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

A Maverick Judge Goes on Trial: Spain’s Dark Chapter

Posted on January 18, 2012 by Mark Kersten

Baltasar Garzón is on trial in Madrid (Photo: Getty Images)

The famous, for some notorious and, for most, controversial, Spanish judge Baltasar Garzón is now on trial in Madrid. Garzón, most famous for issuing an arrest warrant for former Chilean dictator, Augusto Pinochet in 1999, faces three individual trials. The most dramatic of the charges brought against him suggests that Garzón exceeded his judicial boundaries in an attempt to investigate those responsible for torture, murder and enforced disappearances during the 1936-39 Spanish Civil War.

Garzón’s trial presents an opportunity to highlight a fascinating – and still under-examined – story in transitional justice, namely the remarkable resistance to over-turning the country’s amnesty laws and confronting a brutal, if inconvenient, chapter in Spanish history.

Background: From Pinochet to Franco  

Garzón, often described as a “crusading” or “maverick” judge is one of the best known and most dramatic international criminal justice entrepreneurs. Together with ICC Prosecutor Luis Moreno-Ocampo and perhaps Richard Goldstone, Garzón has likely contributed to more headlines and news stories than any other judge or lawyer in the field.

Over the last 15 years, Garzón used Spanish Courts to pursue, with incredible vitality, the doctrine of universal jurisdiction. Not only did he indict Pinochet, but also Osama bin Laden and other members of al Qaeda in 2003. He subsequently attempted to indict a number of senior Bush administration officials for committing torture in Guantánamo Bay and elsewhere in the world. His judicial activism and creativity is divisive, leading to both derision and praise for his work. Yet it was only when  Garzón pursued justice at home, in Spain, that he found himself in really hot water.

Garzón’s attempt to open investigations into Spanish Civil War atrocities cannot be understood outside of the context of the 1999 arrest warrant for Pinochet. The indictment of Pinochet unleashed a largely dormant movement to recover Spain’s political memory of the Spanish Civil War crimes. It broke with Spain’s ‘pact of silence’, a pact reinforced by a 1977 blanket amnesty law protecting Franco-era perpetrators of human rights violations from prosecution. In large part, this disruption of the ‘pact of silence’ stemmed from an obvious hypocrisy exposed by the Pinochet indictment. Spaniards were widely supportive of Garzón’s efforts to bring Pinochet to justice, so how could Spain seek accountability for Argentine crimes when they were unwilling to do the same for Spanish crimes?

To make a long story short, the indictment of Pinochet helped to create the space in which Spanish civil society organizations could open an impressive challenge to the ruling ‘pact of silence’. As Ellen Lutz and Kathryn Sikkink have argued, the action by Garzón against the former Chilean dictator “lifted psychological, political and juridical barriers to justice” in Spain. This was evidenced in 2007 by the passing of the Law on Historical Memory by the government of President José Luis Rodríguez Zapatero, whose grandfather was a victim of a Spanish Civil War shooting squad. Importantly, the law explicitly condemned Franco-era crimes. Thus, perhaps it was only a matter of time before a judicial campaign would be waged against the pact, with Spain’s amnesty laws in its cross-hairs.

Garzón sought to shed light on Spain's shadowy past (Photo: AP)

Facing the Future – Confronting the Past  

The support for Pinochet’s indictment should not occlude the divisive nature of the debate in Spain regarding whether or not to investigate past crimes. There has always been, and there remains, a strong sense amongst some sections of Spanish society that any challenge to the country’s amnesties amounts to an unnecessary opening up of old wounds which could potentially destabilize the state. Further, as Encarnación has pointed out, confronting the past through exhumations and closing down memorials to Franco has not translated into unravelling the amnesties and there may be little mainstream political support for it.

Others disagree. The President of the Forum of Memory, for example, has argued that while

“[t]he ‘pact of silence’ was necessary for the transition to democracy…But it meant that our democracy was fundamentally flawed, resting on the impunity of Franco’s regime. It had to change.”

Continue reading →

Posted in Amnesty, Chile, Crimes against humanity, Spain, Traditional Justice Mechanisms, Transitional Justice, Universal Jurisdiction | 4 Comments

The Power and Politics of Transitional Justice

Posted on January 16, 2012 by Mark Kersten

Kara Apland joins JiC for a guest-post on transitional justice. Kara recently completed a Fulbright scholarship studying Human Rights at the London School of Economics and Political Science. She has worked with the Liberian Truth and Reconciliation Commission in Ghana and Liberia, and also completed the Arthur Liman Public Interest Fellowship at the International Center for Transitional Justice in New York. With this post, Kara offers a theoretical take on the politics of transitional justice, but one which should be read by practitioners and academics alike. Enjoy!

The Politics of Transitional Justice (Photo: Enrico Bertuccioli)

One of the overarching ideas this blog explores is the emerging trend of appealing to international criminal justice in (and in the wake of) conflict situations. The fact that “we no longer consider whether to pursue justice, but how and when” is part of the proliferation of the practice and perhaps more importantly the idea of transitional justice. The speed of TJ’s expansion is striking. It cycled through its celebratory phase, was consolidated as a field of knowledge and practice, and developed a body of critical literature within a decade of its formation as a concept. The tensions that exist within the “field” are also striking; transitional justice often seeks to balance conflicting ideas such as peace and justice, the international and the local, retribution and restoration, law and politics. As a field of knowledge it draws upon competing and conflicting disciplines and as a field of practice it attempts to apply unified narratives to a range of local experiences.

Christine Bell questions these contradictions. She argues that “Transitional justice does not constitute a coherent ‘field’ but rather is a label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavour.” For Bell, transitional justice encompasses three separate projects:

“an ongoing battle against impunity rooted in human rights discourse; a set of conflict resolution techniques related to constitution making; and a tool for international state-building in the aftermath of mass atrocity.”

Yet within the language and practice of transitional justice these three distinct projects are often combined, and sometimes confused. Instead of focusing on the incoherence of TJ as a field of knowledge and practice, I suggest we ask: what has brought these seemingly contradictory ideas together into a discipline? What is TJ? Why has it gained such prominence in the past two decades? What can it tell us about international politics and the pursuit of global/local justice?

Consider the following definitions:

  1. According to Ruti Teitel, who has been credited with first coining the concept, “Transitional justice can be defined as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”
  1. For Bell, “Transitional justice appears to be an established field of scholarship connected to a field of practice on how to deal with past human rights abuses in societies in transition.”
  1. Finally, the International Center for Transitional Justice defines transitional justice in terms of the range of responses that have come to constitute TJ as a field of practice; “Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programmes, and various kinds of institutional reforms”.

Most definitions of TJ include this language of “responding to” or “dealing with” past atrocities. In its clearest formation, knowledge and practice that falls within the “field” of transitional justice is unified as a response to a single problem: how to address past human rights abuses in the context of a shift in political order (political transition). This construction is backward looking and positions TJ as a neutral force with a moral purpose. Indeed much of the literature in the field describes and debates transitional justice approaches and their association with moral principles through which transitional justice “deals with” the past, namely: truth, justice reconciliation, memory, accountability. The degree to which these values are means to an (undefined) end, or ends in themselves remains unclear. The question lingering beyond the definition is: what is justice, and perhaps more importantly in a burgeoning democracy, who decides? In this sense, perhaps transitional justice is more aptly characterized as a question and the range of knowledge and practices that may be draw upon to respond to it. Continue reading →

Posted in Traditional Justice Mechanisms, Transitional Justice | 2 Comments

Trying Saif, Senussi in Libya: Why is Moreno-Ocampo so Lenient?

Posted on January 12, 2012 by Mark Kersten

ICC Prosecutor Luis Moreno-Ocampo in Tripoli (Photo: Mohammed Salem / Reuters)

I recently had the opportunity to attend a seminar on the International Criminal Court and complementarity in Libya, held by Leiden’s esteemed professor of  international law, Carsten Stahn. The seminar was organized by Jens Meierhenrich and was also attended by international relations and international criminal justice scholar Kirsten Ainley. Once the (excellent) presentation was over, we got into a conversation about ICC Prosecutor Luis Moreno-Ocampo’s leniency towards Libya’s insistence on trying Saif al-Islam Gaddafi and Abdullah al-Senussi. This post is an attempt to think through some of the possible explanations for Moreno-Ocampo’s complacent attitude.

The Background

Following the arrest of Saif al-Islam Gaddafi and (false?) reports that al-Senussi had been detained, there was an impassioned debate about where they would be put on trial: in Libya or at the ICC. A third option, supported by the Office of the Prosecutor and number of observers, was for the ICC to hold an ‘in situ’ trial in Libya, but this was apparently nixed by Libyan authorities. It quickly became clear that Saif would be tried in Libya, by Libyans.

During a visit to Tripoli to talk with the Libyan National Transitional Council, Moreno-Ocampo conceded that Libya could and would try Saif:

“The standard of the ICC is that it has to be a judicial process that is not organised to shield the suspect… and I respect that it’s important for the cases to be tried in Libya… and I am not competing for the case.”

It was an odd and, for some, frustrating statement for a number of reasons. One, it isn’t in the powers of the Prosecutor to decide. As many commentators have noted – and as the ICC’s Pre-Trial Chamber I has clarified – if Saif was to be tried domestically, Libya would have to file a complementarity challenge with the Court. Once the ICC’s Pre-Trial Chamber has approved the opening of an investigation, let alone issued arrest warrants, it isn’t the prerogative of the Prosecutor to decide where and when a trial can take place.

Second, the statement was quite out of character for Moreno-Ocampo. He has never so publicly – and obviously – expressed a desire to “return” a case. It would be unthinkable for Moreno-Ocampo to even entertain the possibility of having Sudanese President, Omar al-Bashir, against whom Moreno-Ocampo has had something of a personal crusade, put on trial in Sudan. Moreno-Ocampo also didn’t express much, if any interest, in having hearings in Kenya for the ‘Ocampo Six’. In sharp contrast, this is exactly what Moreno-Ocampo did in the case of Saif’s trial – much to the chagrin of those skeptical that Libya’s judiciary is sufficiently developed to take on the case, and wary of Saif meeting a fate similar to that of his father.

Here are a four possible reasons why Moreno-Ocampo chose to throw his support, at least nominally, behind a Libyan trial. Of course, some may be more persuasive than others and they are in no particular order.

1. Playing its Part in History: The ICC and the Arab Spring

It could be that Moreno-Ocampo sees himself and the ICC as having a starring role in Libya’s transition and consequently the Arab Spring more broadly. Who wouldn’t want a little bit of that star-dust?

As a result, it is possible that Moreno-Ocampo sees it in his purview to constantly and consistently support the aims of democratic, transitional forces in Libya – in this case, quite clearly, a domestic trial. Given that he will be vacating his office at the ICC within months, it is also possible that Moreno-Ocampo sees justice served in Libya as part of his legacy and believes that trying Saif in Libya is simply the right thing to do. Continue reading →

Posted in Human Rights, ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | Leave a comment

The Lack of Context in Discussions of Justice in Conflicts

Posted on January 11, 2012 by Patrick Wegner

One of the faces of international criminal justice in 2011, the late Libyan dictator Gaddafi who was indicted by the ICC

International criminal law and transitional justice are highly dynamic fields. 2011 has yet again demonstrated this by its sheer eventfulness.

The year started by the extradition of Callixte Mbarushimana to the ICC in January. A sealed arrest warrant had been issued against him for crimes allegedly committed in the Kivu region of the Democratic Republic of Congo. In the late February Resolution 1970 the United Nations Security Council referred the situation in Libya to the International Criminal Court (ICC). A conflict about the 2010 Presidential elections in Cote d’Ivoire between the incumbent Laurent Gbagbo and his challenger Alassane Ouattara escalated in the first quarter of 2011 and led to an intervention by France and the UN who arrested Gbagbo in April. The country had accepted ICC jurisdiction under Article 12-3 of the Rome Statute in 2003, a decision that was affirmed by Ouattara as legitimate President in December 2010. The Office of the Prosecutor (OTP) was thus monitoring an unfolding conflict in real-time for the first time in its history.

In May 2011 the International Criminal Tribunal for the former Yugoslavia was back in the headlines with the arrest of long-time fugitive Ratko Mladic. During the summer months of 2011 Uganda conducted its first national war crimes case by charging former LRA Commander Thomas Kwoyelo for crimes under Ugandan national law and the Geneva Conventions. This was followed by the decision of the US administration to send 100 combat equipped military advisors to LRA affected areas to support the hunt for Kony. In October 2011 ICC indictee Muammar al-Gaddafi was killed and the ICC authorized full investigations of the situation in Cote d’Ivoire. On 30th November 2011 ex-President Gbagbo was transferred to the ICC. In late November the focus started to move back towards Sudan and the Darfur situation. The Kenyan High Court issued a national arrest warrant against President al-Bashir and in early December the ICC unveiled its fifth arrest warrant in the Darfur case against the Sudanese Minister of Defence, Abdelrahman Hussein. In December Mbarushimana was set free by the ICC as the Pre-Trial Chamber denied to confirm charges.

Gbagbo was arrested when French soldiers under UN mandate intervened in the conflict in Cote d'Ivoire (Chapatte in 'Le Temps' of Geneva)

This short – and admittedly selective – overview of events in 2011 shows how fast the discourse on international criminal justice and transitional justice moves from one flashpoint to the other. Bloggers and researchers focusing on these topics struggle hard to keep up with the events and provide meaningful commentaries.

Many of those publishing on transitional justice – including myself – move from one situation to the next, pressed by the speed of events and the changing focuses of international attention. But this behavior carries some risks for the quality of our assessments. Continue reading →

Posted in Darfur, Democratic Republic of Congo, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Kwoyelo Trial, Libya, Lord's Resistance Army (LRA), Peace Negotiations, Peace Processes, Ratko Mladic, Sudan, Transitional Justice, Uganda, UN Security Council, Uncategorized, War crimes | Tagged , , , , , , , , , , , , , | Leave a comment

Bashir Visits Libya: But Where’s the West’s Condemnation?

Posted on January 9, 2012 by Mark Kersten
Bashir and Jalil

(Photo: AFP)

Unsurprisingly, the international criminal justice blogosphere is abuzz with news of Sudanese President Omar al-Bashir’s visit to Libya (see here, here and here). Bashir, as readers will know, is wanted by the Court for all three charges on the ICC’s menu: crimes against humanity, genocide and war crimes. Libya, of course, came under the jurisdiction of the ICC when the UN Security Council referred the country to the Court.

In Libya, many citizens have expressed anger at the National Transitional Council’s decision to welcome Bashir. Some have gathered in Tripoli to protest Bashir’s visit.

Predictably, human rights groups and defenders of the Court are livid. How, they ask, could Libya let one of the world’s most wanted men come for a visit? There’s a tinge of uncomfortable paternalism in some of the commentary – a bit of “you owe us not to do this” – but more remarkable is the utter silence of Western states towards the visit, apparently leaving news sources with only Human Rights Watch’s Richard Dicker to quote (see here, here and here).

Readers will know my thoughts on the West’s Arab Fling with the ICC in Libya. In my view, the ICC and international criminal justice more broadly, was essentially used and subsequently abandoned by key Western states. Once it became clear that it was better to eliminate Gaddafi than put him in the dock, the principles of international criminal justice were pushed to the wayside. This was always the risk when the UN Security Council, the most political of bodies cozied up to the Court. Continue reading →

Posted in Libya, Libya and the ICC, Sudan | 2 Comments

Yikes! Bashir Visits as Libya Defends Right to Try Saif

Posted on January 8, 2012 by Mark Kersten
Bashir in Libya

Sudanese President Omar al-Bashir and the head of Libya's National Transitional Council, Mustafa Abdul Jalil, in Tripolit (Photo: AFP)

There are two significant events to report on the pursuit and politics of justice in Libya. First, Sudanese President Omar al-Bashir, wanted for war crimes, crimes against humanity and genocide by the International Criminal Court, visited Libya to offer “advice” on the country’s post-Gaddafi reconstruction. Second, January 10 marks the deadline, set by the ICC, when Libyan authorities have to report to the Court on how they will proceed with a trial of Saif al-Islam Gaddafi and Abdullah al-Senussi.

Bashir in Libya

Bashir’s visit, while annoying and infuriating to human rights advocates, should come as no surprise. Good and peaceful relations with neighbouring Sudan is a priority for Libyan officials. Heck, good and peaceful relations between any country and another should be a priority. In all likelihood, the personal visit by Bashir is repayment for Sudan’s vocal and material support for the rebels in their plight and fight against Gaddafi. That being said, it is rather clear that Bashir didn’t so much support the rebels as absolutely loathe Gaddafi, calling the Libyan tyrant’s removal the “best piece of news in Sudan’s modern history.” (Really? Nothing better in your own country?!) Of course, none of this is of any comfort to human rights groups nor Sudanese rebels fighting against Khartoum.

Undoubtedly, there will be a debate as to whether Libya was under a legal obligation to arrest Bashir. While not a member of the ICC, Libya is under its jurisdiction, as a result of the UN Security Council Resolution (1970), which referred the situation in Libya to the Court. A similar debate has taken place when Bashir has visited non-member states such as China. While the problem this raises is one that deserves plenty of attention, I’ll leave it to lawyers and others who rejoice in legal interpretation. Politically, it’s a moot point: Bashir visited Libya.

It will be interesting, nonetheless, to see whether the ICC complains about Bashir’s visit to Libya. The Court has issued complaints to the UN Security Council regarding other states who have welcomed Bashir, most recently Malawi. Personally, I believe the less the Court has to do with the UN Security Council, the better. But the relationship between these two has become closer and the ICC could, in theory, complain to the Council that Libya abrogated its responsibility to the Court by allowing Bashir onto its soil and not arresting him.

More likely, though, Bashir’s visit will create greater distrust that Libya is serious about engaging with the ICC and guaranteeing a legitimate trial of Saif al-Islam Gaddafi and Abdullah al-Senussi. The personal visit by Bashir, the man for whom ICC Prosecutor Luis Moren0-Ocampo has been on a dramatic quest to put in the docket, would seem to indicate that politics trumps justice in Libya.

Bashir in Libya

(Photo: AFP)

What to do with the Tripoli Three Two?

It should be noted that while the ICC has set the deadline for Libya to explain its plans for Saif and al-Senussi, it is far from clear that Libya will oblige. Further, in the familiar chaos of a post-conflict nation, it has often been difficult to parse out fact from fiction.

Continue reading →

Posted in Complementarity, Darfur, Libya, Libya and the ICC, Peacebuilding, The Tripoli Three (Tripoli3), UN Security Council | 1 Comment

The ICC’s got an African Prosecutor: Does it Matter?

Posted on January 5, 2012 by Mark Kersten

Fatou Bensouda

Even since it became clear that Fatou Bensouda would succeed Luis Moreno-Ocampo as the ICC’s next top Prosecutor, I have wondered to what extent Bensouda‘s African background would matter. In particular, will the mere fact that Bensouda is Gambian and that the African Union endorsed her candidacy shift the relationship between the Court and Africa towards sunnier climes?

A few others have already touched on the subject. Both Dov Jacobs and William Schabas have rightly suggested that the nature of the relationship between African states and the ICC will be primarily affected by changes in policy rather than by the selection of an African Prosecutor. I don’t disagree, but I think that the endorsement of Bensouda by the African Union and her eventual selection as the Court’s “African Prosecutor” matters a great deal.

This much we know: African states have been deeply engaged with the ICC since its inception, they constitute the largest regional group of ICC member-states, and every arrest warrant issued by the Court has been aimed at Africans to date. This last point has become an issue for many Africans and African governments who see the ICC’s justice as being biased and selective.

Of course, it is important not to speak of “Africa” as if it is some unified, homogenous entity. While there is a clear and growing sense amongst many Africans of a shared “African” identity and – there is a frequent invocation of “this is Africa” and “we are African” – such sentiments of unity belie the tremendous diversity of experience, politics and opinion across the continent. This is as clear to the ICC with regards to the position of African states – and citizens –  as anything.

To date, all of the arrest warrants issued by the ICC have targeted Africans (Photo: The Economist)

A discussion I had a while ago with an ICC judge illustrates precisely this point. I asked the judge whether or not there was concern within the Court that African states had lent their support to Omar al-Bashir, following his 2008 indictment by the ICC. She responded that the situation was far more complex, in fact, recalling that in meetings between ICC officials and senior officials from African states, the representatives argued that al-Bashir should be brought to justice but that they could not say so publicly, given the domestic political climate in their countries. This is certainly just one instance of when mixed signals have been sent regarding an ICC case.

While I would gladly produce a chart in which all African states could be plotted according to whether they support, don’t support, or are ambivalent towards to the ICC, the reality is that there is a glut of African states where it simply isn’t clear. As with many other ICC members, some African states appear to take a politically pragmatic – one might say “realist” – attitude toward the Court: they calculate the political costs and benefits of breaking or upholding their obligations to the Rome Statute. Sometimes, as in the case of al-Bashir’s travels to African ICC member-states (eg. Kenya or Malawi), breaking their legal obligations is deemed more politically advantageous than upholding them. Other times, as with the apparent unwillingness of the vast majority of African states to give the “King of Africa”, Muammar Gaddafi, asylum, falling in line with the ICC is chosen as the wiser and less costly political path.

All this to say that, while often considered obvious, the relationship between African states and the ICC is anything but. So what of the appointment of Bensouda, “Africa’s choice”, to the post of ICC Prosecutor?

Continue reading →

Posted in African Union (AU), Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), Sudan, United States, Zimbabwe | Leave a comment