Tag: international criminal court

Defying Gravity: Seeking Political Balance in ICC Prosecutions

Reuters

Reuters

The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.
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Kenya: Can Technology Safeguard Elections?

Kenya VotePolls in Kenya closed 16 hours ago, but votes continue to be counted.  Those familiar with Kenya and with the electoral crisis of 2007-2008 will know to distrust provisional results.  In December 2007, challenger Raila Odinga seemed substantially ahead during much of the early voting, only to see that lead evaporate as returns came in from more remote districts. Despite this qualification, it does look increasingly likely that Uhuru Kenyatta will gain the presidency in the first round of voting.*  In the past two weeks, there was some speculation that Kenyatta might struggle to meet new requirements for national distribution of the vote, but he’s already achieved the 25% votes bar in 32 counties. Kenyatta is currently under indictment by the International Criminal Court for his involvement in the 2008 post-election violence; if elected, he would be the first democratically elected leader to go on trial at The Hague.

I want to make one quick note before turning off the Twitter feed and going to bed.  The Kenyan Independent Electoral and Boundaries Commission (IEBC) gambled big with technology this election.  The newly created IEBC instituted biometric voter registration, electronic voter rolls, and electronic transmission of polling station results via cellular network.  It is likely that the slow pace of processing BVID accounted for some of the enormous lines during the first half of the day.  After numerous problems, the IEBC eventually instructed polling agents to abandon the electronic voter roll in favor of the manual roll.  Nor has the count proceeded without hitches. There were nail-biting moments earlier tonight, when a server failure and insufficient hard disk space caused the electronic transmission of results to IEBC to halt for several hours.

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“Truth to Power”: Louise Arbour on Human Rights and International Justice

CBC – CP file photo

The Canadian International Council recently organized an interesting public event with Louise Arbour on her role in speaking “truth to power.” The talk is available on line at Open Canada.org. (starts around 22min mark, after the introductions) and is constructed as a dialogue with Stephen Toope, President of the University of British Columbia and notable international law scholar.

Madam Arbour is known for being outspoken on the ICC’s prosecutorial strategy, shortcomings in the human rights regime, and advocacy on the Responsibility to Protect and especially the case of Sri Lanka. Arbour’s authoritative voice on these issues stems from her professional credentials and experience: former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, former justice of the Supreme Court of Canada, former United Nations High Commissioner for Human Rights, and presently the President of International Crisis Group.

It’s worth a listen. But for those interested in just the human rights and international justice stuff here are my selective highlights on the issues mentioned above.
(Note: these are not exact quotes as i’m a sloppy transcriber).

Human Rights
There is a need for adequate institutions, specifically an international human rights court. As long as the protection of human rights is in the hands of the duty bearers – the states – not surprisingly we’re not going to get very far.

Peace vs. Justice
The timing (of the Milosevic trial) was dictated exclusively by prosecutorial considerations. Some were concerned that a peace deal would put him out of reach…What it did to the peace process was not part of my brief.

The indictment of Gaddafi was very precipitous…it’s not an unfair assumption that it might have contributed to closing some doors to a negotiated settlement….The same actors in the Security Council that referred the Libya case to the ICC have not moved on Syria…The tensions between peace and justice are very present and will remain so until and unless we segregate the justice agenda from the political one.

Joseph Kony…probably accurate that the fact that he was indicted, at the end of the day, made it impossible for him to participate in peace talks…Political negotiators cannot deliver on that. The ICC process is a parallel track. It is not negotiable in peace talks.

What we need to do is what we do in domestic systems – we make it very clear that politicians don’t run indictments.

ICC and Africa
It would have been imminently predictable that the docket of the ICC would be heavily African. Apart from the cases of Security Council referral, all the other cases have come from countries that have ratified the Rome Treaty….That is the fundamental premise…The ICC was not engaged when there was, in my opinion and with lots of evidence, massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified the Rome Treaty.

The ICC might have been better advised, rather than try to downplay (the African bias) to really embrace it and engage with African governments – open offices, be there, be very present. As opposed to staying in The Hague and be very defensive that it’s only engaged in African issues.

Cooperation of authorities in the DRC with the International Criminal Court has been problematic from the beginning. It’s very unfortunate that the ICC only has jurisdiction in the Congo since the Court was created in 2002 when in fact the most catastrophic loss of life in the Congo took place in the decade before, from 1993-2003. When I was High Commissioner (for Human Rights) I launched what we called the “mapping exercise” to try to document that decade where between 3-5 million people were killed in the east of the Congo and there’s no legal regime to deal with it. The ICC has no jurisdiction so the idea was to hand this over to the Congolese authorities to try to encourage them to launch some kind of mechanism.

Accountability there (DRC), even with the ICC in place, it’s not almost ten years since the ICC has been in place and what? There are five, six people charged?….The ICC has a long way to go before it can be reflective of its mission in that environment

War on Terror and Sri Lanka
One of the most tangible and perverse effects of the War on Terror is the treatment of the war in Sri Lanka. The last few months, in 2009, of the thirty year old war whereby the government of Sri Lanka finally eradicated the LTTE was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was under the agenda of the War on Terror. The LTTE had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. And a lot of casualties in the last few months of the war are attributable to the LTTE itself – it’s not just government forces. But the way this was achieved would not have been tolerable if it had not been under the umbrella of one of the few so-called success stories of the War on Terror.


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Impunity Slayer! ICC Convicts Lubanga of War Crimes

Thomas Lubanga Dyilo listens to the verdict in his trial on March 14, 2012.
(c) Photo courtesy of the ICC-CPI / Evert-Jan Daniel /ANP.

The verdict is in for the ICC’s first trial. Thomas Lubanga Dyilo has been judged guilty of the war crimes of conscripting, enlisting and using child soldiers in the Democratic Republic of Congo (DRC). An order of reparations and sentencing will be decided at a later date. Lubanga could possibly face life imprisonment.

The judgement was unanimous and there were several interesting elements in the summary statement, delivered by Judge Adrian Fulford.
1) The prosecution team was slammed for its “lack of proper oversight” in using intermediaries, which the judges determined influenced and manipulated vulnerable witnesses. The testimony of several prosecution witnesses was therefore discarded or not taken into consideration.
2) The judges re-characterized the conflict in Ituri as a non-international armed conflict, which invokes different provisions of the Rome Statute but the criminal conduct remains the same.
3) There was evidence of sexual violence and rape against girls conscripted into the UPC but the judges could not rule on this because Lubanga was not charged for such crimes.
4) Lubanga, as a co-perpetrator, had both intent and knowledge of the UPC’s common plan to conscript, enlist, and use child soldiers under the age of 15 in the Ituri conflict between 2002-2003.

Background: The ICC and the DRC Situation
It’s been seven years since Lubanga was arrested and more than three years since the start of his trial. As a State Party to the Rome Statute, the DRC government self-referred its conflict situation to the ICC in 2004. The prosecutorial team’s subsequent investigation focused in on the Ituri region of eastern Congo where civilians suffered from massacres and sexual violence perpetrated by rival militias and warlords competing for power, ethnic loyalties, and pillaging and enriching themselves.  In line with the prosecutorial strategy of selecting cases that meet the criteria of “sufficient gravity” and identifying those “most responsible” for such crimes, Lubanga’s leadership position in the UPC (Union of Congolese Patriots) militia drew the attention of the Court. He was unexpectedly detained by the DRC in March 2005, transferred to The Hague a year later, and his trial started in January 2009. The ICC has charged three other warlords in the DRC situation. Germain Katanga and Mathieu Ngudjolo Chui are presently and jointly on trial for charges of war crimes and crimes against humanity. Bosco Ntaganda, accused of war crimes for child soldiers, remains at large.

Targeting Lubanga
The Lubanga case, given it was the first trial, exposed the ICC to a new barrage of skepticism and frustration among international observers and Congolese. There was some legal bungling that caused delays and threatened a trial dismissal and release of Lubanga. Legal scholars have expressed concern that this did not result in a more divided decision among the judges. But the more significant criticism focused on the justifications for the prosecutorial strategy and charges. Many, including the Chief Prosecutor, readily acknowledge that Lubanga is likely responsible for a broader array of crimes that go well beyond using child soldiers, specifically crimes against humanity including massacres, killing of peacekeepers, and sexual violence in Ituri. Ocampo contends, however, that at the time of Lubanga’s arrest the OTP only had enough evidence to proceed with these limited war crimes charges. A related concern is whether he is most responsible for the crimes he was charged with. One of the key arguments for the defense was that Lubanga was not in a position of command responsibility for the military affairs of the UPC, and thus cannot be held accountable for the use of child soldiers.

And what of other perpetrators in the DRC? There are bigger fish. Jason Stearns, author of Dancing in the Glory of Monsters, argues that Lubanga was a “convenient first case” because, while a key actor in the Ituri region, he was expendable to the Congolese and Ugandan militaries engaged in the region. The ICC has been criticized for strategically avoiding any serious investigation or charges for crimes committed under the authority of the DRC, Ugandan, or Rwandan governments for fear of the political fallout or losing their cooperation in ongoing cases. The OTP has made statements that it will not prosecute crimes on all sides simply for the sake of appearing balanced and the uses the gravity criteria to justify its selections – a justification that doesn’t hold up in the broader scope of crimes in the central African region.

Two other cases underscore that the political interests of the DRC government have been unintentionally safeguarded by the ICC. First, as Stearns also mentions, Jean Pierre Bemba was a significant source of opposition in the DRC and with broad public support – that is – until his arrest and transfer to the ICC for his crimes in the Central African Republic. While a justifiable target, Bemba’s arrest has affirmed perceptions among some Congolese that the Court is biased. Second, Ntaganda is still “at large” because he’s protected by the government and therefore “untouchable.” Indicted while still a bad guy warlord (aka “The Terminator”), his potential arrest has become a political problem now that he’s been co-opted by President Kabila into the military (as a commander) under the pre-text of ensuring stability. This article by Mac McClelland for Mother Jones details Ntaganda’s crimes, that go well beyond the use of child soldiers, and why he can enjoy impunity and dinner parties in Goma instead of a prison cell in The Hague. Lubanga’s trial evidence will play a role in any future trial of Ntaganda as he is a co-perpetrator of the same crimes, and was identified as such in the summary statement of the verdict.

Marc Bleasdale/VII (c) 2009

Deterrence Effects?
One possible positive outcome of Lubanga’s trial is the education and deterrence effects on using child soldiers, especially by warlords and non-state armed groups. Human Rights Watch reported, in Selling Justice Short, that the notoriety of Lubanga’s trial has made such individuals aware that using child soldiers is a war crime punishable the ICC. But beyond this, the case has also brought more attention to the instrumental victimization of child soldiers and potentially affected a shift from the use of child soldiers as common place to taboo among non-state armed groups, especially in the DRC. A programme advisor for REDRESS said in January 2011 that there’s “no doubt in eastern DRC about the fact that child soldiering is a crime. Previously people thought that children were doing military service that was somehow legitimized by the state of conflict.”

But broader deterrence effects in the DRC or to prevent atrocities more generally will not result from this case alone nor does it address, in any way, the underlying causes of violence in Ituri. A few lessons can be highlighted from the Lubanga trial if the ICC is to have such an impact. First, the Court needs to counter perceptions that it is unjustly selective in its prosecutions by ensuring that crimes on all sides of a conflict are duly investigated and persons “most responsible” indicted if warranted. Arguably, it has done a better job of this in the Kenya situation. It can also counter these perceptions by increasing its outreach activities – explaining not only the limits on the Court’s capacity and jurisdiction but also its selection of cases. Second, the ICC is not empowered with the capacity to really affect more “positive complementarity,” specifically local capacity building of the rule of law. But international justice advocacy, media attention and donor support can be more focused on ensuring that a broader range of perpetrators are addressed by fair mechanisms of accountability at the national and local level.

Despite the deterrence skepticism, this is a major milestone for the International Criminal Court and a significance contribution to fight against impunity for atrocities.

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KONY 2012: Bandwagon Empowerment

Invisible Children‘s “Kony 2012” campaign provides many of us professors with a unique opportunity to address and learn how students respond to such campaigns and engage with human rights issues. College is an opportunity for students to feel empowered by activism and knowledge that we partly provide, shape and encourage. We do have a responsibility to course correct this empowerment when the knowledge is incomplete or skewed and the call to action may be ineffective or counter-productive.

Invisible Children, founded and directed by youth inspired to help war-weary Northern Uganda, has made their advocacy bread and butter with young college students who donate to and participate in their campaign. “Kony 2012” encourage its supporters to buy an “action kit” of bracelets and posters to pressure primarily the U.S. government to further support efforts to arrest Joseph Kony, war criminal and leader of the Lord’s Resistance Army, with the assumption that he is the main impediment to peace in Northern Uganda. Putting aside IC’s flawed presentation of the conflict and its solutions, and the self-involved campaign film that profiles their own success at the expense of presenting the voices of Ugandans themselves, there is a fundamentally disturbing bandwagoning effect of empowerment taking hold. Among the stinging comments on this development is from the Wronging Rights bloggers, Kate Cronin-Furman and Amanda Taub, writing for The Atlantic:

“Invisible Children has turned the myopic worldview of the adolescent — ‘if I don’t know about it, then it doesn’t exist, but if I care about it, then it is the most important thing int he world’ –into a foreign policy prescription.”

If one were to course correct the bandwagoning empowerment, the following critiques of “Kony 2012” are most instructive.

First, advocacy can be ineffective or counter-productive. In this vein, many reference Rebecca Hamilton’s research in Fighting for Darfur as evidence of how celebrity and youth activism does not necessarily translate into solutions for complex political and humanitarian crises. Moreover, the assumption of “Kony 2012” is that if only the world knew it would not stand for such atrocities and impunity. Well, those that can affect change do know. The Ugandan government, in loose coordination with other central African governments, are militarily seeking to end the LRA, the U.S. has sent Special Forces assistance, and the ICC has issued arrest warrants for top LRA leaders. The policy change that IC advocates is no more precise than that these actors should worker hard at what they’re already doing.

Second, the campaign is rightly criticized for encouraging the “white savior” complex  – arrogantly empowering outsiders at the expense of acknowledging that those affected by violence have agency in peacemaking. Despite their good intentions, IC’s film is about them, not Uganda. Thankfully some media recognize the wave of criticism from Ugandan voices that see “Kony 2012” as poorly reflecting their lived reality and expectations for justice.

Finally, does the prescribed solution of taking out Kony achieve the outcome – wait – what is the expected outcome? Technically, Northern Uganda is relatively stable as the LRA and Kony have not been active there for six years. Is the outcome “justice” or “reconciliation” for Kony’s victims? The extent of the LRA’s perpetration of atrocities runs much deeper in Acholi communities than Kony himself and some even suggest that his further stigmatization or removal will hinder reconciliation. Notable Uganda scholar, Adam Branch, also argues that the “serious problems (Ugandans) face today have little to do with Kony.”

Back to the classroom. I addressed the issue in both of my classes, one of which is The Politics of International Justice so the students in this class already have a good understanding of the justice and peace issues in Northern Uganda. Most expressed the view that awareness raising is fundamentally good and well intentioned, but that they also had a uneasiness with the film’s presentation of the conflict and were skeptical of the advocacy approach and public response. Several students said that it was frustrating for them to see friends distributing it by social media, “liking” and “sharing,” when they doubted that their friends watched the whole film or truly understand the issue. Another said that he found the bandwagon effect to be as irritating as the self-righteousness of those who opposed it. Another said that she hoped it would at least encourage students to learn more about the conflict on their own, using “Kony 2012” as a starting point.

All of this points to the cynical conclusion that “Kony 2012” accomplishes little more than raising awareness, albeit of a narrow view, of the issue and gives a false sense of empowerment to those participating in the activism of social media, emailing politicians and celebrities, and buying action kits can change can affect the future of Northern Uganda. But as posters and bracelets begin to dot campuses it’s worth encouraging, not disempowering, student’s knowledge and activism with some humility.

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The ICC and Kenya: In the Thick of Deterrence

Antony Njuguna / Nairobi

The big news out of the ICC today was the confirmation of charges against four of the “Ocampo Six” Kenyan elites accused of orchestrating and inciting the country’s post-election violence in 2007-2008. Ruto, Arap Sang, Muthaura and Kenyatta had their charges confirmed and are expected to appeal; charges against Kosgey and Ali were dismissed by the Court’s judges because of a lack of evidence.

The decision comes four years after the violence and almost two years after the investigation was opened by the Chief Prosecutor. In that sense it is an underwhelming “milestone” but it is nevertheless an important reminder of the potential significance of ICC justice for Kenyan politics and stability.

The Court is mindful of its impact on stability. In its summary statement today it expressed that

“The chamber is mindful of concerns regarding the precarious security situation in parts of the country. It is also attentive of its responsibility to maintain stability in Kenya, and to fulfill its duty vis-a-vis the protection of victims and witnesses….It is our utmost desire that the decisions issued by this Chamber today, bring peace to the people of the Republic of Kenya and prevent any sort of hostility.”

Stability concerns are related to the upcoming presidential election. Two of those now set to stand trial – Kenyatta and Ruto – have both expressed their intention to run in the election but it’s now unclear if that will be possible. But their rival ethnic and political factions are more likely to use domestic and international attempts to mete out justice as political engineering.

The International Crisis Group recently released an important briefing on these issues with several recommendation to the Court and Kenyan government:

“These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.”

With respect to views on the ground, two recent polls show relatively divided, but declining, support for the ICC among Kenyans and notably increasing concerns about the impact of trials on security.

The link between human rights prosecutions and specific and/or general deterrence has been hashed out by various notable academics (see Vinjamuri and Kim and Sikkink). But the Kenya situation will provide for an excellent test case of such deterrence claims for several reasons. First, there is strong and active local civil society support for the ICC. This increases the chance that future potential human rights violations will be monitored and evidence can be collected and thus make prosecutions more credible. Second, the Kenya situation came to the ICC at the initiation of the Prosecutor after years of stalling by the Kenyan government – this underscores the Court’s “court of last resort” moniker and that justice is possible in spite of politics. Third, those considered “most responsible” are high level political elites yet their domestic power has not prevented their trial. Of all the situations before the ICC, this will be the one to watch for deterrence effects.

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Keeping Up With The International Criminal Court: The Realization of Judicial Intervention

The International Criminal Court would “wither and die” was once the prediction of John Bolton, former US Ambassador to the UN. It seems that is not the case. There has been a dizzying amount of activity surrounding the Court lately, much of which underscores that judicial intervention is becoming a mainstay of conflict resolution and peacebuilding.

Undoubtedly, the ICC will be the hot topic at your department’s holiday party ;) Here’s your cheat sheet so you can nerd out with everyone else. If you get stuck, just wryly remark that it depends on sovereignty, or complementarity, or selectivity. That’s always gold in international justice.

LIBYA: Saif al-Islam Gaddafi (and maybe al-Senussi?) was captured and the jockeying for who gets to conduct his trial began. Ocampo suggested on his recent visit to Tripoli that the Libyan court system might be capable of conducting a fair trial and that the ICC would provide assistance, not competition. But it’s not up to Ocampo. ICC judges will determine whether the Libyan court system is up to snuff. If a Libyan court does try Saif  this is an opportunity for the ICC to affect positive complementarity and help rebuild the rule of law in Libya. But there are valid concerns that Libya courts are not ready so soon into the post-authoritarian transition and after decades in which the courts were an instrument of repression. Louise Arbour, head of the International Crisis Group and former prosecutors at the ICTY and ICTR, explains the tensions of complementarity in this case and why international justice is often a measure of last resort.

SYRIA: The UN Human Rights Council has found that crimes against humanity, including murder, torture, and disappearances, have been perpetrated by Syrian security and military forces and that the death toll is at least 4,000. UNHCR chief, Navi Pillay, is urging the Security Council to refer the situation to the ICC. But the UNHCR’s December 2nd resolution condemning the violence did not explicitly ask for such a referral. Certainly a UNSC referral is warranted and would counter criticisms that judicial interventions are politicized and selective. But China and Russia would veto it so that’s a non-starter.


MEXICO: Human rights activists have petitioned the ICC to investigate and determine whether crimes against humanity have been committed in the context of the state’s “war on drugs.” Specifically, the petition alleges that President Calderon, a top drug cartel boss, and political and security officials are responsible for the murder, torture, and kidnapping of hundreds of civilians in a war that has killed 45,000. It will take a while before the ICC prosecutors can determine if the case meets the “sufficient gravity” criteria and if the crimes were “systemic” and “systemic” to warrant charges of crimes against humanity. Mexico is a State Party to the Rome Statute but the government immediately rejected the accusations and insists that the rule of law is respected and upheld in Mexico. Calderon has called the accusations “slander” and the government issued a statement saying “it categorically rejects that security policy could be considered an international crime.”

KENYA: A Kenyan high court judge issued an arrest warrant for President Bashir of Sudan. The Kenyan chapter of the International Commission of Jurists (and NGO) filed the request. Bashir has visited several States Parties to the Rome Statute, including Kenya in August, and was not arrested – a violation of States Parties’ obligations. The recent ruling prompted the Sudanese government to expel the Kenyan Ambassador and prompted criticisms that this was a political move by the ICJ to put pressure on the Kenyan government to cooperate with the “Ocampo Six” cases before the ICC. This is partially a score for Rome Statute compliance, but the Kenyan government plans to appeal the ruling. One very interesting aspect of the ICC-Kenya situation is the prominence of civil society actors pushing for accountability, and the growing rift with political elites.

COTE D’IVOIRE: The ICC unsealed an arrest warrant for former President Laurent Gbagbo on November 29th and he was promptly transferred from his house arrest to The Hague. This is the first head of state to appear before the Court as Gaddafi met a different kind of “justice” and Bashir is still enjoying his impunity. Gbagbo is accused of being an indirect co-perpetrator of crimes against humanity, committed in the context of Cote d’Ivoire’s post-election violence from December 2010-April 2011. Rival and current President Alassane Ouattara has long welcomed the ICC’s involvement and wants Gbagbo tried internationally. But the arrest still seemed sudden and dramatic – shocking Gbagbo’s supporters who were hoping for an amnesty-for-peace type deal. Gbagbo made his first appearance before the ICC judges today (Dec 5) and judges will announce on June 18, 2012 if the case will proceed to trial.

There are two things to watch for. First, the timing of the arrest appears political as Cote d’Ivoire has parliamentary elections coming up on December 11th and Gbagbo supporters have pledged to boycott the vote. Second, the arrest is stirring up accusations of victor’s justice. The ICC indicates that investigations are ongoing, that there will be more charges, and both sides are being investigated. But locally there’s pessimism that crimes committed on behalf or at the best of Ouattara’s forces will be prosecuted.

SUDAN: An arrest warrant was requested of ICC judges by the Chief Prosecutor on December 2nd for Sudan’s Defence Minister, Abdelrahim Mohamed Hussein, for war crimes and crimes against humanity committed in Darfur. At the time of the alleged crimes (August 2033-March 2003) Hussein was Interior Minister and representative in Darfur. Hussein is closely connected to two of the ICC’s other targets – Bashir and Harun. The request for an arrest warrant comes at a time when the crimes and victims in Darfur have fallen off the world’s radar and for a situation in which the Court has made the least progress.

And in a bizarre revelation, Time magazine reports that the ICC’s evidence against Hussein is partly derived from data from the Satellite Sentinal Project – the brain child of the celeb badvocacy efforts of George Clooney and John Prendergast of the Enough Project. See this NPR article for why the satellite project, Clooney, and Prendergast, are a little ridiculous.

CHIEF PROSECUTOR: Ocampo’s term is almost up (we’ll all miss the eyebrows and swagger) and, to no one’s surprise and much acclaim, Fatou Bensouda will be chosen as the new Chief Prosecutor of the ICC. (To be confirmed at the next meeting of the Assembly of States Parties on December 12th). Currently the Deputy Prosecutor, Bensouda comes from the Gambia and worked at the ICTR. It’s hoped that her leadership will mend ties between the Court and African political elites and the African Union. There’s also the expectation that the Court and its prosecutorial strategy will be more victim-focused.

And lastly, in the best possible example of make-believe international justice, a Malaysian tribunal “reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide, as a result of their roles in the Iraq War.” The verdict obviously doesn’t have much effect beyond shame and blame, but the tribunal will communicate its findings to the ICC and give a little wink/nudge to states to exercise their universal jurisdiction muscles.

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Learn to Love Lawfare

Photo courtesy of Etsy. The perfect lawfare key chain!

Over at the Lawfare blog, Jack Goldsmith recently offered up a “mea culpa” on his changing views of the concept and practice of lawfare. I don’t want to address the specifics of that post, but this and the Libya situation got me thinking again that a non-pejorative conceptualization of lawfare needs to be put forward. Particularly in the context of the International Criminal Court. Stay tuned. But for now…

Charles Dunlap defends that his original conception of lawfare was meant to be a neutral one. But it has since been co-opted by various scholars and political actors as a pejorative accusation – meant to delegitimize those who abuse law for strategic purposes. There’s an important distinction to be made though between the understanding of lawfare as a strategic weapon of war versus a coercive alternative to war. Specifically, there is a normative gap between the pejorative conceptualization of lawfare in the realm of U.S. national security and as a “weapon of the weak” to constrain U.S. military power, and the multilateral realm of international criminal law where the lawfare of the ICC and other tribunals is viewed as a a benchmark of moral progress.

Certainly, this latter form of lawfare is both coercive and strategic, whether it’s arresting war criminals or threatening judicial intervention if human rights abuses are not curbed. Therefore, this use of lawfare is meant to prevent and end conflict, not provoke it, entrench it or restrain legitimate uses of military force. The combined use of judicial and military intervention, in the Former Yugoslavia, Sudan, Libya, and Cote d’Ivoire, etc., underscores this trend.

Among the few that have addressed this understanding of lawfare are those that participated on the international tribunals panel at a conference on lawfare at Case Western University School of Law a year ago. (I posted a brief summary of this conference here.) Discussion of the ICC was scant and the selected quotes below, from the subsequent special journal issue, demonstrate there’s little consensus on lawfare in this realm so far.

Justice Ogoola on the peace vs. justice nexus in Uganda:

“In many senses, lawfare is the opposite, indeed the very antithesis of warfare. Warfare is the ancient, primitive, and largely discredited mode of dispute resolution between nations and among peoples. Lawfare, on the other hand, has all the civilized undertones of letting the law fare well in the struggle to achieve peaceful resolution of disputes. If has the ring of due process, of the doctrine of the rule of law, and rule of reason – of the principles of fairness, equity, and justice in bringing a peaceful end to a  violent conflict.”

Robert Petit on political interference by the Cambodian government in the ECCC:

“If, however, we intend lawfare to equate to what is more traditionally viewed as political interference in the application of justice, then yes, lawfare is practiced in International Criminal Law.”

David Crane on the “take down” of elite perpetrators and Charles Taylor for the Special Court for Sierra Leone.

“The law is a powerful tool. Some say it can be used as a weapon. That power was used to bring down the most disruptive and evil warlord in Africa and his co-defendants not just by the stroke of a pen on March 3, 2003, but in the execution of two operations, Operation Justice and its follow-on Operation Rope.”
“The term – lawfare – has been viewed somewhat negatively and at best as a clever turn of a phrase. Used in the appropriate context it can be a force for good and positive change.”

David Scheffer on accusations against the legitimacy of the International Criminal Court:

“I plead guilty to being a major perpetrator of lawfare, on behalf of the U.S. Government, during the 1990s. My mission…was to use the power of the United States to build international and hybrid criminal tribunals that would subject the leaders of other nations and rebel movements engaged in warfare, including internal armed conflicts, to international criminal justice. I used the law aggressively and continuously and sometimes such actions served as at least a partial rationale for avoiding the use of American armed might or more political negotiations.”

“The commentariat believe that the ICC may be used by weak nations or by a rogue prosecutor to isolate and shame the United States. They fear that lawfare will prevent Washington from using its military power for just cause through the threat of investigation and prosecution of its often controversial policies and actions.”

There’s clearly room to interpret the ICC’s, or any international tribunals’, intervention in escalating conflict as a legitimate form of lawfare. Understandably, advocates of international justice will not want to associate such institutions with coercion, violence, and political strategy. But saving the concept as an alternative, not means, to war opens the door to a better understanding of the ICC’s potential role in conflict resolution.

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Impunity Gap: Syria



There is a near absence of calls for accountability in the international responses to the ongoing and escalating violence in Syria. Unlike in the Libya situation, where there was a swift UN Security Council Resolution mandating both the use of force and a referral to the International Criminal Court, influential states and human rights groups have yet to stand firm on either type of response for Syria. Is it simply premature or counter-productive to demand justice when violence has yet to cease? Or are the political and security implications of removing Assad greater than the risks of impunity?

There is some consensus that the scale and manner of the attacks by Syrian forces against civilian protestors constitute crimes against humanity and that President al-Assad is likely “most responsible” for such systematic violence. Estimates put the death toll between 1,600 and 2,000 so far. Comparable to other situations before the ICC, Syria would meet the “sufficient gravity” criteria that determine the selection of situations and cases by the Court’s Office of the Prosecutor and Pre-Trial Chambers. But the much less impartial political criteria that guide the referral of situations to the ICC by the Security Council are more strategic.

While the Security Council has condemned the violence and the US is calling for consensus on stronger measures, there appears to be little political will for an ICC referral. The US, UK, and France have been the strongest critics of the Syrian regime’s actions. China and Russia initially resisted endorsing UNSC interference but then supported the condemnations that were expressed in the Security Council’s first Resolution on August 3rd and are unlikely to block a future resolution. Moreover, the Arab world is now breaking ranks with Syria as many states, notably including Saudi Arabia, recalled their ambassadors and demanded Assad end the attacks.

The international diplomatic responses illustrate that most of the pressure is directed towards marginalizing Assad and his regime with sanctions, expressions of moral outrage, and encouraging an effective opposition in order to incapacitate and and delegitimize his leadership domestically. Accountability, responsibility, and justice are notably absent from the discourse and policies.

Even notable human rights groups are cautiously realistic about an ICC referral. While Amnesty International called for such action, the main thrust of its recommendations is for the UNSC to forego diplomacy and take stronger measures like an arms embargo and freezing the Syrian regime’s assets. Human Rights Watch makes similar recommendations, but stops short of calling for the ICC and instead presses for more cooperation with the OHCHR’s ongoing investigations and, short of Syrian cooperation, to establish an official Commission of Inquiry. David Bosco, blogging at The Multilateralist, questions HRW on whether it would support an ICC referral. Kenneth Roth responded: “Yes in principle, but as a practical matter it’s not realistically on the Security Council agenda yet….so we’re focusing on the accountability steps that currently are in play.”

But, in what amounts to little more than gossipy political intrigue at this stage, there are reports that an unknown Western government is “bankrolling” investigations into the crimes committed by the Syrian regime and ensuring they are credible enough to be put to use in an ICC trial. The fact-finding mission is being carried out by interviewing Syrian refugees in neighboring countries. See Mark Kersten’s post here, blogging at Justice in Conflict, on why this is a sketchy way to politicize and undermine the ICC.

The strategic imperative and lessons learned from the mess of simultaneously combining judicial and military intervention in Libya are undoubtedly undermining support for justice in the short term. Many fear the political and security implications of removing Assad via a negotiated exit or trial. He is a slick autocrat whose regime’s propaganda convinces citizens and foreigners that his rule keeps the pin in a bomb of potential sectarian violence and economic instability. For now the calls for accountability will remain isolated in diplomatic back channels and the blogosphere until politics and principle align for the Security Council.

(See also the first post in this series “Mind the Impunity Gaps” and “Impunity Gap: Sri Lanka“)

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Impunity Gap: Sri Lanka


(see first post in this series: Mind the Impunity Gaps)

There is increasing pressure for justice in Sri Lanka for crimes committed in the long civil war between the Government and secessionist Tamil Tigers (LTTE) and that ended in May 2009. While the Sri Lankan government has publicly pledged to ensure justice, there are legitimate concerns its current approach will not be genuine and sufficiently punitive, and will place the burden of guilt for war crimes and crimes against humanity on the LTTE while institutionalizing impunity for crimes committed by Government forces.

“Sri Lanka’s Killing Fields”
The airing of a documentary called “Sri Lanka’s Killing Fields” on UK’s Channel 4 sparked new interest and pressure. It has now been shown to wide acclaim at the UN in New York and Geneva and recently by human rights groups in Washington, DC. The footage is indeed shocking. It documents extrajudicial killings, torture, and sexual violence allegedly committed by Government forces against Tamil civilians. The documentary is available on YouTube.

The Sri Lankan government has reacted angrily to the footage and accompanying accusations; it also claims that portions of the film have been doctored or are misleading. A BBC Hardtalk interview with a Sri Lankan MP and adviser to the President is revealing with regard to the determination of the Government’s denial and rejection of international pressure to investigate its own crimes.

UN Probe Alleges Crimes Committed by “Both Sides”

A United Nations Panel of Experts released a report in April, 2011 stipulates there are credible allegations of war crimes and crimes against humanity committed by both sides in the final stages of the war (Sept 2009-May 2009). Crimes committed by the LTTE throughout the civil war are well known, including killings, forced displacement, use of child soldiers, etc. But crimes committed by Government forces have been less exposed.

The Panel’s notable allegations are as follows:

The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity….330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE….Most civilians in the final phases of the war were caused by Government shelling…..(p ii)

The Panel was also highly critical of the Government’s commitment to accountability thus far:

The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive presents a false dichotomy….The Government’s two-pronged notion of accountability, as explained to the Panel, focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result. The Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. (p iv)

The Government’s “Lessons Learnt and Reconciliation Commission” was described by the Panel as “deeply flawed.” (p v).

In response, the Sri Lankan Government vociferously rejects the prospect of international judicial intervention, argues the “report is based on patently biased material which is presented without verification,” and claims that reconciliation should come above all else. A commitment to reconciliation above prosecutions is a familiar refrain for governments wishing to disguise impunity for their own crimes (e.g. Indonesia, Rwanda, etc.)

The impartiality of investigations does not always translate into a balanced prosecutorial strategy. This will be a considerable challenge for international or national trials for Sri Lankan atrocities. International courts struggle to prosecute the winners of conflict, particularly because of a reluctance to create a moral equivalency of crimes on both sides, and if perpetrators are in positions of political power and prosecuting them could risk instability or a loss of cooperation. Impartial prosecutions in national trials are likely to be impossible in this case, owing in no small part to what the Panel calls the Sri Lankan government’s discourse of “triumphalism” over Tamils and “exclusionary policies” that prevent domestic victims’ groups from successfully exerting pressure on the government.

Prospects for Closing the Impunity Gap
Pressure from the UK and advocacy from human rights groups seems to be having no effect so far. Most of the pressure is on the UN Secretary-General because the Panel was commissioned by his office and with the purpose of advising him on further investigations and accountability. Victims and human rights groups are pressing him to take up the Panel’s clear recommendation to establish and official international commission of inquiry. Such a formal inquiry, as past experience has shown, would pressure the Sri Lankan government to genuinely investigate and hold war criminals accountable, and absent such a response would generate support for an international tribunal. If not an ad hoc or hybrid tribunal, a referral to the International Criminal Court would have to come from the Security Council as Sri Lanka is not a State Party to the Rome Statute. But China’s support for Sri Lanka and its autonomy in accountability makes this unlikely to happen. There is great risk that the Sri Lanka case will fall through the cracks.

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Mind the Impunity Gaps


This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.

An impunity gap can manifest itself in several ways:

  • There are no genuine international or national justice measures and/or there is a blanket amnesty.
  • There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
  • There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)

Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.

Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.

The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.

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International Justice Scholars and Advocates: One Big Happy Principled Family?

David Bosco posted “The Case for Impunity” today on his Foreign Policy blog, The Multilateralist. The central issue in the post is whether the ICC’s intervention in Libya has prolonged the conflict, by taking away Gaddafi’s option to go into exile, and whether international justice can credibly deter war criminals. I nodded my way through the first few paragraphs, until I got to the end. Bosco makes a sweeping claim about “international justice advocates”:

“It’s a bit disconcerting that international justice advocates rarely acknowledge the possible downsides of international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there’s a messianic faith in the value of international justice. And that’s fine if the argument is essentially based on principle: justice is right, impunity is wrong, consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. They have an obligation to honestly confront some of the possible negative consequences.”

I don’t completely disagree, but these statements are goading.

First, who are we talking about here? Are advocates only NGOs and human rights activists, or are scholars also advocates? Whether you call it a “field,” “network,” or “epistemic community,” there’s some sort of community of NGOs, policy experts, scholars, etc. that has coalesced around this central issue of international or transitional justice. But we’re not all on the same page and the fissures are cross-cutting.

Of course, the likes of Human Rights Watch (HRW) and the International Center for Transitional Justice (ICTJ) fall more in the principles camp. See HRW’s Selling Justice Short report, which counters arguments that justice has negative consequences for peace. Also, see the ICTJ’s recent short video on “Peace vs. Justice: A False Dilemma” (and my response to it here).

But we can’t ignore local level advocacy. Take civil society actors in Northern Uganda and Kenya. In Uganda, local religious organizations and human rights advocates have been highly skeptical of the ICC as it arguably has entrenched conflict by removing incentives for the LRA to negotiate. In contrast, Kenya’s strong civil society has been actively supporting the ICC and has pressured both the Court and national political elites for trials of the “Ocampo Six,” arguing that without such trials violence could resume around the next presidential election.

The United Nations, the central policy and negotiating forum for international justice, discursively promotes that peace and justice are mutually reinforcing, but in practice (and thanks to Security Council politics) takes an ad hoc and selective approach that belies any consistent commitment to principles or consequences.

In terms of scholarship, the principles vs. consequences dichotomy has mirrored the justice vs. peace dichotomy and overlaps with arguments about deterrence effects. For example, the scholarship of Jack Snyder and Leslie Vinjamuri (see here and here) is illustrative of the consequentialist side, and the work of Kathryn Sikkink and others who argue there is a “justice cascade”(see here, here, and here) is illustrative of the principles side. The few that make the case that international justice can deter, such as Payam Akahvan, do so arguing that if we commit to justice in principle it will have the desired consequences of preventing and ending conflict. But certainly these and other international justice scholars have shown empirical evidence that actors pursue, or not pursue, justice for both principled and consequentialist reasons.

Second, the potential negative consequences that advocates should confront need not be conflated with instability writ large. The when, where, and how of international justice can have a variety of perverse and unintended consequences. For example, international trials can displace or delegitimize local judicial processes and actors, reinforce collective guilt and innocence (if both sides are not held accountable), forestall reconciliation (if low-level perpetrators are not held accountable), and reinforce perceptions of judicial colonialism.

So we’re not one big happy principled family.

(cross-posted at Global Transitional Justice)

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From LSE to the ICC?


Libyan leader Muammar el-Qaddafi’s second son and purported successor, Saif Al-Islam Alqadhafi fueled the protests the other night with his disjointed speech. The irony of Saif’s complicity in all of this is that he wrote his Ph.D. dissertation under David Held at London School of Economics titled: “The Role of Civil Society in the Democratisation of Global Governance Institutions.” From the Abstract:

This dissertation analyses the problem of how to create more just and democratic global governing institutions, exploring the approach of a more formal system of collective decision-making by the three main actors in global society: governments, civil society and the business sector.

The thesis explains and adopts three philosophical foundations in support of the argument. The first is liberal individualism; the thesis argues that there are strong motivations for free individuals to seek fair terms of cooperation within the necessary constraints of being members of a global society. Drawing on the works of David Hume, John Rawls and Ned McClennen, it elaborates significant self-interested and moral motives that prompt individuals to seek cooperation on fair terms if they expect others to do so. Secondly, it supports a theory of global justice, rejecting the limits of Rawls’s view of international justice based on what he calls ‘peoples’ rather than persons. Thirdly, the thesis adopts and applies David Held’s eight cosmopolitan principles to support the concept and specific structures of ‘Collective Management’.

I’ve read through the first couple of chapters and one question just jumps out from all of this: How does the author of this dissertation end up participating in the slaughter of civilians demanding greater rights from a repressive regime? David Held offers his observations here and comes to this conclusion:

“The Saif I came to know was one committed to strong liberal values and democratic standards,” Held said. “He looked very much to Britain and to the US for inspiration and he certainly was passionately committed to constitutional reform of his country, the rule of law, to democratic elections and to human rights.

“After his speech on Monday, there is no way now in which he can be a credible agent of reform. He was developing a set of democratic and liberal beliefs and he was putting those into practice. He saw them as seeds – as a stepping stone for the reform of his country.

“The only way I can make sense of his speech is that the speed of change in the Middle East has caught him unawares and overwhelmed him. The position he has taken compromised him in every way, and made him the enemy of ideals he once proclaimed.”

Saif’s expertise on global governance institutions may very well grow in the near future. His actions make him a participant in what likely constitute crimes against humanity and he will probably get a much closer look at the ICC — from the inside….

(Update: Apparently there may be another, partial answer to my question about how the author of this dissertation could be complicit in these crimes. He didn’t write it all. There is now a Wiki page that is tracking instances of plagiarism in the thesis.)

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Is the jury out on universal jurisdiction?*

The two different countries I call home (Canada and the UK) have recently had to deal with universal jurisdiction in relation to war crimes.

First, as I’ve written about here, it has come to light that Canadian officials likely knew that Afghans captured by Canadian forces and subsequently transferred to Afghan prisons were being tortured. Failure to react to such allegations and relevations is a crime under the Third Geneva Convention Relative to Prisoners of War. Yet, what is interesting about this particular issue is that the Geneva Convention is quite clear that it is the government (as opposed to the military) is responsible for the violation of the law.

Yet the Canadian government has so-far refused to open up an investigation into the allegations (made by a Canadian diplomat, Mr. Colvin who served in Kabul and now does so in Washington). Instead, the issue is being handled by the Military Police Complaints Commission. The question is whether or not this is sufficient for the International Criminal Court – of which Canada is a party – who could potentially begin an investigation if they felt that the actions of Canada were insufficient. That the ICC prosecutor, Luis Moreno Ocampo has previously indicated this year that he willing to open up investigations into Western governments, does seem to leave the Canadian government in a potentially vulnerable position.

Second, a judge in the UK recently issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni for war crimes at the request of Palestinian plaintiffs. The allegations made against Livni were that she was responsible for war crimes committed during the Israeli offensive in Gaza last year. The warrant was revoked when it was announced by a very angry Israeli government that Livni would no longer be visiting the UK for her scheduled meeting with UK government officials. Additionally, the warrant was the cause of significant embarrassment for the UK government whose role in the Middle East peace process is now in some doubt (particularly as Israeli officials will now not be particularly likely to visit the UK). But the Court which issued the warrant has the right to do so at its own discretion. As war crimes have universal jurisdiction, the court felt that it was free to act.

For advocates, of universal justice, the implications of both of these cases are clear: it is about promoting the rule of law and addressing grievances so that real peace can be built. More simply, it’s the idea that justice should not stop at a national border. Officials, whether they are the Canadian Minister of Defence, the President of Sudan or the former Israeli Foreign Minister should all be susceptible to indictment.

And clearly, for the governments of these countries, it is about pragmatism. International legal arrangements which effectively damage diplomacy, or the ability of officials to do their job, is of benefit to no one.

But in reality, such concerns may also extend to the international legal institutions themselves. Although Ocampo may be a fan of universal jurisdiction, this may be tempered by a degree of realism. As the ICC and the US government under the Obama Administration are slowly working towards a new understanding (if not an entirely improved relationship), any attempt to prosecute Canadian officials may actually scare away the American government even further from the ICC – particularly given its skittishness about “activist” lawyers, politicized cases under the banner of universal jurisdiction.

To some extent it comes down to the old (clichéd?) question of “Order vs Justice” in International Relations – whether we should let justice be done though the heavens fall, or whether order without justice can really be considered any order at all. Perhaps more simply, it is at what cost international institutions (or even domestic ones) are willing to demonstrate their power – even perhaps at the risk of losing it. If they do act, they may be limited by politics; but if they don’t, they already have been.

*See what I did there? That’s the kind of skill you learn in a quality grad school.

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An Alternative to Gibbeting

In a Reuters op-ed yesterday, Bernd Debusmann makes “the business case for high seas piracy”:

As far as illicit businesses with low risk and high rewards go, it doesn’t get much better than piracy on the high seas. The profit margins can easily surpass those of the cocaine trade. The risks? “There is no reason not to be a pirate,” according to U.S. Vice Admiral William Gortney, who commands the U.S. navy’s Fifth Fleet. “The vessel I’m trying to pirate, they won’t shoot at me. I’m going to get my money.” Even pirates who are intercepted have little to fear. “They won’t arrest me because there’s no place to try me.”

Well, how might that be changed? Duncan Hollis reviews recent suggestions at Opinio Juris. They range from “create an entirely new international organization” to “hang ’em.”

Here’s another modest proposal: try them at the International Criminal Court.

But no, you say, the crime of piracy is not under the court’s jurisdiction. How true – and how ironic, considering that the idea of the court was originally put forward by Trinidad and Tobago in an attempt to deal precisely with transnational criminals (drug traffickers and the like) engaged in similar activities. But these crimes, as well as terrorism, didn’t make it into the Rome Statutethe only crimes under the court’s jurisdiction today are war crimes, crimes against humanity and genocide and (when it’s defined) aggression.

However. This is all up for reconsideration in 2010 at the Review Conference of the International Criminal Court – an event at which the terms and procedures in the original ICC treaty can be reconsidered, amended or addended by States Parties. According to the website of the Coalition for the International Criminal Court:

“Although, there is yet no clear agenda for the Conference, it is foreseeable that considering the adoption of the Crime of Aggression will constitute one of the main issues on the agenda. Also, the Rome Statute provides for the revision of Article 124, an optional protocol which allows States to not subject their nationals to the jurisdiction of the Court for seven years with regards to war crimes; and the Rome Conference recommended in 1998 the possible consideration of terrorism and drug crimes. “

So, why not piracy as well? It is analogous to all of the above in that it is a crime of universal jurisdiction – meaning a crime that no one state was able to stamp out alone, but all states, as members of the civilized order, had a responsibility and right to prosecute. In fact, it is the very oldest crime under universal jurisdiction: in its heyday, it was seen as analogous to the contemporary scourge of genocide or torture. And thanks to recent events, it is as salient today as genocide was in 1998. (OK, maybe that’s an exaggeration, but it’s plenty salient. Any issue that can get my in-laws talking about Somalia instead of US electoral politics over Thanksgiving dinner is a candidate for some serious global policy-making.)

As a court of last resort, of course, the ICC would not be equipped to deal with an immediate backlog of cases as pirates are captured and extradited by nations such as Germany, India, France and the UK. But how much trouble would it be to change this? The maritime nations of the world (and those relying on maritime shipping) have a good incentive to put these folks behind bars: the ICC offers a legal avenue, and what is most needed is a prison in which to house suspects while they await trial. Why not fork over the resources, take care of capturing them where you can (not that this solves all the logistical problems there, just the legal ones), and let those who go on trial and end up in prison for life serve as at least a partial deterrent for others?

Just a hairbrained idea at twenty-six minutes to midnight with some rum in me. Thoughts?

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(Soft) Power Politics

Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.

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