Failed States and International Judicial Intervention

Posted on June 20, 2012 by Alana Tiemessen

Image (c) Fund For Peace

The new Failed States Index, published yearly by Foreign Policy magazine and The Fund for Peace, is just out and it comes as no surprise that most states with cases at the International Criminal Court are highly ranked as “failed.”  The degree to which a stated is failed is determined by a compilation of 12 indicator scores. Here, I will put aside my skepticism that “state failure” has become a conceptual garbage can to collectivize the world’s governance problems and speculate about the nature and relevance of a correlation between failed states and international judicial intervention.

First, in some ways, the correlation seems obvious. As a “court of last resort,” the intentions of those who designed and continue to support the ICC will argue that it is meant to fill impunity gaps in states that have weakened to the point where atrocities become possible and the rule of law is flawed or entirely absent. Therefore, the ICC will intervene within its legal jurisdiction and consider situations and cases admissible if a) there are grave and mass human rights violations and b) the relevant authorities prove incapable and unwilling to pursue genuine accountability. Three indicators in the failed states index are most relevant to these criteria and states with cases at the ICC have relatively to exceptionally high scores on them:

Former ICC Chief Prosecutor, Luis Moreno-Ocampo, visits a massacre site in the DRC.
Photo (c) Sheila Velez, White Pine Pictures

Vengeance Seeking Group Grievance. This indicator includes a “history of aggrieved communal groups citing injustices of the past” and a “pattern of atrocities committed with impunity against communal groups.”

These factors make atrocities more likely and aptly characterize most of the conflict situations among ICC states, particularly those with an ethnic dimension and where electoral contests spark violent protests. Many of the state failure indicators are consistent causes and consequences of atrocities but, of course, not all failed states are home to such mass human rights violations.

Legitimacy of the State. This indicator includes “resistance of ruling elites to transparency, accountability and political representation…”

The Court’s mandate puts pressure on ruling elites to mete out accountability domestically or find themselves in The Hague alongside their rivals.  In practice, investigations and prosecutions are imbalanced in this regard. For example, ruling elites in DRC, Uganda, Cote d’Ivoire have successfully resisted the pressure for domestic trials but have not been called to account at the ICC for their own alleged crimes.

Violation of Human Rights and Rule of Law. This indicator includes the “emergence of authoritarian, dictatorial or military rule in which constitutional and democratic institutions and processes are suspended or manipulated” and the “outbreak of politically inspired (as opposed to criminal) violence against innocent civilians.”

As alluded to above, the ICC can and will only intervene selectively. Impunity gaps and the absence of rule of law make atrocities and human rights violations possible and necessitate international judicial intervention.

(The Fund for Peace provides more elements of each indicator here.) Continue reading →

Posted in Central African Republic (CAR), Complementarity, Democratic Republic of Congo, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Kenya, Libya, Sudan, Uganda | Tagged | 1 Comment

A Touching Moment with Aung San Suu Kyi

Posted on June 19, 2012 by Mark Kersten

I had the once in a lifetime opportunity today to see Aung San Suu Kyi, the Burmese democracy and human rights champion. Suu Kyi participated in a roundtable on the rule of law at the LSE and was her typical, passionate and eloquent self. I am pretty certain I don’t have to explain or detail her life to readers of JiC. For many (including myself) she is on par with remarkable human beings like the Dalai Lama, Nelson Mandela and Martin Luther King.

It isn’t everyday that the opportunity arises to see someone of the stature and humility of Aung San Suu Kyi. It is even more rare to see them on their birthday. But to everyone’s surprise and joy, Suu Kyi’s was celebrating her 67th birthday today. The one thousand or so people who came to see her joined in a raucous chorus of ‘Happy Birthday’. Making the event only more moving was the fact, well-known to the audience, that Suu Kyi has enjoyed far, far too few birthdays in freedom after two decades of house arrest.

While it’s far from stunning quality, I managed to capture this touching (and at one point, even funny!) moment and thought readers might enjoy seeing it too.

Posted in Burma/Myanmar, Film, Human Rights, Justice | Tagged | Leave a comment

A Few Thoughts on ‘Nuremberg: Its Lessons for Today’

Posted on June 18, 2012 by Mark Kersten

Over the weekend, I had the opportunity to see a screening of the Schulberg/Waletzky restoration of the film, Nuremberg – Its Lessons for Today. The film provides a fascinating insight into the infamous International Military Tribunal, which was held from 1945-1946 in Nuremberg, Bavaria. Many readers will surely have seen brief clips and stills from the movie whose images have, in many ways, shaped the memory of WWII and the Holocaust itself. Here’s the blurb from the film’s site:

One of the greatest courtroom dramas in history, Nuremberg: Its Lesson For Today shows how the four allied prosecution teams — from the United States, Great Britain, France, and the Soviet Union — built their case against the top Nazi leaders. As documented in the film, the trial established the “Nuremberg principles,” laying the groundwork for all subsequent prosecutions, anywhere in the world, for crimes against the peace, war crimes, crimes against humanity, and genocide…

…The original film was written and directed by Stuart Schulberg, and edited by Joseph Zigman, under the aegis of Pare Lorentz, chief of Film/Theatre/Music at the U.S. War Department, and completed by Schulberg in 1948, under the aegis of Eric Pommer, chief of the Motion Picture Branch of U.S. Military Government in Berlin.

The film makes extensive use of footage from The Nazi Plan and Nazi Concentration Camps, evidentiary films compiled under the supervision of Budd Schulberg, that were presented at the Nuremberg trial.

If you have the chance to see a screening of the film, I encourage you to do so. If you’re lucky, producer Sandra Schulberg (whose father Stuart wrote and directed the film) will be there to answer questions and give insights into the film’s creation. I thought I would share three particularly fascinating tid-bits of information Schulberg shared with the audience. While this site is dedicated to the politics of international criminal justice, the examples clearly demonstrate that there is much to be said about the politics of recording and depicting international criminal justice.

For decades after it was made, the film wasn’t shown in the US. Many believe this was because by the late 1940s, when the film would have been screened in America, the US government did not want to be seen to be cooperating with the USSR (which it did at the Nuremberg tribunal). In the context of the emerging Cold War and the onset of the red scare, showing a film which depicted the US and the USSR as allies working together as the keepers of international law would have gone against the prevailing political winds in America of the USSR as enemy number one. Others believe that Konrad Adenauer, the first democratically elected German Chancellor post-WWII, made a personal plea to the US not to show the film given that it does a particularly poor job distinguishing between Nazis and Germans. Still others maintain that the film wasn’t shown as a result of opposition from high-level US military officials who had opposed the trials from their conception because they prosecuted military officers. Continue reading →

Posted in Film, Holocaust, Nuremberg, Nuremberg Trials | Leave a comment

Changing of the Guard: Bensouda In, Ocampo Out

Posted on June 15, 2012 by Mark Kersten

Former Nuremberg Tribunal Prosecutor, Ben Ferencz and new ICC Prosecutor, Fatou Bensouda (Photo: CICC/Solal Gaillard)

Fatou Bensouda has officially replaced Luis Moreno-Ocampo (who is off to FIFA!) as the Chief Prosecutor of the International Criminal Court. With dozens of writers and observers scrambling to publish their thoughts on what Bensouda’s tenure will and should focus on, I figured I would add a collection of thoughts as well.

African Savior of African-ICC Relations?

There is no point in denying that Bensouda became Prosecutor in large part because she is African. Very early in the process of selecting a new Prosecutor, the African Union (AU) insisted that an African had to be selected. The AU subsequently met little to no resistance and endorsed Bensouda for the job last year. With that said, Bensouda was, in many ways, the perfect candidate. Her resume is sterling, allowing her – and her supporters – to rightfully argue that her record made her an ideal Prosecutor. She thus satisfied both the merit-based and political criteria for the position. Moreover, the sense of continuity she brings to the position after being Moreno-Ocampo’s Deputy Prosecutor may turn out to be a subtle but crucial aspect of her selection.

Yet, it would be wrong to suggest that just because Bensouda is African she will immediately restore relations with those African states who have increasingly criticized the Court for its perceived bias in Africa. As I have argued elsewhere, I believe that the animosity of some African states toward the ICC is a result of the Court’s increasingly close relationship with key powers on the UN Security Council, a relationship that has reaffirmed rather than transcended the global power asymmetries that African states have long sought to undermine and make more equal. It is not surprising that the most vociferous critiques of the Court have come in the wake of UN Security Council referrals of Sudan and Libya to the ICC (as well as the ICC’s investigations in Kenya, which the Prosecutor opened on his own volition). After all, who wouldn’t be disappointed and angered with a Court that appears more interested in catering to the interests of a powerful non-member state, the US, than the thirty-plus member states from Africa without whom the Court would quickly slip into irrelevance?

Of course, this doesn’t mean that the fact that Bensouda is African won’t have important implications. It will, especially in how the Court is perceived. Bensouda’s heritage will undoubtedly make it more awkward and difficult for members of the AU to say the Court is against Africa. After all, she is their selection!

Moreover, we are likely to see a diplomatic dance between the African Union and Bensouda for the next little while as African states get a feel for her and the direction she intends to take the Court. Rather remarkably, Bensouda was invited to the African Union summit in July, already indicating a level of engagement that was impossible in the last years of Moreno-Ocampo’s tenure.

In short, there is an opportunity to improve relations between the Court and African states, but Bensouda shouldn’t be seen as a silver bullet in this context. Whether the relationship is truly transformed will depend on what Bensouda does – and not who she is or where she is from. As the chairman of the Nigerian national human rights commission, Chidi Odinkalu, exclaimed:

“Will she wave a magic wand and cure all the difficulties that exist at the ICC at the moment? No. Can she bring positive disposition over time to transforming the polluted atmosphere in which the institution has been operating in Africa? Absolutely.”

Stand up to the Security Council

One thing that Bensouda could do that I believe has the potential to transform relations between the ICC and African states, as well as boost the legitimacy of the Court, is to be tougher on the Security Council. The Council has instrumentalized the Court, nowhere so clearly as in the case of Libya. It remains a distinct possibility that the intervention in Libya will leave the ICC with a large bill, no one in the dock, and a debilitating controversy over ICC staff members.

Will the ICC, under Bensouda’s leadership, stand up to key powers on the UN Security Council?

Of course, standing up to the Security Council is no easy task. After all, the Court clearly gets a sense of legitimacy from gaining jurisdiction into non-member states. As I have written before, the Court is stuck between a rock and hard place in terms of its relationship to the Council. But being more vocal about its disappointment in the Council’s lack of political and material support for the Court’s mandate would be a healthy start. Some, including the former President of the ICC’s Assembly of States Parties, have even suggested that if the Council were to refer another situation to the Court such as Syria, the ICC might do well to simply say: “no thank you.”

On this matter, I have my doubts that the Office of the Prosecutor is ready to take a strong stance. Bensouda recently said that she views the ICC as a “tool” of the Responsibility to Protect (R2P) which, of course, can only be invoked by the UN Security Council.

Sexual and Gender Crimes

It has been widely suggested that investigating and prosecuting gender and sex-related crimes will be a major focus of Bensouda’s tenure. This would be a welcome development. Gender and sex crimes have largely escaped attention at the ICC. Earlier this year, she discussed her views on the matter: Continue reading →

Posted in African Union (AU), Fatou Bensouda, Human Rights, ICC Prosecutor, International Criminal Court (ICC) | 1 Comment

ICC Staff Locked up in Libya: An Unfolding Debacle

Posted on June 12, 2012 by Mark Kersten
Zintan brigade

A member of the Zintan Martyr Brigade in September, 2011 (Photo: Eric Feferberg/AFP/Getty Images)

It isn’t getting any better for anyone involved. Many will already be aware of the arrest of four ICC staff by a militia in Zintan, Libya, on allegations of spying. The controversy it spawned revolves around Melinda Taylor, an Australian defense lawyer at the ICC who, it is alleged, passed on “dangerous” documents and was found with spying devices when she met with Saif al-Islam Gaddafi last week in a visit approved by Libyan authorities. Her interpreter, Lebanese-born Helene Assaf, is being considered an “accomplice”. Two other ICC staff members, a Spaniard and a Russian, are voluntarily staying with Taylor and Assaf, an act of remarkable solidarity and integrity.

Yesterday, the team was transferred from a guest-house in Zintan to a Libyan prison, on the behest of the Libyan Prosecutor General, for a forty-five day detention period. It is not clear which prison they are being held at, although AFP journalist Maude Brulard told me earlier that, according to members of the militia, the prison is under control of Libya’s defense ministry.

After arriving on Sunday, officials from the ICC were finally granted a visit by Libyan authorities to the four staff members in Zintan today. However, they found themselves unable to reach Zintan after being held up at a checkpoint. According to Marie-Louise Gumuchian,

In scenes that summed up the chaos and instability in Libya since a revolt last year ousted and killed Gaddafi, when the ICC delegation arrived at a checkpoint outside Zintan, militiamen told them no one was being allowed in because of clashes with a rival tribe nearby.

The 7-vehicle convoy parked up near the checkpoint but over an hour after arriving they were still waiting to go into Zintan, even though the visit had been approved by authorities in the capital, Tripoli…

…The clashes were happening about 50 km (30 miles) south of Zintan, well away from the route being used by the ICC delegation.

“I believe there is a problem, fighting. We weren’t told, we were just given orders not to allow any cars in,” said one man, dressed in military fatigues and carrying a Kalashnikov rifle at the checkpoint.

At the same time, a particularly controversial statement was made by NTC spokesperson, Mohammed al-Hareizi, in an interview with the Australian Broadcasting Corporation (ABC). Al-Hareizi suggested that Taylor was being held, not for any particular violation, but because the government believed that they could bargain her freedom for knowledge of Mohammed Ismail’s whereabouts. Ismail is considered a close friend, confidante and, some say, “henchman“, of Saif. It has been alleged that Taylor gave “coded” letters from Ismail to Saif during their meeting. Al-Hareizi is quoted as saying:

“We want this guy. It is very important to catch this guy because this guy is very, very, very danger(ous) for us…

…We don’t have anything against this woman. Just we need some information from her, after that she will be free.”

This is particularly damning evidence against any possible case that Libya has in detaining and investigating Taylor and Assaf. If al-Hareizi’s words reflect the attitude of the NTC, then it is clear that Taylor and Assaf’s arrest have nothing to do with the law or justice and everything to do with leveraging the freedom of ICC staff for political gain. Incredibly, this was admitted while Libya is attempting to convince ICC judges that it is able and willing to try Saif domestically. As I argued earlier this week, that seems an increasingly remote possibility. Of course, holding and investigating the two ICC staff members is problematic regardless of the NTC’s or the Zintani militia’s intentions behind doing so.

Melinda Taylor ICC

Melinda Taylor, who was detained with three other ICC staff members while visiting Saif al-Islam Gaddafi last week.

Like others, I am flabbergasted with how quickly some have suggested that the ICC team is guilty and that, if they broke the law, they should be investigated in Libya. This is hugely problematic. First of all, while the allegations are certainly serious, no real evidence has been presented that any laws were actually broken. We simply do not know the truth about what transpired.  Continue reading →

Posted in Defense Counsel, International Criminal Court (ICC), Libya, Libya and the ICC | Tagged , , , | 7 Comments

The End of Amnesty: Whither “Peace Versus Justice” in Northern Uganda?

Posted on June 12, 2012 by Mark Kersten
Former LRA rebel

A former member of the LRA who escaped a year and four months after being abducted in 2008 (Photo: Marcus Bleasdale)

I couldn’t resist contributing to the discussion that Mark Schenkel has begun with his fantastic post on the expiration of northern Uganda’s Amnesty Act. Readers shouldn’t let the fact that the story hasn’t been widely covered fool them into believing it isn’t of tremendous importance or that its implications aren’t significant. As Mark has shown, it is and they are.

I wanted to highlight just how remarkable it is that not only has the expiration of Part 2 of the Amnesty Act come as a surprise to many observers, but it has subsequently been met with barely a murmur – almost as if it wasn’t all that important. This is noteworthy in its own right. When the ICC intervened in northern Uganda in 2004 and subsequently issued arrest warrants for LRA leader Joseph Kony and four other senior rebel commanders, the “peace versus justice” floodgates opened. The debate was pervasive and polarizing. Much of it revolved around the over-simplified but potent question of whether rebels should be forgiven via amnesty or punished via the ICC. A legion of local and international voices declared that peace could only be achieved if LRA rebels could be guaranteed that they would not be prosecuted if they left the bush. This view was premised on fears that the threat of prosecuting rebels would leave them with no option but to continue fighting. They consequently called on the ICC to back off and give peace through forgiveness a chance. Of course, the ICC warrants stayed in place. However, thousands of LRA combatants received amnesty certificates following their defection from the rebel ranks.

Just years later, the “peace versus justice” debate has virtually disappeared. Take, for example, the prosecution of Thomas Kwoyelo, the former senior LRA commander who was detained by the Ugandan forces (UPDF) in 2009. True, the controversy around Kwoyelo’s prosecution  has concerned whether he should be issued an amnesty. But the debate has almost exclusively been a legal debate, centering around whether or not he is eligible to receive an amnesty under Ugandan law (answer: absolutely) and whether receiving an amnesty is in contravention of Uganda’s international obligations (answer: I don’t think so). What the debate hasn’t been about is whether granting Kwoyelo amnesty would risk undermining the progress northern Uganda has made towards order and stability.

Charles Banya, a former LRA rebel (Photo: Marcus Perkins)

Consider too the example of Caesar Achellam, the LRA rebel commander who was recently “captured” by Ugandan military forces. Again, there exists no palpable concern that arresting Achellam and possibly putting him on trial jeopardizes peace in northern Uganda. Interestingly, the Achellam story has received significantly more international coverage than the Kwoyelo trial. But it received attention primarily because of Invisible Children’s ‘KONY2012’ campaign. As I noted previously, virtually every story about Achellam’s “capture” cited KONY2012 and the now world-famous “hunt for Joseph Kony”.

Moreover, in my experience interviewing individuals involved in the northern Ugandan peace process, including government ministers, religious and civil society leaders, as well as delegates from the peace talks, there remains almost little to no concern that the ICC or any form of trial justice risks undermining peace. In short, it really does appear that northern Uganda has moved beyond the “peace versus justice” debate. Continue reading →

Posted in Amnesty, Peace Processes, Transitional Justice, Uganda | Tagged | Leave a comment

The Path Towards Prosecution: An End to Amnesty in Northern Uganda

Posted on June 11, 2012 by Mark Kersten

Mark Schenkel joins us for this insightful and thought-provoking guest-post on the expiry of Uganda’s Amnesty Act and its implications for transitional justice in northern Uganda. Mark is a Dutch journalist based in Kampala, Uganda. He covers developments in East Africa for various media in The Netherlands and Belgium. Enjoy!

Amnesty Commission

A pamphlet from the Ugandan Amnesty Commission encouraging rebels to defect from the LRA and return home in exchange for amnesty (Photo: Resolve)

The recent expiry of Uganda’s long-running amnesty provision for armed rebels has taken quite a number of observers by surprise. On May 23rd, the centerpiece of Uganda’s twelve year old Amnesty Act, whichprovides blanket amnesty to anyone who denounces armed rebellion, lapsed despite media reports and statements by politicians suggesting that the entire Act was going to be renewed. The expiry of the essential part of the Act clearly has far-reaching implications for the debate about whether to forgive or prosecute members of the notorious Lord’s Resistance Army (LRA).  

Uganda has taken a new and major step on the path away from amnesty and towards prosecution of LRA rebels. But first let us look at how the confusion and surprisement surrounding the Amnesty Act’s partial ending came about.  

The expiry of Part 2 of the Act – the one dealing with the actual amnesty – was reported on Monday May 28th in the government-owned newspaper New Vision. It was a brief piece, on page 3. As it turned out, minister of Internal Affairs Hilary Onek had used his mandate to renew only the three other parts of the Act, dealing mainly with resettlement and re-integration of former rebels. The various elements of the Act, which was put in place in 2000 during the height of the LRA insurgency to encourage rebels to lay down their weapons, can be renewed every six months.  

The independent newspaper, Daily Monitor, apparently wasn’t aware of the developments yet. On Tuesday the 29th, it still carried a story about whether or not Ceaser Acellam is eligible for amnesty. Acellam, a high-ranking LRA-commander, had fallen into the hands of the Ugandan army in mid-May (some sources say Acellam surrendered and wasn’t ‘captured’, as the army insists). The Monitor didn’t refer to the lapse of Part 2 of the Amnesty Act the week before, whereas the lapse’s logical consequence is that Acellam is in no way eligible for amnesty (it has, to my knowledge, nowhere been officially declared that Acellam had applied for amnesty before the lapse of Part 2). Only on Sunday, June 3rd did the Monitor report about it. In the meantime, Uganda Radio Network had caught up on the news, just like several foreign media (Radio Netherlands Worldwide and the UN-subsidized IRIN).  

Truth be told, initially I myself thought that the Amnesty Act would be renewed in its entirity. Journalists, legal observers, members of Uganda’s general public – most people were under the same impression. One possible explanation is that back on April 16th, Deputy Speaker of Parliament Jacob Oulanyah was quoted as saying that the Amnesty Act was going to be renewed. Oulanyah spoke in the Northern Ugandan town of Gulu, in front of thousands of people who had showed up for the public screening of KONY2012.  

Another explanation for the widespread expectation that the Act was going to be renewed may lay in the government’s decision to let part of the Act lapse without parliamentary approval – technically, this approval is not required. The decision wasn’t debated among the Ugandan people’s representatives. In its own statement on the website of the Ugandan media centre – posted several days after the expiry of the Act’s part 2 – the government didn’t explicitly say that amnesty is no longer in existence.

Recently “captured” senior LRA commander, Caesar Achellam (Photo: AFP)

Lastly, an explanation may be that during the days before part 2 expired, the Directorate of Public Prosecution (DPP), the Amnesty Commission as well as lawyers were publicly debating Ceaser Acellam’s eligibility for amnesty. When I contacted them after the expiry had come to light, both the DPP and the Amnesty Commission said that at the time of their public comments, no decision on the (partial) renewal of the Amnesty Act had yet been made. They simply discussed Acellam’s situation under the then-applicable rules – meaning an Amnesty Act still intact. Continue reading →

Posted in Amnesty, Kwoyelo Trial, Transitional Justice, Uganda | Tagged , | 3 Comments

Tinker, Tailor, Lawyer: ICC Staff Arrested in Libya for “Spying”

Posted on June 10, 2012 by Mark Kersten
Saif Gaddafi Zintan

Saif al-Islam Gaddafi, not long after his arrest by Zintani rebels in November, 2011

I really hope John le Carré has read news of the arrest of four ICC staff members in Zintan while attempting to visit Saif al-Islam Gaddafi. A delegation, which includes an Australian lawyer, Melinda Taylor (media reports have not named any other members of the delegation), were detained while attempting to provide Saif with information and documents pertaining to his defense against charges of war crimes for his role in the Libya’s revolution. The team had been invited by the Libyan General Prosecutor’s office to visit Saif. When the delegation went to visit Saif, however, everything went pear-shaped.

A commander from the Zintan brigade, Ajmi al-Atiri, described what appeared to be an intelligence operation against the ICC staff:

“We tricked the ICC team by presenting them with one of our men who we told them was deaf and old and illiterate but he is actually a wise man who can speak four languages including English.

That is when we found out the lawyer had a letter written in English that they wanted him to sign admitting that there is no law in Libya and asking to be transferred to the ICC. When we searched the woman we found she had a letter from [close confidante] Mohammed Ismail for Saif and another one written back to Ismail.

They also took a number of empty papers with his signature on it, and he gave them a number of letters written by Saif for Mohammed Ismail. Before the delegation entered the meeting with Saif, we inspected them and discovered spying and recording materials on one (member) of the delegation.

The case is a homeland security issue…The lawyer should have presented the material to the prosecutor-general’s office before taking it into the suspect.

Saif would only be allowed private meetings with a lawyer if he had appointed one for himself, but in this case the ICC appointed this lawyer for him and so has no right to sit with Saif privately.”

 

The validity – or lack thereof – of these rather serious allegations remain unclear. For one, I’m very curious what “spying and recording materials” were confiscated. The use of cameras and tape recorders, for example, should not be an issue when meeting with defendants. It has also been suggested, but not confirmed, that Taylor smuggled the allegedly “dangerous” documents in her bra. Media outlets have not picked up on it, but on Twitter #ICCBra has been a trending topic. Continue reading →

Posted in Libya, Libya and the ICC | Tagged , | 4 Comments

A Disturbing Tale: Canada’s Human Rights Record and Reputation

Posted on June 7, 2012 by Mark Kersten
Canada human rights

(Photo: DJKing / Flickr)

This past week the United Nations Committee Against Torture released a report into Canada’s human rights record. It wasn’t pretty. The Committee suggested that Canada was complicit in the torture of Canadian citizens post-9/11 and expressed concern at the “apparent reluctance on part of the State party [Canada] to protect rights of all Canadians detained in other countries.” Shocking, right? Not really – not if we look closely at Canada’s recent behaviour with regards to international justice and human rights.

I should disclaim that, as a proud Canadian, this is a subject I feel very personal about. My frustrations may boil over. It is from a profound sense of patriotism and pride in Canada that I am so disappointed, sometimes infuriated, and certainly humiliated by Canada’s record.

Whenever people ask why I am proud to be Canadian, I have a ready-made answer, developed over years from practice as well as hearing why people from around the world respect Canada. I tell them that Canada is a truly multi-cultural country which initiated the creation of peacekeepers, mediated the Suez Crisis, was at the vanguard of creating the Responsibility to Protect and played a leading role in the creation of the International Criminal Court. It is a medium-power that punches well above its weight. It is a moral power that people depend upon to be in the corner of human rights and international justice. So what happened?

Not unlike other Western states, Canada got tangled in the political and ethical dilemmas characteristic of post-911 national and international security. It struggled, in particular, to balance the human and civil rights of its citizens with the prerogatives of anti-terrorist and national security measures. On a number of occasions the government decided that there was nothing to balance at all; security would come at the expense of rights. The results were disastrous. Here are but a few examples that illustrate Canada’s troubling record on respecting the civil and human rights of its citizens post 9/11.

Maher Arar: To Syria, without love – or rights

In 2002, Canadian citizen Maher Arar was deported to Syria while he was travelling through the US on his way back to Canada. US authorities believed he had terrorist links despite insufficient evidence to lay charges. The result was Arar’s extraordinary rendition to Syria where he was subsequently interrogated and tortured. While in detention, Arar maintained that he was forced to confess that he attended an al-Qaeda training camp in Afghanistan. Arar remained in detention for almost a year. He subsequently and successfully sued the Canadian government for $10 million.

Omar Khadr at his US military war crimes commission trial in Guantanamo Bay

Omar Khadr at his US military war crimes commission trial in Guantanamo Bay (Sketch: Janet Hamlin / AFP / Getty Images)

Omar Khadr: Canada’s Child in Guantanamo

In 2003, Omar Khadr, another Canadian citizen, was detained after allegedly killing an American medic in Afghanistan. At the time of his arrest he was 15 years old. He was then sent to the notorious American detention facility in Guantanamo Bay and has been there ever since. His detention has made a mockery of his right to a speedy trial, to due process, his civil rights as a Canadian, his human rights and, most obviously, international law, given that he is a child combatant. The UN Panel referred to “Canadian officials’ complicity in the human rights violation of Omar Khadr while detained at Guantanamo Bay.”

Even with President Obama’s plan to move detainees out of Guantanamo, Canada refused to repatriate Khadr. It has even been reported that the US had sought a Canadian request to have Khadr sent back to Canada.

Khadr eventually pleaded guilty to murder in October 2010. Part of the plea deal was an agreement that Khadr would remain in Guantanamo Bay for another year before being transferred to Canada. Incredibly, however, he remains in Guantanamo and it is unclear when Khadr, once described by Radhika Coomaraswamy, UN secretary-general’s special representative for children and armed conflict, as representing the “classic child soldier narrative” will be repatriated.

Abousfian Abdelrazik: Stuck in Sudan

The story of Abousfian Abdelrazik may read like a cruel joke. In 2003, Abdelrazik was arrested in Sudan under suspicion of being linked to al-Qaeda and Osama bin Laden. Despite the suspicions, no charges were ever placed on Abdelrazik by any nation, while the CSIS and the RCMP cleared him of any wrong-doing. Because he has been on an international “no-fly” lists which prevented him from taking conventional commercial flights, Abdelrazik was forced to stay in Sudan. The Sudanese government subsequently offered to fly him to Canada on a private Sudanese plane. Canada refused the offer. Fearing for his safety, Abdelrazik took refuge in the Canadian embassy in Sudan in April 2008. The Canadian government called his situation “temporary”, but he stayed for over a year. In total, Abdelrazik spent six years in forced exile in Sudan. Continue reading →

Posted in Afghanistan, Canada, Extraordinary Rendition, Guantanamo Bay, International Criminal Court (ICC), Justice, Torture, War crimes | Tagged , , , | 2 Comments

Politics, a Poison for Justice?

Posted on June 5, 2012 by Mark Kersten

Malawi’s new President, Joyce Banda, with UN Secretary General, Ban Ki-moon (Photo: Aos Gumulira / AFP / Getty Images)

Richard Dicker, the director of Human Rights Watch recently wrote an interesting op-ed in the New York Times, provocatively entitled ‘A Flawed Court in Need of Credibility‘.

Ten years ago, when the treaty creating the International Criminal Court took effect, the prospect of holding heads of state and powerful warlords to account for mass slaughter seemed like science fiction.

Today the signs carried by Syrian protesters demanding “Assad to The Hague” are powerful testimony that the court is making its presence felt.

But as the I.C.C.’s influence grows, its promise of impartial justice for the world’s worst crimes is at risk of being undercut by international politics.

Dicker’s piece succinctly evokes an ongoing debate about the relationship between politics and international criminal justice. There is a prevalent belief amongst jurists, lawyers and advocates of international criminal justice that politics is the enemy of justice. Justice, to them, requires a complete separation from political considerations. Politics and justice are like oil and water. Justice must be neutral, black-and-white, and apolitical. On the other hand, many negotiators, diplomats and scholars of international relations argue that it is naive, if not simply ridiculous, to suggest that international justice can ever be apolitical. After all, international justice will always depend on states which remain the primary political unit in the international sphere. Moreover, justice will inevitably be selective and reflect the interests of powerful stakeholder states.

Dicker, is of course, right to point out the ever-present dangers of powerful states manipulating and instrumentalizing the ICC. As readers will know, I believe that the cozy relationship between the realpolitik of the UN Security Council and the ICC poses dangers for the legitimacy of the Court. But realpolitik is not all that “international politics” is or has to be.

The problem with the debate, it seems to me, is altogether a different issue: it doesn’t allow for any space within which to argue that international criminal justice can be good politics and that good politics can guide international criminal justice. Proponents of international criminal justice shouldn’t aim to talk a separation between politics and justice into reality but rather endorse the convergence of political interests with the interests of justice, to make the political interests of states in line with effectively and appropriately responding to atrocities and combating impunity. In other words, international criminal justice is a political project; there is simply no escaping this fact. But advocates of the project don’t need to fear international politics. Rather, they should work to transform it into good politics.

Consider the example of Malawi. Just last year Malawi, a member-state of the ICC, drew the ire of the Court for hosting Sudanese President Omar al-Bashir in defiance of the ICC which had issued an arrest warrant against Bashir for his alleged role in the commission of genocide, crimes against humanity and war crimes in Darfur. As a result, last December the ICC referred Malawi to the UN Security Council. Continue reading →

Posted in International Criminal Court (ICC), International Law, Malawi, Sudan | Tagged | 12 Comments