The ICC and Ivory Coast: Proprio Motu is the Way to Go

Posted on April 11, 2011 by Mark Kersten
UN Ivory Coast

The ICC is likely to open an investigation into alleged crimes in Ivory Coast (Photo: Telegraph)

The ICC wants in. The Court’s Prosecutor has expressed a desire to investigate potential crimes committed in the Ivory Coast. If the ICC is to judicially intervene in the Ivory Coast it will need to both actually stay above the political fray as well as appear to stay above the fray. Its chances of doing so are better if the Prosecutor initiates an investigation proprio motu – by his own volition.

Last week, ICC Prosecutor Luis Moreno-Ocampo indicated that his office would like to investigate alleged crimes in Ivory Coast. Ocampo declared that:

“We are discussing with some (ICC) state parties, particularly within the region, if they wish to refer the case. That would help to expedite the activities of the court…What we are doing now is collecting information in order to open an investigation there. We are concerned about the recent information of massive atrocities in the west of Ivory Coast and we are trying to define exactly what happened there.”

In short, Ocampo may open an investigation proprio motu but would prefer to do so with a referral by the UN Security Council or member-state from West Africa.

The decision of Ocampo to seek a referral rather than open an investigation proprio motu has stumped some observers. Kevin Heller, over at Opinio Juris, opined that the Prosecutor’s angle on investigating alleged crimes in Ivory Coast “is just dumb”, given that the Prosecutor must identify reasonable grounds to open an investigation regardless of whether he seeks a referral or opens an investigation proprio motu. Heller concludes that:

“States fought long and hard to ensure that the Prosecutor has proprio motu powers.  Moreno-Ocampo finally got over his ridiculous love of self-referrals with the Kenyan situation; if he wants to investigate in Cote D’Ivoire, he should — to quote the famous Greek philosopher Nike — just do it.”

I agree that opening an investigation into potential crimes in Ivory Coast proprio motu is the correct course of action. The nature of the violence in Ivory Coast suggests that all parties to the conflict there may be implicated in atrocities and human rights violations. Initiating an investigation proprio motu would allow the Court to appear unbiased as it accumulates evidence and investigates crimes.

I have no doubt that the Office of the Prosecutor of the ICC will investigate all sides of the conflict and conduct its investigation impartially. However, one of the more important lessons drawn in recent years has been that justice must not only be done, but must be seen to be done. It may be just as important that an investigation is seen to be impartial as whether or not it is, in fact, impartial.

Given alleged abuses by Ouattara's forces, one observer wondered whether he was a "hero or a villain" (Photo: CNN)

It has become painfully evident that atrocities have likely been committed by both sides in recent days. Despite being granted the legitimacy of the international community following the election victory of Alassane Ouattara over Laurent Gbagbo, the Ouattara camp has recklessly squandered the world’s good will by allegedly committing abuses against Gbagbo supporters. On April 9th, Human Rights Watch declared condemned the actions of Ouattara’s troops:

“Forces loyal to President-elect Alassane Ouattara killed hundreds of civilians, raped more than 20 alleged supporters of his rival, Laurent Gbagbo, and burned at least 10 villages in Côte d’Ivoire’s far western region.”

Column Lynch of Foreign Policy recently wondered whether Ouattara was a hero or a villain, noting that:

Ouattara’s standing as Ivory Coast’s new leader is already being tarnished amid reports that forces loyal to his cause have engaged in gross human rights abuses during an offensive aimed at driving Gbagbo from power.

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Posted in International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Transitional Justice, Uganda | Leave a comment

The US and the ICC: Towards A Closer Relationship?

Posted on April 10, 2011 by Mark Kersten

A number of recent events and statements have brought the relationship between the United States and the ICC back into focus. Most notably, the US was amongst the permanent members of the UN Security Council which agreed to refer Libya to the ICC. This was particularly important because the US voted in favour of Resolution 1970 whereas in the Security Council’s only other referral of a situation to the Court, the referral of Darfur to the ICC in 2005, the US abstained.

Last week, US Ambassador-at-large for War Crimes Issues, Stephen Rapp, reaffirmed American support for the Court stating that the US is cooperating with the ICC and believes that all of its “cases are appropriate and cry out for justice – and in the absence of genuine proceedings at the national level –they require effective international justice.”

I haven’t had an opportunity to read her book, but in Fighting for Darfur, Rebecca Hamilton apparently reveals that the Obama administration was largely responsible for preventing the deferral of the ICC’s case against Sudanese President Omar al-Bashir.

All of this suggests a relationship that has come a long way from the politically acrimonious position of the US towards the ICC that characterized the early years of the Bush administration. The US-ICC relationship has been historically tumultuous but appears to be comfortably sailing through calmer – and more cooperative – waters. I thought it would be a good time to take a look back at the relationship between the Court and the US to see just how far the relationship has come.

The relationship between the Court and the US has moved from active hostility to begrudging acceptance to concerted efforts at positive engagement. While the often uncomfortable and at times hostile approach of the United States appeared to hinder prospects for ICC’s success in the early years of the Court’s existence, there is significant evidence that the ICC has weathered the challenge. The current attitude in Washington is promising. Nevertheless, it is important to temper expectations about relations between the ICC and the US. It remains unlikely that the US will join the Court in the near future, there remain significant political barriers to overcome before the US joins the ICC, and the possibility of realpolitik guiding the decision-making of the US in situations where the Court is involved remains ever-present.

Explanations of American hostility towards the ICC have been numerous and divergent. In his venomous article, Courting Danger: What’s Wrong with the International Criminal Court, John Bolton argued that the ICC is contradictory to the constitutional ideals of the US, is an overreaching and unaccountable institution, which America should “isolate it through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.” Kingsley Moghalu suggests that ‘main street USA’ people are “reflexively opposed to subject U.S. citizens to such a sensitive act of international governance as international criminal justice under any circumstances.” This is echoed by Paul Kahn who maintains that the issue of American opposition to the court is one that is deeper than it simply being against the state’s national interest. Opposition “has little to do with the substantive threat it represents to particular American goals and little to do with a fear of political misuse”. Rather, it’s about the fundamental nature of what it is to be American and the faith of “the rule of law as rule by the popular sovereign.” The explanation of American exceptionalism has been widespread. G. John Ikenberry argued that in the post-Cold War context, the unipolar world, with America as its hegemon, leads to the U.S. to demand special status in, and exemptions from, multilateral institutions and arrangements. The United States “argues that it cannot sign the International Criminal Court treaty because its global security presence makes Americans unusually vulnerable to politically inspired prosecutions.” For his part, William Schabas answers the question of why the ‘US hates the ICC so much’ by asserting: “It’s all about the Security Council.” For Schabas, American ambivalence to the ICC has stemmed from frustrations that it is not subordinate to the UNSC.

Bolton ICC

John Bolton has been perhaps the Court’s most vociferous critic calling on it to be isolated (Photo: AP)

While some explanations are more convincing than others, reservations led President Bill Clinton, who signed the Rome Statute at the conclusion of his tenure, to proclaim that he did not “recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”

During the early years of George W. Bush administration, the US undertook efforts to undermine and isolate the ICC. In June 2002, the Bush administration took the unprecedented step of ‘unsigning’ the Rome Statute, declaring that “the United States has no legal obligations arising from its signature” of the Statute. That same year the administration adopted the American Service-Members Protection Act, also ominously known as the ‘Hague Invasion Act’, which included provisions to: prevent any American citizens or ‘allied persons’ from being prosecuted by the ICC; prohibit the provision of military aid to states party to the Court with some exceptions including  key allies and when providing aid is deemed “important to the national interest of the United States”; and that, should any members of the American armed forces be detained by the ICC, the US president is authorized to use “all means necessary and appropriate” to ensure their release. Further, the US negotiated, often through coercive means, Bilateral Immunity Agreements with some 100 other states, whereby states agreed to ensure that no American citizen would be prosecuted by the ICC while on their territory. Despite these efforts to impair the ICC’s capacity to be an effective, independent and strong institution, the relationship between the US and the ICC has not always been unproductive.

The US abstained from the UN Security Council Resolution 1593 referring the situation in Darfur to the ICC (Photo: Telegraph)

In 2005, the UN Security Council referred the situation in Darfur to the ICC with Resolution 1593. While the Bush administration had preferred and lobbied for the creation of an ad hoc tribunal to investigate crimes in Darfur, the US eventually abstained from the vote on the Resolution, allowing it to pass. The resolution accommodated American exceptionalism by including the assurance that no American officials or personnel could be investigated or prosecuted. Only citizens of nations party to the ICC can be sought by the Court, allowing America to remain beyond prosecution. Furthermore, America agreed to abstain from the Security Council vote. The resolution granted the ICC no funding for its investigation nor promised any future political support, leading Robert Cryer to criticize it as a selective and incomplete reaction to Darfur. However, American abstention was clearly “a move away from the scathing anti-ICC rhetoric that has characterized the contributions of some members of the US government to the debate.” It was a sign that, at least in some circumstances, the US would not stand in the way of the ICC’s ability to function. Anne Patterson, the American deputy ambassador to the UN explained that the U.S. “decided not to oppose the resolution because of the need of the international community to work together in order to end the climate of impunity in Sudan,” remarkably similar to words spoken by the ICC’s proponents. The firm objections and concerns of the US have been further softened with the ascension of the Obama administration to power.

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Posted in Human Rights, International Criminal Court (ICC), Sudan, Truth and Reconciliation Commissions, UN Security Council, United States | 57 Comments

Breaking News: International Criminal Court Announces New ‘3 Strikes’ Genocide Policy

Posted on April 1, 2011 by Mark Kersten

From a remarkably credible source:

THE HAGUE—In an effort to crack down on the systematic killing of entire races and ethnic groups, International Criminal Court officials introduced a new “three strikes” policy Monday that mandates harsher punishments for offenders receiving their third genocide conviction. “You get three chances, and that’s it,” said ICC president Sang-Hyun Song, a judge with a reputation for being tough on genocide. “It doesn’t matter if you’re slaughtering rival clans en masse, gassing your own people, or gunning down all males over the age of 15 in front of their families and neighbors. If it’s your third time, we’re throwing the book at you.” According to the ICC, three-time perpetrators of genocide will face stiff fines and have to issue formal public apologies, pending appeals.

Happy April Fools’ Day folks!

Posted in Genocide, Humour, International Criminal Court (ICC) | Leave a comment

Ugandan Holiday? Thoughts on the Offer of Asylum to Gaddafi

Posted on March 31, 2011 by Mark Kersten
Qhaddafi

Would Gaddafi "peace out" and head to Uganda? (Photo: undergroundrepublik.com)

Uganda has become the first country to offer asylum, if asked to do so, to Libya’s Gaddafi. This comes at a time when ambiguity proliferates as to what fate the international community sees as necessary for Gaddafi.

A few thoughts on the subject:

1. Words matter and the offer of asylum was not an offer of exile. Exile occurs when an individual is either forcibly or voluntarily removed from his/her native country. Asylum, on the other hand, has a long legal history, and requires a state to protect and provide immunity from extradition to an individual who fears being persecuted in their native country. Much of the talk thus far has been on exile. Uganda, as well as other potential asylum destinations for Gaddafi (Chad, Mali, Niger, Eritrea, Sudan, Venezuela, Cuba and Nicaragua), however, have taken their commitment a step farther. Whether it’s far enough is another question (see below).

2. Uganda is a member-state of the ICC and its offer of asylum puts it in an awkward position given that the situation in Libya is being investigated by the Court, and Gaddafi himself is being investigated for potential crimes against humanity and war crimes. However – and this is a big however – if Gaddafi were to accept the Ugandan offer, Uganda would currently be under no obligation to detain Gaddafi.

The investigation in Libya by the ICC is currently in a holding pattern until the Court decides whether arrest warrants should be issued. My understanding is that prior to an arrest warrant being issued, no member-state of the ICC has the obligation to arrest Gaddafi.

3. In the case of Gaddafi, the offer of asylum is an implicit recognition that he has committed crimes (see comments for clarification). Yes, asylum would grant Gaddafi immunity, but immunity is only granted to those who “require” it. In other words, if Gaddafi were to be granted asylum it would be an acknowledgment that he has committed crimes. Unfortunately, this type of acknowledgment would be vastly insufficient for those who have suffered because of him.

Gaddafi rebels

Will Gaddafi accept an offer of asylum in Uganda or elsewhere? (Photo: The Guardian)

4. It remains unlikely that Gaddafi will, in fact, leave Libya. I think that is obvious by now, although given his unpredictability, it may be wiser to refrain from guessing what Gaddafi will do next. The uncertainty about what the international community believes should be Gaddafi’s fate certainly hasn’t helped. On the contrary, the ambiguity they are exhibiting may provide incentives for him to stay in power. A conference in London with dozens of foreign ministers this past week did not rule out the possibility of allowing Gaddafi’s exile. Paul Koring observed that:

The tough talk of relentless pressure aimed to oust the unpredictable and brutal despot who has ruled Libya for 41 years didn’t entirely drown out hints of possible exile and the possibility of avoiding a war crimes trial.

Ambiguity is rife. The Guardian described the myriad of disagreements as such:

the conference hall exposed fault lines in the international community over the next vital stages: whether to arm and recognise the rebels, and whether Gaddafi might leave voluntarily if he was given a chance to take exile rather than stand trial either in Libya or at the international criminal court.

There is a very delicate and, some would say, precarious diplomatic balancing of peace and justice being conducted right now. It is obvious that numerous states, particularly Western states, would like to see Gaddafi brought to the ICC. Gaddafi, however, retains large pockets of support in numerous African states and they, amongst others, have expressed reservations over bringing Gaddafi to the Hague. The emerging compromise appears to be exile.

The problem, of course, is that the longer the international community remains ambiguous about what it sees as the appropriate fate for Gaddafi, the greater incentive he has to continue fighting. While most reports focus on the rebels, Gaddafi clearly has strong backing from many Libyans as well as the money to fund soldiers and perhaps even mercenaries. Orthodox conflict resolution theory suggests that when conflicts cannot be exhausted by the complete victory of one side over another, a negotiated settlement with power-sharing provisions should be sought. Paradoxically, then, the more Gaddafi illustrates his might, the more support he will gain for either a negotiated settlement in which he retains power or a negotiated settlement in which a close of ally (perhaps his son Saif?) shares power and he gets a cozy villa to retire in.

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Posted in African Union (AU), Amnesty, Article 16, Exile, Libya, Sierra Leone, Special Court for Sierra Leone, Uganda, UN Security Council | 6 Comments

The ICC and R2P – Bridging the Gap

Posted on March 28, 2011 by Mark Kersten
rebels in Benghazi

R2P and the ICC have both been invoked in Libya (Photo: Reuters)

Update: I have written an article on this subject which can be downloaded here. See here for an abstract. Comments and feedback are very much welcome!

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I have wondered for some time now about the relationship between the ICC and the Responsibility to Protect (R2P). The reason is pretty simple  – prior to concentrating on the ICC during my masters studies, my academic focus and interests was on R2P. I felt that there was an affinity between the two concepts as well as important threads or narratives that linked them. No work that I know of has systematically examined the practical, political and ethical relationship between R2P and the ICC. This post represents an effort to try to wrestle with and illuminate the potential links between the two in practice, politics and ethics.

As many readers will know, the R2P doctrine asserts that the international community has the responsibility to intervene in a sovereign state if that state is unwilling or unable to prevent or stop genocide, war crimes, ethnic cleansing and crimes against humanity. As a concept, it was developed by the International Commission on Intervention and State Sovereignty (ICISS) in the wake of controversy over the humanitarian intervention in Kosovo and the question of whether a “right to intervene” existed. In 2005 with some modifications (tethering it to the UN Security Council, for example), R2P passed unanimously as a resolution at the UN’s General Assembly.

In 1998 the international community agreed to set up the ICC which subsequently came into being in 2002. The Court’s mission is to end impunity by holding individuals who are “most responsible” for war crimes, crimes against humanity, and genocide accountable. It currently has six states under official investigation and a handful of cases are being heard at its headquarters in the Hague, Netherlands.

The precise relationship between the ICC and R2P has rarely been made explicit or clear. In a recent discussion about the two concepts, Benjamin Schiff says that getting to the bottom of the relationship is “irritating”. Nevertheless, there seems to be an increasing recognition that these two concepts – typically considered separately – are, in fact, intimately linked.

Before looking at Schiff’s arguments of the practical relationship between the two concepts as well as mine on the political and ethical underpinnings of both R2P and the ICC, let’s consider some broader possible links.

First, typically those groups and individuals who support ICC, support R2P and vice versa (see the Enough! Project, for example). Likewise, those who are suspicious of the ICC will almost surely be suspicious about R2P (we all know what John Bolton thinks!) Sure, context will determine when either is supported or not, but this suggests that there’s some subtext that bridges the ideas behind R2P and ICC.

benghazi rebels

Rebel fighters in Benghazi. Where the language of R2P has been invoked the langauge of international criminal law has never been far behind (Photo: Reuters)

Second, while many consider R2P a doctrine of humanitarian military intervention, in actuality, it is much broader than that. It is a doctrine based on a continuum of responses along which legal action or the threat of legal action to stop or prevent atrocities has a place.

Third, when the rhetoric of R2P is invoked, the language of international criminal justice is rarely far behind. Libya is a case in point. The language of responsibility for protecting Libyan civilians paralleled the language of bringing Gaddafi to account for alleged crimes against humanity. Even when the language of R2P was not explicitly employed as in Resolution 1970 which referred the situation in Libya to the ICC, the basic tenets of R2P were at play. One observer remarked:

“R2P is not mentioned in the resolution [1970]: nonetheless, its flavour impregnates the decision. In referring the situation to the ICC, and thus sending a clear signal to unscrupulous leaders that their crimes will not go unpunished, the UN Security Council brings the responsibility to protect to the forefront of the battle to maintain international peace and security in the world.”

All of this suggests a proximity of the concepts and institutions of R2P and the ICC. But it doesn’t illustrate the nature or foundation of the proximity.

Schiff argues that there are numerous similarities between R2P and the ICC. Both are products of the 1990s but have genealogies which stretch back further into history. Each address similar governmental failures, namely the failure (or unwillingness) of governments to prevent atrocities. Both thus speak to the responsibilities that governments have to their citizens and imply that when governments fail or are unwilling to uphold those responsibilities, external interventions are warranted. Interestingly, with the exception of ethnic cleansing and aggression, R2P and the ICC also cover the same crimes – crimes against humanity, war crimes, and genocide. Both R2P and the ICC thus recognize the same acts as the most egregious crimes to commit against people and as justifications for intervention.

There are also important differences between the ICC and R2P. While the ICC is an institution, R2P lacks any institutional structure. Rather, R2P is a concept, perhaps even an emergent norm, that is embedded within the UN. In its current form it is subject to the political machinations of the UN Security Council. At the level of perception, R2P is clearly political whereas the ICC presumes itself to be apolitical, although the notion that the ICC can exist in a political vacuum has been increasingly challenged.

Denmark NATO

A Danish F-16 returning from a mission into Libya as part of the no-fly zone campaign (Photo: AP)

Schiff concludes by suggesting a potential practical relationship between R2P and the ICC. He argues that R2P can probably and sensibly use the Court, presumably as a part of the R2P continuum of interventionary options. However, the ICC, if it continues to view itself as apolitical, cannot invoke R2P. In practice then, Schiff argues that the relationship between R2P and the ICC is asymmetrical. Theoretically, R2P and the ICC, I would argue, are the progeny of the same liberal political and ethical projects.

Politically, the ICC and R2P are both elements of the liberal peace project. The liberal peace, in the most general sense, attempts to promote and construct peace in states emerging from violent political conflict and/or authoritarianism by adhering to a particular formula: democratization, liberal economic reforms, rule of law, and respect for human rights. At the heart of the liberal peace – which is promoted by global civil society, international institutions like the UN, as well as key Western states – is the notion that the formula can and should be applied universally; if all states were liberal, democratic polities, then the incidence of war could be dramatically reduced or even eliminated.

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Posted in Human Rights, International Criminal Court (ICC), Liberal Peace, Libya, Responsibiltiy to Protect (R2P) | 5 Comments

Contradictions in Kenya: Kenyan PM Backs the ICC Trial of the Ocampo Six

Posted on March 27, 2011 by Mark Kersten
Odinga

Kenyan PM Raila Odinga (middle) with President Kibaki (left) and Kofi Annan (right). Odinga has voiced his support for the trial of the Ocampo Six at the ICC (AFP: Simon Maina)

It appears that Kenyan efforts to defer the ICC prosecutions of the “Ocampo Six” are destined to fail. But it may not only be because of international pressure or lack of consensus in the UN Security Council. Rather, the final nail in the coffin may have come from the Kenyan government itself.

The Kenyan government has been working hard to ensure that investigations into six senior officials (the so-called “Ocampo Six”), including the current Prime Minister and Finance Minister, the Minister of Higher Education as well as key political allies of the current government are deferred. Kenyan officials have gone on a diplomatic road-show to dozens of states in an attempt to convince other members of the international community to pressure the UN Security Council to invoke Article 16 of the ICC’s Rome Statute. Article 16 allows the Council to defer an ICC investigation or prosecution by 12 months, renewable yearly. Earlier this month, the Kenyan government officially requested the Security Council to defer the cases and they have gained the support of numerous African states in their efforts.

Kenya has argued that ICC prosecutions are no longer necessary because the government will now establish a credible and legitimate judicial institution to look into crimes committed after the 2007 elections. The President of Kenya, Mwai Kibaki, has argued 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.”

Nevertheless, a few of the so-called Ocampo Six have said they would appear before the ICC. Earlier, I suggested that, their willingness to appear before the Court seriously undermined the government’s attempt to have the ICC’s investigations deferred. Why would Kenya need to defer the investigation if the alleged perpetrators were themselves willing to sit trial at the ICC?

Now, however, Kenya’s Prime Minister Raila Odinga, a key figure in President Kibaki’s Orange Democratic Movement, may be the chief undermining source. A chasm has been created within the Kenyan government regarding the issue of accountability and the ICC investigations which can only weaken the government’s claim that the cases must be deferred. In an exclusive interview with Radio Netherlands Worldwide, Odinga, declared his support for the ICC:

“The trial should take place in The Hague, that’s what I think. The trial should proceed there, until Kenya has put in place a competent local mechanism, which I don’t think will be achievable.”

kenya war

The post-election violence in Kenya resulted in 1,200 deaths and hundreds of thousands civilians fleeing from their homes (Photo: Simon Maina/Agence France-Presse)

Odigna further rejected claims by those like President Kibaki that proposals for a tribunal to be set up by the government to investigate post-election crimes would be legitimate.

“Putting up a bill is a long process; it doesn’t mean that we want to quit the ICC track at all!…Parliament rejected a local tribunal twice! That’s why the matter went to the Hague. What they are talking about right now is not a truly independent local tribunal, but a kangaroo court which they can manipulate to get these people acquitted. That is not acceptable.”

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Posted in African Union (AU), Article 16, International Criminal Court (ICC), Kenya | Leave a comment

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