Happy 2014 from JiC (Plus Predictions)!

Posted on January 6, 2014 by Mark Kersten

fireworks-wallpapers-fireworks-blue-hd-pics-1Dear readers,

Happy New Years!

2013 brought a host of fascinating developments in the world of international criminal justice. With around a 100 posts, our regular contributors, guest-posters and I myself tried to cover as much as we could and provide thoughtful commentaries. We look forward to doing the same in 2014.

To ring in the new year, here are five predictions (some more plausible than others) for 2014:

– The ICC will open its first official investigation outside of the African continent. It will ruffle the feathers of Western powers, but the Court’s investigations will be restricted enough not to make them sweat.

– Joseph Kony will remain elusive. There may be reports of “surrender talks” or perhaps even his death but he will not be captured.

– Another Libyan will be indicted by the ICC and Libya will not have any issue with it. But, when 2015 rolls around, Saif al-Islam Gaddafi will still not have been tried and the ICC’s Office of the Prosecutor will not have any issue with it.

– Not only will the Court not intervene in Syria, but no resolution at the UN Security Council will be proposed to refer the situation there to the ICC.

– I will finish my PhD.

What are your predictions?

Thank you all, as always, for your readership and contributions. Here’s to another year of a little more justice and a little less conflict!

Mark

Posted in JiC News | 2 Comments

UPDATED – What a Mess: ICC Prosecutor Seeks Delay in Kenyatta Trial

Posted on December 19, 2013 by Mark Kersten
(Simon Maina/AFP/Getty Images)

(Simon Maina/AFP/Getty Images)

Yet another twist in the trial of Kenyan President Uhuru Kenyatta. Yet another win for victory for critics of the International Criminal Court (ICC). And yet another delay in the pursuit of justice and accountability for Kenya’s 2007/08 post-election violence.

The Kenya trials have already been ravaged by incessant controversy, repeated delays and a nasty war of words between Kenya, its allies and the Court. Now, ICC Chief Prosecutor Fatou Bensouda has declared that the prosecution does not have enough evidence to proceed with Kenyatta’s prosecution and, as a result, is seeking an adjournment in the trial. The Prosecution’s reasoning is based on the fact that some of its key witnesses were no longer reliable and thus “the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial.”

From the outset of her statement, the Prosecutor sought to make it clear that her decision was based on legal reasoning and not external political pressure:

My decision is based solely on the specific facts of this case devoid of extraneous considerations. As Prosecutor, I have consistently stated my actions and decisions are at all times strictly guided by the evidence in accordance with the Rome Statute legal framework. This recent decision is no different. It is my professional duty to react, and to take the necessary decisions when the state of the evidence changes, as it has in this case.

In truth, it won’t really matter whether the decision was legally based or not. On the back of the Assembly of States Parties conference where states agreed to accommodate Kenyatta’s request to avoid being present at trial, as well as  significant pressure on the Court to ease-up on Kenyatta and his deputy, William Ruto, this decision will ultimately be perceived as political. And to a large degree it is a response to political developments – especially if the Prosecution is correct and its host of problems with evidence in the Kenya cases stems from Kenyatta allies intimidating and tampering with witnesses.

Bensouda also stated that this was not the end of her efforts to bring justice for post-election violence in Kenya:

“To the people of Kenya, my decision to apply for an adjournment today was not taken lightly and I have explained fully to the Judges the reasons for my exceptional decision. I have and will continue to do all that I can to realise justice for the victims of the 2007-2008 post-election violence.”

Will we ever see Kenyatta in an ICC courtroom again? (Photo: ICC)

Will we ever see Kenyatta in an ICC courtroom again? (Photo: ICC)

Curiously, Bensouda’s statement does not say that pursuing justice in Kenya requires prosecuting Kenyatta. Indeed, the most bizarre thing about the Prosecutor’s decision is that it appears to be a request for an indefinite delay to the trial (Update: this has now been clarified by the Prosecutor – see below). There is no indication as to when the Prosecution will be prepared to proceed with proceedings – or will even aim to be ready. Judges are likely to request the Prosecutor to be more specific about what type of time-frame she has in mind. After all it would likely be a breach of fair trial standards – not to mention justice – to have an open-ended threat that prosecution will continue at some undefined point in the future. The Prosecutor needs to be much more clear about what the plan is. If that’s not possible…  Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), Kenya, Kenya and the ICC | 14 Comments

The ICC in the Central African Republic: The Death of Deterrence?

Posted on December 11, 2013 by Mark Kersten
(Photo: Xavier Bourgois / AFP/ Getty Images)

(Photo: Xavier Bourgois / AFP/ Getty Images)

The Central African Republic (CAR) is “descending into chaos“. In the past few months, violence and instability in the country have proliferated. In November, the French Foreign Minister even used the ‘g-word’ to describe the situation in the CAR, declaring that “[t]he country is on the verge of genocide”. Jean Ging, of the UN’s Office for the Coordination of Humanitarian Affairs, similarly suggested that the country is sowing the “seeds of genocide“.

In response to the crisis, the international community has immersed itself knee-deep into another military and humanitarian intervention. Last week, the UN Security Council unanimously authorized France and African Union forces to use “all necessary measures” to protect civilians. The African Union and the UN Security Council have their work cut out for them. In endorsing international intervention into the CAR, the International Crisis Group stated:

Over nine months, the weak Central African Republic (CAR) state has collapsed, triggering a serious humanitarian crisis, with 400,000 displaced and nearly half the population in need of assistance. The transition government and the regional security force have failed to prevent a descent into chaos in urban areas, in particular Bangui, as well as in the countryside. After months of “wait-and-see” and following deadly clashes, the international community now realises it cannot afford another collapsed state in Africa. Unfortunately, the situation on the ground is deteriorating at a much faster pace than the international mobilisation, and Bangui is vulnerable to a total breakdown in law and order.

This week, the International Criminal Court’s chief prosecutor, Fatou Bensouda, waded in:

The Office of the Prosecutor expresses its concerns over the unfolding events in the Central African Republic (CAR), and in particular reports of serious on-going crimes.  The deteriorating security situation over the past several days has contributed to the escalation of unlawful killings, sexual violence, recruitment of child soldiers and other grave crimes, across the country.  The situation worsens daily and thousands of civilians are fleeing the violence.

(Photo: Alaian Amontchi / Reuters)

(Photo: Alaian Amontchi / Reuters)

Bensouda also threatened that those committing crimes under the Court’s jurisdiction risk being prosecuted:

War crimes, crimes against humanity and genocide fall under the subject matter jurisdiction of the International Criminal Court.  I hereby call upon all parties involved in the conflict, (including former Séléka elements and other militia groups, such as the anti-Balaka), to stop attacking civilians and committing crimes, or risk being investigated and prosecuted by my Office.

Bensouda’s comments should be understood as an attempt at shooting a warning shot across the bow of potential perpetrators in the CAR in order to deter potential crimes. Such warnings are a regular part of the Prosecutor’s modus operandi. In August the Prosecutor declared that “that crimes that may fall under the jurisdiction of the International Criminal Court continue to be committed in CAR, including attacks against civilians, murder, rape, and recruitment of child soldiers.” Similar statements have been made in the case of Mali and the Ivory Coast in an attempt to deter actors from committing crimes.

But here’s the thing: deterrence hasn’t worked in the Central African Republic – like at all. It has been almost ten years since the CAR government referred itself to the ICC. Former DRC President Jean-Pierre Bemba is on trial for his alleged responsibility for war crimes and crimes against humanity committed in the CAR. But the ICC’s intervention hasn’t prevented – or really had any effect – on the country’s slide into political violence and slaughter. Making matters worse, it is exactly the types of crimes that the ICC has focused on – sexual violence, mass displacement, executions of civilians and the use of child soldiers – that characterize the current violence in the CAR.  Continue reading →

Posted in Central African Republic (CAR), Deterrence, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | 3 Comments

What Mandela Teaches Us: Negotiating Between Good and Evil

Posted on December 6, 2013 by Mark Kersten
(Photo: Reuters)

(Photo: Reuters)

The year 1997 marked the height of Libya’s isolation from the international community. The regime of Muammar Gaddafi was under strict sanctions from the United Nations, the European Union, and the United States, amongst others. For its alleged role in a vicious laundry list of transgressions, including the bombing of a German discotheque, Pan Am Flight 103 over Lockerbie, and UTA Flight 772, Libya was castigated as a sponsor of international terrorism. Its leader painted as the embodiment of evil and the “mad dog of the Middle East“.

By 1997, it had also been three years since Apartheid had ended. Nelson Mandela was the immensely popular and universally revered President of South Africa. The country was destined for a more just, fair and egalitarian future. For his role in South Africa’s peaceful transition from autocratic Apartheid to stable democracy, Mandela was considered a saint and joined a select group of individuals whose names would forever be associated with peace and justice.

In that same year, the two men met. According to a New York Times report of the event, Mandela embraced Gaddafi and defiantly criticized the West for its role in ostracizing the Libyan despot:

In Tripoli Mr. Mandela, 79, greeted Colonel Qaddafi with a hug and a kiss on each cheek, saying, “My brother leader, my brother leader, how nice to see you.”

Shortly afterward, he told reporters that he remained unimpressed by American opposition to his mission, adding: ”Those who say I should not be here are without morals. I am not going to join them in their lack of morality.”

Mandela’s visit was undoubtedly a boon for Gaddafi. Just a year earlier, in 1996, Gaddafi had ordered the slaughter of some 1,200 prisoners in the notorious Abu Salim prison massacre. Yet here was Mandela, a man so widely respected that he was largely beyond criticism – from the West or anyone – visiting Tripoli and hugging Gaddafi. For Mandela, the trip was apparently a payment of gratitude for Gaddafi’s support for the anti-Apartheid movement during Mandela’s long imprisonment.

The personal bonds between Mandela and Gaddafi went deep. One of Mandela’s grandsons was named after the deposed Libyan leader. Their political relationship was also close. Mandela was instrumental in brokering the 1999 breakthrough deal between Western states and Libya that brought the Lockerbie suspects to trial. Later, Mandela believed that Abdelbaset al-Megrahi had been wrongfully convicted of the crime, visited him in his Scottish prison, and welcomed his repatriation to Libya in 2009.

At the time of the Lockerbie deal, the South African President intimated that his personal relationship with Gaddafi had produced a political breakthrough and, more importantly, that diplomacy and negotiation must always remain an option:

“No-one can deny that the friendship and trust between South Africa and Libya played a significant part in arriving at this solution… It vindicates our view that talking to one another and searching for peaceful solutions remain the surest way to resolve differences and advance peace and progress in the world.” Continue reading →

Posted in Apartheid, Justice, Libya, South Africa | Tagged | 6 Comments

Another Curious Moment in the Saif and Senussi Cases

Posted on December 5, 2013 by Mark Kersten
(Photo: AP)

(Photo: AP)

There have been numerous twists and turns in the cases of Saif al-Islam Gaddafi and Abdullah al-Senussi. Senussi was allegedly bought for $200 million from Mauritania and held there for months before being surrendered to Libya in September 2012. Saif’s defence counsel were detained for almost a month in Zintan after meeting him in June 2012. Senussi’s case has been declared inadmissible at the ICC, meaning he’ll be tried in Libya by Libyan. In Saif’s case, judges rejected Libya’s admissibility challenge because he remains in the detention of a Zintan-based militia and not the central government.

Now, the Presiding Judge in the cases has resigned. It is not clear what prompted the resignation but it could have significant implications on the Libya cases.

It remains to be seen how this will affect Saif’s admissibility ruling which is currently under appeal. It could foreseeably prolong any future judgements. But it could also mean little if there’s nothing left for the Judges to do. If that’s the case, this may signal the end rather than a curious new turn in this ongoing saga.

Posted in Admissibility, Libya, Libya and the ICC | 3 Comments

Headed to The Hague: Bemba Defence Counsel, Political Allies Arrested

Posted on November 24, 2013 by Mark Kersten
Jean-Pierre Bemba

Jean-Pierre Bemba

Few issues have stirred as much controversy at the International Criminal Court (ICC) than the use and misuse of evidence and the treatment and mistreatment of witnesses. The trial of Thomas Lubanga was almost thrown out twice because the prosecution refused to provide exculpatory evidence to Lubanga’s defense counsel. In the Kenya cases, both the prosecution and, more recently, the defence have alleged that witnesses have been intimidated and tampered with. Just a few short weeks ago, Walter Barasa was indicted by the ICC for allegedly “attempting to corruptly influencing three ICC witnesses.”

But news that four individuals, including lawyers representing Jean-Pierre Bemba have been arrested and are on their way to the ICC has rocked The Hague. Since 2010, Bemba, a former Vice President in the Democratic Republic of Congo (DRC), has been on trial for his alleged responsibility in the commission of war crimes and crimes against humanity in the Central African Republic. His lawyers are charged with committing “offences against justice”. Here’s the statement from Chief Prosecutor Fatou Bensouda:

Pursuant to this warrant, on 23 and 24 November 2013, police forces in Belgium, France, The Netherlands and the Democratic Republic of the Congo arrested four individuals whom my Office alleges are responsible for offences against the administration of justice under Article 70 of the Rome Statute.  The warrant of arrest was also notified on a  fifth person, Mr. Jean-Pierre Bemba Gombo, who my Office alleges has ordered, solicited and induced these attempts to pervert the course of justice in relation to his on-going trial at the International Criminal Court (ICC).  Since his arrest in 2008, Mr. Bemba has been in detention at the ICC where he is facing charges of war crimes and crimes against humanity.  He completed the presentation of his case before Trial Chamber III on 22 November 2013.

Persons arrested pursuant to the current warrant of arrest are Messrs. Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Narcisse Arido and Fidèle Babala Wandu.  National procedures are on-going for their surrender to the Court.

The individuals arrested include, amongst others, members of the defence team of Mr. Bemba.  It is particularly disturbing that a member of the legal profession is alleged to have intentionally and systematically participated in criminal activities aimed at undermining the administration of justice.

Bemba on trial at the ICC (Photo: ICC)

Bemba on trial at the ICC (Photo: ICC)

Those detained are senior political and legal figures. Some sources maintain that, in an addition to Bemba, the four individuals who were notified with a warrant of arrest are his Lead Counsel, case manager, a member of the DRC Parliament and a Defence witness. According to the AFP,

Bemba’s lawyer, Aime Kilolo Musamba, was arrested in Belgium over the weekend and will be transferred to the Netherlands. Bemba’s legal case manager, Jean-Jacques Mangenda Kabongo, a defense witness, Narcisse Arido, and a Congo lawmaker, Fidele Babala Wandu, also were arrested on suspicion of presenting false documents and bribing witnesses. Continue reading →

Posted in Central African Republic (CAR), Defense Counsel, Democratic Republic of Congo, ICC Prosecutor, Jean-Pierre Bemba, Witnesses | 15 Comments

Victim Participation at the ICC – What’s the Deal?

Posted on November 22, 2013 by Mark Kersten

Today, at the Assembly of States Parties conference in The Hague, the issue of victim’s participation will take centre stage. We’re thus thrilled to have regular JiC contributor Chris Tenove join JiC today to share his remarkable research and analysis on the politics and realities of victim participation at the International Criminal Court. Chris is a doctoral candidate at the University of British Columbia. You can read more of Chris’ work here and here. Enjoy!

Witness testimony at the ICC

Witness testimony at the ICC

While the relationship between the International Criminal Court (ICC) and African states looms large over the current meeting of the Assembly of States Parties (ASP), victims’ issues will also receive a great deal of attention. Victims and affected communities will be the focus of a plenary discussion today and side-events will tackle victims’ legal participation, the external review of the Trust Fund for Victims, and justice for victims in Kenya. ASP members and civil society groups want the ICC to improve its policies on victims’ matters such as participation, reparations and engagement with affected communities. Academics, too, have been weighing in.

In this post I will mention a few of the issues raised in recent publications, focusing on concerns about victim participation. Academics and civil society organizations tend to want more extensive participation, which will likely require more resources. However, several legal officers from ASP member states have in recent months told me that their governments see victim participation as a money pit, capable of costing much and adding little to the Court’s core functions. To address these various concerns we need better assessments of the impact of victim participation.

The Rome Statute grants victims the right to be legal participants and not just witnesses for the prosecution or defense. While this opportunity exists in many civil law systems, it was not a part of the post-WW2 or ad hoc international criminal tribunals. Individuals apply by filling out a form that is reviewed by ICC staff and judges. Those who are accepted are put into groups – sometimes by their geographical area, sometimes by the crime they suffered – and assigned a lawyer who is paid by the Court. For instance, 129 victims were accepted as participants in the Lubanga trial and put in three groups, while over 5,000 victims have been accepted during the course of the Bemba trial and put in two groups. Victims’ lawyers can make opening and closing statements, question witnesses, invite victims themselves to give testimony, or participate in other ways, all according to the discretion of judges. The ICC’s approach is an experiment or, more accurately, a series of experiments. Different trial chambers have conducted victim participation in different ways, and the Registry has shifted its own policies over time and across situations.

Symbolism and Reality of Victim Participation

There is considerable scholarship on the origins and normative aims of victim participation, and a growing literature on its practice. In a JiC post last year I mentioned analyses by REDRESS, Hakan Friman, Christodoulos Kaoutzanis and the War Crimes Research Office. Here are a few recent additions:

Emily Haslam and Rod Edmunds explore in detail the different approaches that trial chambers have taken to grouping victims and assigning counsel. This practice of “common legal representation” is undoubtedly necessary, given the large numbers of victims and the inability for most to retain their own lawyers. But placing large numbers of victims in just a few groups can cause their different interests to be ignored, and individuals in large groups may have few opportunities to communicate with their representatives. Haslam and Edwards argue that the process may make the common legal representatives accountable to the judges and Registry rather than their ostensible clients, the victims. The authors fear that current developments will lead to victim participation that is “more symbolic than real”.

Sara Kendall and Sarah Nouwen make a similar argument in their philosophically-rich paper “Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood”. They argue that ICC staff and supporters invoke a generalized, de-politicized representation of victims to justify their actions. This rhetorical construct, “The Victims,” is used to buttress the Court’s authority. (Peter Dixon and I make a different but complementary argument about the importance of victims to the ICC’s authority in a recent paper.) While the ICC is portrayed as a court for “The Victims,” Kendall and Nouwen point out that vanishingly few victims get a chance to participate. Many victims in situation countries are ineligible to participate, since that opportunity is restricted to those affected by the specific crimes brought forward by the Office of the Prosecutor (OTP). Of those granted participant status, only a handful appear in trial proceedings. Kendall and Nouwen thus argue that, in practice, victim participation is narrow, limited, and offers little opportunity for agency.

(Photo: RNW)

(Photo: RNW)

Neither paper examines the impact that victim participation has on judicial processes. Mariana Pena and Gaelle Carayon begin to do so in their recent paper, “Is the ICC Making the Most of Victim Participation?” They note that victim participation can contribute to truth-finding in trials and give examples in which victims’ representatives added facts and legal arguments that had been left out by the prosecution and defense, either due to error or their focus on the guilt or innocence of the accused. But the authors see obstacles to meaningful participation, including the application process and the fact that victims have little input into OTP’s selection of crimes to be prosecuted. Pena and Carayon are particularly concerned that common legal representatives do not have sufficient opportunity to consult with victims and make arguments on their behalf. Unlike Kendall and Nouwen, who contrast participation and representation, they see representation as participation provided it is done well.

Similar arguments were made in a recent report by an independent panel of experts, facilitated by REDRESS and Amnesty International to evaluate the ICC’s approach to victim participation. Like Pena and Carayon, the panel proposed that the application process be streamlined and that the OTP expand its discussions with victims during preliminary examinations and better justify their selection of charges. To make representation meaningful rather than merely symbolic, they proposed that victims need more information about their right to participate, and more opportunity to be regularly consulted by their legal representatives. Continue reading →

Posted in Uncategorized | 5 Comments

Between Skepticism and Reality: LRA Leader Joseph Kony in “Surrender Talks”

Posted on November 21, 2013 by Mark Kersten
Joseph Kony

Joseph Kony

Numerous reports are suggesting that the notorious leader of the Lord’s Resistance Army (LRA) Joseph Kony is currently in “surrender talks” with the government of the Central African Republic. According to African Union’s special envoy on the LRA Francisco Madeira, Kony (who is about 52 years old now) is suffering from a “serious, uncharacterized illness” and is seeking guarantees of a secure safe haven.

It’s still early and the story is murky at best. I will follow any developments and posts them as they emerge but here are few initial thoughts.

Fool Me Once…

There is good reason to be skeptical of any reports about Kony’s whereabouts and any potential surrender. Kony has spent the better part of three decades fighting in the bush. Whilst the LRA does have a political agenda that is far too often ignored in favour of a narrative that paints them as “evil, crazy terrorists”, it is likely that a key, if not the key, driver of the rebel group in recent years has been mere survival. If Kony is suffering from an illness that poses a threat to his life, this could lead him to explore exit options. It is important to remember, however, that surrendering may be just one of the options he is exploring.

Observers will point out that Kony has regularly manipulated talks to surrender and achieve peace. Indeed, there is good evidence that Kony has benefitted from manipulating peace talks with the Government of Uganda. But I am not aware of any previous unilateral “surrender talks” coming directly from Kony.

In previous peace negotiations, the LRA has always argued that any peace deal required both sides to take responsibility for the war and for the atrocities and human rights violations that took place in northern Uganda. For example, Kony refused to accept an offer of amnesty in 2006 because he believed that any such amnesty had to be accepted by President Yoweri Museveni and members of the Ugandan People’s Defense Forces as well. The Government of Uganda has consistently refused to take any responsibility for its role in the war or its perpetration of human rights violations. For its part, the international community (as well as influential groups like Invisible Children) have generally given the Government a free pass. Indeed, while many observers blame the LRA for the consistent failure of peace negotiations to end the war, the GoU’s role in undermining talks and prioritizing poorly conceived military solutions to end the conflict are too often neglected. Kony and certain members of the LRA may never have been truly interested in a peaceful solution to the war. But, given the evidence, it is very hard to argue that Museveni and the GoU were either.

All of this is to say that if Kony is indeed in “surrender talks”, this is a unique development and not one which can readily be disregarded by suggesting that it is simply a repeat of previous failed peace negotiations.

Members of the LRA (Photo: James Akena)

Members of the LRA (Photo: James Akena)

Heading to The Hague?

While it may be the ultimate dream of human rights advocates and champions of the International Criminal Court (ICC), it is folly to assume that Kony is currently looking for a deal that will send him to face trial in The Hague. From interviews and conversations with people close to him, it is clear that Kony equates surrendering to the ICC with his death. He does not believe that he would actually reach The Hague. Rather, Kony believes that he would be killed along the way. Have Kony’s views of the ICC changed? Possibly. But, to date, there is no evidence to suggest that they have.  Continue reading →

Posted in Central African Republic (CAR), International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Uganda | Tagged , | 7 Comments

Kenya and the ICC: Coming to a Head?

Posted on November 19, 2013 by Mark Kersten
(Photo: ICC)

(Photo: ICC)

Starting this week, member-states of the International Criminal Court (ICC) will gather in The Hague for the ICC’s yearly Assembly of States Parties (ASP) conference. This meeting of member-states is shaping up to be one of the most contentious – and important – to date. The reason is simple: the ICC cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto.

Deferral Flops

Last Friday, Kenya, supported by most of the African Union, went to the United Nations Security Council to request a deferral, under Article 16 of the Rome Statute, of the cases against Kenyatta and Ruto. Kenya knew well in advance that a deferral request would fail. Security Council members had outlined their positions regarding a deferral in the days and weeks prior to the vote. The P3 (the US, France and the UK) as well as ICC member-states sitting on the Security Council  stated that the Council was the wrong venue to deal with the Kenya cases. They did not want the question of a deferral to come to a vote and reiterated that they believed that the ASP meetings were the proper venue to discuss and deal with the Kenya cases. Still, Kenya went ahead and certainly made a point in having the deferral request voted upon – and fail.

In ensuring that the vote went ahead, Kenya and its African Union partners have transformed what was generally viewed as a battle between themselves and the ICC into a diplomatic row between themselves and ‘Western’ ICC member-states. As an aside, this isn’t a bad thing for the Court. The focus is now squarely on those Security Council states, and especially the P3, who voted not to put a (temporary) halt to the Kenya cases.

A Matter of Diplomacy not Justice

Amazingly if not surprisingly, the Kenya cases now have almost nothing to do with justice. They long ago seized being an attempt to bring justice to the victims of Kenya’s 2007/08 post-election violence. Instead, the cases have morphed into some quirky combination of a diplomatic circus and fast-paced game of legal one-upmanship. It should be repeated: if Kenya had spent half the time it did on identifying and seeking justice mechanisms to deal with the post-election violence than it did seeking to undermine the Court and get African Union states behind it, we would be in a very different situation.

But for the rest of the world, the Kenya cases also represent a potential and looming diplomatic crisis. Even those states who are ICC member-states are scrambling to find a way to bridge their legal obligations stemming from of the Court and their political relationships with Kenyan government. It was telling that not one of the seven ICC member-state that was present on the Security Council for the deferral vote decided to vote against the motion to invoke Article 16. Not wanting to offend Kenya, all abstained. Their vote should be seen as a vote of non-confidence in the motion rather than a vote of confidence in the Court or the Kenya cases.

(Photo: UN / Paulo Filgueiras)

(Photo: UN / Paulo Filgueiras)

Those states that have sided with Kenya all along were the only clear winners on Friday. Amongst these, China stands out. Not long after being elected President, Kenyatta visited China and was welcomed with all the honours bestowed to a respected head of state. The Chinese government has consistently made it clear that it would support a deferral and the country voted in favour invoking Article 16. It has also used all of the right diplomatic language and niceties in supporting Kenya’s efforts to delay or terminate the cases. The diplomatic message to Western states from Kenya’s side is clear: we can just as easily look East as we can West and we won’t hesitate to do so.

Western states, as I have written previously, want to avoid the Kenya cases coming to a head. For all the oft-stated reasons (Kenya as a key player in the fight against terrorism, Kenya as a regional economic and political powerhouse, etc.), sustaining diplomatic relations with the Kenyan government is a key priority. These states want to avoid the much-dreaded “moment of non-cooperation”, when Kenyatta decides that he will not show up for a trial hearing and the Court, in response, issues a warrant for his arrest. At that point, normal diplomatic relations will become immensely more difficult. To avoid a diplomatic crisis, Western states have consistently stated that the cases should be examined at the ASP conference. Continue reading →

Posted in African Union (AU), Article 16, Assembly of States Parties, Kenya, Kenya and the ICC, UN Security Council | 7 Comments

International Justice and the Prevention of Mass Atrocities: Paper Series

Posted on November 17, 2013 by Mark Kersten
ECFR Conference on international justice and the prevention of mass atrocities in The Hague (Photo: Mark Kersten)

ECFR Conference on international justice and the prevention of mass atrocities in The Hague (Photo: Mark Kersten)

The debate over the relationship between peace and justice isn’t going to go away any time soon. Yet, despite all of the attention the ‘peace versus justice’ debate has received over the years, scholarship on the subject still suffers from a predilection to re-hash the same theories and arguments. It has thus been very refreshing to participate in a project, organized by Anthony Dworkin and the European Council on Foreign Relations, examining the effects of international justice mechanisms on conflict resolution.

Here’s the ECFR’s project description:

What place should the international community give to justice and accountability in its response to conflicts involving mass atrocities? Under what circumstances does the effort to pursue justice help or alternatively complicate the effort to bring atrocities to an end? Is it better to set a benchmark for justice by referring active conflicts to the International Criminal Court, or should efforts to seek justice be deferred until a peace deal is being discussed? To help inform future policymaking in this complex field, ECFR has launched a project to examine the record of past cases where international efforts to end conflict have taken different approaches to justice – ranging from the introduction of international tribunals to the acceptance of amnesties for the sake of peace.

Over the summer, the project brought together a diverse group of leading scholars on the peace-justice nexus, including Priscilla Hayner, Leslie Vinjamuri, Sarah Nouwen, Laura Davis and, course, Anthony himself. Each of the participants was asked to write a case study, the final result being twelve case-specific analyses of the effects of international justice on conflict resolution in: Afghanistan, Bosnia & Herzigovina, the DRC, Israel & Palestine, Kosovo, Liberia, Libya, Sierra Leone, Sudan, Syria, Uganda and Yemen.

All of the cases are accessibly written and are relatively short (about 2,500 words). I encourage all readers and anyone interested to check out this fantastic resource here and to pass it along to students and colleagues!

Posted in Afghanistan, Conferences, Conflict Resolution, Democratic Republic of Congo, Israel, Justice, Liberia, Palestine, Palestine and the ICC, Serbia, Sudan, Syria, Yemen | Tagged | Leave a comment