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.

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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?

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

Beyond Darfur: The ICC and Sudan’s Converging Regional Crises

Posted on January 3, 2012 by Patrick Wegner

Rebel fighters of the SPLM-N in Blue Nile, one of northern Sudan's new conflict areas (Peter Muller for New York Times)

If everything had gone according to script in international politics, Sudan would have been on the top of the international agenda for most of the first half of the year 2011. The independence referendum in Southern Sudan took place from 9 to 15 January 2011 and contrary to most expectations the voting went down largely without violence and reactions to first estimates of the result, predicting over 90 per-cent in favour of independence, were accepted by the northern ruling party.

On July 9th 2011 Southern Sudan became an independent state and, immediately afterwards, the 193rd Member State of the United Nations. Fears in the run-up to the proclamation of independence were running high as many experts predicted the separation process would spark border conflicts in sensitive areas like the oil-rich region of Abyei at the border between northern and southern Sudan. Even though those fears soon became reality with conflicts flaring up in Southern Kordofan, Abyei and Blue Nile, the country was kept out of the headlines for most of the year due to the natural and nuclear catastrophe in Fukushima, the victorious rebellion in Libya, the protest movement in Syria, and the financial crisis surrounding the Euro, to name just a few of the year’s top stories.

Yet, there would have been sufficient motives to focus on Sudan and its multiple conflicts in 2011. The Government of Sudan repressed any spill-over effects from the ‘Arab Spring’ quickly and efficiently in the first half of 2011, but nobody paid attention. Additionally, the Government of Sudan had started a renewed campaign of attacking, burning and looting African villages in perceived rebel strongholds as early as 2008. The attacks followed the familiar pattern of the Government of Sudan/Janjaweed offensive of 2004 and 2005, albeit with less intensity and some lulls during 2009 and 2010.

In 2011 the attacks have gained pace again since the UN Security Council was occupied with Libya and Syria during most of the year and the GoS once again aptly exploited this lack of international attention. The new offensive focused on the central Jebel Marra and Jebel Mun areas for most of 2011. At the same time Darfurian rebel groups (re-)unified under the umbrella of the Sudan Revolutionary Front in November 2011. The new rebel alliance also includes the northern sections of the Southern Sudanese government party Sudan People’s Liberation Movement – North (SPLM-N), as well as rebel movements from eastern Sudan unified under the Beja Congress umbrella. This latest development is of immense relevance for the Darfur conflict and the whole of Sudan for two reasons.

The late Khalil Ibrahim, former leader of the Justice and Equality Movement that is politically affiliated with the Sudan Revolutionary Front

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Posted in Darfur, International Criminal Court (ICC), Southern Sudan, Sudan, UN Security Council, Uncategorized, War crimes | Tagged , , , , , , , , , , , , , , , , | Leave a comment

JiC’s 2011 International Criminal Justice Awards!

Posted on December 30, 2011 by Mark Kersten

2011 JiC International Criminal Justice Awards!

For the pursuit and project of international criminal justice, 2011 has been nothing short of extraordinary. We will almost surely still be talking about 2011 in 2031.

This past year has brought an unprecedented – and even surprising – level of interest and scrutiny to the work of international criminal justice. With the possible exception of 1945-6, during which high-ranking Nazi and Japanese officials were tried at the Nuremberg and Tokyo Military Tribunals, no year to date has seen so much attention paid to the efforts of bringing perpetrators of some of the worst human rights violations to account. In the past 12 months, the International Criminal Court has become involved in new conflicts (Libya and Ivory Coast), elected a new Prosecutor (Fatou Bensouda), and has been confronted with new challenges (funding) – all of which has created much fodder for commentary.

The inaugural JiC Awards are an opportunity to reflect on the year past, the year ahead and to recognize the contributions and stories that made 2011 a year like no other for the pursuit of justice in conflict. These awards represent the best and the worst from 2011. Thanks for reading and enjoy!

Biggest Catch: It was a close call, but the prize for the biggest catch in international criminal justice in 2011 goes to Laurent Gbagbo, narrowly edging out Ratko Mladic. Gbagbo is the first former head of state to be in the custody of the ICC, marking a significant political coup for the Court and (hopefully) justice in Ivory Coast. Quite simply, in terms of victories for international criminal justice, Gbagbo is a head (of state) above the rest.

Best (Worst, really) Supporting Actor: There’s a myriad of individuals to choose from for this award, but the 2011 award goes to Abdullah al-Senussi, Muammar Gaddafi’s trusted henchman. While other perpetrators of atrocities have received greater attention this year and despite the lion’s share of attention being paid to the Western-groomed Saif al-Islam Gaddafi in Libya, al-Senussi holds the darkest secrets of the Gaddafi regime. Al-Senussi, not Gaddafi, is the “crown jewel” of justice in Libya.

Biggest Gaffe: This was a no-brainer. The biggest gaffe in international criminal justice was the target killings of individuals who really should have faced justice in the dock. It may be easier – and certainly a good thing – to live in a world where Osama bin Laden and Muammar Gaddafi are not able to wreak terror. But their assassinations were a missed opportunity for justice to be served and may pose a troubling counter-trend to international criminal justice.

Best Comedy: Not all talk of international criminal justice has been strictly serious this year. The funniest analysis of 2011 goes to The Onion for their report on the International Criminal Court’s Three Strikes Genocide Policy. The award for runner-up also goes to The Onion for their piece, ‘Lack Of Media Interest Makes Genocide Cover-Up Unnecessary.’

Biggest Surprise: In a year in which no one could have predicted the surging influence and impact of international criminal justice on international relations, there are a number of possible selections for this award. But nothing was as surprising as the role of international justice during the Arab Spring.

Prior to 2011 there had been minimal discussion about the potential relationship between international criminal justice and the Arab world.  Arab states were the least represented amongst members states of the ICC. Tunisia has since joined the Court and there have been reports that Egypt would follow suit. In May, the ICC held a regional conference in Doha, Qatar, where a change in tone amongst Arab states towards the ICC was palpable. So surprising was this shift in attitude that the ICC itself appears to have been caught off guard. Within months of the Arab Spring, the Court launched a program to boost the number of Arabic lawyers able to practice at the ICC and the Court hired Fadi el-Abdallah, formerly an Outreach Officer at the Court, to be an ICC spokesperson. If the first decade of the ICC’s existence was dominated by its interventions in Africa, it is at least worth wondering whether the next decade might be defined by its work in the Arab world.

Of course, serious questions remain for the role of international criminal justice in the Arab world. It is likely – and in Tunisia, it is already the case – that Islamic governments will be elected and it remains unclear how international criminal justice will fit with Sharia Law as well as Islamic customs and traditions.

Most Overlooked Story: It is perhaps inevitable that in the midst of a myriad of high profile stories this past year a number were barely covered. For the most overlooked story we picked one that even JiC has barely examined: the arrests of militia leaders in European exile. Callixte Mbarushimana was extradited to the ICC by his host country France. Congolese militia leader Ignace Murwanashyaka is now being tried by his host Germany. JiC author Patrick Wegner argues that “these developments show that militia leaders are less likely to find a comfortable safe haven in Europe.”

A close runner-up for neglected story was Uganda’s first war crimes trial. For a country where the “peace versus justice” debate was in full-swing just a few short years ago, very, very little was said – within and outside of Uganda – of the trial of Thomas Kwoyelo. However, as both Patrick and I have suggested, the Kwoyelo trial could have significant repercussions on both peace and justice in northern Uganda.

Best Site: Opinio Juris. The commentary at OJ is top-notch. Written by some of the world’s preeminent international law scholars, the site’s contribution to debates on international justice and international law are second to none. There simply is no match. For readers of JiC, OJ is of particular interest as it is one of the few blogs of its calibre that consistently wrestles with the politics of international law.

There are a slew of other great, must-read sites of note this year. Here are just a select few: IJCentral, The Open Society Justice Initiative, Wronging Rights, PhD studies in Human Rights, and RNW International Justice. Continue reading →

Posted in Fatou Bensouda, Funding, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, JiC News, Justice, Libya, Libya and the ICC, Nuremberg Trials, Osama bin Laden, Osama bin Laden and international law, Palestine, Palestine and the ICC | 1 Comment

Final thoughts from the ASP – Austerity and the ICC

Posted on December 29, 2011 by Mark Kersten

Teddy Nicholson gives his final thoughts on the Assembly of the States Parties to the Rome Statute of the International Criminal Court. His focus is on the controversial negotiations which resulted in a smaller than hoped for budget for the Court, despite an ever-growing caseload. For other analyses of this under-explored subject, see here, here and here.   

ICC Prosecutor

New ICC Prosecutor, Fatou Bensouda, is greeted by the CICC's Bill Pace (Photo: CICC)

The 10th Session of the Assembly of States Parties is now over, the debates are finished, the resolutions are adopted and the receptions and parties have come to an end. It has been an incredibly hectic few weeks, culminating in some dramatic negotiations with high stakes.

My last post on the ASP explained the incredible complexity of the process by which judges are elected. Those elections in the end ran to fifteen rounds of voting with the first three judges elected in the initial two rounds, and then about ten rounds with no result followed by the final three elected in the 12th, 13th and 15th rounds. For those keeping track, the six new judges are from Trinidad and Tobago, Philippines, Czech Republic, Dominican Republic, UK and Nigeria.

The biggest consequence of how long these elections ran, however, was that the negotiations on the other big issues were significantly delayed. The work on the ICC budget became by far the most difficult and politically contentious debate, and it was squeezed into the space of four days – Friday, Saturday, Monday and Tuesday, running late into the night on most of those days.

The battle-lines were effectively drawn between a group of five states, Japan, France, UK, Germany, Italy (the five biggest contributors to the ICC) and everyone else. Those five had prepared a paper detailing their proposal for a ‘zero nominal growth’ budget, meaning the same number as the 2011 budget.

The main problem with this, as many states pointed out in official and informal meetings, was that the work of the ICC is expanding fast. A year ago the ICC had five country situations on its agenda, today it has seven – a 40% increase in one year. This means that holding the budget at 2011 levels was extremely unpopular both as far as the Court and most states were concerned.

ICC Prosecutor Luis Moreno-Ocampo at a UN Security Council briefing on the ICC's investigation in Libya (Photo: Mario Tama/Getty)

Mark has previously discussed the budget issues facing the Court, pointing out accurately that there is nothing just about limiting the activities of the Court according to financial concerns, and this was a common argument in New York. The Committee on Budget and Finance (CBF) whose job it is to analyse the Court’s budget proposal, stated bluntly in their report this year:

“Simply put, the Court is reaching the point when the expectations on the type and level of activities and on the level of resources may be diverging.”

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Posted in Assembly of States Parties, Funding, International Criminal Court (ICC), UN Security Council | Leave a comment

Universal Jurisdiction in Germany: The FDLR Trial in Stuttgart

Posted on December 27, 2011 by Patrick Wegner

Ignace Murwanashyaka is the President of the FDLR and currently on trial in Stuttgart

Last week I wrote a post on the role of universal jurisdiction in dealing with atrocities committed during armed conflicts or dictatorships. The idea of universal jurisdiction is grounded in the notion that there are some norms in public international law which are important enough to bind everyone (jus cogens) and the violation of which is considered a crime against everyone. These so called erga omnes norms include, for example, genocide, slavery, torture and racial discrimination. Last week’s post focused on the attempts to try Chad’s former dictator Hissene Habré who is currently biding his time in Senegalese exile. This week I would like to take a look at the trial of an alleged leader of the Democratic Forces for the Liberation of Rwanda (FDLR, based on the French name) that started on 4th of May 2011 at the Oberlandesgericht (Higher Regional Court) Stuttgart in southern Germany.

The accused is Ignace Murwanashyaka, a Rwandan Hutu who received political asylum in Germany in 2000. He had previously studied Economics at the German University of Bonn and completed his PhD in Mannheim. He is married to a German with whom he had two children. The German Federal Prosecutor’s Office is accusing him of having travelled to the Democratic Republic of Congo several times between 2001 and 2006. He was allegedly using a Ugandan and a German passport under a false name and underwent two month of military training. A 2006 investigation on allegations of being involved in crimes against humanity was dropped due to a lack of evidence. Meanwhile, Murwanashyaka was wanted by Interpol, after Rwanda filed an extradition request that Germany has not answered to date.

In cooperation with the Office of the Prosecutor (OTP) of the International Criminal Court, the German Federal Prosecutor’s Office started to look into the case again within the scope of the ICC’s DRC investigations. Moreno-Ocampo has repeatedly commended Germany and France for their cooperation in the DRC investigations. This phase of the investigations led on one hand to the arrest of Callixte Mbarushimana by France in October 2010 and his subsequent extradition to the ICC in January 2011, and to the indictment of FDLR President Murwanashyaka and his deputy Straton Musoni for war crimes and crimes against humanity by the German Federal Prosecutor’s Office on the other. Germany had implemented the Rome Statute by legislating an international criminal code in June 2002, and thus decided to prosecute Murwanashyaka and Musoni at the national level based on this law.

An FDLR militiaman in Chinda, DRC (AP Photo/Riccardo Gangale)

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Posted in Crimes against humanity, Democratic Republic of Congo, Europe, France, Germany, International Criminal Court (ICC) | Tagged , , , , | 4 Comments

The ICC, Funding, and Bensouda: A Response from, and to, Dov Jacobs

Posted on December 23, 2011 by Mark Kersten
Fatou Bensouda ICC

Bensouda and Moreno-Ocampo (Photo: AP)

Dov Jacobs, one of the sharpest and most thoughtful commentators on issues of international criminal law and justice, has a few new posts up at his must-read blog, Spreading the Jam. In his latest piece, Dov considers and takes aim at a number of issues concerning the Assembly of States Parties meetings this past week in New York.

While the general sentiment towards Fatou Bensouda, recently elected as the ICC’s next top Prosecutor, has been overwhelmingly positive, Dov picks at an uncomfortable possibility: Bensouda’s complicity in the gaffes and controversies orchestrated by Luis Moreno-Ocampo during his tenure as the ICC’s top Prosecutor:

“I don’t think we can just brush under the carpet the fact that she has worked with Luis Moreno Ocampo for the past 8 years. He is certainly personally to blame for a number of errors of the OTP, most notably in terms of communication, but I cannot believe that he is alone responsible for all the blunders of his office. Under his mandate, 2 cases have not been confirmed by a Pre-Trial Chamber (Abu Garda, and more recently Mbarushimana) and the conduct of the OTP in the Lubanga trial should have led to the suspect’s release in a number of situations and possibly the removal or at least sanction of the prosecutor. I can’t imagine that Ocampo did not have some support from his office, including Bensouda, for a number of these disasters. In this sense, I’m not sure that continuity is such a good thing.”

It’s an interesting point and may, indeed, indicate a contradiction between the disdain held by many for Moreno-Ocampo and the support many have expressed for his number-two, Bensouda. At this point, however, most – including myself – appear to be willing to give Bensouda the benefit of the doubt and the space to define her tenure outside of the looming shadow of Moreno-Ocampo.

Perhaps Dov’s most important claim is in the second section of his post, where he considers the ICC’s new budget, widely viewed as a disappointment with potentially grave consequences for the delivery and quality of international criminal justice. What matters just as much – if not more – than the actual budget is how the Court uses the money at its disposal:

“There are some rather futile examples of misspending, such as a full page ad in the Economist. Equally, one could bicker about the salaries that are paid at the Court, which sometimes seem extravagant, especially to the humble university Professor that I am. But more fundamental questions should be raised in terms of priorities and mistakes. How much did the Mbarushimana and Abu Garda investigations cost, for such a poor result? How much has the poorly designed (and made worse by the judges) victim participation system cost the court in money and in time (and therefore in money)? Also, the Court complains that the UNSC is referring situations without contributing to the budget. I have a solution for that. Don’t take referrals from the UNSC anymore. For one, they are in some respect contrary to international law, but more pragmatically, doesn’t the Court have enough on its plate with State Parties, without delving into the affairs of non-State Parties? These are just a few policy considerations that need to be addressed in order to have a full and comprehensive discussion on the budget.” Continue reading →

Posted in Assembly of States Parties, Fatou Bensouda, Funding, ICC Prosecutor, International Criminal Court (ICC), Justice | Leave a comment

$ome (Potentially Very) Bad News for the ICC

Posted on December 22, 2011 by Mark Kersten

(Photo: Brian Marshall / LA Times)

Over the last week, member states of the International Criminal Court have gathered in New York City. They had a lot on their plate: select a new Prosecutor, select a new set of judges and decide on the Court’s budget.

Getting a new Prosecutor – Fatou Bensouda – proved rather easy; electing the Court’s next judges wasn’t. Reports suggest that the process was a confusing and rather arduous marathon. But both elections will surely be greeted with a great deal of optimism. The same can’t be said for the negotiations which led to the adoption of the ICC’s 2012 budget, described by one reporter as “a huge bone of contention in negotiations in New York.”

The ICC’s case load has expanded dramatically in the past year. Libya and Ivory Coast alone have strained the Court’s resources – and will continue to do so. Other investigations are ongoing and new cases are set to begin.

International criminal justice, of course, doesn’t come cheap. The cost of ICC justice is one of the primary criticisms in the justice-skeptic’s arsenal – although, it should be noted, the money spent on accountability for the worst violations of human rights is peanuts compared to the money spent on things like Hallmark cards and baseball teams.

Logic would dictate that as the number of investigations and cases before the ICC increases so too should its budget. That state parties provide the Court with an adequate budget is only more pressing because of the annoying and irresponsible practice of the UN Security Council of refusing to provide any funds in either of its referrals to the ICC (Libya 2011 and Sudan 2005). As Jonathan O’Donohue has noted:

“It is unrealistic to expect the ICC to grow in response to the demands of the international community and at the same time demand that the associated spending be absorbed without degrading the quality of the Court’s work.”

This week state parties finalized the Court’s budget, which will, in fact, increase – but not nearly as much as the Court and its proponents had hoped. In the wake of the budgetary negotiations, the mood wasn’t optimistic. O’Donohue, Legal Adviser for Amnesty International’s International Justice Project and leader of the Coalition’s Team of NGOs on Budget and Finance, had this to say:

“States parties have had such high expectations of the International Criminal Court, yet a few major contributors are not willing to fully fund it. Today’s budget decision could have damaging consequences in the Court’s work to deliver justice for victims of grave crimes.”

Continue reading →

Posted in Assembly of States Parties, Funding, International Criminal Court (ICC) | 3 Comments

The Crime of Aggression: Beyond Kampala

Posted on December 20, 2011 by Mark Kersten

Teddy Nicholson responds to posts by Patrick and myself on the crime of aggression. Enjoy!

The ICC's Assembly of States Parties to the Rome Statute in 2009 (Photo: Washington University)

I am currently at the Assembly of States Parties to the ICC meeting in New York and, while aggression has not been high on the agenda, there have been one or two very interesting discussions about it. The most notable was on the occasion of the book launch for the Travaux Preparatoires of the crime of aggression, masterfully brought together by Stefan Barriga and Claus Kreß.

At this event – and in several other conversations I’ve had with people here – I am beginning to get an altered view of the real significance of this particular development. There are, as far as I can see, three ways that the Kampala compromise can be seen: First, as an attempt to prosecute and try individual leaders for the crime of aggression at the ICC. Second, as an attempt to fill in a conceptual gap in the legal structure of international society.

These two have both been discussed, but there is a third way: considering aggression through the lens of complementarity.

‘Complementarity’ is one of the most frequently repeated words at the ASP this year. It is constantly mentioned in official statements by ambassadors and ministers at the podium as well as being the subject of detailed side events. The way we normally think about complementarity is as a limiting factor of getting cases to the ICC – it can only prosecute if states are unwilling or unable to do so themselves.

However, it is the other side of complementarity that states are really thinking about now – the domestic criminalization of international crimes, and the development of enhanced capacity to try them nationally. The most quoted line from Luis Moreno Ocampo over the past few days has been “the ICC will be a success when it has no cases.” This does not just mean that it will succeed when there are no crimes, but rather that it will succeed when states can prosecute cases themselves.

Hermann Goering (center) at the Nuremberg Tribunal.

What, then, of aggression? The message that I am increasingly hearing is that everyone involved at Kampala was somewhat aware that we are not likely to see cases of aggression tried at the ICC any time in the foreseeable future, even if Kampala had been a more comprehensive success. Furthermore, as Patrick Wegner pointed out, it is a crime that inevitably attracts more politicisation than the core three (genocide, war crimes and crimes against humanity) do right now. Continue reading →

Posted in Assembly of States Parties, Crime of Aggression, International Criminal Court (ICC) | Leave a comment

A Precarious Silence: North Korea and International Justice

Posted on December 19, 2011 by Mark Kersten

(Photo: TUNIN Source)

Just about everyone who doesn’t live under a rock will know by now that the mercurial and mysteriously ‘ronery’ North Korean leader, Kim Jong-il, has died. Yet, while the jokes and Team America references proliferate in the wake of Kim Jong-il’s death, the recent history of North Korea is nothing to laugh at. It is a history of massive structural crimes and human rights violations perpetrated against innocent people while the international community watched, preserving a miserable status quo.

Interested readers will remember that some attention was paid last year when the ICC’s Office of the Prosecutor opened a preliminary investigation into possible war crimes committed by North Korea when it shelled Yeonpyeong, a South Korean island. Despite this blip in attention, it remains stunning how little consideration North Korea receives in the context of international criminal justice – especially for the far graver crimes against its own people. Of course, some may argue that North Korea does not receive any attention because its crimes do not fall within the jurisdiction of the Court. But that seems far too weak an explanation – and far too defeatist an attitude for human rights advocates. It certainly hasn’t stopped demands, rushing forward in waves, to investigate crimes in Syria – also outside of the ICC’s jurisdiction.

While the repressive and isolated regime receives a significant share of international scrutiny, rather than putting human rights violations front and center, the attention paid to North Korea typically follows the ebb and flow of developments in its nuclear programme. The reasons for this neglect of North Korea as a potential case for international criminal justice reveal the complexities of politics in the Korean peninsula, yet they may not be all that intricate.

Many diplomats involved in dealing with North Korea understand and believe that the most costly outcome in the Korean peninsula – for them – is the collapse of the isolated, neo-Stalinist state. Since the division of Korea into North and South, the economic, social and political trajectories of the two countries could scarcely have been more divergent. Attempting to bring them together could very well be amongst the most expensive international political projects in recent memory. The refugee flows alone would be astonishing. The World Bank has argued that a reunification of the two Koreas would cost upwards of $2-3 trillion dollars, or some 5-6 times the yearly GDP of South Korea. Given past experiences in unification projects, for example East and West Germany, this is probably a low-ball estimate.

Kim Jong-il in Team America - Sorry, I couldn't help it!

Thus, it would appear that the single, over-arching reason why North Korea has been allowed to develop nuclear arms is because the status quo – which includes the repression of millions – is better (read: less costly) than reunification or a “free” North Korea. The North Korean leadership has always understood this realpolitik treatment and has consequently engaged in remarkably successful black-mail policies: it threatens regional states and stability, receives the political attention it seeks, and key states give it concessions and aid in exchange for a return to the status quo of quiet and reclusive, but unthreatening, tyranny and repression. Sanctions have proved largely ineffective – at least insofar as human rights standards are concerned.

If there is any doubt about the above, let me put it more bluntly: the international treatment of North Korea encourages the continued existence of the North Korean regime and, by extension, reinforces the conditions in which millions of North Koreans are subjected to systematic and systemic human rights violations. It is an embarrassing diplomatic back-and-forth that leaves civilians susceptible to hardship and horror. It is also a terrible indictment of the efforts to maintain and enforce global human rights standards. Continue reading →

Posted in Crimes against humanity, Czech Republic, Famine, Human Rights, International Criminal Court (ICC), Justice, North Korea | Leave a comment