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Libyans rejoiced last Thursday upon hearing of the death of former Libyan leader, Muammar al Qaddafi, who was captured by National Transitional Council fighters in Sirte. This was seen as a victorious moment in the country he had ruled for 42 years and the interim government said it would officially declare Libya’s liberation on Sunday in the eastern city of Benghazi, where the revolution to oust him began in February. Under a United Nations Security Council resolution to protect Libyan civilians, NATO has been conducting aerial assaults on Colonel Qaddafi’s forces since March. These assaults are credited to have helped the rebel forces overthrow him.

As explicit footage of Qaddafi’s dead body was released as proof of his death, requests for an investigation were made by organizations such as Amnesty International, Human Rights Watch, and the U.N. Human Rights Watch has stated that the deliberate killing of a person in custody is a war crime that could be prosecuted by the International Criminal Court (ICC). Since then, the new Libyan authorities have been split on the issue, some seeing Qaddafi’s death as a just end, hoping to close the door on this chapter in Libyan history. Others, however, have expressed a desire to carry out an investigation. Mustafa Abdel-Jalil, head of the ruling National Transitional Council (NTC), said the NTC had set up a committee to examine the circumstances leading to the deaths of Qaddafi and his son Mutassim in Sirte, adding that Libyans would have preferred to see their deposed leader stand trial and be held accountable for his crimes. The missed opportunity to try Qaddafi through legal means at the ICC would have been advantageous to Libya’s transition for a number of reasons: First, handing over Qaddafi to the ICC would have improved the perception of legitimacy for Libya’s new leaders, in a period when the newly formed NTC remains fragile. Second, for the victims of Qaddafi’s regime, which was at times brutal and ruthless, a trial would have given voice to those victims, and revealed truths about the details of his crimes, which may now – in light of his extrajudicial killing – remain buried. Third, Qaddafi’s death most likely constitutes a war crime, and it is therefore the responsibility of the international community to see it dealt with as such.

Qaddafi’s Death in the realm of International Law

Putting aside Libya’s internal affairs for a moment, it is important to note that Qaddafi’s killing was seen by the international community as an extrajudicial act. Following a unanimous decision by the United Nations Security Council to refer Libya to the Prosecutor of the International Criminal Court, the ICC had issued an arrest warrant for Qaddafi as well as his son, Saif al Islam and the Director of Military Intelligence, Abdullah Al-Senussion. They have been indicted on charges of crimes against humanity such as the attack on unarmed civilians. The ICC is an independent, permanent criminal court mandated to investigate and prosecute persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes if national authorities with jurisdiction are unwilling or unable to do so.

The death of Qaddafi has prevented him from further imposing injustices upon his people, but it leaves the potential for his supporters to retaliate and the continuation of civil strife. Qaddafi’s crimes could have been accounted for by other means such as having the leader stand trial, either at the ICC, or locally as is being done in neighboring Egypt. Such trials are seen as being more conducive to post-revolutionary peace in that citizens stand a chance at material rewards and institutional changes, far more valuable than the ephemeral sense of victory tied to reprisal. In standing trial, Qaddafi could have revealed more sources and other culprits who could also stand trial and be removed from Libya’s future political arena. By utilizing institutions such as the ICC, greater transparency within Libyan politics is possible, and Libyan citizens can strengthen their own political and judicial institutions as they move beyond the current transitional phase. This would also set a system of accountability for future leaders, establish a precedent of seeking justice and finally, help fulfill the role for which ICC was formed.

The Reckoning: Battling for Justice in the Arab Spring
An IJCentral – Skylight Pictures Outreach Project

The Reckoning is a film produced by Skylight pictures dealing with the ICC’s role in bringing justice to violence-affected countries, such as Libya. It brings to light the purpose, processes, and progress that the ICC has made since its formation in 2002. A Middle East and North Africa (MENA) outreach program has been initiated to increase awareness about the ICC and hopefully to see the ICC recognized as a useful tool in dealing with national injustices in this region just as it has been useful for communities in Africa in the past.
Only 4 of the 22 Arab League states are presently states parties to the Rome Statute of the ICC. They are Comoros, Djibouti, Jordan, and Tunisia, which acceded on June 24, 2011 after the toppling of former president Ben Ali. Tunisia’s accession shows that there is practicality for MENA countries to take interest in what the ICC stands for. Skylight hopes to engage citizens in this region through an examination and discussion of the ICC and will be reaching out to them through a Facebook page and a Twitter account, which we hope will become an open forum for discussion on the ICC’s potential role to shape the region’s transition to democracy and justice.

As this outreach develops, I will be keeping a journal on IJCentral of our experiences working with the newly translated Arabic version of The Reckoning, relating what we learn along this journey about justice-seeking in the Middle East, and how Arab citizens are responding to the increased engagement of the ICC in the region. Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com

Follow the journey on Twitter for a @JustMiddleEast

October 24, 2011
David Bosco reports on the new world order for The Multilateralist.

It now appears very likely that Moammar Gadhafi was killed at the hands of his captors. Human rights groups are calling for an inquiry and the International Criminal Court has reportedly asked to examine the former leader’s body (it’s not at all clear that the Libyan authorities will acquiesce to that request). The question that is already arising is whether Gadhafi’s killing constituted a war crime that could be investigated by the ICC. The answer, in short: Yes, it was likely a war crime; and no, the ICC is not likely to prosecute anyone for it.

First, the question of whether Gadhafi’s execution constitutes a war crime that falls under the ICC’s jurisdiction. To be a war crime, there’s got to be a war (or state of armed conflict). Here, there’s no doubt that there was an armed conflict underway when Gadhafi was killed. Does killing a combatant who has surrendered constitute a crime? Quite clearly. The ICC statute includes in its list of war crimes the following:

Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion…
What’s more, the ICC’s jurisdiction over crimes committed in Libya extends to the actions of the NTC and anti-Gadhafi fighters just as it does to Gadhafi’s own men. The Security Council referred the “situation” in Libya to the court, not the particular behavior of one party or another.

But the fact that the ICC would have jurisdiction over Gadhafi’s killing does not answer the question of whether it’s likely to investigate. The court has no obligation to prosecute all or even most of the crimes that fall under its jurisdiction. In fact, the ICC’s governing statute clearly guides the prosecutor away from isolated acts toward large-scale behavior:

The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

The choices of the prosecutor and the rulings of the ICC judges in recent years have made abundantly clear that the court prioritizes large-scale crimes that form part of a broad pattern or practice. Given that emphasis, it is unlikely the court will ultimately prosecute anyone for Gadhafi’s killing unless they decide that there existed within the anti-Gadhafi forces a broad practice of war crimes or crimes against humanity and that the Gadhafi killing was a manifestation of that.

What’s more, the new Libyan authorities could foil any ICC investigation by carrying out their own investigation. With a national investigation underway, the ICC must yield unless it determines that the investigation is a sham. To the chagrin of many (mostly outside Libya, it seems), Gadhafi will never now see a courtroom in the Hague; neither will whoever killed him.

After a morning of confusing and, at times, conflicting stories on the capture and killing of Colonel Muammar Gaddafi in Libya today, it appears that a consensus has been reached among global news organisations that Gaddafi is indeed dead. The National Transitional Council has confirmed the ex-Libyan leader’s death, where he was, according to reports, hunkered down in a hole in the ground outside his home town of Sirta - reminiscent of the capture of Saddam Hussein in December 2003.

If Gaddafi is in fact deceased this will be a missed opportunity to see punitive justice done for the crimes committed during his regime. The ICC arrest warrants for Gaddafi, his son and brother-in-law, are legally binding. For the NTC to flout these UN mandated warrants is a discouraging indication of their willingness to participate in a constructive transitional justice process. As the news settles, and Gaddafi’s death or capture is confirmed, IJCentral will post further editorial on this monumental day for Libya, the Middle East, and the entire international community.

The IJCentral Team

Post Script: A photograph of a bloodied Gaddafi have emerged online, which appear to confirm reports of his death. IJCentral does not see fit to post that photograph here. 

A few weeks ago, a Symbolic Court Against Sexual Violence within the Colombian Armed Conflict met in Bogota, to deal with a range of cases related to sexual violence committed by armed groups in the Colombian internal conflict. This symbolic tribunal was integrated by five renowned experts on Women’s Rights .

The cases submitted to the tribunal result from a thorough selection process in which civil society organizations met with victims and survivors. The idea was to bring forth the victims without putting them at further risk, and looking to protect their identities, life and integrity. The Court was conceived as a place “aimed at making visible to the public the impact sexual violence has had in the context of armed conflict, especially emphasizing the rights of victims and the need to overcome the impunity that has characterized these crimes, and demand timely and effective attention by the state.”

This Tribunal made some recommendations urging the Colombian state to uphold their international obligations regarding the prevention, investigation, prosecution and judgment of gender violence. Colombia is a State party to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination, the American Convention of Human Rights, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and the Rome Statute of the International Criminal Court, among others. It also considered the Report on the human rights situation from the office of the High Commissioner for Human Rights, in which it recommends the Attorney General’s office to adopt a policy to investigate the cases of gender violence and proceed with the investigations of the case already submitted.

Gender Violence and War

That gender violence has bean employed as a weapon of war, affecting women of every race, religion, ethnicity, age and status, sadly does not come as a surprise.

Unfortunately, the international community has continually failed to prevent the widespread and systematic violence against women in the context of armed conflicts.

In the Colombian case, the tribunal reported that among the crimes committed by the armed groups are: rape, enforced nudity, enforced contraception, sexual slavery, forced pregnancy and other gender crimes committed alongside other crimes, such as killing, enforced disappearances, kidnapping and torture. The judges said there is systematic gender violence in the Colombian armed conflict and that gender crimes are used as a weapon of war by the public forces, by the paramilitary groups and by the guerrillas, with the clear goal of “obtaining benefits in the developments of the hostilities.” Therefore, the Tribunal concluded, that if the Colombian authorities do not take the necessary steps – that is to investigate and prosecute those responsible for these types of crimes- then the ICC should address them.

Colombia is State Party to the ICC since November 2002 and its Criminal Code has a substantial regulation regarding international crimes. Nonetheless, it was also one of the two countries, along with France, that subscribed the disposition of Article 124, not accepting the ICC jurisdiction over war crimes for 7 years.

Colombia has been suffering an internal conflict for more than four decades; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic.

Colombia and the ICC: unresolved business?
The situation in Colombia has been on the ICC’s radar since, at least, 2006. At that time, the Office of the Prosecutor (OTP) declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against the allegedly most serious perpetrators, paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia.

The Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.  Colombia is classified as a “situation under analysis.” But the primary responsibility of investigating grave crimes remains under the jurisdiction of the Colombian tribunals. The ICC considers the Colombian judiciary capable and willing to carry out investigations of the crimes under the Court’s jurisdiction.

However, civil society organizations, including this symbolic Tribunal, consider that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly.

Despite several visits by the OTP and other ICC officials, events and conferences, including the participation of President Santos in the Assembly of States Parties (ASP) last year, members of the International Federation of Human Rights (FIDH) and its league members – among other important NGOs - continue to call for ICC action in Colombia.

A recent report by Amnesty International notes the lack of reliable official statistics, and the fear around reporting gender-related crimes. It adds that the statistics available “do not clearly indicate cases of sexual violence against women and girls that may be conflict-related” and that “even when women muster the courage to report a case of rape or sexual violence, these are rarely investigated effectively.”
Before the current Prosecutor leaves….
… he must finish what his office started. Despite the efforts of the judiciary, the Constitutional Court and current laws adopted to acknowledge the rights of victims, we believe that the Office of the Prosecutor must provide a direct answer determining if the Colombian situation should be advanced to the status of official investigation.

Despite the 7-year moratorium for war crimes, at the very least all parties to the conflict have perpetrated crimes against humanity, including sexual violence as established in Art. 7.1.G of the Rome Statute. Moreno Ocampo leaves office next year and one of the debts he is leaving behind is the uncertainty regarding Colombia. 

Fortunately he still has time to make a final decision, regardless of its outcome.

—-

Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

Exclusive blog series on the ever-changing relationship between the United States and the International Criminal Court (part 2 of 3).

In the first instalment of this blog, it was determined that the Bush administration, although initially belligerent towards the International Criminal Court, was not the only belligerent domestic actor. In fact, it was discovered that the Bush administration actually softened their stance on the ICC as their tenure developed.  The result of this initial analysis is that opposition to the ICC appears neither partisan nor necessarily administration specific, but something more institutional and interest-based.  With that as our foundation, enter the Obama administration to the ICC fray. 

As a candidate for President of the United States Barack Obama’s support for the ICC could be described as lukewarm at best.  During the election process the Obama camp mentioned the ICC once and even this statement was brief in nature.  Then candidate Obama stated that the ICC would be a situation that his administration would look at—he would counsel with his generals and military personnel and then they would approach the subject at a later date.  In short, he danced around the issue of the ICC and possible US support under his administration, never providing a definitive statement on his sentiments towards the Court.  This despite his definitive acceptance of a more multilateral approach to foreign policy and a purported break from past Bush administration policies.  ICC supporters latched onto the latter statements, hoping that such multilateral policies would result in eventual acceptance of the Court.

Since settling into office, the Obama administration’s ambivalence appears to be shifting to engagement, with the result being some movement towards creating a meaningful relationship with the Court and the notion of upholding the international justice structure.  This has been clearly seen in the US decision to obtain observer status for the ICC review conference in Kampala.  In the run up to this conference the United States took what appeared to be a very congenial position towards the Court.  Stephen Rapp, US Ambassador-at-large for War Crimes, repeatedly confirmed the United States historical relationship to the pursuit of global justice and the desire to build on this precedent in the future.  In October 2009, he stated that the US policy towards the ICC was under review.  Secretary of State Clinton went further than this stipulating, “it was a great regret” that the United States was not a member state.  Even President Obama confirmed his desire for strong forms of international justice in his May 2010 National Security Strategy:

From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law. 

But this should not be taken as evidence of Obama’s clear and definitive support of the ICC and its mandate.  Within this statement one can discern the real nature of Obama’s interpretation of the emerging international justice structure and the US role in it.  Every statement made by the administration involves some reference to establishing a Court that parallels and advances US interests.  This type of rhetoric is more reflective of a hegemonist position of foreign policy than a multilateral liberal ethical one (although there may be point of intersection that needs to be further explored).  It appears that the Obama administration is in favor of strong international forms of justice, but only those that are either controlled by the United States and serve their interests or exempt the US from their jurisdiction.  In general, the idea of American exceptionalism remains the policy of the day, but with a less belligerent method.

The resulting policy is one in which the United States wants to employ the institutions of international justice to serve their interests but do not believe these rules and processes apply to the United States.  The multilateral rhetoric that seemingly parallels a more just global order does not conform to the actions of the United States within this structure, thus placing Obama in a similar position to the latter part of the Bush administration and/or the policies of the Clinton administration.  It is a friendly relationship but not truly supportive of the Court as an independent form of justice.

Two prime examples of this hegemonic action are the recent vote on Security Council Resolution 1970 and the US decision to assist Uganda in quelling the Lords Resistance Army (LRA) threat.  The UNSC Resolution grants the ICC jurisdiction in the current case concerning Libya.  However, this resolution is very similar to the Darfur Resolution (1593) approved under the Bush administration in that it exempts the United States from prosecution.  Maybe this vote was a step forward in US-ICC relations, since Obama voted in favor of the resolution as opposed to the Bush administration’s abstention.  Clearly the Obama administration wants to pursue some form of justice for the accused in Libya, but in a Nuremberg style system of justice that assures the United States that its personnel will not face prosecution.

This scenario plays out again in the US decision on Uganda.  Last week the Obama administration decided to send a group of advisors (military personnel) to Uganda to assist their government in the removal of LRA leader Joseph Kony.  The ICC issued an arrest warrant for Joseph Kony on July 8, 2005, but to date have not been able to fulfill that warrant.  Obama’s decision appears beneficial to the ICC and its mandate because ostensibly, this provides further assistance to the Court in capturing and extraditing Kony to The Hague.  But again, before ICC supporters view this as full acceptance of the ICC by the Obama administration, do not forget that the US has Uganda’s signature on a BIA.  This once again provides the administration assurances that its personnel will not find themselves in the dock at the Hague.  This is another ICC-friendly advance by the United States, without moving to full acceptance of the Court and its mandate.

Ultimately, the one step that would provide real movement towards acceptance of the ICC is reinstating the United States signature to the Rome Statute.  In order to accomplish this, the administration would simply deliver a note to the United Nations stating that said signature is reinstated.  To date this has not happened and the Obama administration continues to claim that ICC policy remains under review.  The one definitive step they have taken is to publically state that the Rome Statute will not come up for ratification any time soon.

So where does this leave US-ICC relations?  It is clearly not the belligerent relationship that existed 10 years ago; but it is also not the full acceptance that most global justice advocates desire.  It seems that the ICC-friendly policy will continue as long as the Court can assist the United States in fulfilling its national interest.  But this is such an ambiguous term—so what is national interest?  In the third and final installment of this blog series, I will take a look at US national interest as it pertains to international justice and what this might mean for future US-ICC relations. 

—-

Eric K. Leonard currently holds the Henkel Family Endowed Chair in International Affairs at Shenandoah University.  He has written and presented extensively on the International Criminal Court including journal articles, encyclopedia entries, case studies and a book entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court.

October 14, 2011
New York Times Blog
(Original Article)

As my colleagues Thom Shanker and Rick Gladstone report, “President Obama said Friday that he had ordered the deployment of 100 armed military advisers to central Africa to help regional forces combat the Lord’s Resistance Army, a notorious renegade group that has terrorized villagers in at least four countries with marauding bands that kill, rape, maim and kidnap with impunity.”

In Mr. Obama’s letter explaining the deployment to Congressional leaders, the president wrote that “U.S. military personnel with appropriate combat equipment” would work with armed forces in Uganda, South Sudan, the Central African Republic and the Democratic Republic of Congo “that have the goal of removing from the battlefield Joseph Kony and other senior leadership of the L.R.A.”

Just after the deployment was announced, Andrew Exum, a former United States Army officer who blogs about “small wars and insurgencies” under the pen name Abu Muqawama, observed on Twitter that Human Rights Watch, which launched a sophisticated media campaign calling for such an intervention a year ago, has now “successfully lobbied the Obama administration for U.S. military action in two African counties: Libya and Uganda.”

Mr. Exum also joked that American commanders should probably start paying more attention to the human rights group’s campaigns for humanitarian intervention, since they seem to be so effective.

The Human Rights Watch campaign for intervention, which began last November, included direct appeals for help from victims of the Lord’s Resistance Army in handwritten letters and an emotional video titled “Dear Obama.”

Ken Roth, the executive director of Human Rights Watch, was traveling and unavailable for comment on Friday, but he did post two brief updates on his Twitter feed, in which he welcomed and defended the deployment.

Mr. Roth also posted a link to an article he wrote last year for Foreign Policy in which he had argued that “there is no better case for the humanitarian use of force than the urgent need to arrest Joseph Kony, the ruthless leader of the Lord’s Resistance Army (L.R.A.), and protect the civilians who are his prey.”

In that article, Mr. Roth also explained that a small number of American Special Forces troops could likely do the job, since “the L.R.A. is not large — an estimated 200 to 250 seasoned Ugandan combatants, plus at least several hundred abductees — but as Ugandan President Yoweri Museveni recently told me, Uganda lacks the special forces, expert intelligence, and rapid-deployment capacity needed to stamp out this enemy.”

In July 2002, the Republic of Honduras ratified the Rome Statute of the International Criminal Court (ICC), thus becoming the 76th state party to the treaty. By joining the ICC system, the Honduras government committed itself to prosecuting those responsible for crimes against humanity, genocide and war crimes, if ever committed on its soil or by its nationals.
Honduras’ ratification signified and illustrated a decisive step to fight impunity and respect human rights in the Central American country. Human rights organizations worldwide, and the international community in general, welcomed this advance and viewed it as an opportunity for Honduras to heal from its past and progress toward a future based on the rule of law and respect for human rights.
Like many Latin American countries, Honduras has had a history of human rights violations and the issue of dealing with the past is a conflictive topic, particularly the very recent past, which tends to be a controversial issue in Honduras.

The Coup and alleged crimes

Seven years after the ratification of the Rome Statute, the democratic order was interrupted: in June 2009, Honduran President Manuel Zelaya was forcefully removed from his office by the military and exiled to Costa Rica. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras in November 2009 in a much-disputed election. 
The forceful removal of Zelaya and the ensuing disintegration of democracy set Honduras on a violent path and crimes against humanity are alleged to have been committed. NGOs communicated their concerns on the alleged crimes to the Office of the Prosecutor of the International Criminal Court starting in September 2009. It is alleged that some Honduran nationals representing the economic elite – in partnership with high-level officials from the military and government – are responsible for the perpetration of crimes against humanity as defined under article 7(h) of the Rome Statute. Given that the Honduran domestic judicial system never investigated and prosecuted those allegedly responsible for the crimes, civil society continued to press the ICC to investigate the matter.
These efforts culminated in the Argentine ICC Chief Prosecutor Luis Moreno Ocampo announcing publicly his decision to conduct a preliminary analysis of the situation in November 2010. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

Reign of Impunity, Lack of Accountability

In the last year and a half, NGOs have called on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence. Then, on 26 January 2010, the Supreme Court of Justice acquitted the military regime that carried out the coup against Zelaya. The same day, the National Congress passed the Amnesty Act for political crimes committed in the context of the coup.

To date, the Supreme Court of Justice has not yet resolved the applications submitted for the enforced deportation of former President Zelaya and former Minister of Foreign Affairs Patricia Rodas. No one has been held accountable, not even for common crimes. In addition, all the high-level officials involved in the coup remain in office. The highest-ranked military officer Romeo Vásquez Velásquez- who personally led the coup- is an official of the current government and has announced his intention to run for the presidency in 2013.
Moreover, in 2010, the Comité de Familiares de Detenidos y Desaparecidos en Honduras (COFADEH), denounced the fact that more than a hundred corpses were dumped in mass graves, which was never investigated by the local authorities. These facts point to a resounding lack of interest from the judiciary, as well as the lack of capacity to carry out the identification of victims and prosecute those responsible for these crimes. The situation – this level of inaction – represents the policy followed by the Honduran state, oriented to avoid justice and redress for victims and their relatives. It is plainly evident that Honduras has not complied with the duties emerging from the Rome Statute and other important human rights instruments. 
In its 2009 report, the Inter-American Commission of Human Rights stated that the highest judicial organ in Honduras systematically denies justice to victims of human rights violations, even as those crimes are still being committed. The increase in violence and subsequent loss of human lives qualifies Honduras as one of the most violent and dangerous countries in the Americas.

If the commission of crimes still continues after the coup it is because those responsible remain at large. In this context of systematic and widespread violence it is worrisome that killings, enforced disappearances and repressive actions continue and increase, particularly against leaders of the opposition and their relatives, human rights activists, journalists, peasants and social leaders.

Nunca más?

Military regimes, enforced disappearances, crimes against humanity, genocide and Nunca más are words often associated with Latin America in the ‘60s, ‘70s and ‘80s. Nevertheless, in the case of Honduras some of these words currently characterize the country.
The reign of impunity has led to a point where the ICC should exercise its jurisdiction without further delay; more delays in the process of justice works against the deterrent effect that the ICC should have and against its mandate, particularly given that there are no ongoing cases into those that the ICC could potentially try.

Victims have the right to justice.

In a country where the judicial system seems to be unable and unwilling to investigate and prosecute the gravest crimes, the ICC represents a hope for them and for future generations.

It is time to act.

——

Mariana Rodríguez-Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe

Verenice Bengtsson holds a BA in Law (Universidad Nacional Autónoma de Honduras), Postgraduate diploma in Human Rights (Lund University) and MA Candidate (University of Malmö).

In December this year, a little-reported process will conclude when those 118 States who are parties to the Rome Statute of the International Criminal Court (ICC) elect a new Prosecutor. There are many important decisions facing the world’s diplomats, including those gathered at the UN General Assembly this autumn, but though little-noticed this decision is no less momentous. The process must result in the appointment of the most qualified candidate, and not, as is too often the case when top international jobs are filled, the person thought least offensive to the most countries.

The ICC Prosecutor and the office he or she presides over carry a heavy responsibility—to bring to international justice the perpetrators of genocide, crimes against humanity and war crimes. Of course, the Prosecutor acts within the confines of the Rome Statute—only pursuing cases where states fail to do so, or where the states themselves, or the UN Security Council, refer situations to the Prosecutor. To open a case, the Prosecutor must convince the judges in pre-trial proceedings that he or she has sufficient grounds to do so.

In the last several years, we’ve seen how important this role is: pursuing criminal warlords in the Democratic Republic of the Congo and Uganda. And also how difficult: prosecuting political leaders in the Sudan, Kenya and Libya.

Some political leaders, including those who risk prosecution, are openly and maliciously challenging the impartiality of the Prosecutor; others refuse to abide by their obligations under the Rome Statute to co-operate fully with the Prosecutor so that investigations, indictments and trials can proceed.

And many powerful states, including China, Russia and the United States, all permanent members of the Security Council, have still not joined the court, even if they are now less vocal in opposing it.

Clearly, the Prosecutor has a tough job. He or she must stand with the victims and pursue justice, but do so in a way that demonstrates to all fair-minded people that the law is being applied equally without bias or favour. No easy task in a world where trust is in short supply. He or she must rely on governments to make justice real—there is no international police force. Legal knowledge is key, as is a devotion to justice and the ability to lead an international team effectively. The Prosecutor must, above all else, have the skill to build, pursue and win cases while deftly maintaining the confidence of both victims and governments.

The Rome Statute recognises that this is a unique international post. The Prosecutor serves for up to nine years, and cannot be re-elected—thus strengthening the independence of the post. Moreover, unlike many senior international posts, there are very specific and clear rules in place to prevent the arbitrary removal of the Prosecutor. The Rome Statute also makes clear that appointment should be solely on the basis of merit and proven experience, and that whoever is chosen must be a person of “high moral character”.

The 118 States that have so far joined the Rome Statute are obliged, therefore, to avoid the temptation of treating this appointment as they do other international jobs. Too often, candidates for senior posts at international organizations conduct elaborate election campaigns in conjunction with their governments. This approach brings quite a lot of problems with it: first, persons who are not supported by their own governments, no matter how qualified, have no hope of becoming an official candidate, much less getting elected. It also leads to vote-trading in a type of global bazaar: one country promises support for another country’s candidature in exchange for the latter’s support for one of its own candidatures for a different post. Merit often becomes a secondary consideration.

This must not happen in the election of the ICC Prosecutor. There must be no hint of politicking in the election of the person who will exercise the important functions assigned to this post.

To their credit, the States Parties to the Rome Statute are trying something new. A Search Committee with five members has been constituted to search for possible successors to the current Prosecutor. The Search Committee has drawn up a list of candidates all of whom will be interviewed, and then it will provide the States with a final short list of three names. The final decision rests with States. Member States may still nominate separate candidates, but so far none of them have done so, thereby respecting the Search Committee process.

This process is highly unusual in the international sphere and deserves the full support of all those interested in the success of the ICC. It holds out real hope of producing a consensus candidate who is chosen because he or she is best equipped to do the job. And it is this, above all else, that must guide the final decision in December.

When as UN Secretary-General I opened the Conference in Rome 1998 where the ICC Statute was being drafted, I urged the delegates “... not [to] flinch from creating a court strong and independent enough to carry out its task. It must be an instrument of justice, not expediency. It must be able to protect the weak against the strong.” This was accomplished in Rome. The ICC Statute is a remarkable achievement.

But politicizing the election process for the Prosecutor, or polluting it with the horse-trading and vote-swapping that characterize too many elections for international and UN posts, would risk undoing this important achievement.

Read original article on Huffington Post here.

At the end of September, the judges of the International Criminal Court’s (ICC) Pre-Trial Chamber III authorised the court’s prosecutor to launch formal investigations in Ivory Coast.

The investigations will focus on the violence that occurred in Ivory Coast from November 28, 2010, following the release of the results of the second round of elections in which the opposition movement, led by Alassane Ouattara, was declared victorious.

The post-election violence in Ivory Coast lasted more than five months. During this period, reports of widespread murder, rape and forced disappearances abounded.

As a result of the protracted violence, 3 000 people died and about one million more were internally displaced.

While relative stability has returned to the west African country, according to the UN Mission in Ivory Coast, more than 30 000 people remain internally displaced.

As per ICC procedure in matters such as these, the authorisation by the court’s judges followed a request on June 23, 2011 from the ICC prosecutor, Luis Moreno-Ocampo, to begin the investigations. Ocampo’s request stemmed from an invitation by the Ivorian government to investigate crimes committed in the country.

The judges’ decision is a welcome development in ensuring that justice is served for crimes committed in Ivory Coast. However, the decision comes at a time when the African Union’s relationship with the ICC remains sour.

Since 2009, when the ICC issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, the AU has called on African states not to co-operate with the ICC.

Ironically, several African countries, notably Botswana, Burkina Faso, Nigeria, Sierra Leone and South Africa, have consistently voiced their support for the ICC and remain committed to co-operating with it.

Furthermore, several African states – Ivory Coast included – have shown continued support for the ICC by calling on the court to investigate and prosecute crimes committed in their countries.

The first situations before the ICC came about after states that are signatories to the ICC’s Rome Statute asked the court to investigate crimes committed in their respective countries. These states are Uganda, the Democratic Republic of the Congo and the Central African Republic.

The ICC can also claim jurisdiction over a matter in a state party if the prosecutor, of his own accord, requests authorisation from the ICC’s pre-trial chamber judges to initiate investigations.

To date, the prosecutor has only exercised this proprio motu power once, in the case of Kenya’s post-election violence.

The UN Security Council may refer situations to the ICC in countries that are not state parties to the Rome Statute.

The security council has exercised this power in respect of two situations before the court: those of Sudan’s western province, Darfur, and Libya.

With the recent authorisation of investigations in Ivory Coast, four of the seven cases before the ICC are the result of choices made by African states themselves. This is a clear sign of acceptance by Africans of the importance of the ICC in assisting them in meeting their obligations to end impunity and promote international criminal justice.

While Ivory Coast has not ratified the Rome Statute, it has formally accepted the jurisdiction of the ICC. The first declaration accepting the ICC’s jurisdiction was made in April 2003 by then-president Laurent Gbagbo.

In December 2010 and again in May 2011, incumbent Alassane Ouattara made similar declarations and invited the ICC prosecutor to investigate crimes committed since November 2010.

The peculiar situation in which Ivory Coast has accepted the ICC’s jurisdiction, without taking the broader step of ratifying the Rome Statute, creates an interesting precedent for the authorities of the Occupied Palestinian Territories.

The Palestinian authorities are bidding for statehood and in January 2009, made a similar declaration granting the ICC jurisdiction over the crimes allegedly committed by Israel during Operation Cast Lead in Gaza.

If the occupied Palestinian territories are granted statehood, the Palestinian authorities may also wish to refer the situation in their territories to the ICC.

However, pending the outcome of the Palestinians’ bid for statehood, to date all the cases before the ICC are from African countries.

This African focus has led to some criticism of the ICC as targeting Africa. This criticism, however, ignores important considerations.

Firstly, 32 African countries have voluntarily ratified the Rome Statute and Ivory Coast has voluntarily accepted the ICC’s jurisdiction.

Secondly, the criticism fails to acknowledge the fact that the majority of the situations before the ICC areas are a result of self-referral by the government of the country concerned.

Furthermore, the criticism overlooks that the ICC serves as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute alleged perpetrators of international crimes.

Lastly, the criticism does not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa – factors that have contributed significantly to the continued commission of international crimes on the continent.

The ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern.

The ICC is furthermore complementary to national criminal jurisdictions. The preamble of the Rome Statute stresses that the first commitment by states is to themselves “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.

Ivory Coast’s recent invitation to the ICC, alongside the ratification of the Rome Statute by 32 African states, are examples of African countries fulfilling their obligations to promote international criminal justice and end impunity.

The fact that at present, all the situations before the ICC are from African countries indicates not only that unacceptable levels of violence bedevil our continent, but it also presents an opportunity for Africa to be at the centre of developments in international criminal justice.

Even as certain African leaders criticise the ICC’s involvement on the continent, for Ivorian victims of mass atrocities, that involvement sends out a symbolically important message that their suffering has not been forgotten and that those responsible may meet justice, through the work of a faraway court in The Hague.

Maunganidze is a researcher in the International Crime in Africa Programme at the Institute for Security Studies.