Why Libya should not join the ICC…Yet

Posted on February 10, 2012 by Mark Kersten

A satirical depiction of an NTC meeting (Cartoon: Pambazuka)

It comes as no surprise that human rights NGOs and those aligned with the International Criminal Court are advocating that Arab Spring states join the ICC. After all, justice and human rights have been central to the uprisings that sprang up last year. One Arab Spring state, Tunisia, already acceded to the Court last June.

In this context,  as part of its Universal Ratification Campaign, the Coalition for the International Criminal Court (CICC) recently initiated a targeted effort to get Libya to join the ICC. The CICC, an impressive array of some 2,500 civil society organizations which broadly support the aims of the ICC, released a statement arguing that:

“At a time when sweeping changes are occurring across the Middle East and North Africa (MENA), the Coalition believes that Libya can further strengthen this growing movement in the region towards ending impunity by joining the ICC.”

The Coalition’s Director for Regional Programmes, Brigitte Suhr, noted that joining the court would be in line with hopes for a new human rights respecting Libya:

“Acceding to the Rome Statute would be consistent with the commitment of the government of Libya to uphold human rights as enshrined in its Constitutional Declaration.”

The CICC, along with others urging Libya’s National Transitional Council (NTC) to join the ICC have their work cut out for them. The chances of Libya joining the Court right now are pretty slim. Despite the ongoing question of whether the ICC’s Pre-Trial Chamber will approve of Libya’s plans to try Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya, by Libyans, some, like Chris Stephen, have suggested that the ICC is “the last thing on Tripoli’s mind.”

Members of the NTC (Photo: Action Press)

But just because the Court is not on the NTC’s mind, does not mean that the CICC shouldn’t press on with its aim to put it in the minds of the NTC to sign the Statute. That isn’t the problem. The problem is that demanding that the NTC, an unelected body trying to hold the country together, sign the Rome Statute risks making Libya’s accession to the Court undemocratic.  Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC | 6 Comments

Dithering over Damascus

Posted on February 8, 2012 by Mark Kersten

JiC welcomes Andrew Jillions back with this thought-provoking post on the recent inaction of the UN Security Council in the face of ongoing violence and human rights violations in Syria. 

A Syrian protester in London (Photo: The Mirror)

There’s no doubt that the Assad regime has been buoyed by the international community’s dithering over the situation in Syria. Russia and China’s veto saved Syria from outright pariah status, as well as stymying the immediate possibility of intervention. Visiting Damascus yesterday, Russia’s foreign minister was given a hero’s welcome while some estimates suggest that the death toll has at least doubled since the vote. Draw your own conclusions, but the consensus seems to be that the UN Security Council has lived up its pre-Libya reputation as a toothless and irrelevant anachronism.

Beyond the focus on the Russia and Chinese vetoes, however, the Syrian boost also comes from the perception that there isn’t an appetite for military intervention among the other members of the Security Council. The Security Council’s vote comes on the back of months of inaction, where the dominant policy position seemed to be one of hope – hope that the Syrian situation would somehow resolve itself, if only given long enough. Despite the vocal condemnation of Russia and China none of the other P5 members really want the hassle, or expense, of another intervention. In many respects the veto was a boon to those countries more in thrall to public opinion. If Russia and China are willing to shoulder the public opprobrium that comes with failing to act, all the better.

If this seems an unfair gloss, especially given the vocal condemnation from the UK, US and others, it is worth recalling that this was not a vote on intervention, but a vote on the future possibility of intervention. The Syria situation, after all, has been rumbling on for almost a year now with nary a sign of direct intervention. Although billed as a ramping up of the pressure on Syria, the text itself is filled with banal exhortations to find a peaceful solution, one that doesn’t challenge Syrian sovereignty or trigger Article 42 action. What a good thing appeasement has such a great track record as a strategy for peace! Steven Cook’s observation seems even more relevant after the vote:

“Assad still has bullets left, people to resupply him when his stocks run low, and loyal officers to fire them. What more does he really need?”

A member of the Free Syrian Army in Zabadani (Photo: Reuters)

It is shameful that intervention has been taken off the table as an option.  But it is also a stretch to think that intervention would have occurred had there been a positive outcome at the UN Security Council. Continue reading →

Posted in China, Human Rights, Humanitarian Intervention, Peace Processes, Responsibiltiy to Protect (R2P), Russia, Syria, UN Security Council | 2 Comments

Drones for Human Rights: Are Drones the Answer?

Posted on February 2, 2012 by Mark Kersten
Drones for justice?

(Photo: U.S. Air Force photo by Staff Sgt. James L. Harper Jr.)

I watched Mark Hanis last night on RT defend his and Andrew Strobo Sniderman’s op-ed article in the New York Times, which I responded to yesterday. Given the salience of this debate, I thought I’d share a few more thoughts, this time on the misconception that the missing ingredient in human rights advocacy and enforcement is surveillance of human rights abuses.

Hanis and Sniderman start from a premise with which virtually every human rights advocate agrees: there remains a worrying level of inaction in the face of atrocities being committed around the world. Again, no one disagrees. They’ve got the diagnosis right. It’s their prognosis that’s wrong.

History presents a litany of sombre cases of mass atrocities that have been met with shamefully inadequate responses: we know the tragic lack of response to the Rwandan genocide and the deafening silence on the alleged counter-genocide in its wake in the Democratic Republic of Congo (DRC); Darfur is consistently decried as a situation where the international community has made a mockery of the mantra, “never again”; seemingly more people are interested in whether it is called Burma or Myanmar than responding to systemic human rights abuses there; the situation in the DRC, where violations of rights pretty much dwarf all other contexts, barely registers in public opinion; this week, international leaders hunkered down for the intense process of diluting their response to the crisis in Syria because they’re unable to do enough, but unwilling to do nothing.  The list goes on; it’s not pretty.

But before you go jumping on the “humanitarian drones” bandwagon, here’s the critical question: would any of the above situations have been different if we just had more precise aerial surveillance of violence and human rights abuses? Let’s look at the record.

An aerial photo of Auschwitz from 1944, more than a year before the war - and the Holocaust - ended.

It is worthwhile remembering that there were aerial photographs, as well as personal testimony of Nazi concentration camps, including Auschwitz and Dachau. Winston Churchill called Auschwitz “probably the greatest and most horrible crime ever committed in the whole history of the world.” Despite having seen the evidence and having been implored by various groups to take action, Allied powers did nothing. Both the UK and the US rejected any plan to bomb either the concentration camps or the railway lines that satisfied the camp’s insatiable appetite for human slaughter. Faced with unmistakable aerial surveillance and witness-based evidence, the Allies chose not to bombard the camps. Remarkably, that was during the war, when Allied planes were already bombing other Nazi targets. Continue reading →

Posted in Darfur, Drones, Holocaust, Human Rights, Justice, Southern Sudan, Sudan | 7 Comments

Drones for the ICC and Drones for Human Rights?

Posted on February 1, 2012 by Mark Kersten

(Photo: Kirsty Wigglesworth/AP)

A recent thought-provoking and provocative op-ed in the New York Times has presented a serious challenge to those who view drones as nothing more than the evil extensions of secretive warfare. According to Andrew Stobo Sniderman and Mark Hanis, “[i]t’s time we used the revolution in military affairs to serve human rights advocacy.”

The use of drones to assassinate alleged terrorists in the Global War on Terror has elicited a heated debate on the ethics and legality of the extra-judicial killing of individuals by un-manned air crafts. Sniderman and Hanis don’t contest that the use of drones, particularly by the US, is legally and ethically controversial. But, they argue, we need to go beyond the myopic focus on drones as military hardware and consider how drones can be employed for good ends and, more specifically, the role drones could play in highlighting and responding to human rights violations. Using the case of Syria, Sniderman and Hanis argue the following:

“A drone would let us count demonstrators, gun barrels and pools of blood. And the evidence could be broadcast for a global audience, including diplomats at the United Nations and prosecutors at the International Criminal Court…

…We could record the repression in Syria with unprecedented precision and scope. The better the evidence, the clearer the crimes, the higher the likelihood that the world would become as outraged as it should be…

…Even if humanitarian drones are not used in Syria, they should assume their place in the arsenal of human rights advocates. It is a precedent worth setting, especially in situations where evidence of large-scale human rights violations is hard to come by. “

On first glance, the authors’ argument is persuasive. Heck, who doesn’t want better protection of human rights and who isn’t frustrated that atrocities often go completely ignored (here’s looking at you, DRC)?

But in their argument, Sniderman and Hanis conflate two key issues which need to be distinguished and considered separately. The first, which I think most will agree with, is that having more accurate information and evidence of human rights violations is a desirable goal. The second is that drones are the answer to how to do this.

Could the International Criminal Court use drones to accumulate evidence of crimes against humanity, genocide and war crimes? It might be an appealing prospect. Consider, for example, the cases of Darfur and Libya where ICC investigators have had virtually no access. Drones could take detailed images of violations which could then be used to form the basis of arrest warrants. Sounds good, right? Continue reading →

Posted in Drones, International Criminal Court (ICC), Justice | 10 Comments

Where in the World is Abdullah al-Senussi?

Posted on February 1, 2012 by Mark Kersten

Abdullah al-Senussi and Muammar Gaddafi (Photo: ANP)

Over the past few months, the world has honed in on the fate of Saif al-Islam Gaddafi, the former heir apparent of Libya and one-time galavanting ‘playboy’ who now finds himself in almost complete seclusion after being detained in November 2011 by Libyan rebels. At the same time, international observers, the media and human rights groups have virtually ignored the whereabouts and fate of Abdullah al-Senussi, the other living member of the Tripoli Three – the individuals indicted by the International Criminal Court for alleged crimes committed while crushing the Libyan uprising.

The apparent disinterest surrounding Abdullah al-Senussi is only more precarious given his role in and knowledge of Gaddafi-era Libya. As a key confidant, the “right hand man”, the “eyes and ears” and Colonel Gaddafi’s brother-in-law, Senussi has a unique understanding on what made the Gaddafi regime tick.

Moreover, as the head of both the internal and external intelligence services under Colonel Gaddafi, Senussi is associated with, if not responsible for, some of the worst crimes of the Gaddafi regime. The bombing of UTA Flight 772 in 1989, the 1996 Abu Salim prison massacre and the violent repression of pro-democracy protests in the Libyan uprising are but a few of the more notorious acts in which Abdullah al-Senussi was deeply involved.

It is because of Senussi’s intimate knowledge of these crimes that the reputable international lawyer, Geoffrey Robertson, recently maintained that Senussi was the “crown jewel” of justice in Libya. Not only is Senussi associated with the crimes noted above but, with Colonel Muammar Gaddafi dead, Senussi may hold the keys to understanding the Lockerbie bombing, the Gaddafi regime’s funding of the Irish Republican Army, the cozy political, economic and intelligence relations between Western states and the Gaddafi regime and, just as importantly, where the bodies of the Gaddafi regime’s many victims lie.

The situation in Libya has had its moments of pure confusion and contradiction. With regards to Senussi, it was reported in November that he had been detained at his sister’s house in the south of Libya. After reports of his capture, there has been a deafening silence concerning Senussi. Indeed, it is not clear whether Senussi was, in fact, captured and then escaped, or whether he was ever captured in the first place. It is worth recalling headlines in August that declared that Saif al-Islam Gaddafi had been captured. Just hours later he was seen taking a joy-ride through the streets of Tripoli. Continue reading →

Posted in Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | Leave a comment

The ICC as a Network Actor

Posted on January 30, 2012 by Patrick Wegner

The International Criminal Court is cooperating with a large number of NGOs, civil society organisations as well as national and international institutions

Since the Rome Statute was surprisingly adopted by an overwhelming majority of the states present at the Rome Conference in 1998 (120 against 7 votes with 21 abstentions) the Court has time and again been described as a civil society creation. There are good reasons for this view as the Coalition for the International Criminal Court (CICC), a world-spanning coalition of 2,500 civil society organisations, was involved in the drafting process of the Rome Statute, in advocacy efforts for the Court and in the negotiations in Rome. The coalition is a unique network of diverse NGOs that come in different shapes and sizes, with different thematic foci, operating on national, regional or global levels.

The CICC is convened by the World Federalist Movement and includes heavyweights such as Amnesty International and Human Rights Watch. Its role in the creation of the Court, during negotiations at the Rome and Kampala Conferences, as well as in the Court’s day to day work has been comprehensively analysed in a recent Human Rights Quarterly article by Claude Welch Jr. and Ashley Watkins. The article shows convincingly how the cooperation between the CICC and the group of so-called ‘like-minded states’, who all pushed for a fair, efficient Court with an independent prosecutor, made the passing of the Rome Statute in its current form possible. The CICC also played a role during the Kampala Review Conference and during the election phases at the Court, pushing for the election of qualified candidates. The CICC’s role is just one example of how the ICC cooperates with, and is influenced by, networks on a regular basis.

Apart from the NGO roles described above, civil society organisations all over the world are of crucial importance to support the work of the Court. Again, often coordinated by the CICC, NGOs lobby for the arrest of individuals wanted by the ICC. The best case to illustrate this is probably the civil society pressure brought on governments that consider inviting the ICC indicted President of Sudan, Omar al-Bashir. Court action filed by the South African civil society led to a ruling by a South African Magistrate that South Africa would be violating its constitution by not arresting Bashir if he set foot on South African soil. Prior to that point, South Africa had been ambiguous in its statement whether it would respect its obligations towards the ICC and arrest Bashir. The decision by the Magistrate made a key African state fall in line with its legal obligations vis-à-vis the ICC and Bashir has not visited South Africa since. Recently, he skipped the 100 year African National Congress anniversary due to domestic obligations. Continue reading →

Posted in International Criminal Court (ICC) | Leave a comment

The Politics of Trust: Diplomatic Assurances

Posted on January 29, 2012 by Mark Kersten

Another fascinating guest post by Andrew Jillions on the politics of trust in the context of the highly controversial, yet widespread, practice of granting diplomatic assurances. Enjoy!

(Photo: DVIDS)

Diplomatic assurances and the politics of trust

The recent decision preventing the UK from returning Abu Qatada to face trial in Jordan for terrorist related crimes has sparked a lot of discussion – especially in the popular presses – about how sovereignty simply doesn’t mean what it used to. Bad Foreign Men are being granted a privileged status over the Good British People, at the behest of Unelected European Judges.

Lost in this ridiculous narrative – a narrative that conveniently serves David Cameron’s larger purposes of reforming the European Court of Human Rights– is the potential it has to undermine the prohibition on torture. Crucially, the Court wasn’t worried that Abu Qatada would be tortured himself. In coming to this conclusion, the ECHR gave a greenlight to the institutionalization of ‘diplomatic assurances’ (DAs). For anyone concerned about the force of the norms prohibiting torture, this is a worrying legacy. Quite the contrary to Cameron’s Daily Mail spin, this strengthens states’ already expansive powers to decide on security deportations and, crucially, gives states the power to legitimately contract around the principle of non-refoulement.

Re-balancing rights and security

The idea behind diplomatic assurances is that some states – such as Jordan, in the Abu Qatada case – are known to be less than fully compliant with their international human rights obligations. At various times, the governments of these states have been accused of torture and other ill-treatment. States’ right to return an individual to their country of origin or to respond to an extradition request is not absolute; the question that needs to be asked and answered before the removal can take place is whether the individual is or will be at high risk of having their fundamental human rights violated once they’ve been removed. This is the principle of non-refoulement, which prohibits return when there is a clear threat of torture and other serious violations of basic human rights.

The argument is that this creates a direct tension between human rights and national security norms. Non-refoulement restricts that most basic sovereign power to decide who is allowed in and who has to get out. When you place counter-terrorism at the centre of the policy-making universe these restrictions on border security look immediately obsolete, a cosmopolitan throwback that gives terrorists far too much legal power. Non-refoulement becomes a weapon primed for ‘lawfare’. If human rights obligations present a barrier to effective action, diplomatic assurances are a possible doorway through this barrier.

There has always been a place for diplomatic assurances in exceptional circumstances. The current debates are over whether they have a place in everyday deportation practices. Rather than challenging the principle of non-refoulement head on, diplomatic assurances imply that both human rights and security objectives can be met. The key security objectives – getting rid of security risks or undesirables – could be achieved by signing bilateral memorandums of understanding (MOUs) where states that have a history of abuse agree not to torture. MOUs ‘enhance’ diplomatic assurance by getting rid of the need to get case-by-case assurances; having that background, principled agreement that anyone sent now or in the future will not be subjected to torture is seen to be enough. This one promise averts all future risks of individuals being tortured. Everyone goes home a winner.

 

Abu Qatata (Photo: BBC)

Trust and trustworthiness

This happy state of affairs has some gaps in it. For a start, as Amnesty International points out, the very fact that a country feels the need for diplomatic assurances shows that they are worried about the risks that individual would face on return. The UK does not use or seek diplomatic assurances in sending people back to Australia or Brazil. So why go through the rigmarole of getting diplomatic assurances from Libya, Algeria, or Jordan?

The obvious answer is that the individuals in question are seen to face a serious risk. In the normal course of events, the obligations of non-refoulement should be triggered. Which is where the government wants to be able to say: ‘but we have a diplomatic assurance that negates our initial suspicions!’ Which in turn begs the questions: what about the ‘promises’ these states have made under treaty and customary international law? How much weight can a promise from a serial human rights abuser carry?

The answer – at least the answer that the courts have accepted – seems to be: rather a lot. Continue reading →

Posted in Diplomatic Assurances, Human Rights, Jordan (not Michael), Lawfare, Libya, Pakistan, Terrorism, United Kingdom | 1 Comment

ICC Charges Four of Six Suspects in Kenya Situation

Posted on January 24, 2012 by Patrick Wegner

Protester cornered by Kenyan security forces during post-election violence (Uriel Sinai/Getty Images)

Yesterday, on the 23rd of January 2012, the Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued its long awaited decisions (here and here) whether or not it would confirm the Prosecutor’s charges against six suspects allegedly involved in post-election violence in Kenya in 2007/2008.

The contested elections had led to violence directed by supporters of the two major parties against the perceived supporters of the other party, as well as police violence during protests. Violence was targeted along ethnic lines and was particularly bad in the densely populated Rift Valley Province of Kenya. In total, 1200 people were killed, 900 were sexually assaulted and thousands are still living in camps having been displaced by the violence. In the end, a compromise for a Government of National Unity was struck between incumbent President Kibaki’s Party of National Unity (PNU) and the Orange Democratic Movement (ODM) of current Prime Minister Raila Odinga. Despite the compromise found after the post-election violence, fears are still running high for the upcoming 2012 elections. The UN has warned about possible post-election violence in Kenya and the BBC has reported weapons purchases in Rift Valley Province.

Against this background hopes and fears attached to the ICC decision yesterday were running high. Indeed, the ICC homepage crashed due to high traffic after the decision was announced. Sceptics feared that an ICC decision might lead to further tensions and renewed violence in Kenya while optimists hoped for a deterrent effect of the ICC investigations in Kenya. Against this delicate political background the ICC has performed pretty well to date. The Office of the Prosecutor (OTP) had announced investigations in two cases, covering the crimes committed by both sides, and seeking to charge three people on each side.

The suspects included William Ruto, a suspended government minister and the deputy party leader of the ODM, Joshua Sang, the head of operations at a radio station promoting violence during the crisis, as well as Henry Kosgey, Member of Parliament and ODM Chairman on the side of the ODM. On the side of the President’s party, the OTP named Francis Muthaura, the head of the Kenyan civil service as well as Secretary to the cabinet, Uhuru Muigai Kenyatta, current deputy prime minister and minister for finance, and Mohammed Hussein Ali, the chief executive of the postal corporation.

Post-election violence in Kenya

It was a wise move by the OTP to make sure that both sides were charged equally against the current political background. Indeed, Kenya is one of the few cases before the ICC in which both sides of a situation are seen to be investigated equally. This may be a result of the fact that the OTP is conducting its investigations in Kenya in propio motu, meaning the Prosecutor himself decided to take up investigations. In cases in which the government refers a situation to the ICC, the Prosecutor has often been criticized for going too soft on the government in order to ensure cooperation. Continue reading →

Posted in Crimes against humanity, Deterrence, Elections, International Criminal Court (ICC), Kenya, Ocampo Six | Tagged , , , , , , , , , , , , , , , , , | 2 Comments

Libya set to Try Saif? Not so Fast

Posted on January 23, 2012 by Mark Kersten

Saif al Islam trialSay what?

It was fitting that news and commentary on justice in Libya was thoroughly confusing today. The conflict in Libya and the post-Gaddafi era have been rife with contradictory storylines: Saif al-Islam Gaddafi was captured. Wait, he’s touring Tripoli! Abdullah al-Senussi has been detained in the south of the country, but we haven’t heard or seen from him since (he is almost certainly not in Libya). International Criminal Court Prosecutor Luis Moreno-Ocampo says Libya can try Saif and Senussi but the Pre-Trial Chamber says ‘hold your horses!’

In short, the narratives emerging from Libya as they pertain to the ICC have been anything but coherent. Even for the most keen observers and commentators, it has been tough to keep track of and distinguish between what was information and what was mis-information.

Today was no different. Reuters first quoted interim Libyan Justice Minister, Ali Khalifa Ashur as saying the ICC’s Pre-Trial Chamber had decided it would respect Libya’s desire to try Saif. Within the hour, other agencies declared that judges at the ICC had done no such thing. A basic search for “Libya + ICC” reveals a Google News mess: a slew of articles with contradictory headlines, some referencing the original Reuters article, others citing the updated news that the ICC hasn’t ruled yet.

In the midst of the confusion, the ICC was forced to clarify that it had not, in fact, ruled on whether it had accepted Libya’s application to try Saif domestically. Yet the ICC hasn’t helped make things much clearer during this process. Readers will recall the confusion that set in when Prosecutor Moreno-Ocampo suggested that Libya could try Saif and Senussi, only to be rebuked by the Pre-Trial Chamber.

Ocampo in Libya

Libya's interim justice minister, Mohammed Alagi, left, ICC chief prosecutor Luis Moreno-Ocampo in Tripoli last November (Photo: Sabri Elmhedwi / EPA)

Last week, Libya’s National Transitional Council (NTC) was due to inform the Pre-Trial Chamber of its plans to try Saif. Instead, it applied for a three-week extension – until the 31st of January. The Pre-Trial Chamber ruled that it could have until today, January 23rd. The basis on which the Pre-Trial Chamber ruled is anyone’s guess. It was not clear in its judgement how it came to its decision or why. Continue reading →

Posted in Libya, Libya and the ICC, Outreach, The Tripoli Three (Tripoli3), UN Security Council | 3 Comments

How you get to Justice in Conflict

Posted on January 19, 2012 by Mark Kersten

A significant part of the traffic JiC gets comes from people using a variety of search engines. As we approach JiC’s one-year anniversary, I thought it would be a good time to share some of the funnier and sillier searches that lead readers to JiC as well as brief commentary on each. I’ve selected 10 but they are in no particular order.

1. why syria not libya – seriously, shouldn’t it be the other way around?

2. william a. schabas anti-american – I’m not sure he’d appreciate that!

3. justice is conflict – we didn’t say it!

4. somalia 1980’s pictures – something tells me they didn’t find neon-colours and tight pants.

5. john – someone got to JiC five times searching “john”. I wonder whether (hope, really) they had the name John in mind. In any case, weird.

6. where is gaddafi today 05/15/2011 – still alive.

7. criminal supermodel – My guess would be that they were looking for Naomi Campbell.

8. the middle man kersten – I like it!

9. nuremberg sunglasses – gotta have them if you’re going to be on trial for international crimes!

10. gaddafi sunglasses – he’s seen sunnier times, no doubt.

Thanks, as always, for your readership!

Posted in Humour, JiC News | 1 Comment