Gerry Adams’s Arrest: A Case of Peace vs. Justice?

Posted on May 5, 2014 by Mark Kersten

The arrest of Gerry Adams, the President of Sinn Féin, on allegations that he was involved in the abduction and killing of Jean McConville in 1972 has caused quite the stir. Many are wondering what the implications of Adams’s arrest will be for Northern Ireland’s peace process. The crux of the debate concerns the relationship and tensions between maintaining peace and achieving justice. I wrote the article below for the Globe and Mail who were gracious enough to allow me to repost it, in its entirety, here. 

Jean McConville and three of her ten children.

Jean McConville and three of her ten children.

Peace is a process. It takes time and, because it tends to be fragile, it requires careful cultivation. At the same time, communities increasingly expect that peace will allow for mechanisms to achieve justice. Without prosecuting those responsible for human rights violations and atrocities, peace is often seen as somehow incomplete.

This week, the expectations of cultivating peace and pursuing justice came into sharp relief in Northern Ireland. Investigations are ongoing into crimes committed during the Troubles, a period which began in the late 1960s and ended with the Good Friday Agreement of 1998. The period was characterized by incessant sectarian violence, primarily between Protestant groups loyal to the United Kingdom and Catholic republican forces.

Last week investigators honed in on the long-time president of Sinn Féin, Gerry Adams, and his alleged role in the 1972 kidnapping and murder of 38-year old widowed mother of 10, Jean McConville.

Adams has been a stalwart and a chief broker in the tumultuous peace process since the 1980s and has carefully cultivated his image as something of a patron saint of Northern Ireland’s peace process. With his arrest, Northern Ireland now finds itself in a position all too familiar to transitional states: weighing the imperatives of pursuing justice with the prerogatives of maintaining peace.

The peace in Northern Ireland remains delicate. Tensions continue to simmer. Dozens of politically inspired murders remain unsolved. Major cities continue to be heavily segregated. Official tour guides pointedly refuse to discuss any recent acts of violence, focusing instead on events from the 1970s and 1980s – periods better protected by the passage of time. A two-story high corrugated iron fence, ironically named “Peace Wall,” carves the capital of Belfast, demarcating Protestant and Catholic neighbourhoods.

While sectarian violence has dramatically diminished, it has not yet been extinguished. Militants continue to be “knee-capped” – often by their own sectarian ’side’. Rather than attempting to avoid such fates, victims voluntarily appear before their perpetrators. As one local Belfast resident explained to this author in 2013, the options are clear: “it’s either a bullet in the knee or a bullet in the head.” Despite a commitment from political figures – by both sides of the sectarian divide – to eliminate political violence and eradicate so-called ’punishment shootings’, knee-capping continues. Today, Northern Ireland has become a leading hub for knee cap reconstruction surgery. What many fear is that it could be worse, that Adams’ arrest and potential prosecution will unravel the peace process and instigate a renewal of paramilitary violence.

Republican demonstrators gather at a mural depicting and praising Adams's role in the peace process (Photo: AP)

Republican demonstrators gather at a mural depicting and praising Adams’s role in the peace process (Photo: AP)

The McConville case poses two stark and highly related tests for Northern Ireland. First, is the peace secure enough for justice to run its course? And second, can fair and impartial justice be achieved?

Symptomatic of post-conflict justice is the fact that evidence dredged up for prosecutions long after the alleged crimes have been committed is often unreliable. The evidence against Adams comes, literally, from beyond the grave. Starting in 2001, former Republicans and Loyalists agreed to be interviewed for an academic oral history project at Boston College. A number of the Irish Republican Army participants – who also happen to be political adversaries of Adams – pinpoint Adams as being responsible for McConville’s murder. After lengthy legal wrangling, and despite requests not to release the interviews from former Massachusetts Senator and current US Secretary of State John Kerry, documents from the interviews were eventually turned over to authorities in Northern Ireland. However, the evidence may ultimately be unreliable in a court of law, as their allegations cannot be verified and, due to their deaths, the accusers can never be cross-examined. Continue reading →

Posted in Northern Ireland, Peace Processes, United Kingdom | 5 Comments

ICC Says No to Opening Investigation in Egypt

Posted on May 1, 2014 by Mark Kersten
An anti-Morsi protester in Tahrir Square (Photo: Amr Abdallah Dalsh / Reuters)

An anti-Morsi protester in Tahrir Square (Photo: Amr Abdallah Dalsh / Reuters)

Ever since the Arab Spring and the overthrow of the Hosni Mubarak regime, Egypt has had a rather fluctuant and controversial political relationship with the International Criminal Court (ICC). Today, that relationship took yet another turn.

Earlier this year, a number of highly respected lawyers, representing the Muslim Brotherhood and the political party of ousted Egyptian leader, Mohamed Morsi, requested that the ICC investigate alleged crimes against humanity against civilians since 1 June 2013. Ultimately, the Prosecutor – in consultation with the Court’s registrar – dismissed the request. Here’s the Court’s statement on the subject:

A communication seeking to accept the jurisdiction of the International Criminal Court (“ICC” or the “Court”) over Egypt has been dismissed as not presented on behalf of the concerned State. On 13 December 2013, lawyers acting on behalf of, amongst others, the Freedom and Justice Party (the “Petitioners”) lodged a communication with the ICC Registrar seeking to accept the exercise of the ICC’s jurisdiction pursuant to article 12(3) of the Rome Statute with respect to alleged crimes committed on the territory of the State of Egypt since 1 June 2013.

Upon receiving the communication, as per the established internal procedures, the Registry verified with the Egyptian authorities whether or not such a communication was transmitted on behalf of the State of Egypt, as a result of which, the Registrar did not receive a positive confirmation.

The Registrar further transmitted the communication in reference to the ICC Prosecutor and consulted with her on this matter. After a careful assessment, the Registrar informed the Petitioners that the communication received cannot be treated as a declaration accepting the exercise of the ICC’s jurisdiction pursuant to article 12(3) of the Rome Statute given that they lacked the requisite authority under international law to act on behalf of the State of Egypt for the purpose of the Rome Statute. This assessment should in no way be construed as a determination on the nature of any alleged crime committed in Egypt or on the merits of any evidence presented.

Mohamed Morsi is currently on trial. He faces allegations of inciting the killing of protesters near the presidential palace in 2012. (Photo: AP)

Mohamed Morsi is currently on trial. He faces allegations of inciting the killing of protesters near the presidential palace in 2012. (Photo: AP)

In other words, the Court decided that it could not accept the request to investigate alleged crimes because it did not come from the ruling government in Egypt. To ascertain this, the Registrar asked the government that took power from Morsi whether the Morsi government was the rightful governing authority in Egypt. It seems rather self-evident that they would get the answer they did: that the request to investigate crimes did not come from them.

Notably, the Court’s decision came just four months after the initial request was made. This seems to indicate a greater degree of efficiency in dealing with difficult decisions which could have significant political ramifications. It is certainly a massive improvement from the frustrating tardiness of previous decisions – such as former Prosecutor Luis Moreno-Ocampo taking two years to decide not to open an investigation into Palestine.  Continue reading →

Posted in Arab Spring, Egypt, ICC Prosecutor, ICC Registry, International Criminal Court (ICC) | Tagged , | 4 Comments

Three Reasons Why the ICC Intervenes in Ongoing and Active Conflicts

Posted on April 29, 2014 by Mark Kersten
The debate over whether the ICC should intervene in the ongoing conflict in Syria is as old as the civil war itself. (Photo: Reuters)

The debate over whether the ICC should intervene in the ongoing conflict in Syria is as old as the civil war itself. (Photo: Reuters)

An ongoing and active debate amongst virtually anyone interested in international criminal justice is whether the International Criminal Court (ICC) should or shouldn’t intervene in ongoing and active conflicts. Proponents generally maintain that the ICC can have positive impacts on bringing live conflicts to an end. Conversely, critics maintain that the Court’s interventions complicate conflict resolution and that justice should wait, at the very least, until after the conflict has concluded.

A recent discussion on Twitter touched on this debate as a number of eminent ICC scholars and observers, including Leslie Vinjamuri, David Rieff, Anthony Dworkin, David Kaye, and David Bosco, argued over the merits of an ICC intervention in Syria. Bosco ultimately suggested that “zeitgeist is moving strongly away from [international] judicial intervention in midst of conflict”. This reflects the rather widespread (and perhaps increasingly common) opinion that the potential and real costs associated with ICC interventions into active civil wars are too high. In practice, however, the ICC seems increasingly predisposed to intervening in ongoing and active conflicts. What is less clear and deserves more critical examination is why this is the case.

It Was Built For It

A central, if not the central, element of the ICC’s foundational narrative informs us that the Court is the first-ever permanent international tribunal of its kind. The International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were ad hoc, temporary institutions set up by the United Nations Security Council. The so-called hybrid tribunals in Sierra Leone (SCSL), Cambodia (ECCC), Lebanon (STL) and elsewhere were intended to deal with a specifically defined period of violence. They were also created as specific responses to atrocities that had already been committed – although some, like the ICTY, ended up prosecuting crimes that occurred afterwards and others, like the STL, may ultimately have their jurisdictions expanded.

In contrast, the permanent ICC was built as a forward-looking and potentially universal institution which would respond to any commission of international crimes within its jurisdiction. While it cannot investigate any atrocities prior to 1 July 2002, its forward jurisdiction is limitless. In theory (if not necessarily in practice), where atrocities occur is irrelevant to the ICC; if the Court has jurisdiction over individuals alleged to have committed international crimes, it is expected to investigate them. And, it should go without saying, atrocities under the ICC’s jurisdiction are as or more likely to occur during periods of violent political conflict than during times of ‘peace’. Notably, the ICC has no jurisdiction to investigate in exceptions to this rule, such as North Korea, Burma and post-war Sri Lanka.

Lastly, the ICC is a treaty-based institution. Its viability depends on the will of states to fund its work, cooperate with its investigations and enforce its arrest warrants. The Court would be little more than a shell of itself if the international community wasn’t interested in engaging it. In this context, it is important to note that, since its creation, states have been primarily interested in how the ICC can be utilized in the context of active conflicts. It should thus come as no surprise that the vast majority of situations investigated by the ICC have constituted ongoing conflicts.

It isn’t by chance that the ICC has intervened in ongoing wars. It was built to do so.

The ICC's investigation in Mali was its most recent intervention, again into an ongoing and active conflict. (Photo: (Issouf Sanogo / AFP / Getty Images)

The ICC’s investigation in Mali was its most recent intervention, again into an ongoing and active conflict. (Photo: (Issouf Sanogo / AFP / Getty Images)

It Is Expected To

But it isn’t just that the ICC was created to intervene in live conflicts. It is also increasingly expected to do so.

When conflicts erupt, citizens advocating for international intervention – judicial or otherwise – aren’t typically in the mood to wait. The wisdom of such heightened expectations can be debated but, generally speaking, those who suffer from atrocities are keen for action to be taken as quickly as possible. The calls by demonstrators demanding that the ICC intervene in Syria and bring Assad to The Hague weren’t requests for the Court – or the international community – to take it slow and wait until a transition had passed. Moreover, states fighting rebel armies or opposition groups combating autocratic governments also aren’t interested in waiting – they want the legitimacy bestowed to them by ICC as soon as possible.

At the same time, the swirling rhetoric around the Court from human rights groups and advocates is intended to reaffirm and reinforce the Court’s role in transforming and resolving political violence. Whether it is slogans like “there is no peace without justice”, or arguments that the Court can remove potential spoilers from peace processes and that it can have a specific deterrent effect on the conflicts in which it intervenes, the expressed role of the ICC is a reflection of its intended effects on ongoing conflicts.

It Wants To

Beyond fulfilling the expectations that it intervene in ongoing and active conflicts, the brief history of the ICC demonstrates rather clearly that the Court receives more cooperation from states when it intervenes in ongoing conflicts than once a conflict has been terminated. Consider a few examples. Continue reading →

Posted in Conflict Resolution, International Criminal Court (ICC), Justice, Kenya, Kenya and the ICC, Libya, Libya and the ICC, Lord's Resistance Army (LRA), Peace Processes, Uganda | 3 Comments

If the Rwandan Genocide Happened Today, Would We Get It?

Posted on April 22, 2014 by Mark Kersten
Clothes that belonged to victims of the Rwandan Genocide hang in the Murambi Genocide Memorial Center (Photo: Shawna Nelles)

Clothes that belonged to victims of the Rwandan Genocide hang in the Murambi Genocide Memorial Center (Photo: Shawna Nelles)

The story is familiar. When the killing started, everyone who was able to flee did so. As unprecedented violence erupted in Rwanda, Westerners boarded planes that whisked them back to safety. A few UN peacekeepers stayed but, as famously recounted by Canadian General Romeo Dallaire, they weren’t able to stop the violence. The United Nations famously dithered. Michael Barnett’s seminal work suggests that the UN wasn’t ignorant or oblivious to what was happening on the ground. But in the invigorating post-Cold War era where the UN finally had the opportunity to assert itself, intervention in Rwanda simply wasn’t considered a ‘winning’ option.

Three months after the carnage began, some 800,000 Tutsis and Hutus perished. Sadly, concerns remain over the continuity of pre-genocidal politics in Rwanda and the potential for this small land-locked country to once again descend into bloody tyranny. “No More Rwandas” may be a popular slogan for genocide prevention campaigners around the world. But in a bitter twist of irony, it may also be an appropriate mantra for Rwanda itself.

These issues have been and will continue to be rehashed and revisited. This April marked the 20th anniversary of the Rwandan Genocide and observers still struggle to identify the lessons that should be drawn from those three vicious months in 1994.

An issue that needs continued and critical reflection is how the Genocide was reported and covered by the international media. As Bartholomäus Grill, one of the few journalists who covered the Genocide notes,

It wasn’t just the UN, the West and other African nations that failed; it was also journalists, like me. We ran after the big story in South Africa, paying little attention to Rwanda or merely spreading clichés about the country.

News outlets generally did an atrocious job of covering the atrocities in Rwanda. Many news agencies simply weren’t interested in what was happening on the ground. I was told recently, by one of the small handful of journalists who were in Rwanda during the Genocide, that only seven or eight reporters covered the violence from within the country. And few, if any, stayed for the entire period.

News agencies were undoubtedly concerned about the magnitude of violence in Rwanda and putting their staff in danger. Perhaps as a result, the few journalists and reporters who were sent to cover the Genocide were generally unexperienced. But outlets were also distracted and wanted their top people to cover other momentous events. Most notably, news agencies sent top journalists to cover the election of Nelson Mandela and his “long walk to freedom”. The developing horror story in Rwanda got the shaft.

Making matters worse, the journalists that did cover the genocide generally mischaracterized events and leaned heavily on a black-and-white, ‘good’ versus ‘evil, morality tale. According to one report from the New York Times, the violence stemmed from age-old ethnic hatreds:

Tens of thousands of people are estimated to have died in a week of fighting rooted in the centuries-old feud between Rwanda’s majority Hutu and minority Tutsi ethnic groups. Many have been hacked to death by gangs with machetes, knives and spears.

The report is emblematic of others from the time. Each saw events in Rwanda through the prism of the all too irresistible heart of darkness narrative wherein violence is something quintessentially African, utterly senseless, undoubtedly backward and, above all, apolitical.

This church, in the village of Nyarubuye, now serves as a memorial (Photo: Ben Curtis / AP)

This church, in the village of Nyarubuye, now serves as a memorial (Photo: Ben Curtis / AP)

This isn’t to place undue blame on the journalists that covered the Rwandan Genocide. They were thrown into a complex political environment with almost no knowledge of the political history of the country. Getting it right would have required a miracle.

Some journalists who were in Rwanda still feel guilt for their faulty coverage. Lindsey Hilsum, who reported from Kigali in the first days of the Genocide, recalled how difficult it was to cover events in 1994:

We simply didn’t think about the idea of war crimes or genocide. That was something that happened to Jews, and perhaps to a degree in the Balkans or with Pol Pot…I didin’t use the word ‘genocide’ until the end of the month, for other journalists it took longer.

I didn’t go out because there were roadblocks everywhere with drunk men with red eyes and machetes. The phone didn’t stop ringing. It was my Tutsi friends calling me to say ‘they are at the door’ or ‘this is the last time I can talk to you’. I wrote down what they said as my reports, but I still didn’t join the dots to realise this was genocide.

Grill also recently expressed a sense shame at his reporting of the Genocide. The violence was not the product of some pre-modern thirst for bloodshed, “killing sickness” or “insidious virus”. As Grill notes:

Today we know that the genocide was not the work of archaic, chaotic powers, but of an educated, modern elite that availed itself of all the tools of a highly organized state: the military and the police, the intelligence services and militias, the government bureaucracy and the mass media.

So what have journalists learned? If another Rwanda were to happen today, how would it be covered?  Continue reading →

Posted in Central African Republic (CAR), Genocide, Journalism, Justice, Rwanda | 3 Comments

If the ICC Intervened in Ukraine, Russia Probably Wouldn’t Mind

Posted on April 18, 2014 by Mark Kersten

 

Election commission officials and police in Simferopol (Photo: Reuters)

Election commission officials and police in Simferopol (Photo: Reuters)

According to the Registrar of the International Criminal Court (ICC), Herman von Hebel, Ukraine has accepted ICC jurisdiction over alleged crimes that occurred on Ukrainian territory between between 21 November 2013 and 22 February 2014. This limited period covers government attacks on protesters in the Maidan and, notably, the time before Crimea was annexed by Russia.

Prevailing wisdom (see here, for example) suggests that the ICC – if it chose to intervene – would target the big bad Russian-backed Ukrainian thugs who have destabilized Ukraine. Indeed, when MPs in Ukraine first declared that they would seek ICC intervention, they specifically sought to target former Ukrainian President Viktor Yanukovych. The former President, who has basically disappeared in recent weeks, has already had an arrest warrant issued for him by Ukraine’s Interior Ministry. Ukrainian authorities may also have been prodded by their European Union allies. The recent EU-Ukraine Association Agreement declares that:

The Parties shall cooperate in promoting peace and international justice by ratifying and implementing the Rome Statute of the International Criminal Court (ICC) of 1998 and its related instruments.

Still, Russia may not be as opposed to an ICC investigation in Ukraine as we may think. According to RT, some Russian MPs are actually pushing for the ICC to investigate Ukrainian ultra-nationalists:

A majority party MP has asked Russian investigators to prepare an official letter to the ICC describing crimes by members of Ukrainian nationalist groups – including the infamous Right Sector – and asking they be recognized as extremist.

The author of the initiative, MP Mikhail Markelov (United Russia) has told Izvestia daily that both the Right Sector and another mass Ukrainian nationalist organization, UNA-UNSO, have long and rich histories of involvement in various military conflicts…

…Markelov told the newspaper that in his view this record was enough to make the International Criminal Court in The Hague issue a verdict recognizing the nationalist groups as extremist and ensuring an international status of political outcasts for them.

(Photo: Viktor Drachev/AFP/Getty Images)

(Photo: Viktor Drachev/AFP/Getty Images)

Here, it is important to recall leaked discussions (by European leaders) suggesting that some of the attacks on civilian protesters in Kiev were committed by the opposition and not pro-Yanukovych or pro-Russian forces. But irrespective of the legal merits of Markelov’s arguments, it shouldn’t be altogether shocking that Russian officials would welcome an ICC intervention. Russia is already heavily involved in another ICC case, namely the Court’s preliminary investigation into the August 2008 war between Russia and Georgia.

Russia is convinced that they were right (and legally mandated) to protect ethnic Russian civilians in South Ossetia and Abkhazia and that Tbilisi bares primary responsibility for any alleged crimes committed during the war. As a result, Moscow has not been opposed to the ICC’s involvement in investigating the conflict, likely seeing the Court as a means to adjudicate ultimate guilt and responsibility for the war. Sound familiar?

If the ICC does open an investigation into events in Ukraine between 21 November 2013 and 22 February 2014, Russia will almost certainly cooperate with the ICC. It will do so selectively, of course, likely by swamping the Prosecutor’s office with evidence of alleged Ukrainian abuses. Russia did precisely that in the case of Georgia. At the same time, Moscow likely won’t be very worried that Ukraine is backed by the West. After all, so too was Georgia.  Continue reading →

Posted in International Criminal Court (ICC), Russia, Ukraine | Leave a comment

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