Ukraine and the International Criminal Court: Out of Africa and Into Europe?

Posted on February 27, 2014 by Mark Kersten
(Photo: Reuters/Gleb Garanich)

(Photo: Reuters/Gleb Garanich)

Ukraine’s Parliament has voted to send its discredited thug of a President Viktor Yanukovych to the International Criminal Court (ICC). After losing his grip on power and fleeing Kiev, Yanukovych is a man on the run. But if he is arrested, Ukraine’s parliament has signalled its intention to send him and members of his coterie packing for The Hague. Ukraine may not have been on the ICC’s radar, but the Court is certainly  on the minds of many in Ukraine.

Ukraine is not a member-state of the ICC. It signed the Rome Statute but failed to ratify it after the country’s Constitutional Court found that the statute was unconstitutional. Some have argued that this will prevent Ukraine from referring itself to the Court. But this is, at the very least, unclear (see here and here). Importantly, parliament is not seeking to ratify the Rome Statute but to volunteer jurisdiction over a specific period of time to the ICC. According to its official statement, Ukraine’s parliament is seeking to refer “crimes against humanity during peaceful protests in Ukraine since November 30, 2013 until February 22, 2014, particularly, Viktor Fedorovych Yanukovych – President of Ukraine – and other officials determined by the prosecutor of the International Criminal Court.”

The ICC’s Office of the Prosecutor (OTP) has not responded and reports suggest that no official request has yet been filed at the Court. Moreover, some believe that the ICC won’t or shouldn’t be interested in taking on any cases pertaining to events in the Ukraine. David Bosco, for example, has argued that it is not clear that crimes under the jurisdiction of the ICC have been committed, that the crimes under consideration likely would not meet the Court’s “gravity” threshold and that if Ukraine’s judiciary is able and willing to genuinely prosecute Yanukovych, the ICC won’t investigate.

There are clearly obstacles to ICC trial of Ukraine’s ousted President. But the picture is murky – at best. Here are a few thoughts on some of the political and legal issues swirling around a potential ICC intervention in Ukraine.

A Mixed Bag: Out of Africa and Into Europe 

As numerous commentators have suggested, an intervention in Ukraine would get the ICC out of Africa. The Court quite obviously suffers from a perception problem. Whether real or not, the ICC is widely seen as a Western tool with a bias against African states.

But proponents shouldn’t be overly enthusiastic that a potential intervention into Ukraine would mark a significant shift in this perception. Yes, it would get the ICC out of Africa (it should be noted that the Court has numerous preliminary investigations outside of the African continent). However, in going after someone widely seen as a disgraced adversary of the European Union, the Court could easily reaffirm the widespread belief that it is an institution which ultimately in the service of European interests.

A protester throw a stone in Kiev (Photo: Sergei Supinsky / AFP / Getty Images)

A protester throw a stone in Kiev (Photo: Sergei Supinsky / AFP / Getty Images)

Russian Into It?

It isn’t clear how Russia would react to an ICC intervention in Ukraine, especially one that targeted its ostensible ally, Yanukovych. Indeed, if the ICC were to pursue him, would Russia provide Yanukovych with safe haven or exile?

Not much is known about the Court’s relationship with Russia. It doesn’t seem that the ICC focuses much attention on the subject either. Still, there is an ongoing preliminary investigation into Russia’s 2008 war with Georgia and perhaps some tensions over Russia’s flat-out rejection of any referral of Syria to the ICC. Would the Court strike back by pursuing Yanukovych or would it prefer to tread softly when it comes to Russia?

If the Court proceeds, how it deals with Russia is crucial. Ukraine is currently in a precarious political situation and if Russia is part of the problem, it also needs to be part of the solution. This message was intimated by US Secretary of State John Kerry:

“This is not a zero-sum game, this is not West versus East. It is not Russia or the United States, this is about the people of Ukraine and Ukrainians making their choices about the future and we want to work with Russia and other countries, with everybody available, to make sure this is peaceful from this day forward.”

Complementarity Games

While it may have its share of problems, Ukraine clearly has a functioning judiciary. And, as Bosco observes, the country “boasts a judiciary more capable of managing a domestic trial than other countries the ICC has worked in.” As a result, given the ICC’s complementarity regime, it isn’t clear whether the Court would find any prosecution of Ukrainian officials admissible. But the existence of a functioning judicial system able and willing to conduct trials doesn’t tell the whole story.

In some instances, states have agreed to send some perpetrators to The Hague while putting others on trial themselves. They are able to do so because, in the words of Darryl Robinson, complementarity is not a one-step process of determining whether a state is able or willing to conduct an investigation or prosecution but a two-step process which first requires the Court to find whether the state in question is conducting or has conducted any investigation or prosecution of a given case. There is precedence for this kind of ‘outsourcing’. The Ivory Coast shipped former President Laurent Gbagbo to face trial at the ICC while insisting that other ICC indictees, including Gbagbo’s wife Simone, be prosecuted in-country. In short, a case could be admissible at the ICC if Ukraine simply decided that it would not investigate or prosecute crimes pertaining to the recent violence in Kiev.

Continue reading →

Posted in Complementarity, Gravity, International Criminal Court (ICC), Ukraine | Tagged , , | 5 Comments

Justice in the Central African Republic: A Role for the ICC

Posted on February 24, 2014 by Mark Kersten

James P. Rudolph joins JiC for this fascinating guest-post on the ICC’s preliminary investigation into ongoing violence in the Central African Republic. You can read more of James’ posts here. 

(Photo: Emmanuel Braun / Reuters)

(Photo: Emmanuel Braun / Reuters)

Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC), recently announced that her office was launching a preliminary investigation into alleged war crimes being committed in the Central African Republic (CAR). Bensouda’s announcement noted that much of the violence in the CAR has disproportionately affected civilians, more than a million of whom have been displaced. Several reports have detailed “acts of rape and sexual slavery, destruction of property, pillaging, torture, forced displacement and recruitment and use of children in hostilities”. The situation, Bensouda said, has “gone from bad to worse”. Chillingly, the risk of genocide is ever-present.

Bensouda is not the only high-level official warning of the dangers in the CAR. “The dark clouds of mass atrocities and sectarian cleansing”, UN Secretary-General Ban Ki-moon said, “loom over the Central African Republic”. This dreadful state of affairs, in which Christians and Muslims have engaged in unspeakable tit-for-tat violence, has unfolded with alarming rapidity and attracted worldwide attention.

The African Union (AU) already has 6,000 peacekeepers in CAR. France, the former colonial ruler, last year sent a contingent of 1,600 troops to support the mission. (According to recent reports, France will send an additional 400 troops this month.) The United States, for its part, has contributed $100 million to supplement this military effort, and the European Union has committed to sending 500 soldiers by the end of this month. Whether any of this is enough to stop the violence is the subject of great controversy and debate. But one thing is for sure, at least for Bensouda and the ICC: the preliminary investigation is not, in any legal way, dependent on these otherwise important military and financial commitments.

The ICC’s jurisdiction is complementary, acting as a veritable Sword of Damocles. This means, first and foremost, that CAR officials must have an opportunity to address these allegations head-on. The ICC’s goal, after all, is not to supplant national sovereignty but to supplement it.

In keeping with this spirit of support and supplementation, Samantha Power, the American ambassador to the United Nations, last year called on CAR officials to organise a national commission of inquiry to look into human rights abuses. Moreover, UN Security Council Resolution 2127, adopted in December 2013, called for the establishment of an international commission of inquiry — the composition of which was recently announced — to investigate reports of human rights abuses by all parties. The “first responders”, then, must legally be CAR officials; there can, in other words, be no room for an ICC irruption when a nation’s criminal justice system is working as it should.

(Photo: UNHCR)

(Photo: UNHCR)

If, however, homegrown efforts to respond to the allegations are deemed insufficient because of unjustified delays or the proceedings are seen as a sham, the ICC’s preliminary investigation will become more intrusive. This, of course, is the raison d’être of the ICC: to act as an impetus; to remind states of their primary responsibility to protect civilians from war crimes, crimes against humanity and genocide; and to act when the state is unable or unwilling to do so. In other words, to ensure the possibility of justice by investigating and, if warranted, prosecuting those who have violated internationally recognised norms.

To be sure, national efforts, even coupled with the ICC’s involvement, are not a panacea: they will not bring the dead back and will not mollify the extremists clamoring for on-the-spot, vigilante justice. The “tyranny of the mob”, as Ms. Power called it, has a thirst for revenge and violence that is viscerally understood, as many have seen loved ones hacked or burned to death. Nevertheless, a commission of inquiry by CAR officials should proceed in parallel with the international commission sanctioned by the UN. None of this guarantees reconciliation or justice. Indeed, as in the case of Kenya’s opportunity to investigate allegations of crimes against humanity related to its post-election violence six years ago, there’s a chance that CAR officials will simply stonewall. If this occurs, Bensouda’s preliminary investigation might very well mature into a full-fledged prosecution, in which case the findings from the commissions of inquiry could assume even greater relevance. With that said, prosecutions are not necessarily the only way forward for CAR. Continue reading →

Posted in Central African Republic (CAR), ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | Leave a comment

Should Ukraine be on the International Criminal Court’s Radar?

Posted on February 20, 2014 by Mark Kersten
(Photo: Associated Press)

(Photo: Associated Press)

Things were supposed to settle down earlier this week when opposition activists in Kiev accepted an amnesty in exchange for vacating government buildings. Within hours, however, a new spate of violence broke out.

On Wednesday evening it once again appeared that a new ‘truce’ would lead to a simmering of tensions. But the truce quickly collapsed. Parts of the Ukrainian city erupted. The images emerging from Kiev evoke scenes that many haven’t seen in a European capital in years – perhaps not since the Balkan wars and the shelling of Sarajevo. According to one observer, the situation in Ukraine is unprecedented:

The situation is now more dangerous than it has ever been. Ukraine voted for independence and separated from the dying Soviet Union peacefully in the autumn of 1991. Its Orange Revolution in 2004-5, a street response to rigged elections, was also completed without bloodshed, though some panicky reactions on both sides brought it pretty close. Since then, Ukrainian politics have been messy and tainted by corruption, but more spontaneous and democratic in many ways than in the countries around it. It has now descended, for the first time, into violence, and that may be hard to reverse.

Estimates vary, but it appears that about 20 protesters and 10 police officers have been killed in clashes this week. As the international community scrambles to address the ongoing violence, the numbers of dead and injured continue to grow.

The European Union is now considering the imposition of targeted sanctions against the Ukrainian government for what they described as “unjustified use of excessive force by the Ukrainian authorities”. Russian Prime Minister responded by declaring that the Ukrainian authorities should not be a “doormat”, a statement widely interpreted as supporting the government’s crackdown on protestors and activists. US President Barack Obama has also intervened, calling for a “transitional government”. He also attacked Russia for supporting the Ukrainian government’s crackdown on protestors, drawing parallels to Moscow’s support for the Syrian regime of Bashar al-Assad.

For the moment, there is far more rhetoric being strewn about than concerted action to end the violence. But a question that is almost certainly going to be asked with greater frequency in the coming days and weeks is whether the situation in Ukraine should be investigated by the International Criminal Court.

Importantly, despite numerous statements that it supports international criminal justice and would join the ICC, Ukraine is one of the few European states which is not a member of the Court. As a result, the Court can only investigate alleged crimes in Ukraine if the United Nations Security Council referred the situation in the country to the ICC.

(Photo: Andrei Stenin / RIA Novosti)

(Photo: Andrei Stenin / RIA Novosti)

Of course, any discussion of a referral would once again pit Russia against European Union members of the Council, a battle which could easily end in stalemate. Broadly speaking, Russia supports the government and has gone to lengths to paint the opposition as “extremists” and even “terrorists”. They have blamed the “West” for encouraging protestors and sowing dissent. The European Union (EU) is widely seen as sympathetic to the opposition activists who are, by and large, supportive of greater integration with the EU. This is undoubtedly an over-simplification. Some believe that that “this is now an internal, Ukrainian conflict” and “the proxy Russia v EU element seems to have receded.” But the division of international positions on Ukraine have been in place since at least the country’s 2004 Orange Revolution when Russia backed the Presidency of Viktor Yanukovych while the European Union threw its support behind Western-leaning Viktor Yushchenko.

Given these tensions, getting the Security Council to refer the situation in Ukraine to the ICC would thus be immensely difficult – but perhaps not impossible. If all sides truly believe they are in the right and that the parties they support are innocent, they could agree to have the responsibility for violence adjudicated by the Court. That being said, it seems rather clear that, where their interests are at stake and they have taken firm positions in support of one side over another, major powers prefer that no party to a conflict is investigated over the investigation of all parties. Of course, they may also simply not trust the process or they may conclude that it would be deleterious to have the ICC involved when the situation remains fragile and a negotiated settlement to ongoing violence – in combination with an amnesty – is their preferred option.

Continue reading →

Posted in Europe, European Union (EU), International Criminal Court (ICC), Russia, Ukraine | Tagged | 2 Comments

A Break in the Status Quo: Could North Korea be Referred to the ICC?

Posted on February 18, 2014 by Mark Kersten
Animation / Image from Camp 14: Total Control Zone

(Animation scene from Camp 14: Total Control Zone)

It’s news that isn’t actually news. A Commission of Inquiry, set up by the United Nations, has issued a report concluding that North Korea has been committing crimes against humanity against its own people. Evidence was gathered primarily through the testimony of North Koreans who had defected from the regime and focuses on the country’s notorious labour camps.

As the report was released, Michael Kirby, one of the Commission’s members sent an ominous message to North Korean leader Kim Jong-un, suggesting that he could eventually be prosecuted at the International Criminal Court (ICC):

“The Commission wishes to draw your attention that it will therefore recommend that the United Nations refer the situation in the Democratic People’s Republic of Korea [the formal name for North Korea] to the international criminal court to render accountable all those, including possibly yourself, who may be responsible for the crimes against humanity.”

Here are a few thoughts on what the Commission’s report means – and what it doesn’t.

North Korea’s Holocaust?

Kirby compared the atrocities being committed in North Korea to those of the Holocaust, stating that there were “many parallels”. As a means of highlighting the severity and extent of the atrocities perpetrated in North Korea, there is little doubt that comparing them to the Holocaust is useful. Drawing parallels between crimes committed by the North Korean regime and those perpetrated by the Nazis appears to be an attempt to strike a deep, moral chord within a primarily Western audience. Indeed, the reference to Nazi Germany was quite clearly made in order to galvanize support for some form of intervention into North Korea. Kirby declared that:

“At the end of the Second World War so many people said ‘if only we had known… if only we had known the wrongs that were done in the countries of the hostile forces’… “Well, now the international community does know… There will be no excusing of failure of action because we didn’t know.”

This is a misreading of what was known about the Holocaust during WWII. The Allied powers knew of Nazi-perpetrated atrocities long before the conclusion of the war and, for a complex, if questionable, set of reasons, explicitly ruled out any form of intervention to undermine the Nazis’ Final Solution that would detract from their singular goal of ending the war.

There is a widespread sense of guilt, especially within the West that not enough was done to stop the Holocaust (as well as the Rwandan Genocide). Its invocation is thus something of a moralizing call-to-arms aimed at preventing “another Holocaust”. But the invocation of the Holocaust as a tool to make headlines and stir the moral imagination of global audiences comes at some cost, especially as it has the effect of de-contextualizing, de-historicizing and depoliticizing the crimes – both in North Korea and during WWII. This has the ultimate effect of making it immensely difficult to craft appropriate responses to mass atrocities – even more so than it already is.

Image of an alleged prison camp in North Korea, captured by Google Images

Image of an “Camp 22” in North Korea, captured by Google Earth

Rocking the Boat: Pressure to Refer North Korea to the ICC?

There has long been a rather “precarious silence” regarding the potential for international criminal justice  in North Korea. I have previously written about the existence of a status quo, reinforced by the international community in its relations with Pyongyang and which has precluded attempts to bring leaders of the regime to account. The Commission of Inquiry poses a potentially significant challenge to this status quo. And this is perhaps its most important contribution.

There have previously been calls to refer North Korea to the ICC but nothing nearly as substantive as the Commission’s report. While the recommendations of Commissions of Inquiry are not legally binding, Commission report reports do hold a certain legal and political gravitas. As a result, the member-states of the United Nations Security Council will have a very difficult time ignoring the report. The question that remains is whether the report will lead the UN Security Council to deal with atrocities and international crimes being perpetrated in North Korea head on. It goes without saying that it is high time that they did.

Still, it is unlikely that the report will lead to a referral of North Korea to the ICC (although crazier things have happened in the world of international criminal justice, so you really never know). But the report could very well force UN Security Council states – especially the US, Russia and China – to deal with alleged atrocities on the Commission’s terms. This could potentially pose a severe test to that very status quo that has allowed states to largely turn a blind eye to North Korea atrocities for decades. Continue reading →

Posted in Commission of Inquiry, International Criminal Court (ICC), North Korea | Tagged , | Leave a comment

The Awful Truth About Holocaust Reporting – And Its Legacy

Posted on February 13, 2014 by Mark Kersten
US President Franklin Roosevelt (Photo: Associated Press)

US President Franklin Roosevelt (Photo: Associated Press)

The history of genocide reporting is both fascinating and frustrating. There are few things more difficult to accurately portray – through film, newspapers, blogs or photography – than the so-called “crime of crimes“. Acts of mass violence are complicated and coverage has often stripped them of their political context, redressing them in facile and misleading tropes. But there is no escaping the fact that reporters, filmmakers and journalists are integral to how we understand – and misunderstand – the causes and dynamics of mass violence. To the genocide scholar, this is nothing new. It is the daily grind.

As a teacher on a unique and fascinating course on genocide convened by Jens Meierhenrich at the LSE, I have had the opportunity over the last few years to reflect on how mass atrocities are currently covered by the media as well as how they have been covered in the past. In Meierhenrich’s incisive course reader, the crucial issue of genocide coverage receives its due attention and scrutiny.

No doubt one of the most hard-hitting and impactful pieces that is highlighted is Marvin Kalb‘s lecture, ‘The Journalism of the Holocaust’ (an adapted version of Kalb’s argument can be found here).

The focus of Kalb’s 1996 lecture is on a rather perplexing problem that has long concerned scholars of genocide: why did American journalists largely ignore the Holocaust? After all Kalb reminds us that: “[w]e knew enough, and we knew enough in timely fashion. Week after week, month after month, we read about the roundup of Jews, the wholesale deportations, the killings… How could such a story as the Holocaust not overwhelm the front page of every newspaper?”

Kalb offers five reasons why the Holocaust, despite its scale and sheer brutality, was neglected in the American media:

1. It distracted from Allied interests in ending the war. According to Kalb, “[T]he Allies were determined to win the war; they did not have their focus on saving Jews… [They] had settled, as firm policy, on the ‘unconditional surrender’ of the Nazis, and “no other thought,” even one as humanitarian as saving a people, was allowed to interfere with the prosecution of the war.”

NYT coverage of Kristallnacht

NYT coverage of Kristallnacht

2. It fit with widespread antisemitism. According to Kalb, “a xenophobic antisemitism flourished among many Americans.” He provides shocking statistics to support this observation:

[S]hortly after the outbreak of the war, 66 percent of the American people—two out of every three—described the German people as ‘essentially peace loving and kindly.’ Another poll said that 61 percent believed the German people should not be ‘blamed’ for the ‘mass killings’ of Jews. Fifty-eight percent said that ‘only’ the Nazi leaders should be ‘blamed.’ In January 1943, after Undersecretary Welles publicly confirmed the ‘final solution,’ after the Allies publicly released their joint statement of condemnation, another poll said that more than half of the American people did not believe that the Nazis were ‘deliberately’ killing the Jews.

3. People simply didn’t believe it was possible. Others simply didn’t want to believe that it was possible. Continue reading →

Posted in Funding, Genocide, Holocaust | Tagged | 18 Comments

Libya’s Political Isolation Law: Politics and Justice or the Politics of Justice?

Posted on February 6, 2014 by Mark Kersten
Conflicting views on Libya's Political Isolation Law has led to clashes in Tripoli (Photo: Mahmud Turkia / AFP)

Conflicting views on Libya’s Political Isolation Law has led to clashes in Tripoli (Photo: Mahmud Turkia / AFP)

It has been a tough go for Libya. Almost two and a half years after the demise of the Gaddafi regime, the country continues to struggle in its ongoing and tumultuous transition. After forty years of autocratic rule, creating a stable, viable and democratic is undoubtedly a tall order. The country faces a host of challenges: the central government is very weak and has had an immensely difficult time creating strong governmental institutions; regional and city-based militias or ‘thuwar’ control key areas of the country; the economy remains vulnerable; assassinations of former regime officials are a regular and disturbing occurrence; and thousands of individuals remain in illegal detention. And while things in Libya may not be quite as bad as tends to be reported (and there has been some good news), the country faces a tough road ahead.

On matters of international and transitional justice, Libya is a fascinating case. Over the past few years, JiC has featured an array of posts on the International Criminal Court’s intervention into Libya and the subsequent battle over where to try the two remaining Libyan ICC indictees: Saif al-Islam Gaddafi and Abdullah al-Senussi. But there have also been other important developments pertaining to transitional justice in Libya. Amongst these are the passage of a blanket amnesty law and a de-Gaddafication law. These have received far less attention here than they deserve. I was thus thrilled by the opportunity to write an article on the latter in greater depth for a project by the Middle East Institute on Pathways to Transitional Justice in the Arab World. My contribution seeks to place Libya’s Political Isolation Law into context and decipher its potential impact on Libyan politics and the pursuit of post-conflict justice. Here’s a snippet:

In May 2013, Libya’s General National Congress (GNC) overwhelmingly passed the Political Isolation Law (PIL). The PIL’s enactment represented a far-reaching attempt to prevent members of the regime of Muammar Qaddafi from holding public office during the country’s transition. But the decision also appeared to fit a precarious pattern of post-conflict accountability in Libya, which has been characterized by acts of vengeance and one-sided justice aimed at anyone associated with the defeated regime. The passage of the law also reflects the current state of political instability in Libya wherein decisions are politically motivated and often forced at the barrel of the gun rather than agreed upon through public consultation and democratic decision-making.

At its heart, Libya’s PIL is a lustration law. Historically, such laws have been a common tool in the pursuit of transitional justice. Broadly speaking, lustration is a form of vetting citizens to discern whether or not they can hold public office on the basis of their relationship with a prior, delegitimized, and defeated regime. The idea of purging a vanquished political opponent is as old as the practice of war itself. New regimes require the exclusion of members, groups, and structures that sustained previous orders. In the twentieth century, exclusion by extermination of opponents shifted to exclusion through legal and political means. For example, following WWII, the process of de-Nazification sought to expel and subsequently prohibit former Nazi figures from political, cultural, and social positions―albeit with mixed results. More recently, the process of de-Ba`thification in Iraq ensured that individuals associated with Saddam Hussein’s Ba`th party were purged from public office. The policy is widely regarded as disastrous, leaving behind it a “bitter legacy” that has “polarized Iraqi politics and contributed to severe instability in the Iraqi military and government.” Continue reading →

Posted in Justice, Libya, Lustration, Transitional Justice | 1 Comment

No Bush-Style BIA – A Clarification on Mali and the US

Posted on February 5, 2014 by Mark Kersten
French soldiers (some of which were transported by the US) on patrol on Mali (Photo: Issouf Sanogo/AFP/Getty Images)

French soldiers (some of which were transported by the US) have long been in Mali (Photo: Issouf Sanogo/AFP/Getty Images)

After even more digging, I have found no evidence of a Bilateral Immunity Agreement (BIA) between Mali and the US. Upon a more careful reading of the memorandum declaring that US troops participating in a UN stabilization mission in Mali will be protected from any potential prosecution at the ICC, it has become evident that it doesn’t actually reference a BIA. Rather, it simply states that “the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country” (emphasis mine). This helps explain why even the Coalition for the International Criminal Court did not cite Mali as a country that had signed a BIA with the US.

Ryan Goodman’s post also provided a clue. Goodman notes that it is possible that the memorandum rests upon a legal source other than a BIA and which the Obama administration views as being consistent with Article 98 of the Rome Statute: “It is unclear whether this is a standard Article 98 agreement or rooted in a Status of Forces Agreement.”

Eventually, I was able to find a reference to a Status of Forces Agreement (SOFA) between the United States and Mali. There isn’t much, but apparently the US and Mali entered into a SOFA (that sounds weird!) in 1997. At the time, the US was conducting military exercises in the country. This agreement – and not a BIA – is likely the legal basis of the memorandum.

While I stand by the arguments in my initial post, this finding is important for at least three reasons. First, it means that the current administration is not recycling sneaky Bush-era tactics to undermine the ICC; those really are a thing of the past. Second, it suggests that the US did not apply pressure on Mali to protect US troops and officials from being sent to The Hague. Rather, the memorandum would appear to be a clever legal manoeuvre based on a creative re-application of an old agreement. Third, the respect that Mali rightfully earned for having rejected any BIA with the US during the Bush years is untarnished.

At the same time, some questions remain and will hopefully be answered soon. First, why did the Obama administration feel the need to issue the memorandum in the first place? Some think it is likely a response to conservative hawks applying pressure to ensure that the administration didn’t send troops into a situation without guarantees that the ICC could never get their hands on them. But if this is the case, it should be clarified – it is key to justifying the memorandum itself. Second, the memorandum makes the legal case of Article 98 agreements less clear. It is a question more for legal scholars and practitioners, but what now counts and doesn’t count as an Article 98 agreement in accordance with the Rome Statute?

One way or the other, hopefully this helps clarify matters a bit. And with that, I’m (probably) done digging.

Posted in Bilateral Immunity Agreements, International Criminal Court (ICC), Mali, United States | Tagged , , | 8 Comments

Update and Clarification — Mali and the US: But What Bilateral Immunity Agreement?

Posted on February 4, 2014 by Mark Kersten
(Photo: AP)

(Photo: AP)

Update / Clarification

After even more digging, I have found no evidence of a Bilateral Immunity Agreement (BIA) between Mali and the US. Indeed, upon a more careful reading of the memorandum stating that US officials and troops participating in a UN stabilization mission in Mali will be protected from any potential prosecution at the ICC, it has become evident that it doesn’t actually reference a BIA. Rather, it simply states that “the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.” This helps explain why even the Coalition for the International Criminal Court did not cite Mali as a country that had signed a BIA with the US.

Ryan Goodman’s post also provided a clue. Goodman notes it is possible that the memorandum rests upon a legal source other than a BIA and which the Obama administration views as being consistent with Article 98 of the Rome Statute: “It is unclear whether this is a standard Article 98 agreement or rooted in a Status of Forces Agreement.”

I was able to find a reference to a Status of Forces Agreement (SOFA) between the United States and Mali. There isn’t much, but apparently the US and Mali entered into a SOFA (that sounds weird!) in 1997. At the time, the US was conducting military exercises in the country. This agreement – and not a BIA – is likely the basis of the memorandum.

While I stand by the arguments in my initial post, this finding is important for at least three reasons. First, it means that the current administration is not recycling sneaky Bush-era tactics to undermine the ICC; those really are a thing of the past. Second, it suggests that the US did not apply pressure on Mali to protect US troops and officials from being sent to The Hague. Rather, the memorandum would appear to be a clever legal manoeuvre based on a creative re-application of an old agreement. Third, the respect that Mali rightfully earned for having rejected any BIA with the US during the Bush years is untarnished.

At the same time, some questions remain and will hopefully be answered soon. First, why did the Obama administration feel the need to issue the memorandum in the first place? Some think it is likely a response to conservative hawks applying pressure to ensure that the administration didn’t send troops into a situation without guarantees that the ICC could never get their hands on them. But if this is the case, it should be clarified – it is key to justifying the memorandum itself. Second, the memorandum makes the legal case of Article 98 agreements less clear. It is a question more for legal scholars and practitioners, but what now counts and doesn’t count as an Article 98 agreement in accordance with the Rome Statute?

One way or the other, hopefully this helps clarify matters a bit. And with that, I’m (probably) done digging.

————————————————————-

Original Post:

As per my earlier post, the Obama administration has released a memorandum declaring that any US officials or troops deployed in Mali will be beyond prosecution by the International Criminal Court (ICC). According to the memorandum, this is possible “because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.”

The problem is that there is no trace of a Bilateral Immunity Agreement between the US and Mali.  In his post, Ryan Goodman observes that the memorandum is “significant because Mali has long been opposed to signing an Article 98 agreement with the United States, and held out against the Bush Administration.” Indeed, the Coalition for the International Criminal Court’s situation page for Mali  states that the country “[p]ublicly rejected BIA agreement.” Moreover, Human Rights Watch reported in 2003 that Mali’s Ministry of Foreign Affairs had  “advised AGAINST signing a bilateral agreement, explaining that such an agreement is contrary to Mali’s obligations under the Rome statute and undermines the independence of the ICC.” After some digging, I found that not only had Mali rejected signing a BIA with the US but the Bush administration retaliated by withdrawing military aid to the country (see this 2006 post by Kevin Jon Heller and this article at the New York Times).

So, as far as I can tell there is no public evidence that Mali ever signed an Article 98 Agreement with the United States. While I could be wrong and have simply missed something obvious (and please point this out to me if that’s the case), this does seem to point to a disturbing and additional reality: that the Obama administration itself signed the BIA agreement with Mali as a condition for its participation in the United Nations Multidimensional Integrated Stabilization Mission in Mali.

It is one thing to capitalize on the old tricks of the George W. Bush administration. It is another thing altogether to make them your own.

Posted in Article 98, Bilateral Immunity Agreements, International Criminal Court (ICC), International Criminal Justice, United States | Leave a comment

Unfortunate but Unsurprising? Obama Undermines the ICC

Posted on February 4, 2014 by Mark Kersten
(AP Photo/Carolyn Kaster)

(AP Photo/Carolyn Kaster)

In the brief history of the International Criminal Court (ICC), few issues have received as much attention – from the Court, the human rights community and academics – than the relationship between the United States and the Court. Last week, that relationship took yet another turn – and not in the right direction.

After half a decade of actively undermining the Court during the Presidency of George W. Bush, the US’s relationship with the ICC has improved dramatically in recent years. Many ascribe this upswing to the liberal internationalist-leaning tenure of President Barack Obama but it should be noted that the  positive engagement between the US and the Court began before Obama won the Presidency, ie. under Bush. At the same time, however, it would be folly to suggest that the current administration has anything more than a selective love for the ICC.

Case in point is the memorandum issued by Obama last week stating that any and all US military forces deployed to Mali will not be liable to prosecution in The Hague:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S. Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.

Article 98 agreements hark back to that dark period in the ICC’s history when the Bush administration was all gong-ho about undermining the Court. Also known as Bilateral Immunity Agreements (BIAs) – and as their name suggests – the legal basis of the agreements rests on Article 98 which prevents the ICC from proceeding with a request for surrender if it would require the state in question “to act inconsistently with its obligations under international agreements.”

Bosco Ntaganda is currently in the custody of the ICC (Photo: ICC)

Bosco Ntaganda is currently in the custody of the ICC (Photo: ICC)

In the early years of the Court, the Bush administration was keen to sign as many BIAs as possible, emphasizing them in its diplomatic relations. The administration applied relentless pressure to ensure that states signed these agreements and, in so doing, guarantee that any US citizens on their territory would never be surrendered to the ICC. The administration threatened to withdraw aid – and in a few cases did withdraw its aid – from any states that rejected to sign BIAs. In the end, over one hundred states signed Article 98 agreements with the US.

In recent years, the relationship between the Court and the US thawed and, in some respects, even flourished. It was largely hoped that the BIA, anti-ICC days were over. The commitment to ‘hunt down Joseph Kony‘, the expansion the Rewards for Justice Programme to include ICC indictees, the positive vote to refer Libya to the ICC and the extradition of Bosco Ntaganda to The Hague after he surrendered to the American embassy in Kigali, Rwanda — they all pointed to a constructive and productive relationship.

Indeed, these developments would seem to make the memorandum all the more politically curious. It goes without saying that BIAs run against the intent of the ICC, not to mention the principle of ending impunity. They also violate the fundamental principle of equality before the law. After all, the agreements are a declaration that the prosecution of atrocities will depend on whether the alleged perpetrator is American or not.

At the same time, it isn’t clear why such a memorandum is even necessary. The ICC has generally accommodated US interests and avoided investigating or prosecuting American officials or their allies. As a political statement, it’s a significant blow to the ICC. But as detailed by Ryan Goodman at Just Security and by Kevin Jon Heller at Opinio Juris, it’s also legally dubious. Continue reading →

Posted in Article 98, Bilateral Immunity Agreements, International Criminal Court (ICC), International Law, Mali, United States | 3 Comments

Trials and Tribulations at the Special Tribunal for Lebanon

Posted on January 28, 2014 by Mark Kersten

Earlier this month, the first trials at the Special Tribunal for Lebanon (STL) finally got under way. Karlijn van der Voort joins JiC for this very timely overview of the many difficulties and challenges facing this unique tribunal. Karlijn is a defence lawyer at Verwiel & Van der Voort advocaten and formerly worked for defence teams at the International Criminal Court, Cambodia Tribunal, Yugoslavia Tribunal, Rwanda Tribunal and the Special Court for Sierra Leone. Karlijn is also the author of the Special Tribunal for Lebanon Blog where she is following and commenting on developments at the STL. Enjoy!

(Photo: Toussaint Kluiters / Pool Photo / LA Times)

(Photo: Toussaint Kluiters / Pool Photo / LA Times)

Delivering justice and accountability in the wake of the assassination of former Lebanese Prime Minister Rafik Hariri was always going to be a tall order. Indeed, the Special Tribunal for Lebanon (STL), set up to prosecute those responsible for Hariri’s death, has been beset by controversy ever since it was established. Yet the tribunal has marched onwards and, earlier this month, proceedings against four persons began. The road ahead is replete with challenges. So what can we expect from the STL?

First, a brief backgrounder. At the request of Lebanon, the STL was created in 2007 to prosecute the persons responsible for the 14 February 2005 assassination of Hariri and 21 others, as well as the injuring of 226 more persons. In the indictment against the four accused, the Prosecution outlines that the attack was carried out by a suicide bomber who detonated large quantities of explosives concealed in a Mitsubishi Canter van, aimed at former President Hariri’s convoy close to the St. George Hotel in Beirut, Lebanon.

Trials and Tribunals – In Absentia

On 16 January of this year, the trial proceedings against the first four accused persons commenced (a fifth accused may also be joined to this case) with the Prosecution’s opening statement, though the defendants were not present in the courtroom. Whilst the Tribunal has asked for the handing over of the indicted individuals, the Lebanese authorities have been unable (or unwilling) to do so. Though no one at the Tribunal seems to know exactly where the accused are, chances are that they are hiding somewhere in Hezbollah-governed territory.

Whilst every tribunal faces its own difficulties, the complexities that this Tribunal faces are of a different nature. To begin with, it is for the first time that an international tribunal tries suspects in absentia. This concept is fairly unknown to common law systems, but forms part of the criminal proceedings in most civil law systems. The Lebanese criminal system itself allows trials to try accused persons in their absence if certain strict criteria have been fulfilled. The main criteria are that (i) the accused is informed of the proceedings against him, or everything has been done to ensure that he is informed and one can reasonably assume that he has been informed, and (ii) that the accused person has the right to a retrial if he is apprehended or otherwise shows up in the future. These represent the two main safeguards that are supposed to protect an accused’s rights in case of an in absentia trial.

Given that this is the first time an international tribunal will try suspects in the absence of the accused, the subject of trials in absentia has received a lot of attention, and criticism. It is already challenging to hold in absentia trials in a domestic setting, but the fact that these trials are in an international forum adds an additional layer of complexity. The assassination occurred nine years ago. What if, in ten years’ time, these individuals are arrested and a retrial takes place some twenty years after the events? Will it then still be possible to find witnesses who can testify to their version of the events? Or will the Tribunal mainly rely on the evidence collected by the Prosecution during the initial proceedings? Will the accused be in a position to receive a fair retrial or will that be impossible at that stage?

The accused. (Photo: Reuters Handout)

The accused. (Photo: Reuters Handout)

Trying ‘Terrorism’

A further complication this trial faces derives from the fact that it marks the first time that an international tribunal will prosecute suspects for the act of terrorism. The Statute stipulates that the Tribunal applies Lebanese law, but the Appeals Chamber held that, in defining terrorism, the Tribunal can be guided by international treaty and customary law. This represents the first time that an international tribunal has defined terrorism as an international crime, despite the fact that the international community has, to date, failed to lay down an authoritative definition of this crime. This means that the Tribunal has assumed a responsibility in creating case law on this matter but without any international precedent to draw upon.

Prosecutorial Motivations

Yet another difficulty in this trial is that the Prosecution seems to have been unable to identify or define a motive for the assassination. Though the indictment mentions the alleged intent of the accused, it fails to define a motive. Counsel Mr. Courcelle-Labrousse for defendant Oneissi argued that the Prosecution’s case against his client was “bereft of motive”. Though motive is not an element of the crime of terrorism, the Defence is expected to allege that failure to argue and prove such motive will make the case against their clients a lot weaker. William Schabas writes that: “If an accused can prove lack of motive, this will colour assessment of ostensibly inculpatory factors, especially if the evidence is indirect.” Attacking the Prosecution case from this angle will provide the Defence counsel with a strategy that they are able to pursue without receiving instructions from their clients who are at large and with whom they do not have any contact. Continue reading →

Posted in International Criminal Justice, International Law, Lebanon, Special Tribunal for Lebanon, Terrorism | Tagged , | 1 Comment