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, 2/27/2015

I’m not sure why I’m bothering, given that the entire internet is occupied with dress-related content today, BUT: Someone is wrong on the internet about the International Criminal Court, and I simply cannot let that pass.

The individual in question is Stephen Rademaker, a former Bush (both H.W. and W.) administration official who drafted the legislation creating the Frankenstein’s Monster known as the Department of Homeland Security. And the substance of his wrongness is contained in his recommendation that:

Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.

He is literally suggesting that we make a federal case out of the vanishingly slim possibility of ICC prosecutions of Americans.

Over at Justice in Conflict, Mark Kersten highlights a number of problems with this “breathtakingly absurd” proposal. It’s silly, it’s hypocritical, and it would sabotage the U.S.’s reasonably functional, if uneasy, relationship with the Court.

Personally, I think it’s kind of cute that paranoid Republicans still think of the ICC as some kind of all-powerful, avenging justice monster, despite all the evidence to the contrary. (Remember that time it took 10 years and 600 plus pages of judicial opinionating to sentence one guy for one war crime?)

But what strikes me as truly insane about Rademaker’s proposal is his blithe disregard for immunities. Because you know what you can’t do under U.S. law? Prosecute foreign officials, or representatives of international organizations, for conduct undertaken in the course of their official duties. (This is called “functional” or “act” immunity.) And I really can’t think of anything much more official than fulfilling the obligations contained in a treaty that over 120 countries have ratified. So unless Rademaker is suggesting that ICC prosecutions are jus cogens violations (there appears to be an emerging exception to immunity for universally-agreed-to-be-serious crimes like genocide, torture, and slavery), this makes no sense.

And frankly, if ANYONE should be in favor of robust, no-exceptions-allowed, functional immunity, shouldn’t it be former Bush administration officials?

My Head Asplode

Batten down the hatches and hunker down in your place of safety, because the end times are upon us.

Here’s the proof:

Representative Chris Smith (R-NJ) in the Washington Post, advocating for the establishment of a Syria War Crimes Tribunal. (The Bible is pretty clear that Republican Congresspersons proposing the creation of new international institutions is a sign of the apocalypse, right?)

Rep. Smith, who chairs the House Foreign Affairs Committee’s human rights panel, believes that rather than approving a limited strike, or an International Criminal Court referral, or any of the other options currently on the table, the United Nations Security Council should create a brand spanking new war crimes tribunal, specifically tasked with bringing the perpetrators of atrocities in Syria to justice.

As evidence that this is a feasible proposition, he cites the Security Council votes to create the ICTY in 1993 (unanimous) and the ICTR in 1994 (China abstained).

Here’s the thing, though, Congressman: You know what didn’t exist in 1993 and 1994, when the Security Council decided to establish those ad hoc bodies? I’ll give you a hint: It rhymes with Shminternational Shriminal Shourt.

Yes, that’s right, it’s the ICC! And it is, in fact, a permanent international body set up to do EXACTLY the thing you would like your Syria War Crimes Tribunal to do. Isn’t that exciting?

And do you know why the ICC was set up? It was so that every (depressingly frequent) time some jackass dictator or rebel leader decides to mow down peaceful protestors, massacre villagers, or engage in a campaign of mass rape, the Security Council doesn’t have to go to the trouble and expense of creating a new court.

And that expense is not minimal. The ICTY, which you seem to be such a fan of, currently clocks in at $2.3 billion. The ICTR: $1.7 billion. Even the hybrid courts, which save costs by utilizing the judicial systems of the country where the crimes occurred, have already racked up price tags of over $200 million (Special Court for Sierra Leone, in place since 2002) and $350 million (Khmer Rouge Tribunal operating since 2006). And frankly, I just don’t see President Assad loaning his pet judges out to the effort to punish him. Do you?

Meanwhile, the costs to establish the ICC have already been paid. It’s there, lurking just outside of The Hague, waiting for someone to request that it investigate the command structure of the Syrian Armed Forces. All you have to do is ask.

Or rather: All you have to do is persuade Russia and China not to veto a referral. But you’d have that issue with your harebrained “chuck a new tribunal at the problem” scheme too. So yeah, maybe go back to the drawing board with this one.


*Facts and figures courtesy of the Leitner Center’s “International Criminal Tribunals: A Visual Overview.”

While I Was Out…

While I was off making my semi-annual offering to the gods of poorly-attended-panel-presentations, the political science blogosphere got interested in the ICC.

Over at the Monkey Cage, IR O.G. Jim Fearon asks “How is the ICC supposed to work?

Taking on the ecstatic reaction to Bosco Ntaganda’s unexpected surrender last month, Fearon wonders whether this is truly a “victory for justice.” He identifies two possible reasons we might actually see perverse effects whereby the operation of the ICC could actually lead to increased human rights violations. The first is the classic argument espoused by Team Peace in the Peace vs. Justice debate: If you’re an atrocity committing potential ICC indictee, the possibility of facing accountability provides a profound disincentive against laying down your arms.

The second is what Fearon refers to as a liability limiting mechanism. He suggests that, all else equal, your ICC-indicted atrocity committer is in a better position than your unindicted atrocity committer, because if things start to go south, the former always has the option of an all expenses paid trip to The Hague.

This is an interesting argument, and one whose implications are worth teasing out. There are a couple of ways that The-Hague-as-escape-route could result in an increase in violations. We can think of them as mirror images to “general” and “specific” deterrence claims. (Note: This is the distinction between deterring potential future offenders vs. deterring future offenses by the individual being punished.)

First, in an exact reversal of arguments about the ICC’s possible “general deterrent” effect, the existence of the ICC might encourage potential perpetrators who wouldn’t otherwise commit atrocities to do so. In order for this to follow, some class of potential perpetrator would have to be interested in committing atrocities, but deterred by the risk of being killed in retaliation. These potential perpetrators would also have to be aware of the ICC and reasonably able to predict what will attract its attention, such that they could commit atrocities in a manner well-targeted to producing protective ICC warrants. This may be logically plausible for some marginal cases, but it seems practically improbable for many of the same reasons that a strong general deterrent effect is unlikely: ICC intervention is never certain, and is heavily constrained by both resource and political considerations.

The more likely scenario, and the one that I think Fearon likely has in mind, is something I’ve worried about for a while. For those specific perpetrators who have already attracted the attention of the ICC, the issuance of a warrant may operate as a license to kill. Once you know that you have the escape route to The Hague in place, whatever restraint was provided by the risk of suffering politically (including, but not limited to, retaliatory killing) for your actions will vanish. This raises the possibility that rather than producing specific deterrence, the ICC could in fact be producing the opposite (specific anti-deterrence?).

I agree with Fearon that the prospects for the ICC to directly deter the commission of mass atrocities are dim. However, this does not mean that the ICC cannot contribute to reducing the occurrence of these crimes through other mechanisms. For more on this, check out two other responses to Fearon’s post: Erik Voeten’s, suggesting that the ICC may encourage domestic level enforcement that will ultimately have the capacity to deter, especially in “countries where ‘mid-level’ human rights abuses occur,” and Heger, Aloyo, & Dutton’s, discussing their findings that ICC membership is correlated with significantly less torture.

Blast from the (Recent) Past: “Kony 2012: Lessons for the Congo” Podcast

Happy New Year, internets.

In case you’re nostalgic for 2012 already (The royal wedding! Unseasonably warm temparatures! RomneyBot3000!), good news: The podcast for the Congo in Harlem “Kony 2012: Lessons for the Congo” panel that Amanda and I participated in is now available:

Each panelist focused his or her remarks on a different aspect of the Kony 2012 campaign and subsequent kerfuffle. I chose to highlight Invisible Children’s emphasis on ICC prosecution for Joseph Kony as the ultimate goal of their advocacy, and explained why I found this strategy an awkward fit for the LRA crisis.

A point I had hoped to discuss further, but didn’t have time for, is that Kony 2012 demonstrates some of the problems that can arise when complex political situations are treated as problems for criminal justice to solve.

The idea behind the existence of the International Criminal Court is a laudable commitment not to allow criminal behavior that is also political behavior to go unpunished; to have a legal mechanism that will punish those guilty of mass atrocities that is to some extent insulated from the operation of politics. But this insulation comes at a price: Once the legal mechanism gets going, you can’t reintroduce politics, even if it might produce better peace and justice outcomes. Consequently, Uganda was not able to offer the suspension of the ICC warrants during peace negotiations with the LRA.

A number of critics (me included) have made the point that Invisible Children’s approach takes a long-standing political crisis, and reduces it to the criminality of one man. And the reaction from those who feel this criticism is unfair has been: “Why do we care? This guy has committed egregious crimes, does it really matter if we’re over-simplifying the conflict as long as he’s punished?” But it does matter, because when you choose legal solutions you are foreclosing political options.

Being aware of this tradeoff is particularly important with regard to Congo, where we see a similar move being made with the conflict minerals campaign, which tells us that the violence in the Kivus is the consequence of individual greed and criminality, not complicated political dynamics. And it’s clear why this narrative is appealing– a lot of confusing complexity washes out, and law enforcement solutions are a comparatively simple policy ask. But if the story that conflict mineral activists are telling isn’t correct, then law enforcement solutions will not address the root causes of the violence.

All of which leads me to wonder: The international criminal justice system was set up to deal with the political that is also criminal – to ensure that human rights abusers don’t get away with murder because they happen to occupy positions of political power. But is it equally well-suited to dealing with the criminal that is also political?

Why the Ngudjolo Acquittal Is Not Necessarily Bad News for the ICC

There’s been a lot of hand-wringing about yesterday’s acquittal of Congolese rebel leader Mathieu Ngudjolo.

OSJI’s Eric Witte describes the verdict as a “worrying signal about the quality of ICC prosecutions,” while human rights groups suggest that the court has failed to provide justice to Congolese victims of war crimes and crimes against humanity.

These reactions are undoubtedly valid, but there’s a silver lining.

Courts have to do two things to establish their legitimacy. They must show that they can enforce accountability for unlawful behavior, and they must demonstrate their allegiance to the legal process rather than politics. That second criterion is a particular challenge for the International Criminal Court, a relatively new legal institution operating in a highly politicized context.

Yesterday’s acquittal shows that, although the ICC faces tremendous pressure to deliver convictions, it will not operate merely as a stamp on public consensus about a defendant’s guilt. If the prosecution failed to prove the charges against Ngudjolo beyond a reasonable doubt, then it is an important and positive development for international justice that the Trial Chamber declined to convict him.

Simmer Down, Y’all

Dear Internets,

Yes, the UN General Assembly’s approval of “non-member observer state” status for Palestine is big news. No, it does not mean that Israeli leaders should be keeping an eye out for ICC investigators.

Palestine’s new status as a sorta-kinda-maybe-state does mean that it can now join the ICC. But, as Mark Goldberg points out, if Palestine tries again to refer the situation to the court, it will be up to Chief Prosecutor Fatou Bensouda first to decide whether to open an investigation, and then whether to issue charges. At either stage, she might decide that the evidence doesn’t support proceeding, or that pursuing a case is not “in the interests of justice” (Rome Statute, Art. 53). That last one gives her broad discretion to decline to proceed, which could be useful cover if, say, she felt that it was not a real swell idea for a young institution in a politically precarious position to piss off the superpower by going after one of its most important allies. You know, hypothetically.

Additionally, the Prosecutor might conclude that she is blocked by Israeli court proceedings covering actions in Palestine (Rome Statute, Art. 19). The ICC’s jurisdiction is complementary, which means it is only empowered to hear cases that the relevant state judicial system(s) are “unwilling or unable” to prosecute. Unlike many of the states who make up the ICC’s current caseload, Israel has a competent and active judiciary that has heard numerous cases arising out of policy towards the Occupied Territories. Determining that past judicial precedent suggests an “unwillingness” to prosecute would require a complicated and messy analysis that ICC is ill-equipped to undertake.

Finally, even if the Prosecutor were willing to proceed, it is not clear what events would be eligible. The ICC’s potential temporal jurisdiction over a state’s territory starts from the day the Rome Statute entered into force for that state. For many states, that’s the day of the court’s birth, July 1, 2002, but for those states that signed the treaty after the court started its work, it’s later.

So if Palestine joined the ICC tomorrow, a straightforward interpretation of the court’s jurisdictional provisions would say that the ICC could only prosecute crimes that take place starting from December 2012. There’s a possible Hail Mary argument invoking the Eichmann precedent that new states have retroactive jurisdiction over crimes against their citizens, but there’s no reason to think that this could be passed on to the ICC. The court only inherits its members’ jurisdiction over crimes committed by their citizens, or on their territory, not crimes committed against their citizens. And extending the ICC’s jurisdiction over Palestine back in time would effectively strip Israel of jurisdiction over a portion of its territory during a time in which it was the uncontested (with regard to formal institutions) sovereign. Additionally, the fact that Palestine’s “stateness” is likely to remain a bit of an open question makes any kind of retroactivity more of a stretch.

So there.

[Late-breaking news: Kevin Jon Heller has a new post up at Opinio Juris expounding a very different view. He cites Côte D’Ivoire’s April 18, 2003 acceptance of the ICC’s jurisdiction back to July 1, 2002 as evidence that states can give the court retroactive jurisdiction. I don’t agree that this is relevant precedent; Côte D’Ivoire was the territorial sovereign throughout the entire period, so its retroactive acceptance of jurisdiction raises none of the issues posed by a new state.]

New Piece at The Atlantic

We have a piece up at The Atlantic today!

It’s about the four ICC staff members who have been detained by the Zintani militia in Libya, and why this is a super-duper-big-deal-for-serious-we-mean-it for the court. (We don’t want to spoil anything, but it’s possible that the phrase “Black Hawk Down” gets used.)

In short, the violation of the staff’s diplomatic immunity complicates an already tense interaction between Libya and the ICC, and potentially undermines the court’s ability to work in unstable contexts.

Some important issues raised by this crisis that we didn’t have space to discuss in the article:

  • Reuters’ bizarre quote from outgoing ICC prosecutor Luis Moreno-Ocampo that “the Zintan authorities claim they have the right to investigate the case against the ICC pair,” but “It’s not what we would expect from the court…from the defense.” Really, dude? How about “they have full immunity from investigation, detention, and prosecution, so this is categorically unacceptable and they must be released immediately.” Couldn’t he have started at FIFA last week?
  • The fact that you can bet LMO would have given an unambiguous statement of support for any Office of the Prosecutor or Registry staff members in similar circumstances. Defense counsel have always had a bit of a struggle at the international tribunals (enthusiasm for international justice is limited to prosecuting the architects of mass atrocity, not so much defending them); should we take the absence of international outcry regarding Taylor et al.’s detention as one more indication of their second class status?
  • Traditionally, a large part of immunity’s force within international law has been based on reciprocity; states respect foreign officials’ immunity because they didn’t want to put their own diplomats at risk. That dynamic isn’t present for international institutions, which “take” more immunity than they “give.” The ICC is a particularly strong example of this, given that it asserts the right to try heads of state and other officials who would otherwise be immune. Does the Court’s inability to reciprocate make its claim to immunity for its staff members less compelling?
  • Unlike domestic courts, the ICC can’t try crimes that have been committed against itself. In light of recent events, that seems like a serious weakness.


Whither Bosco?

Yesterday’s internets were full of the news that Congolese President Joseph Kabila has finally stated publicly that Bosco Ntaganda should be arrested and tried for war crimes.

Ntaganda’s continued freedom, and prominent position as a general in the Congolese national army (FARDC), has been a thorn in the side of international justice advocates who want him to face trial on a 2006 ICC warrant. -Particularly for ICC Prosecutor Luis Moreno-Ocampo, who has repeatedly called on the Congolese government and/or MONUSCO to arrest Ntaganda and surrender him to the ICC. However, regional actors have been reluctant to act on these demands due to their belief that Ntaganda’s cooperation is crucial to ensuring (relative) stability in the Kivus.

A statement by Kabila that Ntaganda should stand trial is therefore big news. Events over the last couple of weeks have suggested that Ntaganda’s grip on power may be slipping. If regional powers (specifically, the Rwandan government) no longer think his cooperation is necessary for peace in the Kivus, then he may indeed be vulnerable to arrest. However, as Jason Stearns points out, it’s not clear what Kabila actually said. Although Western media are reporting it as a call for Ntaganda’s immediate capture, it may simply have been a statement that he “could be arrested by Congolese officials when the moment is right.”

Whether or not Ntaganda ends up in the dock, these developments have set off a new round of the perennial peace vs. justice debate. For advocates of justice, Ntaganda’s ability to live freely among the victims of CNDP atrocities is a clear case of unacceptable impunity. For those on the other side of the debate, his freedom is simply the price of preventing future atrocities.

A number of people, concerned about the risk of violence in the Kivus if Ntaganda gets nabbed, have asked what options the Prosecutor has for suspending the warrant. The answer is: none.

Unsurprisingly, the architecture of the international criminal law system skews heavily towards Team Justice in the peace vs. justice debate. Although the Rome Statue builds in some prosecutorial discretion regarding decisions about what cases to pursue – specifically, Article 53 allows the Prosecutor to decline to proceed with an investigation “there are substantial reasons to believe that an investigation would not serve the interests of justice” – once a warrant is issued the Prosecutor has no ability to defer to political considerations. There are, however, two other legal mechanisms that can delay or prevent an ICC prosecution once a warrant has been issued. (And, of course, the political mechanism of everybody just looking the other way and not arresting the guy.)

The first is the Article 16 Security Council deferral procedure, which can delay an ICC prosecution for renewable 1 year periods. The implication of situating this mechanism within the Council’s Chapter VII powers is that it applies only when a prosecution represents a threat to the peace.

The second is the preemption of ICC prosecution by a domestic trial, which I’ve explained previously. (This one actually underscores how little power the Prosecutor has to defer to politics after the issuance of warrants. In the case of Saif al-Gaddafi, we’ve seen Moreno-Ocampo support Libya’s new government’s efforts to preempt the ICC prosecution, only to get slapped down by the Pre-Trial Chamber.)

Either of these mechanisms could potentially be utilized in the Ntaganda case, however, it’s not clear that they would actually help with the peace vs. justice conundrum.

The Security Council deferral mechanism only delays the process; it doesn’t lift the warrant, so whatever incentives a looming threat of prosecution creates to retain the ability to spoil peace would persist. And preempting ICC jurisdiction through a domestic proceeding would require the Congolese authorities to try Ntaganda under conditions that meet international fair trial standards (i.e. no indefinite detention, no secretive military tribunal). Such a process is therefore likely to be at least as disruptive to the peace as an ICC prosecution.

Given the other choices on the table, the selection (so far) of the “let him wander around Goma, profiting off of everything in sight” option starts to look a bit more understandable…