WHERE DO THE ROHINGYA GO?

In a historically important decision, the Pre-Trial Chamber of the International Criminal Court has today decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Prosecutor submitted her request to the Court under Article 19 (3) of the Rome Statute of the ICC submitting that even though most of the crimes against the Rohingya have taken place within the sovereign territory of a non-state party Myanmar, over which the ICC is unable to exercise jurisdiction, one discrete incident, that is the incident of border crossing into the territory of a member state Bangladesh, creates enough ground to attract the jurisdiction of the ICC over the crime of deportation associated with the border crossing. This is a step into unchartered waters for the ICC – never before has the principle of territoriality of a crime been reviewed independently of the “territorial integrity” of states. To venture into this area would be to bring the obligations of three states – Myanmar, Bangladesh and India (into which Rohingya populations have entered seeking asylum) under general principles of international law into question – for a group whose terrible suffering has been at the forefront of all human rights billboards this year.

Two provisions of the Rome Statute have been provocatively interpreted by the Prosecutor and the Pre Trial Chamber in its majority ruling on admissibility today. These are Articles 19 (3) and 119 (1). 19 (3) is the Prosecutor’s power to approach the Court in the matter of determining certain judicial questions before embarking on a course of action that may involve invoking the Court’s jurisdiction. The Chamber notes that at the heart of this request is question of invoking the jurisdiction of the Court under Article 12 (2) (a) in the context of an alleged forceful deportation of the Rohingya from the Rakhine region of Myanmar into Bangladesh. The Chamber then relies on old jurisprudence from the PCIJ in the Mavrommatis Palestine Concessions and the ICJ’s more recent East Timor (Portugal v. Australia) as well as a host of other cases from various other international courts and tribunals to hold that the definition of “dispute” is one that is open to judicial interpretation. It thus finds that its jurisdiction is subject to “dispute with Myanmar” and that it is competent to entertain this request under Article 119 (1). Further the Chamber relies on a general principle of international law – Kompetenz Kompetenz and cites a powerful battery of precedents to establish that as an international court of law, it has the power to determine its own jurisdiction under the Rome Statute and exercise its jurisdiction to admit the request made by the Prosecutor.

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Malian suspect at ICC: New opportunity for accountability for sexual crimes

After Jean-Pierre Bemba’s conviction was overturned, the new Malian case at the ICC offers an opportunity to successfully convict a suspect for sexual crimes. Focusing on a gender analysis of crimes will be essential, as gender was at the center of armed groups’ strategy.

Few women in northern Mali believed that this day would come.  One of the chiefs of the Islamic police of Timbuktu during the jihadist groups take over of the north of the country in 2012-2013 appeared before the ICC last April. The prosecution alleges that Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is responsible for rape and sexual slavery, torture, persecution, outrages upon personal dignity, passing of unlawful sentences, and attacking religious and historical buildings.

If the charges of rape and sexual slavery are upheld after the confirmation of charges hearing planned in the fall, it will be a not-to-be-missed opportunity to secure a conviction for sexual crimes as well as to focus on the gender dimension of some international crimes. Gender was indeed at the center of the Islamist militants’ strategy to secure their grip on Timbuktu and to subjugate its inhabitants. Meanwhile, it is the first time that a suspect is appearing before the Court on the charges of persecution on gender grounds.

In the sixteen years it has been operating, the ICC has deplorably failed to convict a single accused for sexual violence. In a recent setback earlier this month, the Court acquitted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba, of war crimes and crimes against humanity – including rape.  In two other previous instances, accused were also acquitted.

Yet, in 2014, the Office of the Prosecutor committed to better integrate a gender perspective in all its work and to improve prosecution of sexual violence.  The Al Hassane case and the context in which crimes were committed in Timbuktu offer an opportunity to demonstrate this commitment.

Al Hassan was a member of Ansar Eddine, an Islamist group seeking to impose Islamic law across the country. Alongside Tuareg rebels and other jihadist groups including Al Qaida in the Islamic Maghreb, they launched an offensive on northern Mali and took control of Timbutku between April 2012 and January 2013.

During this period, Islamist armed groups imposed a strict application of Sharia law. Men and women were not allowed to talk to each other outside of their families, music was forbidden, and shopkeepers were arrested and tortured for possessing tobacco. Jihadists imposed cruel punishments including public flogging and amputation. While these practices and destruction of mausoleums have caught the world’s attention, sexual crimes have been kept secret because of the stigma and the cultural taboo attached to them.

Women of Timbuktu were sexually harassed, forcibly married and raped. Women who were not fully covered were commonly harassed and beaten on the street by members of the Islamic Police or the so-called morality police, the Hisbah. They chased and arrested people considered not in compliance with Sharia law. During their detention at the police station, women were routinely tortured, sexually abused and in some cases raped.  Armed men controlling the city also kidnapped women after allegedly “marrying” them, detained them in their homes or abandoned houses to rape them repeatedly, and sometimes gang raped them.

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“Bemba and Beyond,” reflections on command responsibility

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

On Holocaust Remembrance Day, gratitude for archives preserving histories of post-WWII war crimes trials


LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities; to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

  • honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
  • rejected “any denial of the Holocaust as an historical event”;
  • envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
  • denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
  • encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen  Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30 (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from  the Nuremberg-era tribunals through to today’s International Criminal Court.

(Cross-posted from Diane Marie Amann; image credit)

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.

 

 

The role of the Coalition for the International Criminal Court in the Assembly of State Parties to the International Criminal Court

image1.jpegToday, Day 2 of the Assembly of the States Parties (ASP) to the International Criminal Court (ICC), the first NGO Advocacy Strategy Meeting was held, led by the Coalition for the International Criminal Court (CICC). The CICC also organized a question and answer session with the Prosecutor and Deputy Prosecutor of the ICC – Fatou Bensouda and James Stewart – and members of civil society. The significant presence of the CICC in the ASP was therefore evident throughout the day. This post will discuss the role of the CICC, which has always been an important actor in relation to the ICC.

At its creation in 1995, the Coalition only comprised a small number of NGOs supportive of the establishment of an International Criminal Court. After the Court was established, the CICC continued to work at every stage of its development, and strives now towards the larger goal of fighting against impunity by improving the ICC’s effectiveness, independence, and accessibility. It also addresses the most urgent issues faced by the international justice system and seeks to improve it. Now consisting of more than 2,500 civil society members from 150 countries, the CICC is the world’s largest civil society partnership advancing international justice.

The important role of the CICC in relation to the ICC was recognized as early as the ASP’s second session, in September 2003, when the Resolution on the Recognition of the coordinating and facilitating role of the NGO Coalition for the International Criminal Court (ICC-ASP/2/Res.8) was adopted by consensus. In that resolution, States Parties recognized that the CICC performs a coordinating and facilitating role between the community of NGOs and the ASP, and between that community and the ICC.

Concretely, before each ASP, the CICC engages in making knowledge accessible to all by producing information documents explaining the Assembly and the ICC, as well as issuing recommendations. During the ASP, the Coalition organizes daily NGOs advocacy strategy meetings, where NGOs can meet, collaborate, exchange information and develop a common strategy.

For instance, in this morning’s strategy meeting, the CICC and few other NGOs delegates underlined the reluctance of many States Parties to discuss issues pertaining to the ICC budget because of the complexity and political sensitivity of this topic. They highlighted that this situation creates a void that gives States Parties who advocate for budgetary cuts a free hand to frame and lead the negotiations on this agenda item. The CICC thus encouraged civil society members to reach out to the silent States, raise questions and encourage them to speak out and counter the current restrictive budgetary narrative. During the ASP, the CICC also relays information on the various outcomes of each event, notably on its website, and issues press releases.

Furthermore, the CICC organizes side-events in order to allow civil society members to express their views, such as today’s civil society-only meeting with Prosecutor Fatou Bensouda and Deputy Prosecutor James Stewart. This meeting gave the opportunity to NGO delegates – including my delegation, the Canadian Partnership for International Justice – to ask questions directly of the Prosecutor and Deputy Prosecutor and get answers that would inform the civil society’s understanding of OTP’s needs and strategies, notably on the situation in Libya, the implementation of the 2014 Policy Paper on Sexual and Gender Based Crimes, and Burundi’s withdrawal from the Rome Statute.

The CICC has proven to be a key interlocutor within the ASP, bringing a careful focus on topics rather than politics. While CICC is funded by States, it only takes action on the basis of common principles to which there is a widespread consensus among the Coalition’s members. In sum, it is hard to imagine the ICC and the ASP without the CICC, given its size, breadth of focus and impact – as today’s meeting demonstrate.

This blog post and Catherine Savard’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice are supported by the Social Sciences and Humanities Research Council of Canada.

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‘Nuff said: Sebutinde on women judges, international courts

sebutinde_hires“I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a women to be on this court. They have no idea what a deal it is. It is a big deal.”

So commented Judge Julia Sebutinde, reflecting on her tenure at the International Court of Justice. She was quoted in “Africa’s most senior female judge: ‘Would these men even listen to me?’, a November profile published in South Africa’s Daily Maverick. Sebutinde has served on the court since 2012, following a lengthy U.N. election process; she is the 4th woman, and the 1st African woman, to be elected in the court’s 70-year history.

Sebutinde began her distinguished career as a lawyer and judge in her native Uganda. She also has served as a judge both on the Special Court for Sierra Leone and on the International Criminal Court. In the Daily Maverick article, she not only speaks of her work at the ICJ, but also offers criticism of current opposition to the ICC. (credit for ICJ photo)