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

Posted on March 10, 2011 by Mark Kersten
Justice Kenya

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

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

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

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

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

Kenya Justice

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

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

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

Engaging John Bolton on Libya and the ICC

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

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

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

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

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

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

Libya civil war

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

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

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

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

Would Gaddafi Accept a Deferral-for-Peace Deal?

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

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

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

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

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

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

Rebels in Libya

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

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

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

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

Could Justice be Deferred for Peace in Libya?

Posted on March 7, 2011 by Mark Kersten
UN Libya

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

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

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

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

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

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

Gaddafi ICC

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

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

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

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

ICC Opens Investigation into Libya – Political Implications and Promise

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

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

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

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

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

Gadaffi Libya

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

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

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

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

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Some additional resources:

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

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

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

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

Statement by the Coalition of the International Criminal Court:

Click to access Libya_Investigation_CICC_MA_FINAL_03032011.pdf

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

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

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

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

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

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

A little history:

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

Videla justice

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

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

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

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

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

Hussein trial

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

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

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

China, the ICC and Libya: A New Level of Hypocrisy?

Posted on March 2, 2011 by Mark Kersten
China protest

Chinese authorities have cracked down on protests inspired by the 'Jasmine Revolution' (Photo: Reuters)

Perhaps the most surprising element of UN Security Council Resolution 1970 (2011), which referred the situation in Libya to the ICC, was that it was supported unanimously. There is chatter on the blogosphere wondering where the African Union, which in recent months had vociferously derided the ICC for its arrest warrant against Sudanese President Omar al-Bashir, stands. But what about China? After all is it not somewhat shocking that China, ever protective of its domestic status quo, voted in support of the Council’s Resolution?

Let’s take a look at the relationship between the ICC and China.

During the Court’s lifetime, China’s relationship with the ICC has shifted between prickly and productive. China, of course, is not a member state and it was one of only four states to vote against the Rome Statute in 1998. China has had significant disagreements with the Court over various issues, including the definitions of crimes under its mandate, the role of the UN Security Council, the powers of the Court’s Prosecutor, as well as its jurisdiction. Many of its dissenting views have been reconciled with the notable exception of its fear that the Court could become a political tool. In this context, China has been a vehement supporter of deferring the arrest warrant of Sudanese President Omar al-Bashir and has actively stifled attempts by the Security Council to pressure Khartoum over crimes committed in Darfur.  It is worth noting that in the case of UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, China abstained, allowing the vote to pass, but without any overt expression of support for it.

Despite these contentious issues, not everything about Chinese-ICC relations has been doom-and-gloom. China participated actively in the negotiations leading up to the adoption of the ICC’s Rome Statute and has been an engaged partner in the ICC’s Assembly of States Parties since 2002. Not only has it been engaged with the Court, but it has, on occasion, voiced impressive political support for the Court. While this may come as a surprise to many, China has even suggested that its accession to member-state status is a realistic possibility. It wouldn’t be absurd to argue that, in fact, China’s relationship with the ICC has historically been much more engaged and positive than that of the US. In 2002, when the Rome Statute came into force and the Bush administration, eager to prove its opposition to the Court, ‘unsigned’ the Rome Statute, China declared that:

“If the operation of the court could bring to justice all those individuals who have perpetrated most serious international crimes, this would not only help build confidence in international justice, but will also ultimately contribute to the maintenance of international peace and security. This is the outcome we fervently hope for.”

Gaddafi Justice

China voted in favour of the Resolution to refer the situation in Libya to the ICC (Photo: Zimbio.com)

Interestingly, China thus reaffirms the view that the Court plays a role in the constellation of institutions that contribute to international peace and security.

A year later, China again voiced its political support for the Court as well as its desire to actively work to ensure its success, at the Sixth Committee of the General Assembly:

“What we hope to see is that before long, an independent and just international judicial body that truly commands respect will emerge to play an important and positive role on the international stage. China is ready to work tirelessly with other countries towards this end.”

This brings us to the Council’s referral of the situation in Libya to the ICC. Fearing that it would set a precedent, China was the only country which initially rejected the ICC referral entirely. While it shifted its position after the Libyan envoy to the UN wrote a letter to the Council, only after consulting with Beijing did the Chinese delegation finally decide to vote in support of the referral.

Resolution 1970 notes that:

“China was very much concerned about the situation in Libya.  The greatest urgency was to cease the violence, to end the bloodshed and civilian casualties, and to resolve the crisis through peaceful means, such as dialogue.  The safety and interest of the foreign nationals in Libya must be assured.  Taking into account the special circumstances in Libya, the Chinese delegation had voted in favour of the resolution.”

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Posted in China, Human Rights, International Criminal Court (ICC), Libya, Sudan, UN Security Council | 1 Comment

Picture This: The ICC Trial of a “Delusional” Gaddafi

Posted on March 1, 2011 by Mark Kersten

Gaddafi. (Photo: izismile.com)Today we get the news that an American diplomat has called Libyan President Muammar Gaddafi “delusional”. That makes enough sense. Gaddafi has denied that virtually anything bad is in Libya, playing a game of “if I can’t see it, it doesn’t exist.”

Earlier this week, the UN Security Council referred the situation in Libya to the International Criminal Court. In the next few days, the Court’s chief Prosecutor, Luis Moreno-Ocampo will decide whether or not to open a full investigation into events in Libya since February 15 2011.

So here’s the question: what would a trial of a delusional soul like Gaddafi look like?

Human rights trials, or war crimes trials as they are also referred to, have had their share of claims bordering on the absurd. In the last years of the trial against Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia [ICTY], the former Serbian leader was overcome by paranoia. In one letter to Sergei Lavrov, the Russian Foreign Minister, Milosevic wrote:

“[The ICTY] would like to poison me. I’m seriously concerned and worried…I am writing you and asking you for help in the protecting for the criminal activities being perpetrated in the institution operating under the sign of the United Nations.”

Liberian warlord Charles Taylor, who is on trial at the Special Court for Sierra Leone for some of the most horrendous crimes committed against civilians, has stated that he is a man of humanity and not a murderer or terrorist:

“It is quite incredible that such descriptions of me would come about. Very, very, very unfortunate that the prosecution — because of this information, misinformation, lies, rumors — would associate me with such titles or descriptions…I am a father of 14 children, grandchildren, with love for humanity.”

In a similar vein, Gaddafi responded to a BBC reporter’s question about protests against the regime in Libya that:

“No-one is against us. Against us for what? Because I’m not a president. They love me. All my people are with me, they love me all. They will die to protect me, my people.”

I think that it is fair to say that if – and it remains a big if – Gaddafi is ever brought to the ICC to stand trial, he will be the single most delusional character brought in front of an international tribunal in modern history since Rudolf Hess, the Nazi official who stood trial at the Nuremberg Trials despite being mentally unstable.

So what would a trial of Gaddafi look like?

I decided to have a little fun, so please remember that this is not, in any way, intended to trivialize recent events in Libya.

Based on his recent interviews with the BBC and other Western media, an interrogation could look like this:

Prosecutor: As the leader of Libya…

Gaddafi: [interrupts] I am not the leader of Libya! Is the Queen the leader of England? Also, the Queen of England has been in power much longer than I have…

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Posted in Human Rights, Humour, ICTY, International Criminal Court (ICC), Libya, UN Security Council | 4 Comments

Did the UN Security Council Just Outsource Peace in Libya to the ICC?

Posted on February 28, 2011 by Mark Kersten
Gaddafi UN Security Council

Libyan President Gaddafi may very well come under investigation of the ICC (Photo: Globe and Mail)

Is it possible that the UN Security Council referral of the situation in Libya to ICC was an act of outsourcing responsibility for peace?

In the peace-justice debate, some critics of the ICC go so far as to argue that the Court is responsible for peace. These claims unnecessarily muddle a prescient debate. There are no doubt important claims that need examining, including whether the inclusion of judicial processes has helped or hindered peace processes to end conflicts. Yet, these critics misunderstand the role justice can play in conflict situations. It may be, however, that many critics are simply reacting to the rhetoric of the Court’s staunchest proponents who declare that “there is no peace without justice.”

Proponents of the ICC often presume that the Court is God’s gift to peace. Expectations often get out of hand. There are limits to what law can – and indeed should – do. As Rachel Kerr and Eirin Mobekk argue, trials “need to be carefully assessed in light of what the tribunals can do, rather than what some have argued they should do.” Expecting that the ICC or any tribunal can be responsible for both peace and justice may simply be unrealistic. It is obvious that the proponents of the ICC are very excited about the prospects of investigating crimes in Libya. They have a right to be so. I agree with Kevin Jon Heller at Opinio Juris who writes: “the referral seems a wholly appropriate response to the unconscionable violence perpetrated by Gaddafi and his henchmen against Libya’s civilian population.” But expectations about what the ICC can do need to be tempered. It is important to remember that the ICC has not yet decided that it will open an official investigation into events in Libya (see a post by Heller on this subject here)

Whatever the debate, the ICC isn’t the UN Security Council. It isn’t responsible for peace and security.

ICC Libya

ICC Prosecutor Luis Moreno-Ocampo has spoken of a difference between the interests of peace and the interests of justice (Photo: Elespectador)

While many side with the view that no international institution is, or possibly can be, beyond the pale of politics, the ICC clearly views its judicial work as apolitical. In a 2007 policy paper, Luis Moreno-Ocampo, the Court’s Chief Prosecutor wrote that “there is a difference between the concepts of the interests of justice and the interests of peace and…[the] matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions.”

This is not to defend the Court but rather to understand its place in the constellation of institutions involved in conflicts. In this context, it remains problematic to apportion blame or praise for the success or failure of peace in Darfur – or anywhere – on the ICC. Doing so presumes that the Court is a fundamentally political institution responsible for peace. In the case of Darfur, despite declaring that it would “remain seized of the matter,” it appears that the UN Security Council, in referring Darfur to the ICC, placed the burden of responsibility for peace on the Court.

Could this happen again with Libya?

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Posted in Balkans, International Criminal Court (ICC), Libya, Sudan, UN Security Council | 5 Comments

Libya Referred to the ICC – Initial Thoughts

Posted on February 27, 2011 by Mark Kersten
Gaddafi ICC

Could Gaddafi find himself in a Hague Courtroom? (Photo: Guardian)

The situation in Libya has been referred to the ICC by the UN Security Council. Much talk was made of international justice in Arab states in recent weeks. No doubt many are celebrating the impressive commitment the UN Security Council has made. Along with the referral, the Council agreed to impose an arms embargo, asset freeze and travel ban on Gaddafi, his family members and close aides.

In response to suggestions that the situation in Libya could be brought to the Court, Luis-Moreno Ocampo, the ICC’s Prosecutor, last week declared that “[t]he decision to do justice in Libya should be taken by the Libyan people” and that either Libya would need to become a state party to the Rome Statute or the situation would have to be referred from the UN Security Council in order for the ICC to investigate. Yesterday, the Security Council did just that. Libya becomes the sixth situation under full investigation by the ICC – Uganda, Sudan, the Democratic Republic of Congo, the Central African Republic and Kenya are the others.

Some interesting initial issues/challenges to note about this development:

The referral was unanimous despite a significant number of non-ICC state parties on the Security Council, including India, China and Russia. For supporters of the ICC and international criminal justice, this is quite an impressive feat. The ICC has been going through some rather difficult times in recent months. Both on a political level and in the current cases being heard, many have expressed concerns. Just last month the Economist published a piece with the title: “The ICC and Africa: Dim Prospects“. However you break it down, the referral of the Libyan crisis to the ICC is powerful evidence that there is still a belief amongst the international community that the ICC remains an important international institution. More importantly, the momentum and level of international support for justice in Libya makes the arrest and future trial of Gaddafi a distinct possibility. The extent to which that would be a victory for international justice and its proponents cannot be understated. Nevertheless, as William Schabas warns, it is not merely a victory for the ICC, but a test to “inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis.”

During Security Council negotiations, there was significant disagreement about whether or not to refer the situation to the ICC at all. The primary source of ambivalence by some states, including India, Brazil, Gabon and Portugal, revolved around whether peace and justice should be sequenced. India argued for a “calibrated approach”. A compromise was reached through a preambular reference in the Security Councils referral to Article 16 of the Rome Statute. Article 16 allows the Security Council to defer ICC investigations for a year. It can do so repeatedly on a yearly basis. Claims for an Article 16 deferral have been voiced consistently in the case of the arrest warrant against Sudanese President Omar al-Bashir. Somewhat ironically, as the Sudan Tribune points out, Gaddafi was among the most staunch critics of the ICC indictment of Bashir and one of the strongest proponents of the arrest warrants’ deferral.

UN Libya ICC

The UN Security Council has referred the situation in Libya to the ICC (Photo: un.org)

As with the 2005 UN Security Council referral of the situation in Darfur to the ICC, this Council’s resolution includes a provision which explicitly removes citizens of non-state parties from the jurisdiction of the Court. Operative paragraph 6 of the Resolution reads that the Council:

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Posted in Article 16, International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, UN Security Council, United States | 14 Comments