international justice

‘Last resort:’ A final course of action, used only when all else has failed (Oxford Dictionary).

/ Sarah P Nimigan / Leave a comment

The Seventeenth Assembly of States Parties (ASP) has closed and one key takeaway is the need to have realistic expectations with respect to the role and capacity of the International Criminal Court (ICC) or ‘Court.’ This theme was woven into numerous side-events, especially those concerning complementarity and universal jurisdiction. 2018 marks the 20th anniversary of the Rome Statute. While the ICC continues to grow in its reach and impact, the institution has inherent and purposeful limitations. A fair assessment of the Court needs to be couched in terms of its intended scope, purpose, and place in the global landscape, which is highly specific. 

At the side-event “Justice, peace and security in Africa: deepening the role of the ICC,” hosted by the Coalition for the International Criminal Court and the African Network on International Criminal Justice, Phakiso Mochochoko (Office of the Prosecutor [OTP]) emphasized that the first question should never be, “Why isn’t the ICC doing something?” Such questions can and should be asked of the state and its institutions first. The ICC was never intended to be a first-responder or a sole responder.[1]The trigger mechanism for the Court’s involvement relies on the unwillingness or inability of the concerned state to investigate and prosecute those most responsible for atrocious crimes. This requires a lack of political will, a lack of capacity, or both. The scope is intentionally and inherently limited. Several side-events at the ASP reiterated that the ICC is one judicial mechanism for accountability, and one of last resort.[2]Scholars and practitioners need to focus on states, which have a primary obligation to investigate and prosecute these crimes in the interest of peace and security.

To this end, at the side-event “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?” hosted by Luxembourg, North Korea, and Open Society Justice Initiative, Pascal Turlan (OTP) highlighted the importance of capacity building. Capacity building refers to both the legal framework and training of personnel in domestic institutions. Pascal sketched a coordinated relationship between the ICC and national mechanisms under the auspice of ‘positive complementarity.’ The ICC is willing to engage in cooperation measures such as information sharing or to engage in mutual assistance strategies in an effort to encourage national authorities to develop cases, or to assist in the investigation or prosecution of cases.[3]As noted above, if the ICC can prosecute, they can only do so against persons who bear the greatest responsibility for the alleged crimes. It would be up to national institutions to investigate and prosecute all others responsible and hold them criminally accountable. Theoretically, positive complementarity is highly useful in this regard and it should contribute to the proliferation of accountability and justice. 

Similarly, at the event titled “Commemorating the 20thanniversary of the Rome Statute,” H.E. Kimberly Prost expressed that complementarity should involve domestic, regional, and extra-territorial jurisdictions to battle impunity. She explained that this may require innovative solutions, such as those like the new court in Central African Republic and the IIIM in Syria, for example. Judge Prost said that productive dialogue cannot begin and end with a critique of the Court. Since no state can credibly oppose justice, alternative solutions need to be pursued. The capacity of states needs to be built so that the ICC becomes redundant, as intended by the drafters of the Rome Statute. Judge Prost’s contributions reflect a ‘back to basics’ approach. Complementarity is the bedrock of the Rome Statute System but is often neglected. This subjects the ICC to criticism and claims that it is not doing enough. States should look inward first to find ways to investigate and prosecute, either independently or with cooperative assistance and support from the ICC and/or other institutional mechanisms and/or organizations.  

Similar views were expressed by Karim Kham, Alain Werner and Carmen Cheung at the side-event “Closing the impunity gap: a pragmatic approach to universal jurisdiction.” Each one of these panelists explained that extra-territorial/judicial mechanisms, ad hoc tribunals, or other similar mechanisms are not mutually exclusive with the ICC. Karim said that it is important to reiterate that the ICC does not have a monopoly on justice. He explained that the goal is to close the impunity gap by whichever way(s) possible because justice is not politicized, it is ‘everybody’s business.’ 

The ICC plays an important role in the global landscape, but as pointed out by the intervention of Elise Keppler of Human Rights Watch at the side-event, “From Bemba to Rombhot: Reflections & Perspectives for the ICC in the Central African Republic,” the ‘one case, one suspect’ approach is likely insufficient for dealing with the broader realities of conflict. It is posed here that an ideal complementary schema might have national courts investigate and prosecute foot soldiers, a special/hybrid tribunal address mid-level officers and commanders, and the ICC deal with those most responsible for organizing and orchestrating the crime(s). This would be comprehensive and provide a greater possibility for accountability at all levels and sides of the conflict. Although social justice and legal justice are not the same, greater accountability and a strengthening of the rule of law at the local level can contribute to a (more) stable post-conflict environment. 

A holistic approach to justice will demand more than the ICC can provide. The Court is limited in its monetary and human resources, as well as its jurisdiction and scope. This is not to say that it has no utility or value. Rather, a more nuanced approach to complementarity can present important opportunities for justice and accountability by capacity building, strengthening domestic legal systems, and closing impunity gaps. This is an important step towards the goal of universal jurisdiction for atrocious crime. Framing critiques of the ICC within the principle of complementarity and universal jurisdiction can change the conversation in some significant and important ways. The ICC cannot do everything, nor is it supposed to. The potential role for complementary mechanisms to the ICC may be the best way to move the conversation (and the international criminal justice project) forward.   

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

[1]The Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998): Preamble, Article 17, “The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  

[2]This was a strong focus at the December 5 side-event, “Commemorating the 20thanniversary of the Rome Statute,” co-hosted by the Netherlands, Uganda, and Africa Legal Aid. This was a focus of H.E Kimberly Prost.

[3]There are limitations to this, for example the ICC will not share information if the alleged suspect could receive the death penalty, or if basic rule-of-law principles such as a right to a fair trial are not firmly established in the domestic context.

More Than Fair: GQUAL Campaign Mobilizes Law to Change Picture of International Justice

/ Mary Dahdouh / Leave a comment

Globally, women occupy only 33% of the 599 seats found on the 91 adjudicatory bodies of international law. But when one excludes the committees and working groups on the rights of women and children, that number drops to 24% of the remaining 533 seats. Only one woman sits on each of the Inter-American Court of Human Rights, the appellate body of the World Trade Organization, and the Committee on the Rights of Persons with Disabilities. The paucity of women on international bodies reveals a gross imbalance of power that tips against a community that makes up roughly half the world’s population.

During the first week of October, ambassadors, legal experts, practitioners, and activists from around the world gathered in The Hague to strategize changing this male-dominated picture of international justice during the GQUAL Campaign’s international conference marking its second anniversary. The Action Plan adopted at the conference begins with an important reminder that achieving gender equality on international bodies is not solely a policy of fairness and institutional legitimacy but an action mandated by law. Together with the International Human Rights Law Clinic at UC Berkeley School of Law, GQUAL released at the conference a working paper that identifies the international legal basis for the Campaign’s aim of realizing gender parity.

States establish the nominating and voting procedures that apply to any particular international body, making them ultimately responsible for this state of affairs. Though political will is needed to remedy the stark and pervasive gender imbalance on international bodies, reform should be guided by international law and State practice, both of which support the fair representation of women in global governance.

The positive obligation to eliminate sex-based discrimination is deeply rooted and widely reflected in international human rights law. Numerous instruments, most notably the Convention on the Elimination of all Forms of Discrimination Against Women, not only prohibit States from adopting discriminatory laws but also require that States work to dismantle obstacles that result in discriminatory outcomes for women. The working paper looks beyond CEDAW for additional support to further strengthen the legal foundation of the GQUAL Campaign.

We identified several human rights treaties and policy statements that embody the non-discrimination principle and which enumerate three international human rights norms that require gender equality within different contexts relevant to the GQUAL Campaign—the right of access to decision-making within public bodies; the right of access to equal opportunity in employment; and the right of access to justice. In short, women on equal terms with men, are entitled to shape our governments, to employment that reflects our capabilities, and to the protection, recognition, and advancement of international law. Continue reading →

Announcements

/ Osazenoriuwa Ebose / Leave a comment

New Grants Available

Two EU grants advertised for work relating to children’s rights, specifically focusing on children’s rights in the context of migration/asylum and children-centred approaches to child victims of violence. Please forward on to European colleagues you think might be interested. For a link to the grants, click here.

Jobs

Manager, Ferencz International Justice Initiative

The United States Holocaust Memorial Museum is looking for a dedicated and passionate individual to join the Museum’s team and help support our mission. The Simon-Skjodt Center for the Prevention of Genocide works to ensure that the United States government, governments around the world, and multilateral organizations institutionalize structures, tools, and policies to effectively prevent and respond to genocide and mass atrocities.

The Simon-Skjodt Center is seeking a Manager, Ferencz International Justice Initiative whom will work under the supervision of the Simon-Skjodt Center’s Deputy Director and work with the Ferencz International Justice Initiative Senior Consultant on a day-to-day basis in developing and implementing the Initiative’s objectives. The purpose of this position is to provide leadership in planning and implementing the work of the newly established Benjamin Ferencz International Justice Initiative. This initiative was established by a gift from Benjamin Ferencz, the last surviving prosecutor from the Nuremberg Tribunal, to strengthen the rule of law and the legal architecture for atrocity prevention and response; promote justice and accountability for atrocities committed in countries of concern; and establish a significant new locus for policy and research on the use of international justice mechanisms to deter, prevent, and respond to mass atrocities.

This is a full-time donated position (non-Federal) paid with the Museum’s donated funds. Salary is commensurate with experience.

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Learning About International Justice on the Ground—The Balkans & War Crimes (Part III)

/ Belinda Cooper / Leave a comment

By Belinda Cooper and Jennifer Trahan

SREBRENICA

The one part of our trip (see Parts I and II for prior travels) that participants are unlikely to forget is a day spent in and around the massacre site of Srebrenica, where 8,300 men and boys were executed in the days starting on July 11, 2005. As we drive to Srebrenica and admire the beautiful mountain scenery and picturesque small farms, it is hard to fathom how ethnic tensions reached that horrible nadir of inhumanity.

Memorial to Serb Victims

Our first visit brings home with great force the stark contrast between Muslim and Serb versions of historical truth—a central concern of transitional justice that most of our students have likely encountered only in the abstract until now. It involves a brief stop at the location of a mass atrocity: the Kravica warehouse, where an estimated 1,000–1,500 Bosnian Muslims were murdered. Because, at that point, we are deep in the territory of Republica Srpska, not a sign marks the spot. Indeed, last summer, the 20th anniversary of the massacre, this site of horror was covered with posters of Vladimir Putin, meant as an anti-EU protest and a call for Russia to veto an upcoming UN resolution on the Srebrenica genocide. By contrast to the lack of commemoration at this site, nearly across the street a large cross looms over a memorial to Serb victims of past wars. Our Bosnian guides always advise caution when we seek to photograph these sites, but last year, due to the tensions unleashed by the 20th anniversary commemorations, we were told not to even leave our bus.

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Kravica Warehouse

 

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Vladimir Putin posters in Republica Srpska

 

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Memorial to Serb Victims

 

In Bratunac, we pass Hotel Fontana—the command headquarters of General Mladic, currently on trial in The Hague, who led the assault on Srebrenica. We have also been able to visit another memorial in Bratunac, this one to Serbs, mainly soldiers, killed around Srebrenica—a further disconcerting example of contrasting “truths” as well as denial on the part of perpetrator societies. The actual town of Srebrenica, where we stop for lunch, is so small that it is hard to imagine it swollen with 40,000 desperate Bosnian Muslim families seeking sanctuary in the so-called UN “safe haven,” which turned out to be neither “safe” nor a “haven.”

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At the Potočari memorial (whose creation was mandated by the international community, since we are still in Republika Srpska, which would have created no such memorial), we lay a wreath to the victims and walk silently among the graves. In the battery factory where men and boys were separated from the women, we tour the memorial room, including the last effects of some of the victims, and read VRS (Army of Republika Srpska) wire intercepts regarding the disposal of “packages” (cynical code for bodies). The use of the word “genocide” throughout the memorial site brings home one powerful legacy of the ICTY: its determination that the massacre at Srebrenica met the legal definition of genocide. The preserved UN (“DUTCHBAT”) barracks, complete with the peacekeepers’ sometimes racist graffiti, provides a graphic reminder of the UN’s powerlessness to prevent that genocide.

As if our visit isn’t devastating enough, we listen spell-bound to a survivor of the column of men who tried to escape the Srebrenica executions by walking through miles of hostile territory. He was one of the few who made it to the Free Territory of Tuzla. We have also had the chance to meet with one of the “Mothers of Srebrenica” who lost all the male members of her family, including her two sons. She returned to Srebrenica, she says, unlike many other Muslims, in order to be reminded of her children by two trees planted in her front yard when they were small. At this point, there is hardly a dry eye in the room–and students begin to understand on a much more fundamental level what, exactly, we are seeking justice for.

Continue reading →

Go On! New LLM in International Justice at Maynooth University

/ Karen Hoffmann / Leave a comment

Starting in September 2015, Maynooth University will offer an LLM in International Justice to law graduates and graduates of cognate disciplines (e.g. international relations, social studies, sociology, politics, and other inter-disciplinary degrees which have a focus on the international community order).

Further information can be found on the program’s website and in this brochure: LLM Justice Flyer

Please contact Dr Noelle Higgins, the Programme Director, with any queries, at noelle.higgins [at] nuim.ie.

Write On! Call for Papers: International Symposium on the Legacy of the ICTR

/ Karen Hoffmann / Leave a comment

unictr

The International Criminal Tribunal for Rwanda is organizing an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania, on 6-7 November 2014, and has issued a call for papers:

With the ICTR’s closure scheduled for 2015, the Symposium aims to provide an opportunity for experts in the field of international justice to reflect on the ICTR’s contributions to the development of international humanitarian law, administration of justice, and promotion of the rule of law, particularly in the Great Lakes Region. We invite experts in the field to submit proposals for papers to be presented during the Symposium. Papers should focus on the topics indicated in the draft program, which can be found here (pdf).

Those interested in presenting a paper at the Symposium should submit an application including a 300-word abstract summarizing the proposed paper via email to the ICTR Legacy Committee at ictrlegacy@un.org. Applications must include:

1) A 3o0-word abstract of the proposed paper;

2) The author’s name, title, and affiliation (if any);

3) The author’s Curriculum Vitae/Résumé; and

4) The author’s contact details including phone number and email address.

All applications must be received no later than 15 August 2014.

Successful applicants will receive an invitation to submit a paper by 5 September 2014 and a first draft of papers will be expected to be submitted by 17 October 2o14. Submission of an application will be considered as acknowledgement that the author is available to be in Arusha from 5-8 November 2014 to participate in the Symposium. The ICTR will endeavor to cover travel and accommodation for successful applicants.