Impressions on the State of the Art in Transitional Justice

Posted on March 24, 2011 by Mark Kersten
Post-conflict justice

Many who studies Transitional Justice now consider themselves as Transitional Justice scholars (Photo: University of Minnesota)

I had the opportunity to attend the four-day academic marathon that is the International Studies Association (ISA) annual conference last week in Montreal. The opportunity gave me the chance to meet and hear from those at the vanguard of transitional justice. Inspired by Alana Tiemessen’s post at Global Transitional Justice, I decided to share my thoughts on the state of the art in transitional justice.

1. The most striking development, in my view, is that those who study transitional justice (TJ) are challenging the boundaries of what typically constitutes TJ. What falls within the remit of the field has expanded dramatically. TJ scholars are increasingly considering oft-neglected yet critically important subjects: Bronwyn Leebaw is examining the question of resistance and relating it to the mandates of truth and reconciliation commissions; Mark Drumbl is challenging the victim-perpetrator perceptions of child soldiers; Benjamin Schiff is asking what the relationship between the Responsibility to Protect (R2P) and the International Criminal Court (ICC) is; Chandra Lekha Sriram is relating the conflict resolution paradigm of power-sharing to the capacity to achieve justice in post-conflict societies. Next year, I hope to present on post-conflict architecture/reconstruction and transitional justice reconciliation. In short, TJ is increasingly creative and shaking off the traditional notion that only trials and truth commissions fall under its mandate.

2. Transitional Justice sees itself as a discipline. For some this might be obvious, but for others (including myself), not so much. I asked numerous individuals at the ISA whether they considered themselves “TJ scholars”. Most said they did. Further, as Tiemessen points out, there has been a sharp increase in TJ courses. There are obvious benefits and risks to this development. As a discipline, TJ can carve out an analytical space for itself and begin to develop methodological and unique disciplinary traditions. However, TJ is an area of study that draws on numerous other fields – law, ethics, and anthropology, etc. I, for one, consider myself a conflict and peace studies scholar who studies TJ rather than a TJ scholar. There is a risk of cutting TJ off from other disciplinary traditions on which it relies. It is important to remember that not long ago, TJ was wrestled from being almost exclusively within the legal domain.

transitional justice

Transitional Justice as a field of study has become increasingly self-reflexive and scholars have begun exploring oft-neglected issues (Photo: Cambridge Transitional Justice Research Network)

More fundamentally, there remain important questions to ask as to what “TJ” means and what it assumes. First, the term “transitional justice” implies that justice is necessary in transitions. A few years ago, this may not have been problematic. However, with recent studies by Mark Freeman, Louise Mallinder, and Leigh Payne (et al) on the question of amnesties, not doing justice is as much a choice within transitional justice as doing justice. Second, what exactly states are meant to transition to remains largely assumed – and thus omitted – in TJ literature. What is the end-point of the transition in which justice is meant to play a role? For some, it is clear. The end is a liberal polity and TJ forms both an element and a conduit of the liberal peace project. This remains, however, a largely unexplored assumption of TJ.

3. Amnesties are all the talk in TJ. Some of the most fascinating academic work being done right now is on amnesty laws for past human rights violators. TJ has long suffered from treating concepts like “justice”, “truth”, “reconciliation”, etc. as monolithic. However, past years have seen challenges to this approach. Freeman (2009) and Mallinder (2008) have helped to unpack the concept of amnesty and problematize it in important ways. Mallinder, for example, notes that amnesties differ along three lines: who is amnestied, what crimes are amnestied and whether amnesties are conditional or not. The empirical work by Payne et al poses a serious quandary: they illustrate that amnesties, in combination with trials, have positive effects on human rights and democratic development. I will post a blog looking at these issues more closely soon, but the nexus of problematizing and identifying different types of amnesties along with early empirical findings hold great promise for better understanding the impact of different responses to past atrocities.

4. Whither the peace versus justice debate? TJ appears to have largely moved on from the so-called “peace versus justice” debate. On a selfish note, this makes my life easier as the debate becomes less cluttered. More importantly, my guess would be that this is the result of frustrations over what has increasingly become considered an “artificial debate” and a “false dichotomy”. Critically, however, the move away from the debate certainly is not because there is a settled understanding of how particular forms and combinations of transitional justice mechanisms affect certain types of peace.
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Posted in Amnesty, Liberal Peace, Transitional Justice | Leave a comment

ICC Wanted Broader Jurisdiction in Libya: Moreno-Ocampo

Posted on March 21, 2011 by Mark Kersten
Benghazi tank

Children play on a tank near Benghazi (Photograph: Kim Ludbrook/EPA)

The UN’s referral of the situation in Libya sharply restricted the temporal jurisdiction of the ICC. The referral says the Court can have jurisdiction only over crimes committed in Libya since February 15th 2011. In a recent post, I argued that this would bias the potential for political accountability as well as the historical record, particularly in relation to relationships between Western states and Gaddafi.

ICC Prosecutor Luis Moreno-Ocampo also wanted a more expansive jurisdiction, but for different reasons. Tucked away in an article by Al Arabiya about Egypt’s cooperation with the ICC on the investigation of events in Libya, is the following:

“Ocampo had hoped that Security Council resolution 1970 mandate would allow him to investigate crimes in Libya since 2002, rather than Feb. 15, 2011, Al Arabiya sources said.

This expanded time frame that would have allowed him, according to the sources, to show a pattern in the Libyan regime’s behavior.”

Where is this information in mainstream western media? The lack of critical thinking on Resolution 1970 has been frustrating. The role of the ICC been portrayed through a predictable and frustratingly artificial dichotomy: either the referral marks an incredible moment in international cooperation and commitment to international law (see here and here)  or it will give Gaddafi more reasons to stay in power and continue killing Libyan civilians (see here, here, and here).

Moreno-Ocampo’s argument needs analysis, separate from the question of the politically-oriented choice of jurisdiction by the UN Security Council. It points to the fact that a restricted jurisdiction is precarious both in terms of justice as well as the law. Presumably, Moreno-Ocampo wants to establish that any of the alleged crimes against humanity committed in Libya are part of a systematic pattern of violence and criminal activity. If any Libyan officials are ever brought to trial, this would no doubt help in the prosecution’s case. Unfortunately for the Court’s Prosecutor, this won’t be possible.

At a recent conference, one well-regarded Transitional Justice academic referred to Libya as a “poisoned chalice” for the ICC. How the referral affects the legitimacy of the Court can only be judged in the months and perhaps years to come, but it is, at the very least, important to consider the possibility that the politically inspired directives of Resolution 1970 are not necessarily a good thing for the Court or international criminal law in general.

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

The West and Libya: The Politically Imposed Limits of Justice

Posted on March 14, 2011 by Mark Kersten

 

Western leaders Gaddafi

In recent years Gaddafi agreed to numerous economic, political and weapons deals with numerous Western leaders (Photo: Oli Scarff/Getty Images Europe)

There was a time, just a few years ago, when Libyan leader Muammar Gaddafi was ostracized by the international community. Then he became a key, if quirky, ally and business partner of the West. Fast-forward a few years and Gaddafi is back to being ostracized and vilified for his violent crackdown in Libya. The narrative of Gaddafi and Libya that is told in years and decades from now, however, may simply omit those inconvenient and uncomfortable years when the West buddied-up with Gaddafi, enthusiastically shook his hand, smiled at photo-ops and accepted his money in exchange for weapons, some of which could feasibly have been used by Gaddafi-backed troops against Libyans.

There is much to be said about the “limits of law”. International law isn’t the solution to all politics nor is it a solution to peace. Increasingly, the limits of what law can achieve are being recognized and the expectations of law calibrated. Yet, when the UN Security Council referred the situation in Libya to the ICC, the Council actually imposed a political limit to the Court’s jurisdiction and thus what it could and could not investigate.

Operative paragraph 4 of UN Security Council Resolution 1970 (2011) reads:

“4.   Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

Thus, the ICC’s investigation is limited to the events that have occurred since February 15. This is not an arbitrary decision nor was it included to ensure that the Court did not have too much on its plate. It was a carefully deliberated political decision by member states of the UN Security Council seeking to ensure that embarrassing, political facts could not be brought forward in the process of a trial.

Italy Libya

Some would say that the relationship between Libya and Italy, in particular, was too close (Photo: Reuters/Remo Casilli/Files)

In his excellent post on the debates surrounding the Libya deferral, Xavier Rauscher argues that the legality of the time is not particularly questionable because “[i]t would not necessarily be good administration of justice to constantly give the ICC full jurisdiction time-wise, especially as the Court grows older.” This may be, but there is a difference in giving the Court full jurisdiction back to 2002 and giving the Court a very myopic jurisdiction, beginning just weeks ago. What will be lost with this curtailed temporal investigation is precisely how Gaddafi was able to commit human rights violations on the scale of crimes against humanity.

Xavier adds that:

“Cynics would however not be entirely wrong to point out that political motives may also be at play here, as States would rather avoid having the Court look too closely at possible unsavory ties governments had with Gaddafi prior to the recent rebellion.”

Cynical or not, the limited jurisdiction was politically motivated. This is why:

A recent and rather shocking piece by The Guardian broke down the EU arms deals to Libya. The key points included:

  • The EU granted export licenses for €834.5m worth of arms exports in the first five years after the arms embargo was lifted in October 2004 2009 is the highest amount ever: €343.7m
  • Italy is the top exporter, with €276.7m over the five years
  • The UK got off to a big start in 2005, with €58.9m of the €72.2m total. UK licenses over the five years are worth €119.35m
  • Malta saw some €79.7m of guns go through the Island en route to Libya in 2009 – apparently sold via an Italian company

Add to this the following curriculum vitae of less than savoury deals between Western states and Libya:

  • Just six weeks before the violence erupted in Libya, Russia announced that it had signed a $1.8 billion arms deal which included small arms, fighter aircraft, tanks and a sophisticated air defence system
  • The US recently had a $77 million deal with Libya in place to provide Gadaffi with 50 refurbished armored troop carriers
  • Italy’s relationship with Gadadffi’s stands alone: Libya is Italy’s largest supplier of oil while Gadaffi owns 7.5% of Unicredit, Italy’s largest bank, 2% of the Italian oil company ENI, 2% of the country’s second largest industrial group, Finmeccanica and 7% of the Turin-based Juventus soccer club; In 2008, Italy agreed to invest $5 billion in Libya in exchange for tight immigration controls for African migrants in Libya. As Time Magazine put it, Italian Prime Minister Berlusconi “went gaga for Gadaffi”.
  • In 2007, Libya and France signed a £200m arms deal which was viewed as an indication of thawing relations between the West and Libya; it also signed agreements on immigration and security.
  • In 2007, British PM Tony Blair travelled to meet Gaddafi in Tripoli and called relations between the UK and Libya “completely transformed” and added that “[w]e now have very strong cooperation on counter-terrorism and defence.” The countries then signed a £450 million agreement allowing BP to establish gas exploration projects in Libya which, if it reached its full potential, could be worth £13 billion.

    Blair in Libya

    Former British PM Tony Blair assured critics that Gaddafi was no longer an international outcast and that relations were "completely transformed" (Photo: Getty Images)

This just barely scratches the surface of the complex web of economic, political and military relations between the West and Libya. The point isn’t that it was wrong for Western states to engage with Libya. Rather, as Stephen Glover recently wrote: “What is not defensible is the subsequent indulging of this horrible man, and treating him as though he were a normal leader of a normal country.”

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Posted in Arms Deals, European Union (EU), France, International Criminal Court (ICC), Italy, Libya, Russia, United Kingdom, United States | 9 Comments

Outreach, Politics and Justice: An ICC TV Show in Kenya

Posted on March 12, 2011 by Mark Kersten
Outreach

The ICC has increased its outreach efforts with sessions in communities including northern Uganda. Now its outreach also includes a TV show (Photo: http://www.icc-cpi.int)

In comparison to criticisms such as the effects of the ICC’s work has on peace, on the costs of the Court’s trials, and on the Court’s supposed Western, colonial mode of justice, the issue of it’s lacking capacity for outreach has largely escaped scrutiny. Today, however, outreach is at the heart of the work of tribunals which recognize that justice cannot only be done it has to ‘be seen to be done.’ The ICC’s increased attention on outreach is an implicit recognition of the political implications and consequences of its work and mandate.

While it is easy to forget, the ICC is still a young institution and it is learning its way. Sometimes the process of learning has been a struggle. It has made some mistakes along the way and it will undoubtedly make errors in judgment as it continues to develop as an institution. One oversight in its early investigations was taking into consideration how it would be perceived in the contexts in which it investigated crimes. There seemed to be an assumption that if the Court opened an investigation or began a prosecution, that the citizens of the states where those investigations took place would understand what was happening. Given that the Court’s work has been focused on societies where the rule of law has been largely or entirely absent as a result of violent political conflicts, this was a pretty unfounded assumption to make.

Take, for example, the case of the ICC’s judicial intervention in Uganda. The brutal conflict in northern Uganda was referred to the ICC by the Ugandan government in 2003. In 2005, following its investigation, the ICC indicted five senior officials of the Lord’s Resistance Army (LRA) including its notoriously brutal leader, Joseph Kony. The ICC, however, miscalculated or simply did not consider how the public manner of its decisions would be perceived by the Ugandan public. Sure, the Court understood that its supporters would hail the ICC’s investigations and indictments as a victory for humanity. But when ICC Prosecutor Luis Moreno-Ocampo spoke about the investigations at a joint press conference in London with Ugandan President Yoweri Museveni, it entrenched views that the Court was biased and would only investigate crimes committed by the LRA and not by the Ugandan government. In Trial Justice, which remains the single best account of the ICC’s work in Uganda, Tim Allen writes:

“In Uganda, there are specific reasons why the ICC has been open and vulnerable to local criticism and pressure. First, the court made an error in judgement in January 2004 when the chief prosecutor held a joint press briefing with President Museveni. From that time onwards, his office has had to struggle to demonstrate that it is not simply ‘in the pocket’ of the Ugandan government.”

Vincent Otti LRA

Joseph Kony (second from right) and Vincent Otti (far right), both indicted by the ICC. The Court was heavily criticized for appearing to be biased in favour of the Ugandan Government (Photo: langoweb.net)

Such misjudgements are part of the growing pains of an institution that has struggled to understand the political implications of its work, often preferring to deny it affects or is affected by political realities. Yet, as the old marketing adage goes, it can be dangerous to assume that everyone loves and knows your product as much as you do.

Sara Kendall and Alpha Sesay recently pointed out that “transitional justice has grown increasingly self-reflexive about its audience and its objectives.” The Court has not only engaged more productively with its critics but has also began to reflect on its own practices and record. This is a sign of an increasingly confident and mature institution. In this context, the ICC has understood that for it to be effective in the situations within which it intervenes, it must invest in pathways of outreach. The Court now conducts outreach sessions in many local communities. This past summer, the ICC announced that it would be establishing a liaison office in Addis Ababa, Ethiopia, in order to “encourage dialogue” and the “exchange of information” between the Court and the African Union, which has had a less than comfortable relationship with the Court in recent months.

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Posted in African Union (AU), International Criminal Court (ICC), Kenya, Lord's Resistance Army (LRA), Outreach, Uganda | Leave a comment

Will Kenya’s Most Wanted Walk the Walk or just Talk the Talk?

Posted on March 10, 2011 by Mark Kersten
Justice Kenya

The six alleged perpetrators are referred to as the "Ocampo Six" (Photo: rnw.nl)

On the same day that the ICC summoned six senior Kenyan officials to appear before the Court to face charges linked to post-election violence in 2007/2008, Kenya officially asked the UN Security Council to suspend the ICC investigation under Article 16 of the Rome Statute. A number of the six senior officials, including the current Prime Minister and Finance Minister, the Minister of Higher Education as well as key political allies of the current government, have previously offered to appear before the Court. Will they fulfill their commitment? Will they have to?

Following the Kenyan Presidential election in 2007, in which incumbent Mwai Kibaki was declared the winner, violence, largely inspired by ethnic and socio-economic tensions, erupted. The result was 1,200 casualties and hundreds of thousands civilians fleeing from their homes. Originally, it appeared that Kenya would investigate the crimes through its own judiciary by setting up a tribunal to examine the post-election violence. Under the ICC’s complementarity regime, which stipulates that the Court can only investigate crimes when a state is unwilling or unable itself to investigate and prosecute, the ICC would not have been able to open an investigation. However, as it became clear that Kenya, a member state of the ICC, was unwilling to open a credible investigation into post-election crimes, the situation fell within the jurisdiction of the Court. Last December, ICC Prosecutor Luis Moreno-Ocampo named six officials, dubbed the “Ocampo Six”, as allegedly bearing the most responsibility for the violence, which Ocampo described as constituting crimes against humanity.

Immediately, fears arose that the Court’s pursuit of accountability could destabilize the fragile peace in Kenya. The country appears divided between those who welcome the Court’s investigation in the hope that impunity at the highest political levels will end and those who worry that targeting these senior political officials may catalyze renewed violence. The Kenyan Parliament even voted to pull out of the ICC’s Rome Statute. In short, the peace-justice debate has been in full-swing in Kenya.

One of the more interesting elements of this story was the willingness on the part of the alleged Kenyan perpetrators to appear before the Court.  Unlike numerous other high-profile, political figures, some of the “Ocampo Six” declared that they would voluntarily appear at the ICC. William Ruto, the Minister of Higher Education and an influential figure in Kenya’s Rift Valley where the most brutal violence occurred, maintained that while he felt the charges were politically motivated, he was prepared to face justice. In reaction to the summonses, two alleged perpetrators – former police chief Mohammed Hussein Ali and Joshua arap Sang, a radio executive – have said they would appear before the Court in order to prove their innocence.

Kenya Justice

The ICC has named and summoned six Kenya officials for their role in the 2007 post-election violence (Photo: CBC)

Kenya appears to be employing a two-pronged approach to the question of accountability. On the one hand, the accused officials have said they would face justice with a clear conscience in order to clear their names. On the other hand, the government has gone on a diplomatic road-show to persuade states that the ICC’s investigation should be deferred by the UN Security Council. They argue that Kenya is now prepared to open its own local tribunal to examine the post-election atrocities. President Kibaki has said that a local tribunal “will boost our efforts [for] peace, justice and reconciliation as well as uphold our national dignity and sovereignty; and prevent the resumption of conflict and violence.” In a significant diplomatic victory, Kenya received the backing of the African Union in its bid to defer the Court’s investigations. In other words, the accused have said they would fight the charges at the ICC while the government in which many of them hold key posts has worked tirelessly to ensure they would never have to.

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Posted in Article 16, Elections, Human Rights, International Criminal Court (ICC), Kenya, UN Security Council | 2 Comments

Engaging John Bolton on Libya and the ICC

Posted on March 8, 2011 by Mark Kersten
John Bolton UN

John Bolton derides the decision to refer the situation in Libya to the ICC (Photo: Richard Pohle)

I hesitate to even attempt to comment on anything that John Bolton says. His commentary is so stubbornly right-wing and predictably political  that arguing with him would be akin to trying to move concrete walls with your forehead. Nevertheless, Bolton’s recent piece critiquing the UN Security Council’s referral of the situation in Libya to the ICC does deserve some attention, in part because, at least this time, it’s not all venomous rhetoric. Bolton points to two substantive claims that need to be addressed within the field of international criminal justice: the question of outsourcing responsibility for peace and justice and the capacity of the ICC to deter future crimes. Regardless of the source, no doubt unsavoury for supporters of the Court, Bolton’s criticisms should be engaged with.

Of course, Bolton’s commentary must always be understood as an element of his political project. The man is multilateralism’s worst enemy. James Traub describes Bolton’s tenure as the American ambassador to the UN during attempts to reform it as “a nuclear strategy”. With regards to the ICC, Bolton’s attitudes serve as the fiercest example of American distrust towards the Court. Bolton has been one its staunchest critics. Bolton has described the Court as contradictory to the constitutional ideals of America, as an overreaching and unaccountable institution, and an institution which America should “isolate it through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.” When, in 2002, the Bush administration took the unprecedented step to ‘unsign’ the Court’s Rome Statute, Bolton described it as “the happiest day of my life.” Today, Bolton is considering a run for the 2012 Republic presidential nomination. Advocates of international cooperation and international law just collectively shivered.

In his border-line vitriolic piece on Libya and the ICC, however, Bolton does highlight a few important points along with some stunningly incorrect assertions and a confusing reference to the Valerie Plame scandal.

First, Bolton argues that by referring the situation in Libya to the ICC, the US – and his more specific target, President Obama – abdicated responsibility. In a similar vein, I recently argue that the future of peace in Libya depends on the UN Security Council and not the ICC and that there is a danger of the Security Council outsourcing responsibility for peace to the ICC. Bolton’s assertion of abdicating responsibility may be a bit over-the-top, but the question of where responsibility lies and how it is shifted between international institutions is not always clear.

Libya civil war

Libyan rebels engaged in combat. Bolton brings up the important question of whether the ICC can deter crimes (Photo: MSNBC)

Second, Bolton brings up the issue of the ICC its capacity to deter crimes, arguing that:

“Champions of the ICC theorize it will deter future crimes. Reality proves otherwise…The plain if deeply unpleasant fact is that history’s hard men are not deterrable by the flimsy threat of eventual prosecution.”

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Posted in Deterrence, International Criminal Court (ICC), Libya, UN Security Council, United States | 2 Comments

Would Gaddafi Accept a Deferral-for-Peace Deal?

Posted on March 8, 2011 by Mark Kersten
Libya civil war

Is a Libya without justice and without Gaddafi better that a Libya with Gaddafi? (Photo: Daily Sun)

In yesterday’s post, I mentioned that it is generally assumed that perpetrators of human rights violations would accept a deferral-for-peace deal. It isn’t obvious that they necessarily would.

The scenario in which Article 16, which allows the UN Security Council to freeze an ICC investigation or prosecution for a year, renewable yearly, would be used in the case of Libya would look something like this: diplomats from UN Security Council states would approach Gaddafi or members of his government, likely behind the scenes, with an offer of deferring the ICC’s investigation against him in exchange for a cessation of violence, his removal from power and perhaps his move into exile. In other words, the deal would trade accountability for Gaddafi for peace in Libya.

Some believe that the ICC can be instrumentalized in this way; that the Court can, and perhaps even should, be leveraged to achieve political ends, in this case to achieve some sense of peace and to rid Libya of Gaddafi. Others would support this scenario because they feel a Libya without Gaddafi and without justice is better than a Libya with Gaddafi being pursued by the ICC. In other words, a deferral of justice would constitute a ‘necessary evil’. Individuals with this view may also recognize that while Gaddafi can’t be brought to justice now, that does not preclude his arrest in the future. It is not that justice isn’t necessary, but that justice must follow peace. An illustrative example of this view is India’s position towards the UN Security Council’s referral of the situation in Libya to the ICC.

India declared that it would have preferred a “calibrated approach” to pursuing justice in Libya. India (as well as Gabon, Brazil and Portugal) wanted an approach which sequenced peace with justice. Yet sequencing or calibrating implies that justice will be pursued, just not necessarily immediately and not simultaneously with peace. Interestingly, there have been no negative reactions against this position from those who view that any deal that let Gaddafi off the hook would constitute a miscarriage of justice and that the resulting peace would not really be peace because there is “no peace without justice.”

Rebels in Libya

An Article 16 deferral would temporarily trade accountability for peace (Photo: rssbroadcast.com)

But what about Gaddafi himself, or other individuals wanted by the ICC for crimes against humanity, war crimes or genocide? Would they accept such a deal?

Because Article 16 is fundamentally temporary and needs to be renewed yearly, it is not clear that a one-year deferral would be enough for Gaddafi to relinquish power. Increasingly common views that justice can be delayed and pursued in the future, following amnesties or deferrals, aren’t likely to inspire confidence in authoritarian leaders who would want to be assured that they will never be brought to trial or thrown in jail and not that they won’t be for the next year or two.

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Posted in Article 16, Libya, UN Security Council | Leave a comment

Could Justice be Deferred for Peace in Libya?

Posted on March 7, 2011 by Mark Kersten
UN Libya

The UN's referral of the situation in Libya to the ICC included a reference to Article 16 of the ICC's Rome Statute (Photo: unostamps.nl)

A lot has been said about the UN Security Council’s referral of the situation in Libya to the International Criminal Court (ICC). The referral has sparked a fascinating debate on a multitude of legal and political issues. With regards to the inclusion of a reference to Article 16 of the Rome Statute in the Council’s referral, however, very little analysis has been offered. With the exception of a few observers wondering why Article 16 was included (here, here and here), very little has been written about this important issue. Article 16 allows the UN Security Council to defer an ICC investigation or prosecution for one year, renewable every year, if it deems the investigation or prosecution to constitute a threat to international peace and security. This, inevitably brings up the question, could the pursuit of justice in Libya be traded off to ensure peace?

There was significant disagreement between states in the UN Security Council about whether Libya should be referred to the ICC. The primary source of ambivalence by some states, including India, Brazil, Gabon and Portugal, revolved around whether peace and justice should be sequenced. India argued for a “calibrated approach”. A compromise was reached through a preambular reference in the Security Council’s referral to Article 16 of the Rome Statute. Thus, the referral to the ICC reads that the Security Council:

“…Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect…”

What remains unclear is the weight given to Article 16 by UN Security Council states. Was the inclusion of a reference to Article 16 a symbolic gesture to appease those states which sought a calibrated, sequenced approach to the question of peace and justice in Libya. Or, were there guarantees and serious discussions about the possibility of Article 16 being used as a negotiating carrot to ensure peace in Libya?

Given the amount of attention Article 16 has received in recent months, it seems unlikely that it was included as merely a gesture. Article 16 has received a tremendous amount of scrutiny. The African Union, the Arab League, China and others have all at one point or another requested that the arrest warrant against Sudanese President Omar al-Bashir be dropped. It was also rumoured that the US and other Western states were willing to defer the arrest warrant of Bashir in exchange for his ‘good behaviour’ in allowing the peaceful separation of Southern Sudan. It is no doubt an uncomfortable and inconvenient truth for many that key allies of the ICC including the US and Britain are privately willing to consider a deferral of the arrest warrant. Kenya has sought a deferral of prosecutions against key senior officials suspected of being responsible for post-election violence in 2007. Within the peace-justice debate, the question of invoking Article 16 in order to achieve some degree of political control over the ICC, in order to allow the use of amnesty laws in some contexts, as well as to sequence justice with peace have received significant attention.

Gaddafi ICC

Gaddafi speaks at the UN. The leader of Libya is now being investigated by the ICC (Photo: The Telegraph)

Not long ago, the general consensus – at least within academic circles – was that Article 16 would be irrelevant in practice. Yet the level of attention paid to Article 16 may have calibrated the expectations that states have of the ICC. The momentum carrying debates about the possible deferral of investigations and arrest warrants has now translated to a position for Article 16 within a UN Security Council Resolution. It’s moved from being spoken about to being invoked in the practice of international law and politics. Some may disagree, but this could mark an important shift in the discourse of the politics of international law and the peace-justice landscape.

Who would accept the deferral of justice in the name of peace? Can both peace and justice be achieved simultaneously? These are difficult questions to answer and they have long coloured the so-called “peace versus justice” debate. Of course, the most ardent supporters of international justice won’t think twice before waving the flag of “no peace without justice” nor take much responsibility for their rhetoric. Many of the ICC’s more predictable critics will play their one-string fiddle arguing that the ICC takes away all incentives for peace and it is the Court’s fault if peace is not immediately achieved.

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Posted in Article 16, International Criminal Court (ICC), Libya, Middle East, Sudan, UN Security Council | 5 Comments

ICC Opens Investigation into Libya – Political Implications and Promise

Posted on March 3, 2011 by Mark Kersten
Luis Moreno-Ocampo

ICC Prosecutor Luis Moreno-Ocampo has opened an investigation into potential crimes against humanity in Libya (Photo: Reuters)

No surprise here. The ICC has officially opened an investigation into the situation in Libya just days after the UN Security Council unanimously referred Libya to the Court. The Prosecutor will investigate potential crimes against humanity committed by Muammar Gaddafi, his sons as well as senior leaders.

Politically speaking, this was a no-brainer. The Court has endured its share of bumps and bruises in recent months: Kenyan officials have gone an a tour de resistance in an attempt to drum up regional support against the Court; the African Union, the Arab League, China and others have all expressed concerns about the arrest warrant against Sudanese President Omar al-Bashir and called for the charges against him to be dropped or deferred; al-Bashir has defied the charges against him by travelling to numerous states, including ICC member states; and the trial of Thomas Lubanga Dyilo came close to collapsing for the second time this past summer when judges at the ICC declared that his right to a fair trial had been breached (for the second time no less).

There’s a ton of legitimacy to be gained by the ICC in the Libyan case. First of all, there appears to be an unprecedented international level of support for the Court’s involvement, signaled most obviously by the unanimous support by the UN Security Council for Resolution 1970 (2011). With talk of military forces mobilizing near Libya and a potential military intervention under the rubric of R2P, the potential level of cooperation from the international community could very well ensure that Gaddafi and others are detained. The degree of commitment to international cooperation for a Court which relies on it to enforce its arrest warrants is a hopeful sign for the ICC. We haven’t seen anything like this level of commitment since the late 1990s when Slobodan Milosevic was detained just weeks after NATO’s intervention in Serbia in 1999. It is worth noting that the detainment of Milosevic gained the International Criminal Tribunal for Yugoslavia significant international currency and legitimacy. On a side note, if Gaddafi is brought to the ICC, both he and Milosevic would share the distinction of being allies of the West prior to criminal proceedings being brought against them.

Gadaffi Libya

Gadaffi may be moving from the front row of international meetings to the back row of an ICC courtroom (Photo: The Guardian)

In one way or another, this also puts the African Union (AU) in a bit of a quandary. The AU has passed resolutions saying that no AU member-state would cooperate with the Court regarding the arrest warrant against Bashir. It should, of course be noted that the AU shouldn’t be treated as monolithic. A high-level panel headed by Thabo Mbeki implicitly supported the criminal action against al-Bashir. Further, some officials at the ICC have suggested that a number of African and Arab states agreed that Bashir should face justice but that they could not declare so publicly or officially. Some are more open with their support. South African President Jacob Zuma recently declared that should Bashir visit, he would be arrested.

With regards to the referral of Libya to the ICC, three AU member states (South Africa, Nigeria and Gabon) voted in support of Resolution 1970. As noted by others, the AU has been silent on the subject. ICC Prosecutor Luis Moreno-Ocampo has reached out the AU saying he would “liaise” with them and others. The participation of the AU, however, remains unclear. Nevertheless, the AU’s position towards the Court will have to be clarified in coming weeks and months. ICC-bashing on the basis of the Bashir case alone will no longer suffice.

If Gaddafi is successfully detained and brought before the ICC, it would mark an important success for the Court. It would be the first head of state in the Court’s custody. It may even make some states re-think their position on the question of Bashir’s arrest warrant.It would also no doubt illustrate that the Court and the international community can work productively together to achieve the goals of justice.

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Some additional resources:

Updated: Also, check out the fascinating analysis by Christopher Gevers and Max du Plessis at their blog War and Law, especially with regards the the ICC-AU relationship:

“It will now be difficult to take seriously claims that the ICC’s involvement in Libya is a further example of the Court’s unhealthy preoccupation with Africa. Moreover, one can hope that the apparent support within Africa for the Libyan referral might have the unintended but welcome effect of unmasking many of the AU’s ICC positions for what they are: political rather than principled objections…make no mistake: the apparent African support for the Libyan referral is because Ghadaffi is increasingly yesterday’s man.”

Press Conference with Luis Moreno-Ocampo at the ICC today:

http://www.youtube.com/user/IntlCriminalCourt#p/a/u/0/sxXM4cNNtm4

Statement by the Coalition of the International Criminal Court:

Click to access Libya_Investigation_CICC_MA_FINAL_03032011.pdf

Posted in African Union (AU), International Criminal Court (ICC), Kosovo, Libya, Middle East, Serbia, Slobodan Milosevic | Leave a comment

Lost in the shuffle – Argentina Puts Dirty War Leaders on Trial

Posted on March 3, 2011 by Mark Kersten
Kidnapping children argentina

Bignone (left) and Videla (right) at a hearing regarding their involvement in the kidnapping of children during Argentina's Dirty War (Photo: Associated Press)

Argentina has long been at the vanguard of human rights and international criminal justice. In line with their commitment to accountability, this past week Argentina began a trial against former Argentine dictators Jorge Videla and Reynaldo Bignone and six others for the kidnapping and disappearance of children during what is known as the ‘Dirty War’. In the 1970s and 1980s, hundreds of babies were taken from female political prisoners and given to the regime’s allies. The trial is the result of one Argentine who a biological parents found out the truth about his adoptive family.

Predictably and understandably this important event has been lost in the shuffle as commentators have scrambled to make sense of the UN Security Council’s referral of the situation in Libya to the ICC.

A little history:

Following the Dirty War in the early 1980s, a period marked by abductions, torture and murder of thousands of ‘subversives’ and sympathizers, there was a strong sense in Argentina that accountability was necessary to prevent and overcome the political patterns which had previously impeded the development of peace, stability and democracy in the country. In this context, Argentine President Raul Alfonsín sought to bring key leaders of the military junta to trial, overturning a self-amnesty which the dictatorial President General Reynaldo Bignone had signed in the dying days of the junta’s power. Ellen Lutz and Kathryn Sikkink have described Argentina as having a national obsession for accountability.

Videla justice

Videla in 1976. He was President of Argentina between 1976 and 1981. (Photo: Edgardo E. Carbajal)

To make a long – and fascinating story short – Argentina created a truth commission, the National Commission on Disappeared Persons (CONADEP) which published it’s now infamous report ‘Nunca Más, ‘Never Again’. Argentina also brought legal cases against key leaders including Bignone and Videla, the latter of whom was considered the ‘architect’ of the Dirty War. On an interesting side note, the Chief Prosecutor of the ‘Trial of the Juntas’ was Julio Cesar Strassera while his assistant was current ICC chief Prosecutor Luis Moreno-Ocampo.

Despite their efforts to bring accountability to Argentina, fears quickly set in amongst the population. Fear of destabilizing democracy and a return to violence soon overwhelmed the possibility of continuing prosecutions. Carlos Nino, a scholar and human rights advisor to President Alfonsín, recounted that  “we were fraught with concern over what the future would bring. We all knew that no democratic government had completed its terms since…1928.” As a result of their fears, the government of Carlos Menem granted the military junta an amnesty for the crimes it had committed.

One crime that the amnesty laws did not cover, however, was the kidnapping of children. Efforts to hold military officials responsible for kidnapping and unlawfully changing the identity of children was led by the Grandmothers of the Plaza de Mayo, a remarkable group which has tirelessly demanded truth about what happened to their loved ones during the Dirty War.

Now, finally, after decades, the kidnapping of these children, committed by the junta leadership, will be brought to trial. Despite the fact that both Bignone and Videla have already been sentenced for other crimes they committed during the Dirty War, the trial remains incredibly important.

Hussein trial

Saddam Hussein was tried for the killing of 148 Shias and was sentenced to death (Photo: D. Myles Cullen)

Most obviously and importantly, the trial is necessary for the victims and survivors who lost children and grandchildren. It is also important for Argentina as a whole and in line with this, the proceedings will be televised across the country. The trial also an important development for international justice.

Continue reading →

Posted in Amnesty, Argentina, Enforced Disappearance, Human Rights, Iraq, South America, Truth Commission | 1 Comment