Why Uganda is Our Best Chance to get to the Bottom of the Peace-Justice Debate

Posted on June 15, 2011 by Mark Kersten

LRA leader Joseph Kony (second from right) and his second-in-command, Vincent Otti (far right), were both indicted by the ICC

Most of the academic and political attention that the International Criminal Court (ICC) receives these days comes from Sudan and Libya. There is little doubt that the investigations of Sudan’s Omar al-Bashir and Libya’s Muammar Gaddafi have captured the imagination of the Court’s fiercest advocates and most vehement critics alike.

It is no secret that the world’s attention can only be split so many ways. When our eyes and ears turn to Libya, we ignore Bahrain and Yemen. When we claim genocide in Darfur, we ignore the horrors of the Democratic Republic of Congo (DRC). Similarly, there is a significant division in the attention that the ICC’s cases get. Generally, the ongoing occurrences of war crimes and crimes against humanity in the DRC and the Central African Republic (CAR) are examined the least. The case of Darfur, thanks in large part to remarkably influential (if not always well-informed) activism of American human rights groups and celebrities as well as the labelling of the Khartoum regime as genocidal, remains a focal point of international political and media attention. Understandably, no case currently receives nearly the attention as Libya where a delirious tyrant, a former London School of Economics grad student and the Intelligence chief are in the cross-hairs of NATO bombs and the ICC’s Prosecutor. Somewhere, in the middle of the pack are the Kenya and Ugandan cases, with Kenya receiving more attention because of its recent nature.

Attention to northern Uganda from scholars, observers and international development community exploded in the early 2000s. A conflict which had long been neglected and seemingly relegated to oblivion, quickly became front-page news and emerged on the agenda of international institutions. This was in large part the result of the ICC’s involvement. In 2003, the situation in northern Uganda became the first case to be referred to the ICC, making Uganda “a litmus test for the much celebrated promise of global justice,” according to scholar Kasaija Phillip Apuuli. Two years later, the Court issued arrest warrants for the four senior members of the Lord’s Resistance Army (LRA): Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.

Internationally, the ICC’s indictments were hailed as a historic moment symbolizing the end of impunity for violators of the gravest crimes. Locally, however, many viewed the ICC’s timing and intervention as precarious, if not dangerous.

The conflict in northern Uganda resulted in, at times, millions of civilians being forced into internally displaced persons camps (Photo: BBC)

The notoriously brutal LRA, led by Kony, had been at war with the government of Uganda for two decades. Numerous peace initiatives had stalled or failed for various reasons. Then, in 2000, the Government of Uganda passed an Amnesty Act which guaranteed that any LRA combatants who defected from the LRA would be granted reprieve from prosecution and reintegrated  into society. Justice would be achieved through context-sensitive traditional reconciliation mechanisms rather than through trials. When the ICC began its investigations and subsequently issued arrest warrants for Kony and the other top officials, many civil society, human rights and religious leaders in northern Uganda strongly criticized the decision. Tim Allen, who wrote a remarkably lucid account of “trial justice” in Uganda quotes one northern Ugandan human rights worker as saying: “There is a balance in the community that cannot be found in the briefcase of the white man.” Others, most thoroughly scholar Adam Branch, maintained that the Ugandan government was in effect using the ICC in order to justify and legitimize a military campaign against the LRA.

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Posted in Amnesty, Central African Republic (CAR), Crimes against humanity, Darfur, Democratic Republic of Congo, International Criminal Court (ICC), Kenya, Libya, Lord's Resistance Army (LRA), Peace Negotiations, Traditional Justice Mechanisms, Uganda, War crimes | 13 Comments

Off to Uganda: Peace and/or/with/versus Justice

Posted on June 11, 2011 by Mark Kersten
Juba peace negotiations

Joseph Kony, leader of the Lord's Resistance Army

Dear Readers,

I am off to Uganda today to begin almost three months of research on the effects of the ICC’s investigations and arrest warrants on peace processes and negotiations in Northern Uganda. In particular, I will be focusing on how the ICC’s intervention in Uganda affected the Juba Peace Negotiations between the government and the Lord’s Resistance Army. I will also be measuring the attitudes of different actors on the peace-justice debate. I look forward to sharing some of my findings and experiences with you.

Over the summer, posts may be less regular. I will be stationed, for the most part, in Gulu. While I have been told there will be regular internet, we’ll just have to see. 

Thank you, as always, for your readership and interest in JiC. It has been – and continues to be – an honour and a pleasure to write for you.

Mark 

Posted in International Criminal Court (ICC), Transitional Justice, Uganda | 1 Comment

Before you go Supporting Exile for Gaddafi, Beware of What You Assume

Posted on June 11, 2011 by Mark Kersten
(Photo: Ivan Sekretarev/AP)

Photo: AP

Each time a conflicted and fragile society resolves to confront a murderous, tyrannical or dictatorial ruler, a similar question inevitably surfaces: should the ruler and his cabal be allowed, or even encouraged, to go into exile?

The logic in support of exile is simple and seemingly intuitive (although, it should be noted, far more complex in practice): Ushering violent leaders into exile removes them from power and thus revokes their ability to continue committing massacres and human rights abuses. When negotiating a fragile peace, the view holds, it may be better to use exile as a carrot – the leader is offered early retirement and protection from prosecution in exchange for allowing democratic and peaceful forces to take power. Leaders are assumed to be un-reformable and, without an offer of amnesty or exile, are presumed not to have any incentive to stop committing atrocities in an effort to maintain power. By trading exile for peace, greater bloodshed and the loss of life is thus prevented.

For a host of reasons, this position is problematic. It relies on assumptions about the logic of violent leaders, it generally neglects differences across contexts, and – as many will undoubtedly point out – it may be morally unacceptable. In many ways the simple logic of the exile argument resembles more an attempt at propping mountains up on matchsticks than a coherent, verifiable and objective hypothesis.  But there is another problem with the exile argument that is rarely addressed: the assumption that those who replace exiled leaders will necessarily be peaceful.

During and prior to the Cold War, offering exile and offering amnesty for past crimes was the norm as states negotiated their way away from violent political conflict towards consolidated peace. Some of history’s most brutal leaders, like Uganda’s Idi Amin and Haiti’s Jean-Claude Duvalier (Baby Doc), went into exile while the leaders of Argentina’s military juntas were granted amnesties for their role in the torture and disappearance of thousands of civilians during the Dirty War.

Idi Amin was among the tyrants who received exile during the Cold War

This approach is often said to reflect the realist’s understanding of international society. The only “realistic” way to end wars was to negotiate power-sharing agreements, manage conflict between warring parties and to offer exile or amnesty for particularly brutal leaders. Another possibility was internal exile: removal from power in combination with the granting of an amnesty to protect leaders from prosecution. If the leaders had committed crimes against civilians, so be it. Justice was a secondary goal, and only really pursued if it was deemed to help the cessation of direct political violence. Immunity from prosecution was exchanged for stability and, often, an aspiration to develop liberal, democratic institutions and traditions. This trade-off was seen and widely accepted as a necessary evil, a least worst option, driven by the fact that, as Mark Freeman argues, people may be repulsed by impunity but their “repulsion for war and tyranny is greater.” While there are important arguments about the extent to which this has occurred, the post-Cold War trend has shifted away from such logic.

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Posted in Amnesty, Exile, International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, Syria, Uganda, Yemen | 3 Comments

You Say Genocide, I Say Genocide: Some Thoughts on the Genocide Debate

Posted on June 5, 2011 by Mark Kersten

A Bosnian woman mourns over coffins of some of the victims of the 1995 Srebrenica massacre, which has been described as consituting an act of genocide (Photo: srebrenica-genocide.blogspot.com)

In an article on the continued debate about the meaning and use of the term ‘genocide’, The Economist writes:

“Prosecutors, judges, historians and politicians have made huge efforts in recent years to describe the boundaries of genocide: when mere mass murder stops and the ultimate human crime starts. Yet the term is far more than a tool of historical or moral analysis. Its use brings momentous political and legal consequences—and is therefore bound to be highly contested.”

Since the days when Polish lawyer Raphael Lemkin loitered in front of the offices of UN diplomats and pressed the international community to adopt the Convention on the Prevention and Punishment of the Crime of Genocide, few terms have inspired so many words, speeches, books and films as “genocide”. Perhaps only the term “nuclear” has evoked the same passion and interest. Genocide has, for better or worse, become known as the “crime of all crimes” and has seemingly defined the parameters of humanity’s capacity to conduct evil.

According to the Genocide Convention,

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

At the center of the genocide debate has been the work of Professor William Schabas. Schabas has written extensively about his discomfort with what he sees as the abuse of the terminology of genocide, declaring that its expanded use and conflation with crimes against humanity has resulted in a “careless and potentially misleading use of precise terminology.” According to the Economist, however, Schabas now argues that the international community should turn its focus away from genocide to crimes against humanity.

State representatives sign the Genocide Convention. On the far right, standing, is Raphael Lemkin who tirelessly worked to get recogntion of the term "genocide" (Photo: ushmm.org)

A trend towards applying crimes against humanity as a sort of blanket crime, would have significant consequences for the adjudication of international crimes. It would virtually guarantee that most perpetrators of mass atrocities are found guilty. Why? Because, as Dov Jacobs argues, they don’t need the intent to destroy, in total or in part, a particular group of people, as the crime of genocide requires, nor does it require a recognition that crimes were committed in the context of an armed conflict, as war crimes require.

Some may argue that there is something fundamentally positive about a world which sees all crimes which may amount to genocide as crimes against humanity. Because genocide must be done by one group against the “other”, calling crimes genocide implicitly and explicitly reifies the belief that some people are different. Crimes against humanity, on the other hand, is a fundamentally cosmopolitan international crime. Which people are targeted is irrelevant because the crime is one not against any type of people, but a crime against all people, against all of humanity. The architects and perpetrators of the Holocaust, for example, were not charged with genocide at the Nuremberg Tribunal (the term “genocide” did not yet exist). Instead, their acts were considered as crimes against all of humanity.

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Posted in Crimes against humanity, Genocide, Peace Negotiations, Ratko Mladic, Rwanda, Sudan, United States | 8 Comments

The ICC’s Next Top Prosecutor: The Candidates

Posted on June 3, 2011 by Mark Kersten

One thing is for certain: Angelina Jolie will not be the next ICC Prosecutor (photo: AP)

Last week, we had a fascinating and lively discussion about some of the criteria and political issues regarding the election of the International Criminal Court’s next Prosecutor.  In December, the ICC’s state-members will converge to elect the Court’s second Prosecutor. Prior to that, a search committee will short-list at least three candidates. In the weeks and months leading up to the December election, JiC will feature a series of posts relating to various issues pertaining to the question of the ICC’s next Prosecutor. This week’s post takes a look at some of the possible candidates to succeed current chief Prosecutor, Luis-Moreno Ocampo.

Please note that this list draws on numerous sources interested in this subject. Neither this list nor the characterization of these potential candidates is exhaustive. Some candidates are more feasible than others and new candidates may emerge and will be profiled if they do. Please also keep in mind that the candidates presented here are in no particular order.

Hassan Jallow

Jallow is an interesting candidate for a number of reasons. He is a Gambian lawyer and has been the Chief Prosecutor at the International Criminal Tribunal for Rwanda since 2003. He has previously been the Attorney General and Minister of Justice in Gambia. He has also been a legal expert at the International Criminal Tribunal for the Former Yugoslavia and, briefly, was appointed as judge in the Appeals Chamber at the hybrid Special Court for Sierra Leone (SCSL). This barely scratches the surface of Jallow’s achievements. All in all, Jallow has an extremely impressive resume that would put him in the top-tier of contenders for the ICC’s top job.

Helping his candidacy (as well as Fatou Bensouda’s and Kiril Idris’ below) is the fact that Jallow is African. The origin of a particular candidate may very well play into the decision-making of states. Indeed, the AU has already declared that it will put its weight behind an African candidate, likely to be named in the next few weeks.

Dov Jacobs comments that Jallow’s “stint at the ICTR makes him a sort of safe choice after Moreno-Ocampo, because he follows orders, as his deference to [Rwandan President Paul] Kagame shows.”

ICTR Prosecutor

Hassan Jallow, the current ICTR Prosecutor

One of the most common criticisms levied against Moreno-Ocampo is his penchant to be cavalier and overtly political in his work and his public statements. It could be argued, as Dov’s comments suggest, that Jallow would do neither and would thus make a more constrained and controllable Prosecutor. However, there have also been criticisms from various human rights groups and observers over Jallow’s reluctance to investigate and prosecute alleged crimes by the Rwandan government forces (RPF) prior to and following the 1994 Rwandan genocide. For the ICC to be successful, it must be impartial and apolitical, and the one-sided investigation of Rwanda remains effective fodder for those who maintain that international criminal justice is always and inevitably victor’s justice.

Both the ICTY and the ICTR have begun the process of shutting down operations. There will be key residual mechanisms in place for the foreseeable future, but neither ad hoc tribunal was intended to be permanent. Indeed, the reality that both tribunals will conclude their work during the tenure of the ICC’s next chief Prosecutor will only increase the pressure on the ICC to raise its global significance, its success and its effectiveness.

Some may argue that it would be wiser to keep Jallow (and Serge Brammertz – see below) in his current position as Prosecutor of the ICTR. It would benefit the ICTR to maintain some continuity as it slowly completes its work in the next few years. It also certainly wouldn’t look good for the ICTR (or the ICTY) if its chief employee skipped out to head the ICC’s OTP just when the tribunal was in the midst of slowly shutting down operations, especially with high-profile cases in the dock

It is important to remember that there remains critical work to be done at the ICTR. Earlier this month, Bernard Munyagishari, the alleged “mastermind” of the Rwandan genocide was arrested. This case will be of particular importance to the legacy of the Rwandan Tribunal. While the tribunals may be winding down, there is still much to be done before it closes its doors.

Louise Arbour

Arbour commands the respect of just about everyone I have spoken to, even those who have disagreed with her views and tactics during her long and illustrious career. It is hard to imagine a candidate who has been more involved with issues of justice, human rights and conflict than Arbour. Indeed, she has a remarkably impressive pedigree. The Canadian Arbour has also shown on numerous occasions, particularly in her role as Prosecutor at the ICTY and as UN High Commissioner for Human Rights, that she is tough as nails and not overly worried about annoying state and non-state actors in the defense of principles and values. At the same time, Arbour is one of those rare characters, unlike Moreno-Ocampo, who don’t feel the need to be flashy or use unnecessarily high rhetoric in the way they go about their business.

Louise Arbour, former Prosecutor at the ICTY and UN High Commissioner for Human Rights (photo: Le Devoir)

In his article on the subject of the ICC’s next chief Prosecutor, David Kaye writes that “Moreno-Ocampo is more Del Ponte than Arbour, and the ICC needs an Arbour.” Why name-drop Arbour specifically? Professor William Schabas believes that it is “as if a trial balloon is being floated to promote Louise Arbour’s candidacy.” Schabas goes on to say that Arbour was interested in becoming the Court’s first Prosecutor (what a counter-factual treasure trove!) but was ultimately unsuccessful. Nevertheless, Schabas concludes:

“She would get a lot of support if she wanted to throw her hat into the ring.”

Continue reading →

Posted in International Criminal Tribunal for Rwanda (ICTR), Next ICC Prosecutor, Special Court for SIerra Leone (SCSL) | 9 Comments

The Arab World and the ICC: A New Chapter or Smoke and Mirrors?

Posted on May 30, 2011 by Mark Kersten
Song and Emir

The ICC's President, left, and the Emir of Qatar opened the Court's first regional conference, in Doha, Qatar.

To date, the most fascinating, dynamic and at times frustratingly contradictory relationship the ICC has had has been with the African Union (AU) and its member states. Today, however, the relationship which appears set to define the Court’s second decade may be with the member states of the Arab League. The renewed engagement of Arab states with issues of international criminal justice has been propelled by the Arab Spring. The current level of engagement by Arab League states with the ICC is unprecedented.

In the early days of the Arab Spring, issues of justice and accountability were front and center. Within days of pushing President Zine el-Abidine Ben Ali out of power, an arrest warrant was issued for him, and Tunisia declared that it would ratify the Rome Statute of the ICC. Egypt has also expressed its desire to sign and ratify the Statute and has taken steps towards putting ousted leader Hosni Mubarak on trial. Libya, of course, was referred to the ICC in late February and earlier this month, the ICC’s Prosecutor requested arrest warrants for Colonel Gaddafi, his son Saif al-Islam and Libya’s head of intelligence services. Arab League support has been essential to the current intervention taking place in Libya. In Syria, Bahrain and Yemen, where Arab League support for intervention is lacking, there are still calls for the ICC to get involved.

Libya's Gaddafi at an Arab League summit. The ICC Prosecutor has asked the Court to issue an arrest warrant for him, his son and Libya's head of intelligence (Photo: Zohra Bensemra/Reuters)

The Arab world’s drive for justice and accountability has thus far not been a passing fad; it has not diminished but only seems to be increasingly salient and widespread. Rarely does a day go by that news out of the Arab world does not relate to international criminal justice.

In this context, let’s take a look at some of the more remarkable recent developments regarding the ICC and the Arab League states.

The Doha Conference: What a difference a few months make!

Apparently unbeknownst to Western journalists, this past week the ICC held its first regional conference. It was held in Doha, Qatar from May 24-25.

Just how remarkable was this conference? Consider that only two years ago, Sudanese President, Omar al-Bashir, indicted by the ICC for his role in the Darfur crisis, attended Arab League meetings in Doha which resulted in the regional body declaring its “solidarity with Sudan and…rejection of the ICC decision” to issue an arrest warrant for Bashir.

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Posted in African Union (AU), Arab League, Egypt, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Middle East, Qatar, Sudan, Syria, Tunisia, Uganda, UN Security Council | 1 Comment

Pursuing and Serving Justice Fairly: Is Mladic Fit to Stand Trial?

Posted on May 27, 2011 by Mark Kersten
Mladic after being arrested

Ratko Mladic, soon after being arrested in Serbia

In a post a few months back, I pondered what a trial of Gaddafi would be like, given his aptitude for emotional and delusional outbursts. It was at that time that legal scholar Dov Jacobs of Spreading the Jam suggested that in the case of Gaddafi, it was entirely possible that no trial would go forward on the basis of his mental health.

So what about the 69-year old Mladic? Is he mentally and physically fit enough to stand trial?

A report by Radio Netherlands Worldwide showed video footage of Mladic in detention with a serious limp. The report also suggested that the questioning of Mladic had to be delayed because of his poor health. Other reports indicate that Mladic’s arm is paralyzed and that he may have suffered a series of strokes in recent years.

Mladic’s lawyer maintains that his client’s health is poor and as a result, he should not be extradited to The Hague (see also here). Of course a degree of skepticism must arise when lawyers speak of their client’s health. It is in Mladic’s interest to delay his extradition and a trial for as long as possible. In any case, today, a judge in Serbia ruled that Mladic could be sent to The Hague and was fit to stand trial.

As for the ICTY, it is undeterred by Mladic’s health and predictably so. It would be a huge victory and a signal of its continued importance and effectiveness to put Mladic on trial in the same court room in which his partner in crime, Radovan Karadzic is being tried and where Slobodan Milosevic was tried before them.

Milosevic at the ICTY

Questions of Milosevic's health plagued his trial at the ICTY (Photo: Paul Vreeker/AP)

Conspicuously, the ICTY’s Statute does not include provisions addressing the mental health of the individuals it seeks to try (note the ICC Statute does, in Article 31). However, the Court’s Rules of Procedure and Evidence do include some articles which may pertain to bringing up the mental health of both the accused and witnesses.

It is important to remember that the ICTY has already been plagued by problems arising from its handling of health issues, most dramatically in the case of Milosevic.

When Milosevic became ill and his trial began to suffer from significant delays, judges ruled in favour of forcing a lawyer on the former Serbian President. Many decried the decision as contradicting the basic right of a defendant to represent himself. One critic, John Laughland, writes:

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Posted in Balkans, Genocide, Human Rights, ICTY, Justice, Libya, Serbia, Slobodan Milosevic | 1 Comment

Mladic Reunited with Karadzic: Arrested and Heading to the Hague

Posted on May 26, 2011 by Mark Kersten

Ratko Mladic will be reunited with his old ally Karadzic. This time it will be at the ICTY, in the Hague.

Ratko Mladic and Radovan Karadzic are united again, just not in the way they had hoped. Today, Mladic, seen by many as the Bosnian Serb architect of death for his role in the Bosnian war, was arrested by Serb authorities. He is set to be transferred to The Hague in the next few days, presumably to stand trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY). (note: earlier reports incorrectly suggested he was already on his way to The Hague)

For many, this was a long time coming. As David Bosco rightly points out,

“Whatever the truth, the arrest is a long-delayed victory for Bosnian victims, for the international tribunal–and for the European Union, which has maintained pressure on the issue for years.”

It is no doubt a great day for the ICTY, whose work has been winding down as it prepares to close its operations in the next few years. Mladic’s arrest signals the completion of the ICTY’s trinity: Milosevic, Karadzic and Mladic are the Balkan crises’ “big fish.” Indeed, it is remarkable that the ICTY will be able to say they had custody of every leading perpetrator of war crimes, crimes against humanity and genocide in the Balkans. Regardless of the trials and tribulations that characterized Milosevic’s trial and which may stain the record in Karadzic’s trial, the ICTY will forever be able to say that those most responsible for atrocities in the Balkans were detained and brought to the Court.

The Balkan Trinity: after today, each will have been delivered to the ICTY.

We are in unprecedented times for international criminal justice. Hardly a day goes by without major news that pertain directly to the pursuit of international justice and accountability. The dream of the architects of international criminal law that justice would be established as the deep grammar of international politics has been increasingly realized. Think of the headlines in the past few months: the ICC in Ivory Coast, Libya, and perhaps Syria; a truth commission for Ivory Coast; Egypt and Tunisia both expressing interest in joining the ICC, etc. Historians will undoubtedly note that at the epicenter, indeed at the very heart, of international politics in 2011 was the pursuit of justice and accountability.

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Posted in Balkans, Genocide, Human Rights, ICTY, Peace Negotiations, Serbia, Slobodan Milosevic | 4 Comments

The ICC’s Next Top Prosecutor

Posted on May 23, 2011 by Mark Kersten
Electing the next ICC Prosecutor

The Assembly of State Parties will decide who the next ICC Prosecutor will be in December 2011

The term of the ICC’s first Prosecutor, Luis Moreno-Ocampo, is slowly, albeit dramatically, drawing to a close. In December 2011 the members of ICC’s Assembly of State Parties will convene to choose the Court’s next Prosecutor. He or she will officially replace Moreno-Ocampo in June 2012. Every member-state of the Court will have one vote in deciding the ICC’s second prosecutor. In early February, the ICC set up a search committee to identify some potential candidates.

Moreno-Ocampo is the only chief Prosecutor the Court has ever known. Since 2002, when the ICC came into being, he has managed to shine a tremendous amount of spotlight on the workings of the Court. He has also managed to rub a lot of people the wrong way. His record will be something for scholars of all stripes to pour over in the coming years. But what about the next ICC Prosecutor? Who will he or she be?

There are a number of issues member-states will consider as they take time over the next few months to decide who they will support. A range of factors will surely shape the calculus of states as they inch towards the December vote. Here are a few considerations.

The Politics of Location

The question of the region and nation from which the next Prosecutor comes from is perhaps where the political inclinations of every state and non-state actor involved in the election will be strongest. This is also where the danger of vote trading is highest – states trading and grouping votes together on the basis of political considerations (eg. a vote in another international institution) rather than basing their decisions on the quality of the candidate.

The majority of members of the ICC are outside of North America and Europe (ratified members in green; signatories in orange)

It is highly unlikely that the Prosecutor will be North American or European. The vast majority of member-states come from Africa, South America and Asia. Africa still makes up the largest contingent and the AU has already been clear that it wants an African Prosecutor to lead the Court. Noting that none of the ICC’s top positions (ie. the heads of the Court’s four organs) are filled by an African citizen, there is a strong case to be made that the next Prosecutor should be African. According to one report, the AU will nominate a candidate this summer.

Moreno-Ocampo is an Argentine. One of his earliest professional roles was as an assistant prosecutor in the trial of Argentina’s Dirty War leaders. Will the next Prosecutor also come from a non-Western state which has persevered through mass human rights atrocities? It seems at least a distinct possibility. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), Next ICC Prosecutor | 14 Comments

The ICC and the Tripoli Three: Time, It’s on our Side

Posted on May 22, 2011 by Mark Kersten

ICC Prosecutor Luis Moreno-Ocampo has moved with unprecedented speed to request arrest warrants of the Tripoli Three (Photo: VoxAfrica)

As other actors involved in the Libyan conflict have appeared to dither and issue mixed messages, the ICC’s Prosecutor has been remarkably decisive and concrete with his work. Within three months of having had the situation in Libya referred to the ICC, the Prosecutor has requested arrest warrants of the Tripoli Three – Gaddafi, his son Saif al-Islam Gaddafi, and the head of Libya’s Intelligence. Issues of time and timing go to the heart of the debates about the appropriateness of international criminal justice and the ICC’s work in particular.

On a fundamental level, transitional justice is about time. Decisions about whether and how to confront past atrocities are about negotiating the past, the present and the future. Differing choices prescribe differing timing. Granting amnesties to those responsible for past atrocities suggest that the past should never be confronted; the past is better left in the past. Truth Commissions are a long and arduous process intended to establish narratives of particular time periods. Trials are meant to bring a sense of justice to victims immediately.

Much of the debate regarding the relationship between peace and justice revolves around questions of timing. Those who voice the popular criticism that prosecutions provide incentives to leaders to entrench power and “fight to the death” believe that a political peace must first be established and only then should justice be pursued. The human rights community that says that trials are a moral necessity and the right of all victims argues that there is “no peace without justice” and justice must be pursued immediately after violations of rights have occurred.

At the heart of these competing views are assumptions about when accountability should be pursued. The result is a debate about the relationship between peace and justice where one side argues that justice must be sought immediately, regardless of the political landscape of a conflict or even if a conflict is ongoing, and the other side argues that justice must be a secondary goal to the cessation of violence and the establishment of order.

Saif Gaddafi, one of the Tripoli Three, is under investigation by the ICC. Less than three months since the investigation began, the ICC Prosecutor has requested arrest warrants.

Much of what has been said about the ICC’s judicial intervention into Libya can be understood within this debate. And the common denominator of virtually all supportive and critical arguments regarding the ICC’s role are contradictory claims about the time and timing of pursuing international criminal justice.

In this context, one of the most remarkable features of the ICC’s involvement in Libya has been how quickly the Court’s Prosecutor has investigated crimes and requested arrest warrants for the Tripoli Three.

The amount of time that Prosecutor Luis-Moreno Ocampo has taken before issuing his request is unprecedented. Libya was referred to the ICC by the UN Security Council on February 26, 2011. On March 3, the Prosecutor declared he was opening an official investigation into possible war crimes and crimes against humanity in Libya. This past week, on May 16th, the Prosecutor announced he was seeking an arrest warrant for the Tripoli Three. In about two and a half months, the case went from being referred to the ICC to having the Prosecutor request arrest warrants. The speed of the Court’s work is only more impressive in relation to past investigations.

Let’s consider two previous decisions of the Court to open investigations and subsequently request arrest warrants.

Continue reading →

Posted in Amnesty, Darfur, International Criminal Court (ICC), Libya, Libya and the ICC, Lord's Resistance Army (LRA), Serbia, Slobodan Milosevic, Sudan, Truth Commission, Uganda | 5 Comments