Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 2

The contributions discussed in part one may be used to frame an analysis of the Court’s recent request to Belarus to cooperate in the arrest and surrender of al-Bashir. The ICC has issued two arrest warrants for al-Bashir, one in 2009 and one in 2010, for alleged war crimes, crimes against humanity, and genocide. Since the arrest warrants were issued, al-Bashir typically travels to non-states parties, who are under no obligation to arrest him. Indeed, Belarus has neither signed nor ratified the Rome Statute. However, he has also visited states partieswho do have an obligation to arrest, including (but not limited to) Chad, Kenya, Djibouti, Malawi, the Democratic Republic of Congo, Jordan, Uganda, and South Africa. Despite the Court’s request to these states parties for cooperationin the arrest of al-Bashir, national governments such as those of Chad, Jordan, and South Africa have refused to comply, using the justification that al-Bashir’s status as head of state provides him with immunity from arrest. This opinion is also promoted by the African Union, which has asked for an advisory opinion from the International Court of Justice on the issue of immunities of heads of state and government within the Rome Statute system.  

The relations between Belarus and Sudan are strengthening in several key areas. Al-Bashir and Belarus’ President, Alexander Lukashenko, signed agreements on ‘friendly relations and cooperation’in 2017 emphasizing dynamic trade and joint projects in the industrial and agricultural sectors. Al-Bashir’s speculated travel to Belarus is for the purpose of finalizing trade deals and enhancing bilateral relations. However, the link between the two countries is long(er)standing. Belarus is a Sudanese armament provider. In 2006, a military cooperation protocolwas signed by the two countries covering training, exchange of experiences, and military science. Belarus has a reputation as an arms exporter to rogue states. Since Belarus is under no legal obligation to cooperate with the ICC, the arrest and surrender of al-Bashir highly unlikely. The high probability that Belarus will ignore the Prosecutor’s request contributes to a culture of impunity and staunch criticism of the Court.  

Inasmuch as states pursue political and economic (self) interests, the UNSC expressed a need for accountability for the atrocious crimes committed in Darfur under the leadership of President Omar al-Bashir at the ICC. The majority of states agree that the gravity of the crimes covered by the Rome Statute are so abhorrent that they are an offence to humankind and should not go unpunished. It is necessary to question the elusiveness of state cooperation in the situation concerning al-Bashir and consider what can be done to facilitate a different, more just outcome. Relying on Belarus is insufficient without the political backing of the UNSC to oblige all member states to enforce their referral and facilitate cooperation by all states to this end.   

Political strategizing for the majority of states requires a balance of hard and soft power; this includes the promotion of international criminal justice and the use of international institutions, which creates a sense of solidarity among Member States. Expectations of behaviour establish trust. The rules-based order in the Rome Statute system contributes to a shared commitment to these goals. The referral of the situation in Sudan to the ICC by the UNSC signals that the perpetration of atrocious crimes is unacceptable, even for states who have neither signed nor ratified the Rome Statute. Appeals to sovereign power, interests, or status as a head of state are irrelevant. This could be a significant moment for the international criminal justice project, but the transfer of political power (UNSC) to legal action (ICC) has been weak and haphazard. The lack of organizational support and state cooperation to see justice done devalues international criminal law and subjects the ICC to a serious legitimacy crisis.  

The lack of credible commitment on the part of the UNSC to enforce this referral, or to provide the necessary political support has undermined (and continues to undermine) the ICC’s ability to see justice done. The UNSC has failed to take measures against states who choose not to execute the arrest warrant, which ought to be an obligation that emanates from the referral itself. The need for the UNSC to take a bigger role in the enforcement of its own resolutions remains an important focal point in the discussion on cooperation more broadly.  

The obsequious attention paid to al-Bashir and his disregard for the indictment by the ICC has led to increasing frustration on the part of those who oppose impunity and demand justice and accountability for the victims in Sudan. The role of civil society is particularly important in this regard. Depending on states such as Belarus to cooperate with the execution of an arrest warrant in the absence of political or legal obligations is fundamentally flawed. How persuasive is a sharp carrot when the states involved have the stick? 

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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How are multilingual challenges addressed at the ICC?

In June 2017, I observed the testimony of a prosecution witness in The Prosecutor v. Dominic Ongwen trial at the International Criminal Court (ICC) in The Hague. Ongwen stands accused of directing attacks by members of the Lord’s Resistance Army in May 2004 against civilians in an internally displaced persons’ camp in northern Uganda. The alleged war crimes and crimes against humanity committed by those under Ongwen’s command include murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, cruel treatment of civilians, sexual and gender-based violence, and pillaging.

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Courtesy of ICC

The witness testifying that day was a victim of the attacks. She recounted how her newborn child was thrown into the bush by the attackers, and how she was subsequently pursued and brutally beaten as she searched for her baby. As a protected witness, her face was purposely distorted so that she was unrecognizable to the public. But her background was nonetheless clear – her experiences were that of a young woman from a rural area, her dress was traditional, and she testified in Acholi.

How does such a witness find herself in The Hague, addressing international judges, prosecutors and defence lawyers in a modern courtroom that is outfitted with the latest technology? Who takes her initial witness statement? Helps her arrange her travel to Europe once she has been selected to testify? Meets her at the airport upon arrival? Finds her suitable clothing for the European weather and helps her settle into her accommodation? Who orients her to the courtroom procedures, the microphones she will speak into, and the images that will flash before her on a screen? And very importantly, who interprets her critical testimony about what she experienced from Acholi into the working languages of the Court, English and French, conveying the tone of her speech along with her inevitable hesitation and emotion, so that it can become part of the official trial record?

These are just some of the questions I seek to answer through an ethnographic project I began in 2017, which I have tentatively titled “Global Court, Local Languages: How the ICC Pursues Multilingual Justice.” It is true that every international court must accommodate in some way the multilingualism found both across its geographic jurisdiction and within its own professional ranks. This task may not be particularly daunting, however, if the court has official or working languages that are widely spoken and for which there exists a large cadre of trained translators and interpreters. For institutions that must accommodate speakers of rarer languages, the challenges are considerably greater. Indeed, the difficulties associated with using such languages throughout the various phases of an international criminal process may raise fundamental questions about accuracy, fairness, and budgetary allocation.

As an anthropologist with a background in African sociolinguistics, I am particularly interested in the use of African languages in a wide range of ICC activities. A number of challenges arise in the course of these activities, stemming from a variety of factors. These include the absence of trained language professionals for many of the target languages, the lack of existing lexical items to denote international legal concepts, the languages’ frequent lack of a written tradition, and low rates of literacy in victim communities

The ICC is currently using more than thirty languages from the African continent in its investigations, trials, interactions with victims, and outreach activities. Despite the centrality of these languages to various ICC situations and cases, African language experts, along with the structures created to support their work, operate largely in the shadows. Furthermore, the innovative strategies developed by ICC language services staff around recruitment and training of African language interpreters, development of legal lexicons, and other vital activities are rarely acknowledged publicly. Despite the obvious multilingual nature of all ICC situations and cases, the constant use of interpretation and translation (even between its working languages), and the visible presence of interpreters in the courtroom, the Court’s language services remain strangely unseen and unsung.

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Courtesy of ICC Language Services Section

I recently finalized a paper that presents some of the preliminary findings from this research project – “Unseen and Unsung: ICC Language Services and their Impact on Institutional Legitimacy.” This paper, prepared for a PluriCourts conference in October 2017 on the theme of “The Legitimacy of Unseen Actors in International Adjudication,” is currently under review for publication. I also had the opportunity to present these findings at the ICC itself, to an audience comprising language service professionals along with judges and other staff members.

I welcome all comments and suggestions on my paper, available at the link above, as well as my larger ongoing project.

 

 

You can run but you can’t hide? Rwabukombe and universal jurisdiction

As the International Criminal Tribunal for Rwanda (ICTR) officially closed its doors on the 31st of December 2015, one thing still remained certain, the lives of the victims and affected communities of the Rwandan genocide will never be the same. The ICTR may have delivered justice to the best of its abilities but understandably could not prosecute each and every perpetrator, especially those that fled and sought refuge in other countries. However, due to the fact that international crimes like genocide, affect the entire international community, international law obliges states to prosecute perpetrators of international crimes no matter where those crimes were committed through the application of universal jurisdiction. A German court in Frankfurt recently did a service to international criminal justice by prosecuting and sentencing Onesphore Rwabukombe, a former Rwandan mayor for his participation in the Rwandan genocide. Mr Rwabukombe, a Hutu, was sentenced to life in prison for his participation in an attack on a church which had been housing Tutsi refugees during the 1994 genocide. Rwabukombe had relocated to Germany where he had been living under asylum since 2002.

The limelight in terms of international criminal law cases is usually stolen by more newsworthy cases before the International Criminal Court or the respective tribunals and often times, not enough credit is given to domestic courts for their contribution towards fighting impunity. Rwabukombe’s case is significant, not only as an addition to yet another victory for international criminal justice but also as an example of the complementary role that domestic courts play in the fight against impunity. Additionally, the case illustrates the importance of universal jurisdiction towards the enforcement of international criminal law in situations where the perpetrator tries to avoid accountability. The case reiterates that the ends of international criminal justice can be met if more states lived up to their international legal obligations by prosecuting perpetrators of international crimes instead of placing high expectations on international courts and then complaining when they deem the said courts inefficient.

Furthermore, the case brings to mind a number of pertinent questions regarding the accountability of crimes committed on the African continent. Given Germany´s colonial history in some African countries and particularly in Rwanda between the 19th and 20th century, one might be left wondering, who should have been at the forefront of prosecuting Rwabukombe? More generally, who should be at the forefront of prosecutions for crimes committed in Africa? It should be noted that Rwandan officials were the ones that initially transmitted the international arrest warrant to German officials but after his arrest, Germany declined to extradite Rwabukombe on the basis that he would not be afforded a fair trial in Rwanda. This was actually not the first time German courts have tried and sentenced individuals for crimes committed in Africa. In fact, other European based courts have also prosecuted numerous high ranking officials of African origin for the commission of international crimes in Africa. Continue reading

Inheritance Law Reform in Morocco: At the Intersection of Human Rights and Religious Identity

Last week, the president of Morocco’s National Human Rights Council (CNDH), Driss El Yazami, publicly released the Council’s most recent report on gender equality and parity in Morocco. The content and recommendations contained therein were broad, addressing a range of issues related to laws affecting women. However, one issue, in particular, received significant attention and has been the subject of heated debate here in the country: inheritance law.

The report comes four years after the adoption of a new, Arab Spring-inspired constitution and ten years after a controversial yet much celebrated reform of the Moroccan Family Code (al-mudawwana). While the CNDH has issued previous reports and memoranda on gender, the CNDH noted that the report was “the first of its kind” to review the efforts and achievements to promote and protect the rights of women in Morocco, but also to present the challenges, gaps, and obstacles that continue to prevent women from enjoying all of their human rights. The report is comprised of three chapters, addressing (1) gender equality and non-discrimination, (2) equality and parity in economic, social, and cultural rights, and (3) public policies and their impacts on women that are most vulnerable to human rights violations, and it offers 97 recommendations intended to ensure the full participation of women in society and their equal access to services and resources. From a human rights perspective, it is impressive.

In a press statement after the conference, El Yazami said, “There will be no democratic progress or fair and sustainable development in Morocco without the empowerment and full participation of women, who make up one-half of Moroccan society.”

The report provided many opportunities for controversy, but its recommendations relating to inheritance generated the most coverage in the Arabic- and French-language press. The report commented on current legislation around inheritance, which stipulates that male heirs receive double that of female heirs, among other such provisions. It then recommended an amendment to the Family Code giving women the same rights as men in the context of inheritance. In supporting its recommendation, the CNDH referred to both national and international law, citing Article 19 of the 2011 constitution and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Morocco is a party.

The most trenchant response has come from the Justice and Development Party (PJD), the ruling political party in Morocco since 2011. While they are often referred to as “Islamist,” the party describes itself as a political party with an Islamic frame of reference, an important distinction, I have learned, here in Morocco.

The party has referred to the report as an “unacceptable provocation,” criticizing its perceived overreach into the religious domain. Its principal objection has been that the recommendation to amend the inheritance laws contravenes explicit textual directives in the Qur’an, which the party says are not open to interpretation. Thus, they contend, the recommendation lacks legitimacy and legality in Morocco.

Continue reading

The Place of African Languages in International Criminal Justice: Meeting Challenges and Developing Strategies

ICC accused Abdallah Banda Abakaer Nourai who has chosen to testify in Zaghawa, a Sudanese language estimated to have only a few hundred thousand speakers. (Photo Credit: jfjustice.net)

 

How do international criminal courts and tribunals accommodate speakers of languages when there is no existing corps of trained interpreters and translators to call upon? How do court professionals identify and fill lexical gaps, especially those related to principles of international crimes and judicial procedures? When do misunderstandings due to language blend into those caused by different cultural perspectives held by tribunal staff and legal practitioners on one side, and accused persons or witnesses on the other?

These and other questions come into play regularly when speakers of African languages participate in processes of international criminal justice. In a recently published book chapter, “African Languages in International Criminal Justice: the International Criminal Tribunal for Rwanda and Beyond,” I examine the various roles played by African languages, along with the practices and policies that were developed to respond to these roles, at the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and, to a lesser extent, the International Criminal Court (ICC). Through interviewing judges, prosecutors, defense counsel, investigators, outreach officers, and language service specialists from the three courts, as well as exploring existing literature that touches on language use in these settings, I have attempted to draw a picture of how African languages fare in critical domains of international criminal justice. These domains include formal criminal investigations, courtroom proceedings, outreach to the regions where the international crimes have been committed, and communication with victims of these crimes.

My chapter is included in Promoting Accountability Under International Law for Gross Human Rights Violations: Essays in Honour of Prosecutor Hassan Bubacar Jallow (Brill Nijhoff 2015), edited by Charles Chernor Jallow and Alhagi B.M. Marong.

Challenges related to the use of African languages in legal processes are not unique to the international sphere. Indeed, the absence of local languages in the higher judicial courts of African countries has often been noted. When this scenario is transferred into the “higher order” of international criminal courts and tribunals, however, the difficulties are compounded. The stakes of the trials are very high: defendants are charged with crimes deemed the most serious by near universal agreement, namely, war crimes, crimes against humanity and genocide. The official languages of the international courts are those spoken in the world’s most powerful states, past and present. Persons participating in an international criminal justice procedure must either use a language of the court – with which they may have had limited educational or practical contact, if any at all – or communicate through an interpreter. Continue reading

Trade & Development

President Obama in Kenya

Photo Credit

President Obama’s current trip to East Africa (Kenya and Ethiopia) and the recent extension of the African Growth & Opportunities Act (AGOA) are an opportunity to ponder the tenuous link that, without sound domestic policies, exists between trade and poverty reduction. A recent PBS report on Angola provides a stark illustration:

Angola is the second-largest oil producer in sub-Saharan Africa. However, about 36% of the population lives below the poverty line, reports the African Development Bank (AfDB). The country is reportedly flush with money from oil and diamonds; yet Angola ranks near the bottom of the U.N. Human Development Index (149th out of 187 countries).

Angola’s capital, Luanda, has been ranked as the world’s most expensive city for expatriates — beating out Tokyo, Hong Kong, and Moscow. Angola also bears the unwelcome distinction of being the country with the highest child mortality rate in the entire world. The World Bank reported in 2014 that 167 out of every 1,000 children born alive in Angola were likely to die before reaching the age of five. And the government just proposed to cut the health budget by 30%.

What apparently abounds in the country, and accounts for these discrepancies is corruption. Corruption, says Transparency International (TI), is “. . . the abuse of entrusted power for private gain”. Economically, TI continues, it depletes national wealth as corrupt politicians invest scarce public resources in projects that will benefit them rather than their communities. In Angola, judges drive jaguars and the President’s daughter is Africa’s youngest billionaire. Angola is one of the least transparent countries in the world and one of the most corrupt. It is ranked by Transparency International at 161 out of 175 countries and as fifth (5th) from the bottom in Sub-Saharan Africa.

Angola is not the only corrupt country in Africa; nor is corruption restricted to the African continent. Other countries share this scourge. However, the disparities between the wealth generated by the exports of this oil-rich country and the stark conditions in which one-third of its population lives help to shine a bright light on the criminal consequences of corrupt domestic policies.

Angola will, undoubtedly, continue to benefit from its ability to export its oil under AGOA. Trade alone, however, can only do so much.

As we continue to explore this topic, we will address some questions that occurred to us about the connections between corruption and the legacy of colonialism and the present role of the companies doing business in Africa.

Can better access to citizenship help resolve conflict and refugee crises in Africa’s Great Lakes Region?

The manifold problems of conflict and displacement in Africa’s Great Lakes region[1] seem as complex as they do intractable. After all, with the exception of Tanzania, all the countries in the region have generated refugees and internally displaced people (IDPs) in large numbers over the past decades. But while not wanting to diminish the problems facing the region past and present, scale should not be conflated with either inexplicability or insolvability.

Of course, there is no silver bullet either. But research carried out by the International Refugee Rights Initiative over the past six years in the region, all of which focuses in one way or another on conflict and displacement in a number of different settings, indicates that a framework of citizenship can contribute positively to a better understanding of, and better policy responses to, forced displacement in this troubled region.

Citizenship in this context is understood as access to legal citizenship, but also more broadly as recognition of the right of a person to belong in a community and the power of that acceptance/belonging as a means of accessing other rights. And the research suggests that while there are many causes of political conflict and displacement in the region, unequal or inadequate access to citizenship has been a major contributing cause. At the same time, not only has the failure to ensure inclusive citizenship contributed to displacement, it has also made it harder to resolve: exclusive understandings of national citizenship limit refugees’ access to citizenship in host states and inhibit local integration, and the continued operation of exclusionary policies has made return “home” impossible for many.

As a result, the research underscores the fact that proper realisation of citizenship is one factor that determines whether or not a particular person or group will be forced into displacement; whether they will be able to repatriate; whether they will be accepted by those in their home communities if they do return; how they are perceived in exile both by host communities and those “at home”; whether durable solutions are possible; or whether they will end their lives in exile.

This assertion suggests that there needs to be a paradigm shift in responses to refugees in the region whereby discussions around “durable solutions” to displacement are viewed through a citizenship lens. In the case of repatriation, this means recognition that repatriation can only be a solution when there is a genuine re-assertion of the bond of citizenship between citizen and state, permitting the latter to protect the former and the former to engage in dialogue on the nature of the protection required. Without re-establishing the state/citizen bond and the realisation of their full rights as citizens, refugees will continue to resist return – and others who face similar exclusion will continue to flee.

It also means that repatriation should not be assumed to be the preferred – or, at times, the only – solution. The preconception that the only place refugees can legitimately belong is in their original homes both drives, and is driven by, an emphasis on repatriation that has been promoted by both national governments and the United Nations High Commissioner for Refugees (UNHCR). This attitude has inhibited the possibilities for refugees to forge new forms of belonging, whether through local integration or resettlement to a third country. It also prevents refugees in protracted situations from integrating meaningfully (unless they choose to fall off the official radar and “self-settle”, albeit with a different set of challenges), creating strong feelings of marginalisation and alienation.

Therefore, greater emphasis needs to be placed on local integration as a lasting solution to exile and as a means of re-establishing citizenship rights. Those in exile desire meaningful citizenship, not least in situations where returning “home” is unlikely to be possible for the foreseeable future. In this context, local integration should be promoted as both a temporary and long-term solution to displacement. Integrating refugees into the host community empowers them to act as rational actors capable of addressing their own needs, as opposed to passive recipients of humanitarian aid in camps.

One of the key ways in which local belonging can be supported is through the way in which humanitarian assistance is given to refugees and their hosts. The findings have shown that refugee policy, by isolating refugees in settlements or camps, reinforces separation, undermines local integration and should be avoided wherever possible. The benefits to humanitarian programming in the short-term – as well as the misappropriated policy assumptions that underlie the settlement policy – are small compared to the benefits of supporting and allowing refugees to integrate freely within their country of exile.

Ultimately, therefore, the problem of conflict, displacement, and refugees in the Great Lakes region is intertwined with the crisis of citizenship and the logic of inclusion and exclusion. The way forward, therefore, lies in a process by which refugee policies and practices in the region are re-aligned to become more inclusive, and to have a focus on building the dignity and supporting the resourcefulness of refugees. Refugees need to be viewed as rational actors, who are best placed, either as individuals or as communities, to determine what their interests are and how to protect their rights. This assertion translates into a policy that promotes an organic process of interaction between refugees and host communities that starts at the onset of a refugee influx and allows both to mutually benefit from each other; that identifies potential areas of tension and encourages collaboration between both communities to identify ways of removing the cause of that tension; and that allows local actors to benefit from the economic and business opportunities that result from the presence of the refugees and thereby minimises xenophobia.

 

[1] The Great Lakes region consists of the territory covering 12 states that are members of the International Conference on the Great Lakes Region (ICGLR): Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo, Kenya, Uganda, Rwanda, South Sudan, Sudan, Tanzania, and Zambia.