Interview with Professor Mark Drumbl (Part-2)

4. The recent reparations order in the Ntaganda case mentions that collective reparations will be provided through the Trust Fund for Victims. Do you have any suggestions in mind with regard to how the Trust Fund for Victims can deliver reparations efficiently and in a time-bound manner?

One of the major problems is resources. The trust fund is undercapitalized. Now we have Ntaganda, and we had quite a significant amount of reparations awarded in Al- Mahdi. The Trust Fund has made awards in the past, at times unrelated to actual convictions like in Uganda. I remember speaking to a reporter about Ntaganda and it almost seems to me that reparative awards are going in the direction of symbolic justice. This may not intrinsically be a bad thing but then it should be described as such, which it is not. I cannot help but wonder if the entire reparative structure of international criminal justice would be better served by creating an independent commission apart from the ICC.

My other concern with reparative justice at the ICC is that, fundamentally, the ICC is a penal organization and reparative justice has been added on to it in the form of the Trust Fund and proceedings related to reparations. The norm is punitive justice and then you have this add-on. Add-ons are always subjacent and the second priority.

We do not need scattered penal judgments to tell us which societies are in need of reparations to deal with mass victimization.

Another concern that I have is the existence of the Trust Fund which might divert attention from the fact that through other forms of foreign aid which I would prefer to call our cosmopolitan duty we can inject large amounts of funds into places that have witnessed mass atrocities with the view to societal reconstruction. Why does it have to be connected to guilt or innocence of a small number of perpetrators who for reasons of absolute coincidence just happen to fall into the custody of ICC? I worry about that as well. The more we talk about Trust Funds, the less we feel we need to talk about the fact that reparations do not require a courtroom to be given.

5. What are your opinions about considering ecocide as an international crime?

I have written about ecocide in the past. I am skeptical that this is something that should fall within the framework of the ICC. I do not think it has the resources. I am not certain what kind of awards the Court can issue that would actually in this instance be reparative. I think for crimes such as environmental crimes the push should be for greater consciousness at the national level. The total amount of environmental damage worldwide that is created by individuals purposefully acting malevolently is quite small. The greatest challenge that the younger generation faces are things like climate change where the contribution to the problem are not mens rea crimes. They are not intentional acts to deliberately emit greenhouse gases. They are generally ordinary, lifestyle choices that are made every day to commute to work, to cool or heat a home, to develop economically, or general policy of corporate negligence. All of those are very difficult to fit in the mens rea frame and of course, ecocide carries the term genocide which would then rhetorically at least require to have a very high special intent which would capture a tiny fraction of environmental harm. I think we are much better of thinking creatively about how to deal with climate change and that would not be by creating penal institutions that do not do much work in that area because they cannot. Your generations’ challenge also is to deal with public health atrocities. The percentage of people who deliberately spread COVID is diminutive. COVID is spread through carelessness, ignorance, desperation, poverty. I think your generation’s challenge is to develop institutions that focus on harm as opposed to intent.

6. What can be done to include more feminist voices in the international justice arena?

This is an area in which I find there are discursive gaps. I have last month published a piece along with a colleague, Solange Mouthaan, who is a feminist scholar at University of Warwick. In that piece, we looked at the trial of a woman named Ilse Koch who was a concentration camp guard in World War II. She was prosecuted by an American Military Tribunal and then prosecuted by a West German court. Koch was convicted in both trials and sentenced to life for war crimes by the West German Court and then she committed suicide at the age of 60. This trial to me is illustrative as an answer to your question.

One thing that must happen for a discursive equitable playing field level is that the predominance of paternalistic, patriarchal gender-based tropes involving pejorative narratives become removed from public discourse. Koch’s trial brought forth the gender-based stereotype that she was so evil because any woman who would commit this kind of violence would have to be absolutely sadistic as this is not a ‘womanly act.’ I have seen that in discursive frames about women perpetrators — a sensationalism often arises. In this article, Solange and I also observe another equally wincing gender-based stereotype, which is to say that Koch only did it because of her husband or that her husband made her do that. It is portrayed that the act is solely a result of the patriarchal society and her overbearing husband, not an act of her own. She is presented as helpless.

What I think has to emerge for inclusion for a progressive feminist analysis is that neither of those two tropes become the dominant narrative, because what was completely lost in the Ilse Koch trial was her own real story. How did she come to be who she was? What did she do? Why? And also, what do her victims and survivors have to say about her as a perpetrator? All of that becomes marginalized and occluded through the force of these assumptive stereotypes. To me that is very important and I think that means when one rethinks the history of exclusion of women in post-  conflict reconstruction that a full lens needs to be adopted. A vibrant conversation arises about the role that women played in the Nuremburg Trials or in the post- World War II process of justice. Almost all of that conversation focuses on women who helped, assisted, supported or determined the process or defined the law. One of the biggest omissions in a feminist history of Nuremburg is the discussion of women perpetrators. Solange and I argue in this article that promoting true gender equality means fully recognizing the agency of women in the cataclysm of atrocity and the ensuring social repair.

The second crucial move that I really hope happens is a far more active inclusion of feminist voices from the Global South and a recognition that there is not one feminism. There is not ‘a’ feminist perspective. There are feminisms. I think voices from the Global South in feminist theory and justice are under appreciated and under recognized at the moment. This maps onto another broader theme that I think would really suit international criminal law well and add more candor and more honesty. Greater inclusiveness and sharing in context of people that one listens to may mean accepting ideas that are not exactly the same as what the listener hopes to hear. To me, it is the ultimate form of discursive colonialism when those in power seek to include others only on the condition that what they say matches the expectations of those in power about what the disempowered are supposed to say. I worry about that, too. I know I have shared many worries, and really, I am not a chronic worrier, but the point remains that there cannot be any growth without self-reflection.

Interview with Professor Mark Drumbl (Part-1)

Professor Mark Drumbl serves as Director of the Transnational Law Institute of Washington and Lee University, USA. He has held visiting appointments and has taught at Queen’s University Belfast, Oxford University (University College), Université de Paris (Panthéon- Assas), VU Amsterdam, and various other prestigious universities throughout the globe. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. Professor Drumbl’s articles have appeared in the NYU, Michigan, Northwestern, George Washington, Tulane, and North Carolina law reviews, many peer-review journals, including Human Rights Quarterly, with shorter pieces in the American Journal of International Law and numerous other periodicals.

Professor Drumbl’s first book, Atrocity, Punishment, and International Law, which was published by Cambridge University Press, has received critical acclaim. Later on, he went on to write or edit two more books titled Reimagining Child Soldiers in International Law and Policy (OUP) and Research Handbook on Child Soldiers (Edward Elgar Press) in 2012 and 2019 respectively. He is co-authoring a book on informers and transitional justice to be published by Oxford University Press in 2022. His work on Rwanda has been reviewed as “exemplary” in its treatment of “the possibilities of the coexistence of victims and survivors within the same society after the event” by the Times Literary Supplement in its Learned Journals review.

I had the honor of interviewing him. I thank him for the interesting conversation that touched upon various topics from child soldiers to ecocide. The transcribed version of the interview is available below.

1.What interested you to take up international law as your study in college times?

When I was an undergraduate student, I studied political science and philosophy. Then, I did some graduate work in comparative politics; and, from then, I went on to law school. Actually, when I was in law school, I did not take many public international law classes. I took corporate and business law classes. Then I worked for a number of years at large law firms doing arbitration and corporate law work in New York and Toronto. In that context, I specifically developed an interest in transnational and international disputes and arrangements. One coincidence that occurred – I had an opportunity to work on a pro bono file that involved investigations of wrongdoing by the Canadian Army and peacekeepers. In peacekeeping work, the Canadians were implicated in the United Nations’ mission in Somalia, which led to a major public enquiry and I along with the senior partner of the firm I was working at became involved with that. It related to questions of war crimes and peacekeepers. At that point, I became quite interested in the role of law and public enquiries as a deterrent to human rights abuses.

During my work as a practitioner, I decided to pursue the goal of becoming a professor. When I started my doctoral work at Columbia University, I was interested in international economic law. I actually started off on that note. By absolute coincidence and serendipity, I unexpectedly had a last second opportunity to go to Rwanda and do defense work in genocide trials several years after the genocide against the Tutsi. I jumped at the opportunity at the last second, took time off from my graduate work and went to Rwanda. When I arrived there, I was so excited about how proper criminal trials could encourage processes of national reconciliation. I had about 250 clients while working in Rwanda, and I left with a much deeper sense of skepticism about the potential and possibility of international criminal law. I came back to New York and wrote an article based on my experience. I found it so gripping to write that piece that I changed the entire focus of my doctoral programme to international criminal law. Two decades later, I work and teach in the same field. That interest stuck for me. The bottom line is that a completely serendipitous opportunity presented and re-routed all my interest. Hence, I highly recommend younger folks to be very open to coincidences and randomness because sometimes things ‘just happen.’

2. What were your thoughts after reading the Ongwen judgment? Were there instances in the judgment that could have been reconsidered in terms of the sentencing or any other aspect?

One of my major academic interests for many years has been to think about the role of ordinary people, compromised people, and victims who despite their victim status – their meekness and weakness – in turn may come to victimize others. In other words: how to speak of ordinary people who inflict tremendous pain on others? That has led me to a sustained academic interest to these kinds of characters such as very low-level perpetrators in Rwanda, child soldiers, collaborators and informers to name a few. All this brings me to Ongwen and my interest in that trial. For me, Ongwen comes under the category of victims who victimize. Ongwen was probably nine years old, kidnapped on his way from school into the LRA, brutalized and beaten. He was socialized into one of the most violent organizations and it is heartbreaking to say that his deployment of violence was a skill that he developed so as to not only survive in the LRA but also thrive as he rose to a high-level position of Brigadier Commander. Throughout his journey in the LRA, he moved from a powerless victim to a powerful victimizer. Just the other day, the ICC sentenced him to twenty-five years’ imprisonment.

When I think about the criminal process against him, what I see and think to some extent is an individual scarred by his socialization into violence as a young boy — how does that figure or compute in conversations about this criminal responsibility? My main reaction after the Ongwen trial is that the criminal process does not deal well with these tragic, imperfect victims. The prosecution vastly overstates his free will, his intentionality and tends to downplay his socialization. The defense overstates his infirmity, weakness and malleability. In the Ongwen trial, the prosecutorial narrative dominated and he was presented as one of the most serious persons responsible for tremendous violence. My major concern is if law is going to deal with an enormous condition precedent to mass atrocity, namely the involvement of tragic figures such as Ongwen, I think we have to have a more candid conversation about the actuality of the perpetrator. I also think we need to have a more candid conversation about the imperfect nature of the ICC and the act of prosecuting. Ongwen would never have been prosecuted unless the prosecution skirted the violence of the Ugandan Government. The ICC has seemed to develop a specialty of prosecuting mid-level rebel leaders whose rebellions fail against governments. I cannot help but wonder whether international criminal law would do better and be more inclusive and effective if we recognized all around that those who deliver justice sometimes have to compromise and those who inflict tremendous pain may themselves be compromised souls.

3. Do you think transitional justice should be considered as important as prosecuting and imprisoning the accused in the international justice system? How much progress have we made towards the same?

I have long believed that mechanisms other than criminal trials are crucial. Truth commissions, commemorations, local ceremonies, education, constitutional reforms and so on. I think all of those can serve transformative goals. Unfortunately, I think the dominating narrative of international criminal justice and accountability has actually    become colonized by the courtroom and adversarialism. I think that process needs to become more inclusive of alternate mechanisms. While working on issues of abuse and gender, one thing that I have noticed is that societies in which international criminal trials have been brought as methods of post-conflict reconstruction are not necessarily more equitable, more inclusive, more embracing of cultures, juvenile rights, gender equality and equality such as that based on such as physical or perceived physical ability, identity, and I am left with a lingering sense that perhaps alternate justice mechanisms may not only deliver accountability for the past but may actually embed a more just society in the future. That is a very important goal to me.

To be continued…

Call for Contributions to a Special Issue on the ICC

On July 1, 2022, the International Criminal Court (ICC) will mark the twentieth anniversary of the entry into force of its constitutive treaty, the Rome Statute. Since the Court’s establishment, scholars and practitioners have extensively debated its effectiveness in achieving its core missions of ending impunity for atrocity crimes, providing justice for victims, and contributing to the prevention of mass violence. The twentieth anniversary of the Rome Statute’s entry into force provides an opportune time to re-engage these debates and take stock of the Court’s record. To this end, we are proposing a special journal issue focusing on the ICC’s performance, broadly construed. We welcome theoretical and empirical contributions from diverse scholars and practitioners examining issues relating to the Court’s performance, including, but not limited to, questions such as: How should we assess the ICC’s performance?  What are the theoretical and practical challenges associated with evaluating the ICC’s performance?  To what extent has the ICC been effective in achieving the core missions the Rome Statute envisions for the Court?  More specifically, to what extent has the ICC been effective in ending impunity for atrocity crimes under its jurisdiction?  To what extent has it, across various stages of the legal process and in different contexts, succeeded or failed in deterring these crimes (including crimes that have not yet been explored in the deterrence literature, such as torture, wartime sexual violence, and forcible deportation, inter alia)? How effective has the ICC been in delivering a sense of justice—retributive, reparative, or otherwise—to victims and communities where it has investigated crimes? We also invite contributions examining factors that may contribute to, or undermine, the Court’s performance, such as popular perceptions of its legitimacy across different contexts; relations with great powers, the United Nations, and regional blocs such as the African Union; and cooperation from state parties and others. We hope to compile 10-12 abstracts (of no more than 5,000 characters) to submit as part of a proposal to leading political science and/or international studies journals by March 1, 2021. If you are interested in contributing, please contact M.P. Broache (mpbroach@uncg.edu) and Jacqueline R. McAllister (mcallisterj@kenyon.edu).

The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK).  In this Report, the Prosecutor concluded that 

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).  

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report.  In addition, I will discuss the potential impact of this decision on the future of the ICC.  

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014.  In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute.  The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.  

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq.  The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody.  IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically,  as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ).  The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute.  In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed.  Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI).  IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place.  In all nine cases, the SPA recommended that no charges be brought against the accused individuals.  In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis. 

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials.  As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution.  In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference.  Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases.  Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433).  In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).  

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds.  It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution.   Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions.  States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission.  The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate.  If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question.  In such circumstances, it becomes difficult to continue to defend the ICC.  For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)

On the third day of the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC), held in The Hague from 2 to 7 December 2019, a side event named “Guinea: A decade after, victims of the 2019 massacre are still waiting for justice” took place. It was co-organized by the International Federation for Human Rights (FIDH) and the Guinean civil society organizations Organisation guinéenne de défense des droits de l’homme et du citoyenMêmes droits pour tous and the Association des victimes, parents et amis du 11 septembre 2009. Moderated by Delphine Carlens, Head of the International Justice section at FIDH, the event featured panelists Drissa Traoré, FIDH Under-Secretary; Asmaou Diallo, President of the Association of Victims, Parents and Friends of the September 28 Massacre; and Franco Matillana, from the ICC’s Office of the Prosecutor (OTP). As panelists shared their views on the prospects for justice for the September 2009 Massacre in Guinea, this blog post will elaborate on the key aspects of this enriching discussion. Specifically, it will summarize the context of the September 2009 Massacre, before turning to explore the ongoing judicial proceedings within the Guinean domestic legal system, victims’ perceptions of these proceedings, and the ongoing ICC preliminary examination.

Flyer of the event co-organized by the FIDH and Guinean civil society organizations, held in The Hague on 4 December 2019. 

1. What happened in Guinea on 28 September 2009?

On 14 October 2009, the ICC OTP announced the opening of a preliminary examination with respect to the situation in Guinea. It stated that this “preliminary examination focusses on alleged Rome Statute crimes committed in the context of the 28 September 2009 events at the Conakry stadium.” As Guinea is a State Party to the Rome Statute, having deposited its instrument of ratification on 14 July 2003, the OTP announced that it would investigate international crimes committed on the territory of Guinea or by Guinean nationals from 1 October 2003 onwards (Rome Statute, article 11). 

 The contextual background of the September 2009 Massacre is described in the subsequent OTP Reports on Preliminary Examination Activities (see e.g the 2019 report here). In December 2008, after the death of President Lansana Conté, who had ruled Guinea since 1984, Captain Moussa Dadis Camara seized power in a military coup. As the new head of State, he established a military junta, the Conseil national pour la démocratie et le développement (CNDD, orNational Council for Democracy and Development), and promised that this body would ensure that power is handed to a civilian president following presidential and parliamentary elections. However, as time went by, Captain Camara’s attitude and statements seemed to suggest that he might actually run for president, which led to protests by its political opponents and civil society groups. 

On 28 September 2009, the Independence Day of Guinea, an opposition group gathering at the national stadium in Conakry was violently repressed by national security forces. According to Human Rights Watch, they opened fire on civilians that were peacefully calling for transparent elections. Some civilians were shot, beaten, and even raped in daylight. According to the OTP’s 2019 Report on Preliminary Examination Activities, more than 150 people died or disappeared, at least 109 women were victims of rape and other forms of sexual violence, including sexual mutilations and sexual slavery, and more than 1000 persons were injured. Cases of torture and cruel, inhuman or degrading treatment during arrests, arbitrary detentions, and attacks against civilians based on their perceived ethnic or political affiliation are also mentioned in the 2019 OTP Report.

Ten years after the massacre, are Guinean victims any closer to see their tormentors be held accountable? One after the other, panelists at the ASP side event shared their points of view. 

2. Drissa Traoré, FIDH Under-Secretary, depicted the judicial landscape and pointed key issues

At the ASP side event, FIDH Under-Secretary Drissa Traoré critically depicted the ongoing judicial proceedings taking place within the Guinean domestic legal system with respect to the 28 September massacre. In February 2010, the case was referred by Guinean Prosecutors to a group of magistrates, before whom it progressed slowly amid political, financial, and logistical obstacles. Despite being charged, many senior officials remained in office. During the investigation, judges have heard the testimony of 450 victims and their their family members. The judicial process was still ongoing when, in 2018, the Minister of Justice Cheick Sako set up a steering committee tasked with the practical organization of the trial. Conakry’s Court of Appeal was identified as the final location for the trial. However, Minister Sako resigned from his position as Minister of Justice in May 2019, causing further delays in the organization of the trial.

In 2019, the newly appointed Minister of Justice, Mohamed Lamine Fofana, decided to reform the steering committee: even though this committee was supposed to meet once a week, in practice, it had met only intermittently. Mr. Fofana also announced that the trial would take place in June 2020, and the government decided to build a new courtroom for this trial to be held. Drissa Traoré stressed that the construction of this courtroom could be a pretext to delay the trial once again. At the time of the ASP, in December 2019, the construction had not begun, and the judges presiding over the trial had yet to be appointed and trained for a such a trial. 

To Drissa Traoré, it is imperative that the charged civil servants who remain in office be dismissed from their positions before the beginning of the trial. He also emphasized the necessity for victims and witnesses to be protected from and any undue pressure that could be exerted against them. 

Mr. Traoré also highlighted that the sociopolitical context in Guinea is currently strained. Guinean presidential elections will take place in 2020, and demonstrations are regularly taking place, accompanied by daily arrests and deaths. To Mr. Traoré, it is crucial that this trial takes place, as it would send a message that impunity for grave crimes is not tolerated in Guinea. 

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You can read the second part of the blogpost here:  How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

ICC Assembly of States Parties Symposium: Overall Update and Reflections & the Afghanistan Hearing

Guest Post By Jennifer Trahan, Clinical Professor, NYU Center for Global Affairs

ASP Photo 1

Members of Civil Society Organizations at the 2019 ICC Assembly of States Parties 

Milena Sterio has already blogged about two of the side-events held, and Valerie Oosterveld has provided an update on the progress made during various days of the ASP.  This blog post will provide an update on a few issues covered during the ASP, and on the hearings held simultaneously (December 4-6) at the International Criminal Court regarding the appeal of the rejection of the Prosecutor’s application to proceed with the Afghanistan investigation.  I was able to attend both the ASP as well as segments of the Afghanistan hearing, and also serve as an amicus on the Afghanistan appeal.

The ASP, chaired by ASP President Judge O-Gon Kwon, culminated in the adoption of seven resolutions by consensus on:  amendments to article 8 of the Rome Statute (adding starvation as a war crime when committed in non-international armed conflict), cooperation, the nomination and election of judges, the proposed programme budget for 2020, the remuneration of judges, review of the International Criminal Court and the Rome Statute system, and strengthening the International Criminal Court and the Assembly of States Parties (a/k/a the “omnibus resolution”).  The Assembly also elected six members of the Committee on Budget and Finance and a member to fill a vacancy, and a member of the Advisory Committee on nominations of judges.  In addition to the General Debate, there were thematic plenary sessions on cooperation and the review of the Court, and a large number of civil society and State Party-sponsored “side-events.”  (Press release, ICC-CPI-20191206-PR1505.)

The Review Process

One of the aspects that made this ASP different from past ASPs was the creation of a review process for review of the work of the Court and the Rome Statute system.  Calls for the creation of such a process came after the launch of politically-motivated attacks against the Court, as well as a motivation to strengthen certain aspects of the ICC’s work.  After many drafts this fall of the terms of reference for an independent expert review, it was determined that the review would focus on three areas: (1) governance, (2) judiciary, and (3) prosecution and investigation.  After submissions to the ASP President of nominations of the names of over 60 experts, President Kwon selected the final list of names, with three experts nominated under each category.  This list was then approved at the final ASP session.  This review process will run in parallel with certain review efforts to be addressed directly by the ASP.  There was debate both during the ASP about how the expert review would be implemented, and at least some concern that not all states necessarily seem to fully share the goal of strengthening the ICC.  It was noticeable that some states during the ASP and this past fall were calling for a “reform” process, whereas most agreed that the process was to be a “review” process aimed at strengthening the Court.  NGOs and States Parties have also undertaken to strengthen the process for the nomination and election of ICC judges, with some modest progress made in a resolution adopted on the topic.

 The Afghanistan hearing

ASP Photo 2

ICC Prosecutor Fatou Bensouda addressing delegates at the ICC Assembly of States Parties 

Prosecutor Fatou Bensounda and ICC President Chile Eboe-Osuji had opened the ASP Plenary Session on December 2 with frank calls about the need to support the ICC as it faced politically-motivated attacks against its work, with the Prosecutor expressing her firm commitment to proceeding notwithstanding.  The timing was such that the ICC Appeals Chamber would simultaneously during the ASP conduct hearings on the appeal of the dismissal of the Prosecutor’s request that the Afghanistan preliminary examination proceed to the investigation phase.

The Pre-Trial Chamber had on April 12, 2019 determine that the Afghanistan preliminary examination met the grounds to proceed under Rome Statute Article 15—that there was a “reasonable basis to believe that the incidents underlying the [Prosecutor’s] [r]equest occurred” and “may constitute crimes within the jurisdiction of the Court” (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ of 12 April 2019, para. 60).  Yet, the Pre-Trial Chamber notwithstanding held that it was not “in the interests of justice” under Rome Statute Article 53 (1) (c) to open the investigation based on the Pre-Trial Chamber’s de novo assessment of the application of that phrase (paras. 91-96).

The first day of the appeals hearing (December 4) focused on two procedural questions – whether “victims” had standing to be part of the appeal, and whether the appeal was one related to “jurisdiction.”  The second two days (December 5 and 6) focused on the merits of the argument—what the phrase “the interests of justice” was meant to address, and whether the Pre-Trial Chamber properly assessed the issue, and whether it properly construed the factors by which to evaluate application of the phrase.  This blog post won’t cover all the arguments, but on the day I attended (December 6), the amici present presented extremely persuasive cases that the Pre-Trial Chamber erred in its assessment, including a strong presentation by former US War Crimes Ambassador David Scheffer.

The Appeals Chamber’s ruling is extremely significant not only as to whether the Afghanistan investigation—involving alleged crimes by the Taliban, Afghan authorities, as well as US nationals—may proceed, but some of the criteria utilized by the Pre-Trial Chamber in evaluating whether to open the investigation represent extremely unworkable ones that potentially could jeopardize whether many of the ICC’s preliminary examinations are able to proceed.  Thus, the ruling has potential importance far beyond the Afghanistan situation.  I was privileged to submit a written amicus brief—as amici were asked to present either a brief or to present oral arguments.  All the written amicus submissions addressing “the interests of justice” agreed that the Pre-Trial Chamber had erred in its assessment.

The release of the annual report on Preliminary Examinations

While Valerie Oosterveld has already blogged about the Prosecutor’s release on Thursday, December 5, 2019, of her office’s annual Report on Preliminary Examination Activities, I will just note that the report has a new section covering “Phase 1” of Preliminary Examinations.  The Report (para. 23) explains that during “Phase 1”, the OTP analyzes all communications received pursuant to Article 15 of the Rome Statute using the following criteria:

whether the allegations contained therein concerned: (i) matters which are manifestly outside of the jurisdiction of the Court; (ii) a situation already under preliminary examination; (iii) a situation already under investigation or forming the basis of a prosecution; or (iv) matters which are neither manifestly outside of the Court’s jurisdiction nor related to an existing preliminary examination, investigation or prosecution, and therefore warrant further factual and legal analysis by the Office.

This new section contains discussion of:  North Korea (dual nationals), North Korea (overseas laborers on the territories of States Parties), and Philippines (South China Sea).

At the Prosecutor’s accompanying briefing on Friday December 6, 2019, many representatives of States Parties and members of civil society were present.  Civil society members voiced several extremely heartfelt pleas for the OTP to make more progress in various of the situation countries.  While being sensitive to these interventions, the Prosecutor also explained the reality that the current budget and the limitations it imposes will force her office to “prioritize,” thereby delaying the OTP’s work in some situations.

 The impressive number and diversity of side-events & civil society engagement

While a few side-events have already been covered by prior blog posts, the sheer number of events (related to justice in Myanmar, Darfur, Syria, and many, many more) was extremely impressive.  My only regret was that (with the ASP shortened to 5 actual and 6 scheduled days), it was impossible to attend many of the side-events as a number occurred simultaneously.  The ASP has become quite a gathering place for civil society members from around the world and States Parties interested in advancing (through many different approaches) the pursuit of international justice as well as prosecution of core crimes within national court systems.

The participation of civil society in large numbers at each ASP is largely attributable to the tireless work of the Coalition for the International Criminal Court (“CICC”).  The CICC was ably convened this year by Melinda Reed as Acting Convenor following the retirement of William R. Pace.

The Rome Statute and Cyberwarfare

While many side-events deserve their own blog posts, I will call attention to one that addresses a relatively new area (for ICC followers at least).  It was a side-event held Monday December 2 entitled “The Application of the Rome Statute to Cyberwarfare:  The International Criminal Court’s Jurisdiction over the Crime of Aggression.”  The panel featured Stefan Barriga (Minister and Deputy Ambassador, Liechtenstein Embassy in Brussels) as moderator, and myself and Don Ferencz (Convenor of the Global Institute for the Prevention of Aggression) as panelists.  It was sponsored by Argentina, Austria, Belgium, Liechtenstein, and The Global Institute for the Prevention of Aggression.

The discussion focused on how a cyberattack (if it reached a certain threshold of gravity) could potentially be covered by the ICC’s crime of aggression, particularly if launched by a state actor, and how a cyberattack by a non-state actor potentially could be covered by Article 8 war crimes and Article 7 crimes against humanity.  These issues will be pursued further in meetings of the newly formed Council of Advisors on the Application of the Rome Statute to Cyberwarfare, co-sponsored by Argentina, Austria, Belgium, Estonia, Liechtenstein, Luxembourg, Spain, Switzerland, and The Global Institute for the Prevention of Aggression, and Chaired by Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations.  Focus on the application of the Rome Statute to cyberwarfare illustrates one of the ways that the Rome Statute is potentially broad enough to address new challenges and new forms of warfare, and presents an area that should be of interest to many states that are increasingly facing such attacks.  It might even persuade some States Parties that have not yet ratified the ICC crime of aggression amendment, to see it in a potentially new light.

 Challenges ahead

With a huge number of preliminary examinations and investigations, the ICC has much work facing it, and it will be a challenge how much can be accomplished both due to budgetary limitations but also a frequently hostile political landscape.  For example, when both the Philippines and Burundi withdrew from the Rome Statute, while those countries are supposed to have continuing obligations to cooperate with the ICC, for the OTP to move forward most certainly becomes much more difficult.  While the reasoning contained within the Pre-Trial Chamber’s decision dismissing the OTP’s request to proceed with the Afghanistan investigation seems weak, if the Appeals Chamber reverses the decision and the Court proceeds, there undoubtedly will be significant hurdles to face.  Yet, at the end of the day, that seems exactly what the Court was designed to do:  to pursue difficult cases, particularly against high-level accused, where national systems are unwilling or unable to do so—remembering that there is always the initial choice for national authorities to conduct their own investigations and/or prosecutions, obviating the need for the ICC to play any role.  Additional challenges will be to ensure that at the conclusion of the review process, the ICC and ASP ensure that recommendations designed to strengthen the Court are effectively implemented.

ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

Gender-based crimes: A monumental day for the ICC

When it comes to prosecuting sexual and gender-based crimes, there have been few days as significant as today in the ICC’s twenty-one-year long history. The day began with a conviction for sexual violence crimes against male and female victims in the Ntaganda case, followed by the first attempt in any international criminal court or tribunal to prosecute gender-based persecution.

Rosemary Grey (University of Sydney) and Indira Rosenthal (University of Tasmania)[1]

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Ethics and the Law: Journalists and International Criminal Tribunals (part 2)

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

In part 1 of this post, we described how journalists recounted their experience of testifying at high-profile international criminal trials. At the same event, legal practitioners also gave their thoughts on the role of journalists in such trials.

The lawyers’ view

The next speaker is the Rt Hon. Lord Justice Adrian Fulford, who was elected to serve as a judge before the ICC for a term of 9 years. Tapping into his wealth of experience, Sir Adrian acknowledges the shortcomings of international justice: trials are too lengthy, trials are too costly, not enough cases are brought before the ICC. The current system of international criminal trials, he says, is an intimidating slow-moving machine, something akin to “a Gilbert & Sullivan operetto” taking place in large surroundings, and could benefit from more imaginative ways of giving evidence to make the process less intimidating for witnesses. It is increasingly difficult to get people to testify, Sir Adrien says, but journalists tend to make good witnesses, as the essence of their role is to bear witness to events.

Wayne Jordash QC, of Global Rights Compliance, is more ambivalent: to him, journalistic evidence does not have any heightened probative value. While Jordash emphasizes the role of journalists as watchdogs as crucial (perhaps now more than ever), and agrees that photo and video evidence is critical, he suggests that journalists’ additional testimony does not have a huge bearing on a case. However, journalism is crucial in another, often ignored way: in pushing the information out and catching society’s attention. Through their reporting on human rights violations in the news, war journalists help keep human rights violations in the news cycle – this, Jordash says, helps mount and maintain support, which can in turn lead to better funding to combat such violations.

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Ethics and the Law: Journalists and International Criminal Tribunals (part 1)

Seyi Rhodes Journalists Event

Seyi Rhodes recalls giving evidence at the Gbagbo trial before the International Criminal Court.

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

The toll it takes to testify

The event started with the screening of a short, harrowing extract of the 1992 documentary Omarska’s Survivors: Bosnia 1992.

As the lights come back on, we hear from the first panelist, former Guardian and Observer reporter Ed Vulliamy. He is familiar with those images – in fact, he was there when they were filmed, as he and British journalist Penny Marshall managed to gain access to the infamous Omarska concentration camp and exposed the dire conditions of living for prisoners there.

A certain weariness shows on the face of Vulliamy, who explains that they reported the atrocities in Bosnia for “three effing years” before things started to change. Vulliamy bore witness to many human rights violations on the ground, and later repeated that exercise in a different, more judicial setting years later, as he became the first journalist since the Nuremberg trials to testify at an international war crimes tribunal. In total, he testified in ten trials for the prosecution at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), including those of Bosnian Serb leaders Radovan Karadžić and General Ratko Mladić.

Would I do it all again?“, Vulliamy wonders out loud. He seems ambivalent. He stresses the difference between objectivity and neutrality; journalists have a duty to be objective, he notes, but as human beings they also cannot stay neutral in the face of horrors and wrongdoing. His answers, however also reveal the personal and mental toll it takes to re-live those experiences in front of a tribunal.

That personal toll is something that two other journalists present that night are all too familiar with.

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