Egypt to Join the ICC but also Guarantee Bashir Immunity

Posted on February 20, 2013 by Mark Kersten
(Photo: Carsten Koall/Getty Images)

(Photo: Carsten Koall/Getty Images)

Many, many months ago, I wrote that Egypt had declared it was set to join the International Criminal Court (ICC). That was back in early April 2011, when the country was in the midst of the ‘Arab Spring’. Nearly two years later, Egypt’s Minister of Justice, Ahmed Mekki has announced that the the country will soon join the Court. But that wasn’t all. Mekki also announced that Egypt will sign an Article 98 Bilateral Immunity Agreement with Sudan in order to prevent Sudanese President Omar al-Bashir from being arrested and surrendered to the ICC. Bashir, as readers will know, has been charged by the ICC with crimes against humanity, war crimes and genocide for his role in the Darfur conflict.

Back in April 2011, Egypt’s Foreign Minister declared that the country was on the road to joining the ICC:

“Egypt is currently taking the required steps to join all United Nations agreements on human rights and to join the International Criminal Court…I think the events that have taken place in Egypt in recent days and the arrest of senior officials is evidence that the state wishes to follow the rule of law… domestically and internationally.”

Despite these comments, until today there has been virtual silence regarding Egypt’s plans to join the ICC. One of the reasons for this was likely the relationship between Egypt and neighbouring Sudan, particularly in regards to the fate and role of Bashir. Egypt has previously invited and hosted Bashir on its territory, drawing the ire of human rights groups. Still, nothing in the country’s behaviour has suggested that it planned to support the Sudanese leader’s surrender to the ICC. Before joining the Court, Egypt thus needed to square its relations with Bashir with its intention to signing up to the ICC. In my original post on the subject, I wrote that Egypt would have to clarify how it expected to have its cake and eat it too by both joining the Court and maintaining good relations with Sudan.Here is how Mekki has explained Egypt’s approach:

“We recognize the difficulty of ratification by Egypt of the Rome Statute and joining the International Criminal Court in the presence of relations of Egypt with Arab countries such as Sudan, which has its leader wanted by the ICC for crimes against his people, but we can avoid this embarrassment with Sudan by concluding bilateral agreements with some countries, including the Sudan, with Egypt being the state headquarters of the Arab League.” Continue reading →

Posted in Darfur, Egypt, International Criminal Court (ICC), Sudan | Tagged , , | 2 Comments

When Alleged Perpetrators of Crimes Against Humanity…Have a Presidential Debate

Posted on February 13, 2013 by Mark Kersten
Kenya ICC

Kenya ICC

Imagine candidates in a presidential debate arguing over who should end up at the International Criminal Court (ICC). Bizarre, right? Well, imagine no more; that is exactly what happened in Nairobi earlier this week when Kenya’s presidential candidates squared off in a debate that, in many respects, looked similar to when leadership hopefuls in the US square off.

But there was one striking difference: the conversation. Almost half an hour of the debate focused on the allegations against Uhuru Kenyatta who has been indicted by the International Criminal Court for his alleged role in the 2007-08 post-election violence that ravaged Kenya.

The key question in the debate – and on everyone’s mind leading up to the March election – was what would happen if Kenyatta, as an ICC indictee charged with crimes against humanity, were to be elected. Kenyatta is scheduled to stand trial in The Hague just days after the election takes place and he is, according to most sources, among the front runners to become President.

One of the candidates, Martha Karua, argued that Kenyatta should put aside his ambitions to become the next Kenyan President. Indeed, she claimed that Kenyan law obliged Kenyatta to step down.

While he appeared nervous and uncomfortable, Kenyatta remained unfazed and stuck to his script. He declared that his candidacy was a matter for the Kenyan people to decide and that voting for him was a vote of confidence in his ability to both run the country and clear his name.

To this, Raila Odinga, another front runner, provided the best quip of the evening when he responded: “I know that it will pose serious challenges to run a government by Skype from The Hague.”

The debate then shifted away from the issues pertaining directly to the ICC to questions of whether Kenya was able to prosecute perpetrators of atrocities itself (see video below).

Andrea Russell recently wrote that 2013 will be a decisive year for Kenya and the ICC. Following the unsavoury footsteps of Sudan, there is a good chance that the country could become only the second country with a sitting head of state indicted by the ICC.

Of course, how the Kenyan election and ICC trials shake out is anyone’s guess. But one thing is for sure: the ICC has never had a situation like this, with an indictee standing at a lectern during a Presidential debate declaring that he is able and willing to face his charges and to run his country simultaneously.

Here’s the relevant debate footage pertaining to the ICC (via Reporting Kenya):

Posted in International Criminal Court (ICC), Justice, Kenya, Ocampo Six | Tagged , , | 12 Comments

Responding to Allegations of Human Rights Abuses – A Lesson from Libya’s Justice Minister

Posted on February 11, 2013 by Mark Kersten
(Photo: AFP / Charles Onians)

(Photo: AFP / Charles Onians)

Human Rights Watch (HRW) recently published its annual World Report. In the report, the human rights organization examined the records of 90 states, including those emerging from the “Arab Spring”. Suffice to say, they didn’t hold back when it came to Libya.

While acknowledging some positive developments, including Libya’s first democratic elections in over forty years, HRW ripped into the current human rights situation in the country. It decried the country’s inability to disarm and demobilize militias, the significant number of individuals who remain in detention, allegations of torture, the lack of justice and accountability for rebel and militia crimes, and the forced displacement of 35,000 Tawerghans. Here’s a snippet from HRW’s press release:

“Libya is still plagued by serious rights abuses, including arbitrary arrests, torture, and deaths in detention nearly a year-and-a-half after the overthrow of Muammar Gaddafi…Reining in the myriad armed groups that formed in 2011 to fight Gaddafi’s forces remains a pressing and essential task, Human Rights Watch said. These groups have refused to give up their weapons and act as a law unto themselves, and some are committing serious crimes, such as unlawful detentions and torture.”

In short, it is a pretty harsh report. Many states would respond to such criticism by throwing their hands up in disgust, by vehemently denying such allegations or attacking the integrity of HRW. Take Rwanda as an example. Despite a mountain of evidence, the country refuses to acknowledge that it has funded and supported rebellion in neighbouring Democratic Republic of Congo. The government of Paul Kagame reacts with fury when states or NGOs make claims (based on evidence!) that Rwanda is complicit in the ongoing violence in the DRC. This comes as little surprise. After all, governments generally despise having light shed on their darker practices or having their internal affairs criticized. They typically become defensive when NGOs or international organizations put their human rights records under the microscope. So how  might we expect Libya to respond? By kicking HRW out of the country? By ignoring it altogether? With anger? Obstinacy? Incredulity?

The answer is none of the above. Libya’s Justice Minister Salah Marghani responded to the report honestly and with integrity:

The Ministry of Justice acknowledges receipt of the HRW 2013 World Report and specifically the Libya chapter thereof. The Ministry is very grateful for HRW’s observations.

The Ministry expresses grave concern about the recorded human rights abuses in 2012 and unequivocally condemns such evil practices. The Ministry feels very saddened that the new Libya has so far failed expectations of the Libyan people who revolted against the tyranny of the Gaddafi regime in the hope that the new Libya would never allow Human rights abuses unchecked. The Ministry still hopes that this will change and change soon.

Salah Marghani

Salah Marghani

Minister Marghani, who has been celebrated for his commitment to human rights (which included working with HRW), continued by stating that while he “does not contest the report’s findings”, his Ministry has instituted a number of measures which are aimed at “ending or drastically reducing such unacceptable practices”. He outlined five, including one on justice and accountability:

Issuing laws on transitional justice, prohibiting trails of civilians in front of military courts and preventing torture, which would promote reconciliation. This would allow fact-finding reparations and trials in relation to the grievances suffered by the Libyan people during the tyranny of Gaddafi and other sufferings and injustices during the transitional period, as well as trials without compromising international standards. Continue reading →

Posted in Activism, Human Rights, Libya | Tagged , | 2 Comments

The UN says Nuh-Uh to Mediators Talking with ICC Indictees?

Posted on February 7, 2013 by Mark Kersten
(Photo: dudelol.com)

(Photo: dudelol.com)

Should we negotiate with individuals suspected of having committed the most egregious international crimes? This question goes to the very heart of the “peace versus justice” debate and has long been hotly contested. On the one hand, most in the international justice community fervently believe that individuals indicted for war crimes, crimes against humanity and genocide can never be legitimate negotiation partners. Negotiating with ‘evil’ can never be justified and risks legitimizing perpetrators of atrocities. On the other hand, diplomats, mediators and negotiators often argue for a more “pragmatic” approach to negotiations and that the inclusion of all key parties to a conflict is a necessary condition for successful peace negotiations. Leaving powerful spoilers out of a peace process, it is argued, could spell its demise.

Of course, this a messy and complex debate. Making matters worse, the key organizations, states and agencies which offer mediation to warring parties are often unclear where they stand. Enter the United Nations. A few weeks ago, I was sent a fascinating report from June 2012, entitled: United Nations Guidance for Effective Mediation. As far as I can tell, it marks the first time the UN has issued specific guidelines for mediators.

The UN report covers the International Criminal Court (ICC) in a handful of areas. First, it outlines the shifting normative and legal expectations being placed on mediators:

“Mediators also conduct their work within the framework constituted by the rules of international law that govern the given situation, most prominently global and regional conventions, international humanitarian law, human rights and refugee laws and international criminallaw, including, where applicable, the Rome Statute of the International Criminal Court. In addition to binding legal obligations, normative expectations impact on the mediation process, for example regarding justice, truth and reconciliation, the inclusion of civil society,and the empowerment and participation of women in the process.”

There’s nothing controversial here. The post-Cold War landscape has changed dramatically, in large part because of an explosion in conventions, institutions and practices covering, broadly, the fields of international law and human rights. This is a reality that mediators and negotiators simply have to acknowledge in order to be effective.

The Guidelines subsequently touch on the dilemma having ICC indictees participate in a peace process:

In designing an inclusive process, mediators face a number of challenges…Arrest warrants issued by the International Criminal Court, sanctions regimes, and national and international counter-terrorism policies also affect the manner in which some conflict parties may be engaged in a mediation process. Mediators need to protect the space for mediation and their ability to engage with all actors while making sure that the process respects therelevant legal limitations.

This passage is undoubtedly, and perhaps purposefully, vague. It doesn’t suggest whether or not mediators should engage with ICC indictees or not. In fact, it doesn’t suggest anything about how mediators should approach the question of including ICC indictees in peace processes. Instead, the statement seems to simply note the rather obvious fact that ICC arrest warrants will affect whether and how indictees themselves will be willing to participate in a peace process.

Screen Shot 2013-02-07 at 4.51.02 PMFinally, the report issues some recommendations to potential mediators. With regards to the ICC, five are pertinent:

Building on a comprehensive mapping of all conflict parties and stakeholders, mediators should:

  • Limit contacts with actors that have been indicted by the International Criminal Court to what is necessary for the mediation process. Continue reading →
Posted in International Criminal Court (ICC), International Law, Peace Negotiations, Peace Processes, Peacebuilding, Uncategorized, United Nations | Tagged | Leave a comment

The ICC might not deter Mali’s Rebels – but it might deter the Government

Posted on February 4, 2013 by Mark Kersten
(Photo: BBC)

(Photo: BBC)

Last week, Fatou Bensouda, the chief Prosecutor of the International Criminal Court warned Mali’s government that she could investigate alleged atrocities committed by the government’s military forces. And it’s a good thing she did. While the ICC may have little-to-no deterrent effect on the Malian rebels, it might just be able to shape the behaviour of the Malian government.

Amidst rumours that Mali government forces have perpetrated atrocities in central Mali, Bensouda released a curt but strong statement which declared:

My Office is aware of reports that Malian forces may have committed abuses in recent days, in central Mali. I urge the Malian authorities to put an immediate stop to the alleged abuses and on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.

Bensouda’s statement was a stern reminder to the Mali government: just because Mali referred the situation to the Court does not mean that its forces will escape investigation (and possibly prosecution). A war crime is a war crime is a war crime, irrespective of who perpetrates it. The question is: will Mali take heed of the Prosecutor’s warning?

The notion that the ICC can deter crimes is simple enough. The international justice and human rights community argue that international criminal tribunals have the power to change the behaviour of both current perpetrators of atrocities and would-be perpetrators. The fear of being indicted, it is argued, prevents individuals from continuing – or beginning – to commit international crimes.

The problem with deterrence is just as simple: there is very little evidence for it. This isn’t merely an empirical question. After all, the decision not to do something is difficult, if not impossible, to measure. In general, there is good reason to be skeptical of the claims that the ICC can deter the commission of atrocities. The results are mixed at best (see, for example, here and here).

Still, the landscape of deterrence is perhaps less bleak than the most fervent of critics would suggest. This is particularly true if we look in the direction of actors who aren’t targeted by the ICC rather than those who are.  Continue reading →

Posted in Deterrence, International Criminal Court (ICC), Mali, Uganda | 4 Comments

The ICC and Regime Change: Some Thoughts but Mostly Questions

Posted on January 31, 2013 by Mark Kersten
(Cartoon: Sherif Arafa)

(Cartoon: Sherif Arafa, Cartoon Movement)

Few issues in international criminal justice are as contentious as the relationship between the International Criminal Court (ICC) and regime change. After all, it goes right to the heart of the tensions between humanitarianism and the messy realities of conflict resolution as well as the contradictions between intervening in the internal politics of states in the name of human rights.

But there is a case to be made that ICC’s interventions have directly or indirectly contributed to the goal of regime change. This is particularly so where a regime can be equated with the autocratic rule of an individual leader. Consider some examples.

The explicit message of indicting Muammar Gaddafi was that he was no longer fit to be head of state. The regime change equation was pretty clear: the indictment signalled that Gaddafi should be arrested and brought to justice in The Hague. That meant removing him from power. Ipso facto, the ICC was seeking regime change.

The same goes for the ICC’s indictment of Sudanese President Omar al-Bashir for his alleged responsibility in perpetrating genocide, crimes against humanity and war crimes in Darfur. The arrest warrants signalled that the ICC – if not the international community – viewed Bashir as an illegitimate head of state who ought to be removed from power.

Today, as we debate whether or not the United Nations Security Council should refer the situation in Syria to the ICC, a central – if not the central – question is whether the Security Council is prepared to support the ouster of President Bashar al-Assad.

The ICC is not unique in this case. When the International Criminal Tribunal for Yugoslavia (ICTY) indicted Serbian President Slobodan Milosevic, it did so in the hope that he would be forced out of power. Unlike in the case of Sudan, it worked and Milosevic was sent to the ICTY.

It may be that the goal of regime change is inevitably linked to international criminal justice. The belief that tribunals can marginalize and isolate indicted leaders rests on the conviction that it is desirable to reduce the power of indictees to the point where they can no longer rule. Again, where the target is a head of state, this suggests one thing: regime change.

In short, where international criminal tribunals aim – or are aimed – at sitting heads of state, their implicit aim is to knock their target from power. Whether or not that happens, of course, depends on other factors, particularly whether there is sufficient will within the international community to enforce arrests warrants and/or seek regime change via military intervention. Sometimes it happens (see Gaddafi and Milosevic) and sometimes it doesn’t (see Bashir and Assad, so far). But regime change appears to be a pre-condition for the ICC to achieve its goal of ever seeing leaders like Gaddafi and Bashir in the dock.

(Cartoon: CRO)

(Cartoon: CRO)

The words “regime change”, however, remain taboo in some international justice circles. A common refrain is that the ICC does “justice, not politics”. And regime change, after all, is fundamentally political.

Louise Arbour, the former ICTY Prosecutor who is now President of the International Crisis Group, and who also happened to have issued that arrest against Milosevic, tackled this subject in a brief article last year, entitled ‘For justice and civilians, don’t rule out regime change‘. Arbour bravely and eloquently put forth the argument that we shouldn’t shun the goal of ousting regimes because “regime change” is a dirty phrase in the world of justice and international relations. It might be the difference between being able to protect civilians from atrocities and dithering in the face of mass human rights violations. Arbour asks a very poignant question: Continue reading →

Posted in Conflict Resolution, Darfur, Humanitarian Intervention, International Criminal Court (ICC), Libya, Libya and the ICC, Syria | 8 Comments

Intervention in Mali: Human Rights First?

Posted on January 23, 2013 by Mark Kersten

A familiar face returns to JiC, as Andrew Jillions joins us for this timely post the need for a human-rights focused approach to France’s intervention in Mali. For more of Andrew’s post, see here. Enjoy!

France's intervention will amount to much more than wine and baguettes.

France’s intervention will amount to much more than wine and baguettes.

Where have all the humanitarians gone? It is security, security, security that has dictated the agenda in the week since France’s overnight decision to intervene in Mali. Nary a mention of human rights or humanitarian intervention. This is a big mistake with the potential to undermine longer term attempts to rebuild peace and security in the country.

Mali has for some time now been suffering from a ‘perfect storm’ of high food insecurity, desertification linked to climate change, high youth unemployment, and deep political and ethnic tensions, especially with the Tuareg minority. None of this was helped by the military takeover last March, which triggered the Tuareg rebels’ claim to independence for the Azawad states in the north of the country – a movement which the better organised Islamist forces quickly co-opted.

This is part of the reason that Ban Ki-Moon backed off from supporting the idea of an international intervention back in November. Despite admitting the urgency of the situation facing those living in the areas under the control of the various Islamist forces and the potential good that could be done with a limited intervention, he concluded that the focus needed to be on “initiating a broad-based and inclusive political dialogue aimed at forging national consensus . . . and addressing the long-standing grievances” of the communities in the north.

I didn’t agree with Ban’s reasoning then, and I think there’s every reason to support the French-led mission now. For one, the Islamists seem to have co-opted the legitimate and longstanding grievances of the Tuaregs for their own purposes. The Islamists are in effect an invading force – largely made up of foreigner fighters. More than that, there is very little evidence that ordinary Malians have any cultural affinity for the brutal form of Sharia law the Islamists have implemented in the regions under their control. Peacebuilding will eventually be crucial to resolving the underlying tensions, and the ICC’s timely decision to examine the crimes committed by all parties to the conflict is part of that.

More relevant is that none of this will happen until some attempt is made to stop the systematic abuses committed by the Islamists. And make no mistake, this is despicable stuff. This chilling story from one of the reputed 400,000 refugees and internally displaced peoples (with the UN expecting an additional 700,000+) fleeing the violence tells how a man accused of using tobacco had his hand chopped off. As if that was not enough, “the severed hand was tossed into a vat of boiling water, the man was pinned down and the bent misshapen hand was sewn crudely back onto his stump”.

(Photo: Eric Gaillard / Reuters)

(Photo: Eric Gaillard / Reuters)

But this story – and the many others like it – are pushed to the background amid claims that this is an intervention centred on countering the security threat from Islamism. Glenn Greenwald and Stephen Walt both suggest that the Libyan adventure pushed battle hardened Islamists into Mali; that the military coup which destabilized the North was born out of US training, funding and equipment; and that the strategic effects of this intervention will only feed the perception that the West is waging a war on Islam. Which, of course, will only make it ‘necessary’ to intervene in further hot-spots in future. Continue reading →

Posted in Human Rights, Humanitarian Intervention, International Law, Mali | 7 Comments

Trading Justice for Temporary Peace: Not Just a Bad Idea?

Posted on January 21, 2013 by Mark Kersten
(Photo: Oli Scarff/Getty Images)

(Photo: Oli Scarff/Getty Images)

If the United Nations Security Council ever refers the situation in Syria to the International Criminal Court, you can be certain that the referral will include a reference to the Security Council’s ability, under Article 16 of the Rome Statute, to halt any ICC investigation or prosecution for up to 12 months. This will undoubtedly be met by incredulity and protests from the human rights community. The most strident of advocates will declare that “trading peace for justice” is blasphemous to the dignity and impartiality of international justice.

The volume and validity of such an outcry will do little to deter the Security Council from including references to Article 16. The reason is simple: for those states concerned that judicial interventions by the ICC complicate efforts at conflict resolution (and there’s a lot of them), Article 16 deferrals represents a possible ‘carrot’, an offer to freeze the ICC’s investigations or prosecutions in exchange for good behaviour (ie. an end to bloodshed).

But the human rights and international justice industry may have less to worry about than they think. While Article 16 could theoretically be invoked by the Security Council (it is, after all, part of the Rome Statute), it is unlikely that it ever will be.

Article 16 – Trading Peace for Justice?

The possibility of invoking Article 16 in order to defer an ICC investigation or prosecution has been raised on a number occasions. Numerous individuals, organizations and states, including the African Union, the Arab League, China have periodically requested that any prosecution of Sudanese President Omar al-Bashir be deferred. It was even rumoured that the US and other Western states were willing to defer the arrest warrant of Bashir in exchange for allowing the peaceful separation of Southern Sudan. Kenya has unsuccessfully sought a deferral of prosecutions against key government officials suspected of being responsible for post-election violence in 2007-2008; it would not be surprising if it did so again. In Uganda, the Museveni government toyed with the idea of requesting that the Security Council defer the prosecution of Joseph Kony and other indicted LRA officials in exchange for Kony’s endorsement of a negotiated settlement.

Most recently, a reference to Article 16 was included in the Security Council’s referral of Libya to the ICC:

“recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect”

The reference to Article 16 in Resolution 1970 was evidently included in order to assuage the concerns of states that the ICC could complicate attempts to negotiate a political settlement to the conflict in Libya. In other words, the prospect of an Article 16 deferral of an investigation or prosecution was seen as a potential carrot in efforts to negotiate peace.

In July 2011, the African Union, which had taken a leading mediation role in Libya, explicitly requested the “Security Council to activate the provisions of Article 16 of the Rome Statute with a view to deferring the ICC process on Libya, in the interest of Justice as well as peace in the country”. Their request fell on deaf ears. 

un-security-councilSo will it happen?

In the Libya case, as with the others, there is no evidence that the Security Council considered invoking Article 16. It isn’t hard to imagine why. Take the Libyan conflict as an example.

Even if the Security Council had offered a deferral to Gaddafi, it seems unlikely that it would have had any significant impact on the Libyan leader’s decision-making. An Article 16 guarantee requires that the Security Council renew its pledge to defer an investigation or prosecution every twelve months. As a result, it is an inherently temporary and unstable solution and is unlikely to persuade leaders such as Gaddafi that it will be renewed years down the line. Continue reading →

Posted in Article 16, Conflict Resolution, International Criminal Court (ICC), Justice, Kenya, Peace Negotiations, Peace Processes, Uganda | Tagged | Leave a comment

My Wife and Kids…and my Drone

Posted on January 16, 2013 by Mark Kersten

Richard Slade joins JiC for this post on the precarious logic behind the use of drone strikes. Richard is an International Criminal law and Human Rights Writer and Researcher from New Zealand living in Melbourne, Australia. Richard, who blogs at Flightless Justice, previously worked in the New Zealand Parliament and hopes to begin work on how and when different Nations will implement The Kampala Aggression Amendments into domestic law.

(Photo: MSGT Scott Reed)

(Photo: MSGT Scott Reed)

It’s hard for a writer to know when to weigh-in on a topic. I have followed the debate about the US drone signature strike programme on international law blogs and in the media. Not until this week did I feel like contributing. I happened to catch a feature about drones called Rise of the Machines. During the show a drone operator said something like this:

It’s so much better this way. I can go to work and do my Job with the drones, and then I can go home to my wife and kids and have dinner.

I was suddenly thrust back to University. It was eerily reminiscent of my study of Stanley Milgram and his world famous electric shock generator experiment. As we know, Milgram discovered that the majority of people were willing to administer shocks at levels beyond what he ever imagined. My class was comparing the characteristics of his experiment and the characteristics of modern bureaucracy: sanitized language, complex technology, situational authority, hierarchy, false reality, separation from the consequences of the action. We asked if the experiment gave us an insight into the some of the apparently dehumanised decisions made within modern bureaucracies.

The more interesting question was if Milgram’s results demonstrated that bureaucracy enhances the ability of individuals to commit heinous acts. We applied this to the ordinary individuals who contributed to mass crimes during World War II. We questioned the culpability of those who considered themselves simply cogs in the wheel. The classic defence argument of ‘I was just doing my job.’

It is this aspect of the drone debate that grabs me right now. The characteristics of the way military drones are operated seems perfectly dehumanised in the manner of Milgram’s experiment. I believe the incredibly detached attitude of the soldier also highly revealing. He is ready to unleash death from above but also wondering if he was having meatballs for dinner. I was certain Milgram was back from the dead, on the other side of a two-way mirror with that soldier; ticking boxes and wondering if this version was even better than the original experiment.

(Photo: Master Sgt. Stanley Thompson)

(Photo: Master Sgt. Stanley Thompson)

At the same time, the international law community is looking at the legal side of the drone attacks. (see Kevin Heller’s recent article). This is a hot topic in part because the rug the US was sweeping these attacks under is no longer big enough to hide them but also because innocent civilians are dying and the average citizen is again wondering what is being done secretly in their name. As Heller says “Because the U.S. refuses to publicly identify the signatures on which drone attacks rely, it is extremely difficult to assess the legality of its signature-strike program. What we do know, however, creates significant cause for concern”.

Heller’s article delves deeply into the arguments about the legality of military drones. The attention to detail in his paper leads me to repeat the questions constantly posed by the human rights movement: When did this start happening? Where is the precautionary principle? Who decided governments’ are allowed to simply begin using these weapons? Continue reading →

Posted in Drones, International Law | Tagged , | 3 Comments

Where it all Began – Tracing the Birth of the ICC

Posted on January 10, 2013 by Mark Kersten

Katharina Neureiter joins JiC for this fascinating glimpse into the historical roots of the ICC. Katharina based on her Dissertation on Gustave Moynier’s proposal for an international criminal court. Katharina works as a journalist and consultant and blogs at www.hearabout.wordpress.com.

Stamp from Monaco depicting Gustave Moynier (l), Henri Dunant, and General Henri Dufour.

Stamp from Monaco depicting Gustave Moynier (l), Henri Dunant, and General Henri Dufour.

The historian Mark Mazower concluded in his recent book that “we have moved from an era that had faith in the idea of international institutions to one that has lost it.” He examines the nineteenth century as a starting point to the evolution of our present day international institutions, but largely omits the International Criminal Court (ICC). However, it is the successfully operating institution of the ICC that could turn his conclusion on its head. But where did this all start and how did this nineteenth century ‘era of faith’, figure in the history of the ICC?

In writing the history of the ICC one has to carefully distinguish between its operations and ideas. The legal bedrock of the court is its concept of individual responsibility for war crimes. This was first pioneered in the Nuremberg Trials 1945 and thus makes the court itself a distinctly modern and post-WWII phenomena. The idea of an international criminal law regime, however, goes back centuries. In this regard the Coalition for the International Criminal Court writes:

“The ‘road to Rome’ was a long and often contentious one. While efforts to create a global criminal court can be traced back to the early 19th century the story began in earnest in 1872 with Gustave Moynier – one of the founders of the International Committee of the Red Cross – who proposed a permanent court in response to the crimes of the Franco-Prussian War.”

Gustave Moynier was a distinguished lawyer from Geneva and founding member of the Institut de droit international, an independent forum of the most famous legal practitioners from around the world. Portraying Moynier as the ‘mastermind’ of the ICC stretches the historical record slightly as his proposed tribunal was rather limited in scope. Nevertheless, Monyier’s zeal for creating a just world guided by the rule of law certainly deserves its place in the history of international tribunals. Let me briefly carry you off into Moynier’s world: the Geneva of the mid-nineteenth century, where belief had it that enthusiasm, optimism and humanitarian ideas could change the world.

Moynier and the Geneva Convention 1864

Moynier belonged to a class of fortunate individuals who could live their lives far from monetary constraints. Living from his father’s fortune as a clockmaker, Moynier spent his days pursuing his passion for the law and philanthropy. He was an energetic activist producing numerous books, pamphlets and folders of correspondence on various topics ranging from the laws of war to geography in the Congo Basin. The direction of his work changed when he encountered Henry Dunant and his manifest: ‘A memory of Solferino’ in 1859. The small booklet details Dunant’s feelings towards the dying soldiers on the French battlefields and enshrines his vision for an international organisation dedicated to the alleviation of suffering for wounded combatants in the spirit of universal brotherhood. Moynier was hooked and organised, with Dunant and other influential benefactors, a conference which ultimately lead to the first Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed in 1864 by twelve European states. The conference also secured support for the establishment of what eventually became known as the International Committee of the Red Cross.

“Law and truth have no bounds” – The origins of international law and tribunals

The mid-nineteenth century witnessed a radical breach with legal traditions. The law of nations started to shift gradually from a Eurocentric to an international focus – although the overwhelming majority of publications were nevertheless produced by Europeans or men from European decent. The French Lawyer Edouard Laboulaye, for example, wrote in 1875: “Law and truth have no bounds, we never think to ask one another if we speak the same language of if we belong to the same country.”This was facilitated by an intensified exchange of liberal ideas and social concepts through the inventions of the telegraph, railway and extended postal connections. Moynier, for instance, frequently conversed with learned men from all over Europe, Argentina, Japan, China and America. Continue reading →

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