Tag: international justice (page 1 of 2)

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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Does the ICC Need to Reconcile with Africa? Bensouda Comes Out Swinging

(Originally posted at Justice in Conflict)

Photo: BBC

Fatou Bensouda, incoming Chief Prosecutor for the International Criminal Court, has put threatening war criminals and defiant states on notice. In several recent public statements she has directly addressed two of the Court’s most significant challenges: the accusation that the Court’s credibility suffers from a “pro-Western, anti-African” bias and the related issue of ensuring state cooperation and support, particularly in executing arrest warrants.

The argument that the ICC has (so far) unjustly targeted only African states and individuals is mostly based on misperception and has become a rhetorical tool of political elites to undermine the Court. Yes, all of the situations presently under the Court’s jurisdiction are from Africa. But as Bensouda and many others have pointed out, the Africa bias criticism is baseless for the following reasons.

African states wanted the ICC. Much of the strongest support for a permanent international criminal court in the Rome Treaty negotiations came from the Africa group. That support continued after Rome and African States Parties have a high level of ratification of the treaty (although, notably, a weak level of corresponding implementation legislation).

African states need the ICC. The empirical reality is that many situations of atrocities, and those that meet the (vague) “sufficient gravity” criteria for the Court to intervene, are in Africa. Moreover, many African states have a weak rule of law that fails to deter and respond to such atrocities, and so these situations justify the ICC’s intervention as a “court of last resort.” As Bensouda defended,

“The office of the prosecutor will go where the victims need us…The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”

African states invited and welcomed the ICC. Three states self-referred their situations to the Court (Uganda, DRC, and the Central Africa Republic) and three states initially welcomed and have since exhibited a satisfactory pattern of cooperation with the Court (Cote d’Ivoire, Kenya, and Libya). Only Sudan remains resolutely defiant and given its head of state is among the accused this should prove, not disprove, the ICC’s credibility. Bensouda expressed frustration that cooperation from African states and civil society is

“not the story relayed in the media…(and) anti-ICC elements have been working very hard to discredit the Court and to lobby for non-support and they are doing this, unfortunately, with complete disregard for legal arguments.”


J’accuse! African war criminals don’t want the ICC. Accusing the ICC of a “pro-Western, anti-African” bias is a rhetorical tool of the accused themselves. Accusing an international tribunal of pro-Western bias or victor’s justice is also not unique to the ICC – Goering, Milosevic, Taylor, etc. all rejected the tribunals they faced with this grandstanding challenge. The accused cannot defend their crimes, so they choose to undermine their accusers instead and invoke hyperbolic claims of racism and neo-colonialism.

African victims and civil society want the ICC. Despite the protestations of some political elites, there is substantial support for the Court’s investigations and arrest warrants among victim communities and civil society, whose support is essential for the ICC’s legitimacy and its ability to obtain witness testimony and evidence. The ICC also engages in outreach and assistance to war-affected communities and brings some hope of justice to those further marginalized by their victimization – something that domestic political and judicial institutions have less capacity and will to do.

The primary cause for concern is not the alleged bias against African states, but that misperceptions of bias have translated into obstacles to state cooperation on arrests and manipulation of the Court as a tool in electoral contests and war-making. The continued cooperation of elites in Kenya, Cote d’Ivoire and Libya will likely depend more on the circumstances of domestic politics and elections than on principled support for the ICC. And in the DRC, there is a renewed sense of urgency for Bosco Ntaganda’s arrest after he and his supporters defected from the ranks of the DRC military and have continued on the war-path in defiance of the ICC. The “Terminator’s” arrest is only likely to happen with the support of the DRC and (possibly) Rwandan governments and militaries. But Bensouda expressed concern about Ntaganda’s tactics and the need for state cooperation on his arrest:

“This level of blackmail – which I call it – in which perpetrators are saying that if you do not drop warrants against me, I’ll continue to kill people – I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.”

On cooperation with arrest warrants, the African Union is fingered for encouraging non-cooperation with the ICC, notably because of its 2010 call for non-cooperation on the Bashir arrest warrant and supporting Kenya’s request to the UNSC and OTP for a deferral of the indictments of its nationals. But as Bensouda argues, there are signs of improvement in cooperation with the AU and indeed the AU supported Bensouda’s nomination, believing the “African bias” of the ICC was more directly linked to outgoing Chief Prosecutor Luis Moreno-Ocampo and not the mandate of the Court itself.

It is wishful thinking, however, to assume that Bensouda will engender a cozier relationship with the AU simply because she is African. It is likely that the the ICC will become a more victim-centered court under Bensouda’s public leadership and prosecutorial strategy, which may lead to more interventions and engagement in Africa and not less.

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Peace vs. Justice: Is the ICC Doing It Wrong?

Photo from Still Burning

The Canadian International Council has rolled out a series of interviews and essays on “Peace v. Justice: The ICC and its Alternatives”. Far from flogging a dead theoretical horse, it’s a great renewal of a debate on the realities of the seemingly dichotomous choice between peace and justice.

Not to mention it’s a solid dose of Canadian scholarly insight and we debate very politely.

There are interviews with Kathryn Sikkink on the “justice cascade,” Leslie Vinjamuri on the role of the ICC in conflict zones, and Louise Arbour on the general debate. There are also essays on individual case studies that collectively demonstrate how peace and justice can be mutually reinforcing or come to blows when politics inevitably gets in the way. Check out essays by Mark Kersten on Libya, Stephen Brown on Kenya, Valerie Oosterveld on the Taylor trial, Rosalind Raddatz on the infamous General Butt Naked, and Simon Collard-Wexler on Timor Leste.  (More to come on Sudan, Kony 2012 and Canada’s truth commission.)
My own modest contribution is on “The Paradox of Lawfare.” Here’s a snippet:

The International Criminal Court precariously sits at the intersection of law, conflict, and politics. As such, the Court’s judicial intervention in ongoing conflicts and targeting of elite perpetrators of atrocities render it both an agent and a tool of what has been called “lawfare.” On the one hand, lawfare can refer to judicial interventions to curb atrocities through means that are coercive but morally preferable to military force. This form of lawfare is an ideal expression of liberal internationalism. On the other hand, the Court and global rule of law can be abused by states and political elites that seek to eliminate rivals and protect their own impunity. This is the paradox of the ICC – that it has so far been implicated in both legitimate and illegitimate uses of lawfare…

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Book Review: “The Justice Cascade”

My “Human Security” doctoral students just finished reading Kathryn Sikkink‘s new book on international tribunals and it is undisputably their favorite of all those assigned this year. Partly that is because it is written in clear, non-academic prose. Partly it’s the common-sense way in which Sikkink describes her methods and findings, and she ties her story concretely to ongoing policy debates. Partly it’s the way she weaves a portrait of her own intellectual journey into the writing. This book is going to have wide appeal beyond the academy for these reasons, but it was also notably very appealing to doctoral students for the same reasons, as they are hungry for scholarship to which they feel they can relate.

Beyond its appeal to the informed public and as a classroom text, The Justice Cascade makes significant intellectual, theoretical and empirical contributions to human security studies. The title is a little bit misleading since it implies that the story is about the rise of international justice as a norm… and it is, partly. But the real contribution is in demonstrating that trials and truth commissions work, especially in tandem. At least, these mechanisms appear to correlate somewhat to certain favorable outcomes, not least of which is a decline in human rights repression; and notably, in contrast to earlier work by Jack Snyder and Leslie Vinjamuri, her analysis shows such mechanisms certainly do no harm.

This finding should not be understated. Many have made similar arguments in the past, but none of the literature was particularly systematic or well-conceived: Sikkink’s own earlier quantitative work on the topic was either region-specific or failed to control for other causal factors. In fact a 2010 overview of the state of the TJ literature by Oskar Thomas, Jim Ron and Roland Paris concluded that it was impossible to know whether TJ worked due to absence of good data, over-reliance on case data, and conceptual incommensurability.

Sikkink’s new book is a redounding riposte to these claims, providing a much more careful systematic treatment of the relationship between trials and truth commissions and the deterrence of human rights abuses than anything I’ve read. She ties together a career’s worth of research on the subject, describing the evolution of the “norm cascade” toward individual state-level accountability for human rights abuses, documenting the effects within Latin America and then replicating these tests on a new global data-set. Throughout, she is careful to discuss the different analytical ways of thinking about “effects” of transitional justice, and she is clear on her coding and the trade-offs in some of her conceptual choices. Other scholars, she acknowledges, have created different data and found different results, but Sikkink’s reaction to that has been to team up with these colleagues on a new project aimed at reconciling the two sets of findings. So she describes her path-breaking conclusions with humility. Her work is a model of normatively-driven, empirically rigorous, policy-relevant social science.

I have only two mild critiques. The first is that I would have loved if the global deterrence chapter had explored differences between types of tribunals. An important policy question animating discussions of how to try Assad, for example, is whether international tribunals have advantages over local courts. It’s not clear to me that Sikkink’s data reflects the kinds of important variation that we see here: in fact my impression (though I’ve not look at the dataset itself) is that she coded only state-level courts. So there are open questions about the role of international institutions and the transnational international justice epistemic community in creating the outcomes she documents. I am hoping some of these more nuanced variables will be reflected in her new work with Leigh Payne.

My other set of questions has to do with the final empirical chapter on US policy post-9/11 and what this means for the “justice cascade.” First, the chapter itself is brilliant for what it is: it’s the best descriptive overview I’ve seen of the rhetorical mechanisms the Bush Administration used to stave off prosecution for its violations of human rights and humanitarian law in the war on terror (or at least, the best overview situated within the IR theory on norms). But the chapter makes an explanatory claim as well – that the efforts of the US to reinterpret international law indicate the strength of the justice cascade, rather than heralding its decline. Here Sikkink’s argument is weaker: it would be fairer to say she has advanced a new and very interesting hypothesis than that she has adequately demonstrated a finding on this point: the chapter includes no counter-factual comparison to earlier US administrations or to the behavior of other states in the same period; and no genuine causal assessment, actually, of whether the US would have behaved differently in the absence of the justice cascade. Plus it largely ducks the other question of whether a superpower’s malfeasance affects the legitimacy of the international norms it’s breaking, or only its own.

Still, both because of its many strengths and because of these small flaws, the book is absolutely ideal for teaching graduate students about how to do systematic, policy-relevant social science and to communicate it to wide audience. We ended by considering whether Sikkink could have written this book in this way straight out of grad school. Probably not: junior political scientists are still safer if they publish a few books with university presses in the style of Activists Beyond Borders before moving on to this more public-intellectual style. But this discussion not only inspired students to think about the justice cascade – it inspired them to visualize themselves at different places in their careers, as scholar-practitioners embedded in the human rights epistemic community, helping build social justice through research.

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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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Syria: The Exile or Justice Ultimatum

Reuters

Marc Lynch’s policy brief for the Center for a New American Security, titled “Pressure Not War:” A Pragmatic and Principled Policy Towards Syria” raises a provocative possibility for ICC judicial intervention. Lynch argues that pressure should be put on Assad and his officials to either go into exile to allow for a political transition or risk facing war crimes charges at the ICC. In his own words:

“To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no sign of being willing to take a political deal, an in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice and permanent isolation.”

The war criminal accusation is already part of the diplomatic discourse on Assad. UN Human Rights chief Navi Pillay’s statements and a UN inquiry report’s assessments concur that war crimes and crimes against humanity have been committed in the Syria regime’s siege on civilians. (Hillary Clinton also sort of called Assad a war criminal – considered unhelpful by David Bosco.)

But as we all know, Syria is not a State Party to the Rome Statute and Russia and China would block a Security Council referral of the situation to the ICC. Putting this obstacle aside, the “exile or justice” ultimatum is a frustrating position to take. Despite the sub-title of this policy brief, this ultimatum is based on assumptions that are neither soundly pragmatic nor principled.

On pragmatics, the offer of exile can no longer be viewed by war criminals as a credible guarantee of impunity – and won’t by Assad and his regime officials. Recall Charles Taylor, who abdicated his Presidency in Liberia in 2003 when the Special Court for Sierra Leone unsealed an arrest warrant for him and he took the negotiated offer of exile in Nigeria. He was arrested and transferred to the SCSL three years later. Recall the Khmer Rouge, many of whom were guaranteed exile and impunity for decades by a sympathetic Cambodian government and a passive UN; several of them now face justice and their victims at the ECCC. Political and security climates that may permit impunity in the short term will inevitably shift in the long term.

On principle, ICC officials and human rights advocates consistently balk at suggestions that the Court’s investigations and arrest warrants, and justice in general, should be used as a bargaining chip in conflict resolution. They have argued as much in the Libya, Sudan, and Uganda situations – all of which are delicate sequencing of peace and justice scenarios. In line with my belief that the “principles vs. pragmatism” dichotomy is unhelpful, such advocates also make consequentialist arguments that impunity is likely to lead to a resurgence of violence and instability. Look to the ICC’s justifications for intervening in Cote d’Ivoire and Kenya as evidence of this causal argument.

All in, the ICC cannot be viewed as credible if it endorses such “exile or justice” ultimatums. Moreover, the developing bond between the Court and UN Security Council as co-defenders of justice and peace will be severed by such unjust political bargains.

(Note: Michael Scharf provides an interesting legal analysis of the exile option, comparing Hussein and Taylor. See, Scharf, Michael P. “Trading Justice for Peace: The contemporary law and policy debate” in Atrocities and International Accountability: Beyond transitional justice.” Hughes, Schabas, and Thakur (eds). 2007.

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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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Punishment Over Peace?: Gaddafi in a Post-Amnesty World


It has been five months since protests in Tripoli sparked widespread ‘civil unrest’/war, a NATO enforced no fly zone, and partial (and unclear) international interventions. Rough death toll figures range from 10,000-30,000. Perhaps the biggest uncertainty is how this will all end. While there is some hope that rebel forces will tip the balance of power, Gaddafi’s forces are strong and have made recent advances.
One possibility that hasn’t been readily considered is the potential benefit of granting Gaddafi amnesty in exchange for a peaceful end to the civil unrest. So why isn’t amnesty being seriously considered by the international community?
There are multiple possible answers; however it is worth considering Libya as part of a ‘post-amnesty’ international justice agenda focused on prosecution. It seems that transitional justice has become a norm, based on the assumption that ‘true peace’ cannot be sustained without justice. I’m not arguing amnesty is the best option- but it is worth thinking about why amnesty has increasingly become an international taboo.

When put in a broader historical context, the current situation in Libya might be seen as a typical example of when amnesty should be considered. Yasmeen Naqvi explains that “amnesties for war crimes and other international crimes come into being mainly when states are going through periods of transition, often from war to peace, and of extreme political upheaval, for example, the handing over of power from military regimes to democratic civilian governments.”
Amnesties used to be more common, they were seen as a accepted part of peace negotiations, and a worthy compromise between the desire for peace and reconciliation and the desire to seek justice and retribution.
Since the end of World War II well over 420 amnesties have been introduced as mechanisms for achieving peace, with recent examples including provisions within the peace negotiations in Sudan in 1997, the 1999 Lusaka Ceasefire Agreement in the Democratic Republic of Congo, and both the Abuja and the Lome Peace Accords in Sierra Leone in 1996 and 2001.
Arguments in favor of amnesty have included the claim that, in many cases of war, peace could never be attained without amnesty (check out Michael Sharf’s work for more on this).
The principle of amnesty is even enshrined in international law, with Article 6(5) of the Additional Protocol II of the Geneva Conventions stating, “[a]t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesyt to persons who have participated in the armed conflict.”
Despite the historical precedence of its use, amnesty has increasingly come under criticism; it is now seen as fundamentally add odds with, and detracting from human rights and international law. But history tells us that amnesty has a place in ending violence. Might it be worth setting aside our desire to punish and set judicial examples in order to allow for a re-examination of the value of amnesty….in the name of peace?

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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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The Canadian Truth and Reconciliation Commission: an outlier in the international transitional justice industry

Did you know Canada has a truth and reconciliation commission operating right now? It seems neither do most Canadians. The Canadian TRC was initiated to address the history and legacies of the former residential school system for Canada’s indigenous population, or First Nations. First Nations children were taken from their homes- siblings often separated- and placed into residential schools, which operated from 1870 until 1993. These children were forbidden from, and punished for, using their native languages or practicing customs or religious ceremonies. Within many of the schools children were sexually, verbally, and physically abused. Shame, silence, cultural degradation, separated families, and inter-student and intergenerational abuse include some of the many detrimental legacies of the residential schools.

The Canadian case, and its position as an outlier provokes provocative questions about so called international transitional justice mechanisms, tensions between local and international justice norms, and accountability for the legacies of colonization.

Determinants of Outlier Status
No “Complimentarity”
with other international justice mechanisms: After the South African TRC, most truth commissions were established to compliment punitive judicial institutions. Unlike other recent commissions such as the ones in Sierra Leone and the former Yugoslavia, in which the TRC operated alongside an international court, the Canadian TRC was the result of a court order and “The purpose of the commission is not to determine guilt or innocence, but to create a historical account of the residential schools, help people to heal, and encourage reconciliation between aboriginals and non-aboriginal Canadians.”

Timing and Funding: The Canadian TRC has an initial operating budget of $60 million and a mandate to operate over the course of 5 years. In addition, the Canadians set aside almost 2 billion dollars for Common Experience Payments- restitution payments for survivors of residential schools. In contrast the Liberian TRC had a meager budget of only a couple of million dollars. After only 3 years of operation (from 2006-2009) the TRC in Liberia had its funding slashed, leaving thousands of testimonies were out of the archive and pages of the report unedited. Sierra Leone’s TRC only operated for two years from 2002-2004. Initially it had a paltry budget of $1 million but the final costs of the commission were closer to $9 million.

Local versus international: The truth is that most ‘international’ TRCs- including those in the former Yugoslavia, Liberia, Sierra Leone, Kenya, and Uganda- are largely initiated and directed by western institutions. In particular, the United Nations and the International Center for Transitional Justice has been the driving force behind global TRCs. With funding coming from external donors (George Soros was a major funder of the Liberian TRC, for example) and international experts steering the process, questions remain as to the local relevance of truth commissions. In initial research done by myself and my co-authors- Mohamed Sesay and Michal Ben Joseph-Hirsh- we found that the majority of Sierra Leoneans did not understand the mandate of the TRC in their country. The majority never had access to the final report and few link the TRC to lasting peace in their country. Conversely, the Canadian TRC has been funded and guided by Canadians. National events, including an upcoming event in Northern Canada are being held across the country to allow different populations to participate and the commission mandate includes the establishment of healing practices relevant to Canadian First Nations populations, including healing circles.

While most Canadians would be hard pressed to tell you anything about the commission, the motivation behind the commission and the way in which its mandate is being implemented has important implications for those interested in international truth commissions and transitional justice. The Canadian TRC is one of dozens of truth commissions operating internationally today. After the South African TRC, truth commissions became normalized as a necessary element of recovery after atrocities or conflict. By 2006 over 40 truth commissions were operating globally, vigorously supported by both the United Nations and the International Center for Transitional Justice.

Certainly the Canadian TRC is not perfect and without its challenges- several of the commissioners resigned in the early stages and national events had to be delayed. However, the commitment and locally relevant approach to the commission should inspire the international transitional justice industry to rethink their own mandates. Perhaps more importantly, the commission will shed some light on race relations more broadly, the potential for colonizing governments and formerly colonized peoples to learn from their shared history, and the significance of colonizer governments acknowledging their role in past atrocities as well as the legacies of those actions. Canadians and the rest of the world should also be watching to see how former colonizing forces are able to acknowledge past atrocities and possibly repair a historically antagonistic relationship.

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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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Making me Mlad: Why you can’t compare the Mladic and Osama bin Laden raids

Charli has been writing about international justice, arguing against ‘myths’ – and comparing the efforts to bring Mladic to justice as opposed to the rush to shoot Osama bin Laden in the face. Others, such as John Feffner at Foriegn Policy in Focus have made similar arguments.

I agree and disagree with some of the points being made. However I am concerned that that many of these arguments seem to completely ignore or fail to appreciate the different context of the Mladic and OBL raids. I just don’t think we can pretend these are at all similar situations – even looking beyond “status” issues, (who was/is a combatant/civilian etc). Rather, I think the core issue here is time and context.

For lack of a better term, bin Laden was caught and killed “during” the War on Terror, a period of active hostilities between the US and al-Qaeda. Mladic was captured over a decade and half after the Dayton Accords. The situation in the Balkans is far from perfect, but it’s certainly calmer. People have been able to get on with their lives as they rebuilding their homes, villages – even if scars can never perfectly heal.
The ICTY was established in 1993 (- a great way for the West/UN/European countries to look like they were doing something about the ethnic slaughter when they really weren’t). Mladic was indicted in July 1995 and surely was eligible to be captured and extradited from that point on.


There’s no question that it’s been a painful and horrible wait, but I wonder if it is also one that has allowed cooler heads to prevail? There have been protests in Serbia, of course. But they have not been on a truly significant scale. Mladic has been caught, charged, extradited (despite appeals) in under a week. Would this have actually been possible in 1995? Possible without tearing apart a freshly signed peace treaty? Aggravating a tense situation? And an angry population?

I’m not saying that international justice does not work – but I do not think 1) it always needs to take the form of an international court 2) that it should be done immediately.

Although it’s been nearly a decade since 9/11, the fact that the War on Terror has been ongoing makes the OBL situation different. bin Laden was a leader of a terrorist group actively planning attacks against the United States and other targets. Mladic, clearly a jerk of international proportions, was guilty of crimes but had returned to civilian life – and so have many others. The Hague will not become the centre of terrorist attacks or even protests. I’m not sure the same could have been said for OBL. Does this mean a trial for both was impossible? No. Does this mean the circumstances were very, very different? Yes.

The bottom line – you can’t make a fair comparison between Mladic and bin Laden when it comes to international justice.

The other reason this consideration is important is that the UN has released a report saying that both sides have conducted war crimes in Libya. Is it the best idea to indict individuals now? Or wait until the conflict is over, the country has a chance to catch its breath and then begin to take a good hard look at what has happened on its territory? Time may or may not tell.

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Mladic, OBL and International Justice

It’s hard to overstate the significance of Ratko Mladic’s arrest last night. Moreso that Slobodon Milsoevic, Serbia’s president during the 1991-1995 war of ex-Yugoslavia, and moreso that Radovan Karadzic the political leader of the Bosnian Serbs during the war, Mladic is reviled by Bosnian survivors of the conflict as the former leader of the Bosnian Serb Army. Though best known for his his calculated role in the war’s most infamous massacre of over 7,000 noncombatants at Srebrenica – along with the subsequent massacre at Zepa, this was his crowning achievement after several years of war marked by sexual assault, forced displacement, massacre and general butchery of civilians and detainees. Danger Room has a well-linked round-up of info on the snatch.

What I find fascinating about the international reaction to his arrest is the importance of this man being brought to trial. At no point I am aware of during his years of hiding was it argued that he should instead be taken out by a targeted killing – partly because it was recognized that justice for his victims required a trial. Recent empirical research demonstrates that these courts have not only been able to effectively carry out prosecutions, but have had a number of other important positive side-effects, with few of the negatives originally feared. I remain puzzled that the ad hoc tribunal model has not been seriously considered for KSM, OBL or other terrorist masterminds.

[cross-posted at Lawyers, Guns and Money]

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Was “Justice” Served?

In the wake of the jubilant response to bin Laden’s killing, it is heartening to see such a quick discussion erupt over its legality. The State Department has released its legal rationale for the operation here. The Atlantic Wire summarizes various arguments. Ken Anderson considers what the debate itself tells us about international law development.

My views on extrajudicial execution are well known, but I’m not sure I agree with Paul Campos that this event counts as such – whether or not this is understood as a law enforcement operation vs. a military engagement.

In the former, officers are permitted to use lethal force in self-defense, so if we accept the US’ claim that its Seal team was under fire then firing back was legal even if we assume human rights law rather than the law of armed conflict applies. This would be true, again assuming a firefight, even if bin Laden himself wasn’t armed (though his death ought to then have been treated as regrettable rather than celebrated as the Obama administration has done).

But if we cede the Administration‘s (and al-Qaida’s) claim that a state of armed conflict exists between the US and AQ, then the ICRC’s concept of ‘continuous combat function‘ would probably have applied to bin Laden (unlike Anwar al-Awlaki) due to his operational role in planning attacks. And even if you don’t buy this argument (many don’t since bin Laden’s operational importance is disputed and the concept of CCF is at any rate not enshrined in treaty law) the fact that this was a ground operation where bin Laden’s men were in a position to engage US troops, rather than a drone attack that hit him as he slept means that he was probably a legitimate target at the time he died even if he’s technically a civilian. Either bin Laden himself or those around him would have been directly participating in hostilities at the time, which means he was either a civilian who had momentarily lost his immunity (if armed), or a civilian caught in the crossfire of nearby civilians (the couriers) who had given up theirs. By using ground troops instead of an aerial attack, it is also clear that the US fulfilled the rules on proportionality and minimization of civilian harm, although whether they chose a ground mission for those reasons is debatable at best.

So in my mind – again assuming we can believe that US personnel were under fire at the time – it’s not the legality of killing rather than capturing bin Laden that is questionable; it is the wisdom of doing so. The claim that “justice” has been served here is particularly murky. That is because “justice” can mean a number of things.

To Obama and much of the American public it apparently means an eye for an eye.

To human rights lawyers, it involves following procedural rules in meting out punishment, which explains the focus on the legality of the killings.

But to advocates and scholars of post-conflict justice, “justice” has a broader, sociological and empirically measurable meaning: the phenomenon of holding perpetrators accountable for crimes in the eyes of their victims. This concept has a normative package of ideas associated with it as well: accountability should be exercised not only consistent with the rule of law, but in a manner that promotes a human rights culture, minimizes or deters future atrocities, and promotes reconciliation and inter-group understanding.

Killing rather than capturing bin Laden is an absolute fail on the first account. Warriors get killed in combat and criminal suspects get killed in confrontations with law enforcement all the time (as do civilian bystanders). But such incidents do not transform a warrior into a war criminal, or a criminal suspect into a convict. Such acts do not in themselves constitute justice in the sense of accountability before the law. They in face preclude it.

In so doing, the psychological benefits of international justice have been precluded as well. As Geoffrey Robertson argues in the Independent:

Bin Laden could not have been tried for 9/11 at the International Criminal Court – its jurisdiction only came into existence nine months later. But the Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict.

This would have been the best way of de-mystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature – never more remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box. Killing instead of capturing Osama Bin Laden was a missed opportunity to prove to the world that this charismatic leader was in fact a vicious criminal, who deserved to die of old age in prison, and not as a martyr to his inhuman cause.

That won’t be possible now. Whether the world will be better or worse or neither as a result is anyone’s guess. But what is certain is that justice, by this standard, has been stayed, not served.

[cross-posted at Lawyers, Guns and Money]

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Duch-ing the issue: International Justice in Cambodia?


Lots happening on the international law front – A Spanish judge (not Garzon!) has indicted three American soldiers who fired upon a hotel in Iraq which resulted in the death of a Spanish journalist. (Those Spanish judges sure love their universal jurisdiction…) Also, the Cluster Munitions Treaty came into effect.

But perhaps the biggest international law story of the week was that of the conviction of Kaing Guek Eav or “Duch” by the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (aka Cambodia Tribunal).
However legal scholar Peter Maguire isn’t so sure. In a rather scathing critique of the Court he highlights several major problems, including:

  • It has lost the support of the (what seems to be increasingly corrupt) Cambodian government
  • That the Cambodian members of the Court are more anxious to please the wishes of the government than carry out objective investigations
  • That there have been allegations of corruptions and the fact that the Court is running at ‘a conspicuously slow pace’.
  • That although the Court was predicted to cost $20 million (US) per year, “the court has already spent at least $70 million and convicted only one suspect.”

But he leaves, perhaps , the most scathing critique for the ‘cheerleaders’ of international justice:

The biggest problem facing the ECCC is living up to it’s own hype. Claims that such trials lead to healing, closure, truth and reconciliation are speculative at best. How does one measure “healing, closure and reconciliation”?
While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch. Bou Meng, a survivor of the Tuol Sleng prison, described Duch’s sentence to reporters as “a slap in the face.”
The U.N. legal experts and their cheerleaders in the human rights industry have lost sight of a basic fact: No matter how procedurally perfect the ECCC is, if it outlives the people it was supposed to try, it cannot be judged a success.

This is quite simply the most interesting article on international criminal justice that I have read in a long time.

The other fascinating aspect of it is his condemnation of the fact that the prosecution has decided to add the charges of genocide to the list facing the accused. He does not pretend that what happened under the Khmer Rouge was in any way not brutal, but points to the fact that this has really only made the case for the prosecution harder. “Proving” genocide is one of the hardest possible things as it requires evidence of intent. It was something that caused great difficulty in prosecuting Milosevic (until he did everyone a favour and managed to die in jail). Again, as Maguire notes:

None of the four defendants were hands-on killers like Duch — they simply issued orders from on high. Thus their cases will require the tribunal to take a much broader view of their legal mandate. Unlike Duch, these defendants were careful to distance themselves from the atrocities.

I must admit that I was more optimistic about the Court until I read the article. Then again, to be honest, I hadn’t been paying much attention to it. I was aware that it’s a “hybrid” Court – both a national and international court, with staff from both, like the Special Court for Sierra Leone. The benefit of such Courts for some NGOs and advocates is that while they are still under the ‘universally accepted principles of international justice’ (ie: due process and the like) they also serve as a teaching tool for the rule of law in countries where it has effectively been broken down. (For the US the advantage is to show that ad hoc courts work just as well, or better, than the ICC – something that it has a clear policy interest in, for better or worse.)


However, given what Maguire is saying above, this clearly appears to not be the case. In fact, it sounds as if it may be playing a role in helping an increasingly undemocratic government in Cambodia.

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UK Torture Inquiry: Our BFD?


The coalition government here in the UK has announced that there will be an inquiry into torture and rendition alleged to have been carried out since 9/11. This was a major item platform for the LibDems and some Tories, the latter group while conservative, committed to a deep sense of eroding “British values”.

It’s early days, and we do not know what such a commission would look like, but if this Guardian article is correct, individuals will be named and shamed:

The judicial inquiry announced by the foreign secretary into Britain’s role in torture and rendition since September 2001 is poised to shed extraordinary light on one of the darkest episodes in the country’s recent history.
It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11, but also the identities of the senior figures in government who authorised those activities.

This is – to put it in Biden terms – a BFD.

Some early thoughts:

First, there is no doubt some of the motivation here is for the other two parties to really stick it to Labour. But to be honest, it’s nothing that they haven’t brought onto themselves if the Inquiry does find that then-senior Labour MPs/Cabinet ministers knew they were acting illegally.

So, provided the allegations can be substantiated (I’m guessing at least some will), the bigger question will be if these individuals justified, in any way, of making the decisions they did, under the circumstances. (The Michael Walzer/Dirty Hands approach). Human Rights lobby groups are probably going to give a definite “no” to this but it will be interesting to see what an inquiry will say.

Any individual named by a commission would have a very difficult time traveling around the rest of the Western world, particularly Europe, for a very long time. While the commission would not in and of itself be a trial (it seems to be framed as an accountability mechanism more or less) it could lead to formal charges elsewhere. The UK is, after all, party to the ICC.

Finally, for relatively obvious reasons, I can’t see this happening in the US. Yet it seems clear that the decisions of US decision makers, and their impact on UK decision makers, is going to come to light. Like the Iraq Inquiry, a UK commission will effectively be putting US policy on trial.

However, I can’t see something like this happening in other countries like Canada either – where there is a good chance that senior government ministers in both political parties made decisions that contravened the CAT or their own domestic laws. Although, to be fair, the Canadian government at least held a commission as to why a citizen was permitted to be rendered to Egypt for torture and the Canadian government officially apologized. No official was ever held accountable.

Stay tuned…
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Garzon’s Reign in Spain Falls with Mainly Who to Blame?


It was announced last week that Judge Bathazar Garzon will be investigated for over stepping his authority for knowingly taking on a case that was outside of his jurisdiction. Garzon is, of course, famous for indicting Chile’s General Pinochet for crimes against humanity in the 1990s which lead to his arrest in London (although he eventually was let go on medical ground – and died).

Since 2008, Garzon had apparently been turning to domestic figures, looking to open an investigation and prosecution against those Spanish officials which allegedly were involved in acts during the Franco dictatorship that could amount to crimes against humanity. While there is a 1977 amnesty law – passed to help with the transition to democracy – it was Garzon’s contention that such a law could not cover crimes against humanity and therefore officials could be prosecuted.

The probe into Garzon came after two far right political groups brought legal action against him. For his part, Garzon is arguing that the probe amounts to a serious attack on judicial independence.
Clearly the situation is serious for Garzon because it will probably suspend his career for some time and it could result in him losing all of his judicial powers in Spain.
A couple of thoughts on this –


Reaction from the left and right has been fairly predictable. This article on the Guardian website declares that “justice itself may be the victim” if Garzon is found guilty. His indictment of Pinochet is described as ushering in “the heyday of international justice”.


Really? A heyday? It never seemed like much of a heyday to me – the number of war crimes trials is still relatively low and predominantly focuses on African countries.

Additionally, the movement to setup the ICC had already been established by the time of Garzon’s indictment of Pinochet and the ICTY and ICTR were already functioning (sort of in the case of the later). Garzon is not and does not singlehandedly represent international justice… just one kind of form of it that people on the right tended to find irritating.

Speaking of the right, Eric Posner today describes the charges in the Wall Street Journal as “the end of a failed experiment in international justice” and that universal jurisdiction “increasingly and thankfully, looks like a pipe dream”. Posner then predictably launches into an assault against international law the ICC.

The problem with Posner’s argument is that what Garzon was doing and what the ICC does are very different things. The former was using universal jurisdiction within his own state to prosecute those he saw as war criminals in Europe. The ICC on the other hand has a Statute and binds member states (although citizens of a non-state party may be indicted if they commit a crime on the territory of a party).

Of course there are some similarities here but Posner is making a mistake in assuming that there is one giant global justice movement (although sometimes even international lawyers like to portray it that way). There are different approaches and different legal mechanisms. Stopping Garzon is not going to take away from the functioning of international courts.

However, one thing that Posner does get right, I think is that we have gotten away from the original purpose of universal jurisdiction :

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice.

I think he has a point here – that international lawyers have tried to stretch a concept over a larger and larger areas where it may not necessarily fit so well.


Still, the key thing here in relation to Garzon is that the charges against him do not mean that the ICC will be going away anytime soon. Nor does it mean that global justice is collapsing forever. No one figure can represent all that is international legal justice.

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A Nuremberg for Guantanamo?


GUÉNAËL METTRAUX, a international criminal defense attorney in the Hague, published a modest proposal regarding the Guantanamo detainees in today’s New York Times: instead of trying the detainees in military commissions or US courts, set up an international tribunal under UN auspices:

Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

But it does actually matter whether he is talking about a Nuremberg or a hybrid international court similar to those previously set up under the UN. For example, only by confusing the two would he seem so confident an international tribunal would be less, rather than more constrained than US courts on grounds of due process. Historically speaking, late 20th century tribunals have had higher legal standards than domestic courts, and often more complex ones, sometimes drawing on multiple legal traditions from different countries. (Nuremberg indeed adopted more flexible standards such as, ex-post-facto justice, but this has been widely criticized and corrected in more recent institutions which tend to err on the side of the rule of law.)

Contemporary international tribunals, unlike the Nuremberg and Tokyo tribunals, are also notorious for trying criminals on both sides of a conflict. There are those who would argue that certain US officials should stand trial in the same court for their sins during the same “global war” – just as the ICTY tried and convicted combatants from all sides of the war in ex-Yugoslavia.

If the court Mettraux foresees is indeed another Nuremberg, this would be a significant digression from, rather than an extension of, the normative and legal precedent set by the existing UN and hybrid tribunals set up in the 1990s. I think an international tribunal is a fine idea but I doubt, as he seems to think, that the US can have its cake and eat it too.

What of the practical workings of such a court? Mettraux imagines that:

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

Law professor Michael Kelly, blogging at the Jurist, is skeptical that this would be as easy as it sounds:

“Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar.”

But Kelly doesn’t oppose the idea in principle. And he raises another interesting point: the importance of incorporating Islamic jurisprudence into the Statute:

“Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal’s legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system – keeping Islamic convicts in jail in an Islamic country.”

But Kelly cautions against idealism about the process, and I concur. It’s a good idea, but let’s not treat it at any kind of an easy solution – legally, logistically, financially or politically.

Still, to paraphrase both Winston Churchill and Gary Bass, international tribunals are a bit like democracy: the worst form of post-war justice in the world… except every other kind.

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