Outsourcing Justice to the ICC – What Should Be Done?

Posted on October 31, 2012 by Mark Kersten

Laurent Gbagbo at the ICC (Photo: RNW)

Few issues have instigated as much controversy in the field of international criminal justice as the question of where International Criminal Court (ICC) indictees should be brought to justice. The majority of attention has been focused on instances when states seek to prosecute ICC indictees domestically and challenge the Court’s jurisdiction. Much less attention has been paid to cases when states choose to ‘outsource’ the trial and prosecution of some individuals to the ICC.

In some cases, where to try ICC indictees seems generally unproblematic. For example, in the Democratic Republic of Congo or the Central African Republic, the virtual lack of anything approximating a functioning and impartial judicial system makes the necessity of trying and prosecuting ICC indictees in The Hague uncontroversial. But other cases, especially states emerging from periods of conflict and which have begun to consolidate democratic and judicial institutions, are another – and much less clear – story altogether. To varying degrees, states like Uganda, Libya and Ivory Coast have emerged from the periods of violence and mass atrocity that instigated ICC intervention. Again, to very varying degrees, they have institutions which may be capable of investigating and prosecuting international crimes. Still, for some individual perpetrators, some states seem to believe that the ICC remains a better option. An important yet seldom asked question thus arises: if a state is able to investigate and prosecute but, for whatever reason, doesn’t want to prosecute particular individuals, should it be able to outsource justice to the ICC?

Complementarity Confusion

The answer to this question rests on the issue of complementarity which, as a principle and practice, is understood as granting the ICC the ability to investigate and prosecute individuals only in those states which are unable and unwilling to do so themselves. Put another way, it is, first and foremost, the responsibility of states to investigate and prosecute individuals allegedly responsible for atrocity crimes. When the state in question fails to do so, then the ICC may be granted or assert its jurisdiction. The brevity of the principle of complementarity, however, betrays its complexity in practice.

It isn’t particularly easy to follow which conception of ‘complementarity’ is being followed at the ICC these days. Take a look across its cases and it is difficult to see a cohesive and consistent application of what “ability” and “willingness” amount to. In some cases, such as Kenya, only the most rigid standard applies, whereby the state must show that it is able and willing to investigate and prosecute the same individuals for the same crimes as those by the ICC. In the Ugandan case, it isn’t clear that the Museveni government was ever unable or unwilling to try LRA commanders. Rather, the government’s problem was that the LRA’s senior command was no longer in Uganda itself and thus couldn’t be arrested. In Libya, the ICC’s Office of the Prosecutor (OTP) has appeared remarkably lenient towards Libya’s demands to try Saif al-Islam Gaddafi and Abdullah al-Senussi, siding with the government’s claim that it is able to investigate and prosecute ICC indictees domestically. It was telling that in the Libyan case, the Court’s defense counsel claimed that the Office of the Prosecutor (OTP) was applying double standards in its use of complementarity. It would come as no surprise if similar arguments are brought up by defense counsel other cases in the future.

But what of this issue of ‘outsourcing’ justice? Let us consider two cases where this seems to be occurring. Continue reading →

Posted in Complementarity, ICC Prosecutor, International Criminal Court (ICC), International Law, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Lord's Resistance Army (LRA), Uganda | 6 Comments

Missing the Mark: The ICC on its Relationship with the UN Security Council

Posted on October 24, 2012 by Mark Kersten

(Photo: Spencer Platt/Getty Images North America)

Last week, for the first time since the International Criminal Court (ICC) was established, the United Nations Security Council debated its relationship with the Court. After two Security Council referrals (Darfur 2005 and Libya 2011), it was high time that the relationship was critically analyzed. Unfortunately, key issues which have undermined the independence and legitimacy of the ICC were left largely unaddressed.

There are many problematic issues with regards to the relationship between the ICC and the UN Security Council. Broadly, most fall under three categories: the potential tensions and dilemmas between peace-making/conflict resolution and international criminal justice; the inevitable selectivity that only some situations of mass atrocity will be referred by the Council to the ICC while other cases, which are just as deserving, will not; and the political constraints imposed by the Security Council on the ICC when it decides to refer a case to the Court.

The first problem is considered in the so-called “peace versus justice” debate. Included  is the issue of political will amongst Security Council states to back-up referrals with effective support. As readers will know, this blog is, to a large extent, dedicated to the relationship between international criminal justice on conflict resolution. With regards to selectivity of cases, it is my view that it is largely out of the control of the ICC but it is also compounded by the selectivity entrenched within the political constraints imposed on the ICC within Security Council referrals. As a result, this post focuses on the ICC’s seeming unwillingness to confront the Council’s political tailoring of referrals.

In a draft academic article on this subject, I argue that the language of the Security Council’s referral of Libya to the ICC is likely to undermine the Court’s independence, impartiality and, thus, its legitimacy. I focus in particular on three issues. First, Resolution 1970 includes a reference to Article 16 which allows the Security Council to stop the ICC’s investigations and prosecutions for 12 months (renewable yearly). Second, the referral explicitly excludes the ICC from investigating or prosecuting any citizens of states which are not members of the ICC. Third, Resolution 1970 stipulates that the Court can only investigate crimes after 15 February 2011.

All of these issues, for various reasons (see here), amount to the Council tailoring the ICC’s mandate to its political whims. Others are also concerned. At a recent conference, Christian Wenaweser, the former President of the ICC’s Assembly of States Parties, stated that there was “pretty much everything wrong” with the language inResolution 1970.

Sudanese President Omar al-Bashir (Photo: Reuters)

Much of the political wording of Resolution 1970 is simply copied and pasted from Security Council Resolution 1543, which referred Darfur to the ICC. One might also add that, in both the Libya and Darfur case, the Council has refused to provide any funding for the Court’s work and has subsequently provided little-to-nothing in diplomatic and political support.

It should thus come as no surprise that after two referrals, the political manipulation of the ICC by the Council isn’t exactly a secret. For example, Human Rights Watch touched directly on the question of political vocabulary and language, declaring that

“The two Security Council referrals to the ICC, Resolutions 1593 and 1970, have included provisions that are damaging to the court, Human Rights Watch said. Both referrals imposed the entire financial burden of the new investigations and prosecutions on the court and its member countries. They also allowed exemptions for the nationals of non-member third countries should they be implicated in serious crimes committed in the referred country.”

In this context, one might expect that the ICC to be eager to confront the Security Council about the language the Council has deployed in its referrals and request it to refrain from using such vocabulary in the future. Unfortunately, that was not the case. Continue reading →

Posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, UN Security Council | 7 Comments

Rewards for Justice: The US Takes a Step Closer to the ICC

Posted on October 18, 2012 by Mark Kersten

David Scheffer explaining the Rewards for Justice Program as it pertains to the ICTY

It appears that the United States is inching towards a much closer legal, political and institutional relationship with the International Criminal Court (ICC). This may come as a surprise given that the US is currently mired in another tumultuous Presidential election season. Nevertheless, it appears likely that the US will soon expand its Rewards for Justice Program to include ICC indictees. This would mark a significant – and welcome – development in the ICC-US relationship. How it became possible, however, is just as fascinating.

As readers will know, the relationship between the US and the ICC has generally grown more cooperative during the life-span of the Court’s existence. Of course, it didn’t really have anywhere to go but up after John Bolton famously ‘unsigned’ the Rome Statute and the administration of George Bush sought to undermine the Court wherever and whenever it could.

Despite improved relations, however, there is also a growing sense of discomfort with a United States that commits itself to a half-way house relationship with the ICC. Not long ago, I wrote of my concern that America’s position of engaging with the Court but remaining a non-member state could entrench the US’s selective support of international criminal justice, support based not on the interests of justice but the particular political interests of the US government. Indeed, I think there is already palpable evidence of this occurring. As a result, I was rather skeptical when told that Democrats, led by Stephen Rapp, the Ambassador-at-Large for War Crimes Issues, had been working tirelessly to expand the US government’s Rewards for Justice program.

The Rewards for Justice program, as its name suggests, doles out monetary awards to individuals who produce information which leads to the arrest and/or prosecution of terrorist suspects. While the focus is almost entirely on terrorism, under its rubric the program also currently covers individuals wanted by the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY). According to its website, the program offers $5 million for information which leads to the detention of individuals wanted by either of the ad hoc tribunals. It is generally accepted wisdom that the program contributed positively to both the ICTY and ICTR gaining custody of most (in the case of the ICTY all) its indictees.

Bosco Ntaganda

Bosco Ntaganda (Photo: AFP)

Perhaps, then, it was only a matter of time before someone sought to expand the reach of the Rewards for Justice program to cover individuals wanted by the ICC. That someone was Stephen Rapp who, David Scheffer has argued, “has worked tirelessly on apprehension initiatives to assist the ICC”. A few weeks ago at a conference in Nuremberg, Scheffer added that Rapp has done a “heroic job in Washington” on expanding support for the Court. He also noted that the expansion of the Rewards for Justice program is well on its way, having cleared numerous political committees in Washington.

It now appears that putting ICC indictees under the remit of the Rewards for Justice program is all but inevitable. What is so remarkable about this development is that it has received almost no criticism or resistance in US domestic circles. One would be excused for thinking: “Well, what about all of those Republicans that have worked tirelessly to undermine the ICC?” Indeed, surely those pesky anti-ICC politicos have made a fuss, right? Not really. According to Scheffer, there has been no significant opposition on Capitol Hill. A few developments may help explain this. Continue reading →

Posted in ICTY, International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), Justice, United States | Tagged , | 1 Comment

Transitional Justice and the Arab Spring – A ‘Webinar’

Posted on October 14, 2012 by Mark Kersten

Dear readers,

For anyone interested, please tune in to a ‘webinar’ on Transitional Justice and the Arab Spring from 11:30 – 13:00 EST (16:30-18:00 GMT) tomorrow, Monday, October 15. There is a great list of participants and it promises to be an interesting examination of questions regarding the use of transitional justice mechanisms in Arab Spring states. Much of the discussion will center around questions that Kirsten Fisher raised in her two-part post, Distinctly Arab? Questions about Transitional Justice and the Arab Spring (see here and here). I will be presenting findings from my paper, Justice after the War: The ICC and Post-Gaddafi Libya and comment on some new developments, focussing on the admissibility hearings at the ICC last week.

If you’re keen, check out the poster below for more details!

Mark

Transitional justice Arab Spring

Posted in Arab Spring, JiC News, Transitional Justice | 3 Comments

The Politics of International Criminal Justice – A Review

Posted on October 11, 2012 by Mark Kersten

The Palace of Justice, where the Nuremberg Trials were held (Photo: Mark Kersten)

While the International Criminal Court (ICC) is currently celebrating its tenth year anniversary, we still know remarkably little about the Court’s relationship with the international community of states. This is not to say that scholarship has entirely overlooked how states and the ICC get along (or don’t) and why. After all, few issues in the field have received as much attention as the relationship between the ICC and the US. But, as Süddeutsche Zeitung writer Ronen Steinke rightly notes, in The Politics of International Criminal Justice – German Perspectives from Nuremberg to The Hague, that is pretty much where analyses of “[t]he entanglement of international criminal justice with interests of particular State actors” end.

Steinke’s laudable aim is to expand on this literature by examining the peculiar and unique entanglement of Germany with international criminal justice since the end of WWII. This isn’t a well-known story. Indeed, it may come as a surprise to many that Germany was ambivalent, at best, towards international criminal justice following the Nuremberg International Military Tribunal (IMT) trials. As Steinke writes, “in the years after Nuremberg, West German policymakers and legal scholars set out to challenge the authority of the IMT’s narration of the war.” They did so, primarily through a fervent deployment of legal positivism. More specifically, legal scholars and jurists claimed that the Nuremberg tribunals inappropriately applied its jurisdiction retroactively, thus violating the principle that one cannot be tried for a crime that did not exist at the time when it was allegedly perpetrated. They also argued that the selection of cases brought forward at the tribunal did not represent “historical truth”. For these reasons, the trials were largely seen by the German legal community as illegitimate.This attitude remained prevalent until the 1990s, at least in part because “[i]n the 1950s, numerous judges and law professors who had built a career under the Nazis were returning to their former professions” and they were concerned with “their own tainted biographies”.

Since the end of the Cold War, however, Germany has been amongst the most eager proponents of international criminal tribunals as well as the creation of an ICC independent of the political interests of the UN Security Council. It is this political transformation, this volte-face, which has inspired Steinke’s impressive work and should be of interest to all those with an commitment to the politics of international criminal law and justice.

For Steinke, understanding this transformation requires an examination of a confluence of key developments and individuals. The first signs of this conversion occurred following the end of the Cold War, when the West German government viewed the prosecution of East German (GDR) officials as an opportunity to create a historical narrative which delegitimized the GDR regime. The dominance of legal positivism withered and the prosecution of the GDR’s leadership was seen as an opportunity to legitimize German reunification as well as West Germany’s liberation and political take-over of its Eastern counterpart.

With the establishment of the ad hoc tribunals in Rwanda and the former Yugoslavia in the 1990s, Germany warmed up to the idea of international criminal tribunals. According to Steinke, this fact “is highly puzzling from the perspective of realist analysis of the politics of international criminal justice.” After all, what interests did Germany have in Rwanda and especially Yugoslavia? As Steinke points out, Germany had an interest in siding with its three key allies on the UN Security Council – the UK, the US and France, and their particular version of the historical narrative emanating from the Balkans. It also “allowed the newly reunified German State to show itself as a promoter of human rights on the international stage.”

(Photo: UCSB Library Special Collections)

When negotiations on creating a permanent international criminal court began, German diplomats and lawyers took it upon themselves to play a leading role. Steinke’s treatment of Germany’s role in the lead-up of the Rome Conference is particularly rich and worth reading. As he points out, amongst the key factors which propagated German influence in negotiating the creation of the ICC was a single committed individual: Hans-Peter Kaul, to whom the creation of the ICC is highly indebted. According to Steinke, Kaul masterfully convinced “realists” in the German government that the ICC’s principle of complementarity would prevent any German nationals from being prosecuted at the Court and that the Rome Statute would have a restrictive understanding of war crimes which would not create any new legal obligations for the German military. At the same time, as Steinke notes, many skeptics became convinced that the one-state, one-vote system of the ICC’s Assembly of States Parties (ASP) could give Germany a significant degree of political influence at the ICC in nominating individuals for key positions at the Court. In other words, the democratic nature of the ASP could serve Germany’s “realist” political interests.

While Steinke’s analysis of Germany’s role in the creation of the ICC is fascinating and ultimately convincing, the most enjoyable passages come when he shares the rather creative strategies employed by the German delegation to the ICC negotiations. Let me share two. Continue reading →

Posted in Germany, ICTY, International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), International Law, Nuremberg, Nuremberg Trials | Tagged , | 1 Comment

How the ICC Could Still Get Senussi to The Hague

Posted on October 9, 2012 by Mark Kersten

Abdullah al-Senussi upon his arrival in Tripoli after being extradited from Mauritania in September, 2012.

As I write this, admissibility hearings at the International Criminal Court (ICC) are ongoing. The hearings will play a major role in whether or not ICC judges ultimately accept Libya’s plans to try Abdullah al-Senussi, Gaddafi’s former spy chief and henchman, and Saif al-Islam Gaddafi, the country’s galavanting former heir apparent,  in Libya by Libyan judges. Nevertheless, as most observers familiar with the case freely acknowledge, the hearings aren’t likely to have any bearing on where Saif and Senussi are tried. Without any political backing from the international community, the ICC isn’t exactly in a position to force Libya to surrender either of their prized prisoners to The Hague. In short, there should be no confusion: Saif and Senussi will be tried in Libya.

But what if the ICC could convince the Libyan government that it was in its political interests to surrender Senussi after first putting him on trial in Libya? I think there is a way that the Court can do so – but it requires some political, rather than legal, manoeuvring.

Libya and its citizens desperately want the information locked away in the dark corners of Abdullah al-Senussi’s memory. There is, quite simply, no one with a better understanding – or greater involvement – in the political machinations and violations committed  by the Gaddafi regime against Libyans. It is for this reason that he has been called the country’s “black box” and the “crown jewel” of justice in Libya. It is also for this reason that Libya was willing to pay $200 million just to secure Senuss’s extradition from Mauritania. His mind is a repository of truths about what happened in the Abu Salim prison massacre, the Lockerbie bombing, the attack on UTA Flight 772, the torture and execution of countless Libyan citizens, and Libya’s sponsorship of violence and oppression at home and abroad.

So how can Libya get Senussi to confess his secrets? The problem is that Libya has no carrots to offer Senussi for being forthcoming. Indeed, Senussi – like the rest of the world – surely knows that he is unlikely to get a fair trial and is virtually guaranteed an eventual death sentence. If, as it has been rumoured, Senussi is being tortured, that too is unlikely to yield much in terms of truths. Libya likely does not believe it can promise him any less of a sentence. Senussi is, after all, the most wanted man in Libya.

(Photo: AP Photo/Abdel Magid al-Fergany)

So what can Libya do? First of all, it can leverage people that Senussi cares about against him. Senussi’s daughter was arrested this week in Tripoli for allegedly entering Libya illegally. Sadly, it would come as little surprise if her subsequent treatment is being used against Senussi divulging information about Gaddafi-era secrets.

My suggestion, however, is to return to the possibility of sequencing trials in Libya and The Hague. It would go something like this: Libya and the would ICC agree, in principle, that the trial of Senussi would be sequenced. First Senussi would be tried and sentenced in Libya but, rather than carrying out the sentence, he would be tried in The Hague. Libyan authorities would then offer this as an incentive to Senussi in exchange for information about the worst excesses of the Gaddafi regime. It would be tough for Senussi not to accept. It’s either The Hague (a relatively cushy place to spend a few years) or death.  Continue reading →

Posted in Admissibility, International Criminal Court (ICC), International Law, Justice, Libya, Libya and the ICC | Tagged | 5 Comments

No winners in ICC – Libya standoff

Posted on October 9, 2012 by Mark Kersten
justice libya

(Photo: Mahmud Turkia / AFP/ Getty Images)

Judges at the ICC are set to hear two days of arguments from Libya and the Saif al-Islam’s ICC Defence counsel over where Libya’s former heir apparent should be brought to justice. As readers will know, the question of where to try Saif and Abdullah al-Senussi has been a major theme covered in this blog over the last year and a half. While it’s hard to predict how the ICC judges will ultimately rule, it is clear that the relationship between the Court and the Libyan government leaves a lot to be desired. In this vein, I wanted to share with readers an article that I’ve just had published at Foreign Policy, which covers the tumultuous fight over where to try Saif and Senussi. The argument reflects that of a longer, academic chapter that I have posted on academia.edu. Here’s a taste:

Libya’s embattled transitional government is not only struggling to appoint a cabinet, disarm its powerful militias, and deal with the aftermath of the attack on the U.S. consulate in Benghazi. It is also locked in a tense battle with the International Criminal Court (ICC) over where to try Muammar al-Qaddafi’s son Saif al-Islam and the former regime’s mysterious intelligence chief Abdullah al-Senussi. Since the fall of Qaddafi’s regime and the assertion of a newly sovereign Libya, the ICC’s intervention has degenerated into a controversial and, at times, acrimonious battle between Libya’s new rulers and the Court over where the highly prized indictees should be tried. Over the past year, Libya’s transitional government has sought to demonstrate its effective sovereignty to its citizens and the world by proving itself able and willing to prosecute senior members of the Qaddafi regime. At the same time, the ICC has striven to establish itself as an effective institution that can have positive effects on post-conflict accountability. However, the fight over where to try Saif and Senussi may ultimately serve to undermine the aims of both the ICC and Libya — not to mention the pursuit of post-Qaddafi justice.

For more, continue here.

Thanks as always for your readership and interest in JiC!

Posted in International Criminal Court (ICC), Libya, Libya and the ICC | Tagged , | Leave a comment

Luis Moreno-Ocampo’s Lands a New Job – at the World Bank

Posted on October 6, 2012 by Mark Kersten

(Photo: RNW)

We thought he was going to FIFA to investigate ethical breaches and corruption. He had wanted the post but, at the last moment, lost the job. Now, however, the World Bank is apparently set to hire Luis Moreno-Ocampo, former Chief Prosecutor at the ICC. From Reuters:

“The former chief prosecutor of the International Criminal Court will lead a review of Bangladesh’s investigation of alleged corruption tied to a major bridge project, the World Bank said late on Friday.

Luis Moreno Ocampo will head the three-member panel and deliver a report to the World Bank, one of several steps necessary for the Washington-based development institution to resume its $1.2 billion line of credit. Ocampo sought to prosecute individuals for crimes against humanity at the ICC, located in The Hague, Netherlands.

The World Bank canceled funding for the Padma River development in Bangladesh in June, saying it had “credible evidence” of high-level corruption among Bangladeshi government officials.

The Padma Multipurpose Bridge, at 4 miles long, would be the longest water crossing in the country, linking the underdeveloped south with the capital Dhaka and the main port of Chittagong.

The bank said it would resume financing of the project once agreed measures with the government were implemented.

These include an outside panel of experts to assess the credibility of the government’s investigation into allegations of corruption in the bridge project by the specially appointed Anti-Corruption Commission of Bangladesh (ACC).

Joining Ocampo on the panel are Timothy Tong, the former commissioner of the Independent Commission Against Corruption in Hong Kong, and Richard Alderman, former director of Britain’s Serious Fraud Office.”

As always, it will be interesting (and likely entertaining!) to see how Moreno-Ocampo performs in his new position.

For Bangladesh – as it would have been for FIFA and President Sepp Blatter – it never looks good to have a former Prosecutor of war crimes, crimes against humanity and genocide investigating the government’s decision-making and policies. But it certainly does make it appear to the wider public that the issue of corruption is being taken seriously.

In comparison to the FIFA job, heading the panel is small peanuts, especially for an individual who has a penchant to seek the spotlight and clearly adores public attention. That being said, Moreno-Ocampo’s inclusion as the head of panel has the potential to bring much greater media and international focus to issues of development and corruption in Bangladesh. That may be bad for certain figures in Bangladesh’s government but it may be very good for accountability.

Interestingly, there is also a Libyan and Canadian connection to the story. According to the Reuters report,

“Two former executives from Canadian engineering company SNC-Lavalin Group Inc, which bid to supervise the contractor on the bridge project, appeared in a Toronto court in July accused of bribing officials in Bangladesh.

Canada launched an investigation last year into allegations of corruption in the bridge bidding process after the World Bank brought the issue to their attention.”

SNC-Lavalin has been rocked by scandals in recent months after it was revealed that the company had very close ties to the Gaddafi regime.

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

Intervention in Mali: Does R2P Apply?

Posted on September 27, 2012 by Mark Kersten

James P. Rudolph joins us for this fascinating guest-post on the need to respond to the ongoing crisis in Mali. James is an attorney in Washington, D.C. and California where his work focuses on international law. In this post he guides us through the various political, economic and legal responses available to the international community, focusing in particular on the potential for an R2P-response to the violence in Mali. 

A family in Bamako, escaping violence in Gao (Photo: Joe Penney/Al Jazeera)

Six months ago, a coup d’état toppled President Amadou Toumani Toure (“ATT”), the democratically elected leader of Mali, and soon thereafter ATT went into exile; armed groups in the north, inspired by a strict and austere interpretation of Islam and the desire to impose Sharia law on the entire country, have engaged in jihadism, terrorism and arms trafficking; and many of Mali’s cultural treasures and riches have been destroyed by the same armed groups who consider much of modern civilization – i.e., the West – to be decadent and depraved and thus in need of purification.

Lamentably, most of these developments – marauding and irredentist Islamists linked to al-Qaeda in the Islamic Maghreb, the destruction of cultural relics and objet d’art, threats to World Heritage sites – have been overlooked or ignored. To be sure, some outlets – notably The New York Times and the BBC – have done their part to sound the alarm, and Alain Juppé, the former foreign minister of France, was told in March that if these groups gained control of the north, Mali would be turned into another Afghanistan.

Nevertheless, much of the world’s reaction has been subdued or nonexistent. This is regrettable, for what is happening in Mali has the potential to turn into a full-blown civil war with international peace and security implications. That is, certain regional organizations – namely, the Economic Community of West African States, or Ecowas – have already been sucked into the vortex of violence and armed conflict. Obviously, the situation is more than an internal disturbance, with Mali’s neighbors worried about contagion and France positioning troops in the Sahel. That this is of concern is not doubted.  But when it comes time to settling on an appropriate response to this ostensibly internal conflict, the international community seems stuck. In an effort to contribute to a workable solution, this essay proposes that there already is a framework for thinking about the crisis in Mali.  It’s called the Responsibility to Protect (R2P), and it offers, at a minimum, a way forward.

R2P entails, interestingly, more than the responsibility to protect. Indeed, the concept has built within it three responsibilities: the responsibility to prevent, the responsibility to react and the responsibility to rebuild. As the situation in Mali seems already to have passed the point where prevention would be effective, the real focus must now be on the responsibility to react. Notwithstanding this conclusion, and to ward off any confusion concerning the use of force, the responsibility to react also has preventive steps to take before coercive, non-consensual force is used. To be sure, military force is part of the responsibility to react, but it is always a last resort and only if it is likely to do more good than harm.

Thus, the focus must first be on the other options within the reaction “toolbox,” and only if these fail can we seriously consider the use of force. These other steps include political and/or diplomatic responses; constitutional and/or legal responses; economic and social responses; and security-sector measures. We will take these in turn.

Members of Ansar Dine in Gau, northern Mali (Photo: Reuters)

Political and diplomatic responses are actually divided into political incentives and political sanctions. Incentives include things like diplomatic recognition, membership in international organizations, cancellation of debt, etc. In the case of Mali, we are dealing with a bifurcated country (with two-thirds of the country controlled by Islamists), so these incentives are unlikely to work, because the real issue is how to get the government in Bamako, the capital, back in control of the north.  Likewise, political sanctions (things like withdrawal of diplomatic recognition, expulsion from international organizations, travel bans) are, like political incentives, of dubious utility.

The next option, therefore, is the constitutional/legal option, but to be precise, the constitutional option is really about long-term, structural changes tailored to prevent atrocities in the first place, so the focus here is on legal options. In short, this means criminal prosecution. First and foremost, national governments continue to play the primary role in enforcing international law, and this includes prosecution for crimes subject to universal jurisdiction like piracy, genocide, torture, crimes against humanity, etc. It is only when the state is unable or unwilling to prosecute (other than referrals by the Security Council) that institutions like the International Criminal Court (ICC) get involved. Unfortunately, the government in Bamako, which lost control of two-thirds of the country, seems unable to mount an effective prosecution of the crimes being committed in the north. Indeed, Mali is seeking international help by, among other things, asking the ICC to launch an investigation into possible war crimes, signaling its intent to rely on outside help. But launching an investigation and actually apprehending suspects are two different things, as the case of Omar al-Bashir in Sudan so painfully reminds us.

Continue reading →

Posted in Justice, Mali, Responsibiltiy to Protect (R2P), UN Security Council, United Nations, War crimes | Tagged | 7 Comments

A Quiet Injustice: Degenerating health conditions in the Gaza Strip

Posted on September 26, 2012 by Mark Kersten

The following is a guest-post from Megan Norbert, who is currently the Legal Advisor for the Palestinian Centre for Human Rights in the Gaza Strip, as well as an external PhD Candidate at Tilburg University in the Netherlands. In this timely post Megan tackles the ongoing injustice and potential international crime that is the deteriorating health conditions in the Gaza Strip. Enjoy!

(Photo: Rafah Today)

Most people are familiar with the Palestinian-Israeli conflict and, rightly so, a great deal of attention is paid to the attacks occurring there against civilians and civilian property. However, beyond the drama of the conflict, a number of other injustices are occurring, that escapes notice, particularly in the Gaza Strip. Amongst the most pressing of violations of international humanitarian and human rights law is the quickly degenerating health conditions in the Gaza Strip, which are a direct result of the conflict between Israel, the West Bank and the Gaza Strip.

With the current population of 1.7 million crammed into just 365 square kilometres (141 square miles), the Gaza Strip is one of the most densely populated regions in the world. But, with no landfill, piles of garbage line the streets, in even the best neighbourhoods of Gaz. Sewage flows freely in the streets and a swim in certain parts of the Gaza Sea guarantees a parasite souvenir, thanks to the sewage being pumped into it. Ninety percent of the water in the area is undrinkable without treatment and the vast majority of citizens drink mildly polluted water filled with feces, parasites, pesticides, metals and other pollutants.

Children and the elderly live in constant risk of serious illness and death. Maternal health in Gaza is a serious problem, due to the deplorable health conditions and lack of adequate health care. There may be an increase in cancer amongst the Gaza Strip population, though exact statistics are not yet kept. There is a significant level of diabetes amongst Gazans. In essence, a myriad of health problems requiring medicine and care affect the people of the Gaza Strip.

Moreover, when an illness is discovered, there is no guarantee that appropriate health care will be available to those who require it in the Gaza Strip. There is often an insufficient level of necessary medicine, while expertise and equipment is not always found in Gaza. As a result, permission to travel to Israel, the West Bank and Egypt can make the difference between life and death for many ill Gazans – permission which is often thwarted by the actions of Israel, the Palestinian Authority or Egypt.

The root of the problem in Gaza is two-fold: Israel does not allow the import of proper equipment, prevents an essential supply of electricity, prevents patients from travelling for health care and has wilfully attacked civilian objects, exacerbating the situation. Moreover, the Palestinian Authority, fractioned from Gaza’s elected government, Hamas, prevents medication from reaching the Gaza Strip. Both parties, Israel and the Palestinian Authority, have an obligation to ensure Gazans have access to health care.

(Photo: Sipa Press /Rex Features)

First, Israel, as the Occupying Power, is obligated under Articles 38(2) and 56 of the Fourth Geneva Convention to ensure health care for protected persons, which is defined as the following under Article 4 of the same Convention:

“those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

Gazans, as citizens currently under the occupation of the State of Israel, fit the definition of protected persons.

Under Article 56, the Occupying Power is obligated:

“To the fullest extent of the means available to it … the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory,” so that, under Article 38(2), protected persons “shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned.”

This positive duty requires Israel to ensure the maintenance of health services in the Gaza Strip so that appropriate healthcare will be available when needed.

Based on the separation of duties between Israel and the Palestinian Authority, Israel’s obligations fall under the maintenance of services designed to promote public health. This would include the maintenance of the water treatment and the supply of electricity to ensure that hospitals can run properly. It would also include facilitating the travel of patients if necessary to make sure that Gazans receive the same health care as that of the Occupying Power.

Israel’s primary excuse is their need to vehemently protect their national security. They claim that allowing the import of materials to repair the water treatment plants might, in some unexamined way, result in attacks against Israel. Similarly, the rejection of patients needing to travel to Israel for medical treatment is on the grounds of national security – this vague term that is never explained but often used. Israel’s blanket rejection of necessary goods to fulfill their obligations under international law amounts to collective punishment, which is prohibited under Article 33 of the Fourth Geneva Convention. Continue reading →

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