Two interesting articles on international criminal law came out of the New York Times stable this weekend.
Jean-René Ruez was an international war crimes investigator in the former Yugoslavia. An account of his experiences is published in the IHT. Ruez's motto is clearly, and understandably, "No peace without justice." But what happens when those goals come into conflict?
"The Pursuit of Justice vs. the Pursuit of Peace" reports on the plan of the ICC Prosecutor to seek an arrest warrant for Omar Hassan al-Bashir, Sudan’s president tomorrow.
The predictable responses have included fears that this will:
(1) jeopardise the safety of the joint UN/African Union peacekeepers - presently unable to defend even themselves properly - and other humanitarian workers in Darfur, already accused of being spies for the ICC;
(2) be an obstacle to any kind of peace settlement; and
(3) destabilise the region, as an already paranoid regime - armed by China - resorts to increasing violence.
The permanent International Criminal Court could well do more harm than good here. There is simply no realistic prospect of Omar Hassan al-Bashir being arrested in the short term. As I've outlined below, on the topic of Zimbabwe, criminal regimes simply cannot be prosecuted before there is stability in their country and a transition of power,which will likely require their cooperation.
The ICC prosecutor is an independent officer, who has a job to do - and he is doing it. The problem here is not him fulfilling his duty, it's that the Security Council approved referring Darfur to the Court as a substitute for taking any more effective action in the first place.
Perhaps in the long run, this will bring pressure to bear on the Sudan that will produce constructive results; but in the short term, it carries incredible risks for those on the ground in Darfur.
PS: for the more optimistic among us, Richard Goldstone has published possibly the best set of counter-arguments to my position. (Although the argument that "the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum" seems especially optimistic.)
Showing posts with label International criminal law. Show all posts
Showing posts with label International criminal law. Show all posts
Sunday, July 13, 2008
Saturday, July 5, 2008
Mugabe and crimes against humanity
Any number of bloggers and mainstream journals have begun to accuse Robert Mugabe of crimes against humanity. The Economist has one of the more sensible pieces.
Could Mugabe be charged with international crimes? Simply put, crimes against humanity are acts such as murder, torture, rape and politically-motivated severe human rights violations “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (see Article 7, Statute of the International Criminal Court). In addition, such an attack must be committed, at least under ICC law, “pursuant to or in furtherance of a State or organizational policy to commit such attack” (see the ICC Elements of Crimes).
A widespread and systematic attack against opposition supporters, planned and orchestrated by Zanu-PF and the government of Zimbabwe certainly appears to have proceeded the second-round presidential elections.
There are two principal obstacles to an ICC indictment for Mugabe. The first is that, as Zimbabwe is not a party to the Court’s Statute, the Security Council would have to refer the situation to Zimbabwe. Given Russia and China’s stance on intervention in another State’s “internal affairs”, that seems unlikely.
The second obstacle, and I say this with some trepidation, is common sense. Counter-intuitive as this may sound, any effort – even a successful one – to remove Mugabe is likely to be an obstacle to a peaceful transition in Zimbabwe.
Mugabe is not necessarily the largest part of the problem. As Allan Little of the BBC puts it:
A transition to a peaceful and stable Zimbabwe will, in the short term, require that all these men be bought off – odious a prospect as that may be.
So what role international criminal law? Is Geoffrey Robertson right to claim that justice is a necessary precondition to peace? In my view, yes and no. There will be no lasting peace without justice, but attempting to make it a precondition in every case risks destabilising post-dictatorship transitional societies.
The best option, in many ways, is the Argentine solution: allow the outgoing government to cover themselves in amnesty laws as the price of securing a stable democracy; then allow campaigners, national parliaments and courts, and international attempts at prosecution to progressively repeal those amnesties and put the criminals on trial.
Some might ask, but what would you have the West do? I actually think the very painful answer may be: if there is no reasonable prospect that anything you could do would make things any better, the right thing is to do nothing at all. Indictment of Mugabe, the laughable prospect of sanctions (how do you impose sanctions on a ruined economy?), or outright military intervention will only drive this cabal and their supporters to further violence. Indeed, any such action just makes Mugabe’s cabal and their ridiculous western-conspiracy rhetoric look more credible.
There will come a time to indict these men, but it may have to follow – not precede – a new internal constitutional settlement in Zimbabwe. In that process, only the voices of neighbours are likely to have any influence at all.
Could Mugabe be charged with international crimes? Simply put, crimes against humanity are acts such as murder, torture, rape and politically-motivated severe human rights violations “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (see Article 7, Statute of the International Criminal Court). In addition, such an attack must be committed, at least under ICC law, “pursuant to or in furtherance of a State or organizational policy to commit such attack” (see the ICC Elements of Crimes).
A widespread and systematic attack against opposition supporters, planned and orchestrated by Zanu-PF and the government of Zimbabwe certainly appears to have proceeded the second-round presidential elections.
There are two principal obstacles to an ICC indictment for Mugabe. The first is that, as Zimbabwe is not a party to the Court’s Statute, the Security Council would have to refer the situation to Zimbabwe. Given Russia and China’s stance on intervention in another State’s “internal affairs”, that seems unlikely.
The second obstacle, and I say this with some trepidation, is common sense. Counter-intuitive as this may sound, any effort – even a successful one – to remove Mugabe is likely to be an obstacle to a peaceful transition in Zimbabwe.
Mugabe is not necessarily the largest part of the problem. As Allan Little of the BBC puts it:
Robert Mugabe is now cocooned with a group of men who came through the liberation struggle with him. ...
When the opposition talk of allowing Mr Mugabe to retire with dignity, these men know that this magnanimity does not extend to them; that a post-Mugabe Zimbabwe will expect a holding to account.
Mugabe, in a sense, is their prisoner. They won't let him go quietly, leaving them exposed to revenge.
Fear is the means by which they stay in power - the people's fear of them. But they too live in fear, fear of the reckoning that the people will, themselves, one day, demand.
A transition to a peaceful and stable Zimbabwe will, in the short term, require that all these men be bought off – odious a prospect as that may be.
So what role international criminal law? Is Geoffrey Robertson right to claim that justice is a necessary precondition to peace? In my view, yes and no. There will be no lasting peace without justice, but attempting to make it a precondition in every case risks destabilising post-dictatorship transitional societies.
The best option, in many ways, is the Argentine solution: allow the outgoing government to cover themselves in amnesty laws as the price of securing a stable democracy; then allow campaigners, national parliaments and courts, and international attempts at prosecution to progressively repeal those amnesties and put the criminals on trial.
Some might ask, but what would you have the West do? I actually think the very painful answer may be: if there is no reasonable prospect that anything you could do would make things any better, the right thing is to do nothing at all. Indictment of Mugabe, the laughable prospect of sanctions (how do you impose sanctions on a ruined economy?), or outright military intervention will only drive this cabal and their supporters to further violence. Indeed, any such action just makes Mugabe’s cabal and their ridiculous western-conspiracy rhetoric look more credible.
There will come a time to indict these men, but it may have to follow – not precede – a new internal constitutional settlement in Zimbabwe. In that process, only the voices of neighbours are likely to have any influence at all.
Sunday, June 29, 2008
Update: ICC Lubanga Trial
Mr Lubanga did not walk free on Tuesday. The International Criminal Court found his release would be premature while the Prosecutor goes on to appeal the ruling requiring disclosure of information initially gathered on terms of confidentiality.
As noted below, much of that information was provided by the UN and it is the UN which must waive confidentiality.
The Prosecutor has said of his appeal:
If, however, the words "the basic framework ... is settled" and the worrying references to "efficiency" and "respect for the institutions that provide information" all add up to an assertion that existing practices are fine and all that judges require is a clearer explanation on appeal, then we have a real problem.
The right to a fair trial cannot and should not be balanced against "efficiency" of the value of the ICC's working relationship with the UN. If the ICC cannot proceed with a trial fairly (a different thing from "perfectly"), it should simply not proceed at all.
Whatever the outcome of the Lubanga appeal, it looks set to have consequences for the new ICC cases opening against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui.
As noted below, much of that information was provided by the UN and it is the UN which must waive confidentiality.
The Prosecutor has said of his appeal:
I am ambivalent about this. If "the basic framework to solve this particular problem is settled" means that the UN will now allow the defence and the Court to see this material in a full and proper way, then that's fine.“The Foundations of the ICC have to be based on high standards and efficiency ... We will harmonise fair trials with respect for the institutions that provide information to us. The basic framework to solve this particular problem is settled with the UN and we will explain this clearly to the judges”.
If, however, the words "the basic framework ... is settled" and the worrying references to "efficiency" and "respect for the institutions that provide information" all add up to an assertion that existing practices are fine and all that judges require is a clearer explanation on appeal, then we have a real problem.
The right to a fair trial cannot and should not be balanced against "efficiency" of the value of the ICC's working relationship with the UN. If the ICC cannot proceed with a trial fairly (a different thing from "perfectly"), it should simply not proceed at all.
Whatever the outcome of the Lubanga appeal, it looks set to have consequences for the new ICC cases opening against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui.
Monday, June 23, 2008
The quiet, procedural death of the International Criminal Court?
Tomorrow, the first man expected to stand trial before the ICC – Thomas Lubanga - may simply walk away to board the first plane out of the Hague, following three years in prison and without his trial having ever officially commenced.
This staggering outcome follows from a practice of the Prosecutor’s office that the Trial Chamber described in a decision on 13 June as a “wholesale and serious abuse”. Without accusing the Prosecutor’s office of bad faith, it seems clear that a procedural device for collecting evidence under conditions of anonymity in exceptional and limited circumstances became the Prosecutor’s tool of first resort. As a result, the possibility of running a fair trial was fatally compromised.
Basically, in order to gather evidence, the Prosecutor’s office promised suppliers of information that the evidence they turned over would be kept confidential – even from ICC judges. The intention seems to have been that if any information was identified as needed to run the trial, the prosecution would go back to the suppliers and negotiate for waiver of confidentiality.
The flaws in this approach were:
The prosecution’s argument boiled down to “well, in fact, nothing we’re withholding would materially aid the defence or alternative evidence is available, so it doesn’t matter.” The Trial Chamber, quite properly, asserted that it was for the Court, not the Prosecutor, to weigh the evidence and the defendant was entitled to all potentially relevant prosecution material, not a selection of it.
I have more sympathy for the prosecution argument that UN and NGO witnesses in the field work under difficult conditions and confidentiality was needed to secure their cooperation (para 26). However, the Prosecutor’s office made a damaging concession (para 72), saying in its own evidence:
This staggering outcome follows from a practice of the Prosecutor’s office that the Trial Chamber described in a decision on 13 June as a “wholesale and serious abuse”. Without accusing the Prosecutor’s office of bad faith, it seems clear that a procedural device for collecting evidence under conditions of anonymity in exceptional and limited circumstances became the Prosecutor’s tool of first resort. As a result, the possibility of running a fair trial was fatally compromised.
Basically, in order to gather evidence, the Prosecutor’s office promised suppliers of information that the evidence they turned over would be kept confidential – even from ICC judges. The intention seems to have been that if any information was identified as needed to run the trial, the prosecution would go back to the suppliers and negotiate for waiver of confidentiality.
The flaws in this approach were:
- this is not what Article 54 of ICC Statute, on a plain reading, allows the prosecutor to do (they are limited to using confidentiality only to gather leads which might point to evidence for use in the trial);
- it meant the prosecution was not in control of the evidence, the witnesses were (and for “the witnesses” read “the United Nations”); and
- it left the prosecution wide open to a defence allegation that they were withholding potentially exculpatory evidence that they were obliged to disclose, thus preventing a fair trial.
The prosecution’s argument boiled down to “well, in fact, nothing we’re withholding would materially aid the defence or alternative evidence is available, so it doesn’t matter.” The Trial Chamber, quite properly, asserted that it was for the Court, not the Prosecutor, to weigh the evidence and the defendant was entitled to all potentially relevant prosecution material, not a selection of it.
I have more sympathy for the prosecution argument that UN and NGO witnesses in the field work under difficult conditions and confidentiality was needed to secure their cooperation (para 26). However, the Prosecutor’s office made a damaging concession (para 72), saying in its own evidence:
Of course, there was never any intention ... that these materials were received only for lead [finding] purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission.
That is, the Prosecutor took the view that he could grant confidentiality first, and ask hard questions later. The result was not only a clear breach of the Statute but he also lost the practical power to control evidence, effectively putting UN legal counsel in charge of deciding what would go before the ICC.
As a result the Trial Chamber found that “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.” This is utterly scathing judicial language.
The Chamber stayed the trial indefinitely and will hear an application for Lubanga’s release tomorrow. Unless the Prosecutor secures a wholesale about-face from the UN on the confidentiality of 200 odd documents, procedural justice seems to demand the defendant be released.
The Office of the Prosecutor must be a very unhappy workplace at present. If these are the realities of gathering evidence in the ICC, the prospects of any cases ever commencing seem pretty slim.
Thursday, September 21, 2006
Sudan and the International Criminal Court
It now seems that the 7,000 strong African Union force in Darfur will remain in the Sudan with additional UN support and equipment until the end of the year.
However, it remains a "central plank of Sudan's foreign and domestic policy" to reject an expanded UN presence. Partially, this may be to allow the Sudanese government to pursue a military solution in the Sudan, unhindered by a larger, better-funded UN force with more robust rules of engagement.
In a particularly cheap ploy Sudanese President Omar al-Bashir has suggested that the UN has a colonial agenda, when it is quite clear from the text of the UN Security Council Resolution that any peace-keeping force will only be deployed with Sudan's consent.
The disingenuous nature of the claim is further belied by the fact that Sudan has already admitted 10,000 UN peacekeepers in the South.
Are Sudan's leaders just making political capital from the UN and stalling for time to finish what they've started? Doubtless, but there may be other considerations at play.
As international lawyers, we are often reluctant - as David Kennedy has pointed out - to face up to the idea that our high ideals may have unintended consequences.
The International Criminal Court has been requested by the UN Security Council to investigate whether to lay charges for crimes against humanity against persons involved in the Sudanese civil wars.
The Sudanese government has taken this development seriously enough to establish its own war crimes court, presumably in an effort to block ICC jurisdiction.
The ICC has jurisdiction over crimes of individual responsibility at international law (where the territorial State is unwilling or unable to prosecute them, unless the UN Security Council grants it broader powers).
Critically, the UN Secretary General has warned the Sudanese leadership "may be held collectively and individually responsible for what happens to the people of Darfur if they allow the African Union (AU) mission there to leave and then refuse access to United Nations peacekeepers".
It's not much of a leap to conclude that the Sudanese President is not entirely off-base in:
I want to be very clear: I am a supporter of the ICC. I believe it has a potentially important role to play in ensuring that there is individual accountability for crimes against humanity. However, when referring an investigation to the ICC is used a substitute for taking real and effective action, we risk making things worse, not better.
Anyone who though an ICC investigation was necessary to establish crimes against international law are being committed in the Sudan clearly did not have a newspaper to hand. The referral was clearly a political act. (I am not, however, suggesting the ICC's investigations are anything less than rigorous and impartial.)
International law will not prevent violence and death in Darfur any more than criminal law prevents murder within our own countries. Only policing will. The only way to get a policing force into the Sudan is negotiation (especially as western powers seem to lack the stomach for a hard-line military deployment that really would be tantamount to an invasion force bent on regime change).
It's very difficult to negotiate with someone once you've initiated an independent prosecution against them and theirs. Legal prosecution makes a poor political bargaining chip because once initiated, it's hard to call off.
Referring the Sudanese "situation" to the ICC was a poor substitute for action that may now make what was always going to be a very difficult negotiated settlement next to impossible.
At best, the Security Council should have sent the ICC in after a peace-keeping force, not ahead of it.
However, it remains a "central plank of Sudan's foreign and domestic policy" to reject an expanded UN presence. Partially, this may be to allow the Sudanese government to pursue a military solution in the Sudan, unhindered by a larger, better-funded UN force with more robust rules of engagement.
In a particularly cheap ploy Sudanese President Omar al-Bashir has suggested that the UN has a colonial agenda, when it is quite clear from the text of the UN Security Council Resolution that any peace-keeping force will only be deployed with Sudan's consent.
The disingenuous nature of the claim is further belied by the fact that Sudan has already admitted 10,000 UN peacekeepers in the South.
Are Sudan's leaders just making political capital from the UN and stalling for time to finish what they've started? Doubtless, but there may be other considerations at play.
As international lawyers, we are often reluctant - as David Kennedy has pointed out - to face up to the idea that our high ideals may have unintended consequences.
The International Criminal Court has been requested by the UN Security Council to investigate whether to lay charges for crimes against humanity against persons involved in the Sudanese civil wars.
The Sudanese government has taken this development seriously enough to establish its own war crimes court, presumably in an effort to block ICC jurisdiction.
The ICC has jurisdiction over crimes of individual responsibility at international law (where the territorial State is unwilling or unable to prosecute them, unless the UN Security Council grants it broader powers).
Critically, the UN Secretary General has warned the Sudanese leadership "may be held collectively and individually responsible for what happens to the people of Darfur if they allow the African Union (AU) mission there to leave and then refuse access to United Nations peacekeepers".
It's not much of a leap to conclude that the Sudanese President is not entirely off-base in:
... liken[ing] the prospect [of U.N. force deployment] to an invasion force whose goal is regime change. Analysts say the government in Khartoum fears U.N. forces would arrest suspects likely to be named in any war crimes warrants issued by the International Criminal Court.
I want to be very clear: I am a supporter of the ICC. I believe it has a potentially important role to play in ensuring that there is individual accountability for crimes against humanity. However, when referring an investigation to the ICC is used a substitute for taking real and effective action, we risk making things worse, not better.
Anyone who though an ICC investigation was necessary to establish crimes against international law are being committed in the Sudan clearly did not have a newspaper to hand. The referral was clearly a political act. (I am not, however, suggesting the ICC's investigations are anything less than rigorous and impartial.)
International law will not prevent violence and death in Darfur any more than criminal law prevents murder within our own countries. Only policing will. The only way to get a policing force into the Sudan is negotiation (especially as western powers seem to lack the stomach for a hard-line military deployment that really would be tantamount to an invasion force bent on regime change).
It's very difficult to negotiate with someone once you've initiated an independent prosecution against them and theirs. Legal prosecution makes a poor political bargaining chip because once initiated, it's hard to call off.
Referring the Sudanese "situation" to the ICC was a poor substitute for action that may now make what was always going to be a very difficult negotiated settlement next to impossible.
At best, the Security Council should have sent the ICC in after a peace-keeping force, not ahead of it.
Monday, May 1, 2006
Darfur: background to the conflict in the Sudan
The high-water mark for peace prospects in Sudan probably came in 2004 with an agreement between the UN and the Sudanese government that it would disarm militias and facilitate humanitarian aid efforts. Eventually, 2000 African Union troops were deployed to the Darfur region. However, peace talks between the government and the two rebel factions (the Movement for Justice and Equality and the Sudanese Liberation Army) have consistently stalled over disarmament.
Two years of hand-wringing later and the UN has managed only limited sanctions against Sudanese leaders and a referral of the situation to the International Criminal Court. The ICC, of course, will not be able to act until after the dust has settled – having no power or ability to swoop in and seize suspects.
The stalemate arises from the fact that the Sudanese government won’t allow UN peacekeepers in until a peace agreement with the rebel factions has been signed.
According to the New York Times, the UN Security Council doesn’t want to send a force in as a compulsory measure under Chapter VII for a number of reasons. First, China and Russia would not support such a move. Both China and Russia have strong economic links with Sudan, especially China which accounts for 64% of Sudanese exports and 10% of its imports. Second, there has not exactly been a rush to volunteer peacekeeping troops by the international community.
But what are the origins of the conflict? Typically, the Guardian has an excellent interactive timeline and Le Monde has quite a good summary of more recent events.
Sudan is ethnically, religiously and linguistically divided between a predominantly Arab/Muslim north and an African/Christian (and Animist) South. In Darfur province in the Northwest the janjaweed militia (basically government proxies) have been attempting to drive out ethnic Africans. There are many internally displaced persons as a result, and many international refugees who have crossed into Chad.
The situation has certainly heightened Chad/Sudan tension, with both sides accusing the other of supporting anti-government rebel groups within its territory.
While there were Christians in the Sudan area in the sixth century, the present conflict probably has nineteenth century roots. In 1882 a rebellion expelled Egyptian and British colonial rule and established a strict Islamic state; the rebellion was only suppressed by the colonizers in 1889. Sudan was then jointly administered by Egypt and the UK until its independence in 1956.
Promises of self-rule for the south within a federal system were reneged upon by the new independence government sparking civil war from 1955 to 1972. The war was rekindled in 1983 following the imposition of Sharia law on non-Islamic people in the South. Another possible reason for the central government’s reluctance to relinquish any control of the South is that it holds 75% of Sudanese oil fields.
That said, the present rebels in Darfur (the northwest) are a somewhat separate issue from the old North-South civil war, except insofar as the conflict has clear ethnic overtones with Arab militias (backed by an Arab government) attempting to displace the African locals.
The high-water mark for peace prospects in Sudan probably came in 2004 with an agreement between the UN and the Sudanese government that it would disarm militias and facilitate humanitarian aid efforts. Eventually, 2000 African Union troops were deployed to the Darfur region. However, peace talks between the government and the two rebel factions (the Movement for Justice and Equality and the Sudanese Liberation Army) have consistently stalled over disarmament.
Two years of hand-wringing later and the UN has managed only limited sanctions against Sudanese leaders and a referral of the situation to the International Criminal Court. The ICC, of course, will not be able to act until after the dust has settled – having no power or ability to swoop in and seize suspects.
The stalemate arises from the fact that the Sudanese government won’t allow UN peacekeepers in until a peace agreement with the rebel factions has been signed.
According to the New York Times, the UN Security Council doesn’t want to send a force in as a compulsory measure under Chapter VII for a number of reasons. First, China and Russia would not support such a move. Both China and Russia have strong economic links with Sudan, especially China which accounts for 64% of Sudanese exports and 10% of its imports. Second, there has not exactly been a rush to volunteer peacekeeping troops by the international community.
But what are the origins of the conflict? Typically, the Guardian has an excellent interactive timeline and Le Monde has quite a good summary of more recent events.
Sudan is ethnically, religiously and linguistically divided between a predominantly Arab/Muslim north and an African/Christian (and Animist) South. In Darfur province in the Northwest the janjaweed militia (basically government proxies) have been attempting to drive out ethnic Africans. There are many internally displaced persons as a result, and many international refugees who have crossed into Chad.
The situation has certainly heightened Chad/Sudan tension, with both sides accusing the other of supporting anti-government rebel groups within its territory.
While there were Christians in the Sudan area in the sixth century, the present conflict probably has nineteenth century roots. In 1882 a rebellion expelled Egyptian and British colonial rule and established a strict Islamic state; the rebellion was only suppressed by the colonizers in 1889. Sudan was then jointly administered by Egypt and the UK until its independence in 1956.
Promises of self-rule for the south within a federal system were reneged upon by the new independence government sparking civil war from 1955 to 1972. The war was rekindled in 1983 following the imposition of Sharia law on non-Islamic people in the South. Another possible reason for the central government’s reluctance to relinquish any control of the South is that it holds 75% of Sudanese oil fields.
That said, the present rebels in Darfur (the northwest) are a somewhat separate issue from the old North-South civil war, except insofar as the conflict has clear ethnic overtones with Arab militias (backed by an Arab government) attempting to displace the African locals.
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