharacterize the charges at such a late stage of the proceedings to guarantee a conviction and avoid an acquittal is a particularly egregious example of denial of fair trial rights, it is a common feature of international criminal trials generally. International criminal law is geared towards conviction, both in way the law is applied and interpreted (or created) by the judges as well as in the rules of procedure and evidence.

“Why is that a problem?”, one might ask. To answer this question, one needs to take a broader perspective and wonder why we have these international trials and what their purpose is.

Legacy from a broader perspective

A couple of paragraphs from the dissent of Judge van den Wyngaert deserve to be quoted in full (§§310-311) : 

While it is not for me to speculate about the reasons why my colleagues take such a different view on so many issues, I do want to offer some of my own reflections. Trials like these are difficult and complex matters, both from a legal and evidentiary point of view. Moreover, they are challenging on the human level. Sympathy for the victims’ plight and an urgent awareness that this Court is called upon to “end impunity” are powerful stimuli. Yet, the Court’s success or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just.

This raises the question by which standard fairness and justice should be evaluated. My view is that the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims and their Legal Representatives, while certainly relevant, cannot trump the rights of the accused. After all, when all is said and done, it is the accused – and only the accused – who stands trial and risks losing his freedom and property. In order for a court of law to have the legal and moral authority to pass legal and moral judgment on someone, especially when it relates to such serious allegations as international crimes, it is essential, in my view, to scrupulously observe the fairness of the proceedings and to apply the standard of proof consistently and rigorously. It is not good enough that most of the trial has been fair. All of it must be fair.

These sentiments make a fundamental claim about the centrality of the accused (and therefore of the respect of his rights) in international criminal proceedings. A criminal trial is first and foremost about the fair determination of the criminal responsibility of an individual. To take the dissent one step further, while fighting impunity, reconciliation, truth or closure for victims might be a valuable consequence of an international criminal trial, it is not its core function as an institution. These other goals can never “trump the rights of the accused”. International criminal trials should be fair to the defendants and international criminal judgments should be strictly and correctly reasoned in law and in fact. None of this was done in the Katanga trial and judgment, as noted in my previous posts on the Judgment (here and here). Continue reading →

Posted in Defense Counsel, Democratic Republic of Congo, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged , , | 2 Comments

Prosecuting Sexual Violence – Some Steps Forward, But Still a Long Way to Go

Posted on March 10, 2014 by Mark Kersten

Viviane Dittrich joins JiC for this guest-post on the recent record of international tribunals in prosecuting sexual violence. Viviane is completing her PhD at the London School of Economics where her work focuses on the international criminal tribunals, their institutional development towards completion of mandate and the notion of legacy.

Banner advertising the ICTR workshop on Kampala-Entebbe Road, January 2014. (Photo: Viviane Dittrich)

Banner advertising the ICTR workshop on Kampala-Entebbe Road, January 2014.
(Photo: Viviane Dittrich)

Sexual and gender-based violence occurs in the private and public realm, during peacetime and wartime. Only last week, the newly released Violence Against Women report by the European Union Agency for Fundamental Rights stated that about one in three women in Europe, i.e. 62 million, have experienced physical or sexual violence. The pervasiveness of sexual violence used as a weapon of war is well known and documented. Even after conflict has ended, the devastating impacts of sexual violence persist at the individual and societal level. A broad spectrum of crimes have been identified such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilizations, gender-based persecutions and trafficking of persons. A culture of impunity and myths that sexual violence in armed conflict is a cultural phenomenon or represents the inevitable spoils of war need to be further challenged.

For too long, preventing and prosecuting sexual violence has not got the limelight it deserves. International Women’s Day celebrated on 8 March thus provides a topical moment to review some of the developments and achievements over the past year. Without any doubt, sexual violence is not just a women’s issue. It concerns women and men. Increasingly recognised and rightly so, it is an issue of international peace and security.

ICTR Launches Best Practices Manual

The visibility of the topic has been significantly heightened this past year through the work of the international criminal tribunals. On 30-31 January 2014 the Office of the Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) organised an International Workshop on Conflict-Related Sexual and Gender Based Violence Crimes in Light of the ICTR’s Experience in Kampala, Uganda. I was delighted to be invited to the workshop and witness the formal launching of the ICTR’s Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions. Around 120 participants including national and international prosecutors, judges, defence counsel, health professionals, victim and witness advocates and representatives of civil society discussed best practices, shared experiences and made practical recommendations to design a model training programme for practitioners engaged in preventing and prosecuting sexual violence in Africa.

The ICTR has 20 years of experience in prosecuting sexual violence crimes perpetrated during the 1994 Rwandan Genocide. Over half of those indicted by the ICTR (52 out of 93 accused) were charged with rape or other crimes of sexual violence. Since 2007 a systematic review has taken place within the ICTR’s Office of the Prosecutor to assess its mixed success rate of securing convictions for sexual violence charges. In November 2012 ICTR Prosecutor Hassan Jallow hosted a first international workshop in Kigali, Rwanda. As a result of this collective and consultative process, the Manual is conceived and designed as a tool for practitioners. By sharing its experience and lessons learnt, the ICTR endeavours to engage partners in the Great Lakes region, to enhance the capacity of national authorities and regional stakeholders in Africa and to fight impunity.

In an on-going effort by ICTR Prosecutor Jallow, several legacy projects have been designed, including Best Practices Manuals and training programmes. In recognition of the pioneering and prolific work in the area of knowledge sharing and dissemination of practices, the International Association of Prosecutors conferred a Special Achievement Award on the ICTR’s Office of the Prosecutor on 9 September 2013.

Fatou Besouda poses for a stop rape in conflict campaign event (Photo: PassBlue)

Fatou Besouda poses for a stop rape in conflict campaign event (Photo: PassBlue)

A Shared Endeavour Across the Tribunals

The number of prosecutions and, importantly, convictions for sexual violence at the international criminal tribunals remains low. For instance, on 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) rendered its judgment convicting Congo militia leader Germain Katanga for one crime against humanity and four war crimes, while acquitting him of other charges, including crimes of rape and sexual slavery. This case stands for many others when judges did not find evidence beyond reasonable doubt with respect to sexual violence crimes.

In light of providing meaningful justice for crimes committed it is important to critically review the record and document and disseminate lessons learnt with regard to effective investigations and prosecutions – and this is a shared endeavour across the tribunals. In terms of jurisprudence, there are notable achievements across the contemporary international criminal tribunals, yet sexual violence remains an area that draws mixed reviews. The International Military Tribunal at Nuremberg largely demonstrated a lack of attention to sexual violence and the International Military Tribunal for the Far East in Tokyo ignored the systematic sexual slavery of so-called “comfort women”. On 9 March 2009, the UN Department of Peacekeeping Operations published a Review of the Sexual Violence Elements of the Judgments of the ICTY, the ICTR, as well as the Special Court for Sierra Leone (SCSL).

A month ago, on 7 February 2014, the ICC’s Office of the Prosecutor released a Draft Policy Paper on Sexual and Gender Based Crimes. Comments by the public were welcomed and the final policy paper has been announced for March 2014. Since November 2008 the ICC’s Office of the Prosecutor has appointed a Special Adviser on Gender Crimes (Catherine MacKinnon from 2008 to 2012, Brigid Inder from 2012 to present).

The ICTY’s Office of the Prosecutor has also been working on a Best Practices Manual on sexual violence reflecting its experience and pioneering role in the region of the former Yugoslavia. Furthermore, the ICTY outreach section produced a documentary entitled Sexual Violence and the Triumph of Justice in 2012 and organised film screenings inter alia in Zagreb, Sarajevo, Belgrade, Novi Sad and Skopje. Continue reading →

Posted in Gender, Guest Posts, ICTY, International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), Sexual Violence | Tagged | 1 Comment

Russia’s Responsibility to Protect in Ukraine?

Posted on March 5, 2014 by Mark Kersten
Troops stand near a Russian-made military truck in Feodosiya, Crimea (Photo: Viktor Drachev / AFP / Getty Images)

Troops stand near a Russian-made military truck in Feodosiya, Crimea (Photo: Viktor Drachev / AFP / Getty Images)

Russia is increasingly using the language of the Responsibility to Protect (R2P) in order to justify its intervention in Crimea, Ukraine. Just yesterday, Russian President Vladimir Putin stated that any use of armed force in Ukraine would “coincide with our interests to protect the people with whom we have close historical, cultural and economic ties. Protecting these people is in our national interests. This is a humanitarian mission.”

In an op-ed article in the Globe and Mail, I argue that this use of R2P-type rhetoric is misplaced and that it exposes the ongoing challenge of clarifying what R2P is (and isn’t) and where it should (and shouldn’t) apply. Here’s an excerpt:

The invocation of R2P in the context of a Russian invasion of Ukraine, however, appears to be a cynical ploy to justify actions which have little or nothing to do with humanitarian imperatives. It also brings to light the continuing challenge of clarifying what exactly R2P is – and what it isn’t…

But R2P is also a language and as such is a double-edged sword, susceptible to being used and abused. What counts as R2P depends on who’s speaking. R2P was intended to provide the space wherein humanitarian action and inaction would be justified. But it also allows states to abuse the concept by applying it selectively wherever they see fit…

By misappropriating and abusing R2P language to justify intervention, Russia also weakens the very concept of R2P. It confuses rather than clarifies where R2P should and shouldn’t apply. It exposes R2P’s Achilles heel: the fact that it remains unclear precisely what it is.

R2P was intended to place the human experience at the very heart of decision-making in international relations. It was anything but a modest proposal: the boundaries of intervention were to be redrawn, sovereignty was to be redefined.

But R2P cannot ultimately be successful in making intervention more humanitarian if there is no consensus as to what it is or where it applies. Insofar as it is a language, R2P remains a conversation. Russia needs to be part of that and ‘the West’ needs to listen to its concerns. But the cynical appropriation of R2P-style rhetoric for interventions that have little-to-nothing to do with humanitarian imperatives only weaken an already fragile concept.

You can find the rest of the article here.

Posted in Responsibiltiy to Protect (R2P), Russia, Ukraine, UN Security Council | Tagged | 4 Comments

Healing Wounds, Fostering Change: Reparations for Women Victims of International Crimes

Posted on March 3, 2014 by Mark Kersten

Noemi Manco joins JiC for this timely post on reparations for women in post-conflict societies. Noemi is a legal advisor for migrants and asylum seekers in France. She has also worked for Amnesty International in Switzerland and Redress in London. 

(Photo: Flickr / waterdotorg)

(Photo: Flickr / waterdotorg)

Well-crafted and implemented reparations are both able to redress women victims for atrocities as well as prevent their repetition. Can reparations today fulfil these aims and meet these expectations? To answer this question, one must look into women’s multiple and overlapping identities in conflicts and subsequently adapt reparation schemes in order to address these goals.

It has long been recognized that women are affected by armed conflicts in different ways than men. But the experiences of women in war continues to be overlooked. Despite recent progress, this is also broadly true of the realm of international criminal justice. Crimes suffered by women are not restricted to sexual and reproductive violence but also entail a variety of crimes that affect both sexes in different ways, to different extents and for different reasons.

It is also recognized within the realm of international law that, in the aftermath of conflict, victims are entitled to reparations. Historically, reparations for international crimes were intended to ‘restore’ the victim to his/her situation prior to the harm. This included the provision of homes for displaced individuals, achieving freedom for prisoners, etc. It soon became clear, however, that these measures were insufficient and, in some cases, even cynical. If structural injustices that triggered or worsened armed conflict were left unaddressed,gender-biased violence and atrocities could be repeated and durable the building of lasting peace could not be guaranteed.

In this context, the Inter-American Court of Human Rights, in Tamayo v. Peru (1997) defined reparations in a novel way, ruling that any scheme should take into account the victims’ self-development and their expectations for the future. This considerably broadened the range of reparations, opening the door to service provisions, political and legal reforms, as well as complex financial programmes.

(Photo: Reuters)

(Photo: Reuters)

Women Victims, Women Agents

The experience of many women in conflicts has long been shunned from conflict narratives. This is at least partly due to the fact that there are relatively few women combatants. The expectation attached to womanhood is often as a care-taker – to stay at home and care for the family and its possessions. The risks of staying behind in times of conflict, however, are considerable. Women are often more exposed to abuse, economic hardship, land destruction, or may find it impossible to escape from danger when it arrives close to home.

At the end of the war, women may also be indirectly victimized. ‘Secondary victimization’ designates the repercussions on women of the harm done to others. These repercussions are often the result of social, legal or political systems which favour men. For instance, a widow whose husband was killed in combat may not be allowed by law or custom to work and earn a living, thus subjecting her to poverty.

It would be reductionist, however, to only describe women as victims. Those who do not join active conflict also have meaningful agency as actors in the context of violent political conflict. In the absence of men, women often become the family breadwinners, a role traditionally left to men. Guarding stocks, producing goods, earning an income and even ensuring the family’s safety can come under women’s purview. In other words, through conflict, women can gain unprecedented access to the public sphere and can achieve a degree of economic independence. This may, however, place women under increased hardship and their role as social agents of change often overlaps with victimhood: a woman who has been raped and forced to leave her house may also be the family’s breadwinner and protector.

In order for reparations to be successful and effective, they ought to address the needs of women victims in their complexity with respect to both victimhood and agency. A balance can – and must – be found. Yes, many women are victims of gross human rights abuse precisely because of their gender. But women victims are also agents of change, able and willing to actively participate in reconstruction efforts. In other words, reparations must both be backward-looking (bringing closure and redress) as well as forward-looking (providing tools to build lasting peace and prevent further gender-based inequality). This is the conclusion of the 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation.

Addressing the past, looking to the future

Reparations must strike a subtle balance. On the one hand, redress solely directed at victims would fail to address structural gender-based inequalities. On the other hand, deep social, economic or legal reforms, benefitting all women, may stop constituting specific reparation schemes for victims of abuse, and be closer to development programmes. Deep reforms are indeed needed, but should be combined with addressing the immediate and specific needs of women victims. Continue reading →

Posted in Gender, Guest Posts, Peace Processes, Reparations | Tagged | Leave a comment