IJCentral: International Justice Central

By Louise Hogan, Global Correspondent for Safe World for Women*

Recently, UK Foreign Secretary William Hague announced the UK was sending a team of experts to gather evidence on the use of rape and other forms of sexualised violence in the Syrian conflict. As media reports of the announcement tended to focus more on Angelina Jolie’s support for the move, the true significance of this has been lost somewhat.

Conflict Rape and Prosecutions

In international law, rape is well established as a weapon of war and genocide. Sexualised violence is used in conflict to humiliate, punish and subjugate, to destroy the social cohesion of communities and even as a form of ethnic cleansing, through forced pregnancies. When the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, the inclusion of rape when prosecuting cases of crimes against humanity was considered revolutionary.

The prosecutions at the ICTY - and also at the International Criminal Tribunal for Rwanda (ICTR), set a major precedent in defining rape as an act of torture, a war crime, a crime against humanity and a tool of genocide.

However, further progress in terms of prosecution has been slow and disappointing. The number of prosecutions for such crimes does not come close to matching the thousands of women, men and children raped in both conflicts. An estimated 50,000 women were raped in Bosnia yet only 30 men have so far been held accountable.

Why is this?

Similar to the prosecution of rape in domestic courts, the issue usually lies with evidence or lack thereof. While the world is well aware of Bosnia’s notorious ‘rape camps’, media reports do not stand up in international law. Cold hard facts and medical or documentary evidence are essential. As Elisabeth Neuffer notes in ‘The Key to my Neighbour’s House’, her excellent evaluation of the quest for justice in Bosnia and Rwanda, “Rape during war, however, presented tricky questions of proof. Except in the case of mutilation, it was unlikely that there was physical evidence to back up rape allegations in a trial,”

Breaking Ground

Before the ICTY, the only international criminal category in which rape was explicitly described was as a crime against humanity. This made it even more difficult to prosecute, as to qualify as a crime against humanity, it was necessary to demonstrate that the rapes were part of a systematic or widespread attack. There was much debate over whether or not rape can, in some cases, be used as a tool of genocide. In 1995 however the US Court of Appeals for the Second Circuit, in a case brought against Radovan Karadzic by Bosnian refugees had ruled that rape could be an act of genocide.

With this legal precedent set, the ICTY was able to include charges of sexual violence in the case against former Bosnia Serb leader, Dusko Tadic. It was the first international war crimes trial to do so. At the ICTR, the Akayesu trial was also a landmark case as it recognised that rape can constitute genocide under certain conditions.

When the International Criminal Court was established, the recognition its statutes gave to the crime of rape and other forms of sexual violence validated the important legal precedents set by the two ad-hoc international tribunals. Its trial of Jean-Pierre Bemba, former vice-president in the DRC, on charges of war crimes relating to the Central African Republic has been praised for placing rape and sexual violence at the centre of the charges. Despite this however, some women’s rights activists have expressed reservations about the real impact of this, pointing out that 40% of the charges of sexual violence were dropped before the trials commencement as judges argued they were ‘redundant’. 

The UK and Syria

As vital as legal precedents are, real commitment by the International Community in terms of gathering evidence and prosecuting such crimes are just as important. Which is why the deployment of UK backed team of 70 people, including doctors, lawyers and forensic experts, to the Syrian region is so important. If the horrifying reports of brutal and widespread instances of sexualised violence can be verified, hopefully they can be stopped to some extent and later prosecuted.

It is difficult to be optimistic when one considers how widespread rape as a tool of conflict is across the world, showing no signs of abatement in places such as the Democratic Republic of Congo. However, just a few months ago, many questioned William Hague’s actual commitment to halting sexual violence in conflict, given the International Community’s track record. But we have now seen real and concrete action. Although there is much more needed to be done, it is a huge step forward in terms of stopping and deterring sexual violence in conflict.

Sources: Channel 4 News - Jolie backs UK moves to tackle warzone rape, UN - ICTY, womensenews, Women Under Siege, Channel 4 News - William Hague: Why rape in conflict matters

Original article posted on Safe World for Women

* Louise Hogan is a freelance writer and a student at the Irish Centre for Human Rights. She has previously worked with the Strategic Initiative for Women (SIHA) Network in Uganda and for Justice Africa UK in London. Her primary interests include women in conflict, genocide studies, conflict transformation and mass atrocity response operations. Follow Louise on Twitter @lahogan4

By Seth Engel*

Recent events in Cairo have made the world ever more aware of the problems in seeking the elusive concept of post-conflict justice. The struggle for international justice, begun by the Nuremberg trials of Nazi officers, continues more than ever to perplex scholars, frustrate activists, and complicate post-conflict resolution. And the concept is growing more and more important, with the International Criminal Court’s (ICC) growing role in Middle Eastern politics, its first trial completed in July 2012, and its unprecedented indictment of the wife of former dictator Laurent Gbagbo. While nominally a domestic issue, Egypt is facing a similarly perplexing threat to international justice.

Double Jeopardy in Egypt

Hosni Mubarak, despotic Egyptian president (and US ally) of 30 years, was sentenced to life in prison this past June for being an “accessory to murder” of protestors during Egypt’s revolution.  The judgment, however, came so quickly on the heels of Mubarak’s ouster that both his supporters and detractors have questioned its legality, fairness, and neutrality. Both sides have vowed to appeal the ruling. Presiding Judge Ahmed Rafaat himself, on pronouncing Mubarak guilty, freely admitted  that there was no evidence that the defendant had ordered the killings.

President Mohamed Morsi, in his widely denounced November 22 edict, decreed that all Presidential initiatives would henceforth be unreviewable by the courts, including his order that Mubarak would be re-tried for his role in the killing of protestors during the country’s revolution. This aspect of the Nov. 22 decree is just as deadly to the rule of law as the infamous demolition of checks and balances.

The double jeopardy principle prohibits such a retrial. A nearly universal principle of law that bars the retrial of the same defendant for the same crime upon exhaustion of all appeals, double jeopardy protections are implied by various articles of Part Four of the 1971 Egypt Constitution  and provisions of the 1937 Egyptian Penal Code. Protection from double jeopardy is further enshrined in the European Convention on Human Rights, the International Covenant of Civil and Political Rights, the Fifth Amendment to the United States Constitution (“…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”), and at least 50  other national constitutions.

The principle of double jeopardy is central to the rule of law, wherein a fair trial requires, for example, the ability of the accused to be present at trial, to be represented by an attorney, to cross examine witnesses and to examine the evidence presented against him. But all of these rights are worthless if a government could simply re-prosecute the accused after an acquittal or judgment. The state could literally loop prosecutions endlessly, wearing down the defendant into a confession, an unfair plea bargain, or a conviction at a second or third trial. Double jeopardy is an essential protection from the coercion of state power.

That being said, Morsi’s decree is not the first exception to the double jeopardy principle. In Egypt, LGBT activitists have long decried  the retrials of gay men for “contempt of religion” activities.

In the United States, both the federal and state governments could prosecute a defendant separately for the same crime. Under a 1932 Supreme Court case, Blockburger v. United States, the test to determine double jeopardy is thus: a successive prosecution of the same defendant is admissible only if each offense requires proof of an additional element not present in the other.  This is why, for example, an attempted murder trial would prohibit a second trial for premeditated murder, though it would not prevent conspiracy to commit murder (which requires proof of a second person taking an “overt act”). This test has further been complicated by the fact that the discovery of new information (such as the subsequent death of the victim) may allow retrials and that certain kinds of mistrials allow for the prosecutor to re-try the case.

The real problem with Morsi’s intended re-trial of Mubarak, however, lies not in the specifics of double jeopardy protections, but in the circumvention of the rule of law for political gain. Here is where we find the crux of our international justice debate, as prosecution for political gain is unfortunately a hallmark of the prosecution of public figures, especially deposed dictators. A threat to the fair trial of these former strongmen, while perhaps not the worst fate for people of unenviable human rights records, is a threat to the fair trial right to all accused citizens of every country.

Defending the Indefensible

Such politically motivated, due process-infringing trials have and continue to occur in the West – see the Monica Lewinsky affair, the trial of Saddam Hussein, and the Bush-era Guantanamo trials. But that does not mean that presidents and international organizations can ignore fair trial rights they swore to uphold simply because the accused is a disfavored member of society.

Most criminal attorneys will admit to having fun at their jobs from time to time. The attorney of a deposed dictator, however, would rarely say the same for obvious reasons. The moral opprobrium attached to defending someone who has been accused of a crime against humanity is heavy enough to turn an attorney off from the idea of representing the accused at all.  But it is these very cases, with defendants against whom public opinion is most virulent, that most require due process and fair trial guarantees. After all, rights are most precious to those who don’t have them.

For this same reason, the public defender is the backbone of the rule of law in United States courts. Public defenders juggle a client list that has, in the recent election season, been alternately described as lazy,  in search of handouts,  and generally parasitic .  It is therefore all the more important to provide due process rights to disfavored clients; the mark of a truly just society is the impartiality and fairness extended to its imprisoned members. This rings equally true in the USA, Egypt, and the world.

By Seth Engel*

It has been accurately predicted that international tribunals would become important, if not essential, players in international relations. Their eminence is, of course, their very raison d’être – to become so pervasive, so inescapable, that those who would commit war crimes or crimes against humanity would be deterred from doing so just like any other would-be criminal.

Unfortunately, though, there is now an argument to be made that international justice has been used more as a tool for political power than as a force to stamp out evil. Recently, Libya  has claimed jurisdiction over the trial of Saif al-Islam Gaddafi despite the International Criminal Court’s (ICC’s) vigorous objections, briefly kidnapping ICC staff in the process. The alleged war crimes of the victorious forces in both Libya  and the Ivory Coast  have been utterly ignored, the Syria conflict remains untouchable, and countries such as the UK are requiring  the newly recognized Palestinian territories to pledge not to bring their case against Israel to the ICC.

The argument on the nature of international justice has long been brewing among scholars and practitioners. One side claims that the process in which international justice is being doled out is consistently unfair, while the other celebrates any and all prosecutions of alleged criminals as a step towards the realization of a world without war crimes. These considerations are especially important since all international tribunals seek especially to remove all aspects of “victor’s justice,” in which the conquering forces conduct a sham trial of the vanquished in order to execute or imprison the enemies. Recent events have lit a fire beneath this argument, bringing it closer to a boil than ever before.

In his highly controversial “dissenting opinion” from the Charles Taylor verdict of the Special Court for Sierra Leone (SCSL), alternative Justice Malick Sow stated that “[M]y only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.” One can only hope that his worry is unfounded.

Hubbub in The Hague

Operating in The Hague and Freetown, Sierra Leone, the SCSL has convicted the former Liberian President Charles Taylor of 11 charges of crimes against humanity for his participation in the 11-year civil war that killed 50,000 people and displaced hundreds of thousands of others. The United Nations-sponsored court, however, has had trouble wrapping up its $200-million endeavor and the $50-million Taylor trial.

On April 26, 2012, Mr. Taylor was pronounced guilty of aiding and abetting serious crimes in Sierra Leone and of planning attacks on the mining town of Kono and the capital city of Freetown. After presiding Justice Richard Lussick delivered the verdict and the other judges rose to leave the courtroom, however, the alternate judge, Justice Sow, shocked the courtroom by reading a dissenting opinion that, according to several observers , stated:

“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom[…]for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution.”

In essence, Justice Sow accused the Court of failing to properly deliberate as to the truth of the matter and the evidence presented, and presented his own opinion that the evidence did not meet the standard of proof required to find Taylor guilty. While rumors claim that Justice Sow’s microphone was cut off while he was speaking, the SCSL has refused to publish an official version of the dissenting opinion. His fellow judges have since decided  to suspend him from the case, with no public statement or deliberations whatsoever.

A Well Tailored Decision?

These irregularities aside, determining the actual extent of Mr. Taylor’s participation was no easy legal matter. Many  argue  that the Court failed to actually do so. The Trial Chamber specifically rejected notions of “joint criminal enterprise,” comparable to the mafia-like RICO crimes in the US (see The Dark Knight for an example).  The Court similarly rejected the use of “command responsibility,” which would hold Taylor responsible for the actions of those under his command. Instead, the Court settled upon a form of “aiding and abetting” to categorize Mr. Taylor’s actions, as a supporter removed from both the rebel army’s horizontal chain of command and the vertical support networks.  It shouldn’t be surprising that the decision to put Mr. Taylor in prison for 50 years on these grounds would require extensive deliberation.

While alternative Justice Sow’s dissenting opinion was not strictly permitted under the rules of the UN-backed court, his allegations are serious. If the SCSL judges truly did fail to follow the Court’s mandatory procedures, and if there really was a violation of Mr. Taylor’s right to a fair trial, the Trial Chamber verdict may be more of a blow to international justice than a boon. International judges must always presume that they act under the shadow of “victor’s justice,” and must be wary of being seen by the general public as executing or imprisoning the losing party. Justice Sow’s allegations do nothing to alleviate this fear.

By Megan Schmidt & Amelia Wolf*

In the aftermath of the Holocaust, there was a resounding global outcry for the world to never again bear witness to mass murder.  But the genocides in Cambodia, Rwanda and Bosnia, and the crimes against humanity committed in Kosovo, East Timor, and Darfur, were gruesome reminders that the international community has failed to make this aspiration a reality.  From these tragedies came a historic shift in international relations: governments agreed that sovereignty would no longer be used as a shield to massacre populations and that there is, in fact, a moral obligation to prevent and halt the most horrific crimes known to humankind.  It was in 2005 at the World Summit at United Nations (UN) Headquarters, that governments unanimously endorsed the Responsibility to Protect (RtoP, R2P), committing to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing.

Civil society, which includes non-governmental organizations (NGOs), academic institutions, and the media, has a critical role to play in ensuring that governments uphold their responsibility to protect populations from mass atrocities.  Since 2005, civil society support for RtoP has continued to increase, with more organizations raising awareness of RtoP and calling on their governments, regional organizations, and the international community to take action to prevent and halt these most serious crimes.

But, what is RtoP exactly?

The Responsibility to Protect is a new international norm founded on the prevention of four crimes - genocide, crimes against humanity, war crimes, and ethnic cleansing.  At the 2005 World Summit, which was the largest ever gathering of heads of state, all governments endorsed RtoP, making a commitment to protect their populations from these crimes.  The responsibility to protect populations starts first and foremost with the state.  Governments hold the primary responsibility to ensure the safety and security of their people, and to protect them from these horrific crimes.  The international community also has a responsibility. Neighboring countries as well as other governments, regional organizations, and the UN have an obligation to help states meet their protection obligations.  And should a state be unable to prevent RtoP crimes, or is in fact the perpetrator, the international community has a responsibility to take timely and decisive action to halt the commission of mass atrocities. 

Despite growing support for RtoP, many misunderstandings remain. Some still confuse RtoP with the concept of humanitarian intervention, a principle that was fleetingly popular in the 1990s and focused on the right of a state to intervene in another country’s affairs.  This is far from what RtoP means.  RtoP is not based on the right of any state but on the responsibility of all governments to protect their populations from the most egregious crimes.  Another common misconception of RtoP is that the norm is just about the use of force, when in fact it is not only based on the prevention of mass atrocities, but includes a range of political, economic, and humanitarian tools for actors at all levels to implement to meet this goal, with military force as an option only when peaceful means have failed.  It’s important to remember too that RtoP actually places more restrictions on the use of force, since military measures can only be used when authorized by the UN Security Council, in accordance with the UN Charter.

How to get involved?

Civil society has always been a driving force for the protection of populations and the advancement of the norm. With the articulation of the Responsibility to Protect, NGOs, academics and the media had a way to hold their governments and other states accountable for the prevention of mass violence. World leaders made a promise in 2005, and would have to make good on their commitments.

Building understanding of the norm by educating the public, governments, and regional actors is crucial to the prevention of RtoP crimes.  In an effort to ensure that the world is aware of this historic commitment and the responsibilities it entails, NGOs have and can continue to implement a wide range of educational and awareness raising initiatives.  Organizations have published journals focused on RtoP and related thematic issues, developed toolkits and informative documents on the norm, conducted research on the prevention of and response to RtoP crimes, and used social media to provide up-to-the-minute information on RtoP discussions and crisis situations.

As the Responsibility to Protect starts first and foremost with the state, civil society organizations can advocate for the strengthening of national and regional capacities to prevent RtoP crimes.  Organizations can take a wide range of action to achieve this goal and assist governments in upholding their responsibilities. This includes calling on politicians to make RtoP references, encouraging states to adopt legislation to protect the rights of vulnerable populations and ensure equality for all, and pushing governments to enhance or establish domestic and regional mechanisms to prevent mass atrocities. 

Some organizations focus more specifically on monitoring and documenting country developments, and through their field presence, are equipped to provide early warning of potential crises.  NGOs can also dispatch fact-finding missions to uncover the truth in situations where conflict has begun.  These organizations can then alert actors at the national, regional, and international levels of potential or imminent threats to populations.  Especially in cases where there is no domestic or international presence, NGOs may be uniquely placed to act as “watchdogs” for human rights violations.

If tensions arise within or between communities, civil society can encourage all parties to negotiate to find a peaceful and sustainable non violent resolution or support the mediation efforts of others, such as national or regional actors, or the UN.  These groups can also train peacekeepers and the security sector so that they are able to identify risks of RtoP crimes and respond preventively if populations are under threat of mass atrocities.

The Responsibility to Protect does not stop just because a conflict does.

Historically, NGOs have played pivotal roles in post-crisis reconstruction to not only rebuild after mass atrocities have been committed, but to assist in conflict resolution efforts that prevent states from descending back into violence.  This can mean analyzing past cases to learn from failures and assess best practices, as well as developing RtoP indicators that would allow actors to better understand the risks to mass atrocities.  Reconciliation efforts are also crucial following a conflict, and NGOs often take part in strategizing and assisting with such peace processes, placing critical emphasis on the importance of ensuring equal representation and protection of rights for minority populations and vulnerable groups.

Joining these global efforts will help ensure that the world does not look away in the face of mass atrocities.  We can all agree that genocide, war crimes, crimes against humanity and ethnic cleansing must be prevented, but what is crucial is that actors at all levels commit to making this a reality. 

You can hold your government and other world leaders, regional organizations and the UN accountable to their 2005 promise to protect populations from these horrific crimes. The Responsibility to Protect can be an effective tool to advocate for rapid responses to dire situations and long-term measures to stave off conflicts in the future. In the words of UN Secretary-General Ban Ki-moon, “The Responsibility to Protect is a concept whose time has come”.

*Megan Schmidt is the Outreach Officer and Amelia Wolf is the Social Media Coordinator and Blogger at the International Coalition for the Responsibility.

By Mohammad Shouman

I. Background

The Rome Statute is a treaty between consenting states. Any individual who commits a crime on the territory of a state party, or is a national of a state party, can fall under the jurisdiction of the ICC. When a crime is committed outside state-party territory by a national of a nonparty state, then the preconditions for exercising jurisdiction can still be met if the nonparty state accepts the Court’s jurisdiction. If the nonparty state does not accept, then jurisdiction can only be triggered through a referral from the U.N. Security Council. For example, under Chapter VII of the U.N. Charter, the Security Council made referrals of the situations in Darfur, Sudan and in Libya, even though neither state is a party to the Rome Statute.

When exercising jurisdiction through either territoriality or active nationality, an ICC referral does not need to be made by the Security Council, but the Council still has the authority to defer a Prosecutor’s investigation or prosecution by (renewable) twelve month terms. (Throughout the rest of this post, “investigation or prosecution” will be collectively referred to as “prosecution.”) No permanent member of the Security Council—collectively known as the “P5”—can unilaterally defer a prosecution. If the prosecution was triggered by a Security Council resolution, then any P5 member can veto such a referral, effectively blocking the prosecution.

II. Discussion

A. Who Should Have Deferral Powers?

The Security Council is likely better suited to make deferral decisions than a judicial or legal entity (i.e., a judge or prosecutor). By providing deferral powers to the Council, the ICC is prevented from making political decisions. Instead, the Court can continue to maintain its neutrality and simply enforce the substantive and procedural laws laid out in the Rome Statute.

B. Potential for Abuse?

The Security Council has never deferred a prosecution throughout the ICC’s ten-year history. However, the Council indirectly imposes limits on the Court’s jurisdiction by being selective with its referrals. For instance, the Council at one point had granted immunity to members of U.N. peacekeeping forces from nonparty states, though this is no longer the case. More recently, during an October 2012 U.N. Security Council debate focusing on the role of the ICC, several NGOs, such as Human Rights Watch and Amnesty International, called on the Council to employ a more consistent approach to its referrals. For instance, although the Council had referred the situations in Darfur and in Libya to the ICC, such a referral on Syria is unlikely.

Nonetheless, a Security Council deferral can be invaluable to attaining peace during a period of armed conflict. According to Ronald C. Slye and Beth Van Schaack’s International Criminal Law (2008), one case in point is suspending a prosecution to give effect to a de facto domestic “amnesty” before the ICC. Deferring to such an amnesty could be justified as triggering Chapter VII powers if the amnesty were included as part of a peace deal to end a serious armed conflict; thus, the amnesty could be characterized as part of an effort to address a “threat to the peace” or “breach of the peace.”  This “negotiated amnesty,” as opposed to a self-amnesty, can garner the long-term support of parties. Moreover, if abuses in a certain conflict are ongoing, an indictment by an international tribunal may complicate efforts to negotiate with the indictees and to attain an agreement to cease hostilities. (Radovan Karadžić and Ratco Mladić—indictees of the ICTY—were excluded from the negotiation of the Dayton Peace Accords although they had the “real capability of improving conditions on the ground.” They were also “presumably less inclined” to accept the negotiation results due to the risk of prosecution following a peace.) Yet, such a deferral would not provide the permanent immunity from prosecution that a de jure amnesty would. The Council can simply opt to not renew its deferral of a situation once peace is attained, and the accused could then be subjected to prosecution. Thus, although the time limited aspect of a de facto amnesty will limit impunity, it could prevent potential indictees from negotiating.

C. The Blocking Power

The Security Council has no blocking power unless there is a Chapter VII referral involved. The P5 can veto such a referral, but that is an issue to be decided within the parameters of the U.N. Charter, not the Rome Statute. This year, the Small Five Group (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland) put forward a U.N. General Assembly proposal calling on P5 members to consider “[r]efraining from using a veto” to block any Council action intended to “prevent[] or end[] genocide, war crimes and crimes against humanity.” Switzerland withdrew the proposal after facing strong pressure and lacking sufficient support.

*Mohammad Shouman is a JD-MA candidate at the George Washington University Law School and the Johns Hopkins University Paul H. Nitze School of Advanced International Studies. He is a law clerk for the Egyptian-American Rule of Law Association. Starting January 2013, Mohammad will be joining the George Washington University International Human Rights Clinic, and will be externing with the International Finance Corporation. You can follow Mohammad on Twitter (@MohammadShouman) and on his website.

By Mark Kersten

It came as no big surprise that the United Nations General Assembly voted to upgrade Palestine to non-member observer status. But, reflecting the reality that international criminal justice now goes to the very heart of Middle East politics, many are left wondering whether Palestine will join the International Criminal Court and request (once again) that the ICC investigate its conflict with Israel. Pondering this issue has left me deeply frustrated.

While it may not be wise to box oneself into a particular moral outlook, I consider myself to be a liberal cosmopolitan. Very briefly, that means that I believe in a politics where all human beings share fundamental individual rights and that when those rights are blatantly violated we, as a global community, have some obligations to respond. This political ethos, I believe, is also what guides most proponents of the ICC, not to mention other liberal cosmopolitan projects such as the Responsibility to Protect.

It is through this liberal cosmopolitan conviction that I view the ICC as inherently political but embodying the potential for fundamentally good politics. I criticize the decision-making of the ICC as well other actors in international relations, such as the UN Security Council, when they move the Court away from its liberal cosmopolitan premise and promise. Of course, this does not mean that I believe that the ICC should be deployed as a blunt instrument, forced down the throats of populations who legitimately seek alternative paths towards accountability and justice. That is far too hegemonic for my taste. But it seems to me, in the case of Palestine at least, that the citizens themselves want to see justice done and see the ICC as an institution through which they can achieve at least some degree of it.

Yet there is a rather convincing political argument to be made that the ICC should not investigate Palestine. In a recent post Kevin Jon Heller deftly covers this argument. Heller writes (in the comments):

I have no doubt that both Israel and the Palestinians have committed serious international crimes.  But I also believe it would be suicidal for the ICC to wade into the most politicized conflict in history — virtually guaranteeing that the US would revert to its previous hostility and that all of the Court’s other work would be ignored by the media and the international community. The Court’s long-term legitimacy is more important than any individual investigation, no matter how deserving of investigation a situation might be.

In my view, Heller is absolutely correct in noting that an ICC investigation of Palestine would seriously complicate the Court’s standing in international politics, likely undermine its legitimacy, and consequently hamper its ability investigate other situations in the future. And this exposes a serious and rather frustrating dilemma: it may be necessary to protect the institution that furthers liberal cosmopolitan aims (ie. international criminal justice) by undercutting its ability to achieve those liberal cosmopolitan aims in some cases.

Risking poor taste in quoting a previous blog post of mine, I re-read a piece I wrote on the potential of the ICC investigating Palestine in October 2011. I stand by these comments even more firmly today:

Justice in Palestine has less to do with justice than it has to do with politics. Recent events and reactions regarding Palestine’s application to the UN for recognition make it clear that we are nowhere near delivering justice on the basis of our responsibility to some abstract global citizenship. If we take our liberal cosmopolitan obligations and responsibilities seriously, then we should look at ourselves in the mirror and realize that some of humanity’s citizens have more rights than others. Some citizens are not just worse off but simply treated as being worse, as being less.

The case of Palestine perhaps exposes the hidden power inequalities within global liberalism and liberal cosmopolitanism. Those people in the most sensitive geopolitical regions would receive the benefits of a liberal cosmopolitan world last and not because they wanted it, but because, in some way they were “granted” it. Neither Palestinians, nor, frankly anyone in the world should be granted the ability to achieve justice. They should already have it.

And therein lies my frustration - in the apparent reality that in some cases it is necessary not only that power politics wins over liberal cosmopolitanism but that the victory of power politics may actually propel the aims of liberal cosmopolitanism. Indeed, in such cases, it may be that international criminal justice has to be saved from itself. For the time being, that means that those states who will do everything they can to prevent Palestinians and Israelis from seeing justice are likely to succeed. For many, this is nothing new; this is the ‘selectivity’ and the ‘real’ politics of international criminal justice. Still, that doesn’t make it any less frustrating. And it leaves a bad taste in my mouth.

Source: Justice in Conflict

By Dapo Akande

Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?

Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood.

Palestine and the ICC
Does the grant by the General Assembly of observer State status to Palestine mean that it is now possible for Palestine to ratify the ICC Statute? The short answer to this question is yes. However, the longer answer is that Palestine could have ratified the Statute prior to the General Assembly decision. As readers will recall, Palestine made a declaration in January 2009 recognising the jurisdiction of the ICC under Article 12(3) of the ICC Statute which applies to States not party to the Rome Statute. The ICC Prosecutor decided in April that it was not for him to decide on the validity of the Palestinian declaration but that it was up to the UN Secretary General to make the determination whether Palestine was a State that could make the Art. 12(3) declaration or that could ratify the Statute (see my previous post criticising the Prosecutor’s decision as well as Bill Schabas’ post on his blog). Past practice on whether an entity fails within the terms of a treaty provision that says that “all States” are entitled to ratify that treaty indicates that the Secretary General will consider an entity to be a State where it falls within the “Vienna formula” or where the General Assembly indicates to the SG that it considers the entity a State (see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 81, and the Opinion of the UN Legal Counsel of Feb. 1974) . The General Assembly decision that Palestine is an observer State will be sufficient indication to the SG that Palestine is a State and on that basis it is clear that Palestine can ratify the Rome Statute.

However, even prior to last week, Palestine fell within the Vienna formula and would have been regarded as entitled to ratify the Rome Statute. The Vienna formula indicates that an entity is to be regarded as a State entitled to ratify treaties open to all States, where that entity is a member of the UN or a UN specialised agency (or the International Atomic Energy Agency) or where it is a party to the Statute of the International Court of Justice. Palestine was already a member of one UN agency – UNESCO (see here) . In the past, the SG has been prepared to accept membership of a UN specialised agency as indicating that an entity is a State since the membership of such agencies is similar to membership of the UN General Assembly. Thus, acceptance of an entity as a State member of such an agency means that the entity is likely to be regarded as a State by the General Assembly and the SG need not look for actual General Assembly approval.

Palestine and the ICJ
As with the ICC, the recognition by the GA of observer State status to Palestine also makes it clear that Palestine can ratify the Statute of the International Court of Justice. However, as with the ICC, Palestine was able to ratify the ICJ Statute prior to this decision. Although the ICJ Statute is annexed to the UN Charter and membership of the UN automatically constitutes a State as a party to the ICJ Statute, a State can become a party to the Statute without becoming a party to the UN Charter. Many States became parties to the Statute before becoming members of the UN (eg, Switzerland, Nauru, Italy).

It is also important to remember that it is not just parties to the Statute of the ICJ that are entitled to use the Court. Art. 35(2) of the ICJ Statute provides that Court is open to States not party to the Statute, but only on conditions laid down by the Security Council. So Palestine can use the Court if it fulfil conditions laid down by the Council. Rather than laying down conditions for use by non-parties on a case by case basis, the Council has in SC Res 6 (1946) laid down general conditions that must be met by the non-party. So Palestine would not need to get specific council authorization to use the ICJ. Under SC Res. 6, the ICJ is open to a State not party to the Statute, if it has:

“ . . . deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter.”

According to paragraph 2 of that resolution, a declaration by a non-State party accepting the jurisdiction of the ICJ may either be particular (dealing with particular disputes) or general (dealing with all disputes or classes of disputes). A general declaration may be made as under Art. 36(2) of the ICJ Statute (the optional clause providing for compulsory jurisdiction) but such a declaration may not be relied on vis-à-vis parties to the ICJ Statute.

In short Art. 35(2) of the ICJ Statute and the conditions laid down by the SC are analogous to the declaration Palestine has made under Art. 12(3) of the ICC Statute.

However, saying that Palestine can use the ICJ does not mean that it can use it with respect to (or against?) Israel. For there to be a case between Palestine and Israel at the ICJ, there would still need to be a specific basis for jurisdiction. Israel does not accept the compulsory jurisdiction of the ICJ so the only way in which Palestine could initiate a case against Israel would be were there was a special agreement between the two to go to the ICJ by special agreement (hardly likely at the moment) or where some other treaty to which both are party gives the ICJ jurisdiction. So in addition to ratifying the ICJ Statute or making the declaration called for under SC Res. 6, Palestine would need to ratify a treaty to which Israel was party which also gave the ICJ jurisdiction. It is not clear what treaties would fall within that category.

The UN and Collective Recognition
Thinking more broadly than the position of Palestine before the ICC and the ICJ, one question that is raised by the recent action of General Assembly is whether Palestine should now be regarded, under international law, as a State for all questions for which that is relevant. The declaratory theory of recognition posits that recognition is at best declaratory of an existing Statehood and is neither required for the creation of, nor does it constitute Statehood. Under this theory, what is required for Statehood is the fulfilment of objective criteria for Statehood, under the Montevideo Convention and perhaps also under additional legal criteria. The declaratory theory of recognition is generally to be preferred (and is generally preferred) to its rival, the constitutive theory. However, acceptance of the declaratory theory should not be taken to mean that recognition is never constitutive. A distinction should be drawn between individual recognition and collective recognition.

Collective recognition, particularly collective recognition adopted within the institutional framework of the UN can have a constitutive effect (as explained in this recent paper by my Oxford colleague Jure Vidmar). For one thing, as has already been examined above, such collective recognition can have important constitutive effects within international institutions such that an entity that is collectively recognised is then treated as a State within international institutions where questions of statehood are relevant. Indeed one may argue that collective recognition should be constitutive because it amounts to a waiver by the international community of defects which may otherwise exist in claims of Statehood. In addition, it is a mechanism by which the international community can give effect to important community values that may affect claims of Statehood. For example, collective recognition of an entity that possesses the right to self-determination but does not possess an effective government or whose independence is in doubt, may be seen as a way of giving effect to the importance of the self-determination claim over and above the claims of effectiveness.

So, there are good reasons for arguing that Palestine is indeed a State under international law because of collective recognition. However, again this is not to say that it is the GA action which necessarily brought this about – the UNESCO vote was also an act of collective recognition. Also, Palestine was already recognised by 132 states before the GA vote. For now, I am unsure about whether to regard collective recognition on the basis of an aggregate of individual recognitions as the same as a single concerted act of collective recognition. I have also left unclear precisely what we should regard as collective recognition. However, I would suggest that where only 9 States oppose the act of recognition, we have collective recognition even though over 40 abstained.

Source: EJIL Talk!

by Kevin Jon Heller

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive:

The first fact considered by the Prosecutor, which is the widespread recognition of Palestine and its membership in international organizations, including United Nations bodies, is obviously favourable to the claim that Palestine is a State. The third fact – the refusal of the Security Council to authorize Palestine’s membership in the United Nations – should be of very limited relevance, because it tends to conflate United Nations membership with the existence of a State. The entire debate would be simple enough if the way to assess whether an entity was a “State” was to check whether it was a member of the United Nations.

But very clearly, the Rome Statute was drafted quite specifically in order to accommodate States that are not members of the United Nations. There was one very important State on everybody’s mind in 1998: Switzerland, which only joined the United Nations some years later. The Rome Statute might have been drafted to apply to United Nations Member States as well as to Switzerland, on an exceptional basis, but that is not in fact what it does. It applies to all States, whether or not they are members of the United Nations. So determining whether something is “a State which is not a Party to this Statute” by asking whether it is a member of the United Nations is purely tautological. It is the dog chasing its tail.

This is a critically important point.  Although international law’s requirements for statehood are notoriously vague, they do not include the UNGA’s imprimatur.  Thursday’s vote was “necessary” for one reason, and one reason only: the OTP demanded it.  That demand was never reviewed, much less approved, by the Court itself.  So it is entirely possible that the Court, if presented squarely with the issue, would conclude that Palestine qualified as a state under international law well before the UNGA vote (and thus could accept jurisdiction retroactive to that date).

Let me be clear: I am not saying that the Court would reach that conclusion.  It is entirely possible, perhaps even likely, that the judges would be extremely cautious and refuse to make an independent determination concerning when Palestine became a state.  But they would certainly be well within their rights to determine that issue for themselves.

I do not want to turn this post into an argument about when Palestine became a state.  My basic point is that it is incorrect to assume that Palestine could not have been a state before the UNGA’s vote last Thursday.  That said, would it be irrational for the Court to conclude that Palestine existed as a state at least prior to Operation Cast Lead in December 2008?  After all, by that time more than 125 states had recognized Palestine — far more than the 95 or so that currently recognize Kosovo (a list that includes the United States).  Moreover, a strong case can be made that Palestine has long satisfied the objective requirements for statehood provided by the Montevideo Convention — population, defined territory, government, and the capacity to enter into relations with other states. That list of requirements is obviously controversial, and subsequent developments may well have tightened the customary requirements for statehood.  As this article for the Middle East Policy Council nicely lays out, though, Palestine may well satisfy even those tighter requirements — which focus on the absence of contestation over defined territory and “effective control” over government and population — at least since Israel withdrew from Gaza.

Again, I am not claiming to know exactly when Palestine became a state.  That would be for the Court to decide should the Palestinians make the (likely ill-fated) choice to try to accept the Court’s jurisdiction retroactively.  But it is a mistake to assume, as Jennifer and others do, that any such claim would necessarily fail because Palestine was not a state prior to last Thursday.

Source: Opinio Juris

By Colum Lynch

Today’s U.N. General Assembly vote elevating Palestine to a “non-member observer state” will do little to confer Palestinians the trappings of a truly independent state.

But what it will do is provide the Palestinians with a ticket to the International Criminal Court (ICC), where membership is available to all states, not just full-fledged members of the United Nations. It will also provide the Palestinians with a new lever to pressure Israel from continuing its expansion of Israeli settlements.

The prospects of Palestinian membership in the ICC, which could place Palestinian territories under the court’s jurisdiction for the first time, has alarmed Israel and the United States, who fear it may lead to the prosecution of Israeli soldiers.

It has also rattled Europeans, who support the ICC but fret that Palestinian membership in the tribunal would complicate efforts to restart peace talks.

President Barack Obama has leaned heavily on Palestinian President Mahmoud Abbas to put off his U.N. statehood bid. In a sign of the importance, U.S. Deputy Secretary of State William Burns promised Wednesday that if Abbas backed away, Obama would re-engage as a mediator in 2013, the Associated Press reported.

“This resolution is not going to take them closer to statehood,” Victoria Nuland told reporters on Wednesday. “It does nothing to get them closer to statehood, and it may actually make the environment more difficult.”

Britain has led diplomatic efforts to persuade Abbas to offer assurances that he will not join the Hague-based court until the Middle East Peace Process is concluded. Britain has also pressed Abbas to agree to resume negotiations with Israel after today’s vote without preconditions.”

The Palestinians’ U.N. envoy Riyad Mansour, told reporters this week that his government had no intention of immediately joining the ICC but that it intended to keep the option on the table. He also hinted that the Palestinians would consider going to the court if Israel continues its settlement policy.

“I don’t believe that we are going to be rushing the second day to join everything related to the United Nations, including the ICC,” he told reporters this week. “But, at the same time, it is not fair for us to tie our own hands [against] all the possibilities that could be available to us.” Characterizing Israeli’s settlement policy as war crime, Mansour raised the possibility of going to the court if Israel continues to expand settlements.

There is a provision in the Rome Statue, the treaty establishing the international tribunal, that could apply to Israel’s settlement policy. It defines, as a war crime, the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

Christian Wenewaser, Liechtenstein’s U.N. ambassador and the former president of the ICC’s assembly of states parties, said that the Palestinians cannot dictate which specific crimes the ICC’s prosecutor might choose to examine, and that it could only invite the prosecutor to investigate a general situation where large-scale crimes have been committed.

That, he noted, raises the prospects that the prosecutor could turn her sights on Palestinian extremists who have been firing rockets into Israel. Wenewaser said he believes that the Palestinians will not immediately approach the court. “I think they will let this sit for a while,” said “They will just use the threat of resubmitting [a claim] as leverage to stop the settlement policy.”

In January 2009, the Palestinians appealed to the Hague-based criminal court to open an investigation into Israeli conduct during a three-week operation in the Gaza Strip that began in December 2008. Earlier this year, the court’s then-prosecutor, Luis Moreno-Ocampo, said he lacked the authority to rule on the decision.

Today’s votes leave the Palestinians two main options: they can either resubmit their request to the new prosecutor, Fatou Bensouda, as a U.N.-recognized observer state, potentially providing the court with jurisdiction on past crimes. They can also become a member of the International Criminal Court, and pursue a prosecution there.

Jim Goldston, the executive director of Justice Initiative at the Open Society Foundations, said that there are a number legal hurdles that must be crossed before the court could decide whether to take on an investigation in Israel. For one, it remains unclear how the prosecutor could determine the territory under which it can exercise jurisdiction.

It also remains unclear whether the prosecutor will have jurisdiction over alleged crimes dating back to 2002, when the ICC treaty came into force, or only those committed after Palestine becomes a member of the court. Also, the International Criminal Court’s treaty grants preference to national prosecutors to carry out prosecutions, if they can demonstrate the have the means and will to do it. Israel would likely to argue that its court’s are capable and willing to conduct credible investigations into alleged war crimes in Palestinian lands.

Meanwhile, Goldston said that placing Israel within the court’s possible jurisdiction would help address complaints, particularly within Africa, that the court only pursues war criminals that lack powerful patrons.“The ICC has been plagued by question of selectivity and alleged double standard, the idea that certain states are subject to the law, and others have political protection, and are not subject to the law. This would open up the possibility of more equitable administration of justice. I think this would be a positive thing.”

But that could come at the cost of the ICC’s improving relationship with the United States.

Source: Turtle Bay- Foreign Policy Magazine

*Colum Lynch can be followed at @columlynch

By Janet Anderson for JiC.

Simone Gbagbo, whose arrest warrant by the ICC was made public on Thursday, is charged with the crimes against humanity of murder, rape and other forms of sexual violence, other inhumane acts and persecution. The warrant against her describes how she was part of the inner circle who organized post election violence in the Ivory Coast, in 2010 and 2011, targeting civilians who were seen as supporters of her husband – Laurent Gbagbo’s – political rival Alassane Ouattara or from specific ethnic or religious communities. The warrant notes that while she was “not elected, Ms Gbagbo acted as an alter ego for her husband, exercising the power to make State decisions.”

But Simone Gbagbo is not the first woman to be charged by an international court for crimes against humanity. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) have also tried and sentenced a woman.

Pauline Nyiramasuhuko at the ICTR

Pauline Nyiramasuhuko was sentenced to life imprisonment when she became the first woman to be convicted of genocide and crimes against humanity by an international court. She was the former Rwandan Minister of Women’s Development and was tried alongside her son Arsène Shalom Ntahobali, who had been a student prior to the genocide, as well as four others, in what was known as the ‘Butare trial’.

The judgment describes what happened in 1994 in the area of Butare as refugees took shelter from the violence engulfing the country. It details how local leaders including Nyiramasuhuko armed and directed the activities of the militia group the Interahamwe. The judgement declares that

“The evidence presented by these survivors, and accepted by the Chamber, is among the worst encountered by this Chamber; it paints a clear picture of unfathomable depravity and sadism.”

The court, in a trial which lasted for 10 years, involving 189 witnesses, heard how Nyiramasuhuko asked her son to organise militias to take part in the kidnap and rape of women and girls in Butare. In the end, Pauline Nyiramasuhuko was convicted of genocide and of conspiracy to commit genocide as well as rape as a crime against humanity. Ntahobali, who was in his early 20s at the time of the genocide, was also found guilty and sentenced to life.

“Nyiramasuhuko, Ntahobali, Interahamwe, and soldiers went to the Butare préfecture office to abduct hundreds of Tutsis. Many were physically assaulted, raped, abducted, and taken away to various places in Butare, where they were killed. During the course of these repeated attacks on vulnerable civilians, both Nyiramasuhuko and Ntahobali ordered killings… Nyiramasuhuko aided and abetted rapes and is responsible as a superior for rapes committed by members of the Interahamwe.”

Upon her conviction, the BBC ran a profile of Nyiramasuhuko. It describes how she would also force people to undress before loading them on to trucks, taking them to their death.
Earlier, a 2002 New York Times article contacted several of the witnesses in the case, along with Pauline’s relatives, in order to try to establish the motivation behind her role in the genocide. It quotes one witness as saying:

“Pauline goaded the Interahamwe, commanding, ”Before you kill the women, you need to rape them.””

And in another interview:

“One Interahamwe, a young man named Emmanuel Nsabimana, told me through a translator that Pauline ordered him and the others to burn the women. Nsabimana recalled that one Interahamwe complained that they lacked sufficient gasoline. ”Pauline said, ‘Don’t worry, I have jerrycans of gasoline in my car,’ ” Nsabimana recalled. ”She said, ‘Go take that gasoline and kill them.’ I went to the car and took the jerrycans. Then Pauline said, ‘Why don’t you rape them before you kill them?’ But we had been killing all day, and we were tired. We just put the gasoline in bottles and scattered it among the women, then started burning.””

The article also explains how important the ICTR cases have been in establishing rape as an international crime. And how devastating a crime it was in Rwandan culture.

Gerald Gahima – who was then Rwanda’s Prosecutor General says, ”Rape was the worst experience of victims of the genocide. Some people paid to die, to be shot rather than be tortured. Their prayers were for a quick and decent death. Victims of rape did not have that privilege.”

But while Nyiramasuhuko was “only” charged with rape as a crime against humanity, in the judgment, the bench exclaimed that it had been presented with evidence that could have found guilty her with rape as genocide.

“Although the evidence clearly established Nyiramasuhuko’s direct role in ordering Interahamwe to rape Tutsi women at the Butare préfecture office, the Prosecution only charged Nyiramasuhuko with responsibility as a superior for rape.”

Many other women have been convicted of genocide in Rwandan courts, including two nuns were found guilty of participating in the genocide by a court in Belgium.

Biljana Plavsic at the ICTY

The other woman to have been tried at an international court is Biljana Plavsic, the co-President of the Bosnian Serb leadership, who was convicted at the ICTY of being both directly responsible of, and being part of a joint criminal enterprise to commit, crimes against humanity.

Plavsic had been notorious during the former Yugoslav war for some of her reported comments about Serb racial superiority to Bosnians. Even Vojislav Šešelj, nationalist politican, who gave evidence at the Milošević trial, described her as “insufferably extremist, even for me.”

In the end, Plavsic was sentenced to 11 years’ and earned early release for good beahviour in 2009. She had initially first pleaded not guilty at the ICTY. Then, in a sudden reversal she pleaded guilty. The plea bargain deal with the prosecution saw the two counts of genocide and four other counts of crimes against humanity against her dropped. Her 2002 plea is available on the ICTY website. (The video is in the Outreach section under ‘statements of guilt’ just under ‘voices of the victims’.)

“You have heard, both yesterday and today, the litany of suffering that this produced. I have accepted responsibility for my part in this. This responsibility is mine and mine alone. It does not extend to other leaders who have a right to defend themselves. It certainly should not extend to our Serbian people, who have already paid a terrible price for our leadership. The knowledge that I am responsible for such human suffering and for soiling the character of my people will always be with me.”

Despite her acceptance of personal guilt, following her release Plavsic gave an interview to a Swedish magazine in 2009 in which she retracted her guilty plea:

“I sacrificed myself. I have done nothing wrong. I pleaded guilty to crimes against humanity so I could bargain for the other charges. If I hadn’t, the trial would have lasted three, three and-a-half years. Considering my age that wasn’t an option.”

Simone Gbagbo at the ICC

It remains to be seen how Simone Gbagbo will defend herself if she is ever reunited with her husband at the ICC. While there is no guarantee that she will be transferred to The Hague, if she is eventually handed over to the ICC, she will be the first woman tried at the Court but far from the first to be tried at an international criminal tribunal.

Source: Justice in Conflict