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

Kenyatta’s Next Move: What Kenya Wants from the ICC

Posted on November 13, 2013 by Mark Kersten
(Photo: Getty Images)

(Photo: Getty Images)

Kenya’s dreams of getting the UN Security Council to defer the cases against President Uhuru Kenyatta and Vice President William Ruto have collapsed, at least for the time being. Key members of the Security Council aren’t willing to go for it; at least one of the P3 – France, the UK or the US – has made it clear that they would veto any attempt to invoke of Article 16 and defer the Kenya cases for at least one year.

Of course, that doesn’t mean that Kenya’s battle against the ICC is over. They may have lost the battle but they’re in it for the war. The country’s attention has now turned to the upcoming Assembly of States Parties (ASP) conference in The Hague (November 20 – 28). And, thanks to an online leak, we now know exactly what Kenya wants to see happen at the ASP.

Kenya will put on a full-court press in an attempt to amend the Rome Statute. Their attitude seems to be that if they can’t circumvent the Court, they might as well try to change it.

What Kenya Wants

1. An amendment to Article 63 pertaining to the presence of an accused at trial. Whether or not Kenyatta (and Ruto) have to be continuously present at their trials in The Hague has been an issue of much contention. Many believed (and some hoped) that allowing Kenyatta and Ruto to be absent from parts of their trial would constitute a middle ground and, consequently, lessen tensions between the Court and Kenya. However, it was recently ruled that Ruto had to be present throughout his trial and it now appears that a similar decision will be made in the Appeal’s chamber with regards to Kenyatta. Some, like Kevin Jon Heller, believe this is a recipe for disaster, putting the ICC and Kenya on a collision course.

Kenya wants to make it easier for individuals such as Kenyatta and Ruto to avoid being present at trial throughout the duration of proceedings. Specifically, it wants the Rome Statute to be amended to read:

“…an accused may be excused from continuous presence in the Court after the Chamber satisfies itself that exceptional circumstances exists, alternative measures have been put in place and considered, including but not limited to changes to the trial schedule or temporary adjournment.”

Walter Barasa (Photo: Fred Mutune / Xinhua Photo)

Walter Barasa (Photo: Fred Mutune / Xinhua Photo)

2. Kenya wants to amend provisions within the Rome Statute that ensure the Court treats “all persons without any distinction based on official capacity.” According to Kenyan officials, this “goes against the basic tenets of international law pertaining to privileges and immunities of government officials.” Kenya would like to see that government officials who are cooperating with proceedings (like Kenyatta and Ruto) should be excused from these provisions. Moreover (and predictably), Kenya wants to see Article 27 amended with the words: “… serving Heads of State may be exempt from prosecution during their current term of office. Such an exemtion [sic] may be renewed by the Court under the same conditions”. In other words, if you’re elected, you shouldn’t have to go to the ICC until your time in power is up. You have to wonder what kind of incentive that gives to gaining and maintaining power at all costs.  Continue reading →

Posted in Deferral, International Criminal Court (ICC), Kenya, Kenya and the ICC | Tagged , | 10 Comments

Searching in Vain: Perfect Justice in Syria

Posted on November 10, 2013 by Mark Kersten
(Jeff J Mitchell/Getty Images)

(Jeff J Mitchell/Getty Images)

A hot topic for many of the best and brightest in the field of international criminal justice is the ongoing conflict in Syria. Is it possible for justice to be delivered for the commission of atrocities – on both sides of the war? If so, what is the best way forward?

Much of the debate on justice in Syria unfortunately suffers from a rigid, all-or-nothing approach. Either perfect justice must be achieved or absolutely no justice should be pursued; either the international community gets the International Criminal Court (ICC) involved via a UN Security Council referral that funds the Court’s work and protects it from political manipulation or… well, nothing. As a result, attempts to elaborate how to achieve justice in Syria have marginalized middle-ground options on the grounds that they aren’t perfect or exactly what should happen in an ideal world. The perfect solution really has become the enemy of any solution.

But, of course, there are middle-ground solutions. They deserve more attention than they’ve received and key states involved in the conflict should weigh the costs and benefits of each. Here’s three worth talking about:

A Conditional Referral

I previously wrote about this concept but it remains just as, if not more, pertinent today than ever. Interestingly, Former ICC Prosecutor Luis Moreno-Ocampo has endorsed the idea.

A conditional referral would entail a legal guarantee from the Security Council that it would refer the situation in Syria by a given, future date. The parties to the conflict would then have a clear timeline for when they needed to end hostilities and cease their commission of atrocity crimes. If they did not, the Security Council would be legally ‘locked-in’ to issuing a referral of the situation to the ICC.

There are significant problems with this proposition, especially because it risks placing the ICC at the complete and utter whim of the Security Council member-states. As a result, it could severely undermine the independence and thus legitimacy of the Court. For many, it has consequently raised an uncomfortable question: is the pursuit of justice in any one context worth undermining the Court’s long-term viability?

A Free Syrian Army fighter in Damascus(Goran Tomasevic/Reuters)

A Free Syrian Army fighter in Damascus(Goran Tomasevic/Reuters)

A Referral-Deferral

The concept of a referral-deferral hasn’t received much attention (in fact, I can’t find anything written about it to date). Still, it is an interesting proposition that was first proposed to me by Jason Ralph, who has written extensively on the legitimacy costs of UN Security Council deferrals.

The proposal is, in essence, an adaptation of a conditional referral. The Security Council would pass a resolution referring the situation in Syria to the ICC. It would then immediately pass a resolution deferring any investigation and prosecution in Syria for a period of 12 months. The belligerents in Syria would thus have one year to the resolve the war or to demonstrate that they were on a viable path to doing so and thus deserved a second 12-month deferral. Importantly, a referral-deferral might provide an incentive for the parties to negotiate an accountability mechanism that would satisfy the Court’s complementarity regime and therefore make any subsequent investigation unnecessary.

Of course, there are those who believe that a deferral under Article 16 is anathema to the ICC despite the fact that it forms an integral part of the Rome Statute. But a referral-deferral does have some advantages. Unlike a conditional referral of Syria to the ICC, a referral-deferral would put the onus and responsibility for matters of justice and accountability on the Security Council member-states and not the ICC.

An Ad-Hoc Tribunal 

The idea of an ad hoc tribunal gained traction after a number of high-profile academics and practitioners released a draft statute of a tribunal aimed at preventing Syria becoming a post-conflict “basket case”. There have been important voices, like Dov Jacobs, who expressed disappointment with the effort. But the broader outlines of the idea an ad hoc tribunal deserves more attention.

Still, for some reason the idea of an ad-hoc tribunal has been treated as an affront and an attack on the ICC. Others suggest that it simply can’t deliver justice. For example, Richard Dicker, Human Rights Watch’s Director of International Justice and Human Rights, recently told US lawmakers that an ad hoc tribunal “the solution most likely to provide justice is not a stand-alone ad hoc tribunal for Syria.” Continue reading →

Posted in International Criminal Court (ICC), Syria, UN Security Council | 5 Comments

From Justice Delayed to Justice Denied: Katyń in Strasbourg

Posted on October 31, 2013 by Mark Kersten

In April 1940, the Soviet secret police initiated a secret massacre of some 20,000 Polish officials and officers. The struggle to establish the truth of what happened in the Katyń forests came to dominate much of contemporary Polish political life and played a leading role in the struggle to wrench the country free from the shackles of communism. JiC is thrilled to welcome Maria Radziejowska for this  guest-post on the recent ruling at the European Court of Human Rights on whether Russia has sufficiently investigated the Katyń massacre. Maria is currently working for the Polish Institute of International Affairs in Warsaw where she conducts research and analysis focusing on international security and justice issues. She also blogs at Beyond the Hague. 

Katyn monument in Jersey City (Photo Mark Grabowski)

Katyn monument in Jersey City (Photo Mark Grabowski)

The Katyń massacre took place between April and May 1940 when 20,000 thousand Polish officers and officials were executed by NKVD, the Soviet special police. After decades of denial, Russia publicly acknowledged Soviet responsibility for the massacre in 1990. But the entire truth about what happened in the forests of Katyń has remained out of reach. Many believe Russia has not done enough in coming clean about the massacre.

Last week, the Grand Chamber of the ECHR delivered its final decision in Janowiec et al. v. Russia (other comment here). The case before the ECHR concerned the quality of investigations conducted by Russian authorities into the Katyń massacre. These started in 1990 and ceased in 2004, following the decision of the Russian authorities to re-classify as “top-secret” 36 volumes of files and to discontinue the investigation. The applicants before the Court argued that Russian authorities breached their rights by failing to carry out an effective investigation into the death of their relatives and displayed a dismissive attitude towards the applicants’ requests for information about their relatives’ fate.

The final outcome of the case has turned out to be a bitter disappointment for the victims’ families and the human rights community, especially in light of the first instance decision partly granting the applicants’ claim pertaining to the way they were treated by Russian authorities. Many observers reacted to the Court’s decision with disappointment. So too did the dissenting judges who proclaimed that this decision turned a “long history of justice delayed into a permanent case of justice denied.”

The Grand Chamber confirmed that the Court has no temporal authority to examine the efficiency of the investigations carried out by the Russian authorities into the massacre. The majority considered that in certain circumstances, a state-party may be obliged under the Convention to investigate unlawful or suspicious deaths, even if such occurred before the state in question was bound by the Convention (Šilih v. Slovenia which I recently discussed in more detail here). However, not without limits. The Grand Chamber clarified that the time lapse between the crime and the entry into force of the Convention for the obliged state must not exceed ten years (!). Moreover, the major part of the investigation must be carried out after the Convention became binding for the state (paras 140-151). To this end the applicants pointed out that the Court should have given due consideration to the “Ukrainian list” pertaining to 3,435 victims, discovered and conveyed to the Russian investigation authorities in 2004, or to the very decision to classify parts of the files (para. 113, statement by victims’ representative, Ireneusz C. Kamiński in Polish). Nevertheless, the majority upheld the previous finding that the most crucial part of the investigations into the Katyń massacre took place before Russia ratified the Convention in 1998 (para. 159).

pomnik_katyn_afp_600To the dismay of those who had hoped to invoke the “humanitarian clause” to seek justice for grave human rights breaches of the past, the verdict is clear. Even when the crime in question is so grave that it negates the very foundations of the Convention, the Court is not competent to examine state parties’ obligation to investigate war crimes and crimes against humanity that predated the adoption of the Convention (4 November 1950) (para. 151). The multitude of arguments one could make for or against this finding is displayed in the majority judgment, the dissenting opinions as well as in the third party submissions (i.e. Open Society Justice Initiative or Amnesty International). The arguments raised elaborate on the content and interpretation of the non-retroactivity of treaties, the non-applicability of statute of limitations to war crimes, the values and the intended purpose of the Convention, the customary law status of the crimes in question. All that being said, it seems that the Court has chosen to definitively close the door to victims of gross human rights violations that occurred prior to the Convention.

The brutally ironic result is that following the applicants’ decision to appeal, the Grand Chamber negated the first instance finding that the manner in which the applicant’s enquiries were dealt with by the Russian authorities “has attained the minimum level of severity to be considered inhuman treatment within the meaning of Article 3 of the Convention”. In view of the Grand Chamber this would be justified only if the fate of the applicants’ relatives was uncertain. However, their death was publicly acknowledged in 1990 and has become an established historical fact by 1998 (para. 186). Continue reading →

Posted in Historical Justice, Justice, Poland | Tagged | 1 Comment

Orbiting in Space – Suspended Justice in Sierra Leone

Posted on October 28, 2013 by Mark Kersten

Laura Martin joins JiC for this timely and critical examination of the over-relieance of legal, retributive modes of justice in Sierra Leone. Laura is a currently Ph.D candidate in the Centre for African Studies at the University of Edinburgh. Her research largely pertains to local transitional justice in Sierra Leone.  

The SCSL

The SCSL

In The Hague last month, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) upheld the May 2012 ruling that Charles Taylor had in fact committed war crimes by aiding Sierra Leonean soldiers during the 11 year civil war (1991-2002). Many have praised the verdict as another victory on the war against impunity, ‘serving justice’ for the many victims of Sierra Leone. But the ruling is simply another example of how “serving justice” during transitions largely remains confined to a narrow, legal understanding of what justice means. Context and culture continue to be marginalized and, as a result, so too is justice.

Legal transitional justice predominantly stems from the 1990s when justice institutions manifested as ad hoc tribunals in Yugoslavia and Rwanda. They sought to prosecute criminal masterminds with international criminal law. Therefore, the notion of ”serving justice” was equated with due process and guilty convictions. However, these institutions were found to be slow, stagnant, expensive and, most importantly, disconnected. Critics often pointed to both their physical and psychological distance. As Makau Mutua writes in reference to Rwanda, the “tribunal [was] orbiting in space, suspended from political reality and removed from individual and national psyches,” demonstrating its lack of relevance or legitimacy in civil society.

In response, practitioners sought to renovate transitional justice tribunals to become what Beth Dougherty refers to as the “second generation,” incorporating aspects specific to local contexts. Transitional justice in Sierra Leone was the pinnacle product of this evolution. The Special Court, located in Freetown, was designed as a legal hybrid institution where both international humanitarian law and national law served as the backbone of justice, as well as employing both international and Sierra Leonean judges and lawyers. Established in 2002, its purpose was to charge individuals who “bore the greatest responsibility” for crimes committed in Sierra Leone from November 1996 onward. This resulted in the indictment of 23 men, primarily key war architects and top commanders. Of these individuals, 9 are currently serving jail sentences; 3, including top rebel leaders Sam Hinga Norman, Foday Sankoh, and Sam Bockarie died during proceedings; Johnny Paul Koroma, head of state during the AFRC government from 1997-98 remains a fugitive (although is believed to be dead); and the remaining served lesser (or, in some instances, no) sentences for cases of contempt including witness intimidation and witness tampering.

Charles Taylor (Photo: Jerry Lampen / Reuters)

Charles Taylor (Photo: Jerry Lampen / Reuters)

International legal scholars have widely hailed the Court as a success. Last year, the UN Security Council stated the SCSL had succeeded in contributing to international criminal justice-particularly in relation to forced marriage, sexual violence, sexual slavery and the recruitment and use of child soldiers. The Court was also said to have strengthened stability in West Africa by “bringing an end to impunity.” The May 2012 Charles Taylor conviction and its recent reaffirmation have further served as evidence that “justice has been done.” However, what did this mean in Sierra Leone and, more importantly, for its citizens?

The short answer is: not a lot. To begin with, the vast majority of Sierra Leoneans reside in rural areas disconnected from state and legal institutions. The Court, located in the coastal city of Freetown, hidden behind barricaded walls and barbed wire fences rendered it neither physically visible or nor accessible. In addition, a large portion of the population is illiterate. Hence, legal rhetoric was in many was not understood or of interest. Even with press outlets there was a strong disconnect. As Lansana Gberie observed, “[T]he Court appears aloof from the general population…[Their] Public Information Unit…has been perceived as having little engagement with the local media…and has seemed more concerned communicating with foreign press.” Continue reading →

Posted in Liberia, Sierra Leone, Special Court for SIerra Leone (SCSL), Transitional Justice | 6 Comments

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