Wednesday, March 16, 2016

The ICC Prosecutes Destroying Historic, Cultural and Religious Buildings



Palmyra is dynamited. The giant Buddhas of Bamiyan are shot to pieces. Many other historic, cultural and religious sites have been similarly destroyed.  Insurgents make rubble of these precious, beautiful, irreplaceable places to parade their ideology and brand of religion. Now the International Criminal Court is considering confirming war crime charges against a leader in destroying historic, cultural and religious sites in Timbuktu, an ancient city in Mali. The Court heard the charges on March 1 and has until the end of April to decide to dismiss or confirm them. Confirmation will be rapidly followed by trial


Although for many Westerners Timbuktu is still the stereotype of a remote and exotic place, for years it was a center for trade whose profits bought libraries of early Islamic documents and treatises and built the sites. Those mausoleums of saints and a mosque, built in the 13th to the 17th centuries, have attracted pilgrims from across the Muslim world ever since. Their structures and beauty have drawn students of architecture and art worldwide. These buildings and the libraries also made the city a center for scholars of Islamic culture and religion. Timbuktu has advanced human understanding of religion and of the creation of beauty. UNESCO has rightly declared it a World Heritage Site.


The suspect is Ahmad Al Mahdi al Faqi. Frequently described as a radical or extremist Islamist, he is alleged to have been a senior member of the jihadi group which occupied Timbuktu in 2012 and to have supervised for it then the destruction of the mausoleums and mosque. He is the Court’s first alleged Islamist defendant and the first to be charged only for the destruction of cultural, historic and religious sites. This charge has its own paragraph in the Court’s Rome Statute in a section on war crimes committed during internal conflicts. It therefore does not have to be charged in association with other crimes and need not involve loss of life or occur in an international war.


A successful conviction of al Faqi and the decision declaring it would be an important precedent and extension of the Court’s reach. Insurgents’ plans to destroy the historic, cultural and religious buildings treasured by their opponents will not seem quite so safe and free of consequences. Majority groups will have to think twice before annihilating the physical heritage of the cultures, religions and histories of minorities such as indigenous peoples. The Office of the Prosecutor is preparing a policy paper to guide similar such prosecutions in the future. A new dimension in the work and identity of the Court is opening, extending its appeal to potential new supporters and members..


 NOTE:

AMICC now resumes its blog postings. As before, we will cover events and issues about the ICC of general significance to Americans interested in the Court and the US relationship with it.
interested in the Court and the US relationship with it.


Written by John Washburn

Wednesday, November 11, 2015

Reparations: The US and the International Criminal Court

Reparations provides redress to victims for crimes. Reparations can take many forms.  According to Redress.org, the four main forms of reparations include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition: “Restitution is designed to re-establish the situation which would have existed had the wrongful act not occurred.  Compensation should be provided for any economically assessable damage which result from the act.  Rehabilitation is to include medical, psychological, and other cares and services, as well as measures to restore dignity and reputation.  Satisfaction and guarantees of non-repetition includes verification of facts and full public disclosure of the truth; a declaratory judgment” [1]
 Reparations at is based on a victim’s understanding of justice.  International Criminal Court functions not simply to punish perpetrators of violence, but, also to protect victims against injustice.  It is important to note that:
“The court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. If the court decides to order collective reparation, it may order that reparation to be made through the Trust Fund for Victims and the reparation may then also be paid to an inter-governmental, international or national organization.” [2]
This focus on the needs of victims by the court has led to the establishment of the Trust Fund for Victims.  The TFV was created as a result of Article 79.  This increased push towards victim recognition could be said to be associated with the significant shift in the perception of legal reparations from pre-world war II to now.  The first major request for reparations came as a result of war.  Pre-World War I, reparations had a connotation of payment by national losers to winners of conflict (Buxbaum, 319).  Post-World War II, there was an increased recognition of the importance of individuals and collectives as recipients of reparations.
               While reparations as outlined in the ICC do not appear in US criminal law, there is a history of reparations in the United States.  The most pertinent case is US reparations for Japanese American internment.  However, the word “reparations” is not used outside of this historical context in the US criminal system.  There is, nonetheless, an established system of restitution in place within the US criminal justice system as well as allowances for compensation and civil damages.
               Restitution is provided by those convicted of a crime to their victims.  Upon conviction, the court has the ability to order the defendant to give restitution to victims, if he/she has the ability to pay.  According to the National Center for Victims of Crime website, “restitution can cover any out-of-pocket losses directly relating to the crime.”[3] Compensation is state sponsored and given by the state.  Eligibility must be shown in order for compensation to be granted.  In the US, restitution allows victims financial redress without applying while compensation and civil damages requires action victim participation.  While compensation is not court ordered, civil damages is court ordered as a result of victims winning a lawsuit against the perpetrator in civil court.
               The importance of reparations does not lie only in providing victims with opportunities to gain redress.  The recognition of reparations as an integral aspect of justice demonstrates the importance and focus on victims in the criminal justice system, whether internationally or domestically.  Reparations provides an impetus for restorative justice where the focus is not just punishing criminals, but also sincere attempts to bring back the victims to the status they had previously in some way.

Written by: Chinonye Alma Otuonye

References:
Buxbaum, Richard (2005). A Legal History of International Reparations. Berkeley Journal of International Law, 23(2), 314-346.
Cullinan, Sarah (2001). Torture Survivors’ Perceptions of Reparation: Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf
Goodwin, Catherine M (1998). The Imposition of Restitution in Federal Criminal Cases. Federal Probation. Retrieved from http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Imposition-of-Restitution-in-Federal-Criminal-Cases.pdf
International Criminal Court Web Portal. 2003. Web. 29 October 2015. Retrieved from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx
National Center for Victims of Crime (2004). Restitution. Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution
Redress. 2001. Web. 29 October 2015. Retrieved from http://www.redress.org/what-is-reparation/what-is-reparation
The Trust Fund for Victims. Web. 29 October 2015 2015. Retrieved from http://www.trustfundforvictims.org/trust-fund-victims, http://www.trustfundforvictims.org/financial-information
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]



[1] Cullinan, Sarah (2001). Torture Survivors’ Perceptions of Reparation: Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf

[2] International Criminal Court Web Portal. 2003. Web. 29 October 2015. Retrieved from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx

[3] National Center for Victims of Crime (2004). Restitution. Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution


Thursday, November 05, 2015

South Africa and the Worrisome Call to Withdraw from ICC

On October 11, 2015, South Africa’s ruling party, the African National Congress (ANC), announced its intention to withdraw South Africa from the ICC.  South Africa was one of the major African proponents of the creation of the ICC and one of the first to sign and ratify, and include its standards in its domestic law.  With South Africa’s global role as a moral leader slowly waning in the post-Mandela era, this shift in attitude about the ICC proves worrisome if it indeed happens.  The South African image of being advocates of human rights hangs in the balance. 
According to the Rome Statute, Article 127, “A state party may, by written notification addressed to the Secretary General of the United Nations, withdraw from this Statute.  The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.” (Article 127(1) Rome Statute) With regards to their obligations: “A state shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have been accrued” (Article 127(2) Rome Statute) In essence, while South Africa may withdraw soon they will still be party members until a year after their request for withdrawal which will still hold South Africa accountable.

South Africa’s announcement comes after its failure to detain Sudanese President Omar Al-Bashir.  The ICC issued a warrant for the Bashir for war crimes, crimes against humanity, and genocide and with South Africa a party member it had an obligation to detain him.   Upon the announcement, ANC representative Obad, stated that the ICC had lost its direction and that powerful nations “trample” human rights and pursue “selfish interest” alluding to the targeting of African nations by the ICC since its inception.[i]  South Africa power in the AU provides a worry that this could lead to a potential “African-wide walkout from the court.”

The rhetoric of an ICC bias towards African nations has been long standing.  According to The Guardian, President Zuma stated: “In the eyes of the African Leaders, the ICC is biased. Only Africans they are interested [sic].  This is what has made Africa feel we need to relook at our participation.  It looks like it is just meant for us” (Musker, 2015).  President Zuma appears to be neglecting the ICC’s current investigations in non-African countries such as Colombia, Georgia, Honduras, Iraq, Palestine, Afghanistan, and Ukraine.  The African bias argument also fails to have a complete understanding of the court system.  Of the eight cases the ICC has pursued in Africa thus far two have been referred by the United Nations Security Council-Sudan and Libya- and four have been self-referrals, in which the state involved has requested the assistance of the court-the Democratic Republic of Congo, the Central African Republic, Uganda and Mali.  Article 13 of the Rome Statute, states that the court has jurisdiction if: “(a) A situation in which one or more of such crimes (outlined in Article 5) appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;(c) The prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.” (Article 13 (a)(b)(c)).

Currently, the South Africa situation is fluid as a result of attacks by both domestic and International civil societies against the decision and the impending result in the Assembly of State Parties meeting in November. 

Written by: Chinonye Alma Otuonye


References:
Kersten, Mark (2015). Sudan, South Africa and the Future of the International Criminal Court in Africa. The Washington Post. Retrieved from https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/10/13/sudan-south-africa-and-the-future-of-the-international-criminal-court-in-africa/
Musker, Saul (2015). Why South Africa is Wrong to Leave the International Criminal Court. The Guardian. Retrieved from http://www.theguardian.com/world/2015/oct/14/why-south-africa-is-wrong-to-leave-the-international-criminal-court
Nkosi, Milton (2015). What South Africa Leaving the International Criminal Court Would Mean. BBC News. Retrieved from http://www.bbc.com/news/world-africa-34509342
Pizzi, Michael (2015). South Africa threatens to Withdraw from ICC, Alleging Anti-African Bias. Al Jazeera America. Retrieved from http://america.aljazeera.com/articles/2015/10/12/south-africa-threatens-to-withdraw-from-icc-alleging-anti-african-bias.html
Styrdom, TJ (2015). South Africa Plans to Leave International Criminal Court. Reuters. Retrieved from http://www.reuters.com/article/2015/10/11/us-safrica-icc-idUSKCN0S50HM20151011
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]




[i] Strydom, TJ, “South African Plans to Leave International Criminal Court,” Reuters. (2015), http://www.reuters.com/article/2015/10/11/us-safrica-icc-idUSKCN0S50HM20151011

Tuesday, September 29, 2015

UN High Commissioner for Human Rights Calls for Hybrid Court in Sri Lanka: What About the ICC?

               On September 16 of 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Zeid Al-Hussein, made a statement on the atrocities that occurred in Sri Lanka as a result of its 26 year long civil war.  This war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) resulted in scores of crimes against civilians including unlawful killings, deprivation of liberty, enforced disappearances, torture, and sexual and gender based violence, as outlined by the report published by the Office of the United Nations High Commissioner of Human Rights. 
After the Sri Lankan government defeated the rebel forces, there has been a new emphasis on reconciliation and healing of the country.  To achieve this healing, the new government committed to dealing with issues of accountability.  While the UN and the Commission for Human Rights have acknowledged this venture, there is a belief by the UN High Commissioner for Human Rights and Human Rights council that Sri Lankan government cannot deal alone with such serious crimes.  As noted in the “Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka,” section seven, article 75 “the commitment by the new Government to pursue accountability through a domestic process is commendable…But the unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready or equipped to conduct the ‘independent and credible investigation’ into the allegations contained in the OISL report, or ‘to hold accountable those responsible for such violations’, as requested by the Human Rights Council” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”).
Following this conclusion of the Sri Lankan government incapability of adequately managing reconciliation by itself, the report outlined its recommendation of a hybrid court in which international judges, prosecutors, lawyers, and investigators are integrated with local counterparts in a hybrid court.  As outlined in Section eight, Article 88, “ The High Commissioner remains convinced that for accountability to be achieve in Sri Lanka, it will require more than a domestic mechanism.  Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special court, integrating international judges, prosecutors, lawyers and investigators.  Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka.  OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)
Since Sri Lanka is not a party to the ICC’s Rome Statue, the Commissioner recommends that Sri Lanka ratify the Rome Statue as well as include the criminalization of war crimes, genocide, and crimes against humanity in its domestic legislation.  The recommendation for such a hybrid court also calls for a significant support by the International community.  The Commissioner asks for the “ United Nations system and [its] member states to provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards; set up a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)
Now there is no explicit information as to how this hybrid court will be set up.  Its establishment will be in conjunction with the Sri Lankan government and will take special notice of the wants of the Tamil people. 

In relation to the ICC, the report makes it clear that the hybrid court in Sri Lanka will not serve as a substitute for nor does it display any ineffectiveness or illegitimacy of the ICC.  Rather the Commissioner emphasizes that the hybrid court is a necessary step in managing the Sri Lankan atrocities because Sri Lanka is not a state party to the Rome Statue.  Moreover, the Commissioner makes clear his recommendation for Sri Lanka to ratify the Rome statute and become a state party.  In this manner, the recommendation of a hybrid court in Sri Lanka in no way establishes a move by the UN away from the ICC but instead calls for the continued expansion of the court’s jurisdiction.  

Written by Chinonye Alma Otuonye