The Middle Man: The Intermediaries of International Criminal Justice

Posted on August 21, 2011 by Mark Kersten

Dear JiC Readers: We continue this week with a new guest-poster at JiC, Holly Dranginis. Holly is a law student at Berkeley Law School and a researcher at the Berkeley Human Rights Center. She was a consultant for the International Criminal Court in 2008 and led capacity building initiatives in Northern Uganda with intermediaries and international nongovernmental organizations in 2009-2010. Most recently she interned on the prosecution team for the Charles Taylor case in The Hague. We hope to have Holly become a contributor and to share her experience and knowledge at JiC on a regular basis.

Holly interviewing intermediary staff in Lira, Uganda in 2010

The Middle Man: The Intermediaries of International Criminal Justice

Dr. Paul Farmer recently wrote for Foreign Affairs with a fresh perspective on the great challenge of aid in impoverished, disaster-affected and war-torn countries. To improve the quality and longevity of initiatives, he says, “Foreign contractors and international nongovernmental organizations (NGOs) need to find a better way of accompanying development partners.” This is as true for public international law as it is for public health. For the International Criminal Court (ICC), one barometer of good accompaniment and therefore in some ways, success in the overall mission, are intermediaries.

There is quite a rich debate in whether it is appropriate to place justice in conflict among the health and development initiatives that are Farmer’s area of expertise. But for a moment, let’s imagine that delivering rule of law, whether on an international, hybrid, domestic or community level is a form of aid alongside medicine and poverty-eradication that share glaring achievement gaps. Failure to do so may be precisely part of the problem we face in effective implementation.

Signs in Gulu, illustrating the onslaught of international nongovernmental organization offices in the small town (Photo: Holly Dranginis)

The Accompaniers

The term “intermediary” in ICC parlance is quite elusive, appearing nowhere in either the Rome Statute or the ICC’s Rules of Procedure and Evidence. A definition offered in a recent report by the Victims’ Rights Working Group (VRWG) says, “[An intermediary is] someone who comes between one person and another; facilitates contact…between one of the organs or units of the Court or Counsel on the one hand, and victims, witnesses…or affected communities…on the other.” With some exceptions including United Nations personnel, intermediaries are typically local nongovernmental organizations who do the investigating, liaising and translating that ICC personnel may be unable to do for lack of time, money and importantly, cultural familiarity. Intermediaries find key witnesses and crime sites, help interview and gather witness statements and navigate state political postures toward the Court. They also help witnesses and victims fill out forms on everything from reparations to protective measures and perform community outreach where ICC field offices are ill-equipped to cover their often vast geographic mandates.

The VRWG definition dovetails with Farmer’s explanation of accompagnateur, that is, someone who is “present on a journey” with the beneficiary and who says, “I’ll go with you and support you on your journey wherever it leads; I’ll share your fate for a while.” An intermediary staffer I met in Lira, Uganda last year who I’ll call Grace, explained her role in a similar way: “We as intermediaries know much about the victims. [The Court] must come down to the grassroots–not just come to get information from the RDC (local government minister), the district and so-forth. Those people don’t have the actual knowledge that we have.”

Value Added

Grace’s comment evokes Farmer’s reference to Roberto Goizueta’s warning against removed administration: “The tendency to ‘minister from safe enclosures’ rather than from the place itself,” causes significant problems in implementing successful initiatives and, as in ICC situation countries, gaining the trust and respect of your most important partners. The fact is, ICC personnel flying down from The Hague for a few days at a time rarely have the sensitivity, historical background, or cultural intuition to liaise with witnesses and victims effectively without the help of intermediaries.

Paicho IDP camp, Northern Uganda (Photo: Holly Dranginis)

Lawyers, like doctors, travel in the field to glean data, contextual understanding and the needs of their beneficiaries. Before writing indictments, they speak to the people about identifying those most responsible; before creating evidence charts they search for the best informants in rural villages; and before advocating for certain sentences, they find out how crimes impacted both individual witnesses and communities.

Intermediaries provide scalpels for these tasks where the Court may otherwise approach the situation with a hatchet. Intermediaries know the political and environmental elements essential for more effective implementation of witness protection. They know the code words for rape that informants use in communities where the original terms are taboo. They keep good track of who has given statements to whom, how consistent the stories are and the possible explanations for inconsistencies. They know who has gone for psychosocial treatment and who has not. They know which informants are sick with malaria and which informants are taking care of children sick with malaria. They know where, how and why NGO money flows within situation countries. They know where to find the bones of individual victims when court investigators may only have taken note of mass graves. We need these people. And importantly, they need support.

The Support Gap

In spite of performing a unique and critical duty, intermediaries are not without their flaws and there is healthy skepticism surrounding their continued role in cases before the ICC. In the aftermath of controversy in the Lubanga trial last summer surrounding the risk of intermediaries bribing and coaching witnesses, IntLawGrrls provided an excellent comment on the pros and cons of the involvement of intermediaries. Just as with witnesses, investigators, attorneys and anyone else critical to the process, intermediaries must be thoroughly vetted and monitored. There are high risks involved along the communication chain from village to courtroom. Intermediaries are capable of abusing their roles and tainting the legal process if they lie, use bribery, disclose confidential information, or falsify or exaggerate paperwork.

Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Uganda | Leave a comment

The (In)Justice of Famine (2): The Limitations of International Justice

Posted on August 18, 2011 by Mark Kersten

Photo taken during the 1984 famine in Ethiopia

There has been an ongoing and interesting discussion about whether the famine in Somalia constitutes a crime against humanity. Andrew Jillions, here at JiC, recently wrote a thought-provoking piece which examined whether famine could be considered a crime against humanity and, if it could, whether there was a case against al-Shabaab. Alana Tiemessen, at Duck of Minerva, has also written a great piece on the subject. This post is an attempt to take a step back from the particular case of the famine in Somalia by asking whether international criminal justice can and should prosecute structural violence.

My argument is simple: contemporary international criminal justice is limited by its inability to adjudicate structural violence, such as famine. Whether instruments of international criminal law, such as the ICC, can or should cover structural crimes is unclear. However, that international justice privileges direct violence over structural violence is a reality that should be challenged. It is surely unsatisfactory, and even unjust, that only some atrocities are provided recourse to justice while others are not.

For as long as humanity has struggled with the concept of peace, the term has primarily been defined as the absence of violence. So long as there were no direct forms of violence – inflicting physical harm upon another individual or group of individuals – then peace was said to exist. Johan Galtung famously termed this conception of peace as “negative peace”. Galtung also expanded the concept of peace in his elucidation of “positive peace” which is achieved only when structural violence, especially social injustices, is eliminated.

Since Galtung’s prescient work, the concept of peace has been picked apart and theorized more so than any other concept, the only exception, perhaps, being ‘justice’. Nevertheless, most still conceive of and accept peace in its negative variant.

It may be that the International Criminal Court is part of an attempt to expand the notion of peace where justice itself is a requirement, where “there is no peace without justice”. However, the Court was created in the context of the continued dominance of negative peace. Crimes against humanity, genocide, and war crimes are generally considered to constitute physical, rather than structural acts perpetrated against victims. The Court’s “holy trinity” of international crimes is seldom applied to structural realities – the conditions in which victims live and which define their ability to live in dignity.

In recent years, however, some cases have emerged which have challenged international criminal justice’s privileging of direct forms of violence, to varying degrees of success.

Two survivors of the conflict in northern Uganda (Photo: Heather McClintock)

In northern Uganda, some, including Chris Dolan, have suggested the often squalid internally displaced persons (IDP) camps which were created by the government and were allegedly terrorized by both rebel and government troops, could feasibly constitute a crime against humanity.

In Darfur, a debate has emerged as to whether the regime in Khartoum is guilty of “genocide by attrition” as put forward most forcefully by Eric Reeves:

“[w]hat Khartoum was unable to accomplish with the massive violence of 2003-04, entailing wholesale destruction of African villages, will be achieved through a ‘genocide by attrition.’ Civilians displaced into camps or surviving precariously in rural areas will face unprecedented shortfalls in humanitarian assistance, primarily food and potable water.”

I have previously argued that the lack of international criminal justice attention on North Korea is suspect and that the structural conditions, including regular famines and widespread malnourishment, into which the Pyongyang regime forces citizens, may be considered under the rubric of international crimes. Continue reading →

Posted in al-Shabaab, Crimes against humanity, Darfur, Famine, Genocide, IDP, International Criminal Court (ICC), Justice, North Korea, Somalia, Sudan, Ukraine | 1 Comment

The (in)Justice of Famine: Is al-Shabaab guilty of a Crime Against Humanity?

Posted on August 15, 2011 by Mark Kersten

The following is a post from friend and colleague Andrew Jillions. Andrew is finishing up a PhD in International Relations at LSE. His research looks at the nature of constitutional obligations in international law, focusing how a faith in rules constructs the rule of international law. He also spent a brief stint as an intern at the ICTY. Keep an eye out for more posts at JiC by Andrew!

A famine victim is transported in a wheelbarrow (Photo: http://www.newsmania.com)

Is al-Shabaab guilty of a Crime Against Humanity?

As the crisis in Somalia deepens and refugees continue to pour into Dadaab some (also here and here) have begun to raise the question of accountability. There are two considerations in particular: first, is famine a crime against humanity? Second, is al-Shabaab guilty of a crime against humanity?

Before getting to this, it’s worth recapping the genesis of this crisis. The trigger was a below average Deyr rainy season (Oct-Dec 2010) followed by the partial failure of the Gu primary season (April-June). On the back of this, crops failed, livestock died, food prices skyrocketed, the economy crumbled even further and, because of the underlying food insecurity caused by decades of conflict, it hasn’t taken long for the crisis to become a famine.

It is dangerous to oversimplify what factors have helped elevate the crisis into what is now classed as Africa’s worst food security crisis for 20 years, with famine declared in most regions of southern Somalia. Donor states themselves bear some blame for not being quicker to recognize the level of aid needed to address the crisis. Humanitarian organisations can be criticized for giving in too easily to US concerns about funding terrorists and failing to find a way to work within what is admittedly a complex political situation. High food prices weren’t simply due to localized forces but to international speculators jacking up global food prices. Climate change hasn’t helped either.

But it’s local politics that have done the most to turn food insecurity into famine. Al-Shabaab, the rebel group in control of much of the famine afflicted areas, has proved the biggest barrier to improving food security and getting humanitarian relief to the affected communities. In short, the charge is that we wouldn’t be seeing either famine or the resulting internal displacement, at least not on the present scale, if it wasn’t for al-Shabaab.

And so we get to the question of guilt and criminal responsibility, and whether al-Shabaab’s leaders are guilty of a crime against humanity.

crimes in Somalia

al Shabaab militants training on the outskirts of Mogadishu. Is al Shabaab guilty of a crime against humanity for its role in the famine? (Photo: wehelmedia.com)

Famine as a Crime Against Humanity

In evaluating whether famine can potentially meet the threshold for a crime against humanity, we’re looking at whether it’s part of an action or attack that is widespread or systematic and directed against a civilian population with knowledge and intent. As Alex de Waal points out, in many respects famine is the wrong word to be using here. In the context of criminal responsibility it makes better sense to talk of widespread and systematic starvation. “In famine epidemiology, the verb to starve is transitive – like wounding or murder, it is something that people do to one another.” As Amnesty International have similarly noted, using restrictions on humanitarian aid as a political tool – as Mugabe is accused of doing in Zimbabwe – does provide some grounds for a crime against humanity.

Famine in this sense also contributes to the deportation or forcible transfer of the population (Art. 7.1.d). Famine causes massive internal displacement and forced migration. If there’s any doubt about this, look at how, almost overnight, the refugee camp at Dadaab has been turned into Kenya’s third largest city. What this suggests is that there is a clear-cut case for famine falling under the existing elements of the crime, at least in terms of the action it denotes. There is a prima facie case for al-Shabaab to answer.

The case against Al-Shabaab

The key question, as with all ICL, is whether we can prove intent. Did al-Shabaab engineer the starvation of civilians?  There are two possibilities here, the first that they are culpable for creating the famine, the second that their culpability only begins after the famine had been declared.

Continue reading →

Posted in al-Shabaab, Crimes against humanity, Famine, Justice, Somalia | 3 Comments

Justice in Syria: Underground Funding of the ICC

Posted on August 11, 2011 by Mark Kersten

Brothers in arms, and crimes? (Photo: http://www.presidentassad.net)

According to Borzou Daragahi of the LA Times, at least one unnamed Western government is funding a fact-finding operation in Syria in order to gather evidence which may eventually be used against Syrian President Bashar Assad in a case before the International Criminal Court.

When considering why Libya and not Syria was referred to the ICC, it is hard not to be stumped. There is no good answer. After all, if we are to believe what human rights groups say – that a crime against humanity is a crime against humanity, regardless of where it takes place –  then surely the treatment of international crimes across contexts should be similar. Does the divergent treatment of the gravest of crimes, with only a chosen few subjected to international justice, not demonstrate the uncomfortable reality that some forms of suffering and violence are more important and worthy of attention than others? In the wake of indictments issued by the ICC against the Tripoli Three, even the Gaddafi regime appeared to have noticed this uneven application of justice.

There has been no shortage of speculation on the reasons for the divergent (some would simply describe it as hypocritical) international responses to the alleged atrocities being committed in Libya and Syria: the Western powers have spent their political capital on intervening in Libya; there is little support from regional organizations for an intervention in Libya; perhaps the ICC is experiencing “judicial overstretch” with its ever-expanding case-load; and the ICC simply doesn’t have enough money to investigate crimes, particularly in the wake of new investigations in Libya and Ivory Coast.

Syria ICC

(Photo: © Sham News Network)

It is in this context of a general lack of international political will and a lack of funds that reports regarding a clandestine funding of a fact-finding mission in Syria have emerged:

“At least one Western government is bankrolling a project to gather evidence that could be used to indict Syria’s President Bashar Assad at an international tribunal over his crackdown on the country’s democracy movement, said a jurist leading the effort and a diplomat whose government is sponsoring it.

The fact-finding mission mostly involves assembling testimony from Syrian refugees that conforms to standards of international law necessary to sustain a war crimes trial at the International Criminal Court“

Continue reading →

Posted in Funding, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, Syria | 8 Comments

JiC News: Looking for Guest Bloggers; Help Choose JiC’s Logo

Posted on August 10, 2011 by Mark Kersten

Dear friends,

Just a quick notice that JiC is looking for guest posters and guest bloggers. Plans are underway to introduce a few new writers who will hopefully become regular contributors. If you are interested in writing a single post or become a more regular contributor, send an e-mail to: mark.s.kersten[at]gmail[dot]com and please copy JiC’s editor, Elke Schwarz on the e-mail at: elkeschwarz[at]mac[dot]com

Your proposal should include a little bit about your background and details regarding your experience with issues concerning conflict resolution, international justice or related areas and at least one suggested topic you would like to write a post about. We look forward to reading your submissions!

On another note, I have designed a few possible logos for JiC (see photos, below). I would be grateful if you could share your feedback on them and which you think should be selected. You can vote on the logos below. Also, if you would like to follow JiC on Facebook, now you can (click here)!

JiC Logo 1

JiC Logo 2

JiC Logo 3

JiC Logo 4

Posted in JiC News | 1 Comment

An Argentinean Judge Judy: Moreno-Ocampo’s Retirement Plans?

Posted on August 10, 2011 by Mark Kersten

Judge Judy Judge Ocampo?As many readers will know, this coming December the International Criminal Court’s Assembly of States Parties (ASP) will come together to elect a new Prosecutor. Posts here at JiC have considered the criteria of the next Prosecutor and some potential candidates.

But while many, including myself, are asking: who will be the next ICC Prosecutor, few are asking what the current Prosecutor, Luis Moreno-Ocampo, will do next.

Remarkably, the following clip has escaped my knowledge for the few years that I have been following the ICC. Prior to becoming the ICC’s Prosecutor, Luis Moreno-Ocampo was many things. He was a deputy prosecutor on one of the biggest war crimes trials in history in his native Argentina. He was also a professor at Harvard. For a time he was even legendary soccer player/footballer/diva Diego Maradona’s lawyer. However, as this clip attests, perhaps the best and most widely known and high-profile international prosecutor in all of time, was once the Argentinean version of Judge Judy, which – if I understand correctly – is titled “Forum: The People’s Court” (Thanks Mariana!):

This is just a little mid-week humour. I promise something more serious soon!

Posted in Argentina, Humour, ICC Prosecutor, International Criminal Court (ICC), Next ICC Prosecutor | 4 Comments

Peace, Justice and Libya – the Gaddafi who Threatens it All?

Posted on August 2, 2011 by Mark Kersten

A mural depicting Col. Muammar Gaddafi being "kicked out" of Libya (Photo: AFP)

It is nothing short of stunning how little we hear about Gaddafi these days. Articles in papers, posts on blogs, discussions amongst friends – virtually everywhere, even in discussions about peace and justice in Libya, Gaddafi is no where to be seen or heard. It is just bizarre.

I realize that, in reading the above, readers may think that I have gone off the deep-end. After all, few people have commanded so many headlines in recent weeks and months as Gaddafi! The focus of this post, however, is not Colonel Muammar Gaddafi but rather his son, LSE alumnus and fellow ICC-indictee Saif al-Islam Gaddafi. It is not simply that his role in peace negotiations and his fate in a post-conflict Libya remain unclear – Saif’s role and fate have been entirely ignored.

Many observers have been increasingly agitated by the about-face of the Western states in Libya. Where once they presented themselves as stewards of international criminal justice, demanding that Col. Gaddafi be detained and brought to the ICC, now they are suggesting Gaddafi can remain in Libya with a de facto amnesty. In a New York Times op-ed, Richard Dicker, the director of Human Rights Watch, tackled the issue:

“After setting the wheels of justice in motion, all Security Council members — and these three countries in particular — should be reaffirming the message that impunity is no longer an option, instead of proffering a get out of jail free card to end a military stalemate.”

The International Criminal Court predictably takes a similar stance.

Will Saif al-Islam Gaddafi find himself on the other side of the negotiating table? (Photo: Chris Helgren/Reuters)

Unfortunately, both Dicker and the ICC fall into the same trap as so many other observers and reporters – exclusively focussing on the fate of Col. Gaddafi. While the world zeros in on father Gaddafi, however, it is his son, Saif al-Islam who may pose the greatest threat to international justice.

Continue reading →

Posted in Amnesty, Crimes against humanity, France, International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3), United Kingdom, War crimes | 4 Comments

The Kwoyelo Trial: Sorting out this Amnesty Business

Posted on August 1, 2011 by Mark Kersten
Thomas Kwoyelo during his second hearing at the International Crimes Division of the High Court of Uganda, Gulu (Photo: Edward Echwalu)

Thomas Kwoyelo during his second hearing at the International Crimes Division of the High Court of Uganda, Gulu (Photo: Edward Echwalu)

An LRA Commander on Trial. But Should He Be?

Even before it started, the trial of former LRA commander Thomas Kwoyelo was controversial. His “day in court” was delayed for months; his application to the Government for amnesty was never answered; the claim that he had committed crimes in the context of an international conflict seemed at best unclear and at worst legally dubious, at least to some observers. But could Kwoyelo’s trial finally bring clarity to the amnesty question in northern Uganda?

There is little doubt that the single issue to cause the most controversy has been the question of amnesty. After being captured by government forces, Kwoyelo applied for amnesty under Uganda’s 2000 Amnesty Act. In brief, the Act was passed as a result of pressure from local civil society groups in northern Uganda in order to provide rebel fighters with an incentive to come out of the bush. The hope is that the promise of forgiveness through amnesty rather than punishment – legal or otherwise – can lure perpetrators back into society. Since its inception, thousands of combatants have received amnesty certificates although the number has dwindled to little more than a trickle in the past three years.

Fueling controversy in Kwoyelo’s case is the fact that the government’s Amnesty Commission has never provided Kwoyelo with an answer as to whether he can or cannot receive amnesty. Instead, his application is “pending”. Making matters worse – and more legally precarious – the same organization, the Directorate of Public Prosecutions (DPP) is both in charge of deciding whether Kwoyelo receives amnesty and prosecuting Kwoyelo. The conflict of interest is palpable.

As explained in a previous post, Kwoyelo’s lawyers believe that the prosecution has violated Kwoyelo’s constitutional right to equality before the law. Other LRA commanders of a similar rank have received amnesty and if Kwoyelo is tried, so too should other LRA commanders who have returned from the bush.

Last week, in the second, jam-packed hearing of Kwoyelo’s case at the International Criminal Division of the Ugandan High Court in Gulu, northern Uganda sided with the defense. After, by all accounts, less than pretty machinations by the defense team, the judges agreed that the interpretation of the Amnesty Law should be referred to the Constitutional Court.

Internally Displaced Persons Camp, Uganda

An Internally Displaced Persons Camp in northern Uganda (Photo: FBaroni06)

Ugandans have been rather quiet about the Kwoyelo trial and their opinions about his fate. Many follow the case with keen interest but expectations aren’t particularly high and there is an ever-present skepticism about the trial.

If Kwoyelo is successfully tried and thrown in the can for the rest of his life, most Ugandans I have spoke to wouldn’t be surprised. But many won’t see it as justice because of the amnesty question. The word “scapegoat” and phrase “used as an example” are often used.

If Kwoyelo isn’t tried and walks free, many say that justice too will not have been served. Even some of those who see Kwoyelo as a scapegoat will argue, in the next breath, that at least someone is in the dock and that just seeing Kwoyelo in cuffs is a relief to victims and survivors.

But in a twist of irony, the Kwoyelo case may yet give Ugandans a gift: finally sorting out the country’s amnesty law – who it applies to, who it doesn’t apply to, and why.

Amnesty in International Law: Crystalizing but not Crystalized 

While human rights organizations bemoan the use of amnesty laws, their standing in international criminal law remains unclear. Rather than a crystalized duty requiring all perpetrators to be prosecuted, many of these organizations are in the midst of what might be described as talking norms into reality.

With the creation of the International Criminal Court, it is often argued that amnesties for “those most responsible” are a violation of international law. But it’s worth noting that even the ICC’s Rome Statute is silent on the issue of amnesty laws, something which did not escape its authors.

Continue reading →

Posted in Amnesty, Human Rights, International Criminal Court (ICC), Justice, Kwoyelo Trial, Lord's Resistance Army (LRA), Peace Negotiations, Uganda | 2 Comments

Law versus Politics in International Criminal Justice

Posted on July 28, 2011 by Patrick Wegner

Dear readers,

I am pleased to introduce to you Patrick Wegner. Patrick is a PhD student at the University of Tübingen and at the International Research School for Successful Dispute Resolution of the Max-Planck-Institute for Comparative Public Law and International Law in Heidelberg. He writes about the impact of ICC investigations on ongoing conflicts. Patrick has graciously agreed to guest-post at JiC on the nexus of international criminal justice, law and politics. Enjoy! 

‘There is little hope for the promotion of the rule of law internationally if the most powerful international body makes it subservient to the rule of political expediency.’ – Former ICTY Chief Prosecutor Louise Arbour

ICC Prosecutor at UNSC

ICC Chief Prosecutor Moreno Ocampo reports to the UN Security Council concerning the investigations in Darfur (Photo: http://wn.com/Sudan_ICC)

Law versus politics in international criminal justice

One of the most contested issues in pursuing justice in conflicts is the question to what extent political calculations play into the decision whether to prosecute or not in a particular case. This question is of special relevance for the work of the International Criminal Court (ICC), as it can not only decide whether or not to prosecute particular individuals, but also whether or not to start investigations in a particular conflict at all. Most people would say that legal and political considerations should be completely divorced when international criminal law is being applied. After all, fairness is a main criterion of justice which can only be guaranteed if the same rules are applied to similar cases irrespective of other considerations. But in international relations it might be difficult to guarantee that.

Unlike on the national level there is no overarching state power that guarantees the prosecution of crimes in the international arena. Whether investigations are initiated and whether they lead to arrests depends to a large part on a couple of powerful states within the international community. These states have their own priorities and interests, and international courts and tribunals are often merely one factor in their overall equation. The policies of these states have an impact on the prosecutions, and international prosecutors have to decide how to arrange themselves with these powers. An obvious example is the ICC’s dependency on its donor countries. Some say this dependency contributes to a selective approach in prosecutions, excluding allies of major donors. This is problematic since powerful states might try to use the ICC and other courts and tribunals as instruments to further their own aims. For example, there have been attempts to use both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC as levers of Western powers to apply political pressure on states like Serbia and Sudan. In the case of the Special Court for Sierra Leone (SCSL) the US is believed to have pressured Liberian President Sirleaf to support the indictment of former President Charles Taylor. While the prosecutors depend on the support of these states, close cooperation might lead to perceptions of a biased and political court, which will in turn have negative repercussions for the investigations. This is the case as the credibility of an international investigation in an ongoing conflict depends on being seen as neutral. If it is seen as a one-sided endeavour, it quickly becomes a contested issue among the parties and thus part of the conflict.

Charles Taylor in the Hague

Charles Taylor at his trial in the external facilities of the Special Court For Sierra Leone in The Hague (Photo: AP)

Already there are several authors like Mark Drumbl and Ramesh Thakur who criticise that international criminal law is championed by Western states but applied elsewhere, pointing out the de-facto impunity of the United States. This problem is further exacerbated because decisions to support investigations in conflicts are increasingly motivated by the moral indignation of citizens living in powerful Western states. The global media coverage of crimes committed in conflicts has led to growing demands of civil society groups all over the world to ensure criminal accountability for these crimes. Both in the case of the ICC investigations in Darfur as well as in northern Uganda there are strong domestic civil society movements in the US, pushing their government to intervene on behalf of the victims and to support the ICC.

Save Darfur

Civil society movements like Save Darfur mobilise domestic support in the US to call for more interventions in conflicts.

Continue reading →

Posted in Darfur, Human Rights, ICC Prosecutor, ICTY, International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), Justice, Serbia, Special Court for SIerra Leone (SCSL), Sudan, Transitional Justice, Uganda, UN Security Council, United States | 4 Comments

Negotiating Peace in Libya: What Happens to Justice?

Posted on July 26, 2011 by Mark Kersten
Waiting: a Libyan rebel stands as wreckage caused by a NATO attack burns behind him (Photo: Reuters)

Waiting: a Libyan rebel stands as wreckage caused by a NATO attack burns behind him (Photo: Reuters)

While diplomats from all interested parties may not be willing to describe it as such, the crisis in Libya has reached the negotiation phase. Foreign ministers crisscrossing around the world, dropping in on various national capitals, testing the waters by suggesting things like “Gaddafi can stay in Libya but not in power” and “he can be in an adjacent room during negotiations” – all of this is setting the table for the parameters of negotiations and setting the tone for what now appears to be an inevitable series of peace talks between the Gaddafi regime and the rebels’ National Transitional Council (NTC).

On some level, it is hard not to welcome peace negotiations in Libya with open arms and optimism. The crisis has dragged on for four months now and, should it continue to drag on, the only obvious and predictable dynamic will be that every day more Libyans will be killed and more of the country will be destroyed. To all parties involved, from NATO to the AU, the rebels and pro-Gaddafi forces, the only way this spiral of violence can be arrested is by negotiating a resolution to the conflict.

But the emergent zeal for a negotiated settlement also carries with it less optimistic elements. First of all, even if Western diplomats won’t admit it, the enthusiastic mobilization for peace talks means that the international community has lost confidence in the ability of the rebels to emerge victorious, even with NATO support. This may be because they believe the rebels are inherently incapable of successfully taking over Tripoli or because the sun is setting on NATO’s mission in Libya. As has been reported, tensions and cleavages have quickly emerged within NATO powers and amongst its regional allies. Regardless, the result, it would seem, is that the international community believes that some form of power-sharing agreement between the rebels and Gaddafi’s regime must be negotiated.

It is in this context that the waters are being tested for peace negotiations and the boundaries of potential negotiations are being drawn. The most pressing boundary is the role of Col. Gaddafi in the negotiations and his fate once talks have concluded. Both the rebels and the Western powers have drawn their line in the sand: Gaddafi cannot directly partake in negotiations nor can he remain in power following a resolution to the crisis.

Burning bus in Libya

The only guarantee, if the crisis in Libya continues, is that people will lose their lives and the country will continue to be destroyed (Photo: AP)

What to do about justice? As I have argued previously, to date there was no evidence that the ICC was in tension with peace in Libya. But with the onset of peace negotiations, the potential tensions between peace and international criminal justice become more obvious, clear and precarious.

In Libya, these tensions have begun to emerge on four levels:

1. Let’s Get this Straight: The Contradiction of Western Power Positions

A number of Western states involved in the conflict, notably France and Britain, have begun to refine their “exit solution” for Col. Gaddafi, saying that while he cannot be allowed to retain power, he may be allowed to remain in Libya.

Meanwhile, these governments have declared that Gaddafi must be arrested and brought to the Hague – although, dubiously, never in the same statements regarding peace negotiations. They were at the vanguard of the UN Security Council’s resolution to refer the situation in Libya to the ICC. It bears asking whether the persuasion of states like the UK and France in support of the referral was the result of a desire to instrumentalize the Court in efforts to put pressure on and marginalize Gaddafi rather than because of any steadfast conviction of the need to bring Gaddafi to justice. Regardless, by simultaneously holding these two contradictory and apparently mutually exclusive positions, these governments undermine the pursuit of international criminal justice.

Continue reading →

Posted in African Union (AU), Amnesty, France, International Criminal Court (ICC), Libya, Libya and the ICC, NATO, Peace Negotiations, The Tripoli Three (Tripoli3), United Kingdom | 2 Comments