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

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

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

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

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

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

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

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

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

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

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

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

(Photo: AP)

Update / Clarification

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

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

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

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

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

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

————————————————————-

Original Post:

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

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

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

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

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

Unfortunate but Unsurprising? Obama Undermines the ICC

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

(AP Photo/Carolyn Kaster)

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

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

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

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

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

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

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

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

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

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

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

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

Trials and Tribulations at the Special Tribunal for Lebanon

Posted on January 28, 2014 by Mark Kersten

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

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

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

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

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

Trials and Tribunals – In Absentia

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

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

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

The accused. (Photo: Reuters Handout)

The accused. (Photo: Reuters Handout)

Trying ‘Terrorism’

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

Prosecutorial Motivations

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

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

Peace versus Justice in Syria

Posted on January 23, 2014 by Mark Kersten
The venue of the Geneva II peace talks (Photo: PressTV)

The venue of the Geneva II peace talks (Photo: PressTV)

As talks between the Syrian government and Syrian opposition stumble in the opening phases of the so-called Geneva II negotiations, a hot topic is whether those parties responsible for atrocity crimes in Syria can and should be prosecuted.

Of course, this debate has been ongoing since the beginning of the Syria’s civil war. Early on, Western governments funded a team of investigators to collect evidence of alleged war crimes and crimes against humanity, a process that has apparently continued to this day. At the same time, there have been numerous calls by organizations and states for the situation in Syria to be referred to the International Criminal Court (ICC). Because Syria is not a member-state of the ICC, doing so would require a resolution from the United Nations Security Council. Last September, the possibility of referring Syria to the Court was shot down by the Council. According to Carsten Stahn, the potential referral “was sacrificed for the purpose of facilitating a diplomatic compromise over the enforcement regime.”

For a host of reasons (and not just the tired argument that Russia will block any referral), an investigation of crimes in Syria by the ICC isn’t going to happen any time soon. Not even the use of chemical weapons against civilians was enough to alter the stalemate over justice and accountability. Making things particularly tricky is that there is evidence that both sides of the conflict have committed crimes within the jurisdiction of the ICC. Yet (and perhaps as a result), amongst those political actors with leverage, there appears to be little-to-no appetite for accountability in Syria. This is evidenced by the lack of interest in middle-ground options such as a conditional referral, a referral-deferral or the creation of an ad hoc tribunal.

Of course, any suggestion that international criminal justice should be pursued in the context of ongoing hostilities in Syria leads us to the familiar “peace versus justice” debate. Within this debate, there are broadly two camps: one which views international criminal justice as a necessary and useful tool which can deter crimes, marginalize perpetrators and even be conducive to peace negotiations; and a second camp which sees judicial interventions as deleterious to peace talks and claims that it creates disincentives for warring parties to negotiate and leads to increased levels of violence.

To date, those who have engaged in the debate have largely recycled the claims and arguments from one camp or the other and applied them to new and emerging contexts. Thus any potential prosecution of Bashar al-Assad is either necessary to any sustainable peace in Syria or constitutes a naive and dangerous proposition which could prolong violence in the country.

United Nations-Arab League special envoy for Syria Lakhdar Brahimi, US Secretary of State John Kerry and Russian Foreign minister Sergey Lavrov (Photo: Getty Images)

United Nations-Arab League special envoy for Syria Lakhdar Brahimi, US Secretary of State John Kerry and Russian Foreign minister Sergey Lavrov (Photo: Getty Images)

If the Geneva peace talks ultimately fail, it obviously won’t be because of the ICC but a host of other factors. But if the ICC does intervene and the peace talks also fail, critics will point their accusatory fingers at the Court, ascribe responsibility for the failure of negotiations to the Prosecutor and neglect the very factors that would have led to the talks failing irrespective of an ICC intervention. The moving parts would be brushed aside because, within the dominant lenses of the “peace versus justice” debate, the ICC can only help or a hinder to peace. It remains too rarely conceded that the Courts effects are mixed and, even more rarely, that they might be negligible. Continue reading →

Posted in Peace Negotiations, Syria | Tagged , | 3 Comments

The ICC in Afghanistan: Peace, Justice and Accountability

Posted on January 21, 2014 by Mark Kersten

Djeyhoun Ostowar joins JiC for this fascinating glimpse into some of the key issues and dilemmas that frame any potential intervention by the International Criminal Court into Afghanistan. Djeyhoun is a PhD student at the War Studies Department of King’s College London where his research focuses on the nexus of peace and justice in Bosnia and Afghanistan, in particular assessing the timing and sequencing of different peace building and transitional justice mechanisms.

(Photo: UNAMA)

(Photo: UNAMA)

Debates on justice in Afghanistan have generally neglected the role of the International Criminal Court (ICC). International and national attention has focused on domestic opportunities for justice. Following the notorious silence on accountability in the initial phases of the post-Taliban transition, the work of the civil society, in particular the Afghanistan Independent Human Rights Commission (AIHRC), inspired some hope that justice for heinous crimes committed during the different stages of the unyielding conflict in Afghanistan (1978 – ) could still be achieved. However, the comprehensive and ambitious Transitional Justice Action Plan that was signed by President Karzai in 2005 failed dramatically and was eventually discarded altogether in 2010.

With the disappointment over transitional justice options in Afghanistan, the passing of an amnesty law in the Afghan parliament in 2007, and the now imminent drawdown of military and political engagement of the international community in the country after 2014, the ICC has become one of the very few serious options still available in the face of impunity for past crimes and a lack of serious accountability measures for ongoing violations in Afghanistan. Afghanistan is currently only at the preliminary investigation stage at the ICC but at some point in the near future it will have to be decided whether formal investigations should start (the country has been in the preliminary examinations for more than 6 years – the longest period so far). There are many issues that can be raised in connection to the potential operation of the ICC in Afghanistan but the key question is how the ICC could affect the prospects for peace and stability in the country.

The ICC in Afghanistan: Obstacles Abound

Any potential involvement of the ICC in Afghanistan faces many challenges/ It is therefore important to be realistic about what the ICC can achieve in terms of justice and accountability in this country. There is not only the obvious temporal limitation of addressing only the crimes that were committed from 1 may 2003 (the date of the start of the ICC jurisdiction on the territory of Afghanistan) – thereby leaving various incidents and abuses prior to this date beyond the consideration of the court – but also a number of other concrete practical and legal obstacles. There is a basic question of who will be responsible for and likely to follow through the commitment of detecting, apprehending and extraditing potential ICC indictees.

As it stands, the prospects are not particularly encouraging. Neither the Afghan government, despite its ratification of the Rome Statute, nor the government of the main international intervening force, the US, has shown openness to the idea of delivering own citizens at an international court. There is no need to explain that the chances that the Taliban and affiliated armed groups will ever cooperate with an international court are almost nonexistent.

Furthermore, there are serious legal challenges associated with the endeavour. Washington still does not recognize the jurisdiction of the ICC and even has a controversial law dubbed ‘The Hague Invasion Act‘, under which the American forces could unilaterally invade the Netherlands to free American war crime detainees. There is no historical precedence on this yet so the validity and practical value of the Act has not been tested. But as pointed out by Kevin Jon Heller in a post on the topic, the US and Afghanistan also have a ‘bilateral immunity’ agreement, signed in September 2002. This agreement imposes direct legal constraints on the Afghan government’s ability to surrender US citizens to the ICC, independently from the rather slim chance of a hypothetical situation where the Afghan government would seek to apprehend an American citizen in order to extradite him/her to the Court (imagining a top Taliban detainee being delivered to the ICC by Kabul instead of being prosecuted at home is only slightly more imaginable).

The ICC, and perhaps the International Court of Justice (ICJ), in case of a legal dispute between the US and Afghanistan, would have to grapple with this limitation as a separate question. In addition to the problems mentioned above, there are a multitude of other legal and practical challenges associated with investigating specific crimes in a situation of ongoing conflict, identifying direct suspects when some of them may not longer be on the territory of Afghanistan, and dealing with such issues as ‘command responsibility’ and ‘proportionality’ in military operations.

An Afghan soldier in Wardak Province, Afghanistan (Photo: Mauricio Lima / The New York Times)

An Afghan soldier in Wardak Province, Afghanistan (Photo: Mauricio Lima / The New York Times)

Hope Remains

While the above mentioned challenges should not be ignored nor be underestimated, they do not provide sufficient reason to give up the ICC option. Some see an ICC intervention as potentially detrimental. Rahim Kanani warned against “the inevitable political ramifications” in case an official investigation by the ICC would start. He explained: “If a case is officially opened, the Prosecutor must deal with both allegations against the Taliban and the NATO troops. While the former yields no grief, the latter will surely cause a stir”. However, an immediate question here would be: is there any situation where the ICC has opened investigations that was completely uncontroversial politically? Political stir and controversy are not in themselves sufficient justification for opposing the involvement of the ICC. Similarly, the challenge of realizing apprehensions and extraditions is not particular to the case of Afghanistan. In the situations of Northern Uganda and Sudan, for example, this problem was apparent, with the ICC not being able to count on sufficient cooperation in terms of arresting and delivering the indictees. Other issues, such as legal obstacles related to jurisdiction, the bilateral immunity agreement, command responsibility are all real challenges. However, as in any similar situation, these questions should be left for the ICC – or another appropriate legal authority – to adjudicate. Continue reading →

Posted in Afghanistan, International Criminal Court (ICC), International Criminal Justice | Tagged | 1 Comment

Iraq’s Long Shadow of Injustice Haunts Britain

Posted on January 16, 2014 by Mark Kersten
(Photo: PressTV)

(Photo: PressTV)

Earlier this week, I wrote a post on the filing of a complaint at the International Criminal Court (ICC) over alleged abuses committed by UK officials in Iraq. On Tuesday, I attended the official launch of the complaint at the Law Society in London and subsequently had the opportunity to write a more comprehensive article over at Foreign Policy. For those interested, here’s an excerpt:

It is often said that unresolved human rights violations cast a long and harrowing shadow. Atrocities and crimes committed in the past can come back to haunt even the most powerful states. For Britain, that restless shadow is the war in Iraq.

Earlier this week, two groups — the European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) — lodged a formal complaint at the International Criminal Court (ICC), demanding that the ICC investigate British political and military officials for their alleged role in the commission of war crimes in Iraq. The filing maintains that senior figures within the British government bare the greatest responsibility for systematic torture and cruel, inhuman, and degrading treatment of Iraqi citizens between 2003 and 2008.

The complaint comprises a judiciously organized, comprehensive, 250-page dossier. Notably, it relies not only upon witness testimony but on documents and manuals revealed and produced by various commissions, inquiries, and British ministries. Its focus is on Britain’s Ministry of Defense and officials such as General Sir Peter Wall, former Defense Secretary Geoff Hoon and former Defense Minister Adam Ingram. Those hoping to see former Prime Minister Tony Blair targeted will be disappointed; his name does not appear once in the filing.

While the ICC is frequently criticized for its myopic focus on sub-Saharan Africa, attention has shifted in recent years, rather dramatically, toward the Middle East and North Africa. The court has grabbed headlines for its actual and potential role in Libya, Syria, Palestine, and now Iraq.

Still, the complaint should not be confused as constituting a judicial intervention into Iraq. Rather, this week’s filing could represent the best opportunity to expose senior British officials to investigation by the ICC. This poses an unprecedented political and legal challenge for the court.

You can read the rest of the post here.

Posted in International Criminal Court (ICC), Iraq | 2 Comments

Rethinking Amnesty and Accountability

Posted on January 14, 2014 by Mark Kersten

On 2 January 2014, Nepal’s Supreme Court ordered the Nepalese Government to amend a law to establish a truth commission with the power to recommend amnesty. The Court also instructed the government to establish a team comprising conflict experts, victims’ representatives, human rights law experts and other stakeholders to advise on how to make the amnesty provisions compliant with domestic and international law. In this guest-post, Louise Mallinder argues that The Belfast Guidelines on Amnesty and Accountability, recently published by an Expert Group of scholars and practitioners, could provide a valuable resource to inform these debates. Louise is a reader in international law and human rights at the Transitional Justice Institute, University of Ulster. 

(Photo: AP)

(Photo: AP)

Nepal’s decade-long civil war claimed the lives of over 13,000 persons. There were 1,300 enforced disappearances. The country’s transition from conflict and autocratic rule has been arduous. It began with signing of the Comprehensive Peace Agreement in 2006, in which the main political parties and the Maoist rebels committed themselves to investigating and taking “lawful action … against individuals responsible” for human rights violations, refraining from encouraging impunity, and providing reparations to victims. Still, since 2006, political instability has returned and the country has made limited progress in addressing the legacy of the conflict.

Draft legislation on a truth commission and a separate Disappearances Commission were subject to public consultation in 2011 but failed to be promulgated before parliament was dissolved in May 2012. In the absence of a functioning legislature, the Council of Ministers, representing the four major political parties, adopted the Ordinance on the Investigation of Disappeared Persons, Truth and Reconciliation Commission (unofficial translation) in August 2012. The President enacted the Ordinance in March 2013. It immediately faced criticism from victims’ organizations and human rights campaigners, including the OHCHR.

The Commission’s Powers to Recommend Amnesty and Prosecutions

The Ordinance provided that the Truth and Reconciliation Commission would be tasked with investigating disappearances, crimes against humanity and gross violations of human rights and recommending reparations for victims. It would also work to end the “state of impunity by bringing perpetrators” of serious violations “under the ambit of the law”.

More controversially, the Commission would be empowered to recommend that the Nepalese Government grant amnesty to individual offenders. The Ordinance did not explicitly propose amnesty be granted for gross violations of human rights, stipulating that amnesty could not be recommended for “serious crimes that lack sufficient reasons and grounds for granting amnesty”. However, it also did not define “serious crimes” nor clarify the grounds that could prevent serious crimes being amnestied.

For an offender to be eligible for amnesty, the Ordinance stipulated that he or she must

  • Inform the Commission of the facts relating to the full extent of his or her involvement in crimes during the armed conflict
  • Submit an individual written application for amnesty
  • Repent in writing their ‘misdeeds’ during the conflict “to the satisfaction of the victim”

The Commission would have robust investigative powers, but the Ordinance did not address how the Commission would determine if offenders had truthfully disclosed their criminal acts.

The Commission could also recommend to the Attorney General that perpetrators be subject to legal action under existing law. If the Attorney General decided to prosecute a case, the Ordinance stipulated that charges must be filed within 35 days. There is no requirement in the Ordinance that charges must be brought following a recommendation from the Commission. In deciding whether or not to recommend amnesty, the Commission had the option of consulting victims.

Government troops on a patrol in 2005 (Photo: Gurinder Osan / AP)

Government troops on a patrol in 2005 (Photo: Gurinder Osan / AP)

Supreme Court’s Decision on Amnesty

A coalition of victims’ organizations responded to the Ordinance by demanding that the Supreme Court repeal the sections relating to amnesty and amend the legislation to require prosecutions. In its January 2014 decision, the Court ordered a series of amendments. With respect to amnesty, it held that:

“The provision of amnesty in Section 23 of the Ordinance does not appear to have guaranteed not to recommend amnesty for [serious violations of human rights]. These crimes are made the subject of amnesty, and instead of making participation and consent of victims for the amnesty process primary, it has been made secondary. This makes it evident that this provision is against the victims’ fundamental right to justice including their right to life and liberty, right to information, right against torture, and against the accepted principles of justice. Therefore, this provision needs to be reviewed, reformed and amended accordingly.” (emphasis in original)

This raises two questions that must be addressed by the proposed Nepalese Expert Group and in the amendments to the legislation:

  • What legal prohibitions exist on the granting of amnesty for serious crimes?
  • What role should victims have in decisions to recommend or grant amnesty?

These questions are among the issues tackled in the Belfast Guidelines on Amnesty and Accountability.

The Approach of the Belfast Guidelines on Amnesty and Accountability

The Belfast Guidelines were produced by a group of independent, interdisciplinary scholars and practitioners around the world. The Guidelines aim to assist all those seeking to make or evaluate decisions on amnesties and accountability in the midst or in the wake of conflict or repression. Their recommendations draw on international legal sources, such as international treaties and customary international law; decisions
 by international criminal courts and human rights bodies; UN declarations, guidelines, resolutions and other standards; as well
as national amnesty processes and case law, and scholarly writings. Continue reading →

Posted in Amnesty, Guest Posts, Nepal | Tagged , | 1 Comment

The ICC and Iraq: “A Pinochet Moment”?

Posted on January 13, 2014 by Mark Kersten
Former UK PM Tony Blair in Iraq (Photo: PA)

Former UK PM Tony Blair in Iraq (Photo: PA)

A formal complaint has been lodged at the International Criminal Court (ICC) requesting that senior British military and political officials – including General Sir Peter Wall, former Defence Secretary Geoff Hoon and former Defence Minister Adam Ingram – be investigated for their alleged responsibility for war crimes committed during the war in Iraq. The complaint was filed by two groups: the European Centre for Constitutional Rights (ECCHR) and Public Interest Lawyers (PIL). The UK government has vociferously rejected any notion of the ICC investigating British officials, maintaining that enough is being done to ensure that any abuses by British troops are investigated and prosecuted.

This isn’t the first time that the ICC has been asked to investigate alleged atrocities committed by intervening powers in Iraq. The ICC’s Office of the Prosecutor has received hundreds of such requests. In 2006, former ICC Chief Prosecutor Luis Moreno-Ocampo dismissed the idea of an official investigation on the grounds that the alleged crimes were not of sufficient “gravity” to warrant further investigation or prosecution.

Some believe, however, that the Prosecutor was guided by a desire not to ruffle the feathers of Western states, particularly the US. A Wikileaks cable painted Moreno-Ocampo as being reluctant to investigate alleged crimes in Iraq:

Less clear are [Ocampo’s] views on Iraq,” the cable states. “Ocampo has said that he was looking at the actions of British forces in Iraq — which … led a British ICTY prosecutor nearly to fall off his chair.

Privately, Ocampo has said that he wishes to dispose of Iraq issues (ie. Not to investigate them.)”

Reports of the former Prosecutor’s recalcitrance fit well with the view that Moreno-Ocampo sought to mollify and accommodate US political interests with the ultimate aim of improving the tumultuous relationship between the world’s superpower and the fledgling new court. This is incisively explored in David Bosco‘s new book, Rough Justice: The International Criminal Court in a World of Power Politics.

Still, this apparent accommodation to Western powers has come at a significant cost to the ICC’s legitimacy and reputation. For many, this is particularly evident in the growing perception of the Court as an institution applying uneven justice and only targeting weak states. This issue was eloquently covered in a recent article by Professor William Schabas, entitled The Banality of International Justice.

338793_troopsSchabas, who is also involved in the Iraq filing, has drawn parallels between the request to investigate alleged abuses by British forces in Iraq and the perception of the ICC as being a biased Court. In describing the PIL and ECCHR’s filing, Schabas declared:

“What this application does is throw down the challenge to the court to show there are no double standards.”

A similar point was made by ECCHR Secretary General, Wolfgang Kaleck:

“The International Criminal Court in The Hague is the last resort for victims of torture and mistreatment to achieve justice. Double standards in international criminal justice must end. War crimes and other severe violations of human rights must be investigated and prosecuted, regardless of whether they are committed by the most powerful.”

Continue reading →

Posted in International Criminal Court (ICC), Iraq | 5 Comments

A Snowball’s Chance in Cairo: The ICC To Intervene in Egypt?

Posted on January 9, 2014 by Mark Kersten
A protestor cheers after a Muslim Brotherhood office was ransacked (Photo: Reuters)

A protestor cheers after a Muslim Brotherhood office was ransacked (Photo: Reuters)

A group of international lawyers and legal scholars representing the Muslim Brotherhood are pushing for the International Criminal Court (ICC) to investigate alleged crimes committed in Egypt. According to The Globe and Mail’s Paul Waldie, the Brotherhood’s legal team believe that violence committed by the Egyptian army constitutes crimes against humanity:

The legal battle is led by a team in London that includes one of Britain’s top international criminal lawyers, a former official with the United Nations and the former director of public prosecutions in Britain. The lawyers have not only filed a complaint with the ICC alleging widespread crimes against humanity by the military, but they also plan to file a series of lawsuits around the world targeting individual Egyptian army officers.

The most obvious obstacle to the ICC intervening in Egypt is the fact that the country is not currently a member-state of the Court, despite occasional proclamations that it would sign and ratify the Rome Statute. Thus, for the ICC to investigate any alleged crimes committed in Egypt, one of two things would have to occur: First, the UN Security Council could refer Egypt to the ICC. It goes without saying that that is not going to happen; such a referral is not on the Council’s radar. Second, the Egyptian government could voluntarily refer a particular event or time-period to the ICC, even if Egypt is a non-member state. There is precedence for this. Despite not being a member of the ICC, Ivory Coast accepted the Court’s jurisdiction in April 2003.

This second option represents what the legal team representing the Muslim Brotherhood believe should happen. And it is here where their efforts become particularly controversial and political. The team seems to be suggesting that the ousted former President and Muslim Brotherhood leader Mohammed Morsi, is the rightful leader of Egypt and, therefore, can refer violence in Egypt to the Court. This is a tenuous argument at best. While there are ongoing questions about the legitimacy and legality of the coup that deposed Morsi, there are few who would suggest that he remains the head of state of Egypt. According to Kevin Jon Heller, for example,

“…there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions … but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.”

Morsi former US Secretary of State Hilary Clinton (Photo: Flickr)

Morsi former US Secretary of State Hilary Clinton (Photo: Flickr / Political Violence @ a Glance)

Thus, beyond an intellectual exercise, it would be hard, if not impossible, to argue that Morsi was the rightful President of Egypt who could request the ICC to investigate alleged crimes committed in the country.

But there is another issue to consider here: does the ICC have any interests in intervening in such a case? After all, the filing has been made and at some point (likely in the distant future), the Court’s Office of the Prosecutor will have make an official decision to open an investigation or not.  Continue reading →

Posted in Egypt, International Criminal Court (ICC), Palestine, Palestine and the ICC | Tagged , | 4 Comments