Thoughts from the 10th Session of the Assembly of States Parties to the ICC

Posted on December 13, 2011 by Mark Kersten

Teddy reports for JiC from New York, where the Assembly of States Parties’ meetings are currently under way. His focus in this post is on the complex process of electing six new ICC judges. Enjoy! 

A group of ICC Judges (Photo: ICC)

Thoughts from the 10th Session of the Assembly of States Parties to the ICC

It’s Monday afternoon and I’m sitting in a windowless conference room that is half full, with diplomats wandering in and out and interns sitting dotted about watching a video about the ICC that is supposed to be keeping everyone entertained for this break in the proceedings. Every desk surface in sight is covered with fliers, sweets and some other more lavish gifts all designed for one purpose – to persuade the 120 states parties of the Rome Statute to vote for one or another candidate running for the position of ICC judge.

This is the break in proceedings while the secretariat members count the ballots from the first round of voting. There will almost certainly be another three or four rounds to come over the next few days before we know which of the eighteen candidates will fill the six spots available on the ICC bench.

The voting system is spectacularly complex. It was constructed by an official from Liechtenstein in 2002 and is designed to meet two conflicting needs in the elections: the first is to have an open election that delivers the best candidates, and the second is to deliver a result that takes into account the geographical origin, gender and background of candidates.

The ASP, meeting in 2010 (Photo: Coalition for the ICC)

The system essentially goes as follows: there is a minimum voting requirement for each region. So, for instance, for Latin America and the Caribbean, everyone has to vote for at least two candidates. However, the group is required to put up at least four candidates (they have put up five this time). This means that it is extremely likely that there will be a number of Latin American candidates elected, but it is not guaranteed.

If that seems complex, then hold on because we’re just getting going. The same minimum voting requirement exists for the nature of candidates they are, defined by the terms “List A” and “List B”. List A candidates are those with a background in criminal law, List B candidates are those with a background in general international law, and there are minimum requirements for each category. Continue reading →

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

Transitional Justice and Graffiti in Libya

Posted on December 12, 2011 by Mark Kersten

It may not be as ‘sexy’ as international trials or even truth commissions. It’s not as political or high-stakes either. Memorialization, however, is an essential element of transitional justice. In this context, a fascinating debate is taking place about what to do with the vibrant graffiti that has blossomed on the hitherto barren and depoliticized walls of Libyan cities and towns.

It might be a stretch for some readers to hear that graffiti is an integral part of transitional justice. But if transitional justice, the definition of which has never really been clear, can be broadly understood as the decisions and efforts of a society to reckon and deal with the past, then Libyan graffiti amounts to a very visceral element of transitional justice in Libya. As the International Center for Transitional Justice wrote in a 2007 report:

“In vastly different contexts communities see public memorialization as central to justice, reconciliation, truth-telling, reparation, and coming to grips with the past.”

In the emerging study of transitional justice, memorialization has received uneven and inadequate attention. The immediate artistic expression of struggle for freedom, democracy and justice has received even less attention. Yet, in the case of Libya, graffiti is, to a remarkable extent, Libya’s first moment of democratic expression.

The amount of graffiti across Libya is astonishing and suggests a deep-seated need to express both disdain for the past Gaddafi regime and the hopes for a new future. According to one report, “[p]erhaps the most spontaneous expression of the uprising can be seen on the street, with graffiti covering so many surfaces at some point the new government eventually may have to place some limits.”

It’s not always pretty – most of it is unimpressive and simple. But numerous graffiti murals are beautifully detailed and satirical. More importantly, the graffiti is a symbol of resistance and the drive to a free and just Libya. Remarkably, during the conflict, Libyans  in Gaddafi-held areas even took the risk to ruin pro-Gaddafi murals with graffiti.

Below I have included a gallery of some of the artwork that was created during the conflict. Many of the pieces evoke the impassioned and desperate desire for a better life and a life beyond a tyrannical police state. Painted over cracks in the wall, they represent amongst the first – and certainly the most colourful – cracks in Gaddafi’s rule. Less than a year ago, expressing such anti-Gaddafi sentiments would surely have guaranteed their authors’ imprisonment, torture or death.

The graffiti sprayed across Libyan cities is in itself a symbol of breaking with the past. As Rana Jawad writes:

“The graffiti and street art in post-revolution Libya is a constant reminder of what most fought for this year – to topple 42 years of tyranny.”

Art often captures the shared values and sentiments of a society much better than politics or violence. The graffiti splayed across Libyan cities is no different. Yet while many pieces should be celebrated and preserved, much of it also betrays the nastier side of post-conflict Libya. Many murals entail vicious glorifications of violence. Some are anti-semitic and racist. Less violent, but perhaps still problematic, others reify the fractured and fragile tribal divisions in the country. Over the coming weeks and months, Libyans authorities will have the difficult task of deciding which murals will become memorials and which will have their images and messages wiped away. Continue reading →

Posted in Libya, Memorialization, Peace Processes, Transitional Justice | 6 Comments

The Crime of Aggression: A Step into the Wrong Direction?

Posted on December 10, 2011 by Patrick Wegner

This is the third piece of a short series of posts on the provisions concerning the crime of aggression which were passed at the Rome Statute Review Conference in Kampala in May 2010. You will find the first post by Teddy Nicholson here, and Mark’s answer to it here.

Defendants at the Nuremberg Trial (Wikimedia Commons)

Teddy Nicholson is very right in seeing the crime of aggression as fulfilling the true legacy of the International Military Tribunal (IMT) in Nuremberg. As he points out, the German leadership was not prosecuted for war crimes, crimes against humanity and the genocide of European Jews, Sinti, Roma and all those who did not meet the ‘requirements’ of Nazi ideology. Rather, the prosecution followed an idealist and deeply political quest to make war illegal by creating ‘crimes against peace’.

Former US Supreme Court judge and US Prosecutor at the IMT Robert Jackson was a driving force behind this ‘mission’. One result of this political focus was a certain lack of attention for the victims. The crimes against ordinary people that had been tortured, raped, forced to labour, or killed by German soldiers, militias and officials were not the main issue of the trials. From my point of view this particular aspect of the legacy of the Nuremberg Trials is deeply flawed, despite an overall very positive contribution of the trials to bringing the leaders of Nazi Germany to account and pushing an agenda of getting to terms with the past (‘Vergangenheitsbewältigung’) in Germany.

The politicized nature of the IMT was acceptable in the context of its time. It was the first attempt to try crimes of an unspeakable and unprecedented magnitude on an international level. Nothing like this had been done before, and the necessary provisions were not in place. It was the right thing to go forward with the trials and set an example for the future. The lack of attention for the crimes committed against the victims can be excused on similar grounds.

Yet, international criminal law has moved on since the Nuremberg Tribunal. The International Criminal Court prides itself to be a victim centred court, which is a departure from the Nuremberg legacy that very few would criticize. Along the same lines, the ICC should move forward and not slide back to Nuremberg times in terms of avoiding political justice. From my point of view, the concept of the crime of aggression opens the door for a further politicisation of the ICC.

Review Conference of the Rome Statute in Kampala, Uganda

Let us have a look at the compromise struck in Kampala first. The main question was whether the UN Security Council would trigger the jurisdiction of the ICC or if a Chamber of the ICC itself would decide whether the Office of the Prosecutor could start an investigation in a case. The UN Security Council already plays a role in the jurisdiction of the Court as it has the power to refer cases to the ICC (as happened with Darfur and Libya) or to defer them for 12 months if the Council deems it necessary. I have criticized the role of the UN Security Council as a trigger for ICC jurisdiction in the past, because I believe it brings political considerations into the system. Continue reading →

Posted in Crime of Aggression, Iraq, Kuwait, Nuremberg Trials, UN Security Council | Tagged , , , , , , , | Leave a comment

The Crime of Aggression: Why (Not) Care?

Posted on December 7, 2011 by Mark Kersten

As promised, here is my response to last week’s post on the crime of aggression. I had intended to have it ready earlier, but the dramatic events of last week (see here, here and here) have kept me occupied. I should note that this isn’t my area of expertise and welcome any comments from readers.

(Photo: Getty Images)

The Crime of Aggression: Why (Not) Care?

In his reflections on the definition of the crime of aggression, agreed to at the ICC’s Kampala Review Conference, legal scholar William Schabas concluded:

“Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come.”

Yet, as Teddy suggests, there is something of a winter sleep over the subject and the silence is rather perplexing. It could simply be that, given that this category of crime only becomes operational in 2017, there’s just no rush to talk about it. It is not as if the events of the past year haven’t provided observers with enough to talk, argue and write about. And, as for international criminal lawyers, they’re no doubt busy with other things at the moment!

In his post, however, Teddy suggests that there is something altogether more pervasive that has stunted interest in the crime of aggression:

“I have become increasingly convinced that this is because those who work in or around the Court on a regular basis tend to see the core mission of the ICC as fitting in with a human rights agenda and don’t know how to deal with the crime of aggression.”

Is it possible that the focus on human rights in international criminal justice causes those interested in the ICC to ignore the crime of aggression? My short answer is yes, it is possible. A case could be made that the crime of aggression is ignored because of the narrow focus of human rights on the individual, more generally, and individual responsibility in particular.

Underpinning the human rights regime and the development of international criminal justice has been a myopic focus on the individual. I have previously argued that this is the result of the rise of liberal cosmopolitanism: the belief that all individual humans form part of a global community with the same basic and inalienable rights.

In this context, the crime of aggression sits uncomfortably between individual and collective state accountability. If we accept this to be true, it would be possible to argue that the focus of the human rights regime and the ICC on the individual makes it difficult for human rights and international criminal justice advocates to “deal” with the crime of aggression – a crime that is perpetrated by states and not individuals.

However, it seems unlikely that human rights or international criminal justice advocates would have a problem pursuing individual accountability for crimes that are, to a significant extent, collective in nature. Despite some criticism from scholars, the international criminal justice project has not hesitated to attribute individual responsibility to crimes that are very collective.

My longer answer, however, as to why the crime of aggression has not received much attention since its codification is because, as it stands, its potential to “revolutionize” the conduct of aggressive war is minimal at best, and hypocritical at worst.

While many celebrate the fact that states have agreed to a definition of the crime of aggression, it was rather telling that, in reaction to the agreement, Christian Wenaweser, president of the assembly of state parties of the International Criminal Court didn’t exactly sound ecstatic: Continue reading →

Posted in Crime of Aggression, Human Rights, International Criminal Court (ICC), Justice | 3 Comments

Justice in Bangladesh: What to Expect

Posted on December 6, 2011 by Elke Schwarz

Dawood Ahmed joins JiC for this post to update readers on judicial proceedings at the Bangladesh War Crimes Tribunal. You can find his introductory piece on the subject here. Enjoy!

The Bangladesh War Crimes Tribunal (Photo: RNW)

Justice in Bangladesh: What to Expect 

Bangladesh appears to be powering ahead with its war crimes tribunal, established to try those who collaborated with the Pakistan army in committing war crimes during the 1971 independence war. On Nov. 20th, its first suspect, Delwar Hossain Sayedee was charged. I wrote here about the historical context in which the tribunal was established.  The Bengali government has also now upped its ante by demanding a formal apology from Pakistan, although it is not clear whether this is forthcoming.

The tribunal has been welcomed by many as a late but useful tool to “set the record straight”, so to speak. Nevertheless, though many were killed or suffered in other ways that year, the fact still remains that the tribunal is thought to be a kangaroo court.

A major criticism relates to case selection. Although the tribunal claims comprehensive jurisdiction to “try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces, irrespective of his nationality”, it is not prosecuting Pakistani soldiers or members of the Bangladesh military. It is chasing only easy targets, members of the opposition parties comprising the Bangladesh Nationalist Party and the Jamaat-e-Islami – indeed all seven defendants who are currently under investigation are elderly members of the opposition, some of whom were clearly against the creation of Bangladesh, but membership in itself does not, of course, make one necessarily guilty.

True, trying only political opponents reeks of strategic behavior, but not trying Pakistani soldiers or members of the military can hardly be said to be an unreasonable strategy. In an ideal world, it would no doubt be a good deterrent if everyone would internalize the costs of their crimes through punishment, but perhaps the government simply wants to achieve a symbolic closure and understandably not let the ‘perfect’ be the enemy of the ‘good’.

Bangladesh, like Pakistan, has seen the military overthrow the elected government a number of times in its relatively short history; the most recent coup was in 2007. Who then can blame the government for not wanting to upset the military?

(Photo: RNW)

In relation to trying Pakistani soldiers, it is wishful thinking that this was ever a possibility. Even after the war, when Bangladesh had access to Pakistani suspects and could collect fresh evidence against them (a video of the surrender is here for those interested in history), they could not succeed in doing so. So, what makes critics think that, 40 years later, Pakistan, would hand over some of its soldiers (many are dead, some are retired now) to be tried in Bangladesh for absolutely nothing in return – and frankly, what could Bangladesh offer to convince them? Continue reading →

Posted in Bangladesh, Justice, Transitional Justice, United States, War crimes | 3 Comments

Fifth ICC Warrant in Darfur Case Announced – Sudanese Minister of Defence Indicted

Posted on December 2, 2011 by Patrick Wegner

The ICC Prosecutor seeks a warrant against the Minister of Defence of Sudan, Abdelrahim Hussein

It is a busy week for criminal justice and for Sudan in particular. On Monday, the Kenyan High Court issued a domestic arrest warrant against Sudanese President Omar al-Bashir. Today, Friday 2nd of December 2011, Luís Moreno-Ocampo requested the Pre-Trial Chamber I of the ICC to issue an arrest warrant for the Sudanese Minister of Defence, Abdelrahim Mohamed Hussein. After warrants had been issued for the then Minister of State for the Interior, Ahmad Muhammad Haroun, and Janjaweed leader Ali Kushayb in 2007 as well as for Sudanese President Omar al-Bashir in 2009 and 2010, this is the fifth arrest warrant that the Chief Prosecutor pursues in the Darfur case (three rebel commanders that were allegedly responsible for an attack on an African Union Mission in Sudan based in Haskanita all received summonses to appear). The application for a warrant of arrest for Hussein includes charges of war crimes and crimes against humanity committed in Western Darfur from August 2003 to March 2004. Hussein was Minister of the Interior during that time and was in charge of the Darfur file as Representative of the President in Darfur. Hussein in turn appointed Haroun as Head of the Darfur Security Desk. The Office of the Prosecutor (OTP) has thus now indicted the entire chain of command for atrocities allegedly committed in Darfur. It starts with the Janjaweed leaders on the ground that allegedly implemented the orders coming from the Government of Sudan, represented by Ali Kushayb. It then moves up through Haroun, who allegedly coordinated the Janjaweed attacks, and Hussein, who was in charge of Darfur in the Government of Sudan, all the way to the top until reaching President al-Bashir, who allegedly condoned and steered the whole campaign.

For those not familiar with the Darfur conflict, the Government of Sudan has been accused of orchestrating a brutal counter-insurgency campaign targeting the alleged supporters of ‘African’ rebel groups in Darfur who took up arms against the ‘Arab’ domination of Sudan and Darfur. The Government of Sudan allegedly recruited Arab militias, the so-called Janjaweed, to attack ‘African’ villages and displace their inhabitants. The Sudanese Armed Forces were either directly involved in the attacks with ground troops or supported the Janjaweed with gunships and Antonov planes bombing the villages. Hussein is accused of overseeing these government operations in Western Darfur.

A group of Janjaweed militia fighters

The indictment of Hussein does not come as a big surprise. The OTP had already announced publicly that it was conducting a third phase of investigations in Darfur. Hussein’s role in the Sudanese counter-insurgency campaign in Darfur was also widely known before today’s application for an arrest warrant. Human Rights Watch included him on a list of national government officials responsible for atrocities in Darfur in December 2005. Indeed, many experts doubted the wisdom of directly indicting President al-Bashir instead of taking somebody further down the chain of command first. Chances are that the ICC could have received support from the African Union for an arrest warrant against the Minister of Interior if it had not rushed for the grand price by indicting al-Bashir. Instead the al-Bashir warrants caused a rift between the ICC and the African Union that complicated the Court’s work in later cases like Kenya and Libya. I doubt that the OTP was completely surprised by the strong reactions. Staff members told me that they think the international community did not react to remarks by Moreno-Ocampo that he was moving up the chain of command because nobody was expecting him to go directly for the President.

Why take the step to indict President al-Bashir if a controversial reaction was to be expected? The answer is simple: Moreno-Ocampo started pursuing a strategy of public shaming against the Government of Sudan after he failed securing the arrests of Haroun and Kushayb. In this context, going for a public arrest warrant including the crime of genocide against the head of state was an extreme but logical choice. This strategy has again been confirmed in the OTP announcement concerning the warrant for Hussein. It says: ‘After careful consideration, the Office of the Prosecutor has decided to publicly seek a warrant against Mr. Hussein to encourage further public focus on Government of the Sudan policy and actions, and promote cooperation […].’ After the Darfur conflict had been increasingly overshadowed by developments in Libya and Syria, the Office of the Prosecutor apparently decided it was time to heighten the pressure on Sudan again. The application for a warrant notably comes shortly before Moreno Ocampo’s next briefing on the Darfur case at the UN Security Council on December 15th.

A burning village in Darfur

Moreno Ocampo’s motivations behind pursuing the new warrant are not hard to guess. First, he wants to show that the ICC has not lost the tug-of-war with al-Bashir. After visits by the President to several Member States of the ICC, the Court had started looking like a toothless institution. The warrant is an announcement that the ICC is not giving up on Darfur. Second, as shown above, indicting Hussein is the logical conclusion of the investigations so far carried out in Darfur since the warrants would now cover the whole chain of command involved. Ocampo did not want to leave unfinished business, he was also eyeing his legacy at the ICC in the Darfur case when applying for this warrant. Third, and in a similar vein, Moreno-Ocampo might be reacting to some of the criticism leveled against the Court during its Darfur investigations. Jumping directly to al-Bashir had been a controversial decision. Indeed, Human Rights Watch recently called on Moreno-Ocampo to indict senior officials below President al-Bashir in a critical report about his legacy at the OTP, again explicitly naming Hussein. In many ways the Darfur investigations during the era of Moreno-Ocampo came to their logical conclusion through this application for a warrant of arrest for the Minister of Defence.

That the warrant could change anything about the lack of cooperation of the Government of Sudan or could serve to focus international pressure on Sudan is doubtful though. The European debt crisis and the situations in Iran and Syria are currently binding most resources of the international community. Considering its history of sucessfully deceiving the international community for years, I doubt that the Government of Sudan is too worried that the new warrant could lead to some kind of coordinated action by the international community at the moment.

Posted in African Union (AU), Crimes against humanity, Darfur, ICC Prosecutor, International Criminal Court (ICC), Sudan, UN Security Council, War crimes | Tagged , , , , , , , , , | Leave a comment

A Done Deal: Bensouda is Next ICC Prosecutor

Posted on December 1, 2011 by Mark Kersten

Fatou Bensouda: the ICC's next top Prosecutor.

According to Colum Lynch and a few other observers, Fatou Bensouda will become the next top Prosecutor at the International Criminal Court.

Earlier this week, the ICC announced that the four short-listed candidates (Robert Petit of Canada; Andrew Cayley of the UK; Mohamed Chande Othman of Tanzania; and Fatou Bensouda of Gambia), had been whittled down to two.

It has become apparent that the ICC’s Assembly of States Parties wanted to avoid an election by deciding on a “consensus candidate.” Kevin Jon Heller, at Opinio Juris, suggested that the ICC likely conducted informal polling which made clear that a consensus had formed around having an African Prosecutor. Othman subsequently decided to step aside, allowing Bensouda to emerge as the sole candidate for the job. In all likelihood, Othman understood his chances were slim-to-none given that the African Union – which had decided to support an African candidate for Prosecutor – endorsed  Bensouda.

Many readers of JiC will know that Bensouda has long been the favoured candidate to replace outgoing Prosecutor, Luis Moreno-Ocampo. Her name was consistently and emphatically mentioned by observers of the Court. This past September, I argued that the stars had aligned for Bensouda – she had the ICC’s top job “in the bag.” Bensouda clearly satisfied all of the political and merit-based criteria to become the ICC’s chief Prosecutor.

The selection of Bensouda as a consensus candidate is important for a number of reasons. Here are a few:

First, the selection of Bensouda, just weeks prior to the day originally set for an election, removes the possibility of a highly political election. Of course, this isn’t necessarily a good thing. An election would have created additional buzz and discussion about key issues surrounding the ICC and its first decade of work.

How will the legacy of current ICC Prosecutor, Luis Moreno-Ocampo, be judged?

Second, Bensouda becomes the first African Prosecutor at the ICC. This fact will almost surely garner the most media attention. The African Union has been adamant that an African candidate would be selected, and they got their wish. It will now be very interesting to see how the AU deals with an African Prosecutor. The AU has often expressed frustration and, at times, outright hostility towards the Court for what it, and many of its member states, see as undue bias towards African nations and leaders. Now that the AU has its chosen candidate, will its attitude and rhetoric change?

Third, Bensouda’s ascension to the top job is another remarkable feat for gender parity in international institutions and international politics. The United Nations has never had a female Secretary General. The World Bank has never had a female President.

Fourth, the ICC not only has a lot on its plate, but the number of courses being served is ever-increasing. In the past year alone, two additional situations (Ivory Coast and Libya) were added to the growing list of contexts in which the Court is conducting official investigations and prosecutions. It is not out of the question that others, like Syria, will join Libya, Ivory Coast, Kenya, the Democratic Republic of Congo, Sudan, the Central African Republic, and Uganda, in the near future. It would seem sensible to suggest that, as the Court’s current Deputy Prosecutor, continuity will serve Bensouda well. States didn’t want to mess with the AU on this one.

Fifth, and related to the last point, by all accounts Bensouda is a much more low-key prosecutor than Moreno-Ocampo. Her selection would thus appear to confirm the desire among states parties to select someone who will be more of a ‘secretary’ than a ‘general’ – a prosecutor who won’t ruffle as many feathers.

With Bensouda claiming the single most visible position in the international criminal justice firmament, attention will begin to shift back towards the tenure of the Court’s current Prosecutor. As the ICC’s first Prosecutor, Moreno-Ocampo’s time has been replete with controversy. But he also put the Court on the map and spotlight of international politics, in the face of nay-sayers, critics and a plethora of hostile forces. In the coming weeks, it will be interesting to read and hear retrospectives on a man who, arguably more than anyone else, has shaped the politics and pursuit of international criminal justice.

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UPDATE: on the issue of “secretary or general”, there has been a bit of confusion as to what this means. It is a phrase, developed to distinguish between UN Secretary Generals, intended to describe the style of their work, not the substance. As I suggested in an earlier post, readers and diplomats should not be fooled into thinking that Bensouda will shy away from the most difficult issues and getting things done, even if that means stirring the pot.

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), Next ICC Prosecutor | 9 Comments

Tightening the Noose? The Kenyan Arrest Warrant against President al-Bashir

Posted on November 30, 2011 by Patrick Wegner

President Omar al-Bashir was indicted by the Kenyan High Court on Monday, 28th November 2011

Reuters was amongst the first to report that the Kenyan High Court had issued a domestic arrest warrant against the Sudanese President Omar al-Bashir on Monday, November 28. Bashir was the first head of state indicted by the International Criminal Court for crimes committed under his command responsibility during the Darfur conflict in the western part of Sudan. The ICC has issued two arrest warrants against him: one for war crimes and crimes against humanity, issued in March 2009, and a second for the crime of genocide, issued in July 2010.

Despite the warrants the ICC has so far not been very successful in taking steps towards ensuring the presence of al-Bashir in a courtroom. Instead, the arrest warrants have led to a cat-and-mouse game between the Court and the indicted President.

At the same time the warrants have been the initial trigger for a row that developed between the ICC and the African Union (AU), which claimed that the warrants hindered peace efforts in Darfur. In a decision – interestingly taken in Sirte and driven by Muammar al-Gaddafi – the AU decided not to cooperate with the ICC by ignoring the arrest warrant for President al-Bashir.

Against this backdrop, it is difficult to tell how successful the ICC arrest warrants were in isolating al-Bashir and increasing the pressure on Sudan to extradite him. Comparing the number of official visits Bashir conducted before and after the warrants, it is clear that his freedom of movement has been reduced. While Bashir for example regularly visited Kampala, the capital of neighboring Uganda, before the warrants were issued, he has not been to Kampala since and has skipped at least two conferences there, including the AU summit in 2010. The warrants even led to a diplomatic row between Uganda and Sudan when the Ugandan Foreign Minister stated that Bashir would be arrested if he came to Uganda in the run-up to a conference in July 2009. In the meantime, AU Member States like Botswana and South Africa have confirmed that they would stand true to their commitments arising from the Rome Statute and arrest al-Bashir despite the AU decision to the contrary.

President al-Bashir arrives in Nairobi for the celebration of the new constitution in August 2010 (Photo: Stephen Mudiari)

Other ICC Member States like Chad, Malawi and Kenya have pointed out the conflicting obligations arising from the Rome Statute and the AU decision to justify their hosting of Bashir. Some other events have shown that it has become difficult for Bashir to travel freely, even to states not party to the ICC. In June 2011 al-Bashir cancelled a trip to Malaysia after massive civil society protests that prompted a cabinet meeting of the Malaysian government, discussing the invitation.

During a trip to China in summer 2011 al-Bashir’s plane had to return to Teheran, delaying the visit by a day, because Turkmenistan and Tajikistan had apparently not conceded overflight permissions. Other sources say Bashir was afraid of a plot to intercept his plane.

Against the background of this tug-of-war between supporters and critics of the ICC arrest warrants against Bashir, the recent ruling of the Kenyan High Court is an important development. First, it shows that the rift between supporters and critics does not only run through the AU, but has also emerged between parts of civil society and some governments in the Member States themselves. Continue reading →

Posted in African Union (AU), China, Crimes against humanity, Darfur, International Criminal Court (ICC), Kenya, Malaysia, Peace Processes, Southern Sudan, Sudan, Uganda, War crimes | Tagged , , , , , , , | Leave a comment

The ICC Nabs its First Head of State: Laurent Gbagbo Heading to The Hague

Posted on November 29, 2011 by Mark Kersten

Laurent Gbagbo: from Head of State to ICC detainee.

To all those who have bemoaned the International Criminal Court for its inability to lure heads of state before its judges: you have about a day or so to get it out of your system. If reports are correct, the former President of Ivory Coast, Laurent Gbagbo is being transferred to the ICC.

For the ICC, Gbagbo’s transfer is a significant victory. For the Ivory Coast, it remains to be seen how this most recent turn of events will affect the country’s attempts to achieve peace, justice and reconciliation.

A Political Coup for the ICC

In a piece I wrote for International Justice Day, I articulated what many observers probably already knew, but which seems even more pertinent today:

I believe that over the next year, the ICC will put its first former head of state in the dock. Now, don’t go making travel plans to see Sudan’s Omar al-Bashir or Libya’s Muammar Gaddafi facing judges in the Hague. My prediction, rather, is that the former President of Ivory Coast, Laurent Gbagbo, will be brought to the ICC. The Court’s Pre-Trial Chamber is still deliberating on whether to open an investigation in Ivory Coast, but it would be politically irresistible for the ICC not to accept. Gbagbo has already been detained, meaning a transfer to the ICC would be relatively easy. The Office of the Prosecutor would no doubt rejoice in the ability to say: “the Court is able to Prosecutor head’s of state – just look at Gbagbo!”

Violence ripped through Ivory Coast for months following a contentious presidential election (Photo: CNN)

Whether or not the ICC or its advocates like it, much of its success has been and will be measured on the battlefield of rhetoric and politics. In this context, it cannot be understated: Laurent Gbagbo’s imminent transfer to the Court is a massive victory for the ICC. In rhetorical terms, the argument, often proclaimed by critics, that the Court is impotent because it can’t get the “big fish”, has been decimated. Now the ICC and its champions will be able to say it was just a matter of time, we always knew we’d get the big fish. Under her blind fold, lady Justice is sticking her tongue out at the ICC skeptics.

Of course, such a simple narrative belies the fact that Gbagbo was deposed, in large part because of an international intervention. Unlike in the case of Sudanese President Omar al-Bashir, for example, Gbagbo has not been in power for months but rather has been held in detention. Regardless, these details don’t stick as well in the popular imagination as “we are trying a former head of state.”

Justice in Ivory Coast: Questions Remain

How a trial of Gbagbo at the ICC will affect peace, reconciliation and justice in Ivory Coast, remains uncertain. While some reports suggest the situation on the ground has been improving, the country was ravaged by instability, chaos and brutal violence before an international intervention, led by French troops, guaranteed Alassane Ouattara was instituted as President. Continue reading →

Posted in International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC | 2 Comments

Making War Illegal – The Crime of Aggression and the ICC

Posted on November 29, 2011 by Mark Kersten

Over the next few days, we will be publishing three pieces on the crime of aggression. With the first post, JiC welcomes Teddy Nicholson, an MSc International Relations student at the LSE with an avid interest in the subject. In this thoughtful critique, Teddy takes aim at the lack of attention paid to the crime of aggression which, he argues, has the potential to fulfill the real Nuremberg Legacy. Enjoy!

Former Nazi second in command, Herman Goering, sits in the dock during the Nuremberg Trials.

Making War Illegal – The Crime of Aggression and the ICC  

One of the less discussed but more remarkable developments in international criminal law was the agreement in June 2010 at the ICC Review Conference on the crime of aggression. The codification of laws against aggression has the potential to be one of the most profound shifts in the underlying institutional architecture of international society since the signing of the Rome Statute in 1998 and perhaps even the creation of the United Nations in 1945.

What makes the situation more remarkable is how little attention has been paid to the crime of aggression. What really brought this home to me was a discussion I had with a high level official from the Office of the Prosecutor of the ICC shortly after the review conference who told me that the OTP was paying limited attention to this new crime under the Court’s jurisdiction. This lack of interest in the subject was reinforced at a recent talk by an eminent jurist with a long career in international criminal law. When I asked him about the development of the crime of aggression, he gave a vague and generic answer which betrayed a lack of engagement with it. I have since become increasingly convinced that this is because those who work in or around the Court on a regular basis tend to see the core mission of the ICC as fitting in with a human rights agenda and don’t know how to deal with the crime of aggression.

Criminalizing Aggression: A Brief History

I have made some strong claims for the crime of aggression. In order to justify these, we need to take a look at the history of the crime.

There is a common narrative of international criminal law that treats the ICTY, ICTR and ICC as fulfilling the ‘legacy of Nuremberg’. This involves telling a story in which Nuremberg was a response to the hideous human rights violations in the Holocaust, and was followed by revolutions in human rights centered around the Universal Declaration of Human Rights, the Genocide Convention and the Geneva Conventions. International Criminal Law was then put on ice for 50 years by the Cold War until the 1990s when tribunals were established that would finally give teeth to the long-gestating international human rights movement.

Former Nuremberg Prosecutor, Ben Ferencz, dances during celebrations at the Kampala Conference where the crime of aggression was defined and enshrined in the Rome Statute (Photo: Margaret deGuzman)

The problem with this story is that it is an ahistorical account of what the Nuremberg International Military Tribunal (IMT) represents. Rather than the IMT being institutionally complementary to the human rights movement, it was designed to complement the UN Charter. It is often overlooked that the main crimes for which the Nazis were tried for were not crimes against humanity or war crimes, nor genocide (which hadn’t been codified), but crimes against peace – what we now call the crime of aggression. Continue reading →

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