Tag Archives: International Criminal Court

The Last Word:  The Security Council Mishandles its Audiences, Dr. Robert Zuber

11 Jun

There is never enough time to say our last word-the last word of our love, of our desire, faith, remorse, submission, revolt.   Joseph Conrad

It takes your enemy and your friend, working together, to hurt you to the heart: the one to slander you and the other to get the news to you.  Mark Twain

That most dangerous of opponents is the one who took pains to comprehend the position of his adversary.  Piers Anthony

One of the many lessons of life that I (and many others) with privilege and access struggle to learn is that, for all of the impediments in the world – the competition for attention or resources and the wildly divergent lenses on reality that give rise to so many of our struggles – the greatest impediments often lie within ourselves.   “The enemy within,” the stuff of literature and legend, is an adversary about which we often seem to know the least. And in a world currently preoccupied with externalizing responsibility rather than accepting it, these knowledge gaps are only likely to grow.

As many of you know, we are regular (and largely grateful) participants in what the Council refers to as its “public” sessions.  As we have noted on other occasions, these meetings are for us a bit like sitting in front of a large picture window through which we can clearly behold a meal we are never invited to join. Indeed, aside from “re-tweets” from select delegations seeking to brand themselves and their ideas – a matter which diplomatic missions have now largely taken into their own hands – we have little interaction with Council members.  They almost never acknowledge our presence in the room, even when we are the only non-diplomatic persons in it.

So why do we sit there, hour after unacknowledged hour, listening as we do to statements that require great attention on our collective part just to find a kernel or two of value or interest that we can transmit to (and beyond) our twitter following? Why do we track conflicts and controversies that routinely appear on the Council’s agenda and that, with some notable exceptions (such as Liberia and Colombia) are often locked within political struggles that prevent successful conflict resolutions or even hopeful transitions?

Some of it, especially for our interns and fellows, is related to the desire to be present at those moments when history is being made – an agreement on Iran’s nuclear capability, a comprehensive plan to degrade ISIL, a first ceasefire in Aleppo, a response to weapons threats by the DPRK.

But more of it is grounded in our organization’s contribution of “attentiveness” based in part on our recognition that the Council’s sometimes arcane working methods and intractable political disagreements can weigh heavily on the rest of the UN’s agenda. When the Council indulges a meaner spirit; when its power imbalances denigrate the prerogatives of its elected members, when Council members allow a few special representatives and other briefers to be “beaten up” by offended states, the discouragement – in my office but also in many parts of the UN system — is more than palpable.   Why, my interns ask, does anyone think this body, behaving in a manner at times invited by its own working methods, is sufficient to solve crises that in some key ways already impact their future?

Some of this discouragement was on display Thursday afternoon during a report on Darfur by the Prosecutor of the International Criminal Court, Fatou Bensouda.   Her presentation to the Council – and the 25th report on Darfur on which it was based – was a direct challenge to uphold Council resolutions based in part on the “trust” for justice that victims have placed in this body. The report was also recognition that there has been some progress on social, economic and human rights conditions in Darfur.  There has recently been reported, as the prosecutor noted, fewer clashes between the government and insurgents, fewer rapes of women in the displacement camps, fewer denials of access for humanitarian assistance or impediments to the movements of UNAMID peacekeepers.

The prosecutor in so many words reminded the Council of its failure to act in cases of non-cooperation with the Court, such as when states acceding to the Rome Statute allow indicted war criminals such as Sudan’s al-Bashir to travel beyond his own national borders, contravening obligations under the statute to have him arrested and turned over to prosecutors in the Hague.  But in the same session, the prosecutor reminded the Sudanese that while their recent positive overtures are noted, “better” does not imply “sufficient.” Moreover, such positive signs do not in and of themselves constitute pathways to immunity for crimes already committed and for which formal indictments have long since been issued.

Council members are decidedly mixed regarding their reaction to the International Criminal Court with firm supporters such as Italy, Uruguay, France and current Council president Bolivia making appeals for cooperation and resources to skeptical states such as China, Ethiopia, Russia and Egypt.  Some of this skepticism is grounded in a concern, not completely without merit, that ill-timed indictments lacking broad (in this case African) regional support undermine a peace process that is beginning to show progress, a peace that is ultimately in the best interests of Darfur.

But in our hearing, some of this skepticism took on more of the character of permission to “take on” the prosecutor; and the Sudanese Ambassador willingly obliged.  He followed up his own assertion that Madame Bensouda was using “abusive language” directed at both the Council and Sudan by ratcheting up the abusive rhetoric himself – calling for the complete shutdown of this “kangaroo court,” implying that the ICC is incapable of doing its job without “inventing evidence or bribing witnesses,” congratulating the UN secretariat for allegedly “distancing itself” from ICC interpretations, even suggesting that the ICC had met its match and was now “tasting the consequences” from having taken Sudan too lightly.

It was a show of contempt that, sadly, is not without precedent in this Council.  Moreover, in this instance as with too many others, the Ambassador’s remarks went unchallenged.  No one attempted to restore the context of the meeting, let alone defend the reputation of the prosecutor.   The session was quickly brought to a close.   The last word belonged to the Sudanese.

Psychologists have done some good and interesting work on the phenomenon of “the last word,” much of it in the context of arguments across gender lines.   Without diving into this too deeply here, there is broad consensus that the need for the “last word,” is a function of an over-exercised or (ironically) damaged ego: needing to be “right” all the time, or needing reassurance, over and over, that a passionate point of view is “being heard.”  But there is more to it:  the manner in which we humans tend to interpret the silence that too often follows a bold, even reckless accusation.  In that silence there is an assumption of acceptance, an assumption that maybe this last point of view had more going for it than we might have otherwise imagined. And in many instances, it is this last viewpoint – abusive or not, factual or not – that becomes the” take-away” for the audience.

In this Thursday meeting, the Council continued a pattern of institutionalized practice that ensures maximum impact for the opinions and accusations of some of the states that, by their own conduct and even their own admission, have demonstrated more than a bit of contempt for Council resolutions and often for international law itself. Such states certainly deserve to have their say.  They should not, however, be entitled to have the last word.

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Do African Lives Matter for African Leaders? By Hussein Solomon[1]

31 Oct

Editor’s Note:  Later this morning (10/31), the president of the International Criminal Court will address the UN General Assembly.  A high priority for her presentation is sure to be the recent decision by South Africa to withdraw from the Court.  Here, Professor Hussein Solomon, one of our most insightful colleagues, offers reflections on the contexts and implications of South Africa’s decision. 

Africans have grown accustomed to the West ignoring their suffering. This is hardly a new phenomenon. Consider the fact that Belgian King Leopold II’s atrocities was historically ignored in Europe at the time and barely gets a footnote in recent European books on its African colonies. To be clear, 15 million Congolese were murdered and numerous others were mutilated by this ‘civilized’ European king as he sought to extract rubber from this blighted country. More recently, more than 6 million Congolese have been killed since the 2nd August 1998. Once again, there is scarcely a mention on the front pages of The Washington Post or the New York Times.

At one level, perhaps, this is understandable. According to psychologists one is supposed to have greater empathy for one’s in-group as opposed to the proverbial “other.” What is particularly galling for Africans, however, is when their own leaders display such callous disregard for their lives. Worse, still, is the hypocrisy accompanying the callousness on the part of Africa’s leadership. Consider for instance the events surrounding the 7 January 2015. This was the date of the brutal terrorist attack on the Charlie Hebdo offices which resulted in 17 people being killed on the streets of Paris. The world rallied with the French and a mass march of 1,6 million people took to the streets of Paris. This march also included 40 world leaders, including several African leaders who mourned the lives of the innocent savagely cut short. This is as it should be.

At the same time, of the Paris killings, however, there was another atrocity taking place. In the dusty town of Baga, northern Nigeria, Boko Haram militants slaughtered 2000 innocent people. There was no similar Paris march. No African leader took to the streets to commemorate the lives of those lost. Even the Nigerian President at the time, Goodluck Jonathan, did not immediately respond to the tragedy which took place on his own territory where his own citizens lost their life in such a cold-blooded way. This prompts the question: Do African lives matter to African leaders?

I asked this question several times following the decision by my own government – South Africa – to withdraw from the International Criminal Court (ICC). The South African decision may well be related to domestic politics. According to Anton du Plessis of the Institute for Security Studies, the Zuma administration is attempting to protect itself from an imminent Constitutional Court hearing in relation to the 2015 visit of Sudanese President Omar al-Bashir when Pretoria refused to arrest him as it was obligated to do under the Rome Statute. Instead Bashir and his entourage were whisked out of the country by the South African authorities.

To be clear, the arrest warrant for Bashir was based on the charge that he oversaw the war in Darfur which resulted in the deaths of between 200,000 and 400,000 people and the displacement of a further 2.5 million people in Darfur out of a population of 6.2 million. The so-called leaders of Africa denounced the ICC decision ostensibly because heads of state should have immunity of prosecution. The counter-argument is simply this: as Head of State should the buck not stop with him? Do not forget that Bashir was not merely Commander-in-Chief by virtue of him being President of Sudan. He was a military man who staged a coup in 1989 to come to power. The second charge levelled against the ICC was that it was unfairly targeting Africa. Let us be frank: many of the ICC investigations were initiated by African countries themselves since they did not have the resources to conduct an investigation and engage in a trial themselves. Do not forget, too, that the ICC is a court of last resort. The attack on the ICC is simultaneously taking place at a time when Africa’s own domestic and regional judicial mechanisms have come under threat from Africa’s self-serving leaders who desire to escape accountability at all costs whilst they simultaneously steal from and brutalize their citizens.

Perhaps the most powerful response to these objections put forward would simply be this: Do African lives matter to African leaders? Their deep concern for Bashir is akin to sympathizing with the aggressor as opposed to the victims. After all who speaks for the hundreds of thousands of innocent victims who needlessly lost their lives in Darfur?

[1] Professor Hussein Solomon lectures in the Department of Political Studies and Governance at the University of the Free State, South Africa.

Cooks in the Kitchen:   The UN Tinkers With its Menu of Structures for Ending Impunity, Dr.Robert Zuber

8 Nov

During this past week, as General Assembly committees finalized resolution text to send on to the full GA membership, the Security Council held its breath on Burundi, and preparations for the Paris Climate Conference sought appropriate levels of urgency, fond global aspirations were finding policy expression throughout the UN.

Many delegations now seek the means to elimination nuclear and other weapons of mass destruction from national arsenals.  They seek the means to address water crises, those related to drought and to restricted access.   They seek ways to promote adherence to a broadening base of human rights obligations, including a growing rejection of the death penalty, to ensure that access to these rights is as universal as the aspirations they contain.  Delegates seek to create peacekeeping operations and special political missions that work well in tandem, are fully transparent to membership, and can head off violence rather than merely address its aftermath. And they seek ways to ensure that coercive measures such as sanctions imposed by the UN Security Council are undertaken in a thoughtful, even-handed way that neither punishes the innocent nor subtly reinforces the political preferences of one or more Council members.

But perhaps the most pervasive aspiration is for an end to impunity for gross violations of international law, such as we see in Syria, Yemen, Central African Republic and other troubled venues. Perhaps no issue undermines the credibility of the UN quite like the perception that wrongdoers get away with wrongdoing to a degree that rank-and-file citizens cannot even imagine.  And yet, despite these challenges, there are few aspects of the UN’s work that are as intensely engaged at present as this one.

Simply put, the need to affirm principles of international law and to hold both state and non-state actors accountable to that law is pervasive and growing in importance within the UN.   As well it should be.   With all due regard for the mild hypocrisy embedded in the ways that we formulate the law and single out perpetrators to address by that same law, there is no more essential element to a healthy multi-lateral system than clear articulation and fulfillment of international principles that represent the standards by which we choose to live and conduct business.  Indeed, in the absence of such lived principles, it is unclear how we can ever find our way to a place of trust and confidence in the (at least) relative fairness of our international legal system.

Ending impunity is no abstract matter confined to states and the most egregious perpetrators of injustice.  From children “telling” on each other and barking at teachers who they believe have meted out punishment unfairly to the complex matters of jurisdiction and jurisprudence characterized by the International Court of Justice and other legal mechanisms, fairness is part of our cultural nomenclature. And regardless of where we fall on psychological standards of moral sophistication, or whether we posit some deity at the beginning or end of those standards, it is both inconceivable and even emotionally paralyzing that so much abusive and humiliating behavior remains unpunished in this world.  Many of us in this city bristle when we are “cut” in line or delayed by insensitive subway behavior.   What would then be our response to unaddressed crimes against humanity?   Surely we can find ways to apprehend and mete out justice to atrocity criminals at a higher rate than we incarcerate street level drug users or persons harassing subway riders with aggressive begging or “show time”?

Surely we can.  For three consecutive days this week, the UN engaged the question of the institutional forms best suited to help the international community identify, address and ultimately eliminate impunity for gross abuses.   On Wednesday, Spain and Romania hosted an event to explore challenges related to the formation of an International Court against Terrorism.

Spain’s Ambassador Oyarzun has taken considerable leadership (with Lithuania and Malaysia) on terrorism issues within the Security Council. Here he noted that his interest in this court arises out of a belief that terrorism constitutes the largest threat to the civilized world, and that states seeking to prosecute terrorist acts and end impunity once and for all could use the type of assistance that such a court could provide.  For his part, the Romanian Director General for Legal Affairs noted some of the specific challenges of such a proposed mechanism, including stable funding and what he termed “legitimacy” — by which he might have been referring to the proposed Court itself in some combination with its Council authorizers.  He might also have done well to highlight the still-vague definitions of “terrorist” that are sufficient for political purposes but still falling short on actionable legal consensus.

In another conference room on Friday, the General Assembly’s Sixth Committee was also “cooking in the kitchen” of structures to promote international law and end impunity for gross crimes.   Mention was made on numerous occasions of an initiative, mostly notably ascribed to Belgium, to draft a treaty to deter and address crimes against humanity, with a special focus (as highlighted by the Netherlands) on improving extradition and prosecutorial arrangements. And while some states, including Singapore, sensibly urged caution in “rushing ahead” to endorse such a treaty without sufficient regard for how it might impact existing legal mechanisms to address mass atrocities, there was general agreement in the room that such a treaty process deserved additional diplomatic attention.  Indeed, most states fully aligned with Mexico’s assertion that “there must be no derogation” regarding the prohibition against crimes against humanity.

One of the core concerns that came up in both the aforementioned events was the relationship of such proposed mechanisms to the Rome Statute and the work of the International Criminal Court.  In both conference rooms diplomats were quick to assert, as noted by Ambassador Oyarzun, that the proposed new instruments would be “fully complementary” with the requirements of the Rome Statute.

But to what extent do we take this reassurance of support and respect at face value?  To what degree are these various chefs in danger of getting in each other’s way, indeed of making it more likely that none of them will be able to bring the meal to table that we so badly desire?

Ironically, perhaps, the ICC’s Chief Prosecutor, Ms. Fatou Bensouda, was also in town this week to report on the work of the Court in Libya as required by SCR 1970 (2011).   Her statement and Tenth Report covered ground that was both familiar and disturbing, including allegations of torture perpetrated against defendant Saadi Gaddafi who had been ordered to be turned over by Libyan authorities to the ICC.

Madame Bensouda is a most forceful advocate for the ICC and for strong international justice in general.  On Thursday, she made it clear to Council members that we must not stand idly by while Libya is at risk of degenerating “into chaos and further instability.”  Many Council members expressed both sympathy and support for the Court and its expanding workload, noting in some instances that crimes worthy of ICC attention are growing both in their numbers and in their “authors.”

As she has done in the past, Madame Bensouda cited three dimensions of her work that are highly challenging and even undermining of positive outcomes:   a lack of secure and stable resources, a lack of basic security, and a lack of cooperation from both states parties and the Security Council.    These are discouraging and even damning allegations that cut to the core of the ICC’s work.   It is impossible to carry out thorough investigations without funds, without basic security, without the cooperation (let alone full consent) of the host country or of the authorizing Security Council. These are not incidental complaints, but speak to the lifeblood of any successful efforts by the ICC to end impunity and lay the groundwork for sustainable national reconciliation.

In the Council, Chile was one of the states that most clearly got the message, chiding fellow members for “our limited follow up” and reminding all that referrals from the Council are “not an end in themselves.”  Others chimed in with comments that seemed to indicate that current bottlenecks in the pursuit of justice could not properly be laid at the feet of the Prosecutor and her sometimes beleaguered staff.

Given these pervasive problems with regard to the ICC, it is fair to wonder how – or even whether — we should move forward on new legal mechanisms until we have gotten the ICC – the structure that other potential mechanisms pledge to respect — fully fit for purpose.  Madame Bensouda made clear to the Council, as she has done in the past, that ending impunity for atrocity crimes remains as achievable as it is necessary, and she reiterated her suggestion for a justice-oriented “contact group” for the ICC in Libya to help that process maintain momentum. But the message behind the message indicates that more careful and helpful attention to the ICC is needed, and needed now.

Our view is that a series of well-meaning but sub-standard meals will drive away more customers than it will attract. We need instead the equivalent of a showcase dining experience, a standard of excellence to which all new treaties, courts and other legal mechanisms can aspire.   Let’s first address with firmness the three ICC challenges noted by the Prosecutor, and in so doing create the standard and inspiration for the next iterations of legal responses to impunity’s challenges.

Justice for Genocide: Work in Progress

27 Jul

17 July 2013 marked, the 15th anniversary of the adoption of the Rome Statute of the International Criminal Court (ICC) by the international community in Rome, Italy on July 1998. The adoption is commemorated annually as International Criminal Justice Day. In celebration, the United Nations held a panel discussion on Justice and Accountability for Genocide and Atrocity Crimes.

The opening panel moderated by Mr. William Pace, Convener of the NGO Coalition for the International Criminal Court, raised questions concerning the effectiveness of current justice strategies and highlighted the importance of the International Criminal Court (ICC), its current challenges and recommendations going forward.  “We need to see faster proceedings that are effective and efficient,” stated Amb. Christian Wenaweser of Liechtenstein, while shedding light on the lessons learnt from the ICC. Amb. Eduardo Ulibarri of, Costa Rica and Amb. Stephen J. Rapp, U.S. Office of Global Criminal Justice, looked at the challenges faced by the court through the lens of a “global fabric of justice” which needs to be strengthened by mending situations of grave violence to civilians utilizing both the ICC and other legal mechanisms.

The opening panel effectively conveyed the message that the threat of punishment is insufficient to deter individuals or governments from committing genocide or other mass atrocity crimes. Given this, Mr. Adam Dieng, the Secretary General’s Special Advisor on the Prevention of Genocide, proposed that states must do more to earn the trust of their people by creating and then respecting strong institutions of government. Karen Mosoti, Head of the Liaison Office of the ICC to the UN, speaking on behalf of the ICC president, emphasized as well the “power” of justice.

The roundtable discussion with NGO leaders and survivors that followed, moderated by Hon. Thomas H. Andrews, president of United to End Genocide, highlighted some of the troubling events that have taken place in the Democratic Republic of Congo and also reaffirmed the need to bring to justice figures such as Sudan’s Omar Al-Bashir who have been accused of atrocity crimes. The overarching theme of the discussion focused on holding perpetrators accountable by providing justice for victims.

Over the years, the ICC has been dealing with a number of elites-induced conditions of mass violence where leaders engage in some form of cost-benefit calculation and aim at the acquisition or sustained exercise of power. A possible reason for this behavior could be related to the pattern of empty threats made by the international community. As Ambassador Rapp reinforced, “these acts of violence are not sudden and random, they are planned and instigated. These crimes are seen as a pathway to power but this can be broken only when we tell them that this commission will not lead to power.”

The threat of punishment – let alone an empty threat – has limited impact on government or other militant figures already intoxicated with hatred and violence. Thus the expectation of immediate relief in many conflict zones or post conflict settings should not be too high. With full regard for the timing and resource challenges associated with ending mass violence, the panel concluded with an unanswered but rather thought-provoking question posed by Ms. Eugenie Mukeshimana, “When and how do we declare the conclusion of a genocide?”

Overall, the event provided for a good discussion on issues pertaining to international justice. The title of the event implied that the event would be more focused on the legal aspect of prosecutions. Rather the discussion focused mostly on the political aspects of achieving justice for mass atrocity crimes. Nonetheless, the opening remarks as well as the roundtable discussion intersected around one important conclusion – the need for more positive interaction with the Security Council, including more regular communication with the ICC and more reliable funding made available to the Court to help prosecute the gravest of crimes.   GAPW will continue to contribute where and how we can to the evolution of more open and collaborative interactions between the Council and the UN’s various mechanisms for ensuring justice for the most serious of crimes.

 Kritika Seth