Charles Taylor Verdict: Some Thoughts and Controversies

Posted on April 28, 2012 by Mark Kersten
Charles Taylor Liberia

Charles Taylor is the second head of state to be convicted at an international criminal tribunal.

The triumphant and celebratory rhetoric is in full bloom. Many have claimed that the guilty verdict for former Liberian President Charles Taylor was a huge victory, a milestone in the fight against impunity and an unprecedented achievement for international justice and human rights.

To be sure, the Taylor verdict is a significant moment. There is no doubt that he was responsible for terrible atrocities (see here for a backgrounder of the trial) and his imprisonment, likely for the rest of his life, is welcome. Further, Taylor is only the second-ever head of state to be convicted by an international criminal tribunal. The first, Karl Dönitz, was convicted at the Nuremberg Trials. He had been the delegated leader of Nazi Germany after Adolf Hitler had committed suicide and “ruled” the Third Reich for about 20 days.

Nevertheless, the Taylor verdict exposes a number of ongoing challenges and controversies in the practice and pursuit of international criminal justice.

The Verdict

The reading of the verdict, by the Samoan Judge Richard Lussick, was as long as it was rich. In the end, the judges found that Taylor was guilty of “aiding and abetting” the commission of all the 11 charges he faced in Sierra Leone. Aiding and abetting is a rather precarious charge in the context of international armed conflict. As my friend and colleague, Joe Hoover, pointed out: how many world leaders haven’t aided and abetted (directly or indirectly) the commission of international crimes?

Perhaps just important as what Taylor was convicted of is what he wasn’t. The judges rejected the Prosecution’s case that Taylor held direct individual responsibility for any of the charges in the indictment or that he had been involved in a “Joint Criminal Enterprise” to commit war crimes or crimes against humanity. A chorus of rights groups are claiming this is a victory for international justice and Sierra Leone. Indeed, it may be and it is important not to discount that, for many, it matters more that Taylor is locked away rather than what he is locked away for. But this seems like a minimal victory, if not a defeat, for the Prosecution. Kevin Jon Heller, for example, has described the verdict as “a colossal victory for Taylor” and “a stunning rebuke to the prosecution.”

Courtenay Griffiths Charles Taylor

Lead defense counsel for Taylor, Courtenay Griffiths, during proceedings at the Special Court for Sierra Leone

In Defense of the Defense

A few months ago I had the opportunity to meet Taylor’s lead Defense counsel, Courtenay Griffiths. I disagreed with much of what he claimed about the state of international criminal law. But Griffiths spoke eloquently and persuasively about the role of defense lawyers in the project that is international criminal justice.

Regardless of what others may believe, Griffiths trusts in the idea of international criminal justice. He believes, however that it remains fundamentally political, that the politics of international criminal justice aren’t ‘good politics’, and that the justice it produces is far too selective. Critically, he claimed that he sees his role, and presumably that of other defense lawyers, not as undermining the work of tribunals but as making international criminal law work better and move closer to the vision of universal and unbiased justice.

It is perhaps inevitable that international criminal courts and tribunals have a predisposition in favour of prosecutors rather than the Defense. After all, it is the “worst” and “most responsible” international criminals that end up in the dock. But international justice will not, and cannot, be served if international tribunals are set up to do nothing more than convict alleged perpetrators of war crimes, crimes against humanity and genocide. It is not always going to be pretty or comfortable, but the legal defense of people like Taylor is vital to the project of international criminal justice. Defense lawyers, like Griffiths are often vilified for being “the Devil’s advocate”, heartless and immoral. But the reality is that they play an indispensable role in the functioning and progress of international justice.

Charles Taylor's victims

Victims of the conflict in Sierra Leone were often maimed and mutilated. (Photo: Malcolm Linton / Liaison)

Is Justice Delayed, Justice Denied?

Proponents of international criminal justice often exclaim that “justice delayed is justice denied”. Every day that justice isn’t “delivered”, as a result of undue delays, is another day of injustice for victims and survivors.

In this context, it is important to note that the Taylor trial was an arduous and drama-filled affair. When Taylor first arrived at the Court five years ago, he boycotted proceedings. In August 2007, the trial was postponed for almost half a year. The Defense regularly filed motions late which led to additional hearings about whether they were or were not in contempt of court. The Prosecution showcased a ‘star witness’, model Naomi Campbell, ostensibly to bring attention to the trial. A judge left mid-trial to take up a job at the International Court of Justice. The Defense twice walked out on the trial and, earlier this year, the Defense asked to reopen the case. Meanwhile, the SCSL consistently struggled with funding, requiring a number of “bail-outs” from donor states to ensure the trial reached a conclusion. When I visited in 2010, a staff member told me that they had three months of funding left and, if they couldn’t secure more, they would be forced to release Taylor. While it is unlikely that Taylor would actually ever have been released, all of these developments contributed to prolonging the trial. Continue reading →

Posted in Justice, Liberia, Sierra Leone, Special Court for SIerra Leone (SCSL), Transitional Justice | Tagged , , | 1 Comment

The Taylor Case in Context

Posted on April 26, 2012 by Patrick Wegner

Impressions from present day Sierra Leone (Finbarr O'Reilly/Reuters)

Six years after being arrested in his exile in Nigeria former Liberian President Charles Taylor has been convicted on 11 charges of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL) today. The court is a hybrid institution set up jointly by the Government of Sierra Leone and the United Nations and is staffed with both international and Sierra Leonean lawyers and judges. Its seat is in Freetown, the capital of Sierra Leone, but the Taylor case was moved to the Hague for security reasons. Because the SCSL was temporarily using the premises of the International Criminal Court (ICC), news media in the past often wrongly reported that Taylor was being tried at the ICC. JiC will post an article on the legal aspects of the case and the verdict this weekend, this post will focus on the context of the Taylor case and what it means for justice in conflicts more broadly.

Charles Taylor was essentially convicted for supporting the Sierra Leonean rebel group Revolutionary United Front (RUF) that killed tens of thousands during Sierra Leones civil war between 1991 and 2002. Charles Taylor received blood diamonds from the RUF for his support which he in turn used for buying arms used to fuel the civil war in the neighbouring state. The Taylor case is not only a historical event because it led to the first conviction of a former head of state in 66 years (the head of state of Nazi Germany became the first head of state to be convicted by an international court or tribunal at the Nuremberg Trials in 1946), it might also have repercussions for how justice will be dispensed in conflict contexts in the future.

Charles Taylor in the SCSL courtroom in the Hague (Reuters)

When the SCSL started investigating Taylors crimes, Liberia had its own civil war at its hands. The Taylor case is thus an early example of international criminal investigations in ongoing conflicts. Indeed, the arrest warrant for President Taylor was made public when he was travelling to Ghana for peace talks, a move that was widely criticised at the time for complicating the peace process in Liberia. Taylor later accepted exile in Nigeria in 2003 under heavy US pressure. He lived there in a seaside villa for three years until the newly elected President of Liberia, Ellen Johnson Sirleaf, demanded his extradition in March 2006. Taylor tried to flee the country but was stopped at the border to Cameroon with significant amounts of cash and heroin.

The Taylor case can be expected to have repercussions for justice in conflicts in two ways. First, Taylor accepted a deal to go into exile in Nigeria in exchange for impunity. That deal eventually unravelled under US pressure and finally led to Charles Taylor’s guilty verdict at an international court. It is clear that Charles Taylor’s crimes were horrendous and that he deserved to face justice for them, but the fact remains that his arrest weakens future security guarantees for leaders of conflict parties that face an international arrest warrant and want to negotiate a way out of their situation. Joseph Kony has reportedly vowed several times that he will not share the fate of Charles Taylor and there are many signs that the ICC warrants against the LRA leaders contributed to the failure of the Juba Peace Talks in 2008. You can trick a warlord into accepting a deal and arrest him later once, but will the trick work in future negotiations? In the long run the international community will not be able to keep the cake and eat it too. Continue reading →

Posted in Crimes against humanity, Exile, Liberia, Lord's Resistance Army (LRA), Peace Negotiations, Peace Processes, Sierra Leone, Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL), War crimes | Tagged , , , , , , , , , | 2 Comments

Where to With Transitional Justice in Uganda? The Situation After the Extension of the Amnesty Act

Posted on April 22, 2012 by Patrick Wegner

Many northern Ugandans hope LRA fighters will take amnesty and return to undergo traditional reconciliation rituals like Mato Oput shown in the foto (JRP)

Regular readers of this blog are aware that Uganda has both an amnesty law in force since 2000 as well as an International Crimes Division (ICD) at the High Court which is able to try crimes, including war crimes, crimes against humanity and genocide.

The 2000 Amnesty Act is broad, essentially granting ‘blanket amnesty’ for all crimes committed during rebellion if the reporter agrees to renounce armed struggle. Despite the Amnesty Act being in force, the Department of the Public Prosecutor (DPP) in Uganda charged a mid-level commander of the LRA, Thomas Kwoyelo, with crimes against humanity under the Geneva Convention. JiC has reported extensively about the trial in the past, you find all the articles here. Despite several court rulings that Kwoyelo has a legal right to receive amnesty and should be set free, the DPP argued that amnesty is not applicable for crimes against humanity. In violation of these court rulings and due process, Kwoyelo remains in jail at Luzira Prison, Kampala.

The Government of Uganda (GoU) has not taken a clear position concerning the Kwoyelo case and the clash between the blanket amnesty and the existence of a Court Division able to try international crimes. Therefore the upcoming review of the Amnesty Act in May 2012 has been anticipated with uncertainty and curiosity by observers. Will the GoU move away from the past amnesty approach and give in to the DPP that had stated it wanted to bring more charges against former LRA rebels? Or would it uphold the amnesty approach followed since 2000?

Now the Deputy Speaker of the Ugandan Parliament, Jacob Oulanyah, announced on Saturday 14th of April in Gulu that the extension of the Amnesty Act for two years is a done deal and that the law just waits being gazetted. (Thanks to Sharon Nakandha from Avocats sans Frontières Uganda for forwarding the article). This has some important implications for the way forward in transitional justice in Uganda.

It is important to acknowledge that the Amnesty Act was passed with strong civil society pressure from northern Uganda. Many northern Acholi see the LRA rebels as their abducted children and want them to lay down arms and return home. According to a survey conducted by the Justice and Reconciliation Project (JRP) in December 2011 98 per-cent of the northern population believe that the amnesty is still relevant and should not be abolished. Abolishing the amnesty would thus go against the wishes of the formerly war affected population in northern Uganda. President Museveni has no reason to alienate his northern constituency (he received a majority in northern Uganda for the first time in the 2011 elections) by attacking a law that many see as very useful.

Former LRA Commander Thomas Kwoyelo in the courtroom (Edward Echwalu/Reuters)

According to recent figures from the JRP survey, 22,520 rebels have taken amnesty so far – 48 per-cent of them LRA members. Abolishing the amnesty law now would not have revoked those amnesties but, in the context of the ongoing detention of Thomas Kwoyelo, it would surely have stirred fears among LRA returnees. In my interviews with LRA officers in northern Uganda their fears of being tried years after they returned from the bush, be it by the ICC or the ICD, was very tangible. The fact that the amnesty was prolonged is also important for the military efforts to combat the LRA in the DRC, Central African Republic and South Sudan as it ensures that the formerly abducted fighters have a way out. The Amnesty Act can thus contribute to weaken the LRA by luring out fighters from the ‘bush’. Continue reading →

Posted in Amnesty, Kwoyelo Trial, Lord's Resistance Army (LRA), Traditional Justice Mechanisms, Transitional Justice, Uganda | Tagged , , , , , , , , , , , | 4 Comments

Diverging Trajectories: Social Media and #InternationalLaw

Posted on April 19, 2012 by Mark Kersten

This week, Opinio Juris has organized a symposium on social media and international law in the wake of KONY2012. There are already a number of thought-provoking posts up, including this prescient piece by Charli Carpenter (see here too). The following is my contribution to the discussion. Enjoy!

(Cartoon: Firas Al-Atraqchi)

It is widely accepted wisdom that social media is radically transforming how we understand the world and share information. In this context, the emergence of Twitter, Facebook, blogging, etc. challenge the very practice and scholarship of International Law (IL) and International Relations (IR). Yet, IL and IR appear to be moving on a fundamentally divergent trajectory from social media. By bridging these diverging trajectories, however, IR and IL can retain salience in an increasingly interconnected world.

Reducing complexity is central to social media. The viral campaign by Invisible Children, KONY2012, serves as an obvious example. The campaign efficiently, if brutally, simplified the situation in northern Uganda and areas of Central and Eastern Africa afflicted by Joseph Kony and his Lord’s Resistance Army. While widely discredited after a spectacular series of blunders, Invisible Children’s message is simple, fitting within the 140 character limit of a Twitter post. Its Twitter ‘hashtags’ were short and effective, especially “#stopKony”. There wasn’t much more to the campaign – and surely that’s the way Invisible Children wanted it to be.

On the other hand, IL and IR scholarship and practice seek out complexity. More and more academic journals proliferate with increasingly specific subject-areas. The result is the creation of ‘knowledge ghettos’ where complexity is deified and often conflated with accuracy. Consider the recent verdict in the case of former Democratic Republic of Congo rebel, Thomas Lubanga Dyilo, the first-ever verdict by the International Criminal Court. Controversially, Lubanga was charged and convicted to what amounts to a single charge: the use of child soldiers in an armed conflict. Yet, the Lubanga judgement is 624 pages long! Of course, legal judgements have always tended to be lengthy, the ICC judges were tasked with adjudicating on a number of critical and difficult issues, and the verdict may signify more of an exception rather than a trend. But still, 624 pages? As Dov Jacobs pointedly wrote, “international judges have to stop acting as if they are giving a lecture.”

facebook Arab Spring

Social media played a key role in the 'Arab Spring'. The word on the left panel is "al Jazeera" (Photo: Andrew Couts)

Yet the primary effect of social media in the fields of IL and IR is not merely the simplification of complex legal and political issues. Social media is, at its core, about shifts in language, demanding that complexity be communicated in increasingly coherent and concise language while eschewing rigid jargon. Simplification is thus a by-product of social media rather than its purpose. Continue reading →

Posted in Activism, Advocacy, International Law, Social Media | Tagged , , , , | 2 Comments

A New Deal: an ICC “Supervised” Trial for Saif Gaddafi in Libya?

Posted on April 17, 2012 by Mark Kersten
Libya graffiti

Graffiti depictions of Saif al-Islam Gaddafi (right) and his father, former Libyan leader Muammar Gaddafi (Photo: Reuters/Amr Abdallah Dalsh)

The debate on how and where Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, is tried has taken a new and rather unexpected turn. The BBC has reported that a “Western official” told their correspondent that a deal between Libya and the International Criminal Court (ICC) is close to being completed. The agreement would see Saif tried in Libya, but “under ICC supervision”.

The reported deal, which would result in the ICC dropping its demands to try Saif in The Hague, comes just days after the ICC’s Pre-Trial Chamber ruled that Libya was obliged to surrender Saif to the Court immediately. The country’s National Transitional Council (NTC) subsequently decided it would appeal the ruling while simultaneously unveiling plans – and a refurbished courtroom – to begin Saif’s trial within the next few weeks.

The debate on who should try Saif and how, of course, is nothing new. Readers will recall that a number of commentators (including myself) have supported an ICC trial of both Saif and former Libyan intelligence chief, Abdullah al-Senussi, in Libya – a possibility the Rome Statute envisions. However, the BBC report leaves unclear how such an arrangement would work. Kevin Jon Heller raises a number of pressing questions on the subject:

What would the charges be?  Would the ICC impose a de facto complementarity requirement on Libya, conditioning any deal on Libya’s willingness to prosecute Saif for the same crimes against humanity, murder and persecution, based on the same conduct for which the arrest warrant was issued?  Or would the ICC be willing to allow Libya to prosecute Saif for “ordinary” crimes (i.e., not international) based on the same or different conduct as long as the charges were adequately serious?  (An approach to complementarity that I have defended here.)  How, exactly, would the ICC “supervise” the trial?  Are we simply talking some sort of positive complementarity, whereby the Court would provide the Libyan court system with training and the like?  Or would the ICC have the right to insist on specific rules of evidence, due-process guarantees, and so forth?

The answers to these key questions will determine whether any arrangement between the ICC and Libya is a bright idea – for the Court, for Libya, and for justice. Here are a few other questions and thoughts.

Saif al-Islam Gaddafi (Photo: Sergei Karpukhin/Reuters)

If the BBC’s report is accurate, it raises the question as to why the NTC has suddenly decided to cooperate with the ICC and given it a slice of the justice in Libya pie. While it was largely under-reported, an ‘in situ’ ICC trial in Libya was considered and proposed by the Court’s Office of the Prosecutor during negotiations with Libyan authorities. The idea was flatly rejected by the NTC which, while engaging with the Court in an effort to gain approval for a local trial, has been generally unconcerned with pressure exerted by the ICC. Continue reading →

Posted in International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Mauritania | Tagged , | 1 Comment

Defendants on the Run — What’s a Court to do?

Posted on April 16, 2012 by Mark Kersten

Gillian McCall, a London-based researcher in international criminal law, joins JiC with a fascinating guest post on the question of whether trials in absentia are legitimate and legal. Gillian offers a glimpse into how the various international tribunals have treated the question of trials in absentia, concluding that the continuing absence of defendants before tribunals is an issue of politics, not law.

Courtroom chamber at the International Criminal Tribunal or the Former Yugoslavia (ICTY) (Photo: Klaasjanb)

International criminal courts have become famous — or infamous — in some quarters for their perceived inability to quickly capture and try those accused of serious crimes. Ratko Mladić, accused of genocide, spent 16 years on the run before his capture; Radovan Karadžić did so for twelve. At the ICC, Omar al-Bashir remains at large four years after his indictment, and Joseph Kony remains famously out of reach of the Court, over 6 years after being indicted. Why, critics ask, could their trials not have begun while they were on the run? Could trials in absentia be the way to rid international criminal law of unnecessary lengthy delays?

In the UK, the idea of conducting trials in the absence of the accused seems like an assault on the most uncontroversial of liberties. But elsewhere in the world, such trials are a far more common occurrence: one of the world’s newest international criminal tribunals, the UN Special Tribunal for Lebanon, even allows for it explicitly in its statute. This February, days before the seventh anniversary of the assassination of Hariri, the STL announced that the trials of the four accused would go ahead in their absence. Is this a step too far for international courts, or is there good reason to carry on without the accused?

The motive behind the STL’s decision is obvious; delays frustrate justice. Allowing for trials in absentia will either deter the accused from evading the court, forcing the accused to submit to the court to defend themselves; alternatively, it will allow trials to go ahead in the absence of the accused, meaning that justice won’t be frustrated by unnecessary delays in an international system with no police force, reliant on reluctant states to hand over defendants.

The STL is the first international court to allow for trials in absentia since Nuremberg, and even at Nuremberg only one of the top 24 defendants was actually tried in absentia. The STL is unique in many ways, though, and brings the issue of absentia trials into sharp focus.  Although the court is international, the statute is based on Lebanese law, Lebanon being a country which allows for trials in absentia in any event. It is also limited in jurisdiction: unlike other international or hybrid courts whose jurisdiction lasts a number of years with many, many accused, the STL was set up to try one single event, although there are now a series of connected cases. Its defendants, though, have avoided trial for over seven years. The court, in the meantime, has nothing to do, no other cases that it can pursue, and no investigations it can be getting on with. To be left in suspension would be to hemorrhage money — not to mention waste huge amounts of time and effort — for no apparent reason.

But what about the defendants’ rights? At the ICTY, the Blaškić Appeals Chamber stated that:

“…it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal…Indeed, even when the accused has clearly waived his right to be tried in his presence…it would prove extremely difficult or even impossible for an international criminal court to determine the innocence or guilt of that accused”

Special Tribunal for Lebanon

The crater left after the assassination of Lebanese Prime Minister, Rafik Hariri, in 2005 (Photo: AP)

This gets to the crux of the issue; how can a court determine culpability on hearing only half the story? While defence lawyers might be appointed to test the prosecution evidence, this must be a difficult task without instructions from the accused, never mind the impossibility of actively putting forward their individual defence case. The recent ICC judgment on Lubanga has demonstrated the absolute importance of mounting a strong defence, without which the prosecution’s use of false evidence via intermediaries may not have been discovered. A trial without a defence seems to be a process which does not tend towards finding out what happened, or bringing accountability for it. Continue reading →

Posted in European Court of Human Rights, Guest Posts, ICTY, International Criminal Tribunal for Rwanda (ICTR), Lebanon, Special Court for SIerra Leone (SCSL), Special Tribunal for Lebanon, Trials in Absentia | Tagged , | 8 Comments

Wikileaks’ Death Knell for Invisible Children’s KONY2012?

Posted on April 12, 2012 by Mark Kersten
KONY2012 van

(Photo: Micke Kazamowicz at Flickr)

The most remarkable thing about Invisible Children’s KONY2012 campaign is just how spectacularly it has shifted from one controversy to another.

When the film was first released, it was ripped by virtually every scholar and observer of northern Uganda and LRA-affected areas. I have yet to come across a single researcher not affiliated with the project who has not expressed at least some concern at the way Invisible Children has treated the situation facing victims of Joseph Kony and the LRA.

Shortly afterwards, an Invisible Children video campaign from 2006 did the rounds on the Internet. Many people couldn’t watch the whole clip, stating that it was just too painful. It is difficult to describe, but the video might be compared to a colourful, activist-version of a Glee club, Michael Jackson-inspired call to action in northern Uganda. Incredibly, the video features the creators of Invisible Children singing that Uganda needs to “sparkle and shine” and “we’re not qualified”! It concludes with a woman holding up a egg-beater leading a march of American youths chanting “we are going to end a war!”

A few short weeks later, Invisible Children’s director and the star of ‘KONY2012’, Jason ‘Radical’ Russell had a very public mental breakdown in San Diego. His wife was quick to blame criticism of KONY2012 for her husband’s meltdown. Yet, while many ridiculed and sometimes brutally criticized him and Invisible Children in the wake of the breakdown, it was an altogether unfortunate event – for Russell, his family, and for the story. No one should ever wish such a fate on their worst enemy and the issues with ‘KONY2012’ should never have been personal. Furthermore, many observers began believing that the ‘KONY2012’ campaign was wrong because of Russell’s dramatic mental collapse and not because the story Invisible Children was telling was wrong – and dangerous – all along.

Still, Invisible Children pressed on. Last week it released a sequel, entitled ‘Beyond Famous’, which was met with a resounding “meh” from observers. The damage had been done with ‘KONY2012’ and, while ‘Beyond Famous’ did attempt to deal with many of the criticisms levied against Invisible Children, it ignored key issues, particularly the organization’s faithful predilection towards military intervention. But Invisible Children’s public and dramatic fall from grace didn’t stop there.

UPDF

Ugandan troops in Entebbe, Uganda (Photo: Reuters)

This week, perhaps the most damaging of allegations against Invisible Children emerged. According to a Wikileaks cable which had been available online for months but remained unreported, Invisible Children previously provided intelligence to the Government of Uganda’s security services. The details are a bit murky (see here, here and here for more background) but the cable, signed by former US ambassador to Uganda, Steven Browning, alleges that Invisible Children tipped off the Ugandan military as to the location of a Patrick Komakech, who allegedly was involved in the creation of a new anti-Government rebel group, the Peoples’ Patriotic Front (PPF): Continue reading →

Posted in Advocacy, Lord's Resistance Army (LRA), Peace Processes, Uganda | Tagged , , , , | 4 Comments

Part 1: Saif Gaddafi, Libya and the ICC

Posted on April 11, 2012 by Mark Kersten

(Cartoon: The Independent / The Daily Cartoon)

Most readers will know by now that the Pre-Trial Chamber of the International Court dismissed Libya’s ruling National Transition Council (NTC)’s application to try Saif al-Islam Gaddafi in Libya. Saif, of course, was indicted by the ICC in June 2011 for his role in crushing the Libyan uprising in February 2011 and has been in detention since mid-November 2011. In this and the next post, I will offer some thoughts on the ruling, and the reactions and controversies it has stirred. This piece focuses on the curious and tumultuous situation on the ground in Libya.

Since being arrested by a group of Zintan rebels, Saif Gaddafi, the formerly gallivanting, ‘playboy’ son of late Libyan leader Muammar Gaddafi, has been held at a secret location in the city of Zintan, home to an impressive Libyan rebel militia which also has Tripoli airport in its prized possession. The circumstances of Saif’s detention is a point that often gets lost in analyses of justice in Libya but is worth stressing: to date, Saif has not been in the hands of the Libyan government. This fact has shaped post-conflict Libya as Saif’s fate has become quite the political asset. Notably Osama al-Juwali, a leader of the Zintani rebels, netted the position of interim defense minister in the NTC.

More troubling, however, has been Saif’s treatment in detention. Saif has become an unlikely cause of human rights groups which have criticized the fact that Saif has been held without legal representation since being arrested, was not informed of the charges against him, has been denied access to lawyers on a number of occasions, and has suffered without proper medical and dental care. More recently, in a letter containing stunning revelations, Xavier-Jean Keïta, principal counsel at the ICC’s Office of Public Counsel for the Defense at the ICC, suggested that Saif had been “physically attacked” while in custody.

Meanwhile, the NTC has been adamant that Saif has been treated fairly and will get a fair trial in Tripoli. To prove it, they’ve built an enormous prison featuring a basketball court, personal chef and satellite TV. One prison guard maintains that “[t]here is not one thing Saif will not have here. This prison is like a castle, a castle fit for a king.” Certainly, for those critics of the ICC who argue that imprisonment in The Hague offers too “cozy” a punishment, the lavish and luxurious nature of Saif’s personal prison palace is food for thought. It is further troubling that the governing authorities are willing to build such an enormous facility for one person, however prized, while thousands of other former combatants remain crammed in make-shift prisons.

But the oddest and most stunning news pertained to Keïta’s description of the charges the NTC originally wanted to levy against Saif:

“Mr. Gaddafi was advised that he was being investigated for trivial allegations concerning the absence of a license for camels, and irregularities concerning fish farms, and that he would not be pursued for serious crimes, such as murder and rape, due to lack of evidence.”

Saif al-Islam Gaddafi after being captured by rebels from Zintan

Saif al-Islam Gaddafi on a plane to Zintan shortly after being captured (Photo: Getty Images/AFP)

Keïta added that when the ICC began to put pressure on the NTC to adhere to its international legal obligations, Libyan authorities did an about-face and charged him with more serious crimes, similar to those for which the ICC issued an arrest warrant. But, seriously, camel licences? Irregularities concerning fish farms? Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Peacebuilding, The Tripoli Three (Tripoli3) | Tagged , | 3 Comments

A Genocide in Northern Uganda? – The ‘Protected Camps’ Policy of 1999 to 2006

Posted on April 9, 2012 by Patrick Wegner

One of the 'protected camps' that were established during the LRA conflict in northern Uganda (Photo: http://joshuadysart.com)

The Lord’s Resistance Army (LRA) conflict effectively ended for northern Uganda in 2006, after 20 years of suffering, when the LRA moved out of Uganda at the start of the Juba Peace Talks. Despite relative peace returning to the area, the multiple legacies of this conflict have still not been fully addressed. One of the most contentious issue is the question of how to deal with human rights violations committed by the Government of Uganda (GoU) and the Uganda People’s Defence Forces (UPDF), as well as its predecessor, the National Resistance Army (NRA). The academic literature on the topic and human rights organisations are pretty clear about the fact that human rights violations were committed, in particular by the NRA in the 80s and 90s. Until this day, northern Ugandan victims call for justice for these crimes while the UPDF claims that it has prosecuted all violations that were committed. The ICC, with its jurisdiction starting in 2002, cannot help in this case, but there are also allegations regularly brought forward in northern Uganda that may fall under the jurisdiction of the ICC and are thus of particular interest.

When the Government of Uganda was not able to beat the LRA militarily, it started to drive the Acholi civilian population into so-called ‘protected camps’ in 1999. Civilians that did not comply were subjected to beatings or random shelling of their villages. In these camps people lived in grievous conditions around UPDF barracks. The army largely failed to protect the civilian population against LRA attacks on the camps. At the same time, diseases like Cholera, Ebola and Aids spread due to lacking hygiene and crowded conditions in the camps. At the height of the conflict 1.8 million people lived in such camps and roughly 1,000 of them were dying each week. Many northern Ugandans – from political and religious leaders to ordinary citizens – have claimed that this UPDF policy amounts to genocide. Only recently, an argument between the retired Bishop of Kitgum Macleod Baker Ochola II and a UN representative ensued at a workshop over whether the camp policy amounts to genocide, as claimed by Bishop Ochola.

Retired Bishop Ochola during the workshop at which he raised the genocide allegations (Photo: Sam Lawino/Daily Monitor)

It is clear that the conditions in the camps were horrendous. Chris Dolan, the Director of the Refugee Law Project in Kampala, Uganda, has fittingly described the camp system as ‘social torture’. According to the UN Office for the Coordination of Humanitarian Affairs the camps violated several rights of the displaced and nearly all UN Guiding Principles on Internal Displacement. Principles violated included, for example, the need to consult the people affected by the displacement (7.3), to minimise the time of displacement (6), to provide basic standards of living and medical care (18, 19), freedom of movement (14), the protection from abuses (11), and the protection of property (21). A diplomat I interviewed compared the IDP camp system to British concentration camp tactics during the Boer Wars in South Africa, and a staff-member of a human rights organisation stated in an interview that the GoU camp policy likely constitutes a crime.

Little doubt remains that the camp policy of the Ugandan Government was inhumane, maybe criminal, but does it amount to crimes under the Rome Statute? The Office of the Prosecutor of the ICC has not made any of the findings from its investigations of alleged UPDF and GoU crimes public, and I am not aware that the legal literature has attempted to clarify this aspect. I would like to give my own assessment of this question in the following paragraphs, stressing that I am not a lawyer and that my analysis might be open to criticism by people more experienced in questions of international criminal law. Continue reading →

Posted in Complementarity, Crimes against humanity, Darfur, Genocide, IDP, International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Sudan, Torture, Uganda | Tagged , , , , , , , , , , , , , , , , , , | 13 Comments

The International Criminal Court and Deterrence – The ‘Lubanga Syndrome’

Posted on April 6, 2012 by Mark Kersten

Niki Frencken joins JiC for this thoughtful post on deterrence in the wake of the Lubanga verdict. Niki is a freelance researcher, documentary maker and writer who has focused much of her work on conflict resolution and transitional justice in East Africa.

(Photo: UN)

March 14th 2012 marked a historic day for the International Criminal Court. Thomas Lubanga is no longer suspected of recruiting and using child soldiers, but convicted of the crime. The ICC’s first verdict has been met with both excitement and criticism. Safe to say that it raises many questions, one of which concerns the deterrence effect of the Court and the Lubanga case.  Anecdotal evidence abounds that the Lubanga case has generated a fear of arrest amongst Congolese militia leaders. This fear has been dubbed the ‘Lubanga syndrome’. Yet, the question remains whether the ICC and the Lubanga case can contribute to deterrence and whether the ‘Lubanga syndrome’ truly exists.

Deterrence in (post) conflict situations

Within a widely varied palette of peace-building instruments, the threat of international prosecution is increasingly considered as a means to pressure leaders to put an end to hostilities, as was seen in Libya and Côte d’Ivoire. Inherent to this faith that the ICC can contribute to peace and security is the belief in the deterrent effect of (the threat of) international prosecution. This is underlined by the preambles of the Rome Statute: ‘[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’ and contribute to peace, security and the well-being of the world.

Due to the material jurisdiction of the Court and its permanent nature, prosecutorial interventions often take place in a context of ongoing (non-)international armed conflict. On top of the already disputed nature of deterrence at the national level, these volatile contexts add an extra dimension to the relation between ICC prosecution and its contribution to deterring leaders from committing crimes. These politically unstable situations are inherently complex, making it difficult for the Court’s prosecutions to deter individuals from committing crimes.

Essentially, deterrence is aimed at preventing crimes based on the fear of the consequences of engaging in criminal behaviour. According to deterrence theory, individuals will refrain from engaging in criminal action if the likelihood of the materialisation of the costs outweighs the expected benefits of crime. Whilst leaders plausibly engage in rational calculations, the dynamics of violent conflict and immediate needs of warfare make it unlikely that the remote costs of prosecution penetrate or override strategic military and political decisions that lead to crime. There are, however, a number of factors that affect this cost-benefit calculation, amongst which are the certainty of apprehension, knowledge of consistent rule enforcement, different approaches to justice and the legitimacy of the Court.

(Un)Certainty of Apprehension: Cooperation and Enforcement Problems

Despite the legal provisions subjecting both party and non-party states to cooperation obligations, the Court suffers from significant cooperation and enforcement problems. The ICC does not have a police or military force and thus operates without an enforcement body. This makes the Court highly dependent on state cooperation to execute arrest warrants, provide access to evidence, enable the relocation of witnesses, and ensure the enforcement of sentences. The problem of cooperation therefore effectively comes down to the Court’s dependence on states that – for whatever reason – are, broadly speaking, either unwilling to cooperate or states that are unable to cooperate (or possibly both). Illustrative are the 11 suspects that still remain at large today. One such suspect is Bosco Ntaganda.

deterrence icc

Despite an outstanding arrest warrant, Ntaganda has been appointed a Deputy Commander in the Congolese army. He is well within the reach of the Congolese authorities to be transferred to The Hague, but the Prosecutor’s requests have remained unenforced, the reason being that Ntaganda is considered instrumental to the DRC in its fight against the Forces Démocratiques de Libération du Rwanda (FDLR). At the time of writing, his political usefulness therefore still functions as a shield, protecting him from prosecution. The political dynamics hampering the execution of Ntaganda’s arrest warrant instills Congolese military and militia leaders with confidence that they will be able to negotiate or buy their way around prosecution. It is not so much The Hague that matters, but rather Kinshasa. The political peculiarities of Congolese politics thus negatively influence the certainty of arrest and by extension undermine the ICC’s contribution to deterrence.

So far, the Court’s apprehension record also provides Heads of State with little reason for concern provided they maintain the right political allegiances or allies. The example of Sudanese President Omar al Bashir comes to mind. Thus, the ICC’s dependence on state cooperation significantly challenges the certainty that the accused will be apprehended and brought before the ICC, and thereby weakens the deterrent potential of ICC prosecutions. Continue reading →

Posted in Democratic Republic of Congo, Deterrence, ICC Prosecutor, International Criminal Court (ICC) | Tagged , , | 1 Comment