IJCentral: International Justice Central

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

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

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

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

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

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

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

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

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

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

The IJCentral Team

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

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

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

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

Gender Violence and War

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

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

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

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

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

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

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

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

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

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

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

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

—-

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

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

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

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

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

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

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

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

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

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

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

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

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

—-

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

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

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

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

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

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

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

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

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

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

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

The Coup and alleged crimes

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

Reign of Impunity, Lack of Accountability

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

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

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

Nunca más?

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

Victims have the right to justice.

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

It is time to act.

——

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read original article on Huffington Post here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time is nearly up for the world’s first ever Chief Prosecutor of the International Criminal Court (ICC). Human Rights Watch has published a report about his period in office, entitled “Unfinished Business”. International Justice Tribune talked with its author, Liz Evenson.

Published on 11 October 2011. By Bram Posthumus, Brussels

A cursory glance at the internet reveals all manner of labels attached to the ICC and its most visible official, Chief Prosecutor Luis Moreno-Ocampo. At one end it is an “arm of Western imperialism”, at the other nothing more than a “paper tiger”. Criticism has been particularly virulent against the perceived bias of the ICC: why have, so far at least, all the defendants come from Africa?
ICC basics
Liz Evenson from Human Rights Watch summarizes the role of the court as “the world’s first permanent court, set up to try crimes of genocide, war crimes, crimes against humanity; the world’s worst crimes.’

There are three ways in which a case can come before the ICC. First: referral by a state that has ratified the document that created the ICC, the Statute of Rome. Second: an order to investigate by the United Nations Security Council. Third: the personal initiative of the ICC Chief Prosecutor. There are currently seven cases before the court; five of those are government referrals: three in the DR Congo, one in the Central African Republic and one in Uganda. Another one (Darfur) is a Security Council decision and one (Kenya) is the result of the Chief Prosecutor’s own will.

These constitute the subject matter of Evenson’s report.

The Chief Prosecutor and his office have very specific roles, says Evenson: ‘To bring investigations and prosecutions and to decide which countries to investigate, who to investigate and for what - and see that through to completion. He must also protect victims and witnesses but he must seek the truth. That is: look for evidence that incriminates an individual – but also evidence that exonerates an individual, in the interest of a fair trial.’

There is one extra, intermediate step, known as the ‘confirmation of charges hearing’. Here, the ICC judges will hear the evidence and then decide to let a case go ahead or throw it out.

The Face of the ICC

It is easy to see how and why the current Chief Prosecutor became the face of the ICC. His role is central to the whole process. Add to this Mr Moreno-Ocampo’s drive, flamboyant personality and an interesting legal career in his native Argentina and you have the ingredients for a major road show. The report, however, deals less with the character and more with the judicial nuts and bolts.

Impartiality and independence are the two key principles that should guide the work of the Prosecutor’s Office, while at the same time an entirely new international legal institution is created. Moreno-Ocampo’s job has been difficult. But how has he performed? For Liz Evenson the record is mixed.

‘We can take the case of the DR Congo. The justice needs there are tremendous. The Chief Prosecutor has conducted three investigations, two in the Ituri region and one in the Kivus. In Ituri, the leaders of two rival militias have been investigated. But our research indicates that those militias were supported by governments in the region. Rwanda, Uganda and officials in Kinshasa were involved. So we have urged the Chief Prosecutor to go up the chain of command to see if those who supported these militias also share criminal responsibility.’ The implication is clear: not doing so will mean that full justice is not delivered.

In the Ugandan case, the ICC’s impartiality was compromised when Moreno-Ocampo and the Ugandan president Yoweri Museveni gave a joint press conference in 2004, announcing the opening of investigations into Joseph Kony, the leader of the notorious Lord’s Resistance Army. The government’s own forces also committed abuses in this conflict and so, Evenson concludes: ‘It did undermine the sense of independence and impartiality – at least at the outset of the investigation. There may be legal reasons why only one side of the conflict has been investigated but the Chief Prosecutor must then explain these clearly.’

Weakness

The Uganda case exposes a crucial weakness of the ICC: its dependence on states parties to deliver alleged criminals. If the government does not want to do it, it simply does not happen. Conversely, governments may think that hauling citizens before the ICC can be a convenient way of getting rid of people they do not like.

The problem becomes even more glaring when we consider non-states parties like Sudan. Since July 14th 2008, Sudan has been ruled by an indicted war crimes suspect. And on March 9th 2009 the ICC issued a warrant for his arrest. This may restrict some of his travel plans but he is still the relatively untouchable President of Sudan. ‘It is a continuing battle to reinforce the importance of the arrest warrants,’ says Evenson. ‘Even if they cannot be executed tomorrow, justice has a very long memory.’ Ask Mssrs Mladic and Karadzic, now before the Yugoslavia Tribunal, a precursor to the ICC.

The Kenya case has brought more balance to the ICC prosecution’s handling of cases. Six alleged instigators of widespread post electoral violence are being investigated – the men coming from both main parties in the conflict and their hearings taking place simultaneously in The Hague. These are positive steps according to Human Rights Watch.

Powerful interests – an Africa bias?

In the end, arrests will come about because of government compliance or international action. But the question must be asked whether the ICC actually does its work free from political interference from the world’s heavyweights. Uganda is a friend of the USA; Sudan is a friend of China – and so on. Liz Evenson puts it subtly: ‘It’s still an unfortunate reality that those who are allied with powerful interests are more likely to escape justice.’

There is a perception that the court is picking on African countries. This is a moot point since African governments were important actors in creating the ICC, especially following the Rwanda genocide. Liz Evenson thinks that the concentration of attention on Africa is problematic – ‘but then the answer cannot be less justice for those who do fall within the ICC’s reach. Yes, all the cases currently being investigated are in Africa but that does not take away from the seriousness of those crimes.’

Moreno-Ocampo suffers from a degree of criticism but Evenson praises his passion and energy in what has been a challenging job. He has succeeded in putting the ICC on the map.

Next chapter

What does Human Rights Watch look for in the next Chef Prosecutor? Less flamboyance? Fundraising skills perhaps? The Office of the Prosecutor has a huge caseload and limited means. Liz Evenson sums it up: ‘The next person must have demonstrated skills in investigation and prosecution. Good office management is also necessary, given the amount of work. And the next person must also understand and be committed to communicating the work of the court. Names? Sorry, no suggestions. But these wishes have been communicated to the ICC.’

None of this implies that the current office holder did not do these things but they must be done better and for this reason, ‘We’ve made a choice as an international community – for justice. We no longer want leaders who commit crimes against their own people or against people of other countries being entitled to retire in this golden life of exile. Eventually we want to build a system that can deter these crimes’, says Evenson.

Read original article on Radio Netherlands Worldwide (RNW) here.

International Criminal Court chief prosecutor Luis Moreno-Ocampo is the subject of the documentary Prosecutor, premiering Oct. 9 on the Documentary Channel. He talks to Marlow Stern about going after war criminals Muammar Gaddafi and Sudan’s Omar al-Bashir, and why he can’t intervene in Gaza.

Boasting 118 member states representing approximately 2.4 billion people, the International Criminal Court is a tribunal whose mission is to prosecute individuals for genocide, war crimes, and crimes against humanity. It operates out of The Hague in the Netherlands, and since coming into being in 2002, the ICC, which is governed by the Rome Statute, has opened investigations in seven places: the Democratic Republic of Congo; Uganda; the Central African Republic; Darfur; Kenya; Libya; and Côte d’Ivoire.

The ICC can take action only if the crime took place in a member state or if the United Nations Security Council refers the case. And since 2003, Argentine lawyer Luis Moreno-Ocampo has served as the ICC’s chief prosecutor, overseeing all its cases.

Despite the ICC’s noble premise, many have been critical of the court for its inability to bring criminals to justice—it can’t send forces to apprehend criminals—even though the court has spent nearly $1 billion in member states’ money. Part of the problem, it seems, is that the ICC’s jurisdiction isn’t recognized by the U.N. Security Council’s five permanent members: the United States, the United Kingdom, China, France, and the Russian Federation. The highest-profile cases, however, have been referred to the ICC by the Security Council, including charging Sudanese President Omar al-Bashir with genocide, war crimes, and crimes against humanity in Darfur, and, recently, charging Libyan dictator Muammar Gaddafi and his son Saif al-Islam with war crimes and crimes against humanity for their actions during the ongoing Libyan revolution.

Moreno-Ocampo is the subject of a documentary, Prosecutor, that will premiere on the Documentary Channel on Oct. 7. In an interview with The Daily Beast, he talks about why he charged Bashir and Gaddafi with war crimes, how he can’t intervene in Gaza despite Palestine’s pleas, why he doesn’t need the U.S., and more.

Your job in the documentary is described as “a salesman of social justice.” Do you agree with this description?

I am a prosecutor, and my job is to investigate war crimes. And the money is coming from 118 states with 2.4 billion people, so a prosecutor has to reach the citizens he’s serving. How do you reach 2.4 billion people? With movies. It’s the only way to do it. The meaning of justice is not just for the judges; I need my citizens to understand what we are doing. The Nuremberg trials were very important, but what people really understood was the movie about the trials [Judgment at Nuremberg]. Movies are the way to reach a massive number of people.

How much harder is your job, given that the U.S. doesn’t recognize the ICC?

This International Criminal Court is the creation of small states, so all the big countries who are protected by big armies don’t need the law. It’s the first time that a multilateral institution was created without the big countries, and only the smaller countries. And it’s working.

Does it bother you that the U.S. isn’t involved?

No. It’s normal.

There’s a question posed in the documentary about charging U.S. soldiers with war crimes in Afghanistan, since Afghanistan recognizes the ICC. However, it clearly poses a huge problem, since the U.S. does not.

Any person committing crimes of humanity or crimes of genocide in Afghanistan could be prosecuted by the ICC. The issue is: there should be crimes committed, and there should be no national proceedings. Those are the two limits.

Much of the documentary focuses on Omar al-Bashir and the atrocities in Sudan. It was seen as a very controversial move when you charged him with genocide, crimes against humanity, and war crimes in Darfur back in 2008.

The decision to do justice in Darfur was not introduced by me. It was the Security Council’s decision in March 2005. For me, it took two years to collect the evidence, and we charged first the minister of state for the interior, Ahmed Haroun. We proved his role in the massive campaign surrounding villages in Darfur—shooting, killing, raping, and forcing the displacement of 4 million people. After that, President Bashir said he would not hand over Haroun because he was following his orders. So we kept investigating Haroun and Bashir, and how [Bashir] was giving him instructions, and when I had the evidence I informed the Security Council that I would proceed, and I proceeded. That’s my job. Basically, it’s a matter of time before Bashir faces justice. The problem is that in the meantime, the genocide is ongoing.

Do you wish you had a police force to actually bring these criminals to trial?

No. It would never work. We cannot invade. Look, it’s a matter of evolution. In the 19th century, in this country, the Supreme Court ruled that the state of Georgia passed a law against the Cherokees in this country that was unconstitutional. Then a journalist went to President Andrew Jackson and asked, “How are you going to enforce the Supreme Court’s decision against Georgia?” And the president said, “The Supreme Court decided it, and the Supreme Court will enforce it,” basically ignoring him. That was at the beginning of this country, but now, nobody challenges the Supreme Court. It’s a matter of time. The international criminal court of Yugoslavia has 18 years of activity now. Do you know how many war criminals they’ve indicted? 161. How many remain fugitives? Zero. It took a lot of time, but it’s a matter of time. At the end, they faced justice.

Interpol recently moved Libyan dictator Muammar Gaddafi and his son Saif al-Islam to the top of its “Most Wanted” list, at your request.

Yes, this was at my request. Libya is a case where it’s working very well. Gaddafi, who has a lot of power, suddenly started to kill civilians, and the media showed that. The crimes were committed on Feb. 17, and just days later the Security Council referred the case to the ICC. In Darfur, it took two years to decide to refer the case to the ICC. The world is evolving. After that, I had the mandate to investigate the crimes of Gaddafi, I presented my case three months later, the judge issued a warrant in June, and now Gaddafi is a fugitive. And Saif al-Islam and Muammar Gaddafi should be arrested.

What about Côte d’Ivoire? I read that you’re currently investigating it.

We requested to open an investigation in the Côte d’Ivoire, and we hope that in a few days we’ll get the authorization. But we say that when in December, Charles Blé Goudé was inciting young people to commit crimes, we said publicly this could be a crime, and then they would stop it, but then they started again after. When we say we’re going to do an investigation, we’ll do it.

The Palestinian National Authority has openly recognized the jurisdiction of the ICC and is pleading with the court to investigate war crimes in Gaza, but it’s a very tricky situation.

The problem is the legal issue. The Rome Statute says “a state” can recognize your jurisdiction, but is Palestine a state? OK, that’s an issue that’s now being debated. Before we clarify if Palestine is a state, we can do nothing. I’m a prosecutor; I’m not an activist. I must appreciate the legal limits.

Your term is over in nine months. What do you really wish to accomplish during the rest of your time at the ICC?

We’ll finish two trials, and I hope we can move the Côte d’Ivoire case forward and arrest some of the fugitives. To me, the most important thing is that we build an institution. When I arrived eight years ago, I had two employees, six empty floors, nothing. Now I have 300 people working around the world, and I can pass this institution to the next prosecutor. We’re building an institution to do justice for the worst crimes in the world.

Is it a lonely job?

It’s very difficult and full of problems. I love stress. No, I’m kidding. I’m Argentinian and I’m trained on cows. In Argentina, I was a prosecutor against the military juntas and corruption, and it’s a country in which you have to be firm to establish the law, and in the international world, you have to be firm to establish the law. But you feel it’s very rewarding, knowing that you’re doing something for victims around the world.

What measures would you take to make the ICC more effective?

It has been effective. The power of the ICC is the power and the commitment of the state parties. It’s not just about what the judges are doing. We have to do a good legal job, but the commitment is also in the states enforcing these decisions. There are some problems with Bashir, a head of state, and Joseph Kony [head of Uganda’s Lord’s Resistance Army], who is a militia leader, so it’s complicated to arrest him. We can do better, but it’s working.

What’s next for you after the ICC? Golf?

I have another nine months! Let me finish, and then we’ll talk.

Read original article here.

JOHANNESBURG, 6 October 2011 (IRIN) - International human rights law meanders between the vague and the hazy when it comes to its stance on the age of criminal responsibility and what, if any, punishments should be imposed on child soldiers guilty of war crimes.

The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.

Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.

International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Aftermath of Armed Conflict, September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.

The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.

Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.

The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”

“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.

That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”

The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”

Victims and perpetrators

The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.

It may appear a grey area easily resolved by providing indemnity for crimes committed by child soldiers under the age of 15, but Radhika Coomaraswamy, SRSG for children and armed conflict, noted - in a 2010 article for the International Journal of Children’s Rights: The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict - Towards Universal Ratification - that such a provision could be perversely used.

“If minor children who have committed serious war crimes are not prosecuted, this could be an incentive for their commanders to delegate to them the dirtiest orders, aiming at impunity. For this reason the ICC and SCSL focus strongly on those persons most responsible for human rights and IHL violations and apply the concept of command responsibility to political and military leaders,” Coomaraswamy said.

Command responsibility does not necessarily remove individual culpability for serious human rights violations by lower ranks or subordinates, but “rather it traces liability back up the chain of command,” said legal adviser to the ICRC Young.

When child soldiers become adults

Dominic Ongwen was about 10 when he became a soldier with the Lord’s Resistance Army in the 1980s.

The ICC issued an arrest warrant for him in October 2005 for crimes against humanity, including enslavement of children. However, jurisdiction by the court does not extend to crimes committed by people under 18, and before 2002 when the Rome Statute entered into force. The crimes cited are for when Ongwen was an adult.

“Ongwen is the first known person to be charged with the same war crimes of which he is also a victim,” the Justice and Reconciliation Project, a Ugandan NGO concerned with transitional justice, said in a 2008 field note entitled Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen.

“[Ongwen and other child soldiers] represent precisely the kind of complex political victims who, if excluded from justice pursuits, could give birth to the next generation of perpetrators in Uganda; generations marginalized by the judicial sector and who have nothing to gain from citizenship and nothing to lose from war,” the field note observed.

The Lubanga case

Tomaso Falchetta, Child Soldiers International (CSI) legal and policy adviser, told IRIN child soldiers should be viewed as victims and the NGO opposed their prosecution, as emphasis should be on the criminal responsibility of the adult recruiters. CSI “does not advocate for a cut-off point [for the prosecution of child soldiers], as it is a difficult issue.”

The first person to stand trial at the ICC for enlisting children under 15 was former Democratic Republic of Congo (DRC) warlord Thomas Lubanga. His trial at The Hague is nearing completion after he allegedly recruited underage children into the Patriotic Forces for the Liberation of the Congo (FPLC) during the conflict in Ituri, a district in the eastern DRC, between 2002 and 2003.

An international humanitarian law expert, who declined to be identified, told IRIN Lubanga’s case was “tremendously important” as “it will make others pause and think… Every rebel leader must be aware of this case.”

Falchetta said it was “difficult to provide an empirical judgement on that [Lubanga’s ICC prosecution being a deterrent]”, and rather that accountability needed to be enforced at the national state level to discourage the continued use of child soldiers.

The former DRC president, Laurent Kabila, said in 2000 the armed forces would demobilize all child soldiers but a year after he made the commitment, four DRC child soldiers aged 14-16 were granted clemency, after death sentences imposed by a military tribunal led to international condemnation from human rights organizations. A 14-year-old child soldier was reportedly executed the previous year.

Capital punishment for persons under 18 violates the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The DRC is party to both international human rights treaties.

“The DRC laws may be there [the use of child soldiers is illegal], but when it comes to implementation, investigation and prosecution [of adult recruiters], we’ve seen little of that,” Falcetta said.

The CSI said in an April 2011 report (entitled Report to the Committee on the Rights of the Child in Advance of the DRC initial report on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict) that “hundreds of children remain in the ranks of the national armed forces (Forces Armées de la Republique Démocratique du Congo) despite legal and policy obligations to release them and government pledges to do so.”

Laws of war

Matthew Happold of Hull University in the UK said in 2005 paper entitled The Age of Criminal Responsibility in International Criminal Law there were “good reasons” for regulating criminal responsibility of international crimes through international law as they were “often distinguished from crimes under national law because they transcend national boundaries and are of concern to the international community.”

He said, in the paper presented at the Hague Academic Coalition’s conference on international criminal responsibility, that from the perspective of a defendant, “it would seem wrong for an individual’s liability under international law to depend upon the place of prosecution…. States are obliged to prosecute and punish offenders. Permitting States to decide their own age of criminal responsibility would allow them to determine the scope of their international obligations.”

Child soldiers, like any other combatants are subjected to the Nuremburg principle that holds: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

ICC’s Article 33 determines that acting on orders from superiors was not a defence of criminal responsibility but there are mitigating circumstances, and among them, is that a person may be relieved from prosecution if they did not know the order was unlawful.

However, the commission of “manifestly unlawful” crimes, such as genocide or crimes against humanity cannot be mitigated.

Young said the “so-called `defence of superior orders’... the [Nuremberg] principle that `I was just following orders’ can no longer relieve any of us of criminal (and moral) responsibility for unconscionable acts we commit at the behest of others.”

However, Rule 155 of Customary IHL, provided leeway, where “coercion and duress may provide exceptions… and one can quickly imagine how this principle might mitigate the responsibility of a child soldier who was forcibly recruited and forced, under threat of harm, to commit war crimes,” ICRC adviser Young said.

Dictators have a style all their own, full of murals, zoos, gaudy furniture and gold

Rock ‘n’ roll legend has it that during the Sixties, a record executive was invited to the baroque mansion of singer Ike Turner. Observing the mirrored ceilings, whale-shaped television and waterfall in the living room, he was moved to remark: “Man, so you can spend a million dollars at Woolworths.”

This came to mind looking at pictures of Moammar Gadhafi’s compound, invaded by rebel forces in the Libyan capital Tripoli. Perhaps it was the surreal teapot-and-teacups fairground ride in his garden. Or the zoo, stocked with animals supplied by African dictators. Perhaps it was the murals, or even the huge gold sofa shaped like a mermaid and bearing the face of his daughter Aisha.

Dictators are generally not keen to allow hoi polloi a peek inside their homes. Not for them the Hello! spread. (It can be inconvenient for the little people to glimpse one’s gold taps when they lack clean water.) But, should you see inside (without an accompanying death warrant), the only thing not to expect, as Peter York noted, in his 2005 book Dictators’ Homes, is good taste. As Gadhafi, Saddam Hussein and countless others before them have shown, there is a definite stylistic thread, a dictator chic, if you like. And dictator chic is about the display of wealth and power in every possible form.

Firstly, there must be gold. Lots of it, in the form of cutlery, taps, weapons, sofas in the shape of family members. Last week, a looter of Gadhafi’s compound was pictured brandishing what appeared to be gold revolver. I’d bet the sofa remains in place - it would require the entire rebel force to lift it.

There should be ornate French furniture - a favourite of the nouveau riche (dictators do not usually come from wealthy backgrounds). Reproduction is preferable, being shinier than the antique stuff. Shiny, whether it be marble floors or planet-sized chandeliers, is a key element of dictator chic.

There must be animals, too; preferably live ones within a private zoo, and if that proves difficult, glorified images of them: fearsome beasts such as eagles, bears and lions. Jean-Bedel Bokassa, former self-appointed emperor of the Central African Republic, took this to its apotheosis with a towering, gold-plated, two-ton throne in the shape of a spread eagle (it went very fetchingly with his red velvet and ermine train).

There should also be murals in abundance. Saddam Hussein’s wall paintings became globally famous. In a typical example, a naked Fabio look-alike wrestled an oversized fanged snake, while a bare-breasted blond looked on.

In another, gold-tipped missiles poked rigidly into the sky. It is fair to say Freud would have not have been bored.

But the cornerstone of dictator chic is “things in one’s own image.” The late Saparmurat Niyazov, president of Turkmenistan, commissioned, among many monuments to himself, a gold statue that revolved to always face the sun. (He said, in a 60 Minutes interview: “I’m personally against seeing my statues in the streets, but it’s what the people want .”) It makes the residences of Stalin and Hitler seem austere.

I might be the only person who quite liked the retro, Orla Kiely-style palm print on Gadhafi’s Bedouin tent (former British prime minister Tony Blair got a close look when he visited; ask him).

But as dictators fall, there are odd reminders that they are human, too. Discovered in the compound were family photo albums (one, curiously, devoted to Condoleezza Rice). There was the melancholic sight of his daughter Hanna’s bedroom, preserved under glass since her death in 1986.

But it is hard to feel much sympathy. For whenever these palaces are finally sprung open, as Gadhafi’s was last week, citizens are overwhelmed by the riches they find inside, riches usually harvested from people who are struggling to feed their children.

Yesterday, as a 10-year-old boy struggled with his loot - including a suitcase, replica gun and satellite television receiver - a soldier reportedly shouted at him to stop.

“Let him take what he wants,” came the response from other Libyans. “It belongs to him.”

Gold mermaid sofa, anyone?

© Copyright (c) The Edmonton Journal

Dear Thomas,

Thanks for your letter. I would have written back earlier, but I’ve kind of been on the move lately. I did find the time to read the Rome Statute that you sent me though. Very interesting, but let me just say, whoever wrote that thing is a real killjoy.
Thanks too for being so welcoming, but I’m afraid you’ve got it all wrong. I’d love to come and visit you in The Hague, but I’m headed for sunnier shores, Venezuela perhaps (I wrote to Hugo and I’m waiting to hear back), or Cuba if they’ll have me. There’s talk of Niger putting me up. The Mrs. is on vacation in Algeria right now, but she sends her regards.
Death to all infidel drug addict rebel sewer rats!
Excuse me, a little outburst of rage there. I’m afraid it can’t be helped someti – Europeans your cities will burn, burn I tell you – sorry about that. I’m under a fair bit of stress lately. 
I heard they completed your trial and I had a thought about your little ICC predicament. Have you tried throwing money at the situation? Literally, I mean. Like leaning out of the window of a moving vehicle and chucking it at people. I did that once and got crowned King of Kings – which was nice.
Send my best to the other guys. What’s the wardrobe like there btw? Just in case, you know. I’m quite fond of a colorful throw, and the thought of sober prison garb is rather terrifying. If all goes really wrong I’ll give Tony or Silvio a call. They’re my friends, at least they were last time I checked.

Lots of love,

Muammar

As stated in a previous post on this website, Latin America has demonstrated a true commitment towards the founding and fundamental principles of the Rome Statute. As of September 2011, 118 states have ratified the Rome Statute, including 15 of 19 Latin American countries, thereby demonstrating the commitment from the world and region to ending impunity and adhering to the rule of law. Furthermore, Latin American states have reinforced their commitment to the Rome Statute system by nominating 5 candidates from the region for the ICC judicial elections, to be held during the tenth Assembly of States Parties in December 2011.

Nicaragua is one of the countries in the Americas that have been reluctant to ratify human rights treaties, especially those that refer to massive human rights violations, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, and the Inter-American Convention on Forced Disappearance of Persons. Nicaragua’s accession to the Inter-American Convention to Prevent and Punish Torture, in 2009, should be seen as an exception to the rule and not as a change in its policy towards human rights instruments.

It should also be noted that Nicaragua’s reticent approach to human rights treaties seems to be a common Nicaraguan policy, regardless of the different governments’ ideologies. In this context, it is not outlandish that Nicaragua is not yet a state party to the Rome Statute of the International Criminal Court (ICC).

Social Situation

Given the difficult social situation in the country, where organized crime is a constant and strong threat to security and political stability, ratification of human rights treaties or the adoption of strong human rights policies do not seem to be a priority.

For example, the latest US State Department country report on Nicaragua identifies deficiencies in its governance system and qualifies it as one of the countries that lacks respect for the rule of law.

This is not news to the local civil society community. International and local NGOs have documented numerous human rights violations on several occasions, including torture and enforced disappearances of people. It is their recording of these violations that has led local NGOs to call incessantly for the government to ratify the Rome Statute, as they view the treaty as being one of the tools that could improve the domestic human rights situation. Like many Latin American countries, Nicaragua has had a history of human rights violations and the issue of dealing with the past is a conflictive topic, which continues to divide local communities.

International Obligations: Fear of the ICC but what about the 1968 Convention on the Non-applicability of Statutory Limitations?

As previously stated, Nicaragua has not signed the Rome Statute of the ICC. At some point, there were reports that a Ministry of Foreign Affairs commission was analyzing the compatibility of the Rome Statute with domestic laws. However, this information was never confirmed and it is uncertain whether or not the alleged commission issued a report on the matter. Also, Nicaragua signed a Bilateral Agreement of Immunity (BIA) with the United States in 2003, an agreement contrary to the ICC principles. It is also – together with the U.S. – the only country that has included a reservation in the annual OAS resolution on the promotion and strengthening of the Rome Statute of the International Criminal Court.

As we noted in our previous posts for International Justice Central on El Salvador and Guatemala – two other states that are not party to the Rome Statute – parts of society fear that joining the Rome Statute could address human rights violations committed in the ‘80s or ‘90s, a fear similarly held in Nicaraguan society. Given the non-retroactivity principle, it is impossible for the ICC to address those crimes. In addition, joining the ICC does not exclude any other means of justice. Therefore, the human rights abuses committed before the entry into force of the Rome Statute should be addressed by local tribunals or by those tribunals that have jurisdiction.

However, Nicaraguan legal standing differs from Guatemala and El Salvador. Nicaragua has the legal international obligation to investigate and prosecute international crimes because on 3 September 1986, the country acceded to the 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Article 1 of the Convention, which entered into force on 11 November 11 1970, stipulates that “no statutory limitation shall apply to the following crimes, irrespective of the date of their commission.”

This means that regardless of the obligations that Nicaragua has before the Inter-American Convention of Human Rights and the rulings of the Inter-American Court of Human Rights, the country has an obligation to implement the necessary laws to prevent impunity. Therefore, the human rights violations committed in the ‘80s or ‘90s have to be prosecuted by the Nicaraguan authorities and the ICC does not have jurisdiction over those crimes whatsoever.

As with many countries in the region, numerous Rome Statute core principles are already binding on Nicaragua through the 1969 American Convention on Human Rights, the Convention on the Non-statutory Limitations to War crimes and crimes against humanity and the rulings of the Inter-American Court of Human Rights.

Even though the new Criminal Code adopted in 2008 incorporates most of the crimes under the Rome Statute, including war crimes, it is important that the Nicaraguan state accede to the Rome Statute.

All for the ICC? If there is no door, a window must be open in the Nicaraguan Presidential election.

According to information by local NGOs, the main obstacles for Rome Statute accession come from the Executive branch, specifically from current President Ortega. Since he entered into office, he has neither shown political willingness nor support towards the ICC. This lack of willingness could be related to the discussions on the La Penca bombing that happened 20 years ago, discussions that have made headlines in the most important newspapers for some time now.

Elections will be held on 6 November 2011 and the political climate seems to be polarized between the Frente Sandinista (that promotes the re-election of M. Daniel Ortega), the Partido Liberal Independiente (whose nominee is M. Fabio Gadea) and the Partido Liberal Constitucionalista, which supports M. Arnoldo Alemán. In terms of the ICC, M. Gadea and M. Alemán have been more positive toward a possible accession, but none of them has made a public commitment to it. M. Ortega, on the other hand, does not even mention the ICC in his platform.

In this sense, a challenge for Nicaraguan society, universities, academics and the media is to seek a clear and direct commitment from the political parties to ratify and abide to core human rights treaties and the Rome Statute.

To conclude, many legal controversies regarding the Rome Statute in Nicaragua have been already addressed by other Latin American countries, most of them already ICC State parties. Therefore, the Rome Statute strengthens international justice and national judicial systems; this is a benefit and we should all strive to support it. This upcoming election in Nicaragua should be seen as an opportunity to address human rights issues and the ratification of the Rome Statute, without taboos or personal agendas.

—-

Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe
Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

Who?

Conflicting Soviet and Korean records indicate that Kim was born on February 16th, in either 1941 or 1942, either in Russia or in a secret military camp in Japanese Korea. In any event, his official biographers claim that Kim’s birth was foretold by a swallow, and heralded by the appearance of a double rainbow over the mountains and a new star in the heavens. The son of Kim il-Sung, the Korean communist guerilla-politician who became the Eternal President of the Republic, Kim Jong-il followed in his father’s footsteps, developing a bizarre cult of personality, and brutally repressing the people of North Korea.

Kim graduated Kim il-Sung University in 1964, was groomed for leadership thereafter and was eventually designated successor to his father in 1980, though didn’t hold any positions of real power. In 1991 he took control of the armed forces despite his lack of military experience, and eventually took over leadership of the ruling Korean Worker’s Party in 1997 - three years after the death of his father.

Known for his almost comical personal style - platform shoes, khaki military outfits, sunglasses and that bouffant hairstyle - Kim’s eccentricities, which sadly are not limited to his personal style, mask either the cunning mind of a master manipulator, or betray an irrational madman, and in any event seem to serve the purpose of keeping the Western world guessing. Indeed whether a master manipulator, or an irrational madman, Kim Jong-il’s brutal repression of the North Korean people certainly warrants his place on the world’s most wanted list.

Why?

Kim’s regime is consistently ranked in every survey of freedom and human rights as the worst of the worst. Widespread violations of human rights are the norm, external monitoring agencies are severely restricted and aid workers face considerable scrutiny, ensuring that a fuller picture of one of the bleakest places on earth is extremely difficult to assess. Despite the lack of clarity on the country’s dire situation, it is clear that Kim’s government controls virtually all activities within the nation, with Kim ensuring that dissent of any kind is severely punished.

Public and secret executions, torture, disappearances, extra-judicial and arbitrary detention, a complete absence of due process and the rule of law, prison camps and the extensive use of forced labour are typical forms of punishment in North Korea. The death penalty is retained for a wide array of crimes, including, in one case from 2010, for divulging, via an illegal Chinese mobile phone, the price of rice as well as other information on living conditions in the country.

According to US State Department statistics, North Korea operates several political gulags, holding upwards of 200,000 prisoners who are forced to perform dangerous ‘slave’ work, whilst guards are trained to treat detainees as sub-human. In ‘re-education’ camps, prisoners deemed to have strayed too far from the Dear Leader’s wishes are subjected to show trials and brutal torture. Should they survive that, they are instructed ideologically and forced to memorize speeches of Kim il-sung and Kim Jong-il, as well as undergo self-criticism rites.

Freedom of thought, expression and assembly are practically non-existent despite their guarantee in the constitution. The government even distributes all television and radio sets, programming them so that only government broadcasts can be received. Citizens found altering them to receive programming from other nations are harshly punished. Freedom of movement is strictly curtailed; only the political elite may own or lease vehicles, and citizens cannot freely travel around the country, much less travel abroad. Defectors, if caught, are subjected to extreme punishments. In 2005, Lee who was eight months pregnant, escaped to China. She was caught by authorities and returned to North Korea. Weeks later, a soldier stood beside her prison bed and, moments after she had given birth, suffocated her baby boy.

Furthermore the government’s economic mismanagement and poor agricultural policies have contributed to significant food crises, even famine, resulting in the deaths of up to 1 million people in the late 1990s. The continuation of such policies, as well the North’s natural susceptibility to flooding and food shortages, has had a devastating impact on the population’s health, demonstrated by the large numbers of acutely malnourished women and children.

The human rights situation in North Korea is evidently exceptionally appalling, and is only compounded by Kim Jong-il’s isolationism, unpredictability and aggression on the international stage. Kim’s refusal to halt his nuclear weapons program, as well as his support of other countries’ nuclear aspirations has inevitably led to international opprobrium of his regime, as well as a dangerous regional security situation.

Where?

Fortunately, Kim Jong-il has few friends. However the ones he does have are incredibly and stubbornly loyal, and unfortunately very powerful, helping to ensure the long-term stability of Kim’s totalitarian regime. Kim visited China most recently in May 2011, marking the 50th anniversary of the signing of the Treaty of Friendship, Cooperation and Mutual Assistance. In August this year, he visited Russia for talks with President Dimitry Medvedev. Whilst some argue that engagement with Kim is essential for maintaining a semblance of progress on the six-party talks aimed at finding peaceful resolutions to regional security concerns caused by North Korea’s nuclear weapons program, it is nonetheless deplorable that two permanent members of the UN Security Council so openly support such a barbaric regime.

When?

Perhaps the most cited example of the apparent conflict between peace and justice is Kim Jong-il. His unpredictability, possession of nuclear weapons, and apparent willingness to flout international rules to the detriment of the North Korean population have all helped to ensure Kim’s continued impunity. Of course, close ties with China and Russia virtually guarantee that any threatened ICC action would be vetoed, or at least deferred for as long as possible. However, on December 6th 2010 Luis Moreno-Ocampo announced that a preliminary examination had been opened by the ICC to determine whether the sinking of a South Korean warship, and the shelling of Yeonpyeong Island by the North constituted war crimes.

What he says…

Rather predictably, the North Korean regime’s position is that it has no human rights issue and that its socialist system was chosen by the people and serves them faithfully. Furthermore it points to the the country’s constitution, which guarantees the protection of certain rights and freedoms. Criminal procedural law prohibits the mistreatment of detainees and so serves as conclusive evidence that allegations of human rights abuses in prison camps are complete fabrications of foreigners, designed only to interfere in the internal affairs of North Korea and force down their values. Unsurprisingly, the Dear Leader rarely speaks out in public, however in his speech-turned-book, serious concern at the persistence of continuing reports of systematic, widespread and grave violations of civil, political, economic, social and cultural rights, but has failed to act decisively on its findings, perpetuating, indeed exacerbating, the culture of impunity. North Korean rights groups have called for Kim to be investigated by the ICC for crimes against humanity. It would certainly seem as though Kim’s human rights violations are systematic and widespread, and certainly reach an extreme threshold. Whether the calls of these pressure groups will lead to firm and meaningful action on the part of the ICC and the international community remains to be seen. One cannot deny, however, that any such action seems increasingly unlikely in the near future.

Such pessimism regarding potential ICC action should not deter the international community from pursuing justice in North Korea. As a recent New York Times op-ed highlighted, engagement is an important tool in ending impunity, and to that end the international community must end its silence on the severe human rights abuses in the country, support efforts to get outside information into North Korea, and find ways to talk face-to-face with the regime and raise human rights concerns. Holding Kim to account for his crimes will certainly not be easy, if at all possible, and the recent moves towards naming his possible successor will only serve to increase the unpredictability, volatility and determination of the regime. However such obstacles should not negate the notion that significant progress towards alleviating the misery and suffering of millions can and must be made.

IJCentral’s Most Wanted is written by Aneil Sharma.
Aneil studied for his LLM in International Criminal Justice and Armed Conflict at University of Nottingham (2006) and recently graduated law school (2010), where he was also an editor of the students’ human rights law journal. He has done internships with Oxfam and The British Institute of International and Comparative Law in London and has completed casework for Amicus, who assist US lawyers on capital punishment cases. He intends to return to school to study for his PhD.

Follow Aneil on Twitter: @theSharmz

Exclusive blog series on the ever-changing relationship between the United States and the International Criminal Court (part 1 of 3).

I have been watching the Obama administration’s approach to the International Criminal Court with skeptical optimism.  Many have claimed that a shift from what critics refer to as the belligerent Bush administration days of invade-The-Hague-acts and cutting off foreign aid to countries supporting the ICC, to the perceived multilateral, peace-oriented Obama administration would signal a dramatic shift in US-ICC relations.  Some even claimed the possibility of ICC ratification of the Rome Statute!  Now most observers of the Court realize that this step is not in the offing, but a transformation from belligerency to cooperation seems plausible.  But this observation begs three primary questions—first, was the Bush administration that belligerent? Second, has Obama initiated a friendly relationship with the Court that may result in actual political cooperation?  And third, and most importantly, how does a friendly relationship with the ICC benefit US foreign policy? In this post I will engage the first of these questions, with a specific examination of the Bush administration policies and their so-called belligerent approach. Future posts will engage the latter two questions along with other issues pertaining to the influence of the ICC.

So, was the Bush administration fundamentally opposed to the ICC and did it act to undermine the Court’s mandate?  The answer is a surprising yes and no.  Yes, the Bush administration acted to cripple the Court on many occasions; however, the Bush administration did not act alone within the US foreign policy-making community.  The most notorious of acts passed during the Bush administration’s tenure was the American Servicemembers Protection Act of 2002 (sometimes referred to as the Hague Invasion Act). The American Service Members Protection Act (ASPA) stipulates that the United States government views the ICC as an institution that exposes US military personnel and governmental officials to prosecution that is not pursuant with the US Constitution.  As a result, the ASPA authorizes the President:

to use all means necessary and appropriate to bring about the release from captivity of any person described in subsection (b) who is being detained or imprisoned against that person’s will by or on behalf of the International Criminal Court.

This act also allows the United States to terminate military assistance to ICC party states, limits the availability of US peacekeepers to UN mandated missions, prohibits the transfer of classified national security information to the ICC, and generally prohibits any cooperative arrangements between the United States and the Court.  Clearly this is a legislative attempt to distance the United States from the ICC and may be perceived as an attempt to cripple the Court as an institution of global justice.  But what is often forgotten in discussions of this legislative act is exactly that—this was a legislative act, not an executive order or other Presidential action.  And the Congressional vote was not exactly close or partisan.  In the Senate, the vote was 75 in favor and 19 opposed.  Of the 75 affirmative votes, Democrats cast 29.  The House vote was similar—280 yeas, with 84 from Democrats, and 138 opposed.  The point being that this act, along with other anti-ICC legislation like the Nethercutt Amendment, was not simply the act of President Bush and his cabinet.  The anti-ICC sentiment extended beyond the White House and included large portions of Capital Hill—both on the right and the left.

It should also be noted that many of the more accepting actions concerning the ICC began during the final years of the Bush administration.  The most prominent of these actions was the United States abstention from the United Nations Security Council vote on ICC jurisdiction within Sudan. Although not full scale acceptance of the Court (we should not forget that the resolution exempts US personnel from ICC jurisdiction in Sudan), the decision not to invoke their veto power provides some evidence of acceptance. 

The other ICC-friendly area of change concerns the Bilateral Immunity Agreements (BIAs).  On a diplomatic mission trip, Secretary of State Condoleeza Rice alluded to the notion that the United States may not want to follow through on some of the BIAs they have signed.  In her words, cutting off aid to allies and/or important counterterrorism or counter drug countries is “the same as shooting ourselves in the foot.”  Further action on this issue was undertaken in September of 2006 (prior to the take-over of Congress by the Democrats) when the House and Senate approved amendments to the ASPA that now allows International Military Educational and Training (IMET) funding to states that have not yet signed a BIA.

So does this type of analysis lead to the conclusion that ICC policy during the Bush years was not belligerent and was in fact ICC-friendly?  No, certainly not.  The Bush administration did remove their legal obligations to the ICC that existed as a result of President Clinton’s signature.  They did use Article 98 agreements to exempt US forces from ICC jurisdiction.  And they did approve the ASPA and the Nethercutt Amendment, among other undermining policies and statements. 

What this analysis does tell us about the Bush administration is two things—first, the belligerent attitude towards the ICC was not simply executive branch driven or primarily partisan.  During the first term of the administration there appeared to be wide spread political opposition to the Court and a desire to protect the sovereignty of the United States from this “politicized” institution.  Second, the Bush administration began to realize, some may say learn, that the ICC is not an evil institution and might actually be useful in the protection of American national interests.  It is here that the Obama administration enters the fray with many ICC advocates hoping for substantive change in policy towards the Court.  But it is important to remember that such change was already in the offing, so it is more about what the Obama administration would do with these small steps of acceptance as the audacity of hope takes control of the White House.

——

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

By Michelle Chen for Colorlines
Monday, October 3 2011, 11:10 AM EST

When several prominent Kenyans appear before the International Criminal Court in the coming days, they’ll be judged by a legal standard that no one, in theory, should be above. But to critics, the court itself isn’t above politics that too often get in the way of real justice.

The cases center on six men from Kenya’s two main rival factions, who allegedly helped orchestrate an outbreak of post-election violence. For weeks, the country was awash in killings, rapes and the displacement of some half a million people, and then months of tense silence. Many Kenyans are hopeful that the International Criminal Court (ICC) might cut through the country’s “culture of impunity.” Others fear the court will only exercise the cultural impunity of Western powers.

The ICC itself is a recent invention—based on the 2002 protocol known as the Rome Statute (joined by 118 countries, not including the U.S.). But the institution is rooted in a legacy of international courts dating back decades, from the post-World War II Nuremburg Trials to post-conflict tribunals for Rwanda and the former Yugoslavia. It’s still evolving. So far, the court has yielded only a handful of cases and trials. One of the most notorious suspects, President Omar Al-Bashir of Sudan, remains “at large.” In part this is due to the ICC’s limited jurisdiction, as a court of last resort for issues that governments fail to address through their own institutions. ICC trials, based on investigations that can be initiated by the prosecutor or by the United Nations Security Council, focus on “those accused of the gravest crimes.”

That doesn’t guarantee justice for victims, of course, but it does at least get people talking about what it might look like. Last year, Kenya’s fragile coalition government (a fusion of the two factions that clashed in 2007) launched a new constitution to help push the country beyond the conflicts that shattered Kenya’s image as a bastion of stability in the region.

Today, Kenyans wonder whether outside intervention through the ICC would solidify national unity or reopen half-healed wounds.

The ICC issue has reignited domestic political tensions ahead of the 2012 elections, imperiling the presidential prospects of Deputy Prime Minister Uhuru Kenyatta, son of Kenya’s first President Jomo Kenyatta. Prosecutor Luis Moreno-Ocampo charges that Kenyatta and two other high-profile allies of President Mwai Kibaki, conspired to stoke factional and ethnic violence after the election, including brutal police crackdowns as well as attacks by members of the Kikuyu Mungiki sect against supporters of Prime Minister Raila Odinga. (Three suspects on Odinga’s side also face ICC charges.)

Kenyatta, for his part, has denounced the allegations as a “pack of lies.” Earlier this year, the Kenyan government even sought to block the entire ICC process from moving forward, though the attempt at a legal end-run ultimately failed, according to Human Rights Watch.

Kenyans in the street are divided. In a BBC report last December, an interviewee voiced well-founded skepticism: “The work of the ICC is partial and if they are not going to raise the standards, they have no business investigating people. Whether by design or default, politics can be read all over the work of this court.”

But Patrick Gathara, a Kenyan political cartoonist and activist, told Colorlines.com that a flawed process could still serve a higher purpose:

The court is itself set up to achieve political purposes and is therefore open to criticisms of bias and selective prosecutions. While these are legitimate concerns, we should not lose sight of the fact that the court does try real cases and deal with real crimes; and that some justice (however selective) is better than none. …

[The ICC] targets African countries and “rogue” states simply because the powers that be (read: the West) will not countenance their citizens or their allies being subject to international processes…. International justice, like most other international systems, is an evolving concept and therefore we should consolidate whatever advances have been made while at the same time seeking to extend them.

The Kenyan government is getting even more mixed reviews. According to one monitoring report published earlier this year, opinion surveys show that despite reforms following the 2007 conflicts:

Politicians are widely viewed as sponsors of illegal armed groups that took part in the violence, and which transformed into extortion gangs. Up to 42 percent of respondents in the survey think these illegal groups will emerge and play a political role before 2012. Failure to prosecute political and civil crimes has eroded public confidence in the government’s ability and willingness to fight impunity. It has slowed the momentum of citizen advocacy for prosecution or other forms of accountability.

According to surveys, a slight majority of Kenyans favored an ICC trial in the Hague for the six suspects; about a third preferred a “local tribunal.”

Applying a global standard of equal justice seems near impossible for crimes that stem from vast inequalities in wealth and power, particularly when judgement shades into issues of race and gender. The court’s critics see imperialism behind its seemingly disproportionate fixation on, and demonization of, the leaders of African countries (Democratic Republic of Congo, Uganda, Darfur and Central African Republic in addition to Kenya). And when it operates alongside a global war on terror (the leaders of which have somehow, curiously, evaded the long arm of the law), a court without boundaries seems the very picture of neoliberal impunity.

After the ICC issued a warrant against Libyan leader Col. Muammar Gaddafi earlier this year, the head of the African Union lashed out at the court for imposing Western-centric “double standards,” reported the New York Times:

The African Union’s chairman, Jean Ping, told reporters that the court was “discriminatory” and focused on crimes committed in Africa but ignored those committed by Western powers, including in Afghanistan, Iraq and Pakistan. “With this in mind, we recommend that the member states do not cooperate with the execution of this arrest warrant,” the motion said.

Its scope may be narrow, but the ICC dockets are hardly stuffed with frivolous charges. They’re replete with chronically overlooked cases of rape, mass murder and other atrocities. The injustice lies in the ongoing human rights violations that take place outside the Hague every day, sometimes under regimes that the ICC is already probing. Indeed, Human Rights Watch criticized the ICC as well for inconsistent case selection—not necessarily because of political or racial bias, but because investigations had often overlooked major crimes and perpetrators.

Gender-related violence is another potential blind spot, particularly in the case of Thomas Lubanga Dyilo, a DRC rebel now on trial for crimes related to child soldiers. Women’s Initiatives for Gender Justice recently expressed outrage at “the absence of charges for gender-based crimes in the case against the leader of a militia group widely known to have committed rape, sexual enslavement, and other forms of sexualised violence.”

More than 60 years ago, in the wake of the Holocaust, the Nuremburg trials seeded a vision for some form of universal justice. Now, the ICC still falls well short of that goal, but it has widened the road to global justice and complicated it along the way. Recently, some have speculated that Palestine’s pursuit of full statehood status at the U.N. might open opportunities to bring Israel to the Hague. Imagine the state birthed from the ashes of genocide finally being held to account for atrocities committed in its own name.

José Ayala Lasso, former U.N. High Commissioner for Human Rights once warned us, “A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.” Though the International Criminal Court hasn’t corrected that imbalance, it has tipped the scales of justice just slightly, toward a collective moral gravity.

For original article, please click here.

I’m sitting with Luis Moreno Ocampo in an uptown Manhattan conference room. Ocampo is framed by his press secretary and bodyguard. Otherwise the large room is empty. With both hands, Ocampo delicately slides my recording device towards him on the gleaming mahogany table. He leans over it intently, as if he were examining evidence.

To many, the chief prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, is known simply as ‘The Prosecutor.’ His mission at the ICC is not unlike that of a superhero: to seek out the world’s most notorious evildoers, and obtain justice for their crimes. With active cases in six of the world’s most deadly conflicts, and arrest warrants for two sitting heads of states, Ocampo has presided over the launch of the first major global institution of the 21st century, and the most ambitious international legal project in the history of mankind.

Like other caped crusaders, there are movies about ‘The Prosecutor.’ The latest, Prosecutor, by Canadian filmmaker Barry Stevens, has brought Ocampo from the United Nations for the film’s opening night at New York’s Paley DocFest, and will be premiering on The Documentary Channel on October 9th. Prosecutor follows Ocampo as he visits war-torn communities, negotiates with heads of state, coaches his legal team on how to behave in the courtroom, and strolls introspectively through the misty cobblestone streets of The Hague. The prosecutor’s quest for justice looks glamorous at points: he even gets to wear a costume, a kind of cape in the form of the legal robes of the ICC. The opening scene of the movie shows him disembarking from a UN helicopter and striding towards a dusty, remote African village, wearing a white linen suit.

But unlike the Justice Brigade, Ocampo’s fights aren’t just with super-villains. As the first person to ever hold the position of chief prosecutor at the ICC, Ocampo has had the daunting task of convincing the world that an idea, a hope, can become a reality: that a permanent, independent criminal court could have universal jurisdiction for genocide, war crimes, and crimes against humanity.

From day one, the prosecutor has had to battle for this idea at every turn, and field attacks from almost every side. The Court survived the Bush administration’s harsh policies, which forbade other countries from cooperating with the Court, threatening to stop suspend foreign military aid to those that would not conform. And the African Union has come to balk at the Court’s perceived agenda to only prosecute Africans. Prominent human rights NGOs are still criticizing the Court for not doing enough. In Prosecutor, we see Ocampo come under fire from a BBC anchor for the length of time and money it has taken to set up the Court, which, to this day, has yet to convict a single suspect.

A new prosecutor will be selected by the Assembly of States Parties of the ICC come December, and I’m eager to ask Ocampo about how he feels as his term as prosecutor draws to a close. Ocampo, though, stays steadily focused on process, portraying a decisive, albeit weary confidence in the slow progress the institution has made along the way. Despite some characteristic eccentricities and the glare of the public spotlight, he is eager to deflect personal questions back to the Court itself.

It seems then that the film, Prosecutor, is appropriately named: unlike Ocampo’s superhero moniker, ‘The Prosecutor’, whatever contribution Ocampo has made, the heroic arc in this story isn’t found in one man’s journey, but in the world’s quest for justice, embodied by the extraordinary global accomplishment of the ICC.

Hannah Dunphy for IJCentral: Tell me about this film, Prosecutor.  Why do you think people should see it?

Luis Moreno Ocampo: The movie gets people to understand there is an institution that is working to do justice for the worst crimes, and for the victims. There are 2.4 billion citizens in 118 states parties of the Rome Statute, so we are working for them. So, how can I reach them? I need a movie. I hope that some of them see the movie. Interestingly, movies can help [people] to understand what happened, you know? The Nuremburg trial was very important but people changed their mind with the movie about the Nuremburg trial.

IJC: Let’s talk about some of the cases before the Court. Libya has been in the news, and as of today, Colonel Qaddafi is still at large. What do you say to the NTC (National Transitional Council) when they make statements about putting Gaddafi on trial in Libya?

LMO: Today, the only arrest warrant for Qaddafi has been issued by the International Criminal Court. There is no arrest warrant from a national judge in Libya. Eventually, if they have a case in Libya, they should present the case and the judges of the ICC will decide. But today, the only case is in the ICC.

IJC: Do you think the justice system as it exists today in Libya would have the capacity to try someone like Qaddafi?

LMO: We’ll see, I don’t know. We don’t like to predict.

IJC: The Kenyan case is just getting started, and last week there was a lot of attention paid to the start of the confirmation of charges hearings. As the first case initiated through propio motu, do you feel more personally connected to seeing justice in the Kenyan case?

LMO: Kenya is important not because it’s propio motu. Kenya is important because there was massive violence, and the crimes were committed by political leaders to gain or retain political power. And the risk is that they could do the same in the coming election in 2012. So that’s why the investigations in Kenya are critically important to justice for Kenyans, and also to start building Kenya, so it’s critically important for Africa. And to also send a message: you cannot commit atrocities to gain or retain power. That’s the importance of the Kenyan case. And for Kenyans, I think it’s incredibly interesting for them to see their leaders in the dock, answering questions, trying to explain what happened. I think that’s really important.

IJC: With the General Assembly in session, the question of Palestinian statehood and the ICC is on everyone’s minds. I know that OTP- your offices- had looked into alleged crimes in Gaza. Do you plan to issue any kind of report of your findings in the way that the OTP had done for Colombia and Afghanistan?

LMO: In Palestine, what we are doing is reviewing if they are a state- according to the Rome Statute, to accept jurisdiction. We are discussing this with the Palestinians. Now the issue is also discussing with the Security Council or maybe the General Assembly, so the issue will probably be solved there. What we did in the past two years was receive briefings from Palestine and discuss with them, and many, many other actors who are involved in the debate about if the Court should recognize statehood to accept jurisdiction or not.

IJC: So the issue of statehood would have to be resolved before you issued any kind of statement on alleged crimes in Palestine.

LMO: Yes.

IJC: I think most people would say that you were an incredibly instrumental figure in getting this institution to where it is today. As your term comes to a close, are there things that you look back on that you regret? Is there anything you would have done differently if you knew then what you know now about being the Prosecutor of the ICC?

LMO: When I arrived, I was thinking that my responsibility was to build an institution, and I should do it through selecting the best people I can, defining [policies] clearly, explaining what we are doing to states, NGOs, the international community and to citizens, and then, doing the job. That’s what we did. And we learned by walking. But what I can say is that the Court is working on exactly the type of crimes it was created for, and also keeping consensus about the Court, because the Court has no frivolous cases, and the Court is focused on the most responsible individuals.
And I hope they know that we’re close in the first trial! For me, it was important to finish some trials. I was thinking that I would finish my trials two years ago but – OK- it will be this year. But we are finishing trials and then we are going to a next phase, including reparations, [inaudible], and this conviction of Lubanga [will help with] educational programs around the world to ensure there are no more child soldiers. So basically I feel we put the system in motion, and I will give it to my successor [working]. So I feel… I leave my piece, and I pass it on.

IJC: What do you think is important for the next prosecutor to be able to do for the Court?

LMO: Whether it’s a “her” or “him,” I don’t know- there will be new challenges. I finish on June 16, 2012 and then, new prosecutor, new challenges, new decisions.

IJC: What’s next for you after you finish?

LMO: Let me finish this first, and then we can talk!

Mark Palmer And Patrick Glen | Published: September 29, 2011

Muammar Gaddafi’s fall is the latest in a trend that began with the uprisings in Tunisia last winter that sent Zine el-Abidine Ben Ali skulking into exile and toppled Egypt’s Hosni Mubarak the following month. Movements toward reform saved other despots: King Mohammed VI of Morocco instituted constitutional reforms, while Sudan’s Omar al-Bashir promised not to seek the presidency in 2015.
Against the backdrop of these successes, however, the Arab Spring has had bloody setbacks. Protests in Bahrain and Jordan were violently suppressed. In Syria, Bashar al-Assad’s regime has killed thousands of the brave citizens who have turned out to protest since March. Beyond that region, dictators who continue to oppress include the Castro dynasty in Cuba; the Lukashenko regime in Belarus; Zimbabwe’s independence-leader-turned-tyrant, Robert Mugabe; and the isolationist and paranoid regimes in Burma and North Korea.

Simply put, international law has failed to keep up with the challenges posed by dictatorial regimes.

The 20th century was, to an uncomfortable degree, defined by the depredations and mass slaughters perpetrated by dictators. And thus far there are few indications in the 21st century that history’s lessons have been absorbed. More often than not, international institutions stand by while political rights are eviscerated and mass killings are committed by regimes desperate to retain power. Many applauded the 2009 indictment by the International Criminal Court (ICC) of Sudan’s Bashir, the first of a sitting head of state, yet he remains president and no country through which he has traveled has tried to arrest him. Libya’s Gaddafi has been indicted for crimes against humanity, but there seems to be little prospect of his answering the charges.

What we think of as “international law” is a patchwork of conventions that deal with issues raised by dictatorships in a piecemeal, ineffective fashion. The Convention Against Torture, for instance, addresses politically motivated degrading treatment and torture, while the Genocide Convention targets the worst abuses a dictator could commit. The International Covenant on Civil and Political Rights delineates a base line of rights that must be protected but offers no clear mechanism by which to vindicate violations. The definition of crimes against humanity, as noted in the ICC’s Rome Statute, could be used to reach many of the abuses a dictator could commit, but the ICC’s efficacy is limited by jurisdictional requirements and the principle of complementarity. This patchwork leaves outside the purview of international institutions many political crimes a dictator would be likely to commit, while punishing certain heinous acts only once they have crossed an acceptably unacceptable threshold.

What the international community needs is a framework that makes clear such forms of governance are violating international law.

The clearest way forward would be through a convention targeting dictatorship as an international crime. Rather than treating dictatorship as an ancillary issue in the prosecution of other crimes, this would focus attention on the types of atrocities and oppression in which dictators engage. These crimes include the curtailment of certain civil liberties — such as the freedoms of association, speech and press — state interference with institutions such as the judiciary and electoral bodies, and oppressive regulation of personal autonomy. Moreover, nations could incorporate this criminalization into domestic law, providing an additional forum in which to publicize violations and prosecute violators.

This step would not represent a dramatic or elitist Western intervention in the internal politics of foreign nations. The rights already guaranteed by international law, under such conventions as the International Covenant on Civil and Political Rights, serve as the framework of liberal democracy. A prohibition on dictatorship would simply provide a way to vindicate these rights in international or domestic forums.
The Arab Spring and the march away from dictatorship over the past half-century undercut any claim that the rough outlines of democracy are somehow the province of the West. The final form may differ from the Middle East to Africa, just as democracy does not look the same in Washington, Paris and New Delhi. Yet that does not undermine the assertion that the fundamental core of democracy, the protection of political and civil rights by government, is something for which all people yearn.

Eradicating dictatorship would make the world safer for all. It would lift the yoke from the necks of millions still labouring under authoritarian and dictatorial rule. And it would be the clearest vindication of the rights enumerated in the UN Charter in 1945. To paraphrase Gaddafi’s borrowed line, it is time to relegate regimes such as his to the dustbin of history.

Mark Palmer, ambassador to Hungary from 1986 to 1990, is the author of “Breaking the Real Axis of Evil: How to Oust the World’s Last Dictators by 2025.” Patrick Glen, a lawyer in Washington, is an adjunct professor at Georgetown University Law Centre. –Washington Post. Read original article here

By Mac McClelland for Mother Jones, September/October Issue

He dines at the finest restaurants. He’s a leading military official. He owns a bar, a dairy farm, and a pretty mansion. And the International Criminal Court has a warrant for his arrest. So why isn’t Bosco Ntaganda in jail?

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BOSCO NTAGANDA LOVES A DINNER PARTY. Hell, even a brunch party. And pretty much any time of day is perfect at Le Chalet, Goma’s premier restaurant, where the inside is all slate floors and licheche-wood furniture and Latin jazz, and outside tables dot a manicured lawn that slopes down to Lake Kivu. It has what may be the best selection of booze—Blue Label, pastis, whatever you like—in this provincial capital in eastern Democratic Republic of the Congo. The chicken samosas in curry sauce with pineapple are delightful. And Bosco, a man about town who owns the bar Kivu Light and the Bunyole cheesery, is a fixture here, enough that the first time I walk in, someone says casually, “Oh! You just missed Bosco.”

That’s why one Congolese driver told me he couldn’t take me around Goma because he would be killed the moment I left. That’s why my Congolese sources stay out of nice restaurants, stay out of the city if they can, and when they have to flee the country, they don’t tell their families where they’ve gone or why. That’s why one guy I meet wears a light disguise whenever he goes out (“Oh hey!” an old friend says after initially walking right past him. “I didn’t recognize you!”): Because recently, Bosco tried to kill him.

That’s not included in the official indictment against Bosco. The warrant the International Criminal Court issued for his arrest on August 22, 2006, charged him only with the war crimes of enlisting, conscripting, and using child soldiers back when he was head of military operations for a rebel militia in the early 2000s. These days, he’s technically legit, wearing the uniform of a general in the national Congolese army. In 2009, a peace deal between Congo and Rwanda folded in the Rwandan-backed Congolese militia he headed, the National Congress for the Defense of the People (CNDP), which frankly was kicking the national army’s ass. Both before and since, the ICC and the United Nations and watchdogs like Human Rights Watch have continued to catalog further atrocities he’s alleged to have ordered or participated in: 800 civilians massacred in one town in the Ituri district in 2002; 150 civilians massacred in North Kivu province in 2008; ongoing assassinations and disappearances; ongoing conscription of child soldiers, the very crime he was indicted for. Etcetera.

And that’s why everyone in this dusty, volcano-fringed capital (PDF) talks like spies. “It’s probably best you keep your voice down everywhere all the time while you’re here,” an American aid worker says the moment we meet. “They have people working everywhere,” a Congolese guy tells me, specifically referring to waiters who eavesdrop at bars, saying that when they do you can’t leave because it will look suspicious, so you have to always pretend like you don’t suspect them, so they won’t in turn suspect you. Ex-CNDP soldiers loyal to Bosco are armed and prevalent, in this town of 500,000 and beyond. Consider: This year, when Bosco was implicated in selling $20 million in gold for $7 million in cash to a shady Texas diamond dealer, a Frenchman, and two Nigerians, the regional military spokesperson said it looked like Bosco was smuggling, but really he was just pretending to smuggle to thwart the smugglers. It’s all part of the reason why you’ve never heard of Bosco, why detailed stories about atrocity-witnessing and near escapes and car chases can’t be told for the sake of protecting sources. You wouldn’t believe the opening we had to cut from this piece. It was about a guy who wanted to tell his story to the world in hopes it would change the “hell” he lives in. But then he was cornered by a soldier who reminded him that it’s awfully easy to get killed around here.

So. Take instead what happened to an American filmmaker, now safe at home. Earlier this year, he took it upon himself to shoot mining operations in Goma’s province, North Kivu. Here’s the thing about that: In 2010, President Joseph Kabila temporarily banned mining in this province and two others, on account of armed groups controlling the mines; an estimated 80 percent of what is mined in Congo is smuggled out, a lot of it from this area on the border with Rwanda. And indeed, there, running the mine, were officers from the CNDP—sorry, ex-CNDP, since they’ve technically been integrated into the national army and technically don’t operate for their own profit anymore—wearing CNDP uniforms. They were overseeing workers loading coltan (used in consumer electronics) into produce trucks. There, getting it all on camera, the American filmmaker got caught.

He managed to escape, but word spread through the command, back to Goma, when he returned. “Soldiers followed me all over town,” he says, until he fled to another country. And they didn’t even know he also filmed those women who were raped, and people who were shot by ex-CNDP soldiers now in the national army! His last day in Goma, the filmmaker pushed the furniture in his hotel room up against the door, passing the night barricaded behind it, sleepless, with his eyes wide open and a knife in his hand.

He was lucky. “Even if you have a gun, it doesn’t mean you cannot die,” one Congolese source told me. “You cannot stop them from killing you.”

Some 4,000 miles away from North Kivu, the International Criminal Court sits in a tall, drab office block rising up against seemingly ever-cloudy Dutch skies. The building at Maanweg 174, The Hague, was previously occupied by a telephone company. Proceedings against warlords take place in three low rooms built into the former parking garage.

The court is slated to get its new digs in 2015; these are the temporary offices of the fledgling institution, which was established in 2002. That’s when the requisite 60 countries ratified the treaty that created it, four years after the 1998 UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court—which itself had been years in the making—brought 160 governments together to spend a month fighting out the terms. Not everyone agreed that such a court should exist at all. Leading the haters was the United States, which had grave objections to “an arrangement whereby US armed forces operating overseas could be conceivably prosecuted by the international court.” But in a decade that saw a couple of high-profile genocides, justice was an especially pressing ideal. As the head of the US delegation summed it up to the Senate Foreign Relations Committee afterward, the goal was “accountability, namely to help bring the perpetrators of genocide, crimes against humanity, and war crimes to justice,” via “creating a permanent court that could be more quickly available for investigations and prosecutions and more cost-efficient in its operation.” Supporters wanted to make international justice swifter than the infamously tardy International Criminal Tribunal for Rwanda, and cheaper than the $1.9 billion, still-ongoing International Criminal Tribunal for the former Yugoslavia.

The delegates decided that there would be three roads to prosecution: A case could be referred to the ICC by a member state; crimes could be referred to the court by the UN Security Council; or the Office of the Prosecutor could launch an investigation on its own. (Well, not all the delegates decided that. The United States—along with China, Iraq, Israel, Libya, Qatar, and Yemen—voted against the treaty. The US later signed but did not ratify it.) If an ICC investigation finds war crimes, crimes against humanity, or genocide, and the state in which the crimes occur is unwilling or unable to prosecute the case itself, the “court of last resort” can issue warrants of arrest or summonses to appear.

On this early April day, there are two trials in session—both of Congolese former rebel leaders. Thomas Lubanga Dyilo stands accused of conscripting, enlisting, and using child soldiers in Congo. Jean-Pierre Bemba Gombo was arrested for multiple war crimes and crimes against humanity, including rape, torture, and pillaging in the Central African Republic. In the case of Lubanga, today’s testimony is too sensitive to be opened to the public—maybe a witness who’s in particular danger of retribution. But anyone can observe Bemba’s trial (PDF). Between the two prosecutors on the right, two defense lawyers on the left, and three judges sitting center, there are a lot of black robes in the room. Observers listen to testimony via a UN-style translation system. Bemba’s in a suit under guard in the corner; the witness chair is oriented so he can’t look squarely at the person testifying. I know Bemba came to check out his troops, the witness is saying. He knew what his troops were doing. The witness is kind of worked up. The soldiers were raping and looting, he’s saying. Bemba must have known what was happening. For his part, Bemba has got his cantaloupe head sunk into burly shoulders. He’s looking impassive, sometimes taking notes, licking his fingers to turn the page, flicking his eyes again and again toward the observation gallery just a few feet away, but refusing to meet anyone’s gaze.

Upstairs, Chief Prosecutor Luis Moreno-Ocampo has his sleeves rolled up behind the desk of his expansive office on the 11th floor. In the ‘80s, he prosecuted mass-murdering military commanders in his native Argentina. In the late ‘90s, he was the star of an Argentine show very much like Judge Judy. He’s grayer now, but still brash and deep-voiced and having an answer for everything. And, for a guy who spends all of his time thinking about war crimes, he has some very happy things to say.

“We are building a new global system,” he informs me. He says the idea that so many countries came together to build this court is insane. The fact that they managed to arrest someone is ridiculous. That they had a first trial was “impossible.” And now, the world is getting smaller. Technology is bringing us closer. Facebook, goddammit. “Cambodia was ignored. Nothing happened. Darfur was not ignored, but took two years to react. Libya? Ten days. Ten days. Bam. And the Security Council, immediately, without hesitation: ‘Refer the case to the ICC.’ Now we’re normal.” He tells me about an Australian fighter pilot who wouldn’t drop a bomb in Iraq because he was afraid of someday being prosecuted. He says a legal adviser told NATO commanders to watch the orders they sign so they don’t end up retiring on the beach only to be surrounded by cops ready to drag them to The Hague. Nepal, he says, demobilized 3,000 child soldiers because of the ICC.

“The court’s existence is important. The message is pretty strong: You cannot commit massive atrocities to remain in power or to gain power,” Moreno-Ocampo says. In the case of Bemba, his arrest probably did teach warlords a lesson about whether they can retire or vacay in Europe, as he was snatched by Belgian authorities while comfortably ensconced in Brussels. Although 44 UN member states have still not signed the Rome Statute, the ICC has 700 staff members from 75 countries. The more countries that are on board, the more the world manages to “create one community called humanity,” the more effective the court can be. “Everything is changing in the world. We can do it.”

Moreno-Ocampo has sunk 10 years of his life into the ICC, separated from his home and his own life and his family. Because “it’s the best job in the world.” Because “I love this mission, to save the world.” Also: “It suits my megalomania.”

That makes him well suited to weather scathing criticism, and does the ICC ever have its share. Those who say that issuing arrest warrants for war criminals still in the throes of warmongering—as in the case of Sudanese president Omar al-Bashir—complicates the peace process and could even incite more violence. Those who complain that the court only goes after Africans, which so far has been true. That the first trial, Lubanga’s, has had disastrous flaws, including the prosecution’s failing to share key documents with the defense. That as an independent court, accountable to no other body, the ICC operates with impunity.

But the issue that could most undermine the very purpose of the court’s existence is its difficulty executing arrest warrants. As a court representative will explain if you sign up for an ICC visitor’s tour, “We don’t have a police force. So when it comes to enforcing our warrants, we rely on state parties.” That means countries that have ratified the treaty, like Congo; all of them are technically obligated to arrest indicted criminals on their soil. Yet out of 26 people for whom warrants and summonses have been issued, 10 of the alleged criminals remain at large. None of the three outstanding warrants (PDF) against Ugandans have been enforced, even though Uganda is an ICC party—but that’s because, the tour guide offers as explanation, the guys are hiding in the no man’s land near the border between Congo and the Central African Republic. When Sudanese President Bashir flew from (non-member-party) Sudan to (member-party) Kenya, he should have been arrested; if he goes into international airspace again, the rep asserts, he will be.

I ask Moreno-Ocampo if it’s only a matter of time for Bosco Ntaganda, too. “Yeah,” he says. “In fact, it is difficult to arrest Bashir, I understand, but it’s not difficult to arrest Bosco. There is no excuse not to arrest Bosco. And he’s committing massive crimes in the DRC.”
This is the part of a paragraph that would usually contain a description of a room, in a (adjective here) building on (this kind of) a street. But I can’t write about any of that. Nor could I bring any Congolese translators along to this interview—the risks to them and the witnesses would have been too great. So I’ve dragged a 22-year-old Columbia University student and fluent French speaker named Joey from the United States.

Joey and I are at the indescribable place to hear a story. It’s about Lt. Colonel Antoine Balibuno, a colleague of Lt. Colonel Innocent Zimurinda, a terrifying Bosco crony who’s been sanctioned by the UN for raping “a large number” of women and girls and murdering a lot of refugees and his own child soldiers. In 2009, Balibuno and Zimurinda were together in Masisi, a few hours from Goma, under Bosco’s command. But Balibuno and Zimurinda had also been integrated into the national army, deployed to the region officially. Not so lucrative a position, working for the broke army of a failed state. Masisi had a lot of trees. Balibuno told friends that Zimurinda enslaved the locals, making them cut down trees, morning and night, to make boards the ex-CNDP could sell. Balibuno said those who resisted were immediately killed. Balibuno said Zimurinda, a Tutsi, was also killing random Hutus. After a while, Balibuno returned to Goma, claiming he didn’t want to be associated with any Bosco-related carnage and corruption in case Bosco took his colonels down with him if he ever did get arrested.

This is the first part of the article. To keep reading, please click here.

Reuters Sep 28, 2011 – 12:35 PM ET | Last Updated: Sep 28, 2011 12:37 PM ET

By Damir Sagolj

THE HAGUE — The road for former Yugoslavia’s war criminals ends here, at “The Hague Hilton.”

In this section of the international war crimes detention centre in Scheveningen, 40 or so accused by the International Criminal Tribunal for the former Yugoslavia live in remarkable harmony and comfort awaiting trial or sentencing.

I am the first journalist ever allowed to report from inside, and as I enter, I have butterflies in my stomach. For as a Bosnian and a photographer, I am a prisoner of my past.

Some of the people detained here were accused of crimes against members of my family. We lived through the siege of Sarajevo. My Muslim relatives — my grandmother, my uncle and others — were forced from their homes by Bosnian Serbs and ended up in Sweden. Croat relatives on my father’s side were driven out — different armies, different turf. Some of my relatives were killed, and later found in mass graves.

Back home in the former Yugoslavia, views of the court, set up with the sole purpose of prosecuting crimes committed during the 1991-2000 conflicts, reflect the divide of a schizophrenic society.

For the nationalists, who regard these people as heroes, this place is a dungeon, but for so many others it’s a stopover on what they hope is the road to hell.

The tribunal in July arrested its last wanted fugitive and is expected to wind up operations in 2014, after deciding the fates of inmates like former Bosnian Serb military leader Ratko Mladic, nicknamed “the butcher of Bosnia,” and his one-time political partner Radovan Karadzic.

The previous day, in the corridors of the tribunal building, I bumped into Karadzic by chance. A brief encounter, our eyes locked, and then he said a hello. I said nothing, my cameras stilled. I thought, even in handcuffs he dwarfs the guards. And then he was gone, escorted to his chair in the courtroom.

I felt no reaction, and that shocked me. My life was in his hands back in the 1990s, when he was in control of the artillery and snipers around Sarajevo.

GOOD BEHAVIOUR

In the detention center, he and his fellow detainees are treated well.

As I smoke a cigarette (although I recently quit smoking) on a balcony, I hear the thwack of a strong first serve on the tennis court below, and then some words in the different dialects of my language. I can’t recognize who is playing on the tennis court below but I’ve heard that Ante Gotovina, the Croatian general accused of war crimes against Serb civilians, is the undisputed tennis champion round here.

Opposite are the solitary cells, rooms with a single mattress on a bare floor and bright yellow walls. David Kennedy, Chief of the Detention Unit, says none of the accused from the former Yugoslavia behave badly enough to end up in solitary.

In fact for most, life here is good: a gym, art rooms, tennis and basketball courts, indoor and outdoor.

There is a kitchen, showers and phone booths between the wings where detainees have their cells. Mobile phones are forbidden so war crimes suspects have to use calling cards (30 euros a month, courtesy of the UN) if they want to call home. No incoming calls are allowed, no Internet, just letters.

Inside their cells, they can watch programs from home on flat screen TVs, and books and papers are delivered regularly. In one empty cell, there’s a pornographic sketch on the wall, someone’s homosexual fantasy.

In the kitchen, I see a pie ready to be baked, a pack of playing cards, and a receipt for 23 euros for a kilo of Dutch beefsteak and some other food delivered to one of the detainees. The food here is prison food, but special orders are allowed including a weekly delivery from a Balkan shop.

Cartoons of Iranian president Mahmoud Ahmadinejad and ex-Libyan leader Muammar Gaddafi snipped from the newspapers are stuck to the kitchen door.

There are even parties. Birthdays and religious holidays are celebrated here, as they were under Tito’s brotherhood and unity. Men who fought on the basis of religion or ethnicity in the 1990s when they were free now sit down at the same table to celebrate each other’s religious festivals.

“They’ll cook for the saints days, get the materials in from the Balkans shop, and the whole wing will sit down and celebrate whatever it is,” said Kennedy.

Even when they are competing on the football field they don’t team up along ethnic lines, and Kennedy says there has not been a single incident of a national or religious nature in all these years.

Is there something to be learned here?

“They get along together because they are in the same circumstances,” Kennedy said.

“They’re facing the same restrictions that custody, being detained, puts on them, they are all living together in the same area, in the same wings, there’s no segregation based on ethnic background, and in those circumstances it’s best and easiest to get through it if you can get on with your neighbors.”

© Thomson Reuters 2011

The International Criminal Court was created to provide a way to hold those who commit war crimes, crimes against humanity and genocide accountable. It was designed to put an end to the impunity with which leaders had previously been able to commit such crimes. More than 115 countries are party to the Rome Statute that established the I.C.C. Shamefully, the United States is not.

The arguments against ratifying the Rome Statute are based on the concern that, should we become a state party, our citizens (our soldiers) could be subject to prosecution for war crimes. This scares war criminals like Donald Rumsfeld. But it should not scare the rest of us. Though becoming part of the I.C.C. surrenders a small amount of national sovereignty, the only reason one need fear accountability for crimes like genocide is unconscionable. Something more serious is awry if we resist membership in the I.C.C. because we are committing the very crimes the court was created to deter.

Concerns about a politically motivated prosecution of the United States are unjustified. The I.C.C. has shown restraint and objectivity in their investigations of conduct in Iraq. It is not perfect by any means, but it is a work in progress. Investigations launched by the prosecutor on his own initiative must be approved by other justices, and even if those members of the court had some nefarious objective, the Security Council could indefinitely delay I.C.C. prosecutions. Any fear that Americans would be brought against our will before the I.C.C. is overblown. War, by itself, is not a punishable crime under the Rome Statute.

The I.C.C. prosecutes only those who commit crimes of a sufficient gravity, and only when the domestic judicial system is unable or unwilling to prosecute such criminals. We are talking about the Joseph Konys, the Omar al Bashirs, the Qaddafis of the world. Shouldn’t we, as decent Cornellians who respect human dignity, want such heinous criminals brought to justice regardless of their nationality? In multiple cases, the I.C.C. has intervened to stop leaders from killing their own citizens. This is a protection we should want extended to all people.

At present, the I.C.C. walks a fine line on its road to relevance and efficacy. Launch prosecutions with no chance of success, and the court risks becoming impotent. Focus on only easy cases, and the court risks losing legitimacy. The United States could help expedite the court’s movement towards greater legitimacy. As the global superpower, putting ourselves within the jurisdiction of the I.C.C. expresses the court’s legitimacy to countries who have not yet joined the court and countries who are currently members but sometimes ignore their obligations to the court.

The promise of the I.C.C. — the promise of international law — is that another Rwanda will one day become unthinkable. Joining the I.C.C. could make a real difference in deterring those who might commit these types of crimes. The creation of the I.C.C. represents a shift from “justice” being written by the victor of a war, and instead toward a more predictable, equitable system of justice based on enduring principles of human dignity. The United States has spent the first decade of the court’s existence opposing almost everything the court has done. Instead of standing in the way, the United States could help move this noble endeavor forward.

As Cornellians, many of us will likely be in positions of leadership sooner than we think. For the sake of us all, let us hope we are better than those who are afraid of prosecution for crimes against humanity. For the sake of those less privileged than us, for whom our worst nightmares are their daily realities, let us stand in support of a court that deters such crimes and holds the perpetrators accountable.

The court aligns with our core values. Ending Joseph Kony’s reign of terror in Uganda, stopping the Janjaweed militias in Darfur, seeing Qaddafi face trial for killing his fellow Libyans — these are all things we believe in.

President Obama often frames debates in terms of “which side of history” we wish to be on. Do we, as Americans, want to be on the historical side of impunity when it comes to those who commit crimes against humanity? Or do we want to be on the side of bringing those who commit these horrible crimes to justice?

Soon enough, it will be our turn to help lead our country forward. I propose we lead our country in the direction of human dignity by becoming members of the International Criminal Court.

Nicholas Kaasik is a first-year law student at Cornell. He may be reached at nek43@cornell.edu. Read original article here.

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In 1993, Shell Oil was complicit in, the Nigerian government’s arrest and execution of several people protesting Shell’s labor and environmental practices. The case was settled before it started in a United States federal court, but—Should the International Criminal Court have the opportunity to prosecute cases, like this one against Shell Oil?

This week I gave a talk on why it is important that U.S. anti-trafficking laws be amended to include corporate liability provisions. Corporations and businesses control the majority of the demand for labor trafficking, thus if they are liable for this crime, it is likely that the crime will greatly decrease. The same is true for many other international crimes. Yet, not only are there not corporate liability provisions in many international human rights laws, but, no international court, including the International Criminal Court (ICC), can even prosecute businesses.

The Basics of Corporate Liability

The basic concept of corporate liability has not received universal recognition. In fact, most countries do not prosecute corporations. However, many common law based countries recognize corporate liability, including Australia, Canada, and the United States.

In the U.S., corporate liability works by imputing the crime from a person to the rest of the corporation. To do this you must (1) have an actor who is personally guilty of the crime and (2) that actor must be an “agent” of the corporation. To be an agent of the corporation, the actor must be authorized to act on behalf of the corporation and must be working to benefit the corporation while acting under its control. If these factors are present, the court can impute liability from the actor and hold the corporation liable. 

Penalties for corporations convicted of crimes can include heavily fines, dissolution and reorganization, revocation of licenses or permits, or even the surrender of the corporation’s ability to conduct business in the jurisdiction. Thus, when corporate liability is a possibility, corporations pay attention because the results can be devastating. 

Leaving Companies Out of the ICC

The idea of prosecuting businesses was considered during the development of the ICC. One of the initial drafts of the Rome Statute, the founding document of the ICC, contained a provision on the criminal liability of all legal persons except states. Because “legal person” includes both people and organizations recognized by law, the ability to prosecute all legal persons would allow the court to prosecute corporations. France actually submitted a draft provision which would hold a corporation liable if an agent was found guilty of committing a crime on the corporation’s behalf.

However, there was a “deep divergence” of views over the advisability of prosecuting corporations. Many supported the inclusions of corporate liability because it would be an effective way to eliminate certain crimes. Many other countries had trouble supporting it because their own national legal systems don’t prosecute corporations, thus making it hard to authorize an international one to prosecute them.

There are arguments that despite the final decision to leave corporations out of the ICC, they may still be prosecutable under it- but we have yet to see this attempted or even considered.

The Debate: Should We Be Able to Prosecute Corporations?

So should the ICC ever revisit this and consider amending their jurisdiction to include fictional legal persons or corporations? In short, yes. Here’s why.

The legal purpose of a corporation is to make money for their shareholders. If a corporation is taking time out of this purpose to give money to charity or, for example, ensure there is no slavery occurring in its supply chains, there’s a chance it that its shareholders could actually bring a law suit against the business’s board of directors. For example, in the famous case Dodge v. Ford Motor
, shareholders sued Ford Motor Company for giving nice benefits to its employees and factory workers and thus failing to maximize profits for its shareholders.

This means that movements encouraging corporate social responsibility can only go so far. The company will still have that legal obligation to make money for its shareholders. However, if corporations risked being prosecuted for human rights crimes, this would give the company the legal obligation and incentive it needs to invest in being responsible. Because a company that is prosecuted for committing human rights violations is not maximizing shareholder profits.

And the more companies that invest in responsible business practices, the less human rights violations we will have. Prosecution in the International Criminal Court would not only scare corporations into social responsibility, but actually provide them with a path to social responsibility that didn’t previously exist.

In a world of increasing corporate influence and sway, where multi-national conglomerates exceed many countries in terms of annual turnover, it is irresponsible to leave these actors outside the law. History has proven that where loopholes exist in international law, they will inevitably be exploited. Implementing corporate liability at the international level can serve to protect us against this risk.

Share if you approve of bringing these changes to the ICC, and re-post on corporations’ Facebook pages.

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Sarah Pierce is a recent law school graduate with a long history of experience working with nonprofit organizations devoted to international justice and social change.

Follow Sarah on Twitter: @sarahcpierce

Who?

Joseph Kony was born in the early 1960s, probably 1961, in Odek, a village east of Gulu in northern Uganda. The son of a farmer, Kony was remembered by a former classmate as being a gentle, good-natured boy in his early school days, “he played football and was a brilliant dancer.” However, he was also known to come down hard on his siblings when they crossed him. In his youth, Kony was involved with the community, serving as an alter boy until his teenage years, at which time he apprenticed as the village witch doctor with his brother.

Kony is thought to be the cousin, or nephew, of Alice “Lakwena” Auma, a reported prostitute-turned-mystic who started the Holy Spirit Movement against the Ugandan government in 1986. Claiming to represent the Acholi people, who felt excluded from the political power structure after the overthrow of the northern leader Milton Obote, the Holy Spirit Movement promised its followers immunity from the bullets of the Ugandan army. Lakwena’s movement was defeated by the government forces in 1988, leading Joseph Kony to found the Lord’s Resistance Army and embark upon a campaign of kidnapping and terror which spread from Uganda, to the DRC, the CAR, and South Sudan, reeking havoc on the security of vulnerable people’s throughout the region.

Why?

Though Kony initially enjoyed strong public support, his LRA turned on the Acholi people, with Kony determined in his mission to ‘cleanse’ and ‘purify’ the Acholi people, and turn Uganda into a theocracy ruled by the Ten Commandments.

Since the LRA started fighting in 1986, it is estimated to have abducted tens of thousands boys and girls and used them either as sex slaves or as child soldiers. By 1988 the bulk of his foot soldiers were children, who were forced to kill their own parents in brutal initiation processes. In some cases, the children were even forced to eat their own victims.

In a campaign characterized by two decades of sadism, Kony has orchestrated and overseen wholesale massacres of entire villages, wherein the victims’ ears, lips and limbs were chopped off. One fortunate escapee has described the sadistic nature of Kony’s soldiers, entering villages in silence, “without a shot being fired… The group prefers to use machetes. They don’t shoot, they are just chopping. You don’t know where they are until they reach your house.”

Where?

Joseph Kony continues to defy the ICC, remaining one of the world’s most deadly fugitives. He is known to have had links to Omar Al-Bashir, the President of Sudan, meeting him at least twice in 2004 to arrange a heavy arms deal. Kony is believed to have escaped the clutches of the Ugandan army in August 2010 fleeing to the Sudan, perhaps to renew ties with his former benefactors.

When?

Kony’s crimes have gone unpunished for over two decades. Perhaps deterred by the potential for damaging countless futile attempts at peace talks, the international community has until relatively recently shied away from pursuing justice against Joseph Kony.

However in October 2005, the ICC announced that arrest warrants had been issued for 5 members of the LRA, including Mr Kony. Shedding light on the 33 charges of crimes against humanity and war crimes, Luis Moreno Ocampo, the Chief Prosecutor of the ICC, confirmed that Kony’s indictment detailed the murder, enslavement, sexual enslavement, rape and cruel treatment of civilians, as well as intentionally directing attacks against civilian populations.

What he says…

Confronted with the accusations that he is responsible for thousands of deaths and abductions and for maiming civilians, Kony, in a rare interview in 2006, emphatically denied the allegations, declaring, “that is not true. It’s just propaganda” and subsequently shifted the blame on President Museveni, adding, “I cannot cut the eye of my brother… I am a human being like you.” Denying outright the claims that he is responsible for abducting thousands of children for his army, Kony declared: “we don’t have children. We only have combatants.” Responding to the ICC charges, he insisted, rather predictably, “I am not guilty… we are fighting for democracy.”

What now?

Joseph Kony remains at large and his LRA insurgency, having spread into parts of Sudan and the DRC, remains one of Africa’s longest running conflicts. International efforts at capturing Kony have proved impotent at best.

Recently President Obama signed into law the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act, making it American policy to kill or capture Joseph Kony and to finally defeat his rebellion, which undermines other efforts at peace and stability in the region. US military efforts at killing Kony in 2008 proved futile, paving the way for a new killing spree that continues to this day.

As with the indictment of Omar Al-Bashir, critics of the ICC, particularly in Africa, respond to the arrest warrant for Kony by accusing the Court of representing nothing more than the neo-imperialist justice of the West, who is still unfairly picking on Africa. Whilst these misconceptions may partly be down to regional misunderstanding of the ICC and its aims and processes, the relatively poor standards of justice on the continent cannot be ignored, particularly when such grievous crimes are carried out there. National judicial systems must be strengthened in order that African courts can do the job of the ICC themselves, but until that goal is realized ICC intervention in situations such as this one must continue.

The indictment of Kony has, rather unfortunately, been suggested to have contributed to stalling the peace talks with the Ugandan government and is accused of exacerbating the violence in the region. Luis Moreno-Ocampo has fervently denied these claims by religious and community leaders, insisting that Kony previously used peace talks as a means of regrouping and rearming. And with the net seemingly closing in on Kony, rebel attacks have dramatically declined since his indictment, supporting the ICC’s stance that pursuing justice helps facilitate peace.

Achieving international justice for Kony’s victims is crucial. His barbarism and abhorrent disregard for human life has destroyed the aspirations and potential of generations of children who could otherwise have grown to become valuable contributors to the establishment of a peaceful, stable and developing Uganda.

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IJCentral’s Most Wanted is written by Aneil Sharma.
Aneil studied for his LLM in International Criminal Justice and Armed Conflict at University of Nottingham (2006) and recently graduated law school (2010), where he was also an editor of the students’ human rights law journal. He has done internships with Oxfam and The British Institute of International and Comparative Law in London and has completed casework for Amicus, who assist US lawyers on capital punishment cases. He intends to return to school to study for his PhD.

Follow Aneil on Twitter: @theSharmz