IHL Dialogs: Prosecutors’ International Criminal Law Round-Up

I had the pleasure of attending the 2014 IHL Dialogs last week in lovely Chautauqua, NY.  The event—co-hosted by IntLawGrrls, the Robert J. Jackson Center, the American Bar Association, and the American Society of International Law (among others)—is an annual gathering of international criminal law professionals, government officials, and academics in a relaxed setting to take stock of the field, evaluate recent developments, and think about how the international justice system will and should develop in the future.  We’ve covered prior Dialogs in the past on these pages (see here and here).

The Gambia Trialprosecutors IMG_6580

The event began with a fascinating discussion at the Robert H. Jackson Center about one of the first efforts at hybrid justice: the 1981 trials of would-be coup leaders in the Gambia.  The coup, staged by local actors, was rumored to be part of a Pan-African Marxist conspiracy spearheaded by Muammar Gaddafi.  In response, the Gambia invoked a mutual defense pact with Senegal, whose troops helped to quickly oust the rebels.  Thousands of people were detained in connection with the uprising. Fearing that key members of the government and judiciary had been involved in the attempt, the Gambia established special tribunals staffed by lawyers and judges from the British Commonwealth to assess the legality of the detentions and prosecute those who were deemed most responsible.  All told, 45 people were tried in 4 years.

The conversation at the Jackson Center involved Hassan Jallow (ICTR Chief Prosecutor) and Fatou Bensouda (ICC Chief Prosecutor), who were young Gambian professionals working in the judicial system at the time, and Sir Desmond Da Silva (United Kingdom) who, as an expert on the 1351 English Treason Act, was seconded to help with the trial. Jallow covers the event in more detail in his recently-published memoire, Journey for Justice.

Ambassador Tiina Intelmann on the Worrisome State of International Justice

Ambassador Tiina Intelmann (Estonia), President of the ICC’s Assembly of States Parties (ASP), gave a sobering keynote address at the Chautauqua Institution about the state of international justice.  (The YouTube video is here). Intelmann observed that the security situation in the world changed dramatically over the summer, suggesting that Francis Fukuyama was prematurely optimistic in his essay, The End of History.  She noted that the ICC was established during the peek of global optimism and unanimity about the prospects of international justice, but surmised that such an effort would fail if it were attempted today.  Although the number of cases before the Court (21), the range of situations being referred to the Court (8), and the number of requests for the Court to get involved in conflicted areas around the world (1000s) have reached unprecedented levels, support for the Court is waning in some circles.  This is true most notably among certain members of the African Union, who have indicated that maintaining cooperation and a positive attitude toward the Court mayTiina IMG_6507 generate economic and political problems.  She cautioned that this ambivalence is not limited to Africa, however.  Even though one European country has annexed part of another European country, some European states—including long-time supporters of the Court and of international law—are “remaining neutral” and raising concerns about the local impact of the sanctions that have been imposed.   She observed that when complicated situations come closer to home, states start thinking more parochially about their own national interests.

Ambassador Intelmann also argued that while Article 27 of the ICC Statute—withholding immunities traditionally enjoyed by heads of state—was a major achievement in Rome, the Kenya and Darfur situations reveal that prosecuting sitting heads of state is not something the international community is very good at.  She lamented the fact that the ASP, which was designed as an administrative body to deal with budgetary and other more quotidien issues, turned itself into a political body at its last session when considering proposals to undo Article 27 and limit the Court’s ability to prosecute heads of state.  These proposals remain on the table and will likely appear on the ASP’s agenda again soon.

Prosecutors’ Roundup

A highlight of the IHL Dialogs is always the prosecutors’ roundup, which is followed by a year-in-review offered by a leading ICL academic.  Professor and Dean Valerie Oosterveld of Western Law in Ontario, Canada, delivered the 2014 ICL Year in Review.  The material below is a composite of several panels convened over the course of the Dialogs that covers some highlights of the year’s events.   Continue reading

Sex and International Tribunals: The Erasure of Gender from the War Narrative

sex and intl tribunalsThe gendered dimensions of violence are evident in the case law of both the International Criminal Tribunal for Rwanda and the Sierra Leone Special Court and in the final report of the Sierra Leone Truth Commission. Crimes such as sexual slavery as a crime against humanity, and rape as a form of genocide are adjudicated upon. My book Sex and International Tribunals does not claim otherwise. Rather, it asks the reader to interrogate the process of international justice for its prejudices and patriarchal culture which lead to an essentialized yet increasingly iconic image of the (brown) woman as a raped woman. The book also posits that sustaining this iconic image necessarily conjures up the menacing specter of a militarized African masculinity.

Writers like Dubravka Zarkov, Alcinda Honwana, Christopher Taylor, Mats Utas and Carolyn Nordstorm have made significant contributions to our understanding of gender and its impact on the nature of political violence in Africa and beyond. Sex and International Tribunals argues that in comparison, legal scholars are wont to deny any gendered complexity in the war narrative. The term ‘gender justice’ has come to signify the fiction that (i) gender and feminist theories have been mainstreamed into the legal construction of war crimes and (ii) women victims have been ‘given a voice’ by the tribunals.

Sex and International Tribunals critiques reductionism by addressing the outcomes for women, when they are excluded, as well as included, into the war narrative: Thus, when  a woman testifies in court she is required to present a narrative of violence that is sex-based and not gender-based. For example, the girl soldier is rarely called as a witness in the prosecution of the war crime of child conscription. Boy victim-witnesses are regarded by prosecutors as the genuine child soldiers, whilst girls were merely concubines, camp followers, rebel wives, prostitutes, sex slaves, bush brides, etc. The girl soldier testifies chiefly about conjugal or coital harms, i.e. sex-based narrative. How many men raped her and in what sexual positions? This limited scope of her testimony cannot expand the gender analysis of child enlistment and conscription. It only elaborates on the expanding category of the sexual depravities of armed combatants.

Continue reading