IJCentral: International Justice Central

By Ambassador Tiina Intelmann*

Very soon the International Criminal Court will celebrate its 11th anniversary. By now the Court has fully established itself and is increasingly busy. It is actively seized of eight situations and is also undertaking a number of preliminary examinations. It is a good time to take another look at the Rome Statute system and to focus on some aspects of it that need special focus.

One of them is complementarity, and how states are equipped to exercise their primary jurisdiction over atrocity crimes.

According to the Preamble of the Rome Statute, the primary responsibility for investigating and prosecuting the most serious crimes falls under national jurisdictions. The International Criminal Court (ICC), as a court of last resort, acts only if the State with the primary jurisdiction over the crimes proves to be unable or unwilling genuinely to carry out the investigation or prosecution. This is known as the complementarity principle.

Complementarity is an issue to which the Assembly of States Parties (ASP) has given special attention. At the 2010 Review Conference of the Rome Statute held in Uganda, the ICC States Parties recognized the need for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. Since that time, we have been looking for avenues to work closer with the international development community, with individual countries and with civil society actors to assist states that ask for assistance in creating domestic capacity. We have also held several technical discussions between international justice practitioners and development actors.

Over years, four countries have approached the court with requests to start investigations of their situations due to the fact that all domestic avenues have failed or are non-existent. These countries are Central African Republic, Uganda, Democratic Republic of the Congo and most recently, Mali. While the Court stands ready (and was indeed created to address situations like the ones mentioned above), we need to make a collective push to have legal and judicial means in place in States Parties allowing investigation and prosecution of Rome Statute crimes. The failure of domestic systems, and thus activation of the ICC, has to be an absolute exception.

We have to make an extra effort to create a situation where all States Parties and even states outside the Rome Statute system have the domestic capacity to deal with the most heinous crimes under international law.

The international community places great importance on the rule of law and is committed to ensuring accountability for international crimes. The commitment to capacity building was affirmed in the declaration adopted by the High-level Meeting of the United Nations General Assembly on the Rule of Law at the National and International Levels which took place on 24 September 2012 in New York.

*Ambassador Tiina Intelmann is the president of the Assembly of States Parties of the International Criminal Court (ICC).

By Mariana Pena*

The Statute of the International Criminal Court (ICC or Court) applies to all persons equally without any distinction based on official capacity. When it comes to serious violations such as genocide, crimes against humanity and war crimes, no-one is exempted from prosecution. Sadly, history has shown that heads of state and other members of government have been involved in the commission of very serious crimes. Prosecution of those holding an official capacity has not been without trouble.

The first attempt to prosecute a former head of state for international crimes concerned the former Chilean president Augusto Pinochet, who was accused of crimes committed in Chile during the dictatorship in the 1970’s and 1980’s. In 1998, Pinochet was arrested in the United Kingdom following an order for extradition made by a Spanish judge. That order had been issued in proceedings instituted under extra-territorial jurisdiction principles. It was the first time in history that the former president of a country was arrested for crimes committed during this tenure. However, the extradition request was not executed as Pinochet was sent back to Chile after claiming illness. Several attempts were made to prosecute him once back in Chile. He died, however in 2006 before the conclusion of any those proceedings, and a final judgment on his liability could not be reached.

Former presidents have also been called to respond for international crimes before international tribunals. Slodoban Milosevic, President of Serbia, was indicted by the International Tribunal for the Former Yugoslavia (ICTY) in 1999. He was the first-ever president to be charged by an international tribunal. He was arrested and handed over to the ICTY in 2001 (when he was no longer president), but died in 2006 before his trial had been completed and a verdict had been given. Charles Taylor, President of Liberia, was charged by the Special Court for Sierra Leone (Special Court) in 2003 for his alleged involvement in the 1991-2002 Sierra Leonean war. His trial was completed in 2011. He has been found guilty of war crimes and crimes against humanity. The case is currently before the Appeals Chamber of that Special Court.

At the ICC, the world’s permanent international criminal court, Jean-Pierre Bemba, former vice-president of the DRC is currently undergoing trial for crimes committed in neighboring Central African Republic. His trial will soon come to an end and a judgment could be expected several months thereafter. In addition, Omar Al-Bashir, President of Sudan, was the first-ever acting president to be charged with international crimes by the ICC. Al-Bashir has been sought since 2009 for his role regarding the commission of serious crimes Sudan’s Darfur region. He remains a fugitive and has repeatedly defied the Court. He has made official visit to the territory of African countries, including ICC States Parties like Kenya and Chad, who have failed to arrest him. Al-Bashir was re-elected in 2010 in a contested election involving fraud allegations, becoming the first head of state to be re-elected while facing charges at the ICC.

More recently, the ICC issued an arrest warrant for Laurent Gbagbo, former president of Côte d’Ivoire, who is suspected of having committed crimes during the post-election violence in Côte d’Ivoire between December 2010 and April 2011. He has been arrested and handed over to the Court. A confirmation of charges hearing was held in February 2013 and judges will decide in the coming months whether he must stand trial.

Although some of those mentioned above were indicted while they were still in office, those who have stood trial or otherwise faced proceedings have done so after stepping down. Indictment, particularly when a warrant for arrest is also issued, have often helped increase pressure, prompting resignation of those holding an official capacity, and contributing to galvanizing efforts for arrest and surrender.

The Kenya situation presents a somehow different, very unusual and unique situation.  Uhuru Kenyatta and William Ruto are both charged with crimes against humanity committed during the 2007/2008 post-election violence in Kenya. Their trials are set to start in May and July 2013 respectively. During the March 4, 2013 elections, they were elected president and deputy president respectively. Following petitions which contested the elections process, the Kenya’s Supreme Court concluded end of March that the elections had been conducted in a fair manner. That paved the way for Kenyatta and Ruto’s swearing-in on April 9, 2013.

It is worth recalling that Kenyatta and Ruto stood on different sides during the 2007 elections. While Kenyatta had then supported Mwai Kibaki’s Party for National Union (PNU), Ruto had instead backed Raila Odinga’s Orange Democratic Movement (ODM). Kenyatta and Ruto have been called to respond before the ICC for allegedly mobilizing men within their ethnic groups to attack perceive supporters of the opposing party. Despite having been indicted by the ICC, Kenyatta and Ruto continued to play a prominent role in Kenya politics over the past five years. Both were seen as likely presidential candidates in 2011-2012. In a political move to win votes and beat another strong candidate, Raila Odinga, Kenyatta and Ruto came together in a coalition (the Jubilee Coalition).

It is the first time in history that the people of a country democratically elect to the highest state office two individuals who are accused of very serious acts and who are due to stand trial before an international criminal court. While acknowledging that Kenyatta and Ruto are today innocent and will remain so until proven guilty, the election of individuals against whom so serious accusations have been made nonetheless begs the inevitable question: why would the people of Kenya do that?

Traditionally, serious accusations have resulted in the isolation of political leaders. In Kenya, that has led to their election as president and deputy president. This seems at odds not only with the moral question whether those who are suspected of crimes against humanity should run a country, but also with practical matters including their capacity to do so while standing trial in The Hague. That did not seem important for those who opted to make Kenyatta and Ruto the next president and deputy president of Kenya.
An immediate and easy explanation to why Kenyatta and Ruto won the presidential election is that Kenyans vote along tribal lines, and that they did so during the March 4, 2013 elections. The message that we receive is that tribal belonging is so strong that it can override criminal accusations. It is fair to note as well that the ICC was used by Kenyatta and Ruto in their campaign to portray themselves as victims of attempts of domination and neo-colonisation by the West, an argument that resonates well with Kenyans. Kenyatta himself stated in the run-up to the elections that the elections would be “a referendum on the ICC.”

The Court, for its part, has rightly emphasized that the elections constitute a political process which is distinct from the purely judicial proceedings before the ICC. Yet, can the Court now ignore that 50.07% of the Kenya people disregarded criminal charges? What message does that send to the ICC? The Kenyan people had been very supportive of the Court when it started its investigation. A plain reading of the elections results would suggest that Kenyans may not be as supportive of the Court any longer. However, it would be unfair to jump to such a conclusion without making a more in-depth analysis, given that these are undoubtedly complex processes. Indeed, many factors, including turn-out, tribal belonging, alternative candidates, and the various parties’ and coalition’s campaigns, undoubtedly played a role in the final electoral outcome. Nevertheless, one cannot ignore the message expressed by the Kenyan people. Their choice gives us reasons to believe that Kenyans have a strange relationship with justice, possibly because in their experience justice and corruption often overlap. The election results also confirm the certainly overriding power of politics over justice in Kenya.

A range of questions inevitably arise regarding any possible impact of the election results on the trials and/or of the trials on Kenyatta’s and Ruto’s capacity to rule the country. As for the latter point, a decision as to whether the accused can participate in the trials via video-link is due to be taken soon. In principle, presence in person is required. Who is going to run the country if both the president and his deputy are in The Hague? The reality of two accused becoming president and deputy president of a country has been largely ignored in the proceedings. Will the judges now weigh that in when making their decision on presence at trial? Should they? Or should they only base their decision on a bare interpretation of the rules?

As far as the question whether the election of Kenyatta and Ruto will impact the trials, the ICC has stated that there is no reason for the proceedings to be affected. The ICC’s decision not to take a position on Kenyan politics and to maintain its neutrality and independence appears fair. Yet, holding that there is absolutely no influence, at the very least on a practical level, appears unrealistic. There is also the question as to whether the Office of the Prosecutor had prepared to prosecute the president and deputy president of Kenya. The investigation has been characterized by multiple allegations of insufficient cooperation, serious security threats, witness tampering and witnesses’ reluctance to testify. It would not be surprising if obstacles increased after the accused are sworn in president and deputy president of the country.

In sum, Kenya politics and the unfolding of the Kenya cases before the ICC raise a broad range of questions regarding the choices of the Kenyan people, and the future of the country and its leaders. Those questions go to the core of Kenyans’ notion of justice and the ICC’s capacity to try the president and deputy president of a country. As Kenyatta and Ruto are sworn president and deputy president, and as the ICC cases progress toward trial, some of those questions may be answered and many more are likely to arise.

* Mariana Pena is an independent expert on international justice. This article is based exclusively on open sources.

Laurent Gbagbo made major headlines the last few weeks with the opening of an important hearing in his case before the ICC but little was said about what victims can hope for now that Côte d’Ivoire has joined the Court.

Since 2002, Côte d’Ivoire has suffered years of political crisis and violence which reached a boiling point with the November 2010 presidential election. While incumbent President Laurent Gbagbo was proclaimed the winner, his opponent Alassane Ouattara vehemently disputed the result, claimed victory and was recognized as the legitimate winner by the UN and the international community. Gbagbo’s refusal to cede power to what he considered a fraudulent election led to a military offensive against the capital Abidjan by Ouattara’s forces, ending with the capture of Gbagbo on 11 April 2011. Eight months later, Gbagbo was transferred to the International Criminal Court (ICC) in The Hague where he is currently held and waiting for a decision from the Court on whether he will go on trial.

Gbagbo is accused of being an indirect co-perpetrator of crimes against humanity allegedly committed in Côte d’Ivoire between December 2010 and April 2011. He is the first former head of state detained at the ICC. Several human rights reports have indicated that both Gbagbo’s and Ouattara’s forces have committed serious human rights violations, including rape, looting and destruction of homes, torture and murder, among others. In Abidjan, Gbagbo’s troops reportedly attacked and killed civilians identified or perceived to be Ouattara supporters and in the north-western part of the country where Ouattara’s forces started their military offensive, they reportedly killed civilians identified or perceived to be Gbagbo supporters. Around 3,000 civilians died and over one million fled during the post-election violence.

Difficult path to reconciliation

Côte d’Ivoire is trying to recover from years of political crisis and instability and reconcile a population that is still strongly divided. The wounds are still fresh and the path to reconciliation may be very difficult. Although Gbagbo is accused of serious crimes by the ICC prosecutor, he remains very popular in Côte d’Ivoire and many still consider him their president. The opening of his confirmation of charges hearing on 19 February was attended by a delegation of pro-Gbagbo supporters which was widely covered by national media. Additionally, the ICC has so far only issued two arrest warrants for crimes against humanity in Côte d’Ivoire, one for Laurent Gbagbo and another for former first lady Simone Gbagbo, who is currently detained in Côte d’Ivoire. Ivorian and international human rights organizations warned that the ICC could be blamed for applying victor’s justice if only presumed pro-Gbagbo perpetrators are prosecuted.

The interest of victims

So much is said about Laurent Gbagbo and the ICC, but what about the victims of the post-election violence? What about the victims of other crimes committed since 2002? Although the first indictments are related to the post-election violence, the ICC investigation also covers the years 2002-2010, meaning that the Court could seek to bring to justice perpetrators of crimes allegedly committed during that period of time. This could allow more victims to participate in ICC proceedings, but since in practice not all victims will be able to seek justice and reparation at the Court, it is crucial that national courts have the capacity to prosecute international crimes and provide relief to victims.

Côte d’Ivoire and the ICC

Côte d’Ivoire made a major step forward in this regard when it ratified the Rome Statute on 15 February 2013. Interestingly, the government of then-president Gbagbo was the one that recognized the jurisdiction of the ICC on the territory of Côte d’Ivoire in April 2003 under Article 12 of the Rome Statute – the ICC’s founding treaty. In 2010, President Ouattara reaffirmed his government’s acceptance of ICC jurisdiction, and after a series of legal and constitutional hurdles, Côte d’Ivoire became the latest African country to join the ICC as a state party to the Rome Statute. Now that it has done so, Côte d’Ivoire has a chance to demonstrate its commitment to the fight against impunity. It should work toward implementing the Rome Statute into domestic law as soon as possible so that national courts are equipped to prosecute all the perpetrators of the crimes committed since 2002. As a state party to the Court, Côte d’Ivoire has the obligation to cooperate with the Court in arresting and sending any ICC suspect to The Hague, including Simone Gbagbo, the ICC’s first female indictee.

Côte d’Ivoire is still in the middle of a healing process that may be very long, especially if the ICC focuses its investigation on only one side of the conflict.  But by joining the ICC and opening the door to strengthening the national judicial system, Côte d’Ivoire will get one step closer to helping bring justice to victims and stop the culture of impunity.

By Francis Dako, Africa coordinator and Linda Gueye, head of Communications at the Coalition for the International Criminal Court

by Mariana Rodriguez Pareja*

According to reports published Monday at the Sudanese Media Center, International Criminal Court (ICC) indictee President Omar Al-Bashir will be visiting Chad this coming weekend to participate in the Summit of the Community of Sahel-Saharan States. The same article, adds that after this visit, the Sudanese President will be visiting Libya to participate in the celebrations of the 17 February Revolution.

If this information were true, then, Chad would not be complying—for the third time—with its obligation to enforce the outstanding arrests warrants issued by the ICC against President Omar Al Bashir. The Sudanese president is subject to two arrest warrants for atrocities committed against his own people, in Darfur.

The first arrest warrant was issued in March 2009 on charges of war crimes and crimes against humanity. The second—issued in July 2010—was on charges of genocide. According to the latest report by ICC Prosecutor Fatou Bensouda to the UN Security Council (UNSC), Darfur’s civilian population continues to be targeted by government forces, with the ongoing widespread occurrence of sexual and gender based violence, crimes against human rights defenders, civil society members and community leaders.

The ICC has been involved in the Darfur situation, following upon a formal request of the UNSC since 2005. According to the letter of the Resolution 1593/95, the situation in Sudan was a “threat to international peace and security.” Therefore, States members to the UN ought to demonstrate their respect for the UNSC acting under Chapter VII of the UN Charter and comply with the obligation to cooperate fully with the ICC.

Furthermore, Chad as a state party to the ICC has the obligation to cooperate with the Court. Mostly given the fact that the Court has no police to enforce its decisions and it relies on States to help in the arrest of persons whom arrest warrants have been issued. Therefore, cooperation from States is crucial: in case Bashir steps a foot in Chad, the country should execute the arrest warrant and arrest the Sudanese President immediately.

Sadly, this would not be the first time Al-Bashir visits a state party since he has been indicted by the ICC for hideous crimes: he visited Chad twice (in 2010 and in 2011). He also visited other States Parties that also failed in their obligations: Djibouti (2011), Kenya (2010) and Malawi (2011).

After he paid his second visit to Chad in 2011, the ICC decided that the country had not met “its obligation to fully cooperate with the court by failing to arrest and surrender Sudanese president Omar al-Bashir during his visit”. Following its decision, the ICC Pre-Trial Chamber 1 referred the matter to the UNSC and to the Assembly of States Parties to the Rome Statue, the governing body of the Court.

“By allowing Al Bashir to visit, the Chadian government has again violated its obligations under the Rome Statute to execute the ICC’s arrest warrants,” said Stephen Lamony, Senior Adviser to the NGO Coalition for the International Criminal Court—“If Al Bashir does enter the Chadian territory, the United Nations Security Council and the Assembly of States Parties should act promptly take the measures they deem appropriate to ensure full cooperation with the ICC”.

Hosting Bashir is being accomplice to a genocidal regime that continues to kill and rape its own population with total impunity. The conflict has already affected the lives of over 2.5 million people.

“The fact that Al Bashir can repeatedly travel to Chad without ever worrying about being arrested is another insult to Darfuri victims,” stated Linda Gueye, Head of Communications at the Coalition. “Al Bashir will once again benefit from media attention while victims will continue to suffer in silence”.

If we, as international community are committed to stop Bashir, stop the slaughter of civilians, the rape and the starvation, then, political reasons should not continue to interfere with but should respect and implement judicial decisions, such as the one taken by the ICC when it issued two arrest warrants for Bashir.

Chad should arrest Bashir.

It was the first state to harbor Bashir after the first arrest warrant was issued. Now, it has the chance to change history and become the country that arrested and surrendered Bashir to the ICC.

*Mariana is a human rights lawyer and blogger. @maritaerrepe

Source: The Huffington Post World

By Mark Kersten

Last week, Fatou Bensouda, the chief Prosecutor of the International Criminal Court warned Mali’s government that she could investigate alleged atrocities committed by the government’s military forces. And it’s a good thing she did. While the ICC may have little-to-no deterrent effect on the Malian rebels, it might just be able to shape the behaviour of the Malian government.

Amidst rumours that Mali government forces have perpetrated atrocities in central Mali, Bensouda released a curt but strong statement which declared:

  My Office is aware of reports that Malian forces may have committed abuses in recent days, in central Mali. I urge the Malian authorities to put an immediate stop to the alleged abuses and on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.

Bensouda’s statement was a stern reminder to the Mali government: just because Mali referred the situation to the Court does not mean that its forces will escape investigation (and possibly prosecution). A war crime is a war crime is a war crime, irrespective of who perpetrates it. The question is: will Mali take heed of the Prosecutor’s warning?

The notion that the ICC can deter crimes is simple enough. The international justice and human rights community argue that international criminal tribunals have the power to change the behaviour of both current perpetrators of atrocities and would-be perpetrators. The fear of being indicted, it is argued, prevents individuals from continuing – or beginning – to commit international crimes.

The problem with deterrence is just as simple: there is very little evidence for it. This isn’t merely an empirical question. After all, the decision not to do something is difficult, if not impossible, to measure. In general, there is good reason to be skeptical of the claims that the ICC can deter the commission of atrocities. The results are mixed at best (see, for example, here and here).

Still, the landscape of deterrence is perhaps less bleak than the most fervent of critics would suggest. This is particularly true if we look in the direction of actors who aren’t targeted by the ICC rather than those who are.

Take the Ugandan case, for example. It would be virtually impossible to argue that the ICC’s intervention into the war between Joseph Kony’s Lords Resistance Army (LRA) and the Government of Uganda has deterred the LRA from committing atrocities. At best, it helped ‘export’ the conflict to neighbouring Democratic Republic of Congo, Central African Republic and South Sudan. However, it is plausible to argue that the ICC has had positive effects on the behaviour of the Ugandan government and, in particular, the Uganda People’s Defence Force (UPDF). Where they might have been more brutal in dealing with domestic unrest and protests, the government has not committed serious breaches of international criminal law. It seems likely that they have been spurred by periodic statements by the ICC that the Office of the Prosecutor could, at any time, open an investigation into allegations of new crimes.

That an ICC intervention would affect governments like Uganda or Mali in such a way is unsurprising. In both cases, the governments referred their internal strife to the Court. As I have previously argued, that comes with numerous pitfalls. The ICC risks being instrumentalized by the referring government which may ‘use’ the Court to delegitimize their adversaries whilst drumming up international support for their own role in the conflict. But a side-product of this dynamic is that, while states seek to wield the ICC against their rebellious adversaries, they clearly do not want to become the Court’s next target. To come under the suspicion of the ICC would tarnish their perceived legitimacy and international standing. Aware that they are now under the watchful eyes of the ICC’s Prosecutor – not to mention the international community – brutal tactics which may amount to war crimes or crimes against humanity, are likely be discouraged.

There are signs that, buoyed by France’s military intervention, the worst of the violence in Mali soon be over. However, fears of vengeance remain widespread. According to the BBC, the Tuareg peoples of Northern Mali, for example, are “lying low”, fearful of reprisals against them. This is an important reminder that the conclusion of conflict rarely marks the end of mass human rights abuses and crimes. As a result, it is as important now as ever that the ICC make clear that it can and will investigate any crimes committed in Mali, irrespective of who commits them. With her statement, the Prosecutor has done just that. The Mali government would be wise to take heed.

Source: Justice in Conflict

By Mariana Rodriguez Pareja

The conflict in Darfur is not new, and despite some international attention and efforts by human rights activists to stop this ongoing (and apparently never-ending) conflict, it has ruined the lives of over a half million people, with thousands of women being raped, widespread and systematic violence taking place in nearly every form imaginable.

The ICC—complying with the Resolution 1593 of the UNSC in 2005—began the investigation in the region of Darfur and decided to issue five arrest warrants against those who bear the greatest responsibility. Two arrest warrants were issued for the President of the country Omer Hassan al-Bashir, one for his interior, now defense minister Abdel-Rahim Mohamed Hussein, one for the-now Governor of South Kordofan Ahmad Harun and one for Ali Kushayb. All of them remain at large.

The response from the Sudanese government is total rejection of the Court, with officials regularly firing off false accusations to the now former Prosecutor Luis Moreno Ocampo and even to States who would talk about the apprehension of the war criminals.

Just a few days ago, Radio Dabanga reported that, according to eyewitness, Ali Kushayb has started to mobilize new people in Taham and Umm Nunu, on the border between West and South Darfur.

So, it seems the Janjaweed commander is back to what he does best: recruiting militias in order to train them to commit international crimes against civilian populations.

Ali Mohamed Ali Abdel-Rahman or Ali Kushayb, also known as “The Colonel of Colonels” and “Chief of the Religious Combatants” is a Janjaweed commander who has fought alongside Sudanese government forces in the Mukjar/Wadi Saleh area in West Darfur since 2003. He has been indicted for 50 counts, including 22 counts of crimes against humanity and 28 counts of war crimes. For those who are not familiar with what these crimes entail, they include assassinations, rapes and outrages upon the personal dignity of women and girls, and the forced displacement of people, most of them committed during attacks against four towns and villages, namely Kodoom, Bindisi, Mukjar and Arawala. These crimes were committed against civilians primarily from the Fur, Zaghawa and Masalit populations. They likely represent only a small sample of Kushayb’s activities.

His indictment came two years after the referral by the UN Security Council to the ICC in 2005. In 2008, the Sudanese authorities allegedly arrested Kushayb and released him afterwards, saying that he would “be held accountable for his crimes before a local court.” That never happened. Eyewitnesses in Khartoum told the press that Kushayb was never locked up and even it was reported that his arrest was a publicity stunt to distract attention. Now, this man is openly recruiting militias in the Sudan with total impunity.

The international community must insist on the execution of his arrest warrant, issued in 2007, and must insist that the Government of the Sudan hand him over to the Court for a fair trial. It is the least the international community can do for the reportedly near 500,000 people killed in Darfur, and the millions displaced.

Source: The Huffington Post

By Mariana Rodriguez Pareja*

January 20, 2013 - The conflict in Darfur has ruined the lives of over half a million people. This violence has had the complicit support of a government, which in theory is in charge of protecting its own population, that does the opposite.

The UNSC asked the International Criminal Court (ICC) to intervene and investigate the situation in 2005.

The President of the country Omer Hassan al-Bashir has been indicted as one of the most responsible for the situation in Darfur, as well as his defense minister Abdel-Rahim Mohamed Hussein, now Governor of South Kordofan Ahmad Haroun and militia leader Ali Kushayb.

None of them has been held accountable at the ICC or in any court in the Sudan.

The case of Haroun is particularly outrageous; he has served in senior official capacities for more than a decade. As a state minister for the Interior from 2003 to 2005 he was allegedly in charge of the management of the “Darfur Security Desk” thereby coordinating the different bodies involved in the counter-insurgency, including the Police, Sudan Armed Forces (SAF), National Security and Intelligence Service (NISS) and the notorious militia known as the Janjaweed. It is impossible that he was unaware of the situation in Darfur.

Former ICC Prosecutor Ocampo emphasized repeatedly that evidence gathered by his office demonstrated that Haroun had the individual criminal intent to commit crimes, as well as the resulting knowledge of the attacks against civilian population, rapes and pillaging of towns, and that in many cases, he encouraged the perpetration of such horrendous crimes.

As a coordinator of logistics, bringing money and weapons and words of encouragement to Darfur’s triggermen, Haroun was the spider at the center of a web large enough to entrap millions of his fellow countrymen.

When tribal elders in Darfur approached him as representative of the government and implored him to address violence against civilians, he allegedly called them his enemies and informed them that he had come to Darfur to destroy them. The joke is that this man was appointed Minister of State for Humanitarian Affairs, following his stint at the Ministry of the Interior.

In 2007, the ICC Judges issued an arrest warrant for Haroun for 42 counts for war crimes and crimes against humanity.

Even though, he has not - or at least not that I know of- set foot outside the country since the issuance of his arrest warrant, he continues to hold power within the regime. He is now the governor of South Kordofan, the province that lies to the west of Darfur and to the north of South Sudan, encompassing key border regions like Abyei whose status remain unresolved, and over which Haroun has allegedly recruited tribal militias to try and ensure through violence that Abyei and its oil-rich fields remain part of the Sudan and do not effectively exercise referendum under the Comprehensive Peace Agreement (CPA), which could result in it joining the South.

The result of this militarization is that the region is now one of the most unstable and restive parts of the country, the scene of fighting between the Sudanese army and Sudan People Liberation North (SPLM-N) which is part of the Sudan Revolutionary Front (SRF) coalition of insurgent groups, and the subject of belated hang-wringing by international observers, who ignored or downplayed the threat that Haroun posed to the stability of the region.

Alleged human rights violations occur in that province on a daily basis with total impunity. Victims in the Nuba Mountains in South Kordofan remember Haroun all too well from the 1990s, when he was known as the Butcher of the Nuba.

The international community has explored the idea of curbing “non-essential contacts” with individuals like Haroun, but it raises the inevitable question, whether any contacts can truly be called essential. The message the Sudan has received is to make Haroun essential to the work of the UN: he was in charge of overseeing the deployment of African Union-United Nations mission in Darfur (UNAMID).

And we end up with the spectacle of Haroun transported by a UN helicopter to meetings that could very well have been linked to the militarization of Abyei that has taken place on his watch. The UN acknowledged this transport only when the photos came to light. It is acknowledged in UN corridors that Haroun has become a daily fixture in the UN calendar, and that the UN has come to rely on Haroun’s support in South Kordofan, a man one NGO representative argued had been scared straight. This argument comes less frequently, with the rising violence in Abyei.

The video of Haroun in South Kordofan’s capital, exhorting government forces to take no prisoners, is a strong indicator that Haroun has indeed not been scared straight, but continues to operate from the same playbook he has used throughout his government service.

We must insist on the execution of his ICC arrest warrant: the price of ensuring impunity for Haroun and others like him is too high.

Source: The Sudan Tribune

*Mariana Rodriguez Pareja is a Human Rights Lawyer @maritaerrepe

By Mariana Rodriguez Pareja*

The conflict in the Western Sudanese region of Darfur has been ongoing for more than 10 years now and despite all the efforts undertaken, it does not seem to be getting any better in terms of ending the violence and achieving any kind of accountability for crimes committed. Those who are indicted as the most responsible for the international criminal violations in Darfur by the International Criminal Court (ICC) remain at large and in the past years, we have seen President Omar Al Bashir being invited to and participating in different events, even, regrettably, on the territory of ICC States Parties.

But, first things first: the ICC has been involved in the Darfur situation, following upon a formal request of the UN Security Council, since 2005; it has issued five arrest warrants against four individuals, including the Head of State Omar Al Bashir, Abdel Raheem Hussein, Ahmad Harun, and Ali Kushayb. All of them remain at large and the refusal of the Sudanese government to cooperate with the Court has been consistent since that date. Plus, according to the latest report by ICC Prosecutor Fatou Bensouda, Darfur’s civilian population continues to be targeted by government forces, with the ongoing widespread occurrence of sexual and gender based violence, crimes against human rights defenders, civil society members and community leaders. The list of crimes goes on and on.

Just to give you an idea, the United Nations and other credible observers estimate that the wave of violence in the region may have killed as many as 500,000 people. We, as an international community continue to fail the victims.

Despite that horrific number and the lack of any investigations at the local level, since he was indicted, Bashir visited Kenya, Ethiopia, China, Egypt, Chad, Malawi, Qatar, Libya, Saudi Arabia and Iraq; and was invited to several other countries, including Venezuela, Turkey and Peru. Some of those countries are ICC States Parties, and therefore have the obligation to comply with the provisions of the Rome Statute. They should have arrested Bashir and transferred him to The Hague.

It is also important to note that when was invited to both Venezuela and Turkey, governments and activists from all over the world asked these States not to host Bashir. He ended up cancelling both visits.

But that did not happen when he was invited to Peru in 2012 for the Third Summit for South American and Arab countries. When I reached out to local authorities, they all said that for “protocol reasons, they ‘believed’ President al-Bashir was invited” and later suggested that the fact that Bashir was invited was irrelevant “because in the end, Bashir did not come to Peru”.

This position was and is shocking: justifying an invitation for protocol and political reasons of an individual indicted for genocide, crimes against humanity, and war crimes is not acceptable from any country. Hosting Bashir is being accomplice to a genocidal regime that continues to kill and rape its own population. If the international community is committed to stopping Bashir, stopping the slaughter of civilians, the rape and the starvation, then, political reasons should not interfere with but should respect and implement judicial decisions, such as the one taken by the ICC when it issued two arrest warrants for Bashir.

And this reminds me of a very important ruling from the Inter-American Court of Human Rights, in which Brazilian Judge Antônio A. Cançado Trindade reminded us all that it shall never be forgotten that the State was originally conceived for the realization of the common good: the State exists for the human being, and not vice versa. I always try to keep this in mind when I try to understand some situations; especially, the one in the Sudan.

Source: The Huffington Post

By Mark Kersten*

The new year has brought some big news for the relationship between the ICC and the United States. According to the great folks at the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), on January 3 Congress passed an expansion of the Rewards for Justice Program. The program will now cover individuals indicted by the International Criminal Court (ICC).

The enhancement of the rewards program will mean that financial rewards can be dolled out by the American government to anyone who helps in the achieving ”the arrest or conviction in any country, or the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.’” According to the legislation (full text of original bill here), the expansion of the program was done in order to “target other individuals indicted by international, hybrid, or mixed tribunals for genocide, war crimes, or crimes against humanity.”

This amendment of the Rewards for Justice Program certainly marks an impressive victory for the Office of Global Criminal Justice in the U.S. Department of State, led by Ambassador Stephen Rapp. Rapp and his team were able to effectively use notorious international criminals, including Joseph Kony and Bosco Ntaganda, as ‘poster boys’ for the legislation. They also had the benefit of stick-handling through a political landscape where fervent anti-ICC sentiment has largely withered.

The extension of the Rewards for Justice Programme, of course, also marks an important new development in the dramatic relationship between the US and the ICC. I have argued previously that the enhancement of the program should be seen as a positive development. Still, it is worth noting that political limitations were placed on the new legislation. According to AMICC,

“Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.”

The inclusion of the first limitation could be particularly problematic given that it has the potential to introduce a significant measure of political selectivity on how the program operates. However, it isn’t clear how this requirement will work in practice. It would appear that that the State Department simply needs to provide Congress with an explanation as to why any given arrest or conviction that qualifies for a reward would serve the interests of the US. That is a very broad requirement and, importantly, does not necessarily mean that Congress could subsequently reject any reward. In other words, the provision may simply amount to a political courtesy rather than an invitation for Congress’ intrusion into the decision-making of the program.

The reference to the American Servicemembers’ Protection Act (also known as the ‘Hague Invasion Act’) was included in the legislation from the get-go. The bill concludes by declaring that “[n]othing in this Act shall be construed as authorizing the use of activity precluded under the American Servicemembers’ Protection Act of 2002″. In practice, this confirms that, despite the enhancement of the Rewards for Justice Program to include individuals wanted by international criminal tribunals, the program will not cover American citizens. This was to be expected. While the American Servicemembers’ Protection Act is certainly unfortunate, it remains law in the US. The Rewards for Justice Program would not have been passed if it contradicted or omitted the Act.

As with everything in the tumultuous – but improving – relationship between the ICC and the US, it remains to be seen how the expansion of the Rewards for Justice Program plays out. The potential of political selectivity tainting the Court’s independence and legitimacy is still very real. But overall, the enhancement of the rewards program to include ICC indictees would seem to be a positive development.

Source: Justice in Conflict

On January 3, the House passed and sent to the President S.2318, The Department of State Rewards Program Update and Technical Corrections Act of 2012. He has said that he will sign it, thus bringing it into law, thereby expanding Rewards for Justice. Behind its dry and technical-sounding title lie provisions which move Congress and the Administration perceptibly further toward a closer general relationship with the International Criminal Court.

The original law began in 1984 and was then directed at promoting arrests in conventional international organized crime such as drug trafficking, and of terrorists. However, in the last two years, Ambassador-at-Large for Global Criminal Justice Stephen Rapp has led a State Department effort to expand the law to include the atrocity criminals whom the ICC tries. The bill which became S.2318 was introduced in the House by Congressman Ed Royce (R-CA), who is chairman of the House Committee on Foreign Affairs in the new Congress. It had 57 bipartisan sponsors and passed the House in July. Senator Kerry, chairman of the Senate Foreign Relations Committee, introduced S.2138 itself in the Senate which passed it on December 20.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to ... target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal ... of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

The worldwide attention to the crimes of Joseph Kony, leader of the Lord’s Resistance Army, and the previous individual laws referring to the ICC’s work on specific cases were among the elements of the impetus for this new law. A future post will analyze the trends behind its passage, and its importance for our current advocacy and our strategy for the future.
 

Source: AMICC

by Mariana Rodriguez Pareja and Salvador Herencia Carrasco*

Between 1960 and 1996, Guatemala was shattered by an internal armed conflict that resulted in the death of 200,000 people and victimizing an entire nation. According to the report by Guatemala’s Truth and Reconciliation Commission (TRC), government forces under the de facto presidency of General Rios Montt were found to have committed more than 600 massacres, homicide, forced disappearances, and other crimes, particularly against rural and indigenous communities.

During all those 36 years of extreme violence, 45000 people were disappeared and 650 massacres took place. Half a million Guatemalans sought shelter in Mexico and one million were internally displaced. These are just some of the numbers of what Guatemala went through in recent history.

According to the report of the TRC, the armed forces were responsible for 93 percent of these crimes. At all lights, there was a generalized and systematic plan led by senior Government Officials to perpetrate attacks against civilian population, under the excuse to pacify the country and free it from guerrilla groups. In the case of Rios Montt, who ran the country for 17 months in 1982/3 and after exhaustive investigations in Guatemala and in Spain, there were reasonable grounds to prosecute him for acts of genocide and crimes against humanity against local indigenous groups.

After years of judicial battles, the Interamerican Court of Human Rights (IACHR) ruling on the Dos Erres Massacre Case triggered a number of local proceedings. Earlier in 2012, a local tribunal sentenced former elite soldiers “kaibiles” to serve for 6060 years for the Dos Erres Case, which took place in 1982. This sentence at the local level was promising: local tribunals finally did was they were meant to be and asked to do by the Interamerican system and was seen as a first step to address impunity in the country. In this context, former head of State Rios Montt appeared for the first time in court to respond for genocide and crimes against humanity. Among the charges, he was accused of the killing of 1700 people who belonged o the indigenous communities. It was for the first time in history that a former president would respond before the local justice for these types of crimes.

Nevertheless, and leaving aside all the hopes of the victims, their families and the human rights movement in Guatemala and in the world, his lawyers and supporters were very active in seeking for ways out of this situation. The latest move was to seek for an amnesty, which as already rejected last October, but now tried again before the total rejection from the human rights community. This time the Constitutional Court of Guatemala has the final word on this claim.

Voices from human right organizations were loud on this regard and submitted an “amicus curiae” to the superior tribunal and, at a local level, organizations and activists have been vocal on how this possibility of granting an amnesty to Rios Montt would impact seriously on the Rule of Law.

Granting this amnesty will respond only to political factors, because legally speaking, Guatemala has international obligations that should comply at an international level. For instance, the American Convention on Human Rights foresees that States should investigate and prosecute all the violations to the letter of this treaty. Likewise, the IACHR precedents also include the content and the limit of the amnesty laws for States Parties.

Some might argue that Argentina, Brazil, and El Salvador—just to name few—also granted amnesties in the context of the democratic transition in order to avoid investigation of international crimes. But, as a result, this has caused more impunity and more social division. Proof is that today, in most of these countries, these laws have been struck down and local judicial proceedings have taken place.

Since the Barrios Altos Case, the IACH has determined that amnesty laws are against the American Convention and that cannot serve as an obstacle for the investigation and prosecution of those responsible for the perpetration of grave human rights violations. This rule has been vital for the revocation of the amnesty laws in many Latin-American countries to begin procedures for international crimes, especially torture and enforced disappearances. Even a few weeks before the end of 2012, the IACH determined that the Amnesty Law in El Salvador was contrary to the Convention, opening the door for future investigations at a local level for the El Mozote Massacre in 1981.

These human rights violations must be addressed by the Guatemalan tribunals. At this state, measures should be taken in order to strengthening its judicial system and rule of law throughout the country. Therefore, granting amnesty to Rios Montt will be a step back in the pursuit of justice and reconciliation. It will also be against all the international obligations and mostly, and offense to the victims and their relatives, who seem to be invisible before the Guatemalan State for the past—at least—36 years.

Source: The Huffington Post

* Mariana Rodriguez Pareja holds a JD and runs the Human Rights Program at Asuntos del Sur (ADS), among other projects. Salvador Herencia (LL.M.) is Member of the Latin-American Study Group on International Criminal Law.

By Reed Brody, Special to CNN*

Editor’s note: Reed Brody, Counsel with Human Rights Watch, has worked with Habré’s victims for 14 years. The views expressed are the writer’s own.

The most brutal U.S.-backed dictator you’ve never heard of – Hissène Habré of Chad – is facing a trial before a unique court set up in his Senegalese exile.  The court’s creation last week in Dakar, Senegal is a decisive breakthrough in a 22-year chess game pitting Habré against a group of prison survivors who never give up, as well as a hopeful sign that African courts can deliver justice for crimes committed in Africa.
Souleymane Guengueng, a modest civil servant, watched dozens of fellow cellmates die from torture and disease during three years in Habré’s prisons in the 1980s. Guengueng took an oath that if he ever got out of jail alive, he would bring his tormentors to justice. When Habré fell in 1990 and fled Chad for Senegal after emptying out his country’s treasury, Guengueng rallied wary survivors and widows to seek redress. In 2000, inspired by the London arrest of the former Chilean dictator Augusto Pinochet, they went to Senegal to press charges.

A Senegalese judge indicted Habré for political killings and torture. But the former Senegalese president, Abdoulaye Wade, found one pretext after another to delay Habré‘s reckoning. His tactics turned the victims’ saga into what Desmond Tutu, the Nobel Peace Prize winner, described as an “interminable political and legal soap opera.”

In 2001, on one of my trips to Chad, I stumbled upon the abandoned archives of Habré’s political police, the feared “DDS.” Tens of thousands of documents detailed how Habré conducted the repression of political opponents. A team of victims sorted the documents for entry into a database. The list was long – 1,208 dead prisoners and 12,321 victims of torture and other abuses.

The documents also described American training programs for DDS agents, including a course in the United States that some of the DDS’ most feared torturers attended. Under President Ronald Reagan, the United States saw Habré as a bulwark against Libya’s Moammar Gadhafi, Chad’s expansionist northern neighbor, and human rights did not figure into the equation.

When threats from Habré‘s henchmen back in Chad forced Guengueng into exile in 2005, he was replaced by Clement Abaifouta – the “gravedigger” – whose prison job had been to bury the bodies of deceased detainees in mass graves. Their lawyer, Jacqueline Moudeina, still has shrapnel in her leg from 2001, when one of Habré‘s security chiefs, who had returned as police chief of Chad’s capital, ordered an attack on her with a grenade.

But the victims persisted, filing charges against Habré in Belgium, whose anti-atrocity law allowed its courts to hear cases from all over the world. A Belgian judge took up the case and carried out a landmark mission to Chad. In 2005, after a four-year investigation, he sought Habré’s extradition.  When Senegal refused to send Habré to Belgium, and spent the next three years stalling on a request from the regional body, the African Union (AU), to put him on trial in Dakar, Belgium took the case to the International Court of Justice (ICJ), the world court in The Hague. The Obama administration also threw its weight behind a trial.

This year, the victims’ perseverance and tenacity was finally rewarded. In April, Senegal elected a new president, Macky Sall, who immediately announced that he would change course. When the ICJ ruled in July that Senegal had to prosecute Habré “without further delay” if it did not extradite him, Sall’s government and the AU reached a landmark agreement to create “Extraordinary African Chambers” within the Senegalese courts. The presidents of the trial and appeals courts are to be appointed by the AU from other African countries. Habré’s victims will participate as civil parties, presenting witnesses and evidence, with the right to seek compensation. The court’s funders, including the United States the AU, the European Union and the Netherlands, approved a robust outreach and communications plan so that the trial can be broadcast in Chad.

Le Monde has called the Habré case “a turning point for justice in Africa.” Indeed, while some African leaders have claimed that Africa is unfairly targeted by international courts, the challenge has been to put teeth into African justice.  A fair trial for Hissène Habré would be a tremendous step forward. It would also allow Souleymane Guengueng to fulfill the oath for justice he took more than two decades ago.

Source: CNN World

by Mark Kersten*

Libya has made yet another significant and controversial decision as it continues down the bumpy path of its post-conflict and post-Gaddafi transition. According to the Libya Herald, the country’s General National Congress (GNC) is preparing to institute a “Political Isolation Law” which will prohibit politicians who were close to the Gaddafi regime from taking political office. The wisdom of such a policy is surely to be hotly contested.

Just days before the new law was announced, a group of GNC members issued a statement declaring that they would “work through the GNC to speed up the passing of a law to block the way for any leftovers from the former regime to infiltrate the organs of the state and its institutions.” They added that “anyone who participated in the destruction can not in any way be a tool for rebuild the state, and it is unimaginable that anyone who took part in the corruption of the social, political and economic life of Libya could ever be a cause for reform.”

The decision by the GNC to introduce the law appears to have come in response to widespread frustration amongst Libyans at the possibility of former Gaddafi officials re-branding themselves to remain in power.

At first glance, this demand would appear unproblematic. Proponents of lustration argue that it is a necessary measure for consolidating the trust of citizens in democratic reforms and institutions. Moreover, there is precedence for such a law. Similar legislation (with the same name) was passed in Egypt. In Iraq, former members of Sadaam Hussein’s Ba’ath Party were barred from office, albeit with disastrous consequences. The official practice of lustration, as a transitional justice mechanism, dates back to the experience of post-communist states in Eastern Europe. After finally escaping from the clutches of communist rule, states such as Poland and Czechoslovakia instituted lustration policies to exclude former communists from political office.

Still, lustration is inevitably a controversial mechanism for achieving post-conflict justice. It typically relies on the release of secret state documents which often cannot have their accuracy verified. It can ensnare innocent government officials who played minimal and often technocratic roles in a process that resembles more of a witch hunt than political vetting. Lustration can also inspire political backlashes as excluded officials with significant material and political resources reorganize to challenge or undermine their country’s political transition. Of course, such policies are also inevitably an action taken by ‘victors’ against their former ‘oppressors’ and can thus entrench social and political divisions and make reconciliation more difficult to achieve. In this context, some political figures may attempt to use lustration not as a means to achieve justice but to exclude competitors from favourable positions. Moreover, in states where virtually the entire political class was associated with a past regime, lustration may disqualify or irrevocably taint political actors whose skills could positively contribute to the country’s transition.

Given the above, it will be critically important that Libya – like any other state considering the use of lustration policies – be very careful in deciding precisely who is to be excluded and on what grounds. Many of the failures of past lustration policies have been the direct result of poor planning and confused policies.

It is thus troubling that very little about the new Political Isolation Law (a terribly aggressive name for a lustration policy) is currently known. As Tom Little notes,

[T]he exact details of the law are still unclear, and it has yet to be decided what criteria members of the government and the GNC would have to meet to be isolated. It is also far from clear how many government and GNC officials might be affected by the law.

Importantly, the GNC’s law will likely be focused on senior officials and not target minor members of Gaddafi’s government. As one GNC member stated,

“[w]e are asking that those who have been involved in the bloodshed in Libya, with the corruption, not be allowed to be represented in the government, and we want to include this in our future constitution or by laws.”

Still, precisely what this means remains unclear. Given the country’s recent history, this is problematic. Libya’s revolution was fuelled by and on many levels led by the defection of Gaddafi’s inner circle to the rebels and their political wing, the National Transitional Council. Amongst others, Mustafa Abdul Jalil (a former Minister of Justice under Gaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the National Economic Development Board of Libya) and Shukri Ghanem (former Prime Minister), all defected from the Gaddafi regime, immediately boosting the revolutions’ and the rebels’ legitimacy. It remains unclear if any of these figures – so critical to the revolutions’ success – would be able to hold political office.

At the same time, the Political Isolation Law will not only cover politicians but also members of Libya’s judiciary. This might be seen as an irresistible opportunity to rid Libya of its cohort of pro-Gaddafi judges and lawyers, many of whom clearly had little respect for the fundamental human rights of Libya’s citizens. However, including the judiciary is likely to have significant implications on the country’s capacity to effectively prosecute individuals allegedly responsible for serious crimes during and prior to the Revolution. As early as November 2011 International Legal Assistance Consortium foreshadowed this dilemma:

Given the history of the Libyan judiciary’s subservience to the regime, it is difficult to imagine that many existing judges, particularly senior judges, could legitimately serve in a democratic Libya. On the other hand, some thoughtful Libyan expressed concern that total lustration, similar to the de-Baathi$cation steps taken in Iraq, could leave the judicial system with no experienced judges and prosecutors, while creating a cadre of former regime loyalists embittered by their loss of professional standing and income.

Dealing with the past is never an easy task for states emerging from a period of atrocity and autocracy. States have to deal with the need to move forward as well as the expectations of citizens that justice be served. But justice means a lot of different things to people. For many Libyans, part of what justice means is that those officials who were associated with – and perhaps partially responsible for – forty years of Gaddafi rule are never again allowed to assume positions of political influence. The wisdom of such a policy remains murky at best. But if Libya is to go through with its Political Isolation Law, it would be wise to do so carefully and communicate this new law clearly. If it chooses not to, the government risks taking a significant step back in its transition, one that will be very difficult to reverse.

By Jens David Ohlin*

The ICC acquitted Mathieu Ngudjolo Chui today—only the second case at the permanent court to go to a verdict.  For the Office of the Prosecutor, this gives them a 1-1 record (after the Lubanga guilty verdict).

Ngudjolo Chui was originally prosecuted with Katanga, but in a controversial decision last month, the ICC Trial Chamber decided to sever the two cases, announcing that a judgment in the matter of Ngudjolo Chui was forthcoming, while legal proceedings against Katanga would proceed.  Many observers speculated that this meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui, and this turned out to be exactly correct.

In today’s decision announcing the acquittal, the Trial Chamber was confronted with several important legal issues, though the combined opinion mostly concentrates on the Office of the Prosecutor’s inability to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of perpetrating international crimes.

The real action, however, was in a concurring opinion filed by Judge Christine Van den Wyngaert.  In her 34-page separate opinion, she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber’s decision.

First, Van den Wyngaert argued that Article 25(3)(a) of the Rome Statute, which deals with perpetration “through another person,” does not directly include Claus Roxin’s famous theory of perpetration-through-an-organization, also known as Organisationsherrschaft.  Although Van den Wyngaert conceded that many cases described under this doctrine inevitably include perpetration through another person (since organizations are made up of individuals after all), she insisted that this was a factual element of the analysis, not a legal element of the doctrine.  In other words, Roxin’s theory does not belong in Article 25(3)(a) of the Statute, and the correct legal standard is whether the defendant perpetrated the crime through another individual (or individuals), not whether the defendant perpetrated the crime through an organization.

Second, Van den Wyngaert also flat out rejected the new doctrine of indirect co-perpetration, which she described as a “radical expansion” of Article 25(3)(a).  The doctrine was created in previous decisions of the ICC by combining the pre-existing notions of indirect perpetration with co-perpetration, yielding a new hybrid notion of indirect co-perpetration, where multiple individuals cooperate together to direct a horizontal organization that carries out the crime.  There is nothing in the Rome Statute that mentions this doctrine.  I raised many skeptical questions about this new doctrine in my recent essay called “Second-Order Linking Principles”, and I suggested that the new doctrine required far more doctrinal and theoretical justification than had previously been offered by either scholars or courts.  Van den Wyngaert has now concluded that such a justification, consistent with the text of the Rome Statute, is not possible.

Third, Van den Wyngaert offered a sophisticated analysis of the minimum standards for mens rea under the Rome Statute, and specifically rejected the application of dolus eventualis—a civil law doctrine that closely resembles common-law recklessness (but may not be identical).  Indeed, she specifically picked up on the fact that the Lubanga Trial Judgment pretended to reject dolus eventualis but then offered a definition of the phrase “knowledge” that was so expansive (including the risk of future events) that it effectively smuggles in dolus eventualis through the back door.  Not many people have noticed this conceptual error in the Lubanga Trial Judgment, but Van den Wyngaert not only noticed the problem but hit the nail on the head.

At some point, the ICC Appeals Chamber will need to confront not just the fate of indirect co-perpetration, but also the fundamental question of the mens reas standards under the Rome Statute, and whether dolus eventualis qualifies.  When it does, hopefully the Appeals Chamber takes a close look at Van den Wyngaert’s concurring opinion.

As for Ngudjolo Chui, the Trial Chamber ordered him released pending the prosecutor’s appeal, although the release order (as well as the underlying acquittal) will be appealed to the Appeals Chamber.

Source: LieberCode

By Mark Kersten*

For many at the International Criminal Court, it was a rough day at the office. For many in the DRC, it was bewildering and upsetting. On 18 December, ICC judges acquitted Mathieu Ngudjolo, the former Congolese rebel leader who had been on trial for his alleged role in orchestrating the 2003 Bogoro Massacre in which at least 200 civilians were killed. The bombshell acquittal is likely to have significant implications not only on the development of international criminal law but also on the capacity of the ICC to achieve and serve justice.

Many insightful observers have already weighed in on the Ngudjolo acquittal. William Schabas and Jens David Ohlin have assessed its implications on international criminal law. David Bosco weighed in on the shortcomings of the ICC Prosecutor’s strategy of targeting the leadership of governments and rebel groups. Numerous commentators have also argued that the acquittal actually indicated that international criminal law was working – and working well. Over at Wronging Rights, Kate Cronin-Furman, for example, argued that the Ngudjolo there was a silver lining to the verdict: the “acquittal shows that, although the ICC faces tremendous pressure to deliver convictions, it will not operate merely as a stamp on public consensus about a defendant’s guilt.” In a similar vein, Joshua Keating discussed the appropriateness of expecting that everyone who faces justice at the ICC should be convicted:

I understand the frustration here, but I do think there’s a danger in human rights groups decrying trial as a failure because a suspect was not convicted…In any fair court, defendants — includings ones who are almost certainly guilty — are going to sometimes be acquitted for reasons ranging from lack of evidence to prosecutorial incompetence…[W]e’re going to have to accept that sometimes the bad guys will get away with it.

here is a lot of merit in these comments. It seems clear that the Ngudjolo verdict is a demonstration that international criminal law and fair trial standards at the ICC are functioning properly. However, the fact that the ICC’s trial standards were met should not be conflated with a belief that ‘justice’ was served. Rather, the Ngudjolo acquittal sits awkwardly amongst competing conceptions of justice. More specifically, the acquittal exposes the tension between international criminal justice as achieved through tribunals like the ICC and broader expectations that perpetrators are brought to account. This tension has, of course, always been somewhat problematic because it treats ICC justice as superior and sophisticated and local expectations as simplistic and emotional.

Interestingly, the ruling judges themselves grappled with the reality that their verdict sat uncomfortably amidst the expectations of a guilty verdict. They emphasized that their verdict did not mean that Ngudjolo was innocent:

The Chamber emphasised, however, that the approach it adopted does not mean that, in its opinion, no crimes were committed in Bogoro on 24 February 2003, nor does it question what the people of this community have suffered on that day. The Chamber also emphasised that the fact of deciding that an accused is not guilty does not necessarily mean that the Chamber finds him innocent. Such a decision simply demonstrates that, given the standard of proof, the evidence presented to support his guilt has not allowed the Chamber to form a conviction “beyond reasonable doubt”.

till, the ruling could have wide-ranging implications for the ICC’s ability to gain support and cooperation for future cases. There is an ever-present possibility that victims and survivors of atrocity crimes will think twice before seeking and supporting the ICC as a means to achieve accountability and justice. In the wake of the Ngudjolo verdict, many are likely to fear that perpetrators sent to face trial at the ICC would simply spend a few years in relative comfort at ‘The Hague Hilton’ and then be set free. It would not come as a surprise, for example, if Libyans are only more convinced that Saif al-Islam Gaddafi and Abdullah al-Senussi should never be sent to The Hague.

So what is the ICC to do?

As stated above, the acquittal shows that the Court’s legal standards are fair and functioning as they should. It thus follows that they don’t need tinkering. Within the Office of the Prosecutor, the Court’s new chief Prosecutor Fatou Bensouda will surely decide to amend its strategies in order to avoid similar embarrassments in the future. After all, hitting ’50/50′ isn’t a particularly good batting average. However, such changes will be made internally and will probably only yield results years down the road.

However, one thing the Court can do – and should do – immediately is to dramatically increase its outreach capabilities. While it clearly has improved over the years, the ICC hasn’t always done a good job communicating its work and making it accessible to the citizens of the eastern DRC. For example, when the verdict of Thomas Dyilo Lubanga was issued earlier this year, the local ICC communications team in the Ituri region claimed it was not provided with sufficient funds to broadcast the ruling.

The first place the ICC could demonstrate a re-invigorated dedication to outreach is in the Ituri region of the DRC, where it should seek to explain exactly what happened during the trial, explain the verdict and communicate what can and will be done in the future to avoid similar acquittals. To be clear, this isn’t likely to satisfy the people of the eastern DRC. However, it could be the difference between victims and survivors in the DRC demanding improved prosecutorial strategies and demanding that the ICC never get involved at all.

Source: Justice in Conflict

By William Schabas*

In the second prosecution to reach the judgment stage, a three-judge Trial Chamber of the International Criminal Court has just acquitted Mathieu Ngudjolo of war crimes and crimes against humanity.
The judgment is straightforward and entirely accessible to those without legal training: the three judges didn’t believe many of the key witnesses called by the prosecution.
Most experienced lawyers will acknowledge that a unanimous acquittal rooted in the lack of credibility of the prosecution witnesses is relatively impervious to appeal. Although appeals are more or less de rigueur at the international criminal tribunals, the Prosecutor might be wise to decide to devote her precious resources to other pressing priorities rather than try to contest today’s findings by the Trial Chamber. She might decide quickly, and give Ngudjolo enough time to go home for Christmas.

Those who cherish justice should always welcome an acquittal, in the sense that it demonstrates a functional system where the presumption of innocence is applied genuinely. It hardly needs to be said that an acquittal in no way indicates that the crime was not committed, merely that the Prosecutor went after the wrong man.

But as for the health of the institution, there is something troublesome about an Office of the Prosecutor with a batting average at trial of only 50%. To an extent, this might be written off as bad luck, were it not for its other failed efforts. The Ngudjolo case had passed the confirmation hearing stage, which is a preliminary type of hearing designed to eliminate cases where even substantial grounds for a conviction cannot be determined. But the Prosecutor has also stumbled in 4 of the 14 cases to get to the confirmation hearing stage. So the batting average could also be taken as 5 out of 14, which is not impressive, and which fails to take into account the fact that several of the 10 where ‘substantial grounds’ were determined have not yet reached the trial stage.

The Ngudjolo prosecution failed the ‘reasonable doubt’ test, but in a rather dramatic way, with the dismissal of the credibility of the testimony of several key prosecution witnesses rather than, as is the situation in where there is a close call, of a difficulty or ambiguity in the interpretation of testimony where the evidence is otherwise credible. It is the difference between saying ‘It was dark, and we are not convinced that the witness was able to identify clearly the defendant’ and ‘We think the defendant is not believable’. The Prosecutor’s witnesses are in the second category, according to the Trial Chamber.

In the ‘summary’ that was read out in Court today, the president judge, Bruno Cotte, made the point that the judgment means that ‘to declare that an accused is not guilty does not necessarily mean that the Chamber concludes he is innocent’. This seems a bit of a gratuitous statement, especially in light of the fact that its verdict is founded on the lack of credibility of the witnesses.

The judgment rests on an assessment of the facts, and while this is not meant to be a criticism of it at all, there is little of substantial legal interest in the findings of the Trial Chamber. It is more like the verdict of a jury, albeit a reasoned one, than an assessment that rests upon a controversial assessment of legal issues.

Where we get the law is in Judge Van den Wyngaert’s fascinating separate opinion. She uses the occasion to express her views upon the modes of participation in the Rome Statute. Her decision largely endorses the views expressed by Judge Fulford in his separate opinion in the Lubanga case earlier this year. Judge Van den Wyngaert rejects the importation of what is known as the theory of indirect co-perpetration. She insists that the Rome Statute contains a codification of the forms of participation and that it is simply not appropriate to enlarge or modify this as if the text itself did not really exist.

Some observers were perhaps tempted to dismiss Judge Fulford’s separate opinion as a rear-guard attempt of a common-law trained jurist. No longer. With the addition of Judge Van den Wyngaert’s eloquent voice, this becomes a harder contention. She is Belgian, and was trained in a system based upon continental theories of participation. Moreover, she comes with the immense credibility of an academic who has been specialised in international criminal law throughout her long and distinguished career.

Source: PhD Studies in Human Rights

* William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy.

By Mark Kersten*

If the International Criminal Court (ICC) ever opens an investigation into Syria, it will almost assuredly become an irresistible trope to claim that the Court’s involvement caused President Bashar al-Assad to “dig his heals in” and “fight to the death”. It is an intuitive and persuasive claim to make. But there seems to be little support it.

It has long been argued, in the so-called “peace versus justice” debate that ICC investigations and prosecutions, when targeted against government or rebel leaders, remove the incentive of such leaders to negotiate a peaceful settlement and complicate their plans to go into exile or seek asylum. We witnessed this line of reasoning, most recently, in the case of Libya. Muammar Gaddafi was given numerous offers of exile as an incentive to end the conflict through a political, rather than military, solution. Initially, some offers were from ICC states parties, such as Uganda. As the conflict progressed, however, the intervening states exploring exile for Gaddafi made it clear they were looking for non-ICC member states could accept him. Of course, such offers ignored a rather simple but critical fact: Gaddafi had no intention to leave Libya. He said he would stay and fight until his death and he held his word. Little to no evidence suggests that he intended to do otherwise.

More broadly, there is little reason to believe that a leader like Gaddafi or Assad could trust an offer of exile. Offers of asylum or exile for leaders with blood on their hands are increasingly temporary gestures. For proof, look no farther than the case of Charles Taylor as evidence of this fact.

As many readers will already know, Taylor, a Liberian, was a key perpetrator in the notoriously brutal conflict in Sierra Leone. Taylor, however, was also the President of Liberia. During peace negotiations in Ghana to end the civil war in Liberia, the Special Court for Sierra Leone (SCSL) issued an indictment for Taylor. He immediately returned to Liberia, agreed to resign his presidency and fled to Nigeria, which granted him asylum and immunity from prosecution and extradition. After about two years, following requests by the new President of Liberia, Ellen Johnson Sirleaf, and under pressure from the United States and others, Nigeria finally agreed to send Taylor back to Liberia. In response, Taylor tried to flee to Cameroon but was arrested at the border, sent to Liberia and was eventually flown to The Hague to be tried and convicted by the SCSL. Gaddafi, as an important supporter of Taylor, knew this story well.

So what will happen to Assad if the ICC intervenes?

Here’s a snippet from a recent and insightful piece on the subject by Carol Williams and her interview with Andrew Tabler and his take on whether Assad could seek exile:

Tabler, [a] Syria expert at the Washington Institute for Near East Policy, dismisses the notion that Assad would be safe in foreign exile from assassination by angry countrymen, with the possible exception of Iran. He holds out the prospect that Assad could live up to his promise never to abandon his Syrian homeland, especially if the civil war is ended by breaking the country into sectarian components. Assad is of the minority Alawite population, a Shiite Muslim-aligned sect concentrated in the mountainous coastal region of Latakia.

Moscow wants to avoid becoming the object of bitter resentment, Tabler said, as the United States did by sheltering the shah of Iran after the Islamic Revolution, setting in motion an adversarial relationship that persists more than three decades later.

It seems clear that Assad’s fate will be determined in Syria. He is unlikely to give up, even if it does appear that he is losing ground to Syrian rebels. It also seems unlikely he would go into exile. He wouldn’t be safe from groups seeking revenge and he would find it difficult to trust exile as anything more than a temporary gesture.

Other than Russia, some states might consider giving Assad refuge and protection from vengeance or prosecution. There are enough governments that view sticking a finger in the eye of the ‘West’ as a matter of good policy. But how long would that last – until the next government sees protecting Assad as too costly or until a shifting of international allegiances?

Importantly, offers of exile and asylum remain legally feasible. As much as human rights groups might wish it otherwise, there is no international law that prohibits ICC indictees from going into exile or non-member states from accepting indicted individuals. Nevertheless, the nature of international politics has changed dramatically since the days when the likes of Uganda’s Idi Amin could live out the rest of their days in relative peace in exile. Brutal leaders seem more likely today to stick it out to the end than they did just a few short decades ago.

Offers of exile, asylum and immunity continue to be granted to vicious dictators and despots. But they just don’t seem interested in accepting them. Critically, however, it isn’t clear that this is the case because of the existence of the ICC or any changes in the international community’s respect for international justice. So if and when the ICC comes knocking on Damascus, Assad will almost surely remain in Syria. Despite what observers might say, however, it won’t be because of the Court.

Source: Justice in Conflict.

By Lydia Vicente Márquez and Mercedes Melón*

When you mention enforced disappearances it is likely that Argentina, Chile or Chechnya -just to mention a few- come to mind. However, in the heart of Europe, thousands of Spanish families are still digging up side roads and fields seeking their missing relatives in mass graves spread all over the country. With at least 114.266 identified missing persons disappeared during the Spanish Civil War and subsequent Franco regime, Spain is probably the country with the highest number of enforced disappearances in the world. Yet, the only trial held in Spain regarding the crimes committed during the Civil War and Franco’s dictatorship was that of malfeasance (prevaricación) against judge Garzón precisely because he tried to challenge the lack of accountability for such crimes.

Twelve cases concerning crimes committed during the Civil War and Franco regime have been brought before the European Court of Human Rights (ECtHR) against Spain. Victims have sought, amongst other claims, Spain’s international responsibility arising from the continuing violation of its obligation to carry out an effective investigation into the circumstances surrounding their relatives’ disappearances and extrajudicial executions as well as the failure to provide an effective remedy.  So far, the ECtHR has declared inadmissible all cases concerning the Civil War and Franco regime but two, whose admissibility decisions are still pending. It all might be that, as a matter of fact, most of the cases have been “examined” by the same judge (Sicilianos).

Rights International Spain (RIS) submitted the latest of these cases, on 9 October 2012, on behalf of Fausto Canales Bermejo concerning the enforced disappearance of his father, Valerico Canales, on 20 August 1936. The complaint, supported by expert reports, explained the specific circumstances of the individual case as well as of the Spanish socio-political context arising from the Civil War and subsequent dictatorship. These circumstances are crucial to understand the constraints suffered by Fausto Canales to publicly or privately claim his status as a victim, let alone to exercise his rights before a court of justice. His is a case in point of the plight suffered by thousands of Spanish victims of the Civil War and Franco regime, forced to live in silence and fear during decades. Now, they witness how their last resort, the ECtHR, leaves them without answer to their claims of justice.

Approximately a month after submitting the complaint - an unusually short period for a truly serious and in-depth examination of the application and annexes, including the expert opinions-, the ECtHR has concluded that

“In the light of all the elements in its possession and insofar as it has the authority to decide on the complaints formulated, the Court has considered that your application does not comply with the requirements of admissibility established in articles 34 and 25 of the Convention (see mutatis mutandis Gutiérrez Dorado and Dorado Gutiérrez v Spain). This decision is definitive and cannot be appealed before the court, the Grand Chamber or any other body”.

It is worth recalling that Article 45 of the European Convention on Human Rights establishes that “Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.” Yet, the ECtHR has not provided any legal reasoning or explanation whatsoever for dismissal. Hence, paraphrasing the UK’s Supreme Court President, Lord Neuberger, because decisions without reasons are certainly not justice, the Court’s resolution is scarcely a decision at all. Indeed, it is a regrettable response coming from a human rights court.

The ECtHR has used an almost identical standard formula to reject, on admissibility grounds, most of the cases submitted in relation to the Franco regime crimes. The mutatis mutandis reference, without any other indication, contained in the Canales Bermejo resolution to the Gutierrez Dorado and Dorado Gutierrez v. Spain case hardly amounts to legal reasoning.

The ECtHR declared the Gutierrez Dorado complaint inadmissible, among other reasons, because it considered that the applicants did not display “due diligence” in bringing their case before the Court “without undue delay” and therefore the complaint was “out of time”. Let us assume that this is the argument that the Court has used to dismiss the Canales Bermejo case. However, the latter differs from previous complaints presented by other Spanish victims before the Court. In consequence, the ECtHR has not taken into consideration the specific context and circumstances of the individual case.

One of the most relevant differences between both cases is that Canales Bermejo was the first complaint submitted to the ECtHR after, and as a result of, the Spanish Supreme Court decision issued on 27 February 2012. This decision acquitted Judge Garzón of malfeasance in the so-called “Historic Memory” trial. Furthermore, although it was not the matter of adjudication, the Supreme Court judgment definitively closed any possibility of carrying out judicial investigations into the gross human rights violations committed during the Civil War and Franco regime; thereby denying the victims any effective remedies. This denial constitutes a clear violation of Spain’s obligations under the Convention. Yet, instead of approaching the case from the perspective of the State’s duty to investigate and remove all obstacles that hinder the victims access to justice, the ECtHR places exclusively on the victim the burden to act “without delay” and “with due diligence”.

Fausto Canales Bermejo has struggled for many years trying to find out the truth about what happened to his father, disappeared when he was only two years old. His unrelenting activity, bringing all kinds of actions and resorting to all available procedures and mechanisms, contrasts with the Spanish State’s inactivity with regards to its obligation to investigate the enforced disappearance of Fausto’s father. Furthermore, a number of renowned experts (anthropologists, psychologists and jurists) justified, in the reports submitted to the ECtHR in support of Fausto Canales’ application, the “delay” of the Spanish victims to bring “timely” claims to the Court. In a nutshell, victims claim when they can and not when they want to. Accordingly, victims should not be required to act in a context of institutional crisis or widespread fear or where the legal conditions cannot ensure a minimum degree of success of their complaints. The action or inaction of the victim has to be considered within the larger socio-political context as well as within the context of the action or inaction of the State and the international community at large.

Given that the ECtHR’s decision in Canales Bermejo does not provide any reasoning, it is not only an unjust decision for the victim but is also a decision devoid of justice. It places the victim in a situation of inequality of arms vis-á-vis the State. While dismissing the efforts of the victim, the Court does not demand from the State even a minimum degree of due diligence in terms of compliance with its obligations. The inflexibility on the part of a human rights court with regard to the victims while sheltering the State’s flouting attitudes is difficult to understand.

Enforced disappearances amount to a continuing violation of several fundamental rights that lasts until such a time as the victim’s fate or whereabouts are established. To date, that is the case in Canales Bermejo and thousands of missing persons buried in mass graves all over Spain. The existing systematic impunity, which is tolerated and promoted by the Spanish State, contributes to prolonging the suffering of the victims’ families. Regrettably, the ECtHR has condoned impunity with procedural arguments in a decision devoid of justice.

*Lydia Vicente Márquez, human rights lawyer and Executive Director of Rights International Spain. Mercedes Melón, human rights lawyer, Legal Advisor of Rights International Spain

By Rully Sandra*

The year 2012 is an auspicious time indeed. No, we are not talking about the prophetic end of the world according to the Mayans, but the many important landmarks in human rights and international relations that have taken place this year.

We witnessed recently how Palestine obtained its observer state status from the United Nations and ASEAN finally adopted its ASEAN Human Rights Declaration, albeit to widespread criticism. We also marked the 10th anniversary of international justice this year.

Given the calamities in human history, including World War II, the Balkan conflict and atrocities in Africa, the notion of international justice calls for humanity to take action to address the most serious crimes of common concern, i.e. genocide, crimes against humanity, war crimes and crimes of aggression. It demands that people say no to impunity and ensure justice is delivered to victims.

The International Criminal Court (ICC) was established in 1998 with this vision in mind.

In fact, the commemoration of the 10th anniversary of international justice is based on the entering into force of the Rome Statute of the ICC in 2002.

To date, 121 countries in the world have ratified the statute, including three countries from Southeast Asia, namely Cambodia, the Philippines and Timor Leste. Sadly, Indonesia remains in the group that is not a party to this statute.

Indonesia was involved in the adoption stage of the Rome Statute, where Indonesia’s delegation was led by the then law and human rights minister Muladi.

At that time, Indonesia supported the establishment of the ICC and stated that its participation was to fulfill its constitutional obligation to contribute to the establishment of a world order based on freedom, genuine peace and social justice.

The plan to accede to the Rome Statute has been included twice in the National Action Plan on Human Rights (Ranham), first in 2004 and second in 2011.

Last month in the Assembly of States Parties to the ICC, the office of the ICC presidency informed us that President Susilo Bambang Yudhoyono had sent a letter in April 2012 stating that Indonesia was still committed to its pledge, although this has yet to be proven.

Indonesia’s hesitation is mostly based upon an unfounded fear of prosecution for past crimes, despite the fact that the Rome Statute clearly states that its applicability is non-retroactive.

On the other hand, the court is about to begin trial proceedings on a case concerning the killing of African Union peacekeepers in Sudan.

This signifies the importance of the court in protecting those assigned to help civilians in times of conflict and post conflict.

We should reflect on the fact that Indonesia has been actively participating in UN peacekeeping missions since 1957 and thousands of Indonesian military and police personnel are now deployed in a number of locations. Indonesia has even established a new state-of-the-art Peace and Security Training Center as part of its preparations to become one of the top-10 troop-contributing countries.

Thus, the lacunae of legal protection for our peacekeepers should at least be considered by our policymakers to accelerate the accession process.

Another reason is that Indonesia has always claimed to be a strong supporter of Palestine. One possibility that has now opened for Palestine after the gaining of its observer status at the UN is to accept the jurisdiction of the ICC and to continue its efforts to pursue war crimes charges in the court.

How can Indonesia support this if it can only applaud from outside the fence?

The UN General Assembly has just adopted a Declaration of the High-Level Meeting of the General Assembly on the rule of law at the national and international levels.

One of the paragraphs recognizes the role of the ICC and emphasizes the importance of cooperating with the court.

As a country that endeavors to uphold the rule of law as stated in the Constitution and legislation, the national long-term and medium-term development plans as well as the national access to justice strategy, Indonesia should also look at its participation in fighting impunity at the international level as a manifestation of its own vision.

Last but not least, by acceding to the statute, Indonesia will have an opportunity to shape the development of international criminal law and, further, international justice that will be advantageous to advance legal discourses in
the country.

Have we even wondered why a country as large and influential as Indonesia has only a few notable experts that appear at international legal forums?

Nevertheless, we should not lose faith that Indonesia will eventually meet its promise and see that the significance of international justice is not only to strengthen its international role but also to strengthen human rights protection in the country. Not too far in the future, one would hope.

Source: The Jakarta Post

* Sandra is program coordinator at the Human Rights Resource Center (HRRC) and a member of the Indonesian Civil Society Coalition for the International Criminal Court (Indonesian CICC).

By Stephen Lamony*

African states must take lead in prosecution of grave crimes rather than diluting the mandate of an over-stretched regional court.

The three year old impasse between the African Union (AU) and the International Criminal Court (ICC) is being further complicated by plans to expand the jurisdiction of African Court on Human and People’s Rights (African Court) to cover grave international crimes. While new leadership in the two bodies offers a chance at reconciliation, African states must live up to their obligations to hold perpetrators to account rather than diluting the mandate of the over-stretched African Court.

In theory, the AU and ICC share a common goal of ending impunity for perpetrators of gross human rights violations. The AU constitution promises “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.” In practice, however, the two have greatly differing plans for ending impunity, which is driving the AU to expand the African Court’s jurisdiction. Africa’s courts are also severely underequipped to prosecute perpetrators of gross human rights violations.

Proposed expansion of the African Court

In July 2012, the AU received a proposal to expand the statute of the African Court to include jurisdiction over international criminal prosecutions, including, but not exclusive to, genocide, war crimes, and crimes against humanity. The AU delayed a decision on the proposal until January 2013, when it would have more information on the costs of the expansion, it is unclear that it will pass at that stage or be further delayed.

The AfricanCourt—established in January 2004—is currently failing to carry out or implement its mandate to monitor state’s accordance with, and implementation of, the African Charter on Human and Peoples’ Rights. An expansion of the African Court’s charter would dilute its original mandate, offering little hope for success in prosecuting international crimes. With the cost of a single international criminal trial estimated at nearly US$20 million—almost double the combined approved 2009 budgets of the AU Commission and the African Court—financing is a major issue. The African Court does not have the funding or infrastructure necessary to successfully prosecute international crimes; efforts to secure funding or build infrastructure would take years, allowing the current culture of impunity in Africa to flourish.

Difficult AU-ICC relationship driving African Court proposals

The difficult relationship between the AU and ICC is driving the proposals to expand the jurisdiction of the African Court, with their differences stemming from fundamentally differing views of justice and peace. The AU sees international justice as an impediment to peace, and that the two are mutually exclusive, i.e. it is either peace or justice. The ICC meanwhile stands for justice for victims irrespective of the situation.

AU decisions also reflect several more specific concerns that serve to exacerbate this philosophical difference. In July 2009, for example, the AU aired several complaints about the Court and Rome Statute, including the United Nations (UN) Security Council (Council) power to refer cases to the ICC, the lack of transparency in ICC proceedings, the need for clarification on the immunities of officials whose states are not party to the Statute, and expressed a desire that there is regional input in determining whether or not to proceed with prosecutions. In February and July 2009, the AU called on the Council to reverse the ICC charges against Sudanese President Omar al-Bashir, arguing that they were undermining the peace process in Sudan and resolution of the conflict in Darfur.

Meanwhile, in July 2010, the AU took issue with the conduct the then chief prosecutor Luis Moreno-Ocampo, who it accused of “making unacceptable, rude, and condescending statements on the case of al-Bashir and other situations in Africa.” The perception of a biased ICC focus on African has been a recurring theme among certain leaders. Then in July 2011, the AU condemned the ICC charges against former Libyan leader Moammar Qaddafi for “complicating the efforts aimed at finding a negotiated political solution to the crisis in Libya” and urged domestic trials for Libyans charged with international crimes.

It was during its July 2009 General Assembly that the AU first asked the African Court to “examine the implications of the Court being empowered to try serious crimes of international concern.” Needless to say, the efforts to expand the jurisdiction of the African Court can therefore be seen as forming part of a wider AU contestation of ICC jurisdiction.

Habré case - beginning in sight?

Among many examples of African states failing to prosecute international crimes, Senegal’s slowness in bringing to trial former president Hissène Habré—under house arrest since 2005—for the political killings and torture that characterised his rule over Chad from 1982 to 1990 stands out.

In July of this year, Senegal and the AU signed an agreement to set up a special tribunal to try Habré, prompted by an International Court of Justice (ICJ) ruling that the country must begin proceedings without further delay if it did not extradite him. This followed years of intense pressure from the international community to extradite Habré to Belgium or another European country that already has the infrastructure necessary for a trial of such magnitude. Senegal and the AU, however, consistently refused these demands, insisting that a regional trial would be carried out. Since 2006, the AU and the Senegalese government have been trying, and failing, including through appeals to other African states, to raise the necessary funds to try Habré.

While President Macky Sall’s willingness to prosecute Habré is a promising sign, it remains to be seen how long it will take for the special tribunal to be set up and whether it will meet international standards. The outcome of the trial will also have a significant impact on the international community’s views on the effectiveness of African courts in trying human rights violators. If African national and regional courts continue to fail victims, international courts like the International Court of Justice (ICJ) or ICC will continue to intervene.

Given the failure of the African Court system to date in bringing Habré to justice, it seems ill-advised for the AU to continue its efforts for an independent regional court. Furthermore, it has been suggested that states parties to the Rome Statute do not have the legal ability to try any crimes (excluding genocide) in a regional African Court. Although this is as of yet unproven, this would be another reason for the AU not to expand the mandate of the African Court.

The way ahead

It remains to be seen whether the AU and the ICC will be able to resolve their differences, which continue to impede efforts to end impunity and protect human rights in Africa. However, with former South African minister Ms. Nkosazana Dlamini-Zuma taking over the leadership of the AU Commission and Ms. Fatou Bensouda becoming ICC chief prosecutor earlier this year, there is much scope for the building of a new AU-ICC relationship.

At their next summit in January, African leaders should take the AU commission to task over its continuing non-cooperation with the ICC in the knowledge that the African Court is not in a position to undertake prosecution of international crimes. “It cannot, and will not, offer relief to any of the people currently indicted or under investigation by the ICC” Instead the AU and individual states need to reject any kind of justice aimed at protecting a few powerful people, uphold their obligations to cooperate with the ICC, and strengthen national capacities and political will to prosecute perpetrators. Their citizens deserve no less and civil society stands ready to assist.

Source: African Arguments

* Stephen Arthur Lamony is a Ugandan born national who works for the Coalition for the International Criminal Court as a Situations Adviser. The views expressed here are mine and do not represent the official position of my employer.

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.