IJCentral: International Justice Central

By Tania Deigni and Mariana Rodriguez Pareja

Former Congolese warlord, Thomas Lubanga Dyilo, was born in Jiba, in the district of Ituri, Democratic Republic of Congo (DRC). He was arrested in Kinshasa, DRC, in March 2006; following his arrest, he was transferred to the International Criminal Court’s (ICC) detention facility in The Hague, the Netherlands, where he has been in detention ever since and will remain until the Court rules on which facility will enforce his 14-year sentence.

Lubanga is the first person to be judged and sentenced by the ICC. In March 2012, he was found guilty of committing war crimes as contained in the Rome Statute. As a co-perpetrator, and as the ICC ruling states, he was convicted for “enlisting and conscripting children under the age of 15 years into the Force patriotique pour la libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities.” 

According to the findings of the tribunal, Lubanga was responsible for heading the FPLC, which lead a systematic and widespread recruitment of children and forced them to join and participate in hostilities. As commander of this rebel group, he assumed great responsibility in planning and coordinating the recruitment of child soldiers. Lubanga also used them as his personal bodyguards.

Although most people associate arm and warfare and the issue of child soldiers with males, it is important to note that girls were also recruited as child soldiers and, in most cases, served as sex slaves for the FPLC commanders and rebels. However, the ICC did not incorporate these sexual crimes into the final guilty verdict against Lubanga, despite relentless efforts by several oganizations, including the Women Initiatives for Gender Justice (WIJG), who sought to have these sex crimes incorporated into the verdict. These organization’s efforts can particularly be contextualized through the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces and Armed Groups, which states that “A child associated with an armed force or armed group refers to any person below 18 years of age who is, or who has been, recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, spies or for sexual purposes. It does not only refer to a child who is taking, or has taken, a direct part in hostilities.”

Justice welcomed, but more remains to be done

Several international, regional, and national organizations welcomed Lubanga’s sentence, although not all of them were satisfied with it. The DRC Coalition for the ICC welcomed the decision of the judges to sentence Lubanga to 14 years in prison. However, as the organization’s coordinator, André Kito, stated: “Civil society organizations and victims [in the DRC] still regret that the scope of charges was not broad enough since other crimes perpetrated such as sexual violence, summary executions, and pillage were excluded. We are also frustrated that sexual violence was not considered at sentencing as an aggravating factor due to the absence of any prosecutorial evidence presented to the Chamber.”

In addition, Armel Luhiriri, African Situations Liaison at the Coalition for the International Criminal Court (CICC), pointed out that Bosco Ntaganda, another warlord still committing crimes in the DRC, remains at large despite an ICC arrest warrant issued against him. Persistent calls for his arrest have not succeeded in securing his arrest and his transfer to the ICC.

Child Soldiers throughout the World

According to Child Soldiers International, since January 2011, 18 states have reportedly used girls and boys to actively participate in hostilities. In some cases, such children are found to have been incorporated as part of the official state armed forces, including national armies, paramilitaries, civil defense, police and other forces established by law. In other instances, these children were found to be a part of state-allied armed groups such as irregular paramilitaries and “self-defense” groups which are backed by (or in alliance with) government forces, but were not officially incorporated into such government forces. Children have also been used in armed opposition groups allegedly being supported by foreign states. In yet a few other cases, child soldiers had not been formally conscripted or enlisted but were nonetheless used by state armed forces for intelligence purposes or as guides, porters, spies or human shields.

No matter the level of incorporation of a child in armed services, it is a danger to the child and illegal under international (and most national) laws. In all these cases, children are forced to fight, in some cases at gunpoint. The sad reality is that once a child soldier is recruited, it is extremely difficult for him or her to escape. Certain few have managed to escape, but the vast majority of children who try to escape or desert are executed. There are no arrest warrants, no trials and no convictions for the recruiters. There is no accountability, only total impunity.

The United Nations (UN) stipulated that 11,000 child soldiers were freed in 2011 in Africa and Asia. But, it is hard to say the exact number of children who remain at the mercy of warlords like Lubanga. Just yesterday, on 5 August 2012, Child Soldiers International reported that hundreds of children have been forced into armed groups in northern Mali, some serving as soldiers and others as sex slaves.

Child Soldiers International reports that Africa has the largest number of child soldiers and can be found in: Central African Republic, Chad, Democratic Republic of Congo, Mali, Somalia and Sudan. In Asia, child soldiers are fighting in Myanmar (where it is legal to recruit under- aged persons to participate in hostilities), Afghanistan, Bangladesh, India, Indonesia, Nepal, the Philippines, and Thailand. In the Middle East, Iran, Iraq, Israel, the Occupied Palestinian Territories, and tribal groups in Yemen have child soldiers operating in hostilities. In Latin America, child soldiers are primarily in Colombia, where Child Soldiers International estimates there are 14,000 children in armed groups. In Europe, child soldiers are involved in conflicts in Turkey and in the Chechen Republic of the Russian Federation.

The Particular Case of Colombia

NGOs in Colombia have been working tirelessly to shed visibility on the problem of the recruitment of child soldiers in Colombia. The FARC and other groups involved in the internal conflict that has been going on for almost 40 years, have allegedly recruited children as young as 7 or 8 and forced them into combat. Girls are being raped, and some become pregnant; after giving birth, they are beaten and sometimes killed. There are gangs composed of children under 18 years old, who carry guns and go on killing rampages, eliminating all who come in front of them. According to consulted journalists, some view child soldiers as benevolently aiding in controlling drug trafficking.

Those who are working in order to eradicate the use of child soldiers and for their reintegration into society do not have the support they need in order to achieve their goals. This crime is almost invisible to a great part of Colombia’s society, which is misinformed and at times uneducated on the issue of child soldiers. Many Colombians believe this crime only happens in Africa, and are unaware that kids are being kidnapped a few blocks away from their homes, from their schools, from their communities, and being forced to live these nightmares.

Colombian civil society will be releasing an exhaustive report on the issue, which I will highlight when it is released. Indeed, it is not a question of only Colombia or the DRC; it is a matter of humanity. How can we, as a global society of human beings, continue to allow children to be recruited into armed groups throughout the world?

We must take a stand; justice has been rendered against Lubanga, who is next?

Tania Deigni obtained a BA in Political Science from the University of Florida, currently pursuing nursing studies
Mariana Rodriguez Pareja is the Director of the Human Rights Program at Asuntos del Sur @maritaerrepe

By Mariana Rodriguez Pareja and Salvador Herencia

Now that the International Criminal Court (ICC) has just rendered its first sentencing for Lubanga for the recruitment and use of child soldiers in the armed conflict in Uganda, it might be adequate to talk about Colombia, a situation that has been under the ICC radar since 2006.

Back then, 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, and Colombia is classified as a “situation under analysis.”

The primary responsibility of investigating grave crimes remains under the jurisdiction of the Colombian tribunals and the Court considers the local judiciary capable and willing to carry out investigations of the crimes under the ICC’s jurisdiction. But, NGOs have reported that the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) continue to perpetrate grave abuses against civilian populations.

Child Soldiers and Landmines

HRW reported that Colombia is among 14 countries worldwide (beyond Central and West Africa) that use child soldiers. In the case of Colombia, the report adds that the FARC have recruited children as young as 7 and forced them into combat. They execute fighters who try to desert. There are no arrest warrants, no trials and no convictions for the recruiters.

Antipersonnel landmines and other banned weapons are still being used by the FARC and the ELN, HRW’s World Report states. They also note that 16 civilians were killed and 104 were injured by landmines and unexploded munitions between January and August 2011.

Gender Crimes

Furthermore, it is reported that gender violence has been employed as a weapon of war. Unfortunately, the international community has continually failed to prevent the widespread and systematic violence against women in the context of armed conflicts. Colombia is not an exception of this tragic rule.

The Constitutional Court, in a 2008 decision, recognized that sexual violence against women was “a habitual, extended, systematic and invisible practice in the context of the Colombian armed conflict … [perpetrated] by all illegal armed groups, and, in some isolated cases, by individual agents of the public security forces.”

Last year, a Symbolic Court Against Sexual Violence within the Colombian Armed Conflict met in Bogotá to deal with a range of cases related to sexual violence committed by armed groups in the internal Colombian conflict.

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.” The Tribunal made some recommendations urging the Colombian state to uphold their international obligations regarding the prevention, investigation, prosecution and judgment of gender violence.

The Tribunal further reported that among the crimes committed by armed groups are: rape, enforced nudity, enforced contraception, sexual slavery, forced pregnancy and other gender crimes committed alongside crimes, such as killing, enforced disappearances, kidnapping and torture. The judges stated that 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 paramilitary groups and by the guerrillas, with the clear goal of “obtaining benefits in the developments of the hostilities.” Therefore, the Tribunal concluded, if the Colombian authorities do not take the necessary steps to investigate and prosecute those responsible for these types of crimes then the ICC should address them.

At the moment of writing, there has been no progress made in this regard and civil society organizations criticize the Colombian judiciary for not yet having addressed past and present gender violence correctly.

False Positives

Before leaving the ICC, Luis Moreno Ocampo told EFE that his office was analyzing information regarding the Colombian army murdering civilians and disguising the bodies as guerillas killed in combat to artificially inflate its enemy kill count – so called “false positives”. However, we should be clear: There are no false positives, only extrajudicial executions. The International Federation for Human Rights (FIDH) has called on the ICC to open an investigation on this topic ever since the scandal broke in 2008 – and they are asking for a full investigation since 2002, when Colombia ratified the Rome Statute.

In their recent report (produced together with the Coordinación Colombia Europa Estados Unidos), titled “Colombia: The war measured in litres of blood – “False-positives”, crimes against humanity: the impunity of the most responsible”, the organization notes that extrajudicial executions (or “false positives”) committed in Colombia constitute crimes against humanity, and that those who bear the greatest responsibility are not being investigated or prosecuted by the Colombian justice system.

Constitutional Reform for Justice: An absurd fostering of impunity

Over the past year, the current administration has filed a draft Constitutional amendment before Congress to reform the administration of justice. This complex project sought to speed up local judiciary proceedings, to protect the rights of victims and to provide a better service to the population.

The results? An “unconstitutional” constitutional reform that if enacted, (i) would have halted all criminal proceedings against members of Congress that are accused of having ties with paramilitary groups; (ii) conceded additional benefits/privileges that would have made impossible for the judiciary to investigate members of Congress and other government officials; and overall (iii) eliminated the checks-and-balance system of the Constitution.

When the final draft of the Constitutional amendment was approved by Congress last week, a political and legal crisis hit the country. It paralyzed everything else and the main question was if the President had the right to veto a Constitutional amendment. In the end, under a creative and systemic interpretation of the Constitution, the bill was sent back to Congress, which, feeling the overall pressure from every sector of national and international public opinion, struck down the reform.

What last week’s crisis made clear is that despite the evident commitment to justice by some Courts and the fact that there is an interesting legal framework that enables the local prosecution of international crimes, dubious political interests seek out alternatives to evade justice. This is something that the new Prosecutor should take into account next time the OTP publishes a report on preliminary examinations.

ICC action needed

Despite President Santos’ concern for human rights, things do not seem to settle for struggling Colombia. As Avocats Sans Frontieres reports, paramilitary successor groups continue to grow, maintain extensive ties with public security force members and local officials and commit widespread atrocities.

Colombia has been suffering an internal conflict for more than four decades now; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic. Populations continue to be forced to migrate and human rights activists are being threatened and/or attacked by armed actors.

What is necessary here is a clear and straight forward answer from the ICC.

Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe
Salvador Herencia-Carrasco, LL.M. University of Ottawa. International Human Rights Lawyer based in Lima, Peru. E-mail: chava@salgalu.com

By Mariana Rodriguez Pareja and Salvador Herencia

As we stated in previous posts for this blog, M. Fatou Bensouda will face several challenges in her term as Chief Prosecutor of the ICC. Apart from the obstacles she has to overcome when working with limited staff and funding, her office has to deal with 14 cases in 7 different situations, plus all the gaps left by her precedessor Luis Moreno Ocampo.

We highlighted on several occasions that despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America, the Office of the Prosecutor (OTP) has been unable to open an official investigation on countries outside Africa. We strongly believe that in Latin America there are also situations that could be investigated or watched carefully by the ICC- OTP.

Now, M. Bensouda must address directly these situations and whether advance in an official investigation or state why ths is not a situation for the ICC. This uncertaintly on Colombia and Honduras is worrysome. Given that we consider that Ms. Bensouda has to improve the efficiency in the investigations, we wonder when her office will appoint a Deputy Prosecutor.

Colombia: Gender Crimes, Child Soldiers & False Positives (Extrajudicial killings)

The ICC concluded the Colombian judiciary was capable and willing to carry out investigation of crimes that could eventually fall under the ICC scope. Therefore is no formal investigation due to the complementarity assured by the Rome Statute, although it has been under the ICC scrutiny for 7 years. 

Local and international groups do not share that same view of the outgoing OTP, since they considered that the Colombian judiciary is not addressing past and present international crimes, including gender violence and child soldiers.

Unfortunately, as in several other conflicts, rape has been used as a weapon of war in Colombia. Also Colombia is one of the countries in the world with child soldiers. According to HRW, there are no arrest warrants, no trials and no convictions for the recruiters. HRW furthers that the FARC and ELN use antipersonnel landmines and other banned weapons.

We would also like to know what mechanisms are in place for the investigation and prosecution of gender crimes and child-related crimes, since sometimes it seems a bit blurry.

Other big question mark Moreno Ocampo left are the so- called “False Positives”. Just days before taking off, Argentine Moreno Ocampo said his office was looking into Colombian army murdering civilians and disguising them as guerillas killed in combat to artificially inflate its enemy kill count – “false positives.”

In this case, it is important to be clear: There are no false positives, only extrajudicial executions.
The International Federation for Human Rights (FIDH) continues to call the ICC to open an investigation on this topic ever since the scandal broke in 2008 – and they are asking for full investigation since 2002- when Colombia ratified the Rome Statute.
Big Question Mark Honduras: The Forgotten Coup

Since President Zelaya was forcefully removed from his office in 2009, NGOs have constiniously called the ICC to act.  The organizations informed that crimes against humanity being committed since September 2009.

In November 2010, then ICC Prosecutor Moreno Ocampo publicly announced his decision to conduct a preliminary analysis of the situation and yet there have been no updates on the actions carried out by the Prosecutor’s office to date. NGO continued to call 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.

But there is absolutely nothing on this regard. If a preliminary analysis has commenced, she has to clarify. It would be important to know, not for this situation only, but for others in the rest of the world, what is the process on when preliminary investigations commence and when they conclude.

Finally, she has to address carefully and professionally the perception of the Court.
Not only in Africa, but in the other regions.

Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa. International Human Rights Lawyer based in Lima, Peru. E-mail: chava@salgalu.com

In another historic ruling by a Federal Court in Buenos Aires, former de facto Presidents Videla and Bignone were sentenced to serve 50 and 15 years, each for their role in the systematic plan to kidnap babies and steal their identities.

Former dictator, M. Rafael Videla (86), was sentenced to serve 50 years in prison for the theft of children under ten years old belonging to parents that were kidnapped and tortured at the ESMA military facilities during the Argentinean Dirty War (1976-1983). In the ruling, the Federal Court highlighted the existence of a “systematic practice” regarding the kidnapping of babies. The Court emphatically stated that this constituted a crime against humanity against civilian population, via the implementation of State-sponsored terrorist practices.

During the proceedings, the defendants claimed that statute of limitations were applicable, requesting the annulment of the trial. However, the Court disregarded such claim stating that in the prosecution of crimes against humanity, such defense is not applicable under Argentinean and International Law.

Most of the abductions took place in the ESMA military facility and according to M. Videla, who did not deny having committed those crimes, “mothers used babies as human shields”. Grandmothers of Plaza de Mayo estimate that 600 babies were abducted and, so far, only 106 have been reunited with their families. This case related to the abduction of 35 babies, who are all now in their 30s and late 20s and cried while hearing the sentence.

According to testimonies of survivors, pregnant women gave birth and in very few cases, were allowed to see their babies. Most of the babies were given to members or friends of the security forces to raise them as “non-communists”. Mothers were generally tortured and disappeared after their baby was taken away from them.

Two Former de Facto Presidents are found Guilty

Videla was the one who took power on March 1976. He was the first face of the so-called “National Reorganization Process”, which left 30,000 people killed or disappeared according to un-official estimates. He is already serving life sentence for tortures committed under his regime. Other of the defendants was M. Reynaldo Bignone, the last de facto President who ruled before the recovery of the Democracy in 1983. He was found guilty of hiding 31 under aged kids.
None of them was granted to serve prison in house- and both have to be transferred to jail.

Apart from M. Videla and M. Bignone, 9 other people were prosecuted. In the end, two out of the 11 defendants were acquitted.

Other members of the military, such as former Vice-admiral Antonio Vañek was sentenced to serve in jail for 40 years,  Jorge “Tigre” Acosta, 30; Santiago Omar Riveros, 20; Víctor Gallo, 15; Juan Antonio Azic, 14; Jorge Magnacco, 10; and Susana Colombo, 5.

An ESMA-Related Case

The Escuela Mecánica de la Armada (ESMA) is a former navy school which became the biggest clandestine detention centre during the military dictatorship. It is estimated that more than 5,000 people were arbitrarily detained, tortured, sexually abused and ‘disappeared’ at this facility. Fewer than 200 of these are believed to have survived. Many of them- men and women- were thrown into the Rio de la Plata river, at the so-called “Flights of Death”.

Estela Barnes de Carlotto, the President of Grandmothers of Plaza de Mayo, a group that continuously seeks for the finding of those abducted children hailed the verdict, saying that “confirmed that there was a systematic plan to steal babies”.

Melinda Taylor, an Australian defence lawyer, is being detained in Libya in connection with her work at the International Criminal Court (ICC).

She travelled to Libya last week to visit Saif al-Islam Gaddafi, who is facing trial for alleged crimes against humanity, along with interpreter Helen Assaf and two senior Registry representatives. They had been granted permission by the Libyan authorities to visit him to inform him of current proceedings in the ICC’s case against him.

Ms Taylor has been accused of trying to pass on coded documents to Saif al-Islam—charges which could amount to espionage or violations of Libya’s national security. We have serious concerns for her safety.

Tell the Libyan PM: release Melinda Taylor

Let’s make sure International Criminal Court staff, including Melinda Taylor, can conduct their work without hindrance so they can deliver justice for Libyan victims.

Tell the Libya authorities to immediately release Melinda Taylor, ICC staff and others in prolonged detention. Your message will go to the Libyan Prime Minsiter, Abdel Rahim al-Kib.

On 5 June 2012, the Prosecutor of the International Criminal Court (ICC) presented his 15th report to the United Nations Security Council (UNSC) on his investigation in Darfur, Sudan. In his statement, M. Moreno Ocampo made specific calls to adopt real measures that ensure the arrest of Sudanese indicted for international crimes. According to the outgoing Prosecutor, the constant defiance by the government of Sudan constitutes a direct challenge to the Council’s authority and International Law.

The investigation in Darfur began in 2005, after the landmark referral by the UNSC via Resolution 1593. It is estimated that 300,000 people have died since 2003 due to fighting between Government forces and the Janjaweed armed group. The ICC has issued arrest warrants against the President of the Sudan, M. Omar Al Bashir, the former Minister of Humanitarian Affairs, M. Ahmad Haroun (now Governor of the province of South Kordofan) and the Defense Minister, M. Abdelrahim Mohamed Hussein. The Court also issued summonses to appear for rebel leaders, M. Abdallah Banda, M. Saleh Jerbo and M. Abu Garda in relation to war crimes.

As William Pace, CICC Convenor has stated regarding the situation in Darfur, “(…) some of the accused not only continue to commit these crimes inDarfur, but are now doing so in other regions against other populations of Sudan. The Council’s inaction in enforcing Resolution 1593 undermines not only the Council’s credibility, but also threatens to undermine the International Criminal Court, which has agreed to assist the UN in maintaining international peace and security in this tortured situation”.

To this date, the Sudanese government continues to challenge the authority of the ICC and International Law. The African Union (AU), under the political pretext that the ICC is “out to get Africa”, has become (with some exceptions) an ally to foster impunity regarding the crimes in Darfur. Due to the possibility that Malawian authorities could arrest M. Al Bashir if he decided to attend the upcoming African Summit, the response of the organization was to change the venue to Ethiopia. Ten years after the entry into force of the Rome Statute, and political rather than legal considerations continue to set the pace in the cooperation for the prosecution of international crimes.

Cooperation with the ICC and respect of rule of law:  No grey areas

The new system of international justice, established by the Rome Statute, has increased the global discourse to fight impunity and still represents a promise made to future generations, a vow to help turn the words “Never again” into a reality.  It has also put forward high standards for gender crimes, fairness of proceedings, and victims’ rights. 

In order to be effective and truly fight against global impunity, the Court relies on the cooperation it can receive from countries and international organizations. As it has been extensively discussed, the ICC needs State cooperation to fulfill its mandate. One would imagine that this cooperation should be of a positive nature, like the surrendering of suspects, providing security to victims, gaining access to crime sites, the exchange of information, among others. However, last week’s events in Libya prove that unwillingness of a State to cooperate can add a new segment on State cooperation: the non-interference on ICC official business.

In this sense, the four ICC officials detained by Libyan authorities is unacceptable and a direct violation to the Rome Statute and to Security Council Resolution that referred this situation to the ICC via Resolution 1970 (2011). In short, it is a slap in the face of international justice and to the so-called “Arab Spring”. Securing the freedom of these officials is the current priority. However, this should also be the opportunity for the UN and the ICC to finally adopt stricter measures to assure cooperation from States. One will also like to know what were the criteria used by the ICC to authorize the deployment of these 4 officials if the conditions on the ground regarding safety and integrity were not met.

In addition to this pressing context, the situation in Syria keeps growing to the brink of civil war.

There have already been reports regarding war crimes and crimes against humanity by State Forces. Current military actions are in direct violation of International Humanitarian Law and there are reports in the use of children as soldiers and human shields.

What are we waiting for? Political debate should be on how to make cooperation more effective, not to see if cooperation benefits political interests.

—-
Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa. Lawyer with experience in International Law. E-mail: chava@salgalu.com

Join us on July 4, 2012 at the historic Nieuwe Kerk in Delft, the Netherlands, for a ceremony honoring the Grotian tradition and celebrating the 10 year anniversary of the International Criminal Court.

The event will feature a ceremonial wreath laying and lecture by U.S. Ambassador for war crimes, Stephen J. Rapp and John Washburn, Convener of the American Coalition for the International Criminal Court (AMICC). With a lecture on the U.S. and The Hague tradition by internationally prominent historian on International Law and The Hague Tradition, Dr. Arthur Eyffinger.

Background on the event from A Grotian Moment website:

In honor of the 10 year anniversary of the International Criminal Court, on July 4, 2012, U.S. students, citizens and diplomats will convene another celebration at Grotius’ tomb. A new wreath will be laid by U.S. Ambassador for Global Criminal Justice, Stephen J. Rapp. A number of addresses which focus on the United States’ role in the development of the “Grotian Project” of international law will be delivered.

For more information and to register, please click here.

Our friends at the American NGO Coalition for the ICC (AMICC) have launched swift and strong counter arguments against a recent critique of the ICC by Eric Posner in the Wall Street Journal. From AMICC’s blog:

In an Op-Ed published on June 10 in the Wall Street Journal, University of Chicago Law Professor Eric Posner made no secret about his disapproval of the ICC: “The court has been a failure.” He also tells us that the ICC doesn’t serve any country’s national interest, and that the Court is distrusted and ineffectual. However, his arguments are built on shaky facts and seem to be driven more by ideology than by a careful look at the ICC’s track record. Below are AMICC’s responses to some of the not-quite-right points made in Professor Posner’s provocative Op-Ed.

Excerpts from the Posner article:

“Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.”

AMICC: In fact, the ICC’s Rome Statute treaty entered into force on July 1, 2002. The first judges and officials began their work in 2003 and 2004, building from scratch a new international organization. Regarding the ICC’s jurisdiction, it is not “by anyone against anyone” but rather the ICC treaty imposes specific provisions and limitation of the exercise of jurisdiction, requiring a nation to have ratified the treaty in order for the Court to be able to try alleged crimes in its territory or by its national, unless the UN Security Council refers the matter to the Court, something Professor Posner nowhere mentions.

“The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.”

AMICC: A failure would suggest that the ICC was created as a short-term experiment that would result instantly in the end of impunity and have the effect of deterring all international crimes. Did the US court system manage to do so in the first ten years of its existence? And while the length of the Lubanga trial was not breathtakingly fast, there were new processes and rules to interpret which helped to ensure that there was in fact a fair trial. These decisions should make future trials faster.

“Even by the low standards of international tribunals, this performance should raise an eyebrow. What went wrong? As with any international organization, the court’s ability to operate rests on the consent of states. One hundred and twenty-one nations have agreed to the treaty, a number that sounds impressive. But the 121 include few authoritarian countries that employ repression or conduct military operations. Mostly democracies with some semblance of the rule of law have joined. Since the ICC gains jurisdiction over a defendant only if domestic legal institutions fail to investigate international crimes in good faith, most member countries are those least likely to be subject to its jurisdiction.”

AMICC: Once a nation joins the ICC, it has accepted for good the Court’s jurisdiction over crimes committed on its territory and by its nationals. The UN Security Council can refer cases to the ICC as well, as it did in the Darfur and Libya situations, as an alternative to this consent requirement.

“Yet where the ICC has exercised its authority, its actions have been controversial. Uganda, the Democratic Republic of Congo and the Central African Republic have asked the court to investigate crimes committed by various rebel groups. In all these cases, the court has been careful not to offend governments willing to cooperate with it—but the upshot has been that it has pursued rebels only and not government officials who might be responsible for atrocities committed by the military.”

AMICC:The ICC’s treaty requires it to investigate all sides of the conflict. In the countries mentioned, the ICC’s investigations have extended to government and military officials, and they continue. The Court’s accused persons from Sudan, Libya and Cote d’Ivoire are all current or immediately previous government officials.

Read the rest of AMICC’s analysis here.

Fortunately, the reason for Memorial Day in the United States is not overlooked. Celebrations tend not to overshadow the fact that this holiday is a day of remembrance for the millions of individuals who serve the United States, and sadly, the millions that have died for the United States. It honors those living and those departed so they themselves, their sacrifice, and the reasons for their sacrifice are not forgotten. Some of the reasons that they served were to protect and uphold our most sacred values and principles, such as “peace,” “security,” “rule of law,” and “justice.” These same principles reside by word and sentiment in America’s most cherished documents: the U.S. Declaration of Independence and the U.S. Constitution.

These precise words and sentiments are also found in the Rome Statute, the founding treaty of the International Criminal Court (ICC), the first permanent international tribunal created to prosecute genocide, crimes against humanity and war crimes. On July 1, 2012, the ICC celebrates its tenth anniversary. All three of these documents share a gravity of purpose and achievement, each breaking new ground in order to attain the previously unthinkable.

The Declaration of Independence claimed the undeniable rights of humans, both individually and collectively, to protect their interests and create for themselves. Celebrating its 225th anniversary this year, the U.S. Constitution showed the power of the written document to establish a just rule of law and to strike a balance of governmental powers. The Rome Statute recognized the duty of sovereigns, also both individually and collectively, to act when unimaginable horrors are visited upon the human family, and prosecute their perpetrators with the utmost respect for due process. The Rome Statute at its core and in practice honors the tenants of these American precedents.

In this tenth year of the ICC, it is an appropriate time to take stock of the Court’s progress in its primary mission: end impunity through the just rule of law. Thus far, assessments of the ICC are varied to say the least, from the unfair and unrealistic, and the critical, yet contextual, to the reasonable and measured. How the Court can be both satisfactory to some, a concern to others, and both to many is a matter of differing politics and viewpoints as well as a testament to the Court’s mixed record. For some, the ICC is failing as it took six years to finish its first trial, several Prosecution indictments failed to receive judicial approval due to insufficient evidence, and the ICC’s Africa-centric caseload shows that it is a neo-colonial institution employing “selective justice” to eliminate disfavored African leaders. Others respond by pointing out that the Pretrial Chamber’s pushback on Prosecution indictments proves that the Court’s safeguards against political or questionable prosecutions are working. Further that many of the African situations at the ICC are the product of self-referrals by African states themselves or UN Security Council referrals. More importantly, supporters of the ICC argue that the Court has quickly attained legitimate status on the international stage, instead of being relegated to irrelevance as predicted by some.

The assortment of opinions and analyses of the ICC will continue through this year of reflection, and this exercise is to be embraced. The first milestone anniversary of the Court offers an important opportunity for ICC stakeholders to convene and have honest discussion about where the Court succeeded, and where more work is to be done. The recent Stanford Law School’s Conference on the tenth Anniversary of the ICC was the first such conference in the United States where frank conversation could occur. This conference entitled “ICC Turns Ten: Reviewing the Past, Assessing the Future” brought together an impressive lineup of panelists from the ICC’s principal organs—the Presidency, the Registry, and the Office of the Prosecutor—as well as from the United States government, academia, and civil society.

Read whole article on Huffington Post here.

After decades of isolation, Burma has recently been on a charm-offensive. It has quickly found its way back into the good graces of the international community, which seems to have enthusiastically embraced what it apparently considers to be democratic reforms and did not need much to start easing sanctions. Travel bans for individuals with top positions in government have been lifted, Norway now encourages businesses to invest in Burma, and the European Union (EU) recently suspended sanctions for one year. International media has also turned its attention to Burma and countless articles have been written about the ‘new Burma’ – one supposedly now on the road to democracy.

A more accurate assessment of Burma’s progression to democracy is perhaps best expressed in the words of Daw Aung San Suu Kyi, when she said Burma is “on the road that leads to the road to democracy.’ More recently, at the World Economic Forum in Thailand, Daw Suu cautioned the world against what she called “reckless optimism” and said that “healthy scepticism” is in order.

The situation in Burma has resulted in an estimated 650,000 Internally Displaced Persons (IDPs). Displacement can occur for a variety of reasons, the most obvious being as a direct result of armed conflict between insurgents. However, other reasons include a variety of abuses, such as: land confiscation by the Burmese army or other armed groups (often for the extraction of natural resources), predatory taxation, and forced labour. Due to the sheer magnitude and severity of these abuses, it is often argued that they constitute crimes against humanity.

There have been several calls for a United Nations Commission of Inquiry to look into the claims of war crimes and crimes against humanity committed in Burma, but so far there seems to be little international interest in accountability. Also, the controversial 2008 Constitution fails to give ethnic groups equal rights, guarantees the military 25% of the seats in Parliament, and offers immunity to all former and serving military generals. This means that there are few realistic channels for accountability in Burma.

In light of the international community’s apparent lack of concern for the ongoing ethnic conflict and the situation of IDPs, as well as the near total failure of the media to report on this, the Oxford Burma Alliance has recently launched its awareness campaign, ‘Displaced But Not Forgotten 365’ – and action week is now. The campaign seeks to inform and educate on the current situation affecting IDPs in Burma and to express solidarity with them. We believe that awareness can breed responsible, positive social action, and it is our hope that through the dissemination of information on this important issue, the campaign will encourage participants to seek out other channels through which to help local efforts to build civil society and support those affected reconstruct their livelihoods.

To make a statement that we have not forgotten the IDPs of Burma, we want to collect pictures of at least 365 people making a statement that they stand in solidarity with the IDPs of Burma—one person for each day of the year. We will use them collectively to show joint support in the form of a photo collage. We have created a Facebook event with further information and instructions, as well as a campaign video.

While the signs of reform in Burma are encouraging, and while the country may now be moving towards the path to democracy, the road will be long and demand more comprehensive reforms. In the meantime, it is important to not forget those still affected by on-going conflict and human rights abuses. Join the campaign and help us spread awareness about ongoing humanitarian disaster happening in Burma.

Ebba Lekvall, is a law student at the University of Oxford and former intern at the Office of the Prosecutor at the International Criminal Court. She is also the Co-President and Founder of the Oxford Burma Alliance. The OBA is a student-run organization working to raise awareness about Burma at Oxford and provides a platform for Burma activists and others with an interest in human rights and education to exchange views and ideas and initiate concerted social action. For more information about the OBA, please visit: http://oxford-burma-alliance.weebly.com/

El Salvador did not sign the International Criminal Court (ICC) Statute, but participated actively in the Rome Conference in 1998. Since the ICC came into effect, El Salvador has not participated in the meetings and has adopted a negligent attitude towards the Court, including the adoption of a bilateral agreement with the U.S. by which both parties agreed that their nationals would not be transferred to the ICC if they commit crimes under the Court’s jurisdiction.
But, in 2010, things began to change: mid and high level officials of the Salvadorian government participated in official meetings, a number of events were organized within the country and ICC officials paid several visits. This provoked such remarks from the Salvadorian Minister of Foreign Affairs, who stated that the visits of ICC officials served “to continue the phase of consultation and technical input from experts, interested organizations and institutions that specialize in the subject in order to enrich the discussion and allow a period of more fruitful legislative discussions and with stronger evidence to establish the necessary consensus concerning membership or non-membership of El Salvador to this important instrument in guaranteeing human rights worldwide.”
Salvadorian officials argued that in order to become party to the ICC, the National Constitution had to be amended. NGOs and academics worked on different proposals and submitted them to the government. The most important challenge identified by NGOs was related to the statute of limitations for international crimes, the amnesties and immunities.
However, a few weeks ago, the Minister of Foreign Affairs stated that the ratification bill- currently at the Executive Branch- was going to be sent to the Legislative branch for vote. The Minister said that the country would join the ICC, but will make some “reservations”. What the Minister did not know is that the Statute does not accept reservations: states must accede ‘entirely’ to the Statute.  He highlighted that the ‘reservations’ that will be made are related to the retroactivity of the ICC statute and to life imprisonment. Another mistake: the ICC Statute is crystal clear on article 24. The ICC jurisdiction is non-retroactive. In terms of life imprisonment, that punishment is currently being discussed by the judicial branch, because, although it is not legal under the Salvadorian system, people do spend their lives in prison.
Therefore, the reservations highlighted by the Minister are not legally accurate.
Willingness

We aknowledge the willingness of the government to become party to the Rome Statute and the momentum: a few years back, it would be been unthinkable to see a Salvadorian official speaking highly of the ICC. It was simply ignored. Still, education and training on the Rome Statute is a must- do in the country.

The Rome Statute system is an exceptional mechanism. The Court will only act against the most serious crimes and it’s the duty of the national courts to address crimes committed within their territory. The Court will only act, if national courts are unwilling or unable- the ratification can serve as a step and a contribution to strengthen the judicial system and the Rule of Law.

Hopes are high, and 2012 will be remembered as the twentieth anniversary of the adoption of the peace agreements, which ended the 12-year long armed conflict. It also marks the first time a Salvadorian president asked for forgiveness for the crimes committed in the Mozote Massacre.

Belissa Guerrero Rivas is a Salvadorean Lawyer.
Mariana Rodriguez Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS) Twitter handle: @maritaerrepe

This year is very signitifative for the International Criminal Court (ICC): the tenth anniversary of the entry into force, the beginning of the term-in-office of the new Chief prosecutor Fatou Bensouda, who will replace Argentine-born Luis Moreno Ocampo; and the first ruling in history for the case against Thomas Lubanga, for the recruitment of child soldiers in the Democratic Republic of the Congo was rendered in March.

As of today, 121 countries have ratified the treaty and the ICC is currently investigating 14 cases in 7 different countries. Regardless all the advances, we believe that there are many challenges to be faced and other obstacles to be undercome. One central issue of the ICC is cooperation, something that could seem superfitial for those who are not familiar with the ICC, but it is fundamental for the ICC. Without cooperation, the ICC cannot act effectively.

The ICC and the OAS

Both the ICC and the IACHR (Inter-American Commission on Human Rights)  pursue one common goal: the erradication of impunity for human right violations. After the adoption of the Rome Statute of the ICC in 1998, several resolution promoting and supporting the ICC have been adopted by the OAS, as well as a draft model-legislation to contribute OAS member States in the implementation of principles and cooperation mechanisms. The adoption of a Cooperation Agreement on April 26, 2012 is a significant push towards the strengthening of this relationship.

According to the information provided by the IACHR, the agreement “provides for the possibility that each party will provide the other with information on decisions, resolutions, judgments, reports, and documents, which could prove useful in processing cases and carrying out the mandates of both institutions. 

Why is cooperation central to the ICC? The ICC is a judicial institution and the jurisdition is complementary to the one of the States parties to the Statute. The ICC does not have its own police or armed forces and it does not have its own prisons. Therefore it is critidal for the ICC to be able to rely and count on States or international institutions in order to carry out its mandate effectivetly. Cooperation implies much more than the signing of an agreement with the IACHR. When the ICC signs a cooperation agreement with a State, it involves the adoption of cooperation laws at the moment of implementing the Rome Statute in the local system.

It cannot be ignored that the international financial crisis has an impact at every level, including the ICC- so, in order to maximize efforts and resources, cooperation must be pursued and put into practice. The Court should be able to rely on existing effective both infrastructure and mechanisms.

The Inter American System

The Inter American system has been understimated for many countries. Other countries, simply forget it exists or do not follow the rulings. Even in many Law schools in the region, the IA system is excluded from the syllabus, leaving the matter to experts only, when it should be a system widely known by every person- since the Inter American Convention for Human Rights serves as one of the basic HR instruments for all States parties to the OAS.

Despite the lack of comprehensive legislation on International Criminal Law in most of the OAS states, many of its core principles are already binding on them through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. This regional tribunal has significantly contributed to the prosecution of crimes against humanity, especially enforced disappearances and torture.
Although the cases examined by the Inter-American Court are different from those that fall within the jurisdiction of the ICC, the Rome Statute has been a valid interpretative tool to determine State duties regarding the protection of human rights.

The ICC and the IACHR is definitely a good match: now let’s make sure all the OAS states become parties to the ICC system and that they both commit and achieve their goal to put an end, prevent and/or punish to the worst crimes and bring justice to victims.

*Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco. LL.M. University of Ottawa, legal adviser to the Andean Commission of Jurists. Email: (JavaScript must be enabled to view this email address)

Mariana Rodriguez Pareja and Salvador Herencia Carrasco join JiC again with this fascinating guest-post on Guatemala’s ratification of the Rome Statute and the country’s ongoing legal and political struggles to address the past and achieve justice.

Ratification done, implementation next?

On April 2, 2012, the Guatemalan government filed the depository instrument of the Rome Statute before the United Nations, becoming the 121 State Party of the International Criminal Court (ICC). With this ratification, Cuba, El Salvador and Nicaragua are the only Latin American countries that are yet to be a part of the ICC. The good news is that El Salvador has publicly announced its intention to ratify the treaty by the end of the year.

In 2002, the Guatemalan Constitutional Court rendered an Advisory Opinion concluding that the Rome Statute was compatible with the Political Constitution. Since then, objections towards the treaty have been political, rather than legal. With the ratification of the Rome Statute, the long road towards implementation begins. Indeed, we it is important to bear in mind that countries like Bolivia, Ecuador, Mexico and Peru (to name a few) have ratified the treaty many years ago but have yet to fully implement the Rome Statute.

In the case of Guatemala, the importance of this ruling resides in the fact that the Constitutional Court determines that the Rome Statute is a human right treaty which, according to Article 46 of the Constitution, has the highest legal standing, forming part of the bloc de constitutionalité. This means that the Rome Statute and the principles it stands for have Constitutional standing in Guatemala. In a country that is dealing with the prosecution of international crimes perpetrated during its Civil War, principles such as non-statutory limitations, the non-applicability of amnesties or the validity of immunities might contribute in the local judicial proceedings.

Like many Latin American countries, the Guatemalan Criminal Code criminalizes torture and enforced disappearances. These crimes were adopted in 1995 and concern the fight against organized crime, rather than the fulfillment of International Human Rights Law or International Criminal Law. The Criminal Code also has a section on international crimes including genocide, where racial groups are excluded and a generic norm called ‘offenses against duties to humanity’ (deberes contra la humanidad), which seeks to regulate all violations of the Geneva Conventions and International Humanitarian Law.

(Photo: RNW/Flickr)

National Prosecution of Dos Erres Massacre: slowly but surely

On 2 August 2011, a local tribunal in Guatemala City sentenced four former soldiers from an elite unit of the Armed Forces Kaibil to 6006 years each for the massacre of Las Dos Erres. This was welcomed by the victims, their families and the international community and it served to advance the country’s process of recovery and set an important precedent for justice in Guatemala.

Nevertheless, setting another important precedent, in March 2012 a fifth soldier was sentenced for the same massacre. Pedro Pimentel Ríos was sentenced to serve 30 years of prison for each victim killed in the attack and 30 years for the perpetration of crimes against humanity.

The process against Pimentel, who was deported from the United States as an illegal alien in 2009, was advanced separately from the first mega trial. Although Guatemala’s criminal laws allows inmates to serve a maximum of only 50 years, these sentences play a symbolic role.

Former President Rios Montt appeared for the first time in a Guatemalan court in January 2012, where he will be prosecuted for counts of genocide and crimes against humanity. He is accused of ordering killings of at least 1,700 innocent Maya indigenous people during a government crackdown on leftist insurgents. General Efrain Rios Montt, who ruled the country for 17 months during the height of the violence in 1982/1983, has since been placed under house arrest and the judge announced that there was sufficient evidence for him to stand trial in Guatemala.

This marked the first time that a Latin American court has charged a former president with genocide. The fact that he was placed under house arrest and that he might be tried has been widely viewed as a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

Guatemalans protesting the disappearance of relatives during the Civil War.

The challenges ahead

Despite these significant developments, the situation in Guatemala remains shaky. The problem of organized crime is jeopardizing security, forcing the (re)militarization of the country. The ratification of the Rome Statute will hopefully instigate an open debate about the proper domestic incorporation of international crimes, as well as the adoption of a National Human Rights Plan. Considering the security problems that Guatemala is facing, due to drug trafficking and organized crime, these legal and institutional reforms should be of the highest priority.

Check out this great new video from Urgence Darfour’s “Stop Bechir” campaign. Watch the video and then sign the petition here.

The Board of Directors is accepting applications for the position of Editor-in-Chief of Eyes on the ICC, CASIN’s flagship academic journal on the International Criminal Court. Junior faculty, postdoctoral fellows, PhD candidates, law school graduates, and advanced graduate students are especially encouraged to apply. The deadline for applications is April 20, 2012.

Eyes on the ICC is the only peer-reviewed, scholarly journal devoted to the study of the International Criminal Court. It has been published since 2004 by the Council for American Students in International Negotiations, a non-profit, non-partisan organization composed of a network of students and young professionals from around the world.

Eyes on the ICC is an interdisciplinary journal that invites submissions from any field that addresses the International Criminal Court or international criminal law more generally. Past editors have come from the fields of international law, international relations, and sociology. To view current and previous volumes, please visit the journal’s website: http://www.americanstudents.us/journals/eyesontheicc/.

JOB DESCRIPTION:

The Editor-in-Chief (EIC), with the assistance of the Managing Editor (ME) and 5-7 Assistant Editors (AEs), will be responsible for producing one volume per publication year, comprised of at least five articles, with a camera-ready manuscript due on December 1. Submissions are accessed via Expresso as well as through direct e-mail contact between authors and the EIC or the ME. The EIC reports to the Publications Committee of CASIN’s Board of Directors.

Additional obligations will include:

- Assisting in managing submissions received via Expresso as well as through direct e-mail contact with ME or EIC;

- Managing the peer review process;

- Making article selection decisions based on reviews of Editorial Staff;

- Assisting with final editing of all accepted articles and assisting with intermittent contact with authors throughout selection process as necessary;

- Supervising the ME;

- Maintaining regular contact with ME (who manages most of administrative editorial process);

- Maintaining regular contact with Publications Committee of the Board, Peer Reviewers, and Editorial Advisory Board;

Please note that this is a virtual position. Work is coordinated predominantly through e-mail and other forms of electronic communication. Please also note that this position is offered without compensation.

REQUIRED QUALIFICATIONS:

- Demonstrated knowledge of the International Criminal Court and international criminal law;

- Editorial/publication experience in an academic setting;

- Experience supervising and managing others.

- Strong writing, research, and interpersonal skills;

- Comfort working closely with virtual staff and board;

- Strong communications skills and availability to respond promptly to e-mail communications;

- Strong commitment to international human rights, criminal law, and/or social justice;

- Reliable, organized, team-oriented, and able to meet deadlines.

- Master’s degree or equivalent in a related field;

PREFERRED QUALIFICATIONS:

- Experience working directly with international criminal courts and/our tribunals;

- Contacts with academics and practitioners within the international criminal law field;

- Experience with the Chicago Manual of Style and The Bluebook system of citation;

Address all questions to (JavaScript must be enabled to view this email address). Only qualified applicants will be contacted by early May 2012.

The International Peace Institute (IPI) held a panel discussion on International Justice in Times of Transition, focusing on the relationship between peace and justice in the context of recent developments and transitions throughout the world. Welcome remarks were given by Jozias van Aartsen, mayor of The Hague, and Warren Hoge, IPI senior adviser for external relations, moderated the debate.

Video streaming by Ustream

In March 2012 in cities around the world, people sat anxiously in front of their computers to focus their attention on a 30-minute video. The face of one African man became more famous than ever before as the narrator detailed his use of children under the age of 15 for brutal hostilities in Central Africa. Celebrities watched on in awe, and social media erupted with the reactions of civil society.

I’m actually not talking about the controversial “Kony2012” video by Invisible Children that has taken the word “viral” to new heights.

I refer instead to the International Criminal Court’s March 14 conviction of Thomas Lubanga Dyilo for the war crimes of conscripting, enlisting and using child soldiers in the Democratic Republic of the Congo. While Angelina Jolie looked on from the gallery, distinguished English barrister Judge Sir Adrian Fulford solemnly read out the decision detailing Lubanga’s crimes. Though the unanimous decision from the judges was in large part a stern reprimand towards the recklessness of the Prosecution, it was the defense team who seemed to shrink in their seats with every passing minute.

Despite its many setbacks and valid critiques of the case, the Lubanga decision marked the completion of the first case before the world’s first permanent international criminal tribunal. It may not have reached the 100 million or so viewers that the Kony2012 film boasts, but set against the long arc of history’s battle against impunity crimes, the Lubanga verdict will have resonance for hundreds of years to come.

The ICC is the result of a century of visionary contributors who imagined a different system to punish atrocity crimes. It’s been called the most important legal advancement since the Magna Carta. At the helm of this colossal effort have been diplomats, lawyers and academics, steered true by the compass of civil society. Today, civil society (as members of the international NGO Coalition for the ICC) continue the daily fight for an effective, fair and independent ICC, despite enormous challenges facing the Court and its 120 member states in ensuring the functionality of the Rome Statute system.

One of these challenges, perhaps the greatest, has been the cooperation of these states to assist in the arrest and transfer of ICC indictees to The Hague. Kony is just one of a handful of powerful men still at large, and even the ones who are thought to be hiding, even UCLA can’t help but run into them.

Invisible Children Takes the Stage

Rewind back to 2011. On a cold New York City night in late December, I met the founders of Invisible Children at the Justice Gala, an event where Invisible children received a Justitia award for “Civic Campaign of the Year.” The front tables were packed with the international ICC cadre of politicians and diplomatic heavy weights, who had converged for an annual meeting of the ICC’s governing body at the UN. Among them was ICC Chief Prosecutor Luis Moreno Ocampo, a fervent supporter of Kony2012.

The award was warranted, if only because Invisible Children is so well funded they’re hard to ignore (apparently, international diplomats and high school students alike are attracted to shiny, pretty things). The Kony2012 campaign, as introduced to the gala, was to be game-changer, a “get him once and for all” mission. I’ll admit, it was exciting: Kony was going to The Hague, no matter what. Enforcement crisis solved. And the crowd went wild.

Two months later, the romance with Kony2012 is over. The Kony2012 buzz from media and the blogsphere are nearly as staggering as the video’s hits on YouTube. The responses range from serious critique, to the woefully defensive, and at least one in the form of a drinking game.

So, it’s of no surprise that Ugandans were so outraged over the video that a Kony2012 screening turned violent, and future local screenings have been cancelled to avoid further embarrassment for Invisible Children. Last week at an international student conference about the Lubanga trial in The Hague, development veteran and head of the ICC’s Trust Fund for Victims Kristin Kalla summed it up when she said it was “clearly an American campaign, not a Ugandan one.”

The myriad of problems with Kony2012 I think has been already well articulated by these Ugandans, as well as experienced campaigners who know how to read past the hype. Now that we’ve gone round the block and the global attention span is moving on, it’s time to start asking Invisible Children about their future.

What’s next for Invisible Children?

Part of what Invisible Children has succeeded brilliantly in doing is seizing- and in some cases, sparking- a moment of education in students, an “A Ha!” moment (nowadays, more like an “OMFG” moment) where the rose-colored windows looking out at planet earth are shattered. The flood of member testimony on their website shows the genuine passion of their activists, determined to make a better world.

And really, who are we to say we were never one of them? Most of us working in international affairs or justice can remember such a moment, when the brutal reality of the suffering of others was presented for the first time. It’s only natural to seek the company of others struggling with the same question: “what can I do?” and cling to narrow campaigns with a good guy vs. bad guy narrative.

But as their young members grow up and begin thinking critically about the world beyond one weakening rebel group from Uganda, Invisible Children will have to meet their members’ desires for participating in a true movement for ending impunity for atrocity crimes. This, I believe, will come in the form of supporting new systems of ending impunity: the International Criminal Court, for one.

While the ICC is a part of the Kony2012 formula, Invisible Children didn’t always support the role of the ICC in Uganda. Initially, they took objection to the ICC in Uganda, similar to that of their anti-ICC Save Darfur counterparts, back when the notion of the ICC blocking a potential peace agreement was still quite popular. Today, it’s of no surprise to watch much of the Darfur student movement grow into a broader coalition working against genocide in many different parts of the world, naturally including robust support of a fair and effective ICC.

So, like so many organizations before them, it seems Invisible Children will seek larger impact and more critical thinking about their work.  As it has been ever-so-subtly pointed out here, in real life, “you don’t get to throw the Emperor down a shaft in the Death Star and watch all the bad guys crash and burn.” So while I think it’s safe to assume Invisible Children’s members have more intellectual capacity than Jason Russell’s Star Wars obsessed toddler, we should still press the group to take to heart the lessons from the Kony2012 critiques.

It’s time the organization ask themselves how they can help ensure the United States seeks justice for war criminals beyond the LRA.

Here’s how:

Fully Incorporate the ICC into the work of Invisible Children
Invisible Children should incorporate the ICC into all aspects of their work. Their chapters in the United States can use educational materials on the Court such as the excellent documentary film “The Reckoning” from Skylight Pictures, and collaborate with new campaigns from Amnesty International that seek the arrest of ICC indictees. Their initiatives on the ground in Uganda should seek collaboration with the many projects of the ICC’s Trust Fund for Victims in targeted communities.

Join Existing ICC Networks in the US
An essential part of seeking effective social change is finding your partners. Invisible Children could affirm their commitment to the ICC by joining the American NGO Coalition for the ICC (AMICC), coordinate their lobbying on The Hill with the Washington Working Group for the ICC (WICC), and join in on coordinated statements to lawmakers like the recent letter about the Lubanga verdict. Their student members can collaborate with the expanding ICC Student Network (ICCSN), and follow the work of the global civil society network (CICC) to keep their members informed on the activities of the Court. They can also join hundreds of global NGOs that participate as observers in the annual meetings of the ICC’s Assembly of States Parties meetings.

Engage Washington on the ICC
Though the US is not a member of the ICC, non-states parties can still have a huge impact on how cases progress. Though it is a fully developed institution, the ICC still needs a vital civil society movement to encourage the United States government to stand ready to assist the ICC. The US is now a non-party partner to support the work of the ICC, yet the US has only started to share information and resources with the ICC’s Office of the Prosecutor, a relationship which requires public support and encouragement. Invisible Children can remind President Obama and lawmakers in Washington that the ICC is helping to fight impunity for abuses against children in other conflicts around the globe, and the United States can use its influence to assist justice efforts. For example, Invisible Children can continue to support legislation like the Rewards for Justice Program and other initiatives aimed at apprehending individuals suspected of committing atrocity crimes. 

If Invisible Children reassessed how they approach their “movement” building and chooses to engage with the ICC community, their members can work to protect victims of atrocity crimes wherever they occur. By moving the US towards a future of collaboration and support of the ICC, Invisible Children can secure their place in history’s long evolution towards meaningful systems of accountability.

The recent spotlight on Joseph Kony, the Ugandan leader of the Lord’s Resistance Army charged by the International Criminal Court (ICC), underscores the outstanding ICC arrest warrants for 11 other suspects of war crimes, crimes against humanity, and genocide related to situations in the Democratic Republic of Congo (DRC), Uganda, the Sudan, and Libya.

Click HERE to take action!

Joseph Kony, Bosco Ntaganda, President Omar al-Bashir and other fugitives are often shielded by powerful supporters and states. The ongoing lack of justice means that most of these fugitives are free to commit more crimes, placing civilians in affected areas at great risk.

The 11 with outstanding International Criminal Court arrest warrants are:

•  Democratic Republic of Congo: Bosco Ntaganda whom the ICC has charged with enlisting and conscripting children under 15. The Congolese government is shielding him following his integration into the national army.

•  Uganda: Accused Lord’s Resistance Army (LRA) leader Joseph Kony and LRA commanders Vincent Otti (presumed dead), Okot Odhiambo, and Dominic Ongwen continue to evade trial after being charged with crimes against humanity and war crimes. They and the fighters they lead continue to move between the Central African Republic, north-eastern DRC and South Sudan and commit crimes.

•  Sudan: President Omar al-Bashir has been charged with genocide, crimes against humanity and war crimes in the Darfur region. He has yet to be arrested despite regularly conducting state visits abroad. Sudanese officials Ahmad Harun and Abdel Raheem Muhammad Hussein and accused “Janjaweed” leader Ali Kushayb are also at large.

•  Libya: Saif al Islam Gaddafi and Abdullah al-Senussi are charged with crimes against humanity committed during the crackdown on protesters in Libya. Saif al-Islam was captured on 19 November 2011 but has not yet been surrendered to the ICC.

The UN has a critical role to play by providing political, diplomatic, and logistical support for efforts to arrest individuals named in ICC arrest warrants and to protect civilians in countries where the ICC is investigating crimes.

However, if the UN is to play a constructive role in protecting civilians and supporting the arrest of ICC fugitives, while respecting human rights, it must provide adequate resources particularly to the UN’s peacekeeping missions in the DRC, South Sudan, and for its office in the CAR.

Write to UN Secretary-General Ban Ki-Moon telling him that you support Amnesty International’s call for the UN to provide all necessary resources to its peacekeeping missions and other offices in the region to protect civilians and support the arrest and surrender of individuals named in ICC arrest warrants.

*Please note that your first name and country will be shared with the UN Secretary General but not your surname and email address. Please consider this information before taking action.

Reposted from the New York Times Op-Ed pages

Legislators play a dangerous game using the word “genocide.” In trying to appease millions of victims, they needlessly pit nations against one another. They should leave it to others to sift through the evidence and determine what killings occurred when and which ones amount to what crimes. Political judgments distort the search for truth and for justice.

Millions of people live with the memories that their ancestors were slaughtered out of prejudice. They demand that the story of their people’s past be confirmed for posterity and that the perpetrators be condemned. But judging such facts, especially many years, perhaps even centuries, after they occurred, requires the discipline of historians and, if surviving suspects can be prosecuted, of jurists.

Some nations have outlawed Holocaust denial to avoid stoking the violence bred by anti-Semitism. Such intentions may be sound, but too often the results are problematic. Legislators and governments have variously decreed or denied that given mass atrocities were genocides in order to satisfy certain interest groups or national agendas.

France and Turkey are now at loggerheads, for example, over how to characterize the deaths of some 1.5 million Ottoman Armenians nearly a century ago and whether to criminalize any refusal to call those atrocities a genocide. The French Parliament says “genocide” and wants to criminalize its denial; Turkey rejects the term and prosecutes those who use it. The Turkish prime minister has threatened sanctions against France and countered that France committed a genocide of its own in Algeria between 1830 and 1962.

Mass atrocities were indeed committed against the Armenians, but deciding to call them a “genocide” — or refusing to — is a dangerously divisive political game. It heightens tensions between countries and sows confusion about what really happened.

Politicians should use the term “genocide” only when historians and jurists have determined, based on evidence and analysis, that a genocide — a specific crime defined according to narrow factual and legal criteria — has indeed occurred. It is the responsibility of historians to establish the facts of distant events and of jurists to determine whether these were a genocide, crimes against humanity, war crimes, human rights abuses, political repression or other crimes against civil or political rights.

Using the word “genocide” loosely can be tragically ineffective or self-defeating. It can intimidate powerful nations from reacting quickly enough to prevent further atrocities.

The United Nations and key Western governments failed to act in Rwanda and the Balkans in the early 1990s partly because their policy makers were searching for terminological certainty about the nature of the killings. The false notion arose that invoking “genocide” would require immediate military intervention. (The 1948 Genocide Convention does not demand this; the requirement that parties to the treaty “prevent” genocide can take military, political, diplomatic or economic forms.) And while the politicians pondered, thousands of civilians continued to die.

When in 2004 Secretary of State Colin Powell declared the killings in Darfur a genocide, he wasn’t committing to United States to send the 82nd Airborne into western Sudan. He was simply trying to prod the U.S. government to take some action, ideally with others, to stop the atrocities. But others in Washington and several Western capitals froze at the use of the g-word.

Politicians would be better off using the phrase “atrocity crimes” — a term with no pre-existing connotations or legal criteria — to describe any combination of genocide, crimes against humanity or war crimes, leaving it to historians and jurists to determine, free of political influence, which atrocity crimes belong to which category. In the face of ongoing mass killings, this would allow policy makers to concentrate on what needs to be done to end a slaughter rather than debate how to define it. The Obama administration is rightly creating the Atrocities Prevention Board to free up decision-making from any confining lexicon.

France, as well as the United States and Israel — both of which are considering similar genocide legislation — could call what occurred to the Armenian people a century ago atrocity crimes. (Turkey might even tolerate that.) And Turkey could condemn what the Algerians suffered at the hands of the French as atrocity crimes.

If the United States, the European Union and the Arab League declared that the Syrian government was currently committing atrocity crimes against its own people, they would have an easier time getting the U.N. Security Council to refer Syria’s leaders to the International Criminal Court for investigation, leaving it to the prosecutor to determine what crimes to list in an indictment. Rather than veto such a move, Russia and China might abstain from voting on it and give justice a chance.

By forgoing “genocide,” politicians would no doubt disappoint interest groups determined to use the label to describe the suffering inflicted on their ancestors. The Armenians, in particular, would find this compromise hard to accept. But their strongest case rests with the historians and the jurists now — not with the politicians whose loose indictments trigger the very tensions that can ignite prejudice among peoples and nations. Shifting to “atrocity crimes” in government speech, meanwhile, would focus the efforts of officials on getting more unified international responses to ongoing massacres.

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David Scheffer, the U.S. ambassador at large for war crimes issues from 1997 to 2001, is a law professor at Northwestern University. His new book is “All the Missing Souls: A Personal History of the War Crimes Tribunals.”

This article was originally posted on Jurist.org

On January 26, 2012, Navi Pillay, the UN High Commissioner for Human Rights, made a statement before the UN Security Council on the current human rights situation in Libya. In her statement, she highlighted key issues related to the promotion, protection and enforcement of human rights. Pillay noted that the National Transitional Council (NTC) of Libya has taken some positive measures since coming into power in October 2011. However, she also highlighted that there had been reports of human rights abuses and that over 8,000 supporters loyal to the late leader of Libya, Colonel Muammar Gaddafi, were arbitrarily detained and are being held in appalling conditions.

Pillay’s statement to the Security Council came just weeks before human rights advocacy organization Amnesty International (AI) released a report accusing the NTC of allowing the abuse and torture of supporters of former leader Gaddafi by unofficial militia. The AI report of February 16, 2012 underscores Pillay’s concerns. The report itself is a product of an AI fact-finding mission to Libya in January and February 2012. The mission visited 11 facilities in Tripoli, al-Zawiya, Gharyan, Misrata and Sirte. The facilities are all currently used as detention facilities for suspected Gaddafi loyalists.

AI’s report details systematic human rights abuses by militia of people in custody. People interviewed provided details of different forms of torture and resultant grievous bodily harm. According to the report, the alleged forms of torture used by the militia include, but are not limited to, beatings using various instruments such as sticks, whips and rifle butts. Several of the people interviewed by the AI mission said they suffered other forms of torture, including electric shocks, burns and threats of rape or death. In addition to those allegedly tortured, the mission also found that 12 detainees had died in custody.

Aid agency Medecins San Frontieres (MSF) has supported the findings of this report and Pillay’s statement to the Security Council. According to the MSF, forensic examinations of some of those who died in detention provide evidence that such methods are still being used. Furthermore, MSF reports that some of their staff were asked by the militia in detention in Misrata to patch up prisoners midway through torture sessions so they could be taken back for more abuse. MSF in January said that its doctors had treated 115 people since August 2011 who had torture-related wounds and of those two people had died.

If the reported human rights violations are true and the militia is responsible for them, then the militia has violated the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, two international agreements to which Libya is a party. The ICCPR provides that everyone has the right to life and further that “No one shall be subjected to arbitrary arrest or detention.” In addition, both the ICCPR and the Torture Convention expressly provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Bearing this in mind, it is clear that the alleged perpetrators should be brought to book for the acts of torture and the reported deaths. The AI report recommends that the NTC abruptly put an end to the unlawful detentions and ensure that any arrests are carried out by lawful police forces, ensure humane treatment of detainees and investigate the reported deaths of prisoners. However, as noted by Pillay, the reason that these crimes have gone largely unpunished is because the NTC seems to lack the requisite systems to oversee activities across the country. Consequently, some regions are not governed by the NTC, but instead by the militia.

In 2011, the NTC vowed to investigate allegations of human rights abuses after AI released their September 2011 report, which alleged that both sides to the Libyan conflict were responsible for human rights violations. The NTC also currently has in detention International Criminal Court (ICC) accused Saif al-Islam and Abdullah al-Senussi, who they intend to prosecute domestically despite criticisms from the ICC and the international community. Indeed, to date, no efforts have been made to freely and fairly prosecute both sides to the conflict. Unfortunately, this state of affairs closely mirrors the lack of commitment to criminal justice on the part of the Gaddafi government throughout his 42-year rule. If the NTC is to establish itself as a legitimate government, it will need to address this fundamental issue as well as ensure that it has authority over areas currently controlled by different militia groups.

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Ottilia Maunganidze is a Researcher for the International Crime in Africa Programme at the Institute for Security Studies. Her main focus is on criminal justice mechanisms to deal with international crimes and the promotion and protection of human rights. Previously, she worked as a research intern for the African Security Analysis Programme, as a junior legal advisor at the Rhodes University Legal Aid Clinic, and as a student human rights education coordinator for the Rhodes University chapter of Amnesty International.

Hariri’s Assassination and the Ayyash et al. case

Last week marked the seven-year anniversary of the assassination of Lebanon’s former Prime Minister, Rafik al Hariri, whose alleged killers will be tried in absentia at the Special Tribunal for Lebanon. On February 14, 2005, Hariri was killed along with 22 others by a bomb blast in the center of Beirut. Because the Lebanese government was unable to reach a national consensus on how to hold the perpetrators accountable, an external rather than domestic tribunal was deemed the best means to ensure a fair trial. The Special Tribunal for Lebanon (STL) was established following a request by the Lebanese government to the U.N. on December 13, 2005.

Albeit a transitional institution established through international procedures such as U.N. Resolution 1757, the tribunal is a hybrid court in that it applies national law and provisions of the Lebanese Criminal Code. This is significant in that it allows for in absentia trials for the four accused members of Hezbollah: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra, for whom a defense council of eight lawyers was assigned. By fulfilling its primary mandate of holding trials for the accused, the STL, with the cooperation of the Lebanese government, is meant to promote accountability and take steps toward building a peaceful society based on the rule of law. The STL has been entrusted with fair trial, but what are the prospects for fairness in this seemingly unusual case reliant on the cooperation of a politically divided Lebanon?

Trials in absentia

In absentia trials occur without the accused being physically present and are deemed fair according to Lebanese law. This procedure, seeming at first unfair for the defense, is argued to also put the prosecution at a disadvantage as his case often relies on testimony by the defendant himself. In absentia hearings are allowed by the STL’s statute if the accused has waived his right to be present, has not been handed over by the state, has absconded, or cannot be found. On February 1st, the STL Trial Chamber had reached a conclusion that “each of the four accused has absconded”. Before reaching this decision, the STL Trial Chamber affirms that it had consistently requested assistance from the Lebanese authorities to do more to locate and arrest the accused.

The precedent of in absentia trials dates back to Nuremberg, when Hitler’s secretary, Martin Bormann, was tried, convicted, and sentenced to death in his absence. Trials in absentia are also allowed by the European Court of Human Rights, and well established in the former Yugoslavia. Seen as an alternative to the prolonged and sometimes endless pursuit of war criminals which often does not bring victims due justice, in absentia trials might be an efficient and effective means of enforcing human rights.

Possible Outcomes of the in absentia Trials

Thus far, there is no telling how the STL trials will proceed past this decision. Whether or not the tribunal has come short of its purpose can probably be determined based on the possibilities of seeking punitive measures for the indictees if found guilty. Lebanon has an ongoing obligation to search for, detain and transfer the accused. If the accused are found in the course of the proceedings in absentia or if they choose to participate in the process, they may be retried in their presence. After the Trial Chamber delivers its sentence, generally speaking, the accused can accept the conviction, seek a re-trial, or appeal the conviction.

As the in absentia trials now stand, labeling the perpetrators as criminals would present a symbolic victory for the victims, as well as a measure of fighting impunity. But it is surely not a way of fully realizing the potential of the STL or allowing the victims to see justice play out in front of their eyes. At the same time, however, the STL lacks a police force as do all other international tribunals, and so a failure to arrest the accused would not attest to its own shortcomings, but to that of the state holding the accused. Can the STL effectively punish the perpetrators in the midst of Lebanon’s divided politics?

International Power Struggle, Hybrid Court and Internal Division

The STL is a court of international character that reflects international power struggles as well. The U.S.’s founding support for the tribunal at the U.N. Security Council has been seen as a political motivation to undermine Hezbollah’s upper hand in Lebanon following Israel’s 2006 war in Lebanon. Although the tribunal was founded on an agreement between the Lebanese Republic and the U.N., this agreement was not ratified by the Lebanese Parliament, as members of the Council of Ministers withdrew and formed an opposition. 

Nonetheless, the viability of this hybrid court has been sustained by Lebanon’s contributions to the STL budget, which it shares with U.N. volunteer states. Spilling in an annual payment of about $30 million, the Lebanese government has shown its commitment for justice and the rule of law. But the in absentia proceedings may be falling short of realizing the STL’s full potential and of strengthening the rule of law in Lebanon. The court, while not a direct political tool, was seen as having the potential for shifting domestic Lebanese politics away from Hezbollah’s influence.

The positive effects that the court might bring to calming civil and political tensions in Lebanon are difficult to determine, involving issues well beyond seeking a fair trial for the victims of the 2005 attack. The court’s decision to try the indictees in absentia comes amidst a regional political struggle of international significance. Should the court hold the four indicted members of Hezbollah accountable, this step toward enforcing the rule of law in Lebanon might be undermined by the ongoing power struggle posed by international players in the region, namely, the U.S. and its allies, and the Syrian and Iranian-backed Hezbollah. The failure of the Lebanese government to bring the accused to trial shows the internal political tensions between pro-Western and Hezbollah-led groups that may just be beyond Lebanon’s grasp. How this international struggle will be played out in Lebanese domestic politics is unpredictable, as the failed Western efforts to weaken the Syrian regime’s steadfast authoritarian grip have shown.

The STL was externally established in the Hague due to the factious nature of Lebanon, but it is important to note that past the in absentia trials, the perpetrators can only be fully brought to justice with the cooperation of the Lebanese government, even though the court bypassed Lebanon’s constitutional procedure. When he was alive, Prime Minister Rafik al Hariri’s domestic policy indicated his initiative toward overcoming years of Lebanese civil war through a reconstruction process. It would be truly self-defeating, therefore, to see the STL, which was conceived as a way of seeking retribution for his assassination, plunge the country into a deeper cycle of civil strife. Thus, one can only hope that whatever follows from the in absentia trials, it will not further divide Lebanon.

For more on the STL, please visit:
http://www.un.org/apps/news/infocus/lebanon/tribunal/timeline.shtml
http://www.stl-tsl.org/en/about-the-stl/timeline-of-events
http://www.stl-tsl.org/en/ask-the-tribunal

It’s time, once again, for a mind bending IJCentral quiz!

By Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco*

There are currently 120 States Parties to the Rome Statute of the ICC but this number will increase to 121 in a few months. This Thursday, January 26, Guatemalan Parliament approved the ratification of the treaty. With this decision, Guatemala will join 15 other Latin American countries to be part of the ICC, pending similar efforts by Cuba, El Salvador and Nicaragua.

This vote was welcomed by the civil society, which has been working towards the signature and ratification of the Rome Statute for more than 10 years.

Ratification is a welcoming effort towards the future

As written before for IJCentral, Guatemala is a Latin American country shattered by violence and genocide resulting in the death of 200,000 people and victimizing an entire nation between 1960 and 1996. The report of the Guatemalan Truth Commission (Comisión para el Esclarecimiento Histórico), concluded that government forces under the de facto presidency of General Efrain Rios Montt perpetrated more than 600 massacres, homicides, forced disappearances, and other heinous crimes, particularly against rural and indigenous communities. A quarter of a century later, the country still carries the scars of a violent past with little accountability for those responsible for systematic human right violations.

But things are changing. In an effort towards justice, in August 2011, a local tribunal in Guatemala City convicted four former soldiers from an elite unit of the Armed Forces to 6,060 years each for the massacre of Las Dos Erres, where government forces assassinated 200 people, including women and children. This has been seen as an important advance in the process of the country’s recovery and set an important precedent for justice in Guatemala.

It should be noted that despite the lack of comprehensive legislation on international criminal law and human rights in the country, many of its core principles have been already binding on the state through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. The Rome Statute and several rulings by Ad-hoc tribunals (e.g. the International Criminal Tribunals for the Former Yugoslavia and Rwanda) have been used as interpretative tools for human rights organizations to claim justice before national and foreign tribunals. The most notorious case is the Spanish Audiencia Nacional, which has been trying cases on Guatemala regarding genocide, under universal jurisdiction.

What delayed the accesssion?

In a similar way to the cases of El Salvador and Nicaragua, the delay in the ratification of the Rome Statute had political, rather than legal reasons. In these cases, the argument was the fear that the ICC could investigate crimes against humanity perpetrated during the internal armed conflicts, namely enforced disappearances and torture.

In the case of Guatemala, the Constitutional Court rendered a favorable opinion in 2002 whereby no constitutional amendment is needed in order to ratify the ICC.  Nonetheless, Congress was historically opposed to ratification. Last week, upon entering into office and in his inaugural speech, President Pérez Molina, a former military General, referred to the International Criminal Court and said his administration “was willing”to become party to the Rome Statute.

In this context Congress swiftly included this issue in the agenda, adopting by 129 favorable votes, this Thursday, Decree No. 3-2012, approving the ratification of the Rome Statute. Now, the President must sign and publish the Decree for its final enactment. This is a simple procedural rule that should take place in the following days, considering that the decision to ratify the treaty came directly from the Executive Branch.

At the same time, human rights activists celebrated the fact that former President Rios Montt appeared for the first time in a Guatemalan court, where he will be prosecuted for counts of genocide and crimes against humanity. General Efrain Rios Montt has since been placed under house arrest and the judge announced that there is sufficient evidence for him to stand trial in Guatemala. This is a mighty step towards justice, and a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

ICC for the Future

When a country joins the ICC it does not exclude any other means of justice. Guatemalan and other international organizations should continue to advocate for justice for victims of atrocity crimes and genocide committed in Guatemala.

The ICC is a Court of last resort and states that become parties to the Rome Statute accept that if they are unable or unwilling to prosecute the grave crimes contained in the Statute the ICC shall apply its jurisdiction to bring those criminals to justice.

The human rights violations perpetrated for 36 years must be addressed by the Guatemalan state or by tribunals that have jurisdiction.

Guatemala’s ratification of the treaty will contribute to strengthening its judicial system and rule of law throughout the country.

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* Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

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

10 years on and the ICC is yet to find its place in the world

By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco

2012 marks the tenth anniversary of the entry into force of the Rome Statute; it is an appropriate time to make a critical, yet constructive, balance of the most important international organization created since the United Nations. Needless to say, when the Rome Statute was adopted on July 17, 1998 followed by its swift entry into force on July 1, 2002, expectations were high. But it would prove impossible for a nascent and exceptional International Criminal Court (ICC) to meet the demands of human rights violations around the globe.

A decade in a nutshell

Almost 10 years after its entry into force, muchof that enthusiasm has been lost, replaced with demands for the ICC to begin to fulfill its duty. But it is not easy to create an institution from scratch, especially when the Court’s mandate is the “power to exercise its jurisdiction over persons for the most serious crimes of international concern”.

As of today, 120 countries have ratified the treaty and the voices criticizing the existence of the Rome Statute have substantially diminished. The ICC is currently investigating 14 cases in 7 different situation countries, and during the 2010 Review Conference the Crime of Aggression was adopted. The United Nations Security Council has referred the situations of Darfur and Libya, granting the ICC jurisdiction over two of the most desperate humanitarian and political crises in the 21st century. In addition, the ICC has triggered the so-called “peace vs. justice debate”, concluding that justice and peace are not in existential opposition.

Despite these significant achievements, the ICC is yet to conclude a single judgment (the ruling on the Lubanga case is expected in the coming weeks), the Office of the Prosecutor (OTP) has failed to open an official investigation in any country outside Africa, despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America. Furthermore, the final drafting of the Crime of Aggression could suggest that it will take a long, long time for this crime to come into force.

In this context, 2012 could not be any less welcoming

The global economic crisis hampered the increase of its annual budget needed to conduct more investigations in the field; the last election of six ICC judges at the Assembly of State Parties showed old and bad habits by States struggling to elect their own officials and the recent release of Callixte Mbarushimana because of deficiencies in the way the OTP handled the case. These have triggered a number of criticisms towards the ICC.

Implementation and Complementarity: Who helps whom? 

One of the most important aspects in the adoption of the Rome Statute is the principle of complementarity and the need for States to adopt implementing legislation regarding international crimes and judicial cooperation with the ICC. This has prompted countries around the world, including those under preliminary examination and situation countries, to discuss and/or enact laws regarding the application of International Criminal Law, as well as the triggering of national prosecutions.

Perhaps it is Latin America where the most significant progress has been made in this field, both at the national level as well as within the framework of the Inter-American Court of Human Rights. Despite the fact that most cases in this region concern international crimes perpetrated outside the temporal jurisdiction of the ICC, the significance of the Rome Statute has prompted this significant judicial and legal accomplishment.

However, this cannot be considered to be enough. As a court of last resort, prosecuting only those alleged to be most responsible for committing the most heinous crimes, the ICC should also work to strengthen its role in capacity building within national judiciaries. If the Court aims to comprehensively strengthen the current international justice system and the rule of law, it must work (without compromising its independence) to ensure that State Parties are capable of investigating and prosecuting international crimes.

From Preliminary Examination to Official Investigation: No clear standard, no clues, lost efforts…

One of the major criticisms that academics and NGOs have made of the ICC and the OTP is the lack of a clear policy regarding the identification of situations that may lead to an official investigation by the Court. Although it would be impossible to harmonize standards for places as different as Afghanistan and Colombia or Palestine and Nigeria, as of now the decision to open an investigation seems to reside on elements outside the sole legal framework of the Rome Statute.

Colombia, continued Unresolved Business

Colombia has been under the ICC radar for 6 years now. Its domestic Criminal Code has a substantial regulation regarding international crimes. But, the country 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.

In 2006, the OTP declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against […] paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added that it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. But the Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.

After back and forth, meetings and exchange of information, the ICC concluded the Colombian judiciary was both willing and able to carry out its own investigation of the crimes. Therefore, the situation in the country is classified as a “situation under analysis.” In its December report on Preliminary Examinations, the OTP states that “There is no basis at this stage to conclude that the existing proceedings are not genuine”.

However, civil society organizations 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, local NGOs continue to call for ICC action in Colombia, with as yet no official response from the Court.

Honduras, the Forgotten Coup

Honduras is party to the ICC and seven years after ratifying the Statute, President Zelaya was forcibly removed from his office by the military in 2009. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras later that year.

NGOs sent communications to the ICC on crimes against humanity being committed since September 2009. But in November 2010, the Argentine ICC Prosecutor Luis Moreno-Ocampo announced publicly his decision to conduct a preliminary analysis of the situation. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

NGOs continued to call 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.

Before turning 10…

In spite of the above, we must not forget that the Rome Statute is the most important instrument presently available in the international criminal justice system to prevent mass atrocities and to bring justice to victims of heinous crimes. It is also the first institution to put forward high standards in terms of monitoring gender crimes, fairness of proceedings and victims’ rights.

The challenges of the ICC include the efforts to continue the ratification process of the Rome Statute in the Middle East and the Asia-Pacific, to work in the strengthening of national judiciary and to deliver rulings that will become a benchmark to judges worldwide. In this scenario, a more transparent policy regarding preliminary examination and criteria for the selection of cases would also be welcomed.

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Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe
Salvador Herencia Carrasco is the Legal Adviser to the Andean Commission of Jurists. E-mail: salvadorherencia@yahoo.com

El Salvador joins Guatemala and Nicaragua as the only Central American countries that are yet not States Parties to the International Criminal Court (ICC).  These three countries not only share their refusal to become party to the Rome Statute, but also share a common history: all three experienced non-international conflicts during the 70s, 80s and 90s, where several human rights and humanitarian law violations took place.  In each country there are currently different processes of redress underway for the atrocities committed during those conflicts.

In the following article I will only refer to the Salvadorian situation. In that sense, it is important to take into consideration the historical background of this country.  El Salvador suffered one of the most violent non-international conflicts in Latin America that left 75 thousand dead, and included enforced disappearances, extrajudicial executions, and outright massacres.Having those facts as background, one can see that the ICC has a special importance in a country like El Salvador.  In that sense, the preventive and dissuasive elements of the ICC would have a strong significance for El Salvador; not only because these elements will prevent such terrible crimes taking place again in El Salvador. But also in the case of more crimes occurring, and when the state is incapable or unwilling to prosecute the authors, there will be a fair and impartial tribunal that can judge the crimes.

Since the international adoption of the Rome Statute, El Salvador has rejected the Court’s principle of international jurisdiction.  An example of this is that El Salvador was one of the Latin American countries to sign a bilateral immunity agreement with the USA in order to prevent US nationals from being sent to the ICC, even when they have committed crimes within the ICC’s jurisdiction.
In addition, during the ARENA (Alianza Republicana Nacionalista) Government (1989-2009) there was a clear opposition to the Rome Statute; ARENA claimed constitutional obstacles prevented it from ratifying.  However, the real concern of the right wing parties in El Salvador (ARENA and PCN, Partido de Conciliacion Nacional) was that the crimes committed during the Salvadorian internal armed conflict could be judged by the ICC.  Apparently these political institutions did not understand the principle of non-retroactive law (freedom from Ex Post Facto Laws) established in Article 11 of the Rome Statute.

In 2009, the Presidential Elections were won by the main left wing party (FMLN - Frente Farabundo Marti para la Liberacion Nacional).  To many sectors of Salvadorian society, particularly the human rights movement, the new political scenario is seen as conducive to the ratification process.  Thus, the Ministry of International Affairs launched a public survey regarding the pros and cons of ratification.  However, results of this survey are still pending. On the other hand, in September 2011, the President of the National Congress, and member of the FMLN, urged the President of the Republic, Mauricio Funes, to send the Statute to the National Congress for ratification.  As yet, there has been no response from the President. It remains to be seen if and when El Salvador will ratify the treaty.

Original in Spanish at Asuntos del Sur: http://www.asuntosdelsur.org/opiniones/opinion/172