Saif wants to be tried at the ICC – But that’s not all

Posted on August 6, 2012 by Mark Kersten
Melinda Taylor Zintan

Melinda Taylor and Helene Assaf in Zintan following their release (Photo: AFP)

Late last week, the Office of Public Counsel for the Defence (OPCD), which has been representing Saif al-Islam Gaddafi at the ICC, filed its official response to Libya’s admissibility challenge at the ICC. The impressive report, a whopping 92-pages long, should be read in its entirety. It includes an in-depth account of the arrest and detention of Melinda Taylor and the ICC4. Kevin Jon Heller at Opinio Juris has covered the most controversial and pertinent bits of the report (see here and here) and has posted a must-read piece on the relevance of the failure to provide Saif with due process in Libya’s admissibility challenge. Here are a few things that I found particularly interesting and important.

Saif prefers a trial in Libya – but can’t get a fair one

The world’s media, with a few exceptions, appear to have read the first two pages of the report and stopped there. Perhaps that’s the downside of a 92-page report replete with pertinent information. Still, it is worth noting that most media actually misleadingly reported the first pages of the report, which constitute a statement given by Saif. Stories ran a headline suggesting that Saif is seeking a trial at the ICC. They presumably refer to a passage in Saif’s statement that reads:

“Over a year ago, representatives of the NTC asked the international community to intervene so that the Libyan people could have justice, I am asking for exactly the same thing – the only way for Libya and the Libyan people to have justice is for the ICC to try this case in a fair, impartial and independent manner, and, in so doing, set standards, which Libya can follow on its future path to democracy and the rule of law.”

However, reports have completely ignored a preceding passage, where Saif suggests that his preference, ideally, is to be tried in Libya:

“I would have liked to have been tried in Libya by Libyan judges under Libyan law in front of the Libyan people. But what has been happening in my case cannot be called a trial.”

Saif thus appears to be making precisely the same case that many human rights and international legal observers have made, namely that trial justice is best served where alleged atrocities have taken place, but that in the absence of a functioning judiciary and political stability, this ideal is overridden by the interests of achieving justice. Somewhat oddly, then, it appears that Saif, his Defence Counsel and human rights groups form a camp in favour of a trial at the ICC, while Libyan authorities and the Office of the Prosecutor have defended Libya’s right to try Saif domestically.

 

Saif graffiti

(Photo: 12ozProphet)

The Other ICC4 Staff Members were not Allowed to Leave

One of the more curious aspects of the illegal arrest and detention of OPCD staff members Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Peralta Losilla, were reports that only Taylor and Assaf had been arrested by the Zintani militia, while Khodakov and Peralta were told they were free to leave but had stayed behind to provide “moral support“. Indeed, in a July 18 letter to the UN Security Council, the Libyan government stated that:

“The Prosecutor-General’s office decided to release the other two members of the delegation, however, they willingly decided to stay in solidarity with their colleagues.” Continue reading →

Posted in Defense Counsel, Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | Tagged , , , , , , | 5 Comments

Colombia and the International Criminal Court: New Prosecutor, New Standards?

Posted on July 29, 2012 by Mark Kersten

Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco join us again for this guest-post on the ICC and Colombia. Mariana is the Director of the Human Rights Program at Asuntos del Sur. Salvador is an LL.M. University of Ottawa, a human rights lawyer based in Lima, Peru. Enjoy!

FARC child soldiers (Photo: Resistance Studies)

Now that the International Criminal Court (ICC) has just rendered its first sentencing for Lubanga for the recruitment and use of child soldiers in the armed conflict in Uganda, it might be adequate to talk about Colombia, a situation that has been under the ICC radar since 2006.

Back then, the Office of the Prosecutor (OTP) declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against the allegedly most serious perpetrators, paramilitary leaders, politicians, guerrilla leaders and military personnel.”

Later, the OTP added it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. The Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute, and Colombia is classified as a “situation under analysis.”

The primary responsibility of investigating grave crimes remains under the jurisdiction of the Colombian tribunals and the Court considers the local judiciary capable and willing to carry out investigations of the crimes under the ICC’s jurisdiction. But, NGOs have reported that the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) continue to perpetrate grave abuses against civilian populations.

Child Soldiers and Landmines

HRW reported that Colombia is among 14 countries worldwide (beyond Central and West Africa) that use child soldiers. In the case of Colombia, the report adds that the FARC have recruited children as young as 7 and forced them into combat. They execute fighters who try to desert. There are no arrest warrants, no trials and no convictions for the recruiters.

Antipersonnel landmines and other banned weapons are still being used by the FARC and the ELN, HRW’s World Report states. They also note that 16 civilians were killed and 104 were injured by landmines and unexploded munitions between January and August 2011.

Gender Crimes

Furthermore, it is reported that gender violence has been employed as a weapon of war. Unfortunately, the international community has continually failed to prevent the widespread and systematic violence against women in the context of armed conflicts. Colombia is not an exception of this tragic rule.

The Constitutional Court, in a 2008 decision, recognized that sexual violence against women was “a habitual, extended, systematic and invisible practice in the context of the Colombian armed conflict … [perpetrated] by all illegal armed groups, and, in some isolated cases, by individual agents of the public security forces.”

Last year, a Symbolic Court Against Sexual Violence within the Colombian Armed Conflict met in Bogotá to deal with a range of cases related to sexual violence committed by armed groups in the internal Colombian conflict.

(Photo: AFP Photo / Raul Arboleda)

The Court was conceived as a place “aimed at making visible to the public the impact sexual violence has had in the context of armed conflict, especially emphasizing the rights of victims and the need to overcome the impunity that has characterized these crimes, and demand timely and effective attention by the state.” The Tribunal made some recommendations urging the Colombian state to uphold their international obligations regarding the prevention, investigation, prosecution and judgment of gender violence. Continue reading →

Posted in Colombia, Guest Posts, Justice, Latin America, Sexual Violence | Tagged , , , | 1 Comment

The Impact of the Taylor Trial in Sierra Leone and Liberia

Posted on July 26, 2012 by Mark Kersten

Annie Gell joins us with this guest-post on the impact of the Charles Taylor trial in Sierra Leone and Liberia. Annie is the Leonard H. Sandler fellow in the International Justice Program at Human Rights Watch (HRW). Immediately before joining HRW, Annie lived and worked in Port-au-Prince supporting grassroots women’s groups fighting the epidemic of gender-based violence in post-earthquake Haiti. 

Charles Taylor handcuffed

Charles Taylor shortly after being arrested in 2006 (Photo: BBC)

This week, Human Rights Watch released the report “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor.  The report is based on interviews in The Hague, London, Washington, DC, Sierra Leone, Liberia, New York, as well as a review of expert commentary, trial transcripts, and daily reports produced by trial observers. This post focuses on Human Rights Watch’s findings regarding the trial’s initial impact in affected communities and provides recommendations for achieving a fuller realization of justice in Sierra Leone and Liberia.

In May 2012, the Special Court for Sierra Leone (SCSL) sentenced Taylor, former president of Liberia, to 50 years in prison for aiding and abetting the 1991-2002 armed conflict in neighboring Sierra Leone. While it has been a long road, the successful conclusion of the trial phase was a landmark for war victims, West Africa, and efforts to ensure perpetrators of the gravest crimes are held to account. However, the trial also highlighted that major accountability gaps remain for serious crimes committed during Sierra Leone and Liberia’s brutal armed conflicts.

Findings on the Impact of the Taylor Trial

The trial’s impact must be understood within the contexts of Sierra Leone and Liberia. After the devastating armed conflicts, both countries have sought to distance themselves from their violent past. Even as neighboring Guinea and Côte d’Ivoire face significant challenges across porous borders, Sierra Leone and Liberia are attempting to build rights-respecting democracies. Yet the institutions that underpin the rule of law—including the police and judiciary—remain extremely weak and other persistent problems, such as corruption, risk undermining hard-won gains.

Consideration of the impact of the trial is constrained by at least three factors: first, the Trial Chamber only handed down its verdict in April 2012 and it could be years before the trial’s full impact is realized; second, there are inherent challenges to isolating the trial’s impact because, though significant, it is one factor of many in a complex social and political landscape; and third, analysis of the trial’s impact in this report is based on information drawn from interviews with civil society members, former combatants, members of government, journalists, and war victims in Monrovia and Freetown. No large-scale or quantitative surveys were conducted.

No War Zone Tormusa Koroma, Sierra Leone

No War Zone (Drawing: Tormusa Koroma, Sierra Leone)

Despite these limitations, several noteworthy observations can be made. First, many people from affected communities are aware of the trial and have reflected on its significance. Since its inception, the Special Court has demonstrated an institutional commitment to conducting outreach within affected communities. Its outreach efforts provide a strong model for other trials, particularly those held far from the location of the crimes, as will typically be the case at the International Criminal Court. Among other activities, court staff created audio and video summaries of the trial in local languages for dissemination in Sierra Leone and Liberia, and facilitated visits to the court in The Hague by civil society members from these countries. Continue reading →

Posted in Liberia, Sierra Leone, Special Court for SIerra Leone (SCSL) | Tagged | 3 Comments

Music on Trial: Genocide and Musicians

Posted on July 25, 2012 by Mark Kersten

The following is a unique and fascinating guest-post by Catherine Baker,  a Lecturer in 20th Century History at the University of Hull (from August 2012). Catherine is the author of Sounds of the Borderland: Popular Music, War and Nationalism in Croatia since 1991 (Ashgate, 2010) and of a number of articles on international intervention and on popular culture. Enjoy!

inciting genocide through musicThe charges of inciting ethnic violence laid against three Kikuyu singers this month by Kenya’s National Cohesion and Integration Commission represent the latest attempt to extend the reach of post-conflict justice beyond physical perpetrators – by holding musicians and music broadcasters responsible for their complicity in ethnopolitical conflict.

National and international lawyers dealing with the aftermath of the 2007–08 post-electoral conflict in Kenya are following the precedent of the International Criminal Tribunal for Rwanda (ICTR) which, at the trial of Simon Bikindi in 2006–2008, became the first war crimes tribunal to indict a musician for incitement to genocide.

Bikindi’s songs calling for Hutu solidarity against Tutsis had been repeatedly played before and during the genocide in 1994 by the broadcaster Radio Télévision Libre des Mille Collines (RTLM). Earlier cases at the ICTR had convicted RTLM speech broadcasters of incitement (an approach the International Criminal Court has extended to Kenya by indicting the radio broadcaster Joshua arap Sang in 2011), and the prosecution at the Bikindi trial argued that a musician could be held liable on the same basis.

The evidence of his songs alone and texts recorded before the genocide was not enough for the ICTR to convict Bikindi of incitement (judgement, PDF). Convicting him on the basis of his lyrics would have required the prosecution to prove that Bikindi shared the intent of the génocidaires when he composed the songs and that to avoid liability after the violence began he should have asked RTLM to stop playing his music (see Snyder 2006). However ,his conviction for incitement rested instead on an incident where he had broadcast a speech calling for violence from his car.

Legal scholars have offered several sets of extended criteria for proving incitement in the wake of Bikindi in support of thenotion that songs can be considered actionable speech. Did the speaker – or the performer – use dehumanising rhetoric during or soon after acts of violence against the target group? What channels of communication were used and how responsible was the performer for the dissemination of the speech or song?

Though musicians have been put on trial for their songs under many regimes (see Côté 2011), subjecting the creative work of musicians to criminal responsibility within a transitional justice framework is an innovation of the ICTR. Transitional justice after the Yugoslav wars, in contrast, has not attempted to cover the behaviour of musicians . There is strong evidence that media played a significant role in disseminating ethnonationalist discourses before, during, and after the wars and that popular music was implicated in this framework.[1] However, the International Criminal Tribunal for Former Yugoslavia, preparing its indictments from the mid-1990s onwards, has not tried to assign responsibility for ethnic cleansing to musicians or to put media executives on trial.

Simon Bikindi on trial at the ICTR (Photo: AP)

Music in the post-Yugoslav conflicts was, nonetheless, used as a tool in ethnopolitical conflict. Many prisoner testimonies record the forced singing of ethnonationally marked songs as a torture technique (for which the torturers, not the creators of the songs, are liable), and music playing was used to harass enemy troops during breaks from combat. States and armed forces used music and its celebrities, performing at front lines, as an asset to improve troop morale: Croatian forces, for instance, militarised civilian musicians into ‘artistic units’ in autumn 1991, legally rendering them combatants for the duration of their service. On a more general level, attempting to break apart the common entertainment industry of the former state through legal, financial and discursive means achieved, or aimed to achieve, a conceptual separation of ethnonational groups through altering the everyday musical landscape. All these methods contributed to the aims of ethnopolitical conflict by acting on military and civilian morale and by hardening the boundaries of groups.

The patriotic discographies of all sides in the post-Yugoslav conflicts contain songs that could be compared to the repertoire at issue in Bikindi. The ICTR has held songs recorded in advance as insufficient for incitement, but live performances of them in proximity to acts of violence might be. Developing this standard would require a jurisprudence of what messages were and were not actionable. Is the call to push the enemy out of one’s own country defensive, legitimate and exempt? What if the singer promises instead, as in one well-known Croatian wartime song, that ‘our hand will reach you even in Serbia’? Could behaviour outside the text, such as the display of flags or salutes with specific connotations during a performance in proximity to an act of violence, create liability even if the words of the song might not? Continue reading →

Posted in Genocide, ICTY, International Criminal Tribunal for Rwanda (ICTR), International Law, Justice, Kenya | Tagged , , , | 4 Comments

The ICC in Mali: Just Another ICC Intervention in Africa?

Posted on July 19, 2012 by Mark Kersten

A Malian refugee in Southern Mauritania (Photo: Abdelhak Senna / AFP – Getty Images)

So there you have it: the first investigation opened by Fatou Bensouda, the ICC’s new Chief Prosecutor, will be in Africa. The ICC’s Office of the Prosecution (OTP) accepted a request by Malian government authorities for the Court to intervene and will now conduct a preliminary investigation of the situation, likely focusing on the north of the country. This shouldn’t come as a huge surprise to anyone following the ICC in recent weeks. Bensouda has made it very clear, from the get-go, that she would not hesitate to open a case in an African state.

It is important to remember, as William Schabas reminds us, that this is still only a preliminary investigation. Nevertheless, statements by Besouda hint at the fact that the investigation is much further along than many realize. Bensouda has already declared that she considers the destruction of cultural sites in Timbuktu to constitute a war crime and, in a statement yesterday, she indicated that the OTP has been monitoring the situation closely since violence broke out earlier this year. It would not surprise me if the OTP discretely requested Mali to give the Court jurisdiction through a self-referral.

So what does this mean for the ICC?

Another African Case: Adding Fuel to the Fire?

Both Kevin Jon Heller and Schabas have expressed their reservations about the ICC opening a new investigation in an African state. On the surface, these concerns are understandable. After all, the chorus of critics claiming that the Court is biased against Africa hasn’t waned much, if at all, with Bensouda’s appointment as Chief Prosecutor. Adding yet another investigation into an African state may be seen as adding fuel to the fire. I’m not so sure.

Opening an investigation into Mali may actually have positive consequences on the relationship between the ICC and African states. As I have argued elsewhere, the animosity between the African Union (and more specifically some of its member states) and the ICC has not been an extension of the number of cases the ICC has in Africa – although it is often framed as such for rhetorical purposes. The hostility stems from the increasingly close relationship between the ICC and the “great powers”, most notably those on the UN Security Council. In this context, it is important to remember that African states have most vociferously condemned the Court when it intervened as a result of Security Council referrals in Sudan and Libya (and to some extent in the Kenyan case where the ICC intervened on its own volition). Critically, the African Union has never significantly criticized the ICC following a self-referral by an African state, as was the case with Uganda, the Democratic Republic of Congo and the Central African Republic. This is, of course, a logical consequence of the fact that it would be very awkward for the African Union to criticize the Court for an investigation it conducts at the explicit behest of an African state.

An Islamist rebel near Timbuktu (Photo: Ahmed Ouoba/AFP/Getty Images)

Mali’s self-referral could ultimately have a positive effect on the perception of the ICC as biased against Africa. Self-referrals are inherently cooperative, requiring both the state and the ICC to work together. For this reason, former ICC Prosecutor, Luis Moreno-Ocampo invented a strategy to pursue and encourage self-referrals in the first years of the Court’s existence. He believed that receiving such invitations to investigate would bolster the legitimacy of the ICC. Self-referrals, as experience shows, certainly make it more difficult for African leaders opposed to the ICC to decry the Court’s role on the continent. Mali’s self-referral may also make it easier for Bensouda and proponents of the ICC to undermine the argument that the Court has unfairly honed in on weak African states. Defenders of the Court can argue that it was Mali’s own decision to request the Court’s intervention and that the decision refutes any African consensus against the Court. Continue reading →

Posted in African Union (AU), Fatou Bensouda, International Criminal Court (ICC), Mali | Tagged | 9 Comments

Will the African Union and ICC Mend Fences? New leadership, less bad blood

Posted on July 17, 2012 by Alana Tiemessen

The African Union summit, held this past week in Ethiopia, could have important implications for the ICC’s relationship with African states. Despite such strong support among African states in the Rome Treaty negotiations for the ICC, the Court’s focus on African conflicts and elite perpetrators since then has prompted a mixed record of cooperation and support. So why might the AU and ICC mend fences?

New AU Commission Chairperson Dlamini-Zuma

Good Riddance to Ping!

The summit delegates elected South African diplomat Nkosazana Dlamini-Zuma as their new and first female chairperson of the African Union Commission. Dlamini-Zuma pledges to work toward a more united Africa and to tackle the continent’s hotspots, hoping to improve upon the AU’s poor responses to crises in Côte d’Ivoire and Libya and address current crises in Mali, Democratic Republic of the Congo, etc.

Dlamini-Zuma defeated incumbent chairperson, Jean Ping of Gabon, who has vilified the ICC and former Chief Prosecutor Moreno-Ocampo for unfairly targeting African states. Under Ping’s leadership the relationship between African states and the ICC became more polarized and divisive. In his term, AU delegates passed a resolution of non-cooperation with respect to the ICC’s arrest warrant for President Bashir and sided with the Kenyan government to seek a deferral of its ICC cases. Both efforts were rejected by the Court and the UN Security Council. With Ping out and Dlamini-Zuma in, the AU’s continued diplomatic support of this opposition to the ICC is in jeopardy.

Politics of ICC Support

Dlamini-Zuma is a South African diplomat and South Africa is a well-known supporter and defender of the International Criminal Court. She was Minister of Foreign Affairs (1999-2009) when South Africa ratified the Rome Statute in 2000, making it the 23rd State Party.  South Africa supported the Bashir arrest warrant and opposed the deferral of the Kenya cases.

Image from Human Rights Witness

African states are more divided and nuanced on the ICC than what is suggested by AU support for Sudan and Kenya. As Kurt Mills explains in his recent article in Human Rights Quarterly, “the AU position is a façade masking significant arguments and disagreements, as well as significant support for the ICC.”  There are those states, such as Botswana, Ghana, South Africa and States Parties that have self-referred their situations, who support the ICC. Whereas those that oppose the ICC’s targeting of Bashir and Kenyan elites argue for a deferral in the interests of stability and not for wholesale impunity. Moreover, the reason that the summit took place in Ethiopia was that its original host – Malawi – pledged to arrest President Bashir if he accepted the AU’s invitation to attend

Proposal for a Regional Criminal Court

In parallel to these specific disagreements, there is a growing general perception that the Court’s judicial interventions are neo-colonial in their intentions and effects and concern that targeting ruling political elites endangers stability. The alternative, as the AU recommended for both Sudan and Kenya, is to mete out accountability on African soil and in deference to domestic political and security contexts. This could come in the form of hybrid courts or a regional mechanism. A draft protocol was to be considered at the summit that proposed expanding the mandate of the African Court of Justice and Human Rights to have criminal jurisdiction over genocide, war crimes and crimes against humanity. African justice ministers already approved the measure. But it’s not clear whether a regional criminal court would mean greater contestation or complementarity of justice between Africa and the ICC.

Bensouda is Optimistic

On the other side of this relationship is new ICC Chief Prosecutor, Fatou Bensouda, who might engender a more positive relationship between the African Union and the ICC. African states lobbied hard for her election and she is likely to be less brash, reckless, and “political” as her predecessor. In a recent interview she stated that the African Union has shown “strong leadership” on international justice and she expects to have a good working relationship with the organization.

Certainly, developing patterns in the ICC’s selection of situations and the prosecutorial strategy for cases will affect the Court’s relationship with African states. The ICC also needs to diplomatically engage with political elites and institute deeper and broader outreach strategies with victim communities. The burden of cooperation and good diplomacy is not on African states alone.

Posted in African Union (AU), Fatou Bensouda, Kenya, Sudan | 5 Comments

Justice through Graffiti and Cartoons in Syria

Posted on July 16, 2012 by Mark Kersten
Syria cartoon, Assad

“No Exit Plan” (Cartoon: Brandan Reynolds)

A fascinating and common trend amongst ‘Arab Spring’ states has been the use of imagery, particularly graffiti and cartoons, to denigrate bloodthirsty leaders, to express exasperation with repressive regimes, and to evoke hope for a different and altogether more peaceful life. Many images often focus on and ridicule particular features or statements of the tyrants they are aimed against. Others celebrate the fallen, or act as reminders of the grievances at the root of the uprisings. In many cases, cartoons and graffiti are also small attempts to achieve an inkling of justice, to declare that a transition is underway, to boldly express a yearning for freedom of expression and to create public spaces where people can be reminded that their hopes are shared.

Graffiti is particularly interesting. In Western states, graffiti is generally considered to be an act of vandalism, perpetrated by no-good, disenchanted youth. While certainly the case in some instances, there also are a lot of problems with this assumption. But what is quite striking is the divergent opinion given to the outside world. In those Arab states which have waged upheavals against their long-time oppressors, graffiti is rightfully being praised as a brave act of resistance. So, in one place graffiti is an act of disenfranchisement and misplaced rebellion, in the other an act of enfranchisement and freedom. Clearly, context matters.

In Syria, as in other Arab Spring states, graffiti is playing a key – if under-acknowledged – role in the conflict. As Rima Marrouch writes,

“Outside of the violence there’s another war: a graffiti battle to control images and slogans. Walls are the battlefields of influence between anti-government and pro-government supporters.”

The fight over messaging through graffiti has even spread to Lebanon. This is perhaps unsurprising. Some observers have suggested that it was the slogans and images depicted in anti-government graffiti that stirred and catalyzed Syria’s uprising.

Then there is the story of Nour Hatem Zahra, the 23-year-old protestor, known as “the spray man” who spread messages of dissent through graffiti across Damascus. He was tortured and eventually killed by Syrian security forces. Celebrated by many as a martyr, Zahra’s friends and supporters created a Facebook Page called “Freedom Graffiti Week” in his honour.

Despite the prevalence of cartoons and graffiti linked to the causes and dynamics of revolution, we still don’t know much about the aesthetics of the Arab Spring transitions. We have very little understanding of what it means to people to see their leaders vilified and humiliated through the use of graffiti or to be confronted by bold messages of resistance and hope sprayed across public edifices.

But it appears that the world is catching up. It is increasingly impossible to deny the place of these images in the life-cycle of uprisings and revolution. These mostly anonymous images and symbols are infectious and have real effects, becoming symbols of the revolution itself, a social medium that people can actually see and touch. Continue reading →

Posted in Activism, Advocacy, Justice, Syria | Tagged | Leave a comment

The ICC in Syria: A Ticking-Time Security Council Referral?

Posted on July 13, 2012 by Mark Kersten

A protestor in front of anti-Assad graffiti in Idlib, Syria (Photo: Rodrigo Abd / AP)

Like so many others, I find myself in the morally and politically ambiguous position of having no clue what the international community should do to stop the ongoing violence in Syria, recently described as descending into “a sectarian wasteland”. The options are unsavory. The Libya-intervention-recipe seems out of the question, but doing nothing seems morally abhorrent. The status quo is brutal but changing it could conceivably be worse. The only thing that seems clear, to me at least, is that some creative thinking is needed.

Before I lay out my thinking on a possible way to contribute to a cessation of violence in Syria, I should add a disclaimer to avoid confusion. This post is a thought exercise based on an idea that I have been mulling recently. As such, it does not represent any rigid conviction on my part nor a policy solution. Nevertheless, I think it is worth discussing and considering.

A Ticking-Time ICC Referral

My proposal is that the Security Council legally bind itself to a “ticking-time ICC referral”. In practice, this would require the Council to legally declare that they will refer Syria to the ICC by, say, August 1st, 2012 (it could be sooner or later). Once set in motion, the only way to stop the referral would be through a subsequent affirmative vote by the Security Council, following the advice of the UN Observer Mission and UN-Arab League Envoy Kofi Annan. Syrian and opposition forces would have until August 1st to stop the commission of atrocities. If indiscriminate violence on the part of the Syrian regime and the opposition forces did not cease, the referral to the ICC would go ahead automatically.

Why it might be worth it

If the ICC has any specific deterrent effect, this would be an opportunity to see it in action. The idea here is simple and oft-repeated (and oft-criticized): the ICC can have an effect on the willingness of actors to continue committing atrocities. A problem, that many scholars have pointed out, is that when the ICC intervenes in ongoing conflicts, the incentives to put down the guns and silence the tanks may be removed. Both of these positions are over-simplified and tenuous in that the empirical evidence across contexts is weak. But a delayed referral would theoretically allow for both a specific deterrent effect to change the calculus of the Assad regime without removing the incentive to cease the commission of human rights abuses. Of course, the ICC’s deterrence capacity is unclear and its record questionable. Nevertheless, in such instances, I’m not sure it’s useful to know whether the ICC can have a deterrence effect. It might be sufficient to believe it might or could.

Importantly, under this proposal, the Syrian regime would not be able to escalate violence until the end of July and then claim that they have stopped committing atrocities in the 11th hour. In order for the Council to stop the referral, all actors would have to show restraint and a commitment to a cessation of crimes in the time between the Security Council resolution and August 1.

(Cartoon: Kal / The Economist)

It is important to note that the reason that Syria has not been referred to the ICC is not because of the Security Council member states’ ambivalence to the Court itself. As Mark Leon Goldberg reminds us, past cases and practice indicates that “Russia and China are not intrinsically opposed to the ICC.” Thus, if the right political climate and guarantees were in place, it would be possible to get Russia and China on board (or at least abstain) with such a resolution – at least theoretically.

One political guarantee of the hypothetical Security Council resolution could be to make it clear that the ICC’s jurisdiction would be restricted to investigating crimes committed after August 1st, 2012. Crimes committed before this time would thus be beyond the ICC’s jurisdiction. In addition to providing the Assad regime with an incentive to stop committing atrocities, this could also assuage concerns of UN Security Council states that they would be targets of investigation. In particular, Russia would have time to halt its well-documented and dubious material support to the Assad regime without having to worry that it would be investigated by the ICC. For Russia, which seems to be increasingly amenable to the position that Assad needs to step down, the delayed referral could offer a ‘soft landing’. Notably, in Libya, Western states similarly ensured that the ICC could only investigate incidents after February 15, ensuring that their close political, economic and intelligence relations with the Gaddafi regime were outside the Court’s spectre. Continue reading →

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

The ICC: Three Remarkable Achievements

Posted on July 9, 2012 by Mark Kersten

(Photo: Robin Utrecht/EPA)

The ICC recently celebrated its tenth anniversary amidst heavy criticism of its international role and impact. Some of the criticism is valid, a lot of it misrepresents the mandate and role of the ICC. Regardless, in this context, after some time mulling over what the ICC has achieved in the first few years of its existence, I’ve come up with a list of three largely neglected achievements of the Court. I have a feeling they won’t be to everyone’s fancy, but while the ICC is very far from perfect, hopefully this post can highlight or bring to the fore a few issues which, in my mind, make the ICC – as an idea, institution and, above all, project – remarkable.

1. It Exists

It is all too easy to forget that it wasn’t a given that, ten years after it was created, the ICC would actually still be around. I remember the Court’s President Judge Sang-Hyun Song declaring that when he was sworn in, he and other judges did privately expressed their skepticism that the Court could survive the political climate of international relations.

There was every chance that states would rip this novel institution apart before it could get a hold on its place on the global stage. But the ICC managed to withstand political forces pulling it in a multitude of directions. Most dramatically, the Court survived the outright and active hostility from the world’s most powerful nation. Throughout the ICC’s formative years, the US creatively and consistently sought to undermine the prospects of the ICC being effective by pressing states into signing Bilateral Immunity Agreements and by passing the ‘Hague Invasion Act‘. Surviving such aggression and trucking on in the face of opponents like John Bolton is a pretty sweet feather in the ICC’s cap.

Somewhat ironically, the demand that the ICC have an impact on [insert pet project here] and have [insert ICTY’s caseload] number of cases concluded is a testament to just how far the Court has come. Today more typical demands courts can be made of the ICC in terms of conviction rates and international influence. It wasn’t always the case. The Court’s most consistent and vehement critics emphatically claim that the ICC needs to have more cases – whether outside Africa or in places it can’t go, like Syria – yet it wasn’t always clear that ICC judges would ever see any cases.

Importantly, I don’t believe reminding observers that the Court’s existence as a functioning international judicial institution wasn’t a foregone conclusion is grasping at straws. It’s a reminder. The Court, as a project, needs to be judged within the context, and against the record, of its lifespan, not in a cross-section of time, ten years on or whatever it may be.

 

An activist stands outside of the courtroom where former Egyptian President Hosni Mubarak was being tried. Demands for justice and accountability (including from the ICC) swept the Arab world in the ‘Arab Spring’ (Photo: Amr Nabil / AP)

2. It Shapes People’s Demands

Not only does the ICC exist – it appears to be at the vanguard of global and regional human rights and democracy movements. It is not just that demands for justice, human rights and accountability have been particularly pervasive in recent months and years – it’s that these demands are coming from places few imagined they would. I don’t think anyone could have predicted pre-2011 that protesters across the Middle East and North African would take to the streets demanding that their autocratic despots be sent to the The Hague. Yet that’s exactly what’s happened.  Continue reading →

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

Melinda Taylor and the ‘ICC4’ Released: Five Pressing Questions

Posted on July 4, 2012 by Mark Kersten

ICC President Song, Zintani Brigade commander Ajmi Ateri and Libya’s Deputy Foreign Minister Mohammed Abdel Aziz shortly before the release of the ICC’s staff in Zintan (Photo: Anis Mili / Reuters)

It is a huge relief to be able to write that Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Peralta Losilla were released from Libya on Monday and have returned to be reunited with their families. The four had spent nearly a month in Zintan after being detained following a meeting with Saif al-Islam Gaddafi. Their detention and its consequences have been a focal point of JiC over the past few weeks (see here, here, here, here, here and here – phew!)

While it is likely to be some time before any of the ICC staff members openly discuss their experiences – and rightfully so – there are a number of pressing questions that need to be answered in the coming weeks. Here are five.

1. What led the Zintani and Libyan authorities to agree to Taylor et al’s release?

There were many rounds of negotiations between Libya and the ICC. Assuredly, there were likely as many rounds between Libyan authorities and Zintani militia leaders. But it remains unclear what finally tipped negotiations in favour of releasing the ICC staff?

I, for one, am unconvinced that it was the initial statement of regret or apology from the ICC. Libyan authorities were quick to say that the apology would not result in Taylor’s release, that the statement wasn’t enough.

But the reasons given by Libya for Taylor’s release are contradictory. Libya’s representative to the ICC, Ahmed al-Jehani, maintained that it was because Taylor had diplomatic immunity (see also here). The country’s Prosecutor General, however, declared that Taylor would face a court hearing in Libya in late July but that an in absentia hearing could also take place. These two statements can’t be reconciled unless each is playing to a different constituency – which they likely are. This brings us to question two.

2. Who got and gave what?

A rather large group of actors have vested interests in this saga. Let’s consider the Zintani militia, Libya’s interim government, the ICC and the detained ICC staff themselves. Each played a part in the eventual release of Taylor et al. But, by and large, it remains unclear what was required of and demanded by each party.

For the Zintanis, it is clear that getting a direct apology from the ICC was part of the deal – and they got it. ICC President Song explicitly used the word “apologize” in an address in Zintan prior to Taylor’s release. But did the Zintani militia get anything else? Remember,  they have leveraged their custody of Saif for political gain before. Moreover, there have recently been indications that Libya’s interim Defense Minister Osama Juwaili, who is from Zintan and whose appointment was linked to Zintan’s custody of Saif, was recently livid about his treatment and role. It would not surprise me if improvements in his position were linked into negotiations between Libyan authorities and the Zintani brigade over the ICC staff.

Melinda Taylor (right) and Helene Assaf in Zintan shortly after being released (Photo: AFP)

It is a distinct possibility that Libyan authorities simply wanted this debacle to end. The country’s first-ever free and democratic elections are due to take place within days and having ICC staff members in detention is a distraction any emerging democracy would want to avoid. Nevertheless, the apology and statement of regret from the ICC was surely spurred by Libyan authorities as well. They have consistently voiced disappointment and sought to counter international perceptions of the country as lawless and unstable. Having the Court reaffirm that Libya is a legitimate and lawful government with legitimate grievances fits into these efforts.

The ICC never seemed to have much leverage in this case. Moreover, the Court was largely left hung out to dry by the international community. Statements by the UN Security Council had the political weight of a feather and it appears the Council actually did nothing else to press Libya. Of course, this is unsurprising. The Security Council has generally been disinterested in the ICC’s mandate in Libya (see here and here). The one area of leverage the Court had was with issuing their statement of regret. Over at Opinio Juris, Kevin Jon Heller has opined about the potential consequences of the Court taking the blame for their staff’s predicament. Indeed, the potential consequences seem grim. But with barely a modicum of international support and having been put on the spot by Australian Foreign Minister Bob Carr, I’m not sure the Court had any choice but to issue an apology. Importantly, however, al-Jehani’s statement that Taylor had diplomatic immunity may have been a small victory for, and perhaps even demanded by, the Court. Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC | Tagged , , , , , | 15 Comments