Everything You Ever Wanted to Know About the International Criminal Court, But Were Too Afraid to Ask

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Perhaps you’re a journalist with an unfortunate penchant for referring to the ICC as “the World Court” (sorry, that’s the ICJ) or suggesting that it will hear cases related to decades-ago atrocities (nope, temporal jurisdiction is a thing). Or maybe you’re a student with a term paper to write on how international institutions affect conflict dynamics (nobody knows). Possibly you just wish you could impress your friends with snarky complementarity-themed jokes (which everyone definitely, definitely loves).

If any of these sound like you, the International Center for Transitional Justice has your back. Their new “Handbook on Complementarity” provides, as advertised, a comprehensive (>100 pages!) overview of the role of the ICC and domestic courts in prosecuting atrocity crimes. It’s also a surprisingly good read.

Written by Paul Seils, the Handbook goes ALL IN on the nitty gritty of how complementarity is designed to operate and how the ICC has implemented it so far. Even for relatively well-informed court-watchers, there’s new information. I learned, for instance, that although the prosecutor ordinarily has to wait until the investigation phase to take testimony, in “exceptional cases” where future access to a witness is threatened, she can request authorization from the Pre-Trial Chamber to take testimony during the preliminary examination. Neat! (That’s Rule 47 of the Rules of Procedure and Evidence for those of you following along at home.)

I also discovered that I have been promulgating an inadequate definition of complementarity. (Sorry everyone!) Check it:

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In fact, per the Trial Chamber in the Katanga case, the question of whether a case is admissible before the ICC requires a two-stage inquiry: The initial question is whether a national jurisdiction is pursuing the same case as the ICC. It’s only if the answer is yes that the issue of “willing and able” comes up. So I guess we’re all going to have to rewrite our lectures.

A couple of broader themes worth highlighting emerge from this bonanza of information:

  1. If you think “is a national jurisdiction pursuing the same case as the ICC” sounds like a simple question, you’re very, very wrong. The meaning of “case” in this context turns out to be a bit of a fraught question, and to have kind of a weird, Heisenberg Uncertainty Principle flavor to it. As a definitional matter, for something to be the same case, it must cover the same suspects, incidents, and conduct. But those elements can remain in flux through several rounds of ICC proceedings. Consequently, a state may be disadvantaged by challenging admissibility before charges are confirmed.
  2. One of the effects of the court’s relative youth, along with its resource and jurisdictional constraints, is that anomalous cases can have outsize precedential effect. (And frankly, they’re all pretty anomalous at this point.) With such a limited docket, every ruling provides an important signal about what the court might do in the future. So, for example: “Many people might feel that if the Colombian peace process successfully establishes a justice program with very light sentences that other countries will be able to cite it as a precedent in the future, thus undermining the aims of the ICC.” I am one of these people, and I suspect this is exactly what would happen.

Finally, not that any of us have forgotten, but the Handbook also serves as a useful reminder that prosecuting mass atrocities is HARD. These crimes “often happen on a very large scale and are committed by many different people, in many different places, with many different victims”. Add to that the fact that the passage of time “has a tendency to make legal matters more complicated rather than simpler”, and you have a very complex proceeding on your hands.

And that’s before you bring politics into the mix. For national jurisdictions emerging from conflict or authoritarianism, the legal challenges sit alongside profound political constraints. Prosecuting senior officials or other powerful figures can risk instability or worse. It’s no wonder Seils saw fit to include a 12-step program for national prosecutors investigating serious international crimes. (It’s actually really useful.)

So, in conclusion, thumbs up on the Handbook on Complementarity. Come for the detailed explanation of Article 17, stay for the insightful observations on the necessity of civil society engagement in domestic justice processes and the potentially harmful effects of an uncoordinated influx of donor assistance.

And when you’re done, head on over to the ICTJ’s website and take the Complementarity Quiz. Fun for the whole family!

 

#NotThatBadInEritrea?

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The New York Times ran a curious op-ed on the subject of Eritrea last week.

Titled “It’s Bad in Eritrea, but Not That Bad“, it suggests that the recent report of the UN Commission of Inquiry (COI), finding evidence of crimes against humanity in Eritrea, is biased and inaccurate. The author, Bronwyn Bruton of the Atlantic Council, agrees that the situation is “frightful”, but calls the report “shoddy” and claims it “entrenches the skewed perspective long dominant in policy circles and the media in the West”.

Bruton has two main problems with the COI: First, that on the basis of incomplete information it over-interprets all human rights violations as evidence of systematic and top-down policy. And second, that its call to refer the alleged crimes to the International Criminal Court risks further isolating Eritrea and undermining prospects for reform.

While the latter point is laughably non-specific to the case of Eritrea (welcome to the peace vs. justice debate, round 73!), the former sounds like a reasonable concern. Indeed, distinguishing human rights abuses that are directed vs. tolerated can be challenging. And like many commissions investigating uncooperative regimes, this one made its findings on the basis of diaspora testimony, without doing any on the ground research.

But the role of a COI is not to make a legal determination of guilt. It’s simply to establish whether there are “reasonable grounds to believe” that serious violations of human rights have occurred. And the standard for crimes against humanity is whether the abuses are widespread OR systematic. The fact that the COI found evidence of widespread, serious human rights violations is, on its own, enough to justify its conclusion that there are reasonable grounds to believe crimes against humanity have been committed, and should be investigated.

Bruton makes another point in criticism of the COI, though, which gets to the heart of why the report is so controversial. Namely, that while Eritrea faces censure from the international community, neighboring Ethiopia escapes criticism for similar behavior. It’s clear from the online response to the report that pro-regime Eritreans feel this disparity keenly.

Human rights abuses in Ethiopia should undoubtedly receive more attention, but this is hardly an argument for giving Eritrea a pass. According to one estimate, between 2012 and 2015, 1 in 50 Eritreans fled their homeland for asylum in Europe. That’s a remarkably high proportion, indicating that perhaps things ARE #ThatBadInEritrea.

WTF Friday, 6/24/2016

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Welp, here it is Friday again, and this week’s round-up is… bleak.

The great hope of Burmese democracy, Aung San Suu Kyi, has banned use of the term “Rohingya”, in favor of the oh-so-much-simpler “people who believe in Islam in Rakhine state“.

Eight high school students in Burundi have been arrested for seditious scribbling on a photo of President Pierre Nkrunziza. Because nothing says “we’re totally a democracy” like detaining children for what barely count as political views.

In yet another great sign about how the Rio Olympics are going to go, a jaguar participating (for some reason) in a torch relay was shot and killed when it escaped from its handler.

Oh, and remember the United Kingdom? That’s pretty much over.

In Which I Read a NYT Article About Luis Moreno-Ocampo

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The New York Times has a long (and excellent) article up today detailing the International Criminal Court’s failed effort to prosecute Kenya’s leaders for the 2007-2008 election violence. I didn’t want to read it, but then DID read it. Join me, as I recap that exciting journey:

9:00am: Did the world really need another photo of this dude staring into the middle distance and thinking about the victims?

9:01am: I am not reading this.

10:08am: No, seriously. I’m. Not. Reading. This.

2:15pm: FINE, Mark Kersten, I’ll read it.

2:18pm: This is a horrifying story. And if this man is only in his late 20s now, he must have been barely out of his teens when he was tortured and mutilated.

2:21pm: Has a complex ever been more white savior-y than “he also believed Kenyatta’s crimes emerged from a tradition of impunity in Africa, one that would continue unless he stepped in”.

2:23pm: Why would you do this to me, Mark?

2:24pm: Is anyone surprised to learn that LMO is the sort of person who would loudly watch a YouTube video in the middle of a bar, regardless of the other patrons’ desire to enjoy their cocktails in peace?

2:27pm: I never quite know what to make of statements like this: “In a moment of collective insanity, Kenyan society had turned on itself.” Feels like an accurate description of cataclysmic violence, but also elides the fact that perpetrators make rational, strategic decisions to participate.

2:31pm: O hai, Alex Whiting.

2:32pm: This sounds right: “One investigator I spoke with said Moreno-Ocampo seemed to see the I.C.C. not as a forensic body so much as a ‘naming and shaming’ organization, like Human Rights Watch or Amnesty International.”

2:34pm: I appreciate the #RealTalk about the absurdity of the Congo and Darfur investigations.

2:35pm: This Njenga stuff is pretty interesting, given that one of the recurrent complaints about international criminal prosecutions is that they fail to build cases against complex criminal organizations the way functional domestic systems do.

2:37pm: LOL at “Moreno-Ocampo, whose political guile was undercut by his political tone-deafness”.

2:40pm: The failure to take seriously and account for the potential risks and consequences for the witnesses here is just maddening. Here’s hoping everyone’s learned a valuable lesson…

2:42pm: So the unexpected takeaway here seems to be that we should all be assigning LMO much more personal blame for the ICC’s terrible relationship with African countries, rather than attributing it to the structural constraints on the Court’s jurisdiction and wretched PR. Huh.

WTF Friday, 6/17/2016

I can’t even with this week, you guys. #Orlando, the unbelievable hypocrisy of the anti-gay-until-5-min-ago American right, the shocking murder of Jo Cox… it’s all just the absolute worst.

So I’m going to leave off the extended rants on a Kenyan court’s failure to strike down forcible anal exams, the Indonesian government’s decision to fire live ammunition to repel a boat full of Sri Lankan Tamil asylum-seekers from reaching the shore, or this idiotic “eat like a refugee” awareness campaign (h/t Rise Refugee on that one).

Instead, I’ll just leave you with this: “cat wine” is a thing that exists now. Enjoy your weekend, and try not to worry that our civilization is in its death throes.

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WTF Friday, 6/10/2016

This week, in alarming news:

Migrant men from Afghanistan and Syria are selling sex to survive in Greece.

Amnesty International reports that Germany is failing to address a huge increase in hate crimes, including many targeted at asylum-seekers and refugees.

Fiat Argentina’s latest car manual reads like it was dug up in a time capsule from 1966. (H/T: Kendyl Salcito for this amazing nonsense.)

And the authorship attribution on NYT op-eds turns out to be kind of a guesstimate. A piece called “South Sudan Needs Truth, Not Trials“, ostensibly written by the country’s President and Vice-President, had only been up for a few hours when reports began circulating that VP Riek Machar denied any involvement. Oops.

WTF Friday, 6/3/2016

This week brought us:

  1. Further evidence that Australian politicians are the absolute worst people on earth. New South Wales state MP and epic asshole Robert Borsak told his colleagues in state parliament that he killed and ate an elephant in Zimbabwe.
  2. A futile effort to derail the Trump train. Turns out the “impressive” third party candidate that Bill Kristol teased on Twitter over the weekend is a dude with no name recognition and no political experience.
  3. The news that Luis Moreno-Ocampo, former Chief Prosecutor of the International Criminal Court, is partnering with cigarette giant Phillip Morris to combat tobacco smuggling. Because, sure, that makes sense.

WTF Friday, 5/27/2016

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Angelina Jolie and William Hague at the 2014 Global Summit to End Sexual Violence in Conflict. (Photo from the Foreign & Commonwealth Office.)

My internets exploded this week over the news that famous actress-and-attractive-person Angelina Jolie will be joining the London School of Economics as a visiting professor at the Center for Women, Peace & Security. Reactions in my inbox ranged from “OMG WTF LSE” to “Is a blockbuster movie career now a prerequisite for a decent university teaching gig?” to “Do we really have to talk about this?”

The answers to the last two questions are, respectively, “let’s hope not” and “yes.” For help with the first, I reached out to Dr. Nimmi Gowrinathan, an actual expert on women, peace, and security. Nimmi directs the Politics of Sexual Violence Research Initiative at the City College of New York. She has a PhD in political science and works on women’s participation in, and experience of, violent conflict. (And she and I coauthored a report on the situation of Tamil women in post-war Sri Lanka last year.) Here’s a transcript of our email conversation, edited a bit for clarity:

KCF: Is this appointment as nutballs as the internet seems to think? Is Angelina Jolie an expert on women in war?

NG: Angelina Jolie has certainly spent the kind of devoted time listening to women affected by war that ‘experts’ often do not. However, [this appointment] reveals a disturbing trend in celebrity activism — where a combination of star power and good intentions combine to erect a powerful platform, elevating the actor above the activist. In recent years, the role played by early celebrity ambassadors has slowly transformed. From symbolic place-holders, public relations practicalities for ineffective UN agencies, to coveted positions of power. Positions as political actors representing the realities of a people, and a politics, that they have not researched, inserting their voices over lines that they have not rehearsed.

KCF: What do you make of her work with former UK Foreign Secretary William Hague on the issue of sexual violence during conflict?

NG: The partnership between Hague and Jolie is representative of the naively de-politicized engagement of celebrities in humanitarian work. And when the issue at hand is the victimization of women, the de-politicization is further entrenched. William Hague is a key member of a nation whose record on accepting asylum cases of women who were ‘only’ raped in conflict zones is  dismal, at best. Countries hand-selected by the initiative to showcase on sexual violence violations (Afghanistan, for example) re-inforce political agendas that justify the use of feminist imperialism to justify entrenched militarization. Those that don’t make their initial list, Sri Lanka for example, have little strategic value, or threaten to reveal a complicity of the UK in crimes committed. With one hand, the initiative partners with qualified and thoughtful individuals and institutions to develop protocols for documentation of crimes for legal prosecution, but with the other, they use their celebrity glow to beckon war criminals to the table who have stacked domestic courts to guarantee their impunity, for generations to come.

KCF: I know you attended their Global Summit to End Sexual Violence in Conflict two years ago. Did that feel like a positive use of celebrity to improve women’s lives?

NG: From the floor of the Hall to Expose violence against women, my critique captured the constant cognitive dissonance, a dream-like dedication to a staged activism — where Angelina Jolie made an occasional cameo. The scourge of sexual violence across the globe is offered a secure place in the lives of women by the strictures of repressive societies, violent states, and humanitarian interventions that fail to see the survivor behind the sewing machine. For the scholars and activists who are resigned to the small audiences that gather around complex political solutions to deeply entrenched problems, there is no envy of the attention celebrity attracts. The most effective critique they offer, is to temper overly-ambitious, purposely de-politicized, large scale acronymed programs with caution.

KCF: So fair to say that while her commitment to this issue is genuine, the effects of her engagement has been mixed?

NG: If we are to consider Jolie a true humanitarian, and a practicing one, then the interventions created by her, or in her image, must (at the very least) be held up to the first commandment in the humanitarian gospel — to do no harm. It remains to be seen whether the attention and agenda-driven approach to sexual violence will, in fact, shift the reality of marginalized women to provide them with a power similar to actors offered a platform, because they pretend.

KCF: Notwithstanding these very real concerns about impact, do you feel like Jolie’s history of involvement means she has something useful to offer to LSE students?

NG: While masters programs often, effectively, rely on Professors of Practice, the ‘practical’ element of Angelina Jolie’s engagement in critical issues remains an exceptional experience that students cannot, and should not, expect to mimic. In humanitarian crises, the secure nature of her travel and access to pre-selected sample sizes, rivals that of a Vatican visit. In her advocacy and activism, she is handed a microphone and captive audience of policymakers. Those that have lived to tell the tale of violence, spend lifetimes navigating apathy and checkpoints, hoping to be the background noise that doesn’t get drowned out of critical conversations. Her practice of celebrity activism may be more thoughtful than most, but the next generation of scholars and analysts should formulate new critiques from an understanding of the hard realities of the development sector, not the plushly carpeted pathways to power.

WTF Friday, 5/20/2016

Today in things that are not okay:

Syrian refugees are selling their organs to survive.

The EU plans to pay Omar Bashir (you know, that guy wanted for genocide) to keep African refugees on lock down in Sudan, and out of Europe.

Our man Duterte got elected president of the Philippines and promptly promised “to introduce executions by hanging and to order military snipers to kill suspected criminals as part of a law-and-order crackdown”.

And bakeries continue to be the most embattled front in America’s culture wars.