Putting the ICC’s Kenya Cases on Ice

Posted on October 22, 2013 by Mark Kersten
(Cartoon: Esther Wandia, The Star)

(Cartoon: Esther Wandia, The Star)

Kenya wants the United Nations Security Council to halt the trials of President Uhuru Kenyatta and Deputy President William Ruto. With the African Union at its side, Kenya has asked the Security Council to temporarily defer ICC prosecutions through the invocation of Article 16 of the Rome Statute. Doing so will undoubtedly lead to accusations that the Security Council is actively endorsing impunity in Kenya. But will that stop them?

Recent reports have suggested that Western diplomats are busy drafting a Security Council resolution to defer the Kenya cases. This is significant. Presumably ‘Western’ powers – especially the US and ICC member-states France and the UK – are the key to any resolution passing. A veto from any of them would ruin Kenya’s chances at a deferral – although it should be noted that such a resolution is unlikely to ever come to a vote unless it is guaranteed to pass in advance.

This isn’t the first time that the Security Council has seriously contemplated a deferral of ICC prosecutions. The possibility of a deferral arose in the case of Sudanese President Omar al-Bashir, as a reward for allowing South Sudan to secede peacefully in 2011. The UK supported a deferral but it was eventually kiboshed by the US. Just a few months ago Kenya asked the ICC to defer the cases against Kenyatta and Ruto but made little-to-no headway. So what has changed?

Here’s what one Western diplomat had to say:

“He is not like Sudan’s President Omar al Bashir. He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation. A solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.”

(Photo: Simon Maina / AFP / Getty Images)

(Photo: Simon Maina / AFP / Getty Images)

The above statement suggests two primary reasons for a deferral. First of all, the Westgate mall tragedy has dramatically changed the political landscape in Kenya. The horrific attacks in Nairobi by al-Shabaab have put the need for stability and order in Kenya under the international community’s microscope. They have also had the effect of bolstering the argument of those who maintain that Kenyatta and Ruto cannot attend trials in The Hague and effectively run a country at the same time. Ruto himself used the tragedy to suggest as much. Crucially, the Security Council powers can now claim that a deferral of the Kenya cases is a matter of international peace and security. This is essential if an Article 16 deferral is to pass.

Second, Western states want to continue ‘normal’ diplomatic relations with Kenya. The country is a key regional economic and political power as well as a partner in the ‘Global War on Terror’. Kenyatta understands this. He has been quite deft at playing chicken with the international community over his trial. While maintaining that he will continue cooperating with the Court, Kenyatta has also had his allies suggest he would do otherwise. If he refuses to show up for his trial (scheduled to begin November 12), he’ll immediately be booked with an arrest warrant by ICC judges. At that point he’ll quickly become a pariah, perhaps not on the level of Bashir, but nonetheless someone who cannot travel freely or shake hands with many, if not most, of the world’s political leaders. This is something he undoubtedly wants to avoid. But Western states who see Kenya as a valuable ally also want to avoid this scenario. When they say “Kenyatta is not Bashir”, they aren’t comparing the two leaders’ records when it comes to atrocities; they are saying: “we still want to deal with him.” While the focus has been on what will happen to Kenyatta’s travel plans and Kenya’s diplomatic relations if an arrest warrant is issued by the Court, Western states are just as worried that their own diplomatic relations will be disrupted. A deferral would avoid all that.

But how can the Security Council justify this decision? Continue reading →

Posted in Article 16, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, UN Security Council | Tagged , | 12 Comments

ICC Hands off Libya

Posted on October 16, 2013 by Mark Kersten
Abdullah al-Senussi (Photo: Reuters)

Abdullah al-Senussi (Photo: Reuters)

I have a new article up at Foreign Policy’s Middle East Channel that may be of interest to some readers. It covers the ICC’s inadmissibility ruling in the case of Abdullah al-Senussi. The piece places the ruling into the political context of the battle between Libya and the ICC over where Senussi and and Saif al-Islam Gaddafi should be tried. Here’s a snippet:

Judges at the International Criminal Court (ICC) have ruled that Libya has demonstrated a genuine will and ability to prosecute Abdullah al-Senussi. Libya, they ruled, is free to prosecute the mysterious former Libyan intelligence chief and the mastermind behind a laundry list of Muammar al-Qaddafi-era atrocities. The path is now clear for Libya to prosecute Senussi — and to do so with the blessing of the ICC and the international community. But is the path cleared for Libyans to achieve justice?

Headlines and statements that proclaim “Qaddafi spy chief to be tried in Libya” miss the point. Senussi was always going to be tried in Libya; what the ICC said or ruled was irrelevant. The Libyan public had made it clear: they wanted Senussi tried in Libya, by Libyans. Libyan politicians made it even clearer, reportedly paying $200 million to Mauritania for Senussi’s surrender in September 2012.

Still, the ruling by ICC judges that Libya can proceed in its prosecution and trial of Senussi is significant. It bestows a badge of credibility on Libya’s fledgling efforts at state building. Whether it should have done so will be a matter of much debate.

Since even before the Libyan revolution concluded, Libya and the ICC have been engaged in adrama-filled fight over where Senussi and Muammar al-Qaddafi’s son and former heir-apparent Saif al-Islam Qaddafi should be tried. Libya, on the one hand, has argued that trying Saif and Senussi is its sovereign prerogative. On the other hand, defense lawyers for Saif and Senussi, along with the international human rights community, have been adamant that a fair trial in post-war Libya is all but impossible. They decry that neither Saif nor Senussi have received adequate legal representation and that both are likely to go the way of the gallows.

Unsurprisingly, legal arguments in the battle over where to try Saif and Senussi have been overshadowed by political developments as the Libyan government, handicapped by a prevalence of wanton militias, struggles to assert stability and order. The stalemate between the ICC and Libya has been punctuated by moments of remarkable controversy, most notably when Saif’s ICC defense lawyers were arrested and detained for three weeks following a visit to their client in Zintan.

While Libyan political figures have made it clear that, come hell or high water, Saif and Senussi will see justice served in Libya at the hands of Libyans, it is easy to forget that the government has also fully engaged the ICC from day one, hiring an impressive roster of legal minds to represent its cases. The reason seems simple enough: while Libya, in no uncertain terms, will ultimately be responsible for bringing Saif and Senussi to justice, getting a seal of approval from the ICC — and, by extension, the international community — matters to a country struggling to build state institutions but yearning to be reinstated as a sovereign and legitimate member of the international community.

ICC Chief Prosecutor Fatou Bensouda has generally been in favor of Libya prosecuting Saif and Senussi. She called their prospective trials in Libya a potential “Nuremberg moment,” referring to the trials of senior Nazi figures in Germany following World War II. Undoubtedly, many at the ICC believe that Libya should be given every opportunity to prosecute Saif and Senussi itself. To deny Libya that opportunity would be to treat the new regime as if it were the Qaddafi regime of old. To give justice a chance, they argue, is to give Libyan justice a chance.

Judges at the International Criminal Court (ICC) have ruled that Libya has demonstrated a genuine will and ability to prosecute Abdullah al-Senussi. Libya, they ruled, is free to prosecute the mysterious former Libyan intelligence chief and the mastermind behind a laundry list of Muammar al-Qaddafi-era atrocities. The path is now clear for Libya to prosecute Senussi — and to do so with the blessing of the ICC and the international community. But is the path cleared for Libyans to achieve justice?

Headlines and statements that proclaim “Qaddafi spy chief to be tried in Libya” miss the point. Senussi was always going to be tried in Libya; what the ICC said or ruled was irrelevant. The Libyan public had made it clear: they wanted Senussi tried in Libya, by Libyans. Libyan politicians made it even clearer, reportedly paying $200 million to Mauritania for Senussi’s surrender in September 2012.

Still, the ruling by ICC judges that Libya can proceed in its prosecution and trial of Senussi is significant. It bestows a badge of credibility on Libya’s fledgling efforts at state building. Whether it should have done so will be a matter of much debate.

Since even before the Libyan revolution concluded, Libya and the ICC have been engaged in adrama-filled fight over where Senussi and Muammar al-Qaddafi’s son and former heir-apparent Saif al-Islam Qaddafi should be tried. Libya, on the one hand, has argued that trying Saif and Senussi is its sovereign prerogative. On the other hand, defense lawyers for Saif and Senussi, along with the international human rights community, have been adamant that a fair trial in post-war Libya is all but impossible. They decry that neither Saif nor Senussi have received adequate legal representation and that both are likely to go the way of the gallows.

Unsurprisingly, legal arguments in the battle over where to try Saif and Senussi have been overshadowed by political developments as the Libyan government, handicapped by a prevalence of wanton militias, struggles to assert stability and order. The stalemate between the ICC and Libya has been punctuated by moments of remarkable controversy, most notably when Saif’s ICC defense lawyers were arrested and detained for three weeks following a visit to their client in Zintan.

While Libyan political figures have made it clear that, come hell or high water, Saif and Senussi will see justice served in Libya at the hands of Libyans, it is easy to forget that the government has also fully engaged the ICC from day one, hiring an impressive roster of legal minds to represent its cases. The reason seems simple enough: while Libya, in no uncertain terms, will ultimately be responsible for bringing Saif and Senussi to justice, getting a seal of approval from the ICC — and, by extension, the international community — matters to a country struggling to build state institutions but yearning to be reinstated as a sovereign and legitimate member of the international community.

ICC Chief Prosecutor Fatou Bensouda has generally been in favor of Libya prosecuting Saif and Senussi. She called their prospective trials in Libya a potential “Nuremberg moment,” referring to the trials of senior Nazi figures in Germany following World War II. Undoubtedly, many at the ICC believe that Libya should be given every opportunity to prosecute Saif and Senussi itself. To deny Libya that opportunity would be to treat the new regime as if it were the Qaddafi regime of old. To give justice a chance, they argue, is to give Libyan justice a chance.

Read more here.

Posted in Admissibility, Complementarity, ICC Prosecutor, Justice, Libya, Libya and the ICC, UN Security Council | Tagged | 2 Comments

On the Eve of the AU Summit: How the ICC Is Being Defended

Posted on October 11, 2013 by Mark Kersten

As African leaders publicly question their support for the International Criminal Court, a wide range of ICC supporters have rallied to its defense. Peter Dixon and Chris Tenove examine the allies and the forms of authority that the Court can turn to, using the theoretical framework they put forward in their recent paper in the International Journal of Transitional Justice. Peter Dixon is a doctoral candidate in Sociology at UC Berkeley, now studying transitional justice processes in the Democratic Republic of the Congo (and trying his hand at blogging at Beyond The Hague). Chris Tenove is a doctoral candidate in Political Science at the University of British Columbia and a semi-regular Justice in Conflict blogger.

(Cartoon: The Economist)

(Cartoon: The Economist)

Over the next two days, representatives of African Union governments will hold an “emergency summit” in Addis Ababa to discuss the relationship between AU members and the International Criminal Court. The summit will be a critical test of the ICC’s authority. Should AU members decide to withdraw from the Rome Statute as a bloc, the Court’s ability to operate on the continent and to advance its aims will be seriously – perhaps fatally – undermined. Several commentators have considered the meeting’s significance, potential outcomes and implications (and offered their own suggestions). Here, we would like to discuss what the summit tells us generally about what international criminal justice is and how it works. In particular, we would point to claims about the ICC’s authority made by those who rally to its defense.

In a recently published paper, we propose a framework explaining which actors are involved in international criminal justice (ICJ), what kinds of fundamental rules and practices motivate them and what forms of authority they wield. We think our approach sheds light on the upcoming emergency summit. Notably, while some may see gamesmanship and deal-making by international diplomats only as a threat to the ICC’s legitimacy, we argue that the Court in fact draws legitimacy from inter-state diplomacy. A critical juncture like the AU summit exposes how actors deploy this and other forms of authority to defend the Court and the broader field of ICJ.

Our framework, which brings together insights from our respective fields of International Relations and Sociology, has two principle components. First, we see international criminal justice as a field–a sociological concept rooted in the work of Max Weber and Pierre Bourdieu. Actors in a field share certain practices and adhere to fundamental “rules of the game”, even when they compete with one another. The rules of the game for ICJ include, among others, the assumptions that certain egregious acts should count as violations of international law by individuals rather than states and that there are formalized processes of proving and punishing these violations. Importantly for our framework, and for our reading of the AU summit, the ICJ field has developed at the intersection of three well-established, powerful and global fields: criminal justice, human rights advocacy and inter-state diplomacy. [For those interested, there are a number of great examples of contemporary field analyses—see, e.g., Medvetz, Stampnitzky, Adler-Nissen and Mudge and Vauchez, to name a few.]

African Union Summit, 2013.

African Union Summit, 2013.

This positioning provides ICJ institutions like the Court with access to valuable forms of authority, the second component of our model. We propose that the various actors who engage with the field of ICJ try to advance their position – and advance the field of ICJ – through different claims to authority. Following the influential work of IR scholars Michael Barnett and Martha Finnemore, we identify four forms of authority, all of which we can see at play in the discussions surrounding the upcoming summit. ICJ actors draws on delegated authority because states create and authorize tribunals to act as their agents in the pursuit of particular mandates. ICJ practitioners make claims to legal authority, due to international criminal law’s overlap with public international law and domestic criminal law, as well as the legitimacy of legal norms and practices in modern societies. Practitioners draw on moral authority by proposing that ICJ addresses terrible forms of violence and suffering, and by creating and mobilizing victims of international crimes as a transnational constituency. Finally, ICJ actors advance their expert authority by claims to possess specialized knowledge.

These forms of authority are important to the ICC because, lacking an army and possessing a relatively small budget, it has limited access to other “harder” forms of power. The Court’s influence is thus highly dependent on whether other actors accept the legitimacy of its claims to authority. Those who contest the ICC can do so in two ways. They can challenge the Court’s claims to possess these four forms of authority, such as when a group claims that the Court harms rather than helps victims. Those who oppose the ICC can also advance alternate forms of authority, such as when a leader argues that his role in defending the nation trumps legal rules, or when accused persons claim that fellow members of a particular group should value group solidarity over concerns about the suffering of victims or condemnation from the international community.

The impending AU summit has prompted many competing claims about the ICC’s authority. Here are a few illustrative examples:

  • Tawanda Hondora, the deputy director for law and policy for Amnesty International, made a series of appeals to the moral authority of the ICC, that are characteristic of human rights advocates. “Today, the AU must stand firm with the victims of human-rights violations allegedly perpetrated by their own leaders,” he proclaimed. Continue reading →
Posted in African Union (AU), International Criminal Court (ICC), International Criminal Justice | Tagged , | 3 Comments

Nothing but Verdicts: The Purpose of Tribunals

Posted on September 25, 2013 by Mark Kersten

On the verge of the final verdict in the Charles Taylor trial, Thijs B. Bouwknegt joins JiC for this critical examination of the role and purpose of international criminal tribunals. Thijs is a legal historian and researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam. Enjoy!

SecurityJustice-1“The purpose of a trial is to render justice, and nothing else,” wrote Hannah Arendt two years after the trial of Adolf Eichmann in Jerusalem (1961). The political theorist observed that, “the making of a record of the Hitler regime which would withstand the test of history” could “only detract from law’s main business: to weigh the charges against the accused, to render judgement and to mete out due punishment.” Arendt’s reflection is a useful tutorial for international criminal tribunals and the International Criminal Court (ICC). They carry the responsibility not to arouse false hopes by raising high expectations.

International tribunals pledge an awful lot: justice for the victims, peace in conflict zones and reconciliation in shattered communities. Alongside these ambitions, they also claim to unravel and record history. These aspirations breathe the strong cosmopolitan human rights dogmatism that drives the transitional justice and humanitarian enterprises. Yes, they are noble. But like other ideals, they are mostly unrealistic. Remember that the UN’s International Criminal Tribunal for Rwanda (ICTR) exclusively prosecuted Hutus and no Tutsis. Ratko Mladic carried out the Srebrenica genocide less than two years after the UN gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTY). And against the background of almost five million Congolese war victims, we still await an ICC appeals verdict against one local militia leader. It is true that tribunals deal with events of historic significance and that they assemble and generate historical sources. However – at best – judges write up agency history, through the straitjacketed lens of law. Their verdicts narrate the criminal actions of individual defendants in the context of genocide and other episodes of mass violence.

The trials in The Hague, Arusha, Dili, Phnom Penh, Leidschendam-Voorburg and in Dakar illustrate one certainty: the everyday business of prosecuting and judging alleged war criminals and génocidaires is not easy. Tribunals simply do no have ‘extraordinary’ or ‘special’ powers as some of their names purport. That also counts for the Sierra Leone tribunal (SCSL), which shall deliver its last verdict on 26 September 2013. Guest of honour at that historical occasion is Charles Ghankay Taylor. The Special Court’s Appeals Chamber will definitively rule whether the former Liberian president is liable for a campaign of terror in Sierra Leone. Last year, the Trial Chamber of the tribunal sentenced him to a half-century of imprisonment for planning and aiding and abetting the countless murders, rapes and mutilations perpetrated by the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) military junta. Taylor insists he only mediated in the civil war as a peace broker and appealed the verdict and sentence. But so did SCSL Chief Prosecutor Brenda Hollis. She wants to see the 65-year-old Taylor spend at least 80 years in a UK prison. In her view, Taylor did not only give the rebels money, weapons and advice. For Hollis, Taylor was their “Godfather” and directly orchestrated their crimes.

Charles Taylor (Photo: AFP)

Charles Taylor (Photo: AFP)

Time will tell which narrative will prevail. One outcome is already unambiguous. Taylor will not be held to account for a litany of human rights violations committed in Liberia between Christmas Eve 1989 and August 2003. This is the poignant consequence of the constricted focus of the SCSL. It solely has jurisdiction over crimes committed in Sierra Leone after November 1996. How does that ever generate a sense or feeling of justice for Liberian victims? What kind of reconciliation does a trial against a foreigner bring about in Sierra Leone? And what about atrocities committed since the beginning of the Sierra Leonean inferno in March 1991? The answers are obvious. The only side-goal that was achieved by indicting, arresting and prosecuting Taylor is regime change. Meanwhile, all lofty rhetoric out voiced the beating heart of the criminal proceedings: determining beyond any reasonable doubt whether the presented evidence supports the charges levelled against Taylor.

While Taylor’s trial is propagated as being the jewel in the crown of modern international criminal justice, the case was far from crystal clear. The prosecution presented the judges with a convoluted scenario, rooted in events that reached far beyond their jurisdiction. They suggested that together with former photographer and RUF-leader Foday Sankoh, Taylor – somewhere in one of Myanmar Gaddafi’s revolutionaries’ training camps in Libya approximately between 1987 and 1989 – forged a criminal conspiracy to conquer the West African coast. Their motive: to enrich themselves with diamonds from Sierra Leone. Their modus operandi: terrorising civilians. How do you prove all that?

With a relentless absence of documents or forensic traces, the prosecutor flew no less 94 – including experts – witnesses to the Dutch municipality of The Hague. In the borrowed courtrooms of the ICC and Lebanon tribunal (STL), 58 victims reminded the judges of the surrealistic theatre of violence that took place in Sierra Leone. They got an important – but often traumatic – opportunity to talk about their painful and sad experiences. In spite of that, so much heartbreaking live testimony (lawyers call that crime-base evidence) about the actual violence itself was legally unnecessary. Taylor acknowledges all those events. He only insists that he was not there and would have had to have been “Superman” to commit such deeds while he was busy running Liberia. Continue reading →

Posted in International Law, Liberia, Sierra Leone, Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL) | Tagged | 6 Comments

A Brand New Low: Ruto Blames the ICC For Westgate Tragedy

Posted on September 23, 2013 by Mark Kersten

By now, readers will be intimately aware with the ongoing and tragic crisis unfolding in Nairobi. According to reports, al-Shabab militants have barricaded themselves and hostages inside Westgate mall. Some 70 civilians have been killed with well over a hundred injured. Al-Shabab claims the attacks are in retaliation for Kenya’s military involvement in Somalia.

When the siege broke out, some commentators suggested it would help the cases facing Kenya’s President Uhuru Kenyatta and Vice President William Ruto. Both face charges at the International Criminal Court (ICC) over their alleged role in Kenya’s 2007/08 post-election violence. They have argued (quite reasonably I think) that, as the head or state and deputy head of state of Kenya, they should not have to both attend trial in The Hague simultaneously. The massacre at Westgate would seem to bolster their argument.

But Ruto has taken things a step farther. As the siege continues, he berated the ICC for making him attend his trial (note: ICC Judges adjourned his trial as a response to the events at Westgate). Standing on the steps of the ICC, he exclaimed that the attacks in Nairobi were timed to coincide with his trial. Even more dubiously, Ruto asserted that President Kenyatta was unable to attend a conference on the security situation in Somalia last week because Ruto was forced to attend trial in The Hague.

Ruto and Kenyatta have worked tirelessly to have their trials dismissed. But it’s one thing to try to get motions passed at the Security Council to throw out the cases or resolutions passed in Kenyan Parliament to get Kenya to withdraw from the ICC. It’s another thing altogether to use this awful tragedy afflicting Kenyans to undermine the Court. It represents a brand new low.

UPDATE: There has been some concern that I didn’t quote Ruto directly in the post. I thought his words speak for themselves. Regardless, Kenya Today has transcribed Ruto’s remarks, referring to them as “sensational”. From his statement, I find it impossible not to infer that what Ruto is saying is that the ICC process which has kept him out of Kenya is (at least partly) to blame for the Westgate crisis. His comments clearly suggest that, had it not been for the ICC trial process, the Westgate attack would not have occurred. As of writing, no evidence to date has been provided to substantiate any claim that the attacks and Ruto’s absence from Kenya were coordinated or had anything to do with each other.

“Its really unfortunate that these terrorists attack was timed to coincide with my presence here at the Hague and the visit by His Excellency the president of Kenya to New York for the UN general Assembly. Meaning that both the president and myself would not have been in the country. It is also instructive to note that the president skipped a meeting last week on the 16th in Brussels that was meant to discuss the Somali crisis complete with the threats it poses to the security situation in Kenya in the horn of Africa and generally in the region,the president had to skip that because he was unable to attend because am required to continuously attend court here at the Hague. It is also important to note that because of the Somali problem that Kenya is engaged in, That these terrorists have been wedged on Kenya . We hope that some people will begin to contextualize what is going on and begin to appreciate the challenges that Kenya is going through, the region is going through,and the complications that are brought by what is going on here. We believe in justice, we believe in fair play and we have as a country, both the president and myself as individuals, we’ve committed ourselves to be present here in court so that we can clear our names but we have to counter balance our individual responsibilities or responsibilities as individuals and legitimate constitutional requirements by 40 million Kenyans. I will be home hopefully this evening to participate in my capacity as deputy president in managing the situation at home and hopefully we should be able to bring this to a close in the shortest time possible to alleviate any further suffering and to put our country on the safe path” .

Posted in International Criminal Court (ICC), Justice, Kenya, Kenya and the ICC | Tagged , , | 16 Comments

Bashir Wants to Visit the Big Apple

Posted on September 18, 2013 by Mark Kersten
(Photo: Alvaro Ybarra Zavala / Getty Images)

(Photo: Alvaro Ybarra Zavala / Getty Images)

It appears that Sudanese President Omar al-Bashir has his heart set on visiting the Big Apple. Bashir, indicted by the International Criminal Court (ICC) for a trinity of atrocity crimes (genocide, war crimes and crimes against humanity) has applied for a visa in order to visit the United States and speak at the UN’s General Assembly.

US officials have responded to Bashir’s alleged plans with a barrage of criticism. A spokeswoman for the US State Department condemned Bashir’s plans, exclaiming: “Before presenting himself to UN headquarters. President Bashir should present himself to the ICC in The Hague to answer for the crimes of which he’s been accused.”

At the same time, President of the ICC’s Assembly of States Parties Tiina Intelmann was quick to remind “States Parties on whose territory the indictee might appear while in transit of their obligation to arrest and surrender Mr.Omar Al-Bashir to the ICC.”

But will Bashir visit the US? And if he does, will the US send him packing for The Hague?

A good ploy but a bad plan?

Bashir’s alleged travel plans smell more of a ploy than a plan. And it’s not a particularly smart ploy, either.

Bashir has been a primary beneficiary of the wave of venomous criticism from African states towards the ICC in the wake of the election of Uhuru Kenyatta and William Ruto as Kenyan President and Vice President. Bashir previously received support in his fight against the ICC from African states – but nothing like what Kenyatta has received. And now that it’s a matter of “Africa against the ICC”, Bashir has much more momentum in his favour in his battle to undermine the Court.

At the same time, however, Bashir has benefitted significantly from a lack of interest amongst Western states as to whether or not he should end up in The Hague. Sure, there has been lofty rhetoric about the importance of holding those responsible for atrocities in Darfur to account. And there were public condemnations of the Sudanese President and his alleged role in the litany of atrocities committed in the region.But Western states, notably the UN Security Council’s P3 (the US, France and the UK), have given Bashir’s fate scant attention in the last few years.

Omar al-Bashir - thumbing his nose at the US and the UN?

Omar al-Bashir – thumbing his nose at the US and the UN?

This wasn’t by accident. Their silence came in return for Bashir’s role in ‘allowing’ South Sudan to separate peacefully in 2011 (the UK even proposed offering Bashir a deferral of any prosecution via an invocation of Article 16 of the Rome Statute as a reward for his ‘good behaviour’). Much to the chagrin of human rights and international justice advocates, it seemed entirely possible that Bashir might retire and live out his days without fear of the ICC.

Now, however, Bashir has made his fate a front-page issue in a country where influential civil society groups have long pressed for his arrest. An issue that the US administration might have otherwise ignored, they now must speak to feverishly. In the wake of the US’s awkward failure to achieve any semblance of justice for victims of chemical weapons attacks in Syria, a potential Bashir visit may present an irresistible target.  Continue reading →

Posted in Crimes against humanity, Darfur, Genocide, International Criminal Court (ICC), Sudan, United Nations, United States, War crimes | Tagged | 10 Comments

The Price of Deference: Is the ICC Bowing to Pressure in the Kenya Cases?

Posted on September 16, 2013 by Mark Kersten

Thomas Obel Hansen joins JiC for this fascinating guest-post on the internal and external pressures facing the ICC in the Kenya cases. Thomas is an independent consultant and an assistant professor of international law with the United States International University in Nairobi, Kenya. 

(Cartoon: Gado)

(Cartoon: Gado)

Prosecuting a sitting Head of State and his Deputy at the ICC was always going to be a complicated task. While the ICC can claim success in that the first of the two Kenya trials commenced Tuesday last week with William Ruto, the Deputy President of Kenya, present before Trial Chamber V(a), it is no secret that the trials are marred with controversy.

As the Prosecution continues to express concerns over the level of witnesses intimidation in the Kenyan cases, the Ruto Defence used his opening statement to deliver an all-out attack on the Office the Prosecutor, claiming that it is guilty of performing a “lazy prosecution”, being “indifferent to the truth” and constituting part of a “glaring conspiracy of lies”. At the same time, political leaders in Kenya – supported by countries in the region – are adding unprecedented pressure on the Court to have it their way. The African Union is reported to have planned an extraordinary summit to (once again) discuss what can be done to end the Kenyan ICC cases. And, as Mark discusses here and here, Kenya’s Parliament has been pushing for a withdrawal from the Rome Statute, although any action by the Kenyan government to this effect would have no impact on the obligation to cooperate with the Court with respect to the ongoing cases.

But there is another aspect to the enduring mobilization against the ICC which has so far received little attention, namely that political actors are increasingly focused on influencing the outcome of specific proceedings before the Chambers. This begs the question: is the Court able to deal with such pressure and protect its institutional interests?

During a status conference on September 9 – just one day before the trial hearings in the Ruto & Sang case commenced –Presiding Judge of Trial Chamber V(a) Eboe-Osuji announced that the Chamber had considered the matter of the two Kenya cases running simultaneously or on alternating days and had come to the conclusion that “running the cases simultaneously will not necessarily expedite them”. Accordingly, Judge Eboe-Osuji stated that it was “the Chamber’s preference that the Court sits on a four-weeks alternating period”.

Keeping in mind that two of three judges who sit on the Trial Chamber that is handling the Ruto & Sang case also have a seat in the Chamber that is handling the Kenyatta case, this might have seemed a reasonable decision, had it not been because the same Chamber, in a ruling of 29 August, rejected Ruto’s request that the Chamber sits on alternating periods on the basis that it would not be “an efficient way to conduct the proceedings in the present case”.

Curiously, this change of mind took place only one day after President Uhuru Kenyatta, whose trial is currently scheduled to commence on 12 November this year, made it clear that he would only continue to cooperate with the ICC if the Court’s schedule suits him:

“They should not make it impossible for the sovereign nation of Kenya to be led as its citizens democratically chose…We will work with the ICC but it must understand that Kenya has a constitution and Ruto and myself won’t be away at the same time…If they want us to cooperate, they must ensure that when Uhuru is there (at Hague) Ruto is in the country.”

One can’t help but speculate that the Trial Chamber’s reconsideration of the issue may somehow have been influenced by Kenyatta’s remarks, a suspicion that Judge Eboe-Osuji himself made no attempts at proving wrong when he failed to clarify what had made the Chamber change its mind.

(Photo: AP / Michael Kooren)

(Photo: AP / Michael Kooren)

The danger with making such decisions is that they easily give the impression that it is the accused, not the judges, who are in charge of the proceedings. The ICC’s legitimacy is not only contingent on the Court making sound decisions, but also on the appearance that these decisions are impartial and based on the Court’s preferences – not the accused’s.

In a separate development last week, a number of African states engaged in what appears to be a well-coordinated attempt at influencing the Appeals Chamber’s soon-to-be-expected ruling on the Prosecutor’s appeal of the Trial Chamber’s decisionto grant Ruto’s request for excusal from continuous presence at trial. Almost simultaneously, Tanzania, Rwanda, Burundi, Uganda and Eritrea filed applications with the Registry to be granted leave to file amicus curiae briefs under Rule 103(1) of the Rules of Procedure and Evidence. This is, to my knowledge, the first time that States Parties – not to mention non-States Parties – have sought the Court’s permission to file legal observations with respect to ongoing proceedings to which they are not parties and which do not directly affect any of their nationals.  Continue reading →

Posted in Burundi, Eritrea, ICC Prosecutor, International Criminal Court (ICC), Kenya, Kenya and the ICC, Rome Statute, Rwanda, Tanzania, Uganda | Tagged , , , | 20 Comments

The ICC: What Counts as a Success?

Posted on September 13, 2013 by Mark Kersten

Birju Kotecha, a graduate tutor in law at Northumbria University Law School, joins JiC for this post on the challenges of measuring the ICC’s ‘success’. Enjoy!

(Photo: Juan Vrijdag / AFP / Getty Images)

(Photo: Juan Vrijdag / AFP / Getty Images)

One of the striking features of the International Criminal Court (ICC) is its ability to draw attention from a multitude of disciplinary perspectives. Law, political science, criminology, philosophy, international relations and even sociology have invested in the long-standing discourse on the ICC’s consequences, challenges, limits and pursuits. A position that unites many (though not all) ICC researchers is the desire for the Court to succeed. But what counts as ‘success’? Achieving consensus or clarity on how to measure the effectiveness or success of the ICC is challenging. Can we decide or develop appropriate metrics to assess whether the ICC is performing ‘successfully’?

In an era of market-orientated performance criteria, measuring institutional success in any public sphere is typically done through the use of key performance indicators. These are mostly ascribed values and numbers. It is what domestic public bodies from schools to hospitals are often assessed against, accompanied by the popular complaint of a detrimental “target culture”. Such performance measures can be blunt tools, commodifying public goods and values and are unable to look at an institution’s intrinsic worth. They capture pure outcomes without understanding the inherent limitations, complexities, values and nuances that dictate or skew the data. They are of limited value as they are unable to explain the meaning or quality behind those successes.

Capturing ICC effectiveness through numbers alone, though valuable, can be similarly problematic and reductionist. Not least because there are insufficient benchmarks to compare the ICC’s work. And even comparisons between its work and the ad-hoc tribunals like the ICTY or ICTR is problematic due to their differing structures, features, budgets and jurisdictions.

The use of tables, rankings and numerical criteria would see ICC performance reduced down to a range of indicators including numbers of state parties, cases, successful prosecutions, average cost, duration of proceedings, extent of victim satisfaction and so on. If we take two of those examples, the raison d‘être of any court are both trials and convictions. In this regard the ICC’s quantifiable success is rather patchy. In 11 years since its operation there have currently been only 8 investigations, 6 arrests from a possible 23 along with 1 completed trial and conviction (which is subject to appeal) and 1 acquittal.

A rendition of the ICC's future premises, currently under construction.

A rendition of the ICC’s future premises, currently under construction.

However, paradoxically and as if to highlight why measuring success is such a complicated business, it was former prosecutor Moreno-Ocampo who argued in 2006 that the lack of international trials was also a reflection of success if it was the result of domestic jurisdictions fulfilling their obligations to prosecute under the complementarity regime.

The effects and consequences of an institution that is as complex as the ICC with its range of political, social and legal dimensions is not always amenable to rankings, results and other statistical judgements. How for example, can we capture the impact on discourse, political re-positioning, due process, diplomatic efforts, or popular confidence in the goal of ending impunity? The question of what can be quantifiably measured should not be confused with the question of what should be measured. Continue reading →

Posted in International Criminal Court (ICC) | 1 Comment

Syria: Where Not All Deaths Are Treated Equally

Posted on September 9, 2013 by Mark Kersten

Betcy Jose, an Assistant Professor at the University of Colorado Denver, joins JiC for this thought-provoking guest-post on intervention in Syria and the unequal treatment of human lives – and deaths.

(Photo: AFP)

(Photo: AFP)

Currently, U.S. President Barack Obama is trying to persuade Congress to authorize limited military action against Syria for its alleged use of chemical weapons against civilians in a suburb of Damascus. His Secretary of State, John Kerry, called the use of chemical weapons against civilians a “moral obscenity”. His statement reflects sentiments held by many in the international community regarding the Syrian government’s alleged use of chemical weapons. Outrage and condemnation began to reverberate across the global community soon after the appearance of heart-wrenching videos showing Syrians, many of them dying young children, displaying symptoms of a possible sarin attack. Prominent world figures forcefully and emotionally decried the attacks, often in the name of the civilians killed. For instance, British Prime Minister David Cameron stated that, “[a]lmost 100 years ago, the whole world came together and said that the use of chemical weapons was morally indefensible and completely wrong. What we have seen in Syria are appalling scenes of death and suffering because of the use of chemical weapons by the Assad regime.” United Nations Secretary General Ban Ki-moon said, “if proven, any use of chemical weapons by anyone under any circumstances is a serious violation of international law and an outrageous crime. We cannot allow impunity in what appears to be a grave crime against humanity.”

Such denunciations essentially are based on the following premise: there are certain acts intentionally committed against civilians that the international community cannot tolerate; the use of chemical weapons during war against civilians falls within this category. Even Russia, which has been Syria’s steadfast ally during this conflict, limited its defense of the Assad regime to questioning the conclusion drawn by the United States and some of its allies that it was the Syrian government which perpetrated this attack. Russia did not base its defense of the regime on the permissibility of the use of chemical weapons against civilians.

Those condemning the chemical weapons attack against civilians do not rely solely on moral claims to ground their arguments. They also utilize international law to denounce this attack. The Geneva Gas Protocol of 1925 and 1949 Geneva Conventions have both played a central role in this rhetorical battle. The Geneva Gas Protocol prohibits states from using “asphyxiating, poisonous or other gases” in international conflicts. The Geneva Conventions provide civilians with certain protections under international law like protection from deliberate attacks.

Two Syrian boys in the oynuyogun refugee camp on the Turkish-Syrian border (Photo: Reuters / Murad Sezer)

Two Syrian boys in the oynuyogun refugee camp on the Turkish-Syrian border (Photo: Reuters / Murad Sezer)

Even if you have not watched the videos of the alleged chemical weapons attack, it is not difficult to understand the intense desire to do something about what is happening to civilians in the Syrian conflict. Tens of thousands of Syrians are now dead, and it is increasingly difficult for many to continue to look away from that conflict. But the fact that the United Nations estimates that more than 100,000 people have died begs the question: why the current intense need to punish Syrian actors for these particular deaths? Violating Syria’s sovereignty in response to deaths from the chemical weapons attack without a UN mandate is an illegal act just as is a military intervention launched outside the UN in response to these other deaths. So, despite the international law violations committed by Syrian actors against civilians throughout the conflict, why is the United States contemplating violating another set of international laws in this instance but not the others? Why act in the name of nearly 2000 deaths from chemical weapons and not for the tens of thousands killed by other means? Continue reading →

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Former ICC Chief Prosecutor Speaks out on Syria, Endorses Conditional Referral

Posted on September 9, 2013 by Mark Kersten
(Photo: AP)

(Photo: AP)

For the most part, Luis Moreno-Ocampo has remained quiet about the work of his former employer, the International Criminal Court (ICC). But in the midst of ongoing debates about the utility and legality of military intervention in Syria, the vocal former Chief Prosecutor of the ICC decided to enter the fray.

In a Huffington Post op-ed, Moreno-Ocampo set out the argument that a United Nations Security Council referral of Syria to the ICC could represent a middle ground position between doing nothing and military intervention. Interestingly, Moreno-Ocampo avoided proselytizing the role of the ICC. Instead, he maintains that international criminal justice must be “integrated” with political negotiations – and any potential military intervention:

…to be an effective option for halting the crimes against humanity, the international justice path should be refined and improved. There should be a strategy integrating justice with military efforts and political negotiations, a strategy that was lacking in the past.

This represents a subtle but important softening in Moreno-Ocampo’s position towards the relationship between pursuing justice and negotiating peace. Previously, the former Prosecutor had been much more strident. For example, in a 2009 interview on how to resolve the conflict in Darfur, Moreno-Ocampo remarked: “We need negotiations, but if Bashir…is not the person to negotiate with. Mr. Bashir could not be an option for [negotiations on] Darfur. I believe negotiators have to learn how to adjust to the reality. The court is a reality.”

In his op-ed, Moreno-Ocampo also outlines four conditions for achieving a referral of Syria to the ICC: getting Russia on board; getting China on board; utilizing the temporal jurisdiction of the ICC to pressure the parties to end the war; and making sure that a referral specifies how any subsequent arrest warrants issued by the Court will be enforced.

Luis Moreno-Ocampo (Photo: Al Arabiya)

Luis Moreno-Ocampo (Photo: Al Arabiya)

The third condition is particularly interesting. Here’s what Moreno-Ocampo has to say:

Third, the temporal jurisdiction should be thoroughly discussed by UN Security Council members. They have options. They can request that ICC investigations start from the beginning of the Syria conflict or establish a deadline in the near future that will trigger the jurisdiction of the Court. Such a timeframe could provide an incentive to begin a different style of negotiations to end the conflict.

Should the conflict effectively stop before the deadline, the national leadership could discuss adequate ways to promote justice for the past. It will be a challenge for negotiators to include accountability as a part of the political agreement but it will be the only guarantee that the leadership are not involved in new crimes. Continue reading →

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