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

A Big Day for the US and the ICC: Rewards for Justice Program Extended

Posted on January 8, 2013 by Mark Kersten
A portion of a poster (Photo: RNW)

A rewards poster seeking the arrest and detention of individual allegedly responsible for genocide and wanted by the International Criminal Tribunal for Rwanda. (Photo: RNW)

The new year has brought some big news for the relationship between the ICC and the United States. According to the great folks at the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), on January 3 Congress passed an expansion of the Rewards for Justice Program. The program will now cover individuals indicted by the International Criminal Court (ICC).

The enhancement of the rewards program will mean that financial rewards can be dolled out by the American government to anyone who helps in the achieving “the arrest or conviction in any country, or the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.’” According to the legislation (full text of original bill here), the expansion of the program was done in order to “target other individuals indicted by international, hybrid, or mixed tribunals for genocide, war crimes, or crimes against humanity.”

This amendment of the Rewards for Justice Program certainly marks an impressive victory for the Office of Global Criminal Justice in the U.S. Department of State, led by Ambassador Stephen Rapp. Rapp and his team were able to effectively use notorious international criminals, including Joseph Kony and Bosco Ntaganda, as ‘poster boys’ for the legislation. They also had the benefit of stick-handling through a political landscape where fervent anti-ICC sentiment has largely withered.

The extension of the Rewards for Justice Programme, of course, also marks an important new development in the dramatic relationship between the US and the ICC. I have argued previously that the enhancement of the program should be seen as a positive development. Still, it is worth noting that political limitations were placed on the new legislation. According to AMICC,

“Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.” Continue reading →

Posted in International Criminal Court (ICC), United States | Tagged , , | 13 Comments

2013: A Decisive Year for Kenya — and the ICC

Posted on January 3, 2013 by Mark Kersten

Andrea Russell joins JiC for this fascinating guest-post on the potential implications of the ICC’s intervention on Kenya’s upcoming Presidential elections. Andrea teaches International Criminal Law at the University of Toronto Faculty of Law, where she also serves as Executive Director of the Office of the Dean.

(Victims of the 2007 post-election violence. Photo: Jonas Bendiksen)

(Victims of the 2007 post-election violence. Photo: Jonas Bendiksen)

For many, Kenya’s reputation as one of sub-Saharan Africa’s more stable nations was shattered by the post-election violence of five years ago. However, the horrifying atrocities that followed the general election of 2007 did not shock many long-time observers of Kenya’s political system who knew that similar violence, albeit on a less dramatic scale, has followed or preceded every general election since Kenyan multi-party elections began.

The introduction of a new catalyst in Kenya’s current general election campaign—the International Criminal Court (ICC) — nonetheless presents the welcome possibility of a clean break in the cycles of election violence in that country.

Upon the ICC’s creation in 1998, one of the Court’s more controversial features was the Prosecutor’s proprio motu powers enabling him, with the approval of the ICC’s Pre-Trial Chamber, to launch investigations in any Rome Statute member state upon his own volition. Having examined evidence that indicated systematic organization of the violence that plagued the 2007 Kenyan elections, the Court’s Prosecutor launched just such an investigation. Luis Moreno-Ocampo ultimately charged six individuals (the “Ocampo Six”), claiming they were responsible for organizing the ferocious violence which killed over 1,100 and led to the displacement of over 660,000 Kenyans.  The charges against four of these individuals, confirmed by the Court early this year in two separate cases within the Kenya Situation, make for frightening reading.

In one of the two Kenya cases, Uhuru Kenyatta, son of the country’s first post-independence leader and current Deputy Prime Minister, together with then Head of the Public Service and Secretary to the Cabinet Francis Muthaura, are charged with using a Mafia and cult-like organization, the Mungiki, as well as the Kenyan police forces, to carry out murder, forced expulsion, and even forced circumcision of alleged supporters of their political rivals.

William Ruto during a press conference in December 2010 (Photo: Reuters)

William Ruto during a press conference in December 2010 (Photo: Reuters)

In the second case, Mr. Kenyatta’s former political rival, the former Minister of Higher Education of the country and current MP William Ruto is charged with similarly organizing a network of paid killers to murder and expel supporters of opposing parties, going so far as to recruit a well-known radio broadcaster, now his co-defendant, to fan the flames of violence on air.  Their alleged goal was to create a unified voting block that would support their Orange Democratic Movement party.

Shockingly, not only are both Kenyatta and Ruto running for re-election in 2013, but the two former sworn rivals declared on December 4th that they have formed a new political alliance, raising the possibility that both the Presidential candidate and his running mate from the newly-formed Jubilee Alliance may be indicted international criminals.  And in a rather astounding confluence of events, their respective trials are set to begin on April 10 and 11, 2013, mere weeks following the first election date in March, with April 11 being the very day scheduled for any required second round electoral run-off. Continue reading →

Posted in Elections, ICC Prosecutor, International Criminal Court (ICC), Kenya | Tagged , , , , | 3 Comments

Happy 2013 from JiC!

Posted on January 2, 2013 by Mark Kersten
hey-batman-what-are-u-thinking-about-i-dunno-justice-and-stuff-c4843_large

(Hat-tip to Rupert Brodersen for the image!)

Dear readers,

Happy 2013 from all of us at Justice in Conflict!

2012 was a wonderful whirlwind for the blog. Keeping with our goal to expand debates on ‘justice in conflict’, we featured dozens of guest-posters who shared their views on a wide diversity of timely subjects. Our subscription rose steadily over the last twelve months to well over 3,100 followers. The KONY2012 bonanza brought the blog unprecedented international attention and scrutiny with 400,000 hits in two days. 

None of this would have been possible without you.

JiC would not be around if it wasn’t for the generous support and kind interest from readers as well as fellow writers and blogs. Whether it was through a shout-out on a blog or website, a retweet, a share on Facebook, a guest-post or just a couple of minutes of your time, you made 2012 a tremendous successful year for JiC. We are eternally thankful to all of you, the readers who drop by to read a post or two. 

We are especially grateful to those who went out of their way to help establish JiC as a trusted source of news and analysis on matters of international justice, transitional justice and conflict resolution. There are too many to name, but let me express my deepest gratitude to Kevin Jon Heller and the whole team at Opinio Juris, the great folks at Wronging Rights, Marc Lynch, David Bosco, Fannie Lafontaine, Kirsten Fisher, Chris Tenove, Doug Saunders, Anna Holligan, Dov Jacobs, James P. Rudolph, Marian Rodriguez, Jens David Ohlin, Rhodri C. Williams and the teams at CICC, CIC, Radio Netherlands Worldwide – International Justice, IJCentral, IWPR, Think Africa Press and the Open Society Justice Initiative. 

Here’s to a wonderful 2013, one with a little more justice and a little less conflict. 

Happy New Year!

Posted in JiC News | 1 Comment

Lustration in Libya: Ruling Congress to Pass “Political Isolation Law”

Posted on December 28, 2012 by Mark Kersten
Members of Libya's General National Council (Photo: Ismail Zitouny/Reuters)

Members of Libya’s General National Council (Photo: Ismail Zitouny/Reuters)

Libya has made yet another significant and controversial decision as it continues down the bumpy path of its post-conflict and post-Gaddafi transition. According to the Libya Herald, the country’s General National Congress (GNC) is preparing to institute a “Political Isolation Law” which will prohibit politicians who were close to the Gaddafi regime from taking political office. The wisdom of such a policy is surely to be hotly contested.

Just days before the new law was announced, a group of GNC members issued a statement declaring that they would “work through the GNC to speed up the passing of a law to block the way for any leftovers from the former regime to infiltrate the organs of the state and its institutions.” They added that “anyone who participated in the destruction can not in any way be a tool for rebuild the state, and it is unimaginable that anyone who took part in the corruption of the social, political and economic life of Libya could ever be a cause for reform.”

The decision by the GNC to introduce the law appears to have come in response to widespread frustration amongst Libyans at the possibility of former Gaddafi officials re-branding themselves to remain in power.

At first glance, this demand would appear unproblematic. Proponents of lustration argue that it is a necessary measure for consolidating the trust of citizens in democratic reforms and institutions. Moreover, there is precedence for such a law. Similar legislation (with the same name) was passed in Egypt. In Iraq, former members of Sadaam Hussein’s Ba’ath Party were barred from office, albeit with disastrous consequences. The official practice of lustration, as a transitional justice mechanism, dates back to the experience of post-communist states in Eastern Europe. After finally escaping from the clutches of communist rule, states such as Poland and Czechoslovakia instituted lustration policies to exclude former communists from political office.

Still, lustration is inevitably a controversial mechanism for achieving post-conflict justice. It typically relies on the release of secret state documents which often cannot have their accuracy verified. It can ensnare innocent government officials who played minimal and often technocratic roles in a process that resembles more of a witch hunt than political vetting. Lustration can also inspire political backlashes as excluded officials with significant material and political resources reorganize to challenge or undermine their country’s political transition. Of course, such policies are also inevitably an action taken by ‘victors’ against their former ‘oppressors’ and can thus entrench social and political divisions and make reconciliation more difficult to achieve. In this context, some political figures may attempt to use lustration not as a means to achieve justice but to exclude competitors from favourable positions. Moreover, in states where virtually the entire political class was associated with a past regime, lustration may disqualify or irrevocably taint political actors whose skills could positively contribute to the country’s transition.

(Photo: Lorianne Updike Toler)

(Photo: Lorianne Updike Toler)

Given the above, it will be critically important that Libya – like any other state considering the use of lustration policies – be very careful in deciding precisely who is to be excluded and on what grounds. Many of the failures of past lustration policies have been the direct result of poor planning and confused policies. Continue reading →

Posted in Libya, Lustration, Transitional Justice | Tagged , | 8 Comments

International Crimes, Local Justice: National Systems to End Impunity

Posted on December 27, 2012 by Mark Kersten

Aminta Ossom joins JiC with this guest-post on the need for national accountability systems for international crimes in Sierra Leone and Ghana. Aminta is the 2012-2013 Crowley Fellow in International Human Rights at Fordham Law School’s Leitner Center for International Law and Justice. She has conducted research on behalf of Amnesty International’s Campaign for International Justice as a Harvard Satter Human Rights Fellow and American Society of International Law Arthur C. Helton Fellow in West Africa. 

Prisoners in Freetown, Sierra Leone (Photo: Fernando Moleres / Panos / laif)

Prisoners in Freetown, Sierra Leone (Photo: Fernando Moleres / Panos / laif)

This week Amnesty International releases Sierra Leone: End Impunity through Universal Jurisdiction, Ghana: End Impunity through Universal Jurisdiction, and Vanuatu: End Impunity through Universal Jurisdiction, the latest country papers in its No Safe Haven series. This blog post will focus on the Ghana and Sierra Leone reports, which outline the West African states’ ability to address crimes under international law through their national justice systems.

Currently, only a handful of African countries have a legal framework in place guaranteeing the arrest and prosecution or extradition of suspected perpetrators of crimes under international law who seek ‘safe haven’ within their territory. An infamous accountability gap persists where – despite some national prosecutions, two international criminal tribunals, and the work of the ICC – only a small fraction of perpetrators of crimes under international law have been brought to justice on the continent and worldwide. Others suspected of committing these crimes have traveled freely. To end this impunity and to advance complementarity, the No Safe Haven series outlines individual states’ relevant legal frameworks, obstacles to prosecution and the exercise of universal jurisdiction and procedures for extradition and mutual legal assistance. (Eight of these papers are available online, examining Germany, Spain, Sweden, Bulgaria, Venezuela, Solomon Islands, Burkina Faso and, also released this week, Vanuatu.) Designed to assist countries reforming their legislation in accordance with international law and victims and prosecutors seeking to initiate legal action, the series updates and expands Amnesty International’s 2001 Memorandum Universal Jurisdiction: The duty of states to enact and enforce legislation and its 2011 supplement, which survey the global landscape of universal jurisdiction legislation.

Supported by a fellowship through the Harvard Human Rights Program, I conducted research and drafted Sierra Leone and Ghana papers for the No Safe Haven series over the course of a year. A significant fieldwork component, including residence in each focus country, facilitated the process of identifying legislation, conducting consultations with local lawyers and civil society, and obtaining background materials often available in hard copy, which cumulatively served as the basis of the reports.

Sierra Leone: Lacking Legal Framework

A routine of interviewing legal experts and referencing in-country resources produced remarkable revelations: despite its transition out of a period of widespread human rights abuses, and despite its hosting an international criminal tribunal for nearly a decade, Sierra Leone is still a safe haven for perpetrators of crimes under international law. The country has enacted minimal legislation defining crimes under international law as crimes within Sierra Leonean law, which would allow for national prosecutions of suspected perpetrators. Sierra Leone does not legally guarantee reparation for victims of war crimes and crimes against humanity, and it does not have a significant legal framework in place to extradite fugitives to a country willing and able to prosecute them on behalf of the international community. Further, significant obstacles to prosecution – from recognition of amnesties to limited guarantees for victims’ rights – would likely hinder the realization of justice should its courts gain jurisdiction over these crimes in the future. Continue reading →

Posted in Ghana, Guest Posts, Justice, Sierra Leone, Special Court for SIerra Leone (SCSL) | Tagged , | 2 Comments