The ICC’s End Days? Not So Fast

Posted on March 20, 2014 by Mark Kersten

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

(Photo: International Criminal Court)

(Photo: International Criminal Court)

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

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

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

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

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

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

Jermain Katanga (Photo: RNW)

Germain Katanga (Photo: RNW)

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

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

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

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

New Opportunities for Justice in Sri Lanka?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Katanga Verdict and Its Legacy for International Criminal Justice

Posted on March 12, 2014 by Mark Kersten

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

Germain Katanga (Photo: Phil Nijhuis/EPA)

Germain Katanga (Photo: Phil Nijhuis/EPA)

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

Legacy from the perspective of the Court

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

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

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

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

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

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

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

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

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

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

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

Legacy from a broader perspective

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

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

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

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

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

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

Posted on March 10, 2014 by Mark Kersten

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

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

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

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

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

ICTR Launches Best Practices Manual

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

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

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

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

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

A Shared Endeavour Across the Tribunals

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

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

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

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

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

Russia’s Responsibility to Protect in Ukraine?

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

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

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

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

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

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

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

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

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

You can find the rest of the article here.

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

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

Posted on March 3, 2014 by Mark Kersten

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

(Photo: Flickr / waterdotorg)

(Photo: Flickr / waterdotorg)

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

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

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

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

(Photo: Reuters)

(Photo: Reuters)

Women Victims, Women Agents

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

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

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

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

Addressing the past, looking to the future

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

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

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.

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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.

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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