No Joke: States Praised Libya’s Human Rights Record in 2010 UN Report

Posted on April 28, 2011 by Mark Kersten
Universal Periodic Review

In November, 2010, Libya was the topic of the UN Human Rights Council's Universal Periodic Review

Last night, I attended a lecture by Louise Arbour, the former Chief Prosecutor at the ICTY and ICTR, former UN High Commissioner for Human Rights, and former Supreme Court Justice in Canada. Arbour reminded the audience of something that piqued my interest: In November 2010, just a few scant months before Libya dissolved into chaos, the UN Human Rights Commission’s Universal Periodic Review looked into the state of human rights in Libya. Considering the violence and human rights abuses in Libya since February, the Council’s findings and the opinions of states responding to the Review’s findings are astonishing.

I have had the chance to go through the Report and highlight some of the most interesting findings, declarations by the Libyan declaration regarding its human rights records, and the responses of states below. Note that this is not an exhaustive list and that the sections below were taken directly from the UNHRC’s Report.

What becomes readily apparent is the extent to which no states believed that a spiral of brutal repression in Libya was on the horizon. This is not to apportion blame on them for not predicting the upheavals in the Arab world. Few, if any, observers predicted the extent and reach of the ‘Arab Spring’, much less the brutality with which democratic movements would be met.

Yet it remains remarkable that, with the exception of a handful of states, virtually all participating nations, democratic and autocratic, expressed some level of praise for human rights standards and improvements in Libya. It is worthwhile asking whether the encouragement expressed by Western states, in particular, with regards to Libya’s human rights standards was part of a broader strategy of engaging with Libya and recognizing Gaddafi’s regime as legitimate.

Libya’s Presentation to the Council:

The Libyan Arab Jamahiriya believed that the promotion and protection of human rights was one of the most important factors for the progress and development of the people…

The Libyan Arab Jamahiriya was party to most human rights treaties and the protocols thereto, and those instruments took precedence over national laws and could be directly applied by the courts once they had been ratified…

The delegation noted that all rights and freedoms were contained in a coherent, consolidated legal framework. The legal guarantees formed the basis for protection of the basic rights of the people. Further, abuses that might occur were dealt with by the judiciary, and the perpetrators were brought before justice. The judiciary safeguarded the rights of individuals and was assisted by other entities, most importantly the Office of the Public Prosecutor…

Protection of human rights was guaranteed in the Libyan Arab Jamahiriya; this included not only political rights, but also economic, social and cultural rights. The Libyan Arab Jamahiriya referred to its pioneering experience in the field of wealth distribution and labour rights…

The delegation indicated that women were highly regarded in the Libyan Arab Jamahiriya, and their rights were guaranteed by all laws and legislation. Discriminatory laws had been revoked…

The Libyan Arab Jamahiriya believed that human rights education was a duty that should be fulfilled in the school system and the family system and by relevant civil society organizations…

The Libyan Arab Jamahiriya noted that laws safeguarded freedom of expression through principles enshrined in the Great Green Document. Article 5 promoted the right of expression of every person.

rebels in Libya

It remarkable to think now, with fighting ongoing in Libya, that states, both democratic and autocratic expressed praise for Libyan human rights standards (Photo: Yuri Kozyrev)

State Responses

Qatar praised the legal framework for the protection of human rights and freedoms, including, inter alia, its criminal code and criminal procedure law, which provided legal guarantees for the implementation of those rights.

The Syrian Arab Republic praised the Libyan Arab Jamahiriya for its serious commitment to and interaction with the Human Rights Council and its mechanisms. It commended the country for its democratic regime based on promoting the people’s authority through the holding of public conferences, which enhanced development and respect for human rights, while respecting cultural and religions traditions.

The Democratic People’s Republic of Korea praised the Libyan Arab Jamahiriya for its achievements in the protection of human rights, especially in the field of economic and social rights, including income augmentation, social care, a free education system, increased delivery of health-care services, care for people with disabilities, and efforts to empower women.

Egypt commended the Libyan Arab Jamahiriya for progress in building a comprehensive national human rights framework of institutions and in drafting legislation and supporting its human resources in that area.

Continue reading →

Posted in Human Rights, Libya, Universal Periodic Review (UPR) | 6 Comments

France and Italy Call for Closed EU Border: An Abrogration of Moral Responsibility

Posted on April 28, 2011 by Mark Kersten
Tunisian refugees

Thousands of migrants from North Africa have fled to Europe following the ‘Arab Spring’. Tunisian migrants in Paris (Photo: AP)

Readers of Justice in Conflict will know that the posts rarely, if ever, step out of the bounds of issues concerning transitional justice and conflict resolution. Sometimes, however, issues that aren’t directly related to either are so morally outrageous that they spur my eager fingers to type. The joint announcement by French President Nicolas Sarkozy and embattled Italian Prime Minister, Silvio Berlusconi that the EU’s borders should be closed because of the “emergency” in the Arab world is one of those issues. My apologies if some of what follows sounds exasperated and overly polemical.

From The Guardian:

“France and Italy have thrown down the gauntlet over Europe’s system of passport-free travel, saying a crisis of immigration sparked by the Arab spring was calling into question the borderless regime enjoyed by more than 400 million people in 25 countries.

Challenging one of the biggest achievements of European integration of recent decades, Nicolas Sarkozy and Silvio Berlusconi also launched a joint effort to stem immigration and demanded European deportation pacts with the countries of revolutionary north Africa to send new arrivals packing.”

According to reports, some 25,000 migrants have arrived in Italy since the beginning of the so-called ‘Arab Spring’. France and Italy have recently been feuding over the fate of the migrants, with French officials fuming over the issuance of visas in Italy to migrants, thus allowing them to travel freely within most of the EU. France responded by issuing border controls and stopping trains carrying Tunisian migrants. This week, they agreed on a joint policy to pressure the EU to severely restrict immigration into the Schengen area. It is up to the EU Commission and other EU nations to prevent this abrogation of responsibility from going forward.

Berlusconi and Sarkozy maintain that unless the borders are closed and some of the refugees and asylum-seekers who have managed to make it into the EU are deported, the seismic changes in the Arab world “could swiftly become an out-and-out crisis capable of undermining the trust our fellow citizens place in the free circulation within the Schengen area.” Sarkozy added that “For the treaty to stay alive, it must be reformed.” Both leaders want the exodus of North African refugees to Europe to be labelled an “emergency”.

France and Italy are telling Europeans that unless the EU turns its back on displaced peoples seeking refuge in Europe, the Schengen Area, which allows free and unrestricted travel among participating states, would be at risk. It is fear-mongering at its worst.

Tunisia France

France and Italy are pushing to close EU borders due to what they view as an “emergency” of fleeing North African migrants (Photo: AP)

Sarkozy and Berlusconi are seeking to label the arrival of thousands of north African citizens to Europe as an “emergency”, implying that in the right to asylum and free movement should be frozen. As such, it carries uncomfortable shades of the nationalist fervour of some of the most brutal, autocratic regimes in modern history where the rights of citizens were quashed in the name of “emergency”.

This is not a question of defending Schengen. It is a question of fairness, responsibility and justice. The rights of asylum and free movement are being withered at the expense of two politicians pandering to populists and nationalists.

Sarkozy and Berlusconi are quite simply abrogating their moral responsibility in exchange for political currency:

Continue reading →

Posted in Europe, European Union (EU), France, Immigration, Italy | 3 Comments

Syria and the International Criminal Court: Taking Justice Seriously

Posted on April 26, 2011 by Mark Kersten
Syria Justice

The situation in Syria has deteriorated rapidly. Hundreds have been reported killed by Government forces

Syria has gone from bad to worse. According to reports, hundreds of peaceful, pro-democracy protesters have now been killed by authorities cracking down on any attempt to undermine the regime. This statement, or something approximating it, has probably been written and read thousands of times in the past few months as citizens across the Middle East and the Arab world have agitated against long-standing regimes in what has now been dubbed the Arab Spring.

The pattern in Egypt, Tunisia and Libya has been remarkably similar. While each, of course, are context-specific, all have experienced popular protests followed by significant levels of violence against, and repression of, citizens. All have seen subsequent calls for international criminal justice. Tunisia and Egypt have declared their intention to ratify the Rome Statute, while Libya was referred to the ICC by the UN Security Council. All of this seems to set a transformational precedence about the role of international criminal justice in the region.

This brings us to the question: should the ICC become involved in Syria? For some, it is a no-brainer.

Prof. William Harris argues that the actions of Syrian President Bashar Assad clearly constitute crimes against humanity and thus fall within the mandate of the ICC:

“It would be hard to find a clearer case of such offenses than the Syrian regime’s systematic repression of peaceful demonstrations through the past six weeks, with indiscriminate use of live ammunition against its own people on a countrywide scale.”

Barry Rubin, the director of the Global Research in International Affairs Centre adds that the Syrian regime has:

“gone to the third level…heavy repression and killing people in order to destroy the protests and intimidate people from participation.” 

Amnesty International has explicitly called on the UN Security Council to refer the situation to the ICC. Further, while no reference to the ICC was made, the International Commission of Jurists recently issued a statement imploring the UN to act in the case of Syria and that:

“Those ordering and carrying out these attacks, including those firing live rounds into crowds, must be held criminally accountable.”

It’s hard to argue with Harris’s claims that crimes against humanity have occurred after seeing the horrifically graphic video, linked at Max Boot’s blog, of what appears to be indiscriminate attacks on peaceful Syrian protesters. (I cannot stress enough that not everyone should watch the video – it is perhaps the most gruesome video I have seen to date).

Gaddafi Assad

The international community set a precedence in the past three months concerning justice and accountability

But will the international community do anything about Syria? As a number of commentators have pointed out, the international community has been eager to intervene in Libya but painfully slow to do anything more than condemn Assad for the atrocities in Syria. Adrian Blomfield of the Telegraph, for example, notes that:

“Critics complained that while the West has been comparatively quick to go to the aid of the Libyan people, Syrians struggling against one of the Middle East’s most repressive regimes had largely been abandoned to their fate.”

Regarding the ICC’s involvement, Dominic Waghorn writes:

“It took just two weeks for the International Criminal Court to begin investigating Gaddafi, his sons and commanders over allegations their security forces had attacked peaceful demonstrators.

More than six weeks into Syria’s unrest, Assad’s security forces are gunning down their own people in their hundreds and the west still has not moved beyond words of condemnation.”

So will the international community seek the involvement of the ICC? While it is increasingly evident that it should, it is not yet clear whether it will.

Syria is not a member of the ICC, and thus outside of the jurisdiction of the Court. As Tobias Hanson reminded me (see comment below), the only way for the Court to achieve jurisdiction would be for the UN Security Council to refer the situation in Syria to the ICC, à la Darfur and Libya.

It is unclear what the zest for international criminal justice is among the Security Council members. Some states expressed reservations about referring Libya to the ICC. India, Brazil, Gabon and Portugal expressed concerns regarding the sequencing of peace and justice.

At the moment, the conflict in Libya looks far from resolved. America’s most senior military officer, Mike Mullen, admitted that despite NATO efforts, Libya is “moving towards a stalemate.” Some states, for better or worse, may believe that the referral of Libya to the Court has complicated efforts to find a political resolution to the crisis.

Another issue is the question of judicial overstretch: can the ICC handle its case load? In the first eight years of its existence, the Court opened four official investigations (Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan). In the April 2010, the Court opened an investigation in Kenya and this past February, the ICC added Libya to its growing list of cases. Ivory Coast seems likely to be investigated as well.

Continue reading →

Posted in Egypt, International Criminal Court (ICC), Middle East, Syria, Transitional Justice, Tunisia | 6 Comments

Libya, Peace and Justice: Murky Options

Posted on April 20, 2011 by Mark Kersten

(Photo: BBC)

One of the few realities of violent political conflicts across contexts is that fully “good” options are in rare supply.

In a recent post, I attempted to articulate some of the tensions surrounding the pursuit of justice in Libya, on the one hand, and the pursuit of a political settlement to the current crisis, on the other. The point was not to articulate some solution to the problems of pursuing accountability and peace simultaneously but to suggest the relationship between peace and justice is far more murky than typically presumed. Nevertheless, a few people have disagreed with my assessment, particularly the notion that a power-sharing agreement is a possibility in Libya.

Power-sharing is an option in Libya. Acknowledging the fact says nothing about whether it is an appropriate or good option, but merely the fact that it is an option. Clearly, the African Union (AU) agreed with this assessment when they proposed a peace plan for Libya. The rebels, notably, have not rejected the possibility of a power-sharing agreement but only rejected one between them and Colonel Gaddafi or any of his sons.

The choices that exist for Libya are murky. This post is an attempt to bring some clarity about the options available. Importantly, keep in mind that they are not in order of suitability or preference.

Option A: A power-sharing between Gaddafi or one of Gaddafi’s sons and the rebels.

This option is very unlikely for a number of reasons. First of all, the international coalition has emphatically declared that Gaddafi cannot be part of any government and that he must face justice. The international community, would also likely have to commit to monitoring any such agreement for the forseeable future. Secondly, the rebels have already rejected a power-sharing agreement that would include any Gaddafi. Thirdly, given Gaddafi’s track record, there is little reason to trust that he would be sincere in implementing a power-sharing peace agreement rather than, for example, taking the time to re-arm. Fourthly, as Doug Saunders pointed out to me and as Christine Cheng cogently argues, a power-sharing agreement with Gaddafi risks turning Libya into another Zimbabwe:

“In Libya, any power-sharing deal will likely see Gaddafi’s supporters retain de facto control over the military and the police, while rebel leaders will be given cabinet positions with little actual influence over how the country is governed.

Zimbabwe’s experience suggests that if a leader is so desperate to cling to power that he is willing to use lethal force on opposition members, then power-sharing is unlikely to lead to true democratic reforms.

Indeed, the failure of power-sharing in Zimbabwe should not be surprising. Having led the country for 28 years, Mugabe clearly had the upper hand. Gaddafi, having ruled for nearly 42 years, wields just as much influence, if not more. Consequently, the rebels know that as soon as the international spotlight shifts away from Libya, Gaddafi will quietly re-cement control over security forces and gradually eliminate key political opponents.”

Justice Zimbabwe

There are concerns by some observers that a power-sharing agreement in Libya could result in a similar situation as in Zimbabwe (Photo: Getty Images)

Option B: Negotiate the exile/asylum of Gaddafi and family + Power-sharing between rebels and pro-Gaddafi forces

It has come to light that various actors, including the US and the AU, have been looking for states to accept Gaddafi and offer him exile or asylum. It remains unclear, however, whether Gaddafi would, in fact, accept such a deal. He has said on many occasions that he will stay in Libya until the day he dies.

Importantly, as noted above, the rebels did not reject the idea of a power-sharing agreement. When they rejected the peace plan negotiated by the AU, their response was:

“The African Union initiative does not include the departure of Gaddafi and his sons from the Libyan political scene; therefore it is outdated”

This appears to leave open the possibility of accepting a power-sharing agreement with individuals loyal to Gaddafi. However, it remains unclear what the strength of pro-Gaddafi factions are in Libya. One commentator suggests that “There is really only one side in this conflict, as far as the general population of Libya – and that is the Libyan people.”

Of course, this option is problematic in that it constitutes a violation of the principles of international criminal justice. If the International Criminal Court issues arrest warrants for Gaddafi and/or his sons, there will be expectations and widespread demands that he is detained and delivered to the Hague.

The fighting in Libya has been described as "see-sawing" (Photo: rssbroadcast.com)

Option C: Declare Gaddafi a legitimate military target.

In other words, Gaddafi could be targeted by military forces and killed. Morally and legally this seems a questionable approach. There is also an understandable resistance by actors in the international community to be seen to enforce regime change militarily.

Option D: Put “boots on the ground” and take over Libya

The EU is awaiting UN approval to send in a contingent of troops to Misrata. France, Italy and Britain are set to send small contingents to Libya to advise the rebels. While they would not have a combat role, there is something to say about slippery slopes.

Continue reading →

Posted in African Union (AU), European Union (EU), Human Rights, International Criminal Court (ICC), Libya, Peace Negotiations, Transitional Justice | 2 Comments

The Tides of Justice: Egypt set to join the ICC

Posted on April 19, 2011 by Mark Kersten

Egypt has declared its intentions to join the ICC (Photo: Peter MacDiarmid/Getty Images)

Oh, how things change!

Today Egypt declared its intentions to join the ICC. Its position towards Sudanese President Omar al-Bashir remains conflicted and problematic. Nevertheless, Egypt’s turn towards international justice is a significant and positive development for proponents of international criminal justice.

Just a few weeks ago, claims that the Middle East and Arab world would be swept up by the cause of international criminal justice would have been laughed off. Then again, for better or worse, international politics has always kept us on our toes. Prediction has always been a risky game.

The invocation and support for international criminal justice marks a dramatic shift for Middle Eastern and Arab states. It has been a rare occasion that the rhetoric of international criminal justice has been employed by these states towards themselves. Yet, the surge of regional democratic movements and the so-called ‘Arab Spring’ has been complimented by a demand, and now supply, of justice and accountability. Indeed, international criminal justice seems to be sweeping through the region.

Egypt’s zest for the rule of law in recent days has been dramatic to say the least: ousted President Hosni Mubarak’s former political party was ordered to be dismantled by a court; a former prime minister and a number of ministers are facing trial on charges of corruption; if his health does not deteriorate, it is a distinct possibility that Mubarak himself will be brought to trial.

Egypt justice

(Photo: Yannis Behrakis/Reuters)

Not to be overshadowed by domestic efforts to achieve justice, today Egypt declared its intention to join the ICC. As part of Egypt’s desire to become a “legally constituted state,” Foreign Minister Nabil El-Arabi declared the following:

“Egypt is currently taking the required steps to join all United Nations agreements on human rights and to join the International Criminal Court…I think the events that have taken place in Egypt in recent days and the arrest of senior officials is evidence that the state wishes to follow the rule of law… domestically and internationally.”

To date, Arab and Middle Eastern states have been conspicuously absent from developments in international criminal justice. While numerous states in the region engaged positively in the negotiations to establish the ICC, with the lone exception of Jordan, none became member-states of the Court. The Arab League has been amongst the sharpest critics of efforts bring President Bashir to trial.

The question of Bashir’s arrest warrant will continue to pose a political quandary for Egypt. Despite Egypt’s desire to join the Court, another Egyptian diplomat clarified that it would not affect Egypt’s support of Bashir and that the Sudanese President could visit at any time without fear of detainment.

Two years ago, advocates of international criminal justice bemoaned Egypt for accepting a visit by Sudanese President Omar al-Bashir, who is wanted by the ICC to face charges of war crimes, crimes against humanity and genocide in Darfur. At some point, Egypt will have to clarify how it expects to have its cake and eat it too.

Today’s announcement that Egypt will join the ICC reflects an incredible turn of events and turn of attitudes. Many Egyptians will no doubt be celebrating their country’s new-found commitment to human rights and justice. Those who support the international criminal justice project too can celebrate. Having Arab and Middle Eastern states engage as member-states of the ICC can only enrich our debates and strengthen the cause.

Posted in Arab League, Darfur, Egypt, Human Rights, International Criminal Court (ICC), Middle East, Sudan, Transitional Justice | 6 Comments

Working at the ICC Linked to Hair Loss?

Posted on April 18, 2011 by Mark Kersten

law wigKind of. Here’s the latest. According to Opinio Juris’ Twitter Account, next up the International Criminal Court will declare ‘Casual Fridays’. Nothing like practicing international criminal justice in a pair of slacks.

Just a bit of light justice humour for another long Monday. From the Associated Press:

Hair-raising ruling at international court: lawyers, lose your wigs

THE HAGUE, Netherlands — Hair today, gone tomorrow.

A judge has asked lawyers to shed their wigs next time they appear before her at the International Criminal Court.

A handful of attorneys appeared Monday in traditional black gowns and white horsehair wigs for a preliminary hearing in a case dealing with violence after Kenya’s disputed 2007 presidential election.

Justice Ekaterina Trendafilova paused briefly at the end of the hearing to pass a hair-raising judgment.

“This is not the dress code of this institution,” she said.

“In this quite warm weather maybe it will be more convenient to be without wigs,” she added with a smile.

Posted in Humour, International Criminal Court (ICC) | 3 Comments

Libya, Peace and Justice: ‘Gaddafi has to go’ but Peace must be Negotiated

Posted on April 18, 2011 by Mark Kersten
Justice Libya

What will happen when the bombing ends? (Photo: Emilio Morenatti/AP)

Missing from the coverage of the war in Libya has been any discussion as to what the end goal is. Yes, there has been a lot of talk, although little consensus, about what should happen with Gaddafi. But what about Libya itself? When the coalition partners involved in the mission in Libya ask themselves “where do you see Libya in five years” what is their answer?

What is the international community trying to achieve, and more importantly what is possible to achieve? Is the aim to have the current rebels controlling the country? Perhaps a leader, handpicked by the coalition powers, will be chosen to oversee a transition to democracy?

Lost in the midst of the chaotic and equally ambiguous mission in Libya are questions regarding what happens when the bombing ends. The conventional wisdom of conflict resolution suggests that only a negotiated settlement between the rebels and the pro-Gaddafi factions can guarantee peace. That may clash with another goal of the mission: justice.

It is an accepted truism amongst scholars and practitioners of conflict resolution that unless there is a clear victor in an armed conflict, a negotiated peace agreement is necessary.

Libya war

Photo: Tyler Hicks, NYT

Conflicts that end in negotiated agreements, rather than military victory by one party, tend to include provisions for power-sharing between the conflicting parties. The hope is that power-sharing can reassure previously conflicting parties about key issues concerning the control of and access to economic resources, political power and security. It is argued that power-sharing is particularly necessary where the social fabric of a society has particularly sharp ethnic, religious, regional, or other, tensions.

In a recent paper, Power-Sharing and Transitional Justice: A Clash of Paradigms, Stef Vandeginste and Chandra Lekha Sriram (2011) argue that the paradigms of post-conflict power-sharing and accountability clash. Where conflicts have included mass atrocities, a typical response has been to grant amnesty laws or offer exile to perpetrators as an incentive to continue the process of negotiating peace.

A problem arises when attempting to provide a place for justice in power-sharing agreements. The problem is exacerbated because, as Michael Scharf notes, it is unrealistic to believe that a party would cease hostilities if “they would find themselves or their close associates facing life imprisonment.” For some, like Jack Snyder and Leslie Vinjamuri, this reflects the rather uncomfortable reality that, for some, the perpetrators of atrocities may sometimes be “indispensable allies” in the pursuit of peace.

rebel media

The rebels media center (Photo: John Moore Getty Images)

Let’s apply the theory to Libya. The past few weeks have shown that Gaddafi retains a remarkable, perhaps surprising, level of support within Libya. The result, as characterized by The Economist, has been constant “see-sawing” in the fighting between pro-Gaddafi forces and the rebels. The divisions within the social fabric of Libya are clearly profound and, according to some, the outbreak of war along tribal lines remains a distinct possibility. While it’s difficult to ascertain where it derives and how strong it is, it does appear that Gaddafi retains significant levels of loyal support.

All of this would may suggest that a negotiated settlement, with power-sharing provisions, between the rebels and pro-Gaddafi forces is the only way to end the peace. Interestingly, this was recognized in an attempt to broker a truce by the African Union. Gaddafi accepted their plan, which included a “dialogue between the government and rebels on a political settlement”. The rebels subsequently rejected it on the basis that “[t]he African Union initiative does not include the departure of Gaddafi and his sons from the Libyan political scene.”

If it is increasingly evident that, at the current pace, there will be no decisive victor in Libya. Yet the ambivalence about what should be done with Gaddafi has been replaced by a vehement consensus that “it is impossible to imagine a future for Libya with Qaddafi in power.” In their now infamous letter, President Obama, President Sarkozy and Prime Minister Cameron declared:

“The International Criminal Court is rightly investigating the crimes committed against civilians and the grievous violations of international law. It is unthinkable that someone who has tried to massacre his own people can play a part in their future government. The brave citizens of those towns that have held out against forces that have been mercilessly targeting them would face a fearful vengeance if the world accepted such an arrangement. It would be an unconscionable betrayal.”

Meanwhile, there are reports that the US and others are seeking states to offer Gaddafi asylum. Uganda recently declared that it would welcome Gaddafi.

Tripoli Gaddafi

Gaddafi retains significant levels of support and the capacity to fight a long war (Photo: Ben Curtis/AP)

A number of observers have argued that the ICC’s investigation of Gaddafi may make the chances of peace less likely. It is an argument based on a lot of assumptions of what conflict resolution entails and what incentives exist in negotiating peace. It is also an unbalanced argument which fails to consider counter-narratives. Doug Saunders, for example, recently argued that justice “stands in the way of” Gaddafi’s departure:

“By applying the pressure of justice to a savage leader, the ICC may have perpetuated, rather than ended, his crimes: Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.”

Max Boot similarly argued that because of the ICC:

“Qaddafi has every incentive to fight to the death and take a lot of people down with him.”

Putting aside the problem of laying blame at the feet of the ICC rather than the UN Security Council, the argument, on some level, is compelling: why would individuals like Gaddafi negotiate an agreement which delivered them to the Hague? They wouldn’t, the argument goes, and instead will have every incentive to continue committing atrocities.

Continue reading →

Posted in African Union (AU), Amnesty, France, Human Rights, International Criminal Court (ICC), Libya, Libya and the ICC, Lord's Resistance Army (LRA), Peace Negotiations, Transitional Justice, Truth Commission, Uganda, UN Security Council, United Kingdom, United States | 2 Comments

More Justice in Argentina: Dirty War Dictator Gets Life Sentence

Posted on April 15, 2011 by Mark Kersten
Argentina Dirty War

Nunca más: "Never Again" (Photo: Nadim Ab)

Last month, Argentina continued its remarkable zeal for justice and accountability by putting two of its most brutal leaders on trial. Former Argentine dictators Jorge Videla and Reynaldo Bignone, along with six others, were brought to trial for crimes committed during the so-called ‘Dirty War’.

Yesterday, Bignone and other Dirty War figures were convicted and sentenced. Bignone was sentenced to life in prison.

If there is a “grandfather” of transitional justice, it wouldn’t be a person; it would be Argentina. If most post-conflict contexts are characterized by not having any or having too few transitional justice mechanisms, Argentina can be characterized as pretty much having all of them, including numerous trials, and truth commission (CONADEP) and amnesty laws.

What is particularly remarkable about the trial of Videla, Bignone, and others is that it continues Argentina’s mission to have all crimes adjudicated. It would be easy to have taken the first chance to throw the inconvenient figures of Argentina’s history into jail and simply leave them there. However, such an approach denies other victims and survivors the ability to see justice.

As I noted in an earlier post, Iraq serves as a good example. In 2006, Saddam Hussein was convicted and sentenced to death for crimes against humanity against 148 Shias in Dujail in 1982. Certainly the crimes committed under Hussein’s regime over twenty-five years were more widespread than the deaths of these 148 Shias. The result was that a more ‘complete’ justice for Hussein’s victims was denied. Some of the sharpest critics of Hussein’s trial have gone so far as to suggest this was a political decision by the US which did not want Hussein to present embarrassing and damning evidence of Iraq’s relationship with the US.

Argentina Transitional Justice

Bignone (glancing at camera) was sentenced to life (Photo: http://www.elpais.com)

In the case of Argentina, the country has clearly taken the view that the continuous pursuit of justice and truth is a priority. Bignone, for example, had already been sentenced to 25 years (at his age of 83, the equivalent of a life sentence) for his role in the abduction, torture and murder of 56 people.

Continue reading →

Posted in Amnesty, Argentina, Human Rights, Iraq, Transitional Justice, Truth and Reconciliation Commissions | 2 Comments

Ivory Coast and the ICC: This Justice for You, That Justice for Me?

Posted on April 14, 2011 by Mark Kersten

Laurent Gbagbo and Alassane Ouattara during happier times (Photo: http://www.umuseke.com)

Ivorian President Alassane Ouattara was quoted today speaking about the need for all individuals responsible for human rights violations to be brought to justice:

Mr Ouattara…said that all those responsible for committing atrocities in Ivory Coast’s civil war, including his own troops, must face justice.

“I will speak shortly with the ICC’s chief prosecutor so the court can begin investigations,” Mr Ouattara said during his first major press conference since being able to exercise executive power.

“These massacres are unacceptable… I am revolted,” he said.

So far so good, right? President Ouattara’s words are a welcome commitment to investigating crimes committed on all sides. This is critical given widespread reports that forces on both sides of the conflict have allegedly committed atrocities. Any justice will be hollow unless all parties responsible for crimes are investigated.

Nevertheless, there should be a healthy dose of skepticism. Ouattara’s declaration that he will speak to ICC Prosecutor Luis Moreno-Ocampo “so the court can begin investigations” suggests that Ouattara will shortly officially refer Ivory Coast to the Court. However, it may not be in the best interests of either Ivorians nor justice for the situation in Ivory Coast to be referred by Ouattara to the ICC. That justice is both done and seen to be done in an impartial manner may best be guaranteed if the ICC’s prosecutor opens an investigation proprio motu.

Ivory Coast ICC

Reconciliation in Ivory Coast requires that all alleged perpetrators are brought to justice (Photo: GLENNA GORDON/AFP/Getty Images)

History has shown that it is not always in beneficial to have a government implicated in a conflict refer a situation to the Court.

In the case of northern Uganda, the first situation referred to the ICC, the Court has been plagued by claims that its pursuit of justice has been biased because it has only sought arrest warrants for members of the Lord’s Resistance Army and not of Ugandan government forces. Some have suggested that the Court, desperate to open an official investigation but wary of doing so proprio motu, pressured the Government of Uganda to refer the situation in northern Uganda to the ICC, which it did in 2003. In a case of horrible optics, the ICC Prosecutor held a press conference covering the Court’s investigation alongside Uganda President Yoweri Museveni. As Tim Allen wrote:

“…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.”

Equally problematic is the apparent suggestion that while Gbagbo will face criminal prosecution, Ouattara’s forces may only be subject to a Truth and Reconciliation Commission. Ouattara has been adamant about bringing Gbagbo to justice. But as for his forces, he has only said that:

Both sides will be brought to account by a planned Truth and Reconciliation Commission based in Ivory Coast.

Ouattara’s pledge to create a Truth and Reconciliation Commission is welcome (if underwhelming) and if it is given the capacity and power to fulfil a mandate of effectively investigating events and establishing truths regarding the conflict in Ivory Coast, such a Commission could contribute significantly to both peace and justice.

However, if transitional justice is to be pursued credibly and legitimately and thus contribute to the process of reconciliation in Ivory Coast, individuals on all sides must be accessible to both criminal procedures as well as the work of the prospective truth commission. Justice has no favourites and Ouattara’s forces cannot be subject to a different form of justice than Gbagbo’s. That, indeed, would not be justice but injustice.

Posted in Human Rights, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Lord's Resistance Army (LRA), Truth and Reconciliation Commissions, Uganda | 5 Comments

A Case for ICC Intervention in Ivory Coast

Posted on April 12, 2011 by Mark Kersten
Gbagbo ICC Ivory Coast

It seems clear that former Ivory Coast President Laurent Gbagbo will be brought to trial but there are allegations that forces loyal to new President Ouattara may also have committed atrocities (Photo: Foreign Policy)

The worst appears to be over. The detention of Laurent Gbagbo yesterday by French forces, (or was it Alassane Ouattara troops?), appears to have closed an ugly, brutal and costly chapter of Ivorian history.

Over the past few days there has been a buzz in the air about the possibility of the International Criminal Court investigating possible crimes against humanity in the Ivory Coast. The ICC’s Prosecutor, Luis Moreno-Ocampo, has expressed a desire to open an investigation and there’s a sense that it isn’t a matter of whether he will initiate an investigation, but when he will.

In line with the remarkable spread of the use of accountability and transitional justice language, President Ouattara’s camp has expressed its desire to create a Truth and Reconciliation Commission and to put Gbagbo on trial. Ivory Coasts’ representative to the UN declared that Gbagbo will be brought to justice:

The question is whether the international community, and the ICC in particular, should sit back and see whether Ouattara’s government can and will investigate and prosecute those responsible for atrocities or whether it should intervene now.

Skeptics of the ICC’s involvement will argue that the Court has no place in intervening in Ivory Coast, at least not until it is obvious that the new government refuses to bring individuals responsible for crimes to account. They will sensibly argue that Ivory Coast should have the “first shot” at establishing the rule of law and respect for democracy. Criminal prosecutions, after all, are most fruitful and effective when conducted locally.

I largely agree with this view and agree that Ivory Coast should have primacy over an investigation and trial. However, the ICC’s involvement would not undermine the capacity for Ouattara to initiate credible and legitimate trials. On the contrary, it might provide an impetus to do so.

Ivory Coast ICC

While Gbagbo has been detained, Ivory Coast still faces many challenges ahead (Photo: Sia Kambou/AFP/Getty Images)

The situation in Ivory Coast remains incredibly sensitive. It is far from a foregone conclusion that the country will not return to violence. While the hope of weathering the storm and returning to calm has increased, the country is still in turbulent waters. As one observer accurately described it: “whether this country will be able to bounce back from the depths of violence, propaganda and hate that he dragged it into is anything but certain.” A state whose streets have been littered with the bodies of victims does not transform to peace, security and stability overnight.

The delicacy of the current situation is further complicated by the sharp divisions that run through the country and which may provide fodder for future violent conflict. Indeed, the French denials that their special forces were responsible for detaining Gbagbo and their adamant assurances that it was Ivorian forces which nabbed him, are intended to prevent any provocation of the deep chasm that divides Gbagbo’s and Ouattara’s supporters.

Further complicating the situation is that troops on both sides of the conflict have allegedly committed atrocities. Ivory Coast is not a black-and-white story of bad guys committing atrocities (Gbagbo forces) against good guys fighting for democracy (Ouatttara forces). It is clear that Gbagbo’s troops committed crimes that must be investigated and as one Human Rights Watch (HRW) official argued,“Gbagbo has been credibly implicated in crimes against humanity and other atrocities for which he should be held to account.” However, evidence suggests that Ouattara’s forces may also be responsible for human rights abuses.

A recent report by HRW suggested that Ouattara’s forces killed hundreds of civilians, raped more than twenty alleged Gbagbo supporters, and burned at least 10 villages in Côte d’Ivoire’s far western region. The UN has expressed fears that Gbagbo supporters could be the target of retributive violence. Further, as Phil Clark writes in his lucid account of Ouattara’s and Gbagbo’s history, despite having the support and backing of most of the international community, Ouattara’s history gives reason to “question his democratic credentials and his ability to ensure stable governance.”

Continue reading →

Posted in International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Transitional Justice, Truth and Reconciliation Commissions | 4 Comments