World Wide Justice – Help Improve the ICC’s Website

Posted on August 23, 2013 by Mark Kersten

Screen Shot 2013-08-23 at 12.16.20 PMAs readers know, both Kevin Jon Heller and I have recently been rather vocal about the ICC’s website (see here and here). In a nutshell, given the potential reach and impact of the Court’s site, it is currently a disaster. So it came as very welcome news that the Court has taken the long-standing criticisms about its website seriously. The ICC has set up a survey where observers and users of the site can provide their thoughts and feedback. The survey can be found here. I highly encourage all readers to take the time to fill out the survey. Kudos to the Court and, especially, to new Registrar Herman von Hebel, for taking on the initiative!

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

Why Syria Still Won’t be Referred to the ICC

Posted on August 22, 2013 by Mark Kersten
A Free Syrian Army Fighter (Photo: Goran Tomasevic/Reuters)

A Free Syrian Army Fighter (Photo: Goran Tomasevic/Reuters)

Forces loyal to Syrian President Bashar al-Assad probably used chemical weapons in an attack on the outskirts of Damascus. The United Nations responded that it will probably investigate what happened. Still, the International Criminal Court (ICC) probably won’t be investigating alleged crimes in Syria any time soon.

After two-and-a-half years of debilitating civil war in which some 80,000 – 100,000 people have been killed, the international community is no closer to bringing anyone suspected of war crimes and crimes against humanity in Syria to account. It isn’t because there’s a lack of injustices to investigate. The alleged chemical weapons attack on civilians is just the latest atrocity to garner the attention of advocates seeking referral of the situation in Syria to the ICC. But despite the outcry over the barbarity of this attack, it remains unlikely that that the ICC will find itself investigating atrocities in Syria. Here’s a few reasons why – some obvious, some perhaps less so.

The Continued Stalemate with Russia

The ongoing stalemate between Russia (and, to a lesser extent, China) and the rest of the Security Council is the most obvious and most widely reported reason as to why no ‘breakthrough’ on the Syria question has been achieved. In order for the ICC to intervene, the UN Security Council would have to refer Syria to the Court. In order to do so, Russia needs to either abstain or vote in favour of a referral. It isn’t likely to do so.

Russia, it is regularly argued, remains stubbornly supportive of the Assad regime. Russia has supplied Syria with “advanced missiles” and has consistently protected Assad from assertive action by the Security Council. In July, the Russian government suggested that it was the rebels who had used chemical weapons in their fight against the regime. In emergency meetings where the Council discussed how to respond to the alleged chemical weapons attack, Russia maintained that videos showing civilians suffering from the effects of chemical agents was a “premeditated provocation” and was likely fabricated by Syria’s rebel forces. This was in line with the response of the Syrian regime.

It is easy to believe that Russia will, come hell or high water, stand by Assad. Still, however deplorable Russia’s position on Syria has been, it has also proved a useful scapegoat to Western states eager talk the talk but unwilling to walk the walk.

A man mourns the death of his daughter in Aleppo (Photo: Javier Manzano / AFP / Getty Images)

A man mourns the death of his daughter in Aleppo (Photo: Javier Manzano / AFP / Getty Images)

Stalemate amongst Western States

It has regularly been argued that if only Russia would step aside, the rest of the international community could finally intervene in Syria. This unfortunate but popular characterization of the situation obfuscates the reality that the international community has long been intervening in Syria Indeed, the civil war in Syria is something of a proxy battle with Russia arming the government and the ‘West’ arming the rebels (consequently, the (re)solution of the Syrian civil war is likely to depend on the relationship between Russia and the ‘West’ as much as what happens on the ground). The debate over intervention in Syria is thus not one of action versus inaction. And when observers suggest that the international community should be “doing more” in Syria, they are calling for some form of direct military intervention. For the many who continue to be wary that a direct intervention in Syria could spell disaster – for Syria and for the wider region – anything and anyone that blocks such an intervention is welcome news.

As for a judicial intervention by the ICC, the story is similar. The UN Commission of Inquiry on Syria has catalogued rebel crimes and, according to UN High Commissioner for Human Rights Navi Pillay, the Syrian rebels that the ‘West’ supports have likely committed war crimes. This certainly complicates any idea of Western states using the ICC as a tool to hurt the regime. In the initial stages of the civil war, it was foreseeable that the P3 could ‘use’ the ICC as they had in Libya – to pressure the Assad regime, bolster efforts to depose him, and legitimate the opposition. Now, however, the ICC would almost certainly investigate – and indict – both sides. But Western powers likely prefer no judicial intervention than one that targets the side they support.  Continue reading →

Posted in International Criminal Court (ICC), Russia, Syria, UN Security Council, United Nations | Tagged , | 7 Comments

Could Russia be a Key to International Justice in Libya?

Posted on August 14, 2013 by Mark Kersten
(Photo: Andrew Winning / Reuters)

(Photo: Andrew Winning / Reuters)

The battle between Libya and the International Criminal Court (ICC) over where Abdullah al-Senussi and Saif al-Islam Gaddafi should be tried has taken another dramatic turn.

Saif’s legal representative John Jones has written a scathing letter to the UK’s Foreign Secretary William Hague in which he decried what he views as Britain’s hypocrisy in selectively promoting international justice:

“You cannot plausibly claim to be a champion of international humanitarian law while turning a blind eye to Libya’s faults… Libya is defying the ICC’s order to hand over Saif. The foreign secretary needs to demonstrate Britain’s backing for the court.”

At the same time, Ben Emmerson and the team of lawyers representing Abdullah al-Senussi have requested that ICC judges refer Libya to the Security Council over fears that a planned trial of Senussi in Libya “will be nothing more than sham justice, the old-fashioned show trial”.

As I have previously argued, the Security Council has completely shirked its responsibility in assuring that justice is achieved in Libya. When the Revolution began in February 2011, the P3 (the US, France and the UK) calculated that it would be useful to get the ICC involved. The Court’s intervention helped to further isolate and delegitimize Gaddafi, stigmatized him with the label “international criminal” and, in so doing, laid the grounds for a military intervention that could framed as being primarily about serving justice and removing an illegitimate, criminal leader. Seeing an opportunity to capture international attention, the ICC went along with the show. Controversially, the Security Council gave the cash-strapped Court no funding, prevented it from investigating any alleged crimes before 15 February 2011, and ensured that no citizens of states that weren’t members of the ICC could be prosecuted. At the time, the Court and its most fervent supporters didn’t seem to mind. If they did, they certainly didn’t make a fuss.

The Security Council’s interest in Libya quickly waned. Before the civil war was over, its members began softening their positions on enforcing international justice in Libya. The new government – whoever it was – would be able to decide what happened with Libya’s ICC indictees. The Court was hung out to dry.

It is this dynamic which, in my view, at least partially helps to explain why the Office of the Prosecutor, first under Luis Moreno-Ocampo and now under Fatou Bensouda, was inclined to side with Libya in its quest to prosecute Saif and Senussi in Libya, by Libyans. There wasn’t exactly a long line of powerful actors demanding that Saif and Senussi be transferred to The Hague. With no influential powers in its corner, repeatedly declaring that Libya should hand over suspects would not only be futile but make the Court look impotent.

(Photo: Democratic Underground)

(Photo: Democratic Underground)

With time, some observers began to openly question the Security Council’s role in promoting the ICC and international justice more broadly. Some even suggested that, if the Council were to refer another case to the Court, the ICC might consider politely declining. Still, by and large, the P3 Security Council members haven’t had to defend themselves. As the legal battle between Libya and the ICC has dragged on, there’s been virtually no pressure on them to intervene with either words or deeds. When pressed, their response has generally been to request that the Court and Libya “cooperate”. But if Saif and Senussi’s defence teams are successful in getting their clients’ predicaments on the agenda of the Council, the P3 might just be forced to justify their positions and perhaps even take some action. Here, Russia could play a very important role.

Russia is undoubtedly upset over how the Libyan conflict transpired. Contrary to the narrative that the media has propagated, however, Russia isn’t upset with the fact that NATO’s intervention digressed into regime change. It is impossible that, when Russia supported the referral of Libya to the ICC and allowed NATO to intervene, it didn’t know what it was getting in to. Rather, it appears that the Russian government is upset that it hasn’t been able to cash in on the spoils of war. Libya and Russia had lucrative deals (including for oil) in place prior to the Revolution. Since the intervention, Russia’s economic interests in the country have been ignored.

Russia is keen to take the P3 to task over Libya and in doing so it has defended the mandate of the ICC. And why not? They are in full knowledge that the P3 has ignored the Court and its work in Libya.  Continue reading →

Posted in Libya, Libya and the ICC, UN Security Council, United Nations | Tagged , , , , , | 2 Comments

Impending Disaster? The ICC in Kenya and Africa

Posted on August 9, 2013 by Mark Kersten
Kenyan President Uhuru Kenyatta (Photo: TV/C)

Kenyan President Uhuru Kenyatta (Photo: TV/C)

Dear readers,

I recently had the pleasure and honour to write a brief article for the UNA-UK’s publication New World on what the election of Kenyatta and Ruto in Kenya means for the ICC. For anyone interested, the full article can be found here. Here’s a glimpse:

There is no denying that the recent election of Uhuru Kenyatta and William Ruto as President and Vice President of Kenya respectively, came as a significant blow to the International Criminal Court (ICC). The ICC had identified Kenyatta and Ruto as bearing responsibility for crimes committed during the 2007/2008 post-election violence in Kenya. Their election has left the belief that the ICC could isolate and marginalise its targets battered. Some have even suggested that the ICC indictments could have helped Kenyatta and Uhuru achieve electoral victory, in a country where it’s reported that just 35% of the population now support the Court.

The situation has elevated criticisms of the ICC as a ‘neo-colonialist’ institution biased against African states to a new level and put the relationship between Africa and the ICC under the microscope once again. Ugandan President Yoweri Museveni praised Kenyans for rejecting “blackmail by the International Criminal Court and those who seek to abuse this institution for their own agenda”. And Ethiopian Prime Minister Hailemariam Desalegn proclaimed that the Court was “race hunting”. The African Union subsequently passed a resolution insisting that the Court was unfairly targeting African states. Had it not been for the lone dissenting voice of Botswana, the resolution would have passed unanimously.

There have also been numerous calls to dismiss the cases against Ruto and Kenyatta. The trials for both have been repeatedly delayed. Dozens of witnesses have withdrawn their testimonies amidst reports of witness tampering and, in some cases, disappearances. Despite stating that there would be “consequences” if Kenyatta was elected, many ICC member-states have since congratulated Kenyatta on his victory. Given this laundry list of controversies, it is hard not to wonder whether Kenya is the hill the Court’s relationship with Africa will die on.

So what is the Court to do?

Read more.

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Palestine and the ICC: Peace First, Justice (Maybe) Later

Posted on August 2, 2013 by Mark Kersten
(Photo: Reuters)

(Photo: Reuters)

News that Palestine and Israel have committed to a new round of US-brokered negotiations has been met with a mix of curiosity and caution. No surprise there. We’ve seen this show before. While it is undoubtedly useful to be positive and have “hope”, no one is really willing to bank on the fact that these negotiations will finally conclude the world’s most protracted conflict. We’ve been disappointed too many times. Even Martin Indyk, the US’s chief mediator in the talks, was careful in stating that these talks pose “a daunting and humbling challenge.” Apparently, Israeli media was more interested in the birth of a British kid called George than the announcement that peace talks would resume. No one seems to be holding their breath although, who knows, maybe that fact will be a conducive element in the talks.

Still, just a few short months ago it appeared very unlikely that Palestine and Israel would get to the negotiation table. While many are attributing the beginning of the negotiations to US Secretary of State John Kerry’s “six official visits to the Middle East in an effort to restart the negotiations”, it could easily have been twelve or twenty. And regardless of how many trips he made, they could easily have resulted in failure.

A key reason why many were doubtful about the resumption of peace talks was the question of Palestine’s interest in referring itself to the International Criminal Court (for more analysis, see here, here and here). But in recent months, the Palestinian Authority’s rhetoric regarding a potential self-referral to the ICC was reduced to a murmur. The quieter talk of the ICC became, the louder talk of peace talks got. Unsurprisingly, it has now been revealed that the issue was dealt with, behind the scenes, in advance of the peace talks. According to the Jerusalem Post,

Senior officials from the White House and State Department said that Palestinian action against Israel at the United Nations is highly unlikely so long as negotiations continue.

While not explicitly saying that the Palestinian Authority had agreed to cease its campaign at the UN, the officials suggested referral to the International Criminal Court was addressed before talks began Tuesday in Washington.

“It’s no secret that one of the motivating factors, I think for everybody, was to avoid that sort of train wreck that would have happened if we weren’t able to get negotiations started,” a senior White House official told reporters.

“No guarantees of anything,” he added, when asked about Palestinian threats to refer Israel to the ICC, but “so long as this process is moving forward, I think the risk of that sort of thing are reduced if not entirely eliminated.”

The parties have agreed to negotiate over a period of nine months with the goal of reaching a final status peace agreement between two independent states.

A senior State Department official added, “the parties have agreed to take affirmative steps to create a positive atmosphere for negotiations,” in responding to actions at the UN. “And both sides are going to take that very seriously.”

(Photo: PressTV)

(Photo: PressTV)

These comments are notable for a number of reasons. First and most obviously, they represent the extent to which the ICC matters in global politics. This is credit to the Court’s permanent role in international relations. The ICC matters and it matters a lot, even if it isn’t always in the way that the Court would like and even if it doesn’t always make the Court’s life easier (see below).

Second, the comments represent the clearest indication of how fiercely the US government feels about any potential ICC intervention into Palestine. We’ve known for sometime that many Western states and especially the US and Canada (yes, Canada) have threatened ‘consequences’ if Palestine moved forward. But the use of the phrase “train wreck” really brings home just how strongly the US feels about the ICC getting involved.

Third, the report indicates that the Palestinian Authority may have successfully leveraged the ICC to gain some advantages in the talks (although what those are isn’t entirely clear). The PA’s promise not to pursue an ICC referral has been described as a “gesture” of good-faith to the US and Israel. The White House official’s comments suggest that the US was convinced that Palestine would have proceeded with a referral if peace negotiations did not get underway. Of course, that won’t make ICC proponents happy. Many are allergic to the Court being used, manipulated and politicized. As a weak state with very few devices of leverage, the PA saw an opportunity to use its potential self-referral to ICC as a tool in peace talks.

Lastly, once again, there remains a widespread misunderstanding of how a self-referral would work. Palestine cannot “refer Israel” to the ICC. It can refer itself and thus alleged crimes that have been committed on its territory. This comes with significant risks. Yes, some acts by Israel would come under the ICC’s microscope. But as Kevin Jon Heller has astutely noted, this is a double-edged sword:

I would also caution the Palestinians to be careful what they wish for.  Joining the ICC would be a good idea, but referring the situation in Gaza might not be.  From a legal perspective, the OTP would have a much easier time prosecuting deliberate Palestinian rocket attacks on Israeli civilians than prosecuting disproportionate Israeli attacks on and Israeli collective punishment of Palestinian civilians.

In the end, putting the whole ICC issue aside suits the American, Israeli and even Palestinian governments. It probably also suits the ICC which, in general, has shown a reluctance to intervene in complex conflicts where there interests of major powers collide. Of course that leaves the ever-present question: does it serve the victims on either side of the war?

The cause of international criminal justice has been useful for the Palestinian Authority. Now that they’re back in peace talks with their Israeli counterparts, justice appears to be off the table. But achieving peace at the expense of justice is a bet the PA appears willing to make. Given the coercive diplomacy and threats from the US and others about what pursuing justice would mean, perhaps they have little choice. Or perhaps there is reason to believe that peace between Israel and Palestine now can avert future injustices on both sides. After all, the status quo has been unable to achieve either peace or justice.

Posted in Israel, Palestine, Palestine and the ICC | Tagged | 5 Comments

A Rebel’s Escape – An LRA Commander Tells His Story

Posted on July 31, 2013 by Mark Kersten

Scott Ross joins JiC to report and share his thoughts on the story of Caesar Acellam, the rebel commander who defected from the Lord’s Resistance Army last year. Scott is the author of the blog Backslash Scott and is a graduate student at Yale where his research focuses on the use of radio as a response to the LRA conflict in Uganda and the Democratic Republic of Congo. 

Caesar Acellam giving his first public address since his defection last year (Photo: Scott Ross)

Caesar Acellam giving his first public address since his defection last year (Photo: Scott Ross)

It has been over a year since former Lord’s Resistance Army (LRA) Major General Caesar Acellam was taken into custody by the Uganda People’s Defense Force (UPDF). Only now has he opened up and told his defection story.

On June 28, Acellam addressed civil society leaders and government officials from Uganda, the Democratic Republic of Congo (DRC), and Central African Republic (CAR) at a conference organized by the US-based NGO Invisible Children. In his first public address since his initial capture in May of 2012, the former rebel commander called for an end to the rebel group through both military and peaceful means.

Initially abducted in 1988 by the nascent Ugandan rebel group, Acellam has been the subject of some scrutiny among observers of the LRA and advocates of peace and justice in the conflict.  When the UPDF announced his capture last May, it came both in the aftermath of the viral Kony 2012 video and in the midst of the tumultuous suspension of Uganda’s Amnesty Act.

Invisible Children released Kony 2012 in March of that year with the intention of raising awareness in the international community about the LRA conflict. The video called for the United States to support the Ugandan military’s efforts to capture LRA rebel leader and ICC indictee Joseph Kony and his top commanders.

While many rallied behind the organization’s support for bringing the LRA to justice, the Ugandan government was working to dismantle a key effort to bring the war to an end. The Amnesty Act of 2000 was originally passed by the Ugandan Parliament with broad civil society support among those affected by the LRA. The goal was to bring back abducted conscripts without endangering them and, in doing so, sap strength from the LRA by peaceful means. When the government unilaterally allowed key provisions of the Act to expire in 2012, organizations both in Uganda and abroad called for its immediate reinstatement.

In this wider context, Acellam was taken into custody by the UPDF and it remains unclear what subsequently happened to him. When he was first captured, an adviser to the Amnesty Commission stated that “there’s absolutely nothing that prevents Achellam from being considered for amnesty.” However, less than a week later the Director of Public Prosecution declared that he would be ineligible for amnesty due to his seniority in the rebel group. The confusion continued as Acellam was whisked away by the UPDF. He has been seldom seen or heard from since.

Caesar Acellam speaking to media in South Sudan in 2006 (Photo: Reuters)

Caesar Acellam speaking to media during the Juba peace talks in South Sudan in 2006 (Photo: Reuters)

The question of whether Acellam defected or was captured is an important one.  According to the Amnesty Act, defecting escapees are allowed to apply for amnesty immediately, while captured rebels must first be approved by the Director of Public Prosecution, the party responsible for prosecuting them. This latter process has been marred by the illegal detention of former LRA commander Thomas Kwoyelo, who remains imprisoned despite multiple court orders for his release. When he spoke to the conference last month, Acellam tried to make it clear that he was a defector and not a prisoner.

The conference brought together religious, governmental, and civil society leaders from DRC and CAR to meet with each other and with leaders of the Acholi community who had suffered under the LRA for over twenty years. On the first day, Central African and Congolese leaders raised questions about Acellam. It was then decided that they would meet him the next day in a brief dialogue about the LRA and their activities in the DRC and CAR. It was to this audience that Acellam called for “cooperation between the locals and security personnel” in order to capture other LRA commanders. Continue reading →

Posted in Central African Republic (CAR), Democratic Republic of Congo, Justice, Kwoyelo Trial, Lord's Resistance Army (LRA), Uganda | Tagged , , | 5 Comments

The Justice in and of Death

Posted on July 24, 2013 by Mark Kersten
(Photo: filmjunk.com)

(Photo: filmjunk.com)

Somewhere in Sudan, Ali Kushayb is recovering from injuries that very nearly took his life. Kushayb, a Janjaweed leader wanted by the International Criminal Court (ICC) on allegations that he committed crimes against humanity in Darfur, was attacked in an apparent assassination attempt earlier this month. Had Kushayb been killed, would it have counted as justice? What is the role of death in the achievement of justice?

Death is central to the story and practice of international criminal justice. Too little death and there would be little-to-no need for institutions like the ICC or other tribunals examining conflict and post-conflict violence. Too much death, along with well-placed images of it, trigger interest in whether people should ‘get’ justice and who should deliver it.

Some argue that the role of international tribunals is to prevent death, to “stay the hand of vengeance”. It is argued that the existence and threat of retributive justice that international criminal courts pose, in and of themselves, can deter leaders from committing crimes in the future. Others argue that this is a groundless claim and wishful thinking. Death will march on, ICC or no ICC.

International criminal justice was created with the explicit intention of replacing the practice of killing adversaries with a judicial system that could bring them to account for their crimes. The Nuremberg Tribunals that prosecuted top-level Nazi perpetrators following WWII marked a dramatic shift in how perpetrators would be dealt with. Despite the desire on the part of many key figures (including senior American and British officials) to summarily execute the likes of Hermann Göring, Hans Frank and Rudolph Hess, the view that trials – and not immediate death – would best serve justice ultimately prevailed.

Yet the seductive appeal of crudely ridding the world of ‘evil’ remains: what if the ‘bad guys’, the really, really bad guys – like those indicted by the ICC – were just killed? No trial. No dragging on of costly courtroom drama. No negotiations. Just the elimination of perverse international criminals. Would that count as justice?

Surprisingly, many seem to believe the answer is yes. Take three examples.

(Cartoon: Mike Lukovich)

(Cartoon: Mike Lukovich)

The reaction to the death of Osama bin Laden clearly indicated that freedom and rights loving people were more than willing to conflate killing and justice. Thousands, if not millions, of people did not simply celebrate the fact that Osama bin Laden was ‘gone’. They celebrated bin Laden’s death as an act of justice. And if anyone was confused as to whether it really did count as justice, President Obama was clear:

“Justice was done and I think that anyone who would question that the perpetrator of mass murder on American soil didn’t deserve what he got, needs to get their head examined.”

In October 2011, when Muammar Gaddafi was killed by rebels, it was likewise seen, in and outside Libya, as a final and just act in Libya’s Revolution and Civil War. This perspective was somewhat complicated by the fact that Gaddafi’s grisly last moments were caught on video and raised suspicions that his death constituted a war crime. Still, after a brief salvo of concern, the matter was quickly dropped. After forty years of Gaddafi dictatorship, the over-arching sentiment seemed to be that he got what he deserved. As then Secretary of State Hilary Clinton stated upon learning of Gaddafi’s death: “We came, we saw, he died.” Continue reading →

Posted in Darfur, Justice, Nuremberg, Nuremberg Trials, Osama bin Laden, Osama bin Laden and international law | Tagged , , , | 2 Comments

In the ICC’s Interest: Between ‘Pragmatism’ and ‘Idealism’?

Posted on July 16, 2013 by Mark Kersten
(The International Criminal Court. Photo: Mark Kersten)

(The International Criminal Court. Photo: Mark Kersten)

It is a regular occurrence to hear how the International Criminal Court (ICC) serves the interests of of particular actors, be it warring governments, rebel groups, or members of the international community more broadly. Rarely, however, have scholars and observers considered how the ICC’s decision-making is shaped by the ICC’s own ‘institutional self-interest’.

At the heart of criticisms that the ICC is ‘political’ is the view that the Court is inherently and inevitably selective. This critique is deployed both within and between situations. In cases such as Uganda, Cote d’Ivoire and Libya, it is argued that the ICC has erred in targeting only one side of the conflict. Alternatively, it is argued that the Court focuses myopically on the weakest states in the international community (see the ICC-Africa debate), leaving situations where major power interests collide (e.g. Iraq, Syria and Afghanistan) beyond the reach of international justice.

At the same time, the ICC has a well-rehearsed and institutionalized answer to these critiques: the Court can only investigate where in those states where it has jurisdiction; it can only investigate the ‘gravest’ crimes; and it will only seek to bring to account those individuals ‘most responsible’ for war crimes, crimes against humanity and genocide.

These arguments are familiar to observers of international criminal justice. Each has merit and undoubtedly guides the decision-making and reasoning of the Office of the Prosecutor (OTP). But there is something else going on. It isn’t nefarious but it isn’t particularly transparent either.

At an event held by the Coalition for the International Criminal Court (CICC), newly appointed ICC Deputy Prosecutor James Stewart made the following observation:

“The Prosecutor, for example in the case of Cote D’Ivoire, has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.”

While it is important to note that Stewart’s comments pertain specifically to the case of Cote d’Ivoire, there are grounds to suggest that such an approach is applicable to the OTP’s approach to (at least some) other situations.

There are at least three important points to take away from Stewart’s comments:

1) In at least some of its cases, the OTP believes that the ‘ideal’ is to prosecute all sides of a conflict.

2) The OTP believes that actually targeting both sides at the same time would harm its interests and the interests of justice, resulting in paralysis.

3) When faced with the dilemma of targeting one side of a conflict and not others, the OTP views being selective as a ‘pragmatic’ choice.

Deputy Prosecution James Stewart. (Photo: ICC)

Deputy Prosecution James Stewart. (Photo: ICC)

This adds a new layer to our understanding of how OTP decisions are made. It suggests that the OTP’s political calculus takes into account not only what is good for international justice but also what is good for the Court. Ultimately, then, at least four groups of political actors and their positions will potentially influence ICC decisions:

1) The position of the referring actor, especially when it is a state (e.g. Government of Uganda) or the Security Council (e.g. in the case of Darfur and Libya). These actors will try to encourage or coerce the ICC into investigating individuals and groups they view as ‘enemies’ (e.g. the Lord’s Resistance Army in northern Uganda and the Gaddafi regime in Libya). Notably, in no case of a self-referral has any individual from the referring party been indicted by the Court.

2) The position of ‘global civil society’ and the international ‘human rights community’. These actors, by and large, advocate the normative and moral principles underpinning the ICC and the impartial investigation of all sides responsible for international crimes. Inevitably there will be some exceptions (e.g. Invisible Children in Uganda propelling cases against the LRA and not the Government of Uganda). Importantly, these actors have effects not only on the Court but on other members of the international community, although their ‘normative reach’ across cases is up for debate.

3) The position of interested states in the international community, especially major powers. The ICC is likely to be prodded or encouraged to focus its work in specific ways and to investigate or not investigate certain cases where the interests of powerful actors are at play (see US position on ICC investigations in Palestine and Iraq; China, Russia and US position on ICC investigations in Syria).

4) The position of the ICC itself. This has changed dramatically as the Court has progressed from a nascent institution that was once unsure how long it would survive to one with 120 member-states and eight situations in its docket. Numerous forces, including those above, affect the ICC’s position and conception of self-interest. Broadly, the Court is expected to pursue decisions that can foreseeably add to its legitimacy and political credibility.

So what does this ‘pragmatism’ look like in practice? Let’s briefly consider two examples: Uganda and Libya. Continue reading →

Posted in Deputy Prosecutor, ICC Prosecutor, International Criminal Court (ICC), Justice | Tagged | 6 Comments

Could the International Criminal Court be a Development Agency?

Posted on June 24, 2013 by Mark Kersten

Teddy Nicholson joins JiC with this unique and insightful guest-post on the relationship between development and international criminal justice. A version of this piece was originally posted on the new site, The Development Blog. Check it out!

(Photo: Think-UNAS.org)

(Photo: Think-UNAS.org)

When we talk about the growing field of international criminal law, and especially the International Criminal Court (ICC), our first image is generally of warlords and political leaders sitting in the dock. It’s not an image of a development agency. There are good reasons for this and to begin this post by answering the question ‘Is the ICC a development agency?’, the answer is no – the ICC is definitely not a development agency. However, that answer obscures an important and increasingly rich debate within international justice circles about how to pull the fields of international criminal law and development closer.

There is a tendency in international affairs to separate issues into defined silos. Security people deal with military issues,diplomats and ‘IR-types’ with foreign policy, international justice people with courts and tribunals, and development people with development. It is of real note and interest therefore, when these sectors begin to intersect, in particular when they do so in unexpected and unforeseen ways. We start to see the possibility for a more holistic view of international affairs through a degree of joined-up thinking.

Over the past few years, the discourse surrounding the International Criminal Court has slowly but steadily begun to incorporate issues not just of law, but also of development. This was neither intended nor desired by many of the architects of the ICC, and yet it has been a logical consequence of the way in which the Rome Statute has been drafted.

Some context is necessary. The purpose of the ICC is to investigate and prosecute individuals who are alleged to have committed war crimes, crimes against humanity, or genocide. This it has done with varying degrees of success in eight countries since its inception in 2002 – two trials have been completed and a number of others are ongoing. Throughout this time, the Court is frequently accused of having an anti-Africa bias given that all eight situations under investigation are relating to African states.

The criticism is somewhat legitimate, and there are plenty of reasons for this. One of them is to do with the way the ICC’s jurisdiction works.

The ICC’s doctrine of “complementarity” distinguishes the ICC from previous international courts (see Yugoslavia and Rwanda) which had primary jurisdiction – if they wanted to try a case they could do it, even against the objections of the state in question. The ICC by contrast is forced to defer to States and only proceed if the state cannot or will not do so itself.

This idea has been under discussion by the States that are parties to the Rome Statute for a number of years now, since it implies far more than the simple idea that the Court must back off if the State in question investigates and prosecute international crimes. It means that States Parties to the Rome Statute have something in between an incentive and an obligation to develop their justice systems to the point where they are capable of handling cases against the perpetrators of these crimes.

ICC Judges: Development Workers? (Photo: CICC)

ICC Judges: Development Workers? (Photo: CICC)

This suddenly places the ICC squarely in the field of development. We now have an image of what true “joined-up” thinking between international justice, the rule of law, and development might look like.

The idea, which remains poorly articulated and defined, is that the ICC is an institution that is to be seen as the tip of the iceberg of an enormous, global “Rome Statute system”. This means that when a State becomes a party to the Rome Statute, they have an international legal obligation to ensure that they do not allow a justice gap to emerge. They are obliged to prosecute alleged perpetrators of crimes domestically, but if they cannot or will not then the ICC can step in.

Politically speaking, it may be embarrassing for a state to allow the ICC to intervene. The image of the Court opening an investigation is a clear signal that that state’s judicial system is inadequate and that the state’s rule of law is not sufficiently developed. Therefore, in order to avoid this, states have a fairly clear incentive to develop their judicial systems to the point where they can do it themselves.

This is far from theoretical – the Office of the Prosecutor (OTP) opened a Preliminary Examination (the stage before a formal investigation) into the conflict in Colombia in June 2004, shortly after the ICC was established. Over the past decade, the OTP has repeatedly engaged with Colombia as a partner and used the possibility of opening an investigation as a way of spurring the government to improve their judicial record. This has been far from a smooth process, but progress has definitely been made with some improvements in the Colombian judicial system and an increasing focus by the government on ensuring that prosecutions do happen. Continue reading →

Posted in Development, International Criminal Court (ICC), International Law, Justice | 2 Comments

Backing the ICC: Why Botswana Stands Alone Amongst AU States

Posted on June 13, 2013 by Mark Kersten

In the midst of the recent rancour and controversy in the relationship between African Union (AU) member states and the International Criminal Court (ICC), it was all too easy to forget that one state decided to take a rather valiant stand. When the African Union recently passed a resolution calling into question the conduct of the ICC and claiming that it had unfairly targeted African leaders, the sub-Saharan nation of Botswana decided it wasn’t having any of it.

If you read the AU resolution, you’ll notice that it includes a single footnote which reads: “The Reservation of the Republic of Botswana on the entire decision was entered.” But for that small footnote marring the title of the Resolution, the AU’s anti-ICC pact is otherwise pristine. For those who follow baseball, the footnote is akin to the asterisk hanging over the names of players whose records are tainted by steroid use – except that, in this case, the asterisk denotes courage not cowardice.

Sadly, it was only Botswana that decided to take a stand against the AU Resolution. It came as a disappointment that other state which had previously engaged the ICC and supported its work, including Ivory Coast and South Africa, threw their weight behind the Resolution. Even The Gambia, which reportedly considered voting against the Resolution out of support for the ICC’s Gambian Chief Prosecutor Fatou Bensouda, sided with the AU.

So why did Botswana do it?

Seretse Khama Ian Khama of Botswana sitting with ICC President Judge Song and former President of the Assembly of States Parties, Christian Wenaweser. (Photo: CICC)

Seretse Khama Ian Khama of Botswana sitting with ICC President Judge Song and former President of the Assembly of States Parties, Christian Wenaweser. (Photo: CICC)

In the above video, Botswana’s ambassador to Kenya, John Moreti states clearly that his country’s decision had nothing to do with the Botswana’s position towards Kenyan President Uhuro Kenyatta or Vice President William Ruto, both of whom face charges at the ICC stemming from Kenya’s 2007/08 post-election violence. Instead, Moreti suggested that the AU’s Resolution was an unhelpful and deleterious political move that would only antagonize the Court and pull the African hinder improved relations with the international community. He added that he thought there was “no problem with the Court” and that any dislike of the Prosecutor did not amount to dislike for the Court itself. Continue reading →

Posted in African Union (AU), Botswana, International Criminal Court (ICC), Kenya, Kenya and the ICC | 12 Comments