Introduction – A JiC Symposium on Mark Drumbl and Barbora Holá’s Informers Up Close

Posted on October 7, 2024 by Mark Kersten
Stasi files (Photo: Corbis)

In a course that I run on responses to international crimes, I paint my students the following scenario: Canada is taken over by a brutal dictatorship that suppresses human rights. The regime lasts for twenty years before democracy is restored. During the dictatorship, one in every ten Canadians was an informant of Canada’s secret police. We do not know who they are. They could be our loved ones, co-workers, bosses, or the person who has made us our morning coffee on the way to work. Now, we have a chance to find out because the new government decides it is best to open the secret police’s records and let us find out.

Would you look?

The responses from students are fascinating not because any one of them is more persuasive than any other but because all and none of them are. Some students don’t hesitate. They are confident that they would absolutely check the files. They simply want to know. They seem convinced that the truth will set them free or bring closure by offering some critical tidbit of information that is necessary to move on. I respect their self-assurance, though I suspect that if the exercise were a little less abstract and they were staring down at an envelope which just might include the names of their mother or brother, the situation would look a little different. Imagining that moment is something like Schrödinger’s informant. Everyone is and everyone isn’t an informant – until the envelope is opened.

Other students are more anxious about the prospect of revealing who may have informed on them. They worry about what they might find and what information – what context and what truths – might be omitted. Might finding out ruin relationships that they once valued? How would it make them feel, and would it be worth it? One student believed that if someone they cared for informed on them during the dictatorship and they needed to know, then that informant would tell them. 

Others wonder: what itch would knowing scratch and why do they have it at all? What can they do once they know? Rather than bringing closure, might finding out pieces of unsavoury and incomplete information only make that itch worse? Might the wounds of the past fester and undermine their healing once the scars have been picked at? Is there any place here for forgetting? Can we accept that sometimes forgetting may actually be a virtue, even if it runs contrary to the accumulated wisdom and insistence of transitional justice scholarship that all bad pasts must be confronted?

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Posted in Czech Republic, Czechoslovakia, Europe, Historical Justice, Informers Up Close Symposium, Transitional Justice | Tagged , | Leave a comment

An alleged ISIS war criminal has been arrested in Canada. How did he get in, and why won’t Canada prosecute his alleged atrocities?

Posted on October 4, 2024 by Mark Kersten
Ahmed Fouad Mostafa Eldidi and his son, during court proceedings in Ontario

In 2018, Ahmed Fouad Mostafa Eldidi arrived at Toronto’s Pearson Airport. After his application for refugee status was accepted in 2019, he received a work permit. He then became a permanent resident in 2021. Subsequently, the Canadian Security Intelligence Service gave his application a “favourable recommendation”, and Mr. Eldidi was granted Canadian citizenship in May 2024. Just two months later and after a tip from France, he was arrested with his son for allegedly planning a terrorist attack in Toronto. It then came to light that Mr. Eldidi had apparently appeared in a 2015 promotional video by the Islamic State, hacking the limbs off a prisoner with a sword – an act which likely constitutes a war crime.

This series of events has led to obvious questions: How could Canada not only let Mr. Eldidi into the country, but fail to identify him as a possible security threat during two separate national security screenings? And why did the Canadian authorities not know of his alleged 2015 atrocities?

These questions are being hotly debated by politicians. In House of Commons committee meetings and on social media, the political bluster over Mr. Eldidi’s case is palpable. But it is also unhelpful. Blame and excuses cannot prevail over introspection and self-reflection. The finger-pointing in Ottawa is a distraction from the fact that both Conservative and Liberal governments are responsible for leaving Canada susceptible to perpetrators of atrocities entering the country. 

What should be questioned, and answered, is what Canada did not do that left the country vulnerable to infiltration by atrocity perpetrators and what it can do to avoid a repeat in the future.

Background: A bi-partisan refusal to address international crimes 

Under the principle of universal jurisdiction, enshrined in the Crimes Against Humanity and War Crimes Act of 2000, Canada can prosecute perpetrators of war crimes abroad even if they or their victims are not Canadian citizens. But since the 1990s and the failure to convict a number of alleged Nazis living in Canada, Ottawa’s preferred approach has been to either ignore alleged war criminals living in our midst or to deport them. And when it does ‘send them back’, it does so without any guarantee that they will subsequently be investigated or prosecuted for their crimes. 

During the Conservative government of Stephen Harper, this policy was entrenched when Canada put a full-stop to prosecutions of international crimes in Canadian courts. In fact, since 2013, no case of international crimes committed abroad has been heard in a Canadian courtroom. Instead, the Harper government created a ‘Most Wanted’ list and doubled down on deporting alleged perpetrators. Under this policy, Canada might even send perpetrators back into situations where they could further torment their victims. That perpetrators would be apprehended only to escape justice once deported was a fact that earned Canada a sharp rebuke from the United Nations Committee Against Torture in 2012. 

So, if Canada won’t prosecute such figures, will it at least prevent them from getting into the country?

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Posted in Canada, Iraq, ISIS, Syria, Terrorism, Universal Jurisdiction, War crimes | Tagged , , , | 3 Comments

An Important Past: Since Hitler, Heads of State have No Immunity 

Posted on September 26, 2024 by Mark Kersten

The following guest post was written by Dan Plesch, Professor of Diplomacy and Strategy at SOAS University of London and a Door Tenant at the Chambers of Stephen Kay KC at 9 Bedford Row. His books include, ‘Human Rights After Hitler’, ‘America Hitler and the UN’, and ‘The Beauty Queen’s Guide to World Peace’. His work on the modern relevance of the United Nations War Crimes Commission has featured in the Associated Press, the US National Public Radio, Amazon’s acclaimed documentary ‘Getting Away with Murder(s)’ and Netflix’s 9th episode of the ‘Greatest Events of WW2’.

A sample of an indictment of Hitler from 1944.

As a Head of State, Adolf Hitler was indicted for war crimes by several European states in the winter of 1944-45 under their domestic laws as well as international law. The three states, Belgium, Czechoslovakia and Poland were supported by a dozen others, including China, France, the UK and the USA who were all members of the United Nations War Crimes Commission. The legal documents were sealed for decades. When they were finally released in in the 2010s, their significance warranted a news story by the Associated Press in 2017, The documents were not available to the International Court of Justice as it considered the arrest warrant case over a decade earlier.

At a time when many are discussing and debating head of state immunity, the Hitler indictments point the way to further reducing the impunity of national leaders in the twenty first century.

As a historian observing and engaging with the community of International Criminal Law, I find it curious that this state practice has been given no weight by generations of judges, lawyers and scholars. The unanimous view of sixteen leading states that Hitler was personally and functionally liable for the atrocities committed in his name confounds the established view that individual states cannot legally prosecuted the sitting Heads of State of other governments. 

The criminal liability of Heads of State and of Government, as well as Foreign Ministers is a live issue once more with the Paris Court of Appeal’s ruling that French investigating judges could issue an arrest warrant against Syrian President Assad and with the complaints before the Office of the Swiss Attorney General against Israeli President Herzog. For some commentators, these actions contravene the 2002 decision of the International Court of Justice (ICJ) in the Arrest Warrant case, in which the ICJ held that customary international law includes the rule that sitting Heads of State, Heads of Government, and foreign ministers are immune from criminal jurisdiction, including arrest warrants and indictments, by foreign national courts, including for war crimes and crimes against humanity. The ICJ distinguished personal immunity from functional immunity, and distinguished national criminal jurisdiction from international criminal jurisdiction such as the International Criminal Court (ICC)

The long overlooked customary state practice from the 1940s can be seen as contradicting the ICJ judgment and so reinforcing the validity of the Assad and the Herzog cases. The now unsealed documentary record in relation to efforts to prosecute Hitler provides individual and multilateral state practice from the 1940s that set the immunities of Heads of State and Government in a decision of the United Nations War Crimes Commission (UNWCC) and subsequent actions of that body and its members states. Thus, the ICJ overlooked the most important state practice precedent relevant to its inquiry – and in fact the only time prior to 2002 that the world’s most powerful states considered the issue together. 

At a time when many are discussing and debating head of state immunity, the Hitler indictments point the way to further reducing the impunity of national leaders in the twenty first century. More details on these UNWCC-supported charges are now available in recent research into the unsealed archives of this multinational organisation of the mid-1940s. It has been presented in London and The Hague. The International Law Commission has recently received submissions to be considered in its work on the Immunity of State officials from foreign criminal jurisdiction.

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Posted in Germany, Guest Posts, Historical Justice, International Court of Justice, International Court of Justice (ICJ), International Criminal Justice, United Nations | Tagged | 1 Comment

Silver Linings: Putin Visits Mongolia in defiance of ICC Warrant

Posted on September 11, 2024 by Mark Kersten
Russian President Vladimir Putin meeting with Mongolian President Ukhnaagiin Khurelsukh in Ulaanbaatar on 3 September 2024 (Photo: AP)

It’s not good news. Vladimir Putin has visited Mongolia despite an outstanding warrant issued against him by the International Criminal Court (ICC). Observers are rightly appalled. Some are questioning the very relevance of the ICC. One analyst claims that Putin has used Mongolia to “mock” the Court. But it is not all bad news. Putin’s visit to Mongolia shows that he and his regime simply cannot ignore the allegations against him. It has also acted as an important reminder of Putin’s horrific atrocities, and the need to hold him accountable.

Mongolia is the first member-state of the ICC that Putin has visited since he was targeted for prosecution since Russia’s 2022 invasion. In March 2023, judges at the ICC issued a warrant for Putin on charges of unlawfully deporting Ukrainian children and illegally transferring them from Russian occupied areas of Ukraine to Russia. Those acts constitute a war crime, and a particularly grotesque one: stealing children. 

Mongolia is under a clear, unambiguous legal obligation to arrest Putin and surrender him to The Hague. That Ulaanbaatar chose not to is a slap in the face of victims, survivors, and anyone who subscribes to the basic notion that war crimes demand accountability.

In an ideal world, Putin would be on trial in The Hague, not only for the war crimes he is already charged with but with a litany of others and potentially also crimes against humanity and genocide (Russia is facing charges of genocide at the International Court of Justice). But we do not live in an ideal world. Far from it.

As an institution, the ICC is in never-ending negotiation between its aspirations as an independent court and the reality that it is a creation of states which exists in a world of sharp political divisions. When its founding treaty, the Rome Statute of the International Criminal Court, was negotiated, states chose not to give the ICC powers to enforce its own arrest warrants. The Court has no police force. Unless states are willing to back the ICC up and enforce the ICC’s warrants, suspects will be able to enjoy a degree of freedom.

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Posted in International Criminal Court (ICC), Israel, Mongolia, Omar al-Bashir, Palestine, Palestine and the ICC, Russia, Sudan, Ukraine, Vladimir Putin | Tagged , , , , | Leave a comment

International Justice Day: Inspiring Developments in International Criminal Justice, Complementarity, and trends at the ICC

Posted on July 17, 2024 by Mark Kersten

Dear all,

I thought some JiC readers might find this podcast interview that I did with the Global Centre for the Responsibility to Protect to be of interest.

During the interview, I reflect on current trends in international criminal justice. I shed some light on recent work I have been doing at the Wayamo Foundation, including a recent conference that brought together local, regional, and international experts in Abuja, Nigeria. I also share insights into certain accountability efforts in West Africa that I believe can and should inspire justice advocates. In the interview, we likewise delve into how the exercise of universal jurisdiction might be democratized, including through Wayamo’s ongoing efforts to encourage states in East Africa to prosecute perpetrators responsible for international crimes in Sudan (some of those efforts are detailed in this short video).

Finally, I share my thoughts on recent trends at the ICC, new ideas around complementarity, and what states can do to better facilitate justice to affected communities (hint: abide by the laws they themselves expect others to).

Thank you as always for your readership, and I hope the podcast is of interest!

Mark

Posted in International Criminal Court (ICC), International Criminal Justice, Universal Jurisdiction, Wayamo Foundation, West Africa | Leave a comment

Productive Ambiguities? The International Court of Justice on Israel’s Military Operation on Rafah

Posted on May 30, 2024 by Mark Kersten

Kerstin Bree Carlson joins JiC for this guest-post on the ICJ’s decision on Israel’s military operations in Rafah. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.

Civilians flee Rafah, in Gaza, Palestine (Photo; AFP)

On 24 May 2024 the International Court of Justice (ICJ) made history and ordered a ceasefire in Rafah.

Unless it didn’t.

By 13 votes to 2, the ICJ  ruling  ordered Israel to “immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

So did the ICJ order a ceasefire? Or did the ICJ reiterate its earlier decisions, and therefore only warn Israel to take care how it fights? The answer comes down to how we understand the dependent clause regarding inflicting conditions of life, and to what it applies. Some argue the clause simply references the Genocide Convention, the treaty which gives the ICJ jurisdiction over the case. This makes it a repetitive allusion to binding law, a kind of dismissible “extra” language that lawyers call dicta and does not impact the ceasefire clause preceding it. Others argue it is a condition that imagines and permits military action that does not inflict genocidal conditions. If so, the court has not ordered a ceasefire, but instead merely sharpened earlier provisional measures reminding Israel of its responsibilities under international law.

If you’re unsure what to think, you’re in good company: the judges on the ICJ who made the ruling don’t agree either.

What did the ICJ judges say?

The ruling was issued by 13 judges, with 2 judges dissenting. But the 13 ruling judges were not in complete agreement with the ruling’s language. Three judges appended “declarations” to the ruling. These concurring opinions affirm the ruling but seek to provide distinct rationales and interpretations as to what was decided and why. They demonstrate stark disagreements regarding the meaning of what the judges put their names to.

Judge Dire Tladi of South Africa asserts that the ruling orders a cessation of Israeli’s military offensive in Rafah. He notes that international law permits states to engage in self defense and that nothing in the order can be read to prevent Israel from undertaking “legitimate defensive actions…  to repel specific attacks” (emphasis in the original). But he concludes: “Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah.” In Judge Tladi’s view, Israel’s military actions in Rafah are offensive and prohibited by the ruling.

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A Message to the Canadian Government: Stop dithering, and Support the ICC’s work in Israel and Palestine Now.

Posted on May 29, 2024 by Mark Kersten

The following is an open letter that I had the pleasure and honour of drafting alongside Canadian justice and accountability leaders Alex Neve, Heidi Mathews, Ardi Imseis, Kjell Anderson, Leilani Farha, and Michael Lynk. As can be seen below, it has been endorsed by a remarkable number of Canadian civil society leaders, former diplomats and parliamentarians, and others. Our message is clear: Canada must end its dithering and support the ICC’s work in Israel and Palestine. As we write: “To assert that there is something objectionable about holding Israeli officials to the same standards of international criminal justice as Hamas officials is to promote a double standard and to suggest that the rights of Palestinians matter less than those of Israelis. That is a racist, dehumanizing and discriminatory approach to international justice which Canada cannot countenance in any way.” I hope the letter is of interest to readers, in Canada and beyond.

(Photo: AFP / Getty Images)

Dear Prime Minister,

We write this Open Letter to you as Canadian law professors, lawyers, legal scholars, academics, civil society, faith and labour movement leaders, and former diplomats and parliamentarians representing an extensive breadth of experience relevant to the imperative of upholding the rule of law, international human rights and justice, including through the International Criminal Court (ICC).  We write in particular to urge your government to issue a public statement unequivocally affirming the prosecutorial and judicial independence of the Court as the investigations and proceedings advance in the situation in Palestine. In line with its unambiguous obligations of cooperation as a member-state of the ICC, this should include a clear statement that any arrest warrants issued by the Court against leaders of the Israeli government and senior Hamas officials will be enforced should any suspects arrive on Canadian territory.

Canada has a demonstrated reputation and record as a leader with respect to international criminal justice and the role of the ICC in upholding universal human rights and preventing mass atrocities. The Canadian government played a central role in the establishment of the ICC and made it clear that the Court would be focused on the accountability of individuals for their decisions and actions, regardless of their governmental or organizational affiliation. The first President of the ICC was a former Legal Adviser to Canada’s Minister of Foreign Affairs. The fourth President, who served from 2018 to 2021, is also a Canadian. A Canadian is in fact currently serving as a judge at the Court. From 2013-2021, the ICC Deputy Prosecutor was a Canadian.

Given that reputation and record, a strong statement of support from Canada will have a notable positive impact internationally. The absence of such a statement will, conversely, have a detrimental impact and undermine key principles of international justice that Canada has long championed. We note as well the March 18, 2024 House of Commons motion calling on your government to support the work of the ICC, a motion almost all members of your government, including you personally, supported. 

Strong support is vital at this time given that the Prosecutor, ICC staff and the ICC as an institution are facing considerable political pressure, unfounded and inflammatory criticism, attacks on the Court’s independence, and even threats of personal sanctions against court judges and officials, all in relation to this case. This is clearly no time for champions of international justice to waver or to be ambiguous. That is why Canada’s position must be one of resolute and meaningful support.

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Posted in Canada, Hamas, ICC Prosecutor, International Criminal Court (ICC), Israel, Palestine, Palestine and the ICC | 2 Comments

Transformative Transitional Justice: How Old Tools Could Open New Avenues for Climate Justice

Posted on May 28, 2024 by Mark Kersten

Jasmina Brankovic and Augustine Njamnshi join JiC for this guest post on how the tools of transitional justice can serve as model for climate justice. Jasmina is the Senior Research Specialist at the Centre for the Study of Violence and Reconciliation, South Africa, and a Research Associate at the Institute for Integrated Transitions, Spain. She is co-author of The Global Climate Regime and Transitional Justice (Routledge 2018). Augustine is the Chair of Technical and Political Affairs for the Pan African Climate Justice Alliance, and the CSO Observer for the Climate Investment Funds, the Coordinator of the African Coalition for Sustainable Energy and Access, and the Executive Secretary of Bio-resources Development and Conservation Cameroon. 

April 2024 was the eleventh consecutive month to break heat records. With that news, the world is faced with the reality that global surface temperatures have already surpassed, even if temporarily, 1.5°C above pre-industrial levels – the benchmark agreed on in the 2015 Paris climate agreement. Yet, the international climate negotiations continue to stalland the progress made so far on mitigation, adaptation, and loss and damage is inadequate to deal with the severe climate impacts and harms being felt around the world.

The climate crisis is not the first time people have had to navigate complex tensions over responsibility for the past and future actions of states, corporations, and others. Transitional justice offers a wealth of ideas and tools to help us think ‘outside the box’ about climate action and resolve some of the impasses caused by focusing primarily on the international climate negotiations. 

With its mainstream mechanisms – prosecutions, truth commissions, reparations, and institutional reforms – transitional justice has become a go-to solution for dealing with past harms, strengthening solidarity in the present, and laying the groundwork for a future with fewer harms in diverse transitional contexts. Moreover, lessons learned from more than three decades of practice, and from efforts across Africa in particular, have given rise to more transformative approaches to transitional justice, consisting of contextualized, bottom-up measures that address the historical and ongoing injustices that usually underpin harms. 

These transformative approaches offer new avenues for facing the unequal global and local impacts of climate change in order to advance climate justice.

Climate-Focused Transitional Justice Mechanisms 

As globally accepted measures in countries undergoing political transitions, we propose that transitional justice mechanisms present numerous and adaptable options for addressing climate harms. 

Regarding prosecutions, individuals who purposefully took actions that resulted in significant intensification of climate harms could be tried before domestic, international, or hybrid courts. One example is the recent criminalization of actions ‘comparable to ecocide’ by the European Union. Alternatively, a range of indigenous, traditional, and community-based conflict resolution and justice mechanisms could be adapted to pursue individual accountability and reparative measures for climate harms, as has been the case for gross rights violations.

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Posted in Climate Change, Guest Posts, Transitional Justice | Tagged , , , , , , , | 2 Comments

The only equivalency that matters is in the equal treatment of victims and survivors: An interview on the ICC and the request for warrants against Israeli and Hamas leaders

Posted on May 25, 2024 by Mark Kersten

Dear readers,

I wanted to share this interview with British journalist Owen Jones, which may be of interest to those following the landmark decision of ICC Prosecutor Karim Khan to request arrest warrants against senior Israeli and Hamas leaders over alleged war crimes and crimes against humanity.

The interview covers many things, including: the basis of the ICC’s jurisdiction; reactions of the United States and others to the Prosecutor’s request; the importance of the Prosecutor’s focus on crimes against humanity; the troubling invocation of “equivalency” by certain states and observers; what to expect if the Court issues warrants; and the consequences on states that sell Israel and Hamas weapons.

We also cover why we should have hope for a better future in Israel and Palestine.

As always, please share your feedback and thoughts!

Mark

Posted in Uncategorized | 4 Comments

ICC warrants for Israeli and Hamas leaders won’t bring peace. But it’s beyond time to give justice a chance.

Posted on May 23, 2024 by Mark Kersten

Wreckage following airstrikes in Jabalia, Gaza (Photo: AFP / Getty)

Whenever the International Criminal Court (ICC) opens an investigation into an ongoing war, versions of the following question will inevitably be asked: Does the pursuit of accountability risk leaving the warring parties with no incentive but to continue the fight?

The same question is again being asked now that ICC Prosecutor Karim Khan has made the landmark decision to request arrest warrants for top Israeli and Hamas leaders.

For years, I have tried to get to the bottom of what is often called the “peace versus justice” debate. I wrote a bookabout how that debate played out with the ICC interventions in Libya and Uganda. I have also published findings on the peace-justice relationship in Ukraine, Israel-Palestine, and elsewhere. While responses to the debate are often driven more by assumptions and hypotheticals than incontrovertible facts, the reality is that there is no special key that helps unlock the relationship between resolving wars and achieving accountability for wartime atrocities.

There is no singular answer to this question that applies across different contexts. But here are a few things that are true: The ICC can complicate peace negotiations. But more “complicated” peace negotiations do not necessarily mean “worse” peace negotiations. Take Colombia, for example, where the ICC had a decade-long preliminary examination. Accountability processes negotiated during the peace process there translated into meaningful justice for many of the wartime atrocities committed by the government and the rebel group the Revolutionary Armed Forces of Colombia (FARC). Moreover, for the ICC to undermine peace negotiations, there must be a realistic prospect of a peace process in the first place. If such negotiations do not exist, the claim that pursuing accountability will ruin them is likely red herring, an argument intended to shield the perpetrators of atrocities.

In the conflict between Israel and Palestine, there are no peace negotiations for the ICC to complicate or undermine. Put another way, justice cannot undermine peace if peace is not on the table.

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Posted in "Peace versus Justice" Debate, Gaza, Hamas, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Peace Negotiations, Peace Processes | Tagged , , , , | Leave a comment