Thursday, April 24, 2014

Remembering the Armenian Genocide

On this day in 1915, the government of the Ottoman Empire began a systematized policy of genocide. On that April morning, 300 Armenian leaders and intellectuals were rounded up for deportation and execution, while 5,000 of Istanbul’s poorer Armenians were simply butchered in the streets. By the end of the conflict, 1.5 million Armenians would be killed, through policies of forced marches, executions, and the brutal conditions in concentration camps. Through government-sanctioned brutality and mass murder, 60% of the total Armenian population in Turkey was wiped out in the space of two years. Though the international community knew about the atrocities being committed, in the midst of World War I no aid came to the innocent. With the ending of the war, international trials were attempted—the Britain-led Malta Trials—but never concluded. Turkish courts martial led to the sentencing and execution of a handful of the leaders of the genocide, but these proceedings were swift, without due process, and ultimately let many offenders walk free. 

We remember the Armenian genocide not only as an unimaginable singular tragedy, but as an act of unchecked violence which would lead to still greater loss of human life. On August 22nd, 1939, just prior to the invasion of Poland, Adolf Hitler advised the officers of the German armed forces to brutalize Eastern Europeans without fear of retribution. As he argued, “Wer redet heute noch von der Vernichtung der Armenier?” “Who still speaks today of the annihilation of the Armenians?” Hitler was wrong in this assumption; the members of the international community may not have spoken up against the atrocities committed in 1915, but they did not forget. When World War II came to an end, the Nuremberg Trials brought the weight of international justice down on the German perpetrators of the Holocaust, however imperfectly. 

This April, we also remember the 20th anniversary of the Rwandan Genocide, a reminder of the failures of the international community to protect the innocents of the world from their own governments. Though “never again” was the message behind the Nuremberg and Tokyo tribunals, and despite the best efforts of the United States, survivors of the Holocaust, and the UN General Assembly, Cold War hostilities made the possibility of setting up a permanent court impossible. The need for such a court became strikingly apparent as the century progressed, with further atrocities committed in Cambodia, Bosnia, Sierra Leone, East Timor, and the former Yugoslavia. The ad hoc tribunals established by the UN to try war criminals in Rwanda and Yugoslavia were effective at bringing criminals to justice; but as temporary courts, they were limited in scope, and did little to deter future crimes. 

The ad hoc tribunals led to the creation of the International Criminal Court, the first permanent international court capable of trying individuals for war crimes, crimes against humanity, and genocide. Unlike its predecessors, the ICC can try heads of state for ordering atrocities, thus removing the assurance of impunity that the Hitlers and Pol Pots of the world had long hid behind. In ending impunity, the ICC seeks to bring justice to its victims and deter future horrors. Many Armenians, themselves survivors or descendants of survivors, have ignored the ICC and its history. Under the Rome Statute, the Court cannot try crimes which took place before its inception in 2001—and thus, some Armenians say, it is of no relevance to them. It cannot bring the comfort of justice to the families of those who lost loved ones ninety-nine years ago. As today’s admission by the Turkish government of inhumane actions committed during WWI has shown, determining guilt is an important part of the healing process. Though an important first step, it further reminds us of the emotional importance of giving a crime its proper name. 

We must also remember that no action stands alone in history. Violence begets violence, and as we’ve traced here, a failure to bring perpetrators to justice has only lead to future crimes. It is the special responsibility of those closest to these historical tragedies to fight to break the cycle—their voices ring truest and loudest, and they best understand the need for justice felt by the victims of modern war crimes. Supporting the Court is one way of raising these voices. 

The Court faces many obstacles. The United States, China, and Russia have all yet to ratify the Rome Statute, largely over fears that their own citizens may be tried. With the attitudes of these members, the Court has had to grapple with the UN Security Council, which has referred cases to the Court, but not followed up with enforcement or funding. In recent months, the Court has also had to contend with violent witness silencing in its case against President Kenyatta of Kenya, who argues that he should be granted immunity due to his status as head of state. These obstacles are broad, but they are not insurmountable—and the weight of the United States would go a long way towards solving them. 

On this date, we mark the 99th anniversary of the Armenian Genocide. Let us work together over the next twelve months to create a world in which impunity does not exist, and war criminals have no place to hide. Let us mark the 100th anniversary of this tragedy next April by turning toward a new century, and a world free at last from genocide. 


To learn more about AMICC and advocacy for the International Criminal Court, visit our website at www.amicc.org

Friday, November 29, 2013

ASP12: A Delicate Balance




ASP12 ended with a feeling of relief, as a number of potential crises were averted, at least in the short-run.  The situation with Kenya and its support by the African Union was the main event, but there was also a possibility that consensus around the budget would disintegrate.  In the end, the feared crises did not materialize, though the underlying issues were not entirely resolved. A major positive achievement of ASP 12 was that the Assembly took the Court forward by operationalizing the Independent Oversight Mechanism, after five years of difficult negotiations. 

In its second week, ASP12 set about preventing a political rupture among its membership. For some time the African states have indicated they feel unfairly targeted by the ICC.  This displeasure came to a head at an extraordinary summit of the African Union called by Kenya in October over the ongoing prosecutions of the Kenyan President and Vice-President.  Rumors spread of a mass pullout of African states from the ICC.   Though the mass pullout did not happen, a group of African states subsequently made an Article 16 request to the Security Council asking that the trials be deferred for one year.  When that request was denied, African states came to ASP12 seeking a change in the rules of procedure making it possible for trials to proceed without the physical presence of the defendants.

The Working Group on Amendments thus became the locus of the Africa-ICC confrontation and much of the second week was devoted to intense negotiation over changes to RPE 134, with one side pressing for more latitude and flexibility and the other emphasizing the absolute language of Article 63.  Kenyon civil society also had a strong presence at ASP12, and side-events reminded of the violence that originally elicited the indictments.  In the end, Kenya abandoned its quest for an automatic excusal from presence at trial for sitting heads of state, and the other side accommodated by approving use of video technology and excusal from presence for “exceptional circumstances” or fulfillment of “extraordinary public duties at the highest national level.”  Least satisfied with the outcome may be the Court itself, since all of the RPE 134 changes were left to its discretion.  Nonetheless, African states welcomed the changes, and the overall feeling was that the integrity of the Rome Statute was not compromised - an issue of great concern to delegates and NGOs alike.

Other rule changes were adopted: to RPE 100 (allowing for the Court to sit in a State other than the host state) and to RPE 68 (allowing for the use of prior recorded testimony). 

The budget had threatened to become another source of division.  Canada, which wanted zero growth changes to the proposed 2014 Budget, had objected to the recommendation of the Committee on Budget and Finance of 121,656,200 euros.  Though lower than what the Court requested, this figure had been seen as an acceptable compromise.  In the end, Canada withdrew its objection, while promising to monitor financial reports with a goal of reaching zero nominal growth in 2015.  This may collide in the future with the Prosecutor’s new strategy, announced early at ASP12.

The Court, Registry, OTP and other organs of the Court indicated that they are streamlining their operations. The new Registrar, Herman van Hebel, is making necessary and positive changes in the running of the Registry. However, the demands on the Court continue to grow and financial increases are essential for it to fulfill its mandate: to meet the demands of current cases and start new cases; to provide more witness protection; to address victim representation and reparation issues; to do more investigations and outreach, inter alia.

Victim support and complementarity were two other issues that were much discussed but, in terms of concrete steps, left for the future.   A new gender strategy will be announced early in 2014.  

The operationalization of the Independent Oversight Mechanism culminated a difficult five-year process and is the signal most important achievement of ASP12.  This important development will aid us immensely in our US advocacy.

Civil society organizations were very active at this ASP, putting on side-events, evening receptions, and multimedia art exhibitions.  Topics included complementarity, Libya, Syria and accountability, victims and victims’ rights, the Kenyan situation, witness protection, and more.  The Women's Initiative for Gender Justice released a report on prosecuting gender violence crimes at the ICC and sponsored a panel on modes of liability, with representatives from the ICTY, and the Special Court for Sierra Leone, among others. The Coalition members met daily; over 200 of the 2500 CICC members were present at this ASP.

A new judge was elected – Geoffrey Henderson of Trinidad and Tobago. The next ASP will take place in New York City from December 8-17, 2014, where election of six new judges will take place to fill seats left vacant by judges whose current terms are expiring.  At the close of the session, Belgium announced that it had ratified both of the amendments adopted at Kampala, on the crime of aggression and on Article 8. 

In sum, at ASP12 the states parties undertook serious examination of the problems that will need to be overcome for the Court to establish itself as an international organization.  Whether the tenuous solutions achieved at ASP12 will resolve those problems in the long-term remains uncertain. 


Monday, November 25, 2013

ASP12 First Week


The prevailing theme of ASP 12 at the end of its first week was that the ICC is at a major moment ("turning point," "mile stone") for its future. This featured prominently in most formal  speeches and debates. It was an important aspect of the ASP meetings devoted to the agenda items of victims, enforcement and of the procedure in prosecuting heads of state or government requested by Kenya and the African Union.( It was also prominent in the side events and conversations on Syria, a subject not on the formal agenda).
 
Unlike earlier sessions, which were conducted largely as generalized debates, this session was organized around thematically-distinct meetings devoted to separate agenda items.   This was intended to make discussions more productive and did in fact do so.   This organizational structure also presented the ICC's time of fundamental transition from many angles and within various ranges of information on different subjects.
 
A number of factors contributed to the sense that the Court is at a turning point:  the Kenya/AU challenge; the constant and demoralizing problem of failure to enforce arrest warrant (the session's euphemism for this is "cooperation"); lessons learned from the several cases now fully underway, or concluded except for appeals; and the hovering threat that States Parties will insist on  budget  reductions that will make it impossible for the Court to fulfill its responsibilities under its Statute.
 
There is a real recognition here that the right response to this fraught time for the Court and to the problems creating it can make for a stronger Court that is more credible, efficient, and viable. There is also sober awareness that most of these problems are very obdurate. There is unusual willingness here to engage with these problems, rather than just talk about them. The second week will need to make the very most of its short time and diplomatic resources for a strong start to making good on this awareness.
 

Tuesday, August 13, 2013

The ICC and the Israel-Palestine Conflict

Will the conflict between Palestine and Israel come to the ICC? This fraught question has received considerable media and political attention in the past few weeks while Kerry is striving to revive Israeli-Palestinian peace talks. AMICC comes to grips with this complex issue in its new advocacy document.

When most ruled out the possibility of the ICC involvement in the situation of Palestine, surprisingly, three years after the incident, on May 14th, 2013, the Union of the Comoros, a State Party to the ICC, referred the situation to the Court in relation to the May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip. The legal representative of the victims, the Turkish law firm Elmadag, supposedly approached the government of Comoros, where one of the vessels was registered and proposed that it present to the ICC the referral of Comoros naming the Israelis allegedly responsible for the attack. Comoros which does not maintain diplomatic ties with Israel, accepted. Subsequently, the ICC Prosecutor decided to launch a preliminary examination to determine whether the criteria to open a formal investigation were met. This referral presents some peculiar legal features that overshadow the admissibility of the situation before the Court. The Rome Statute makes it clear that the ICC will have territorial jurisdiction over crimes committed on board vessels registered in a State Party. However, since the gravity of the crimes committed is relatively minor compared to the other situations before the Court, will this situation be considered serious enough to call for a formal investigation? Is this, as the Rome Statute requires a case that “shocks the conscience of humanity” or is ‘of concern to the international community as a whole”, should we expect the ICC to be bold enough to consider the broader situation of Gaza or even the overall Israel- Palestine conflict? Those questions are tightly linked since the gravity threshold might be satisfied only if the referral is considered as part of the broader situation.
 
A second scenario calls for consideration. On account of its new status as a "non-member observer state" after the UN General Assembly vote on November 2012, the Palestinian Authority has repeatedly alluded to its intention to refer the situation to the ICC should Israel continue its settlement policy. This would require settling the questions of the ICC's temporal and territorial jurisdiction, both being especially complex because of the ambiguous status of Palestine as a political entity. In answering these questions, the political stakes at hand are also to be acknowledged. Without necessarily having any real intention to refer the situation to the ICC, Palestine seems to use that possibility as a political leverage to bring Israel to the negotiating table and kick start the peace process.
 
The stance that the Court will take towards this situation will be crucial in shaping both the public international opinion and its relationship with states. This situation is a double-sided coin. Any development at the Court related to Israel could on the one hand alter the fragile relationship between the US and the ICC and thus deprive the latter of a crucial support, and on the other hand recover the Court's legitimacy within the "nonwestern nations" that accuse the Court of selectivity and especially targeting weak African states.
 
The new advocacy document released by AMICC aims to explore the two main scenarios that could lead the Court to build cases involving Palestinian and Israeli individuals: either as a result of the recent referral by Comoros, or through a referral of the situation to the ICC by Palestine. By taking into account both legal and political factors, this paper considers how a potential case involving nationals of the two countries would both be determining for the Court’s jurisprudence to come, and affect the international outlook on it. In particular, this paper seeks to address the crucial United States' concern that this potential case is raising.

 Read More.
 
By Maryne Rondot
 

Wednesday, August 07, 2013

Who to Prosecute? The OTP’s Inherent Dilemma


ICC Deputy Prosecutor James Stewart recently explained that the Office of the Prosecutor (OTP) can’t always investigate or prosecute all sides of a conflict at the same time. He stated that sometimes “You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized.”

Some have suggested that Stewart’s statement indicates that the OTP acts in a self-interested way, taking into account “what is  good for the Court” when determining which situations and cases to focus its time on.

This analysis misses Stewart’s point. Stewart is simply saying that the OTP must consider what is actually possible when determining what to investigate and prosecute. His statement points at a fundamental question that the OTP has always faced: how best to spend its limited time and insufficient manpower and resources to ensure that justice is done.

The OTP’s staff and resource shortage is primarily due to the OTP’s limited budget, which is set by the Assembly of States Parties (ASP). Even though the ASP is putting great pressure on the ICC not to increase its budget for 2014, the OTP has asked the ASP for more money to, among other things, allow the OTP to perform broader investigations. This would certainly help the OTP to conduct simultaneous investigations and prosecutions of multiple sides of a conflict.

Absent additional resources, the OTP must weigh a variety of factors when determining where to focus its attention. Many of these issues will remain important for the OTP if its budget is increased.

One issue the OTP must examine is whether justice can only be done if all sides of a conflict are investigated and prosecuted simultaneously. This factor obviously influenced the OTP’s decision to bring two simultaneous cases from its investigation into the 2007/2008 post-election violence in Kenya. The OTP brought charges against the two main sides of the conflict (the predominantly ODM/Kalenjin side, and the predominantly PNU/Kikuyu side); charging only one side would have provoked the underlying us-versus-them tribal discord that led to the violence in the first place and could have triggered fresh violence.

Another issue the OTP considers is how fast the investigation or case must progress so that its work will contribute to the pursuit of justice and possibly help to stop ongoing atrocities. This is surely a factor that influenced the speed with which the OTP requested arrest warrants in the Libya investigation. Though the OTP requested arrest warrants only for senior Gaddafi officials, the OTP may have weighed speedy arrest warrants over the need to simultaneously pursue rebel crimes in order to contribute to the global effort to stop the atrocities of Gaddafi’s regime.

The OTP may also choose to focus on one party to a conflict where that party has committed or is committing crimes that are more serious that those committed by others. Again, this may have influenced the OTP’s priorities during its investigation in the Libya situation.
Where the OTP seeks to investigate and prosecute crimes committed by a sitting government, the OTP will have to consider what kind of cases it can feasibly bring. The government can disrupt the OTP’s investigation by, for example, refusing OTP staff access to the country, or tampering with witnesses and other evidence. Under these circumstances, the OTP may have insufficient evidence of certain crimes. It may decide to bring charges for only a limited set of crimes to ensure that the perpetrators are prosecuted for something, rather than waiting – possibly in vain – to gather evidence of all suspected crimes before requesting arrest warrants or summonses to appear.

These are only examples of the numerous practical questions that effect the OTP’s investigation and charging decisions. Now that Deputy Prosecutor Stewart is being more candid about this issue, perhaps the OTP can be more transparent about how and why its investigations and cases take the shape they do. Without this transparency, external observers, victims, and others will not understand the real factors influencing the OTP’s decisions, and may view it as biased, self-interested, or misled. They will not understand how the OTP has delicately balanced its work between an understanding of what it will mean for justice to be done, and the factors that limit how the OTP can achieve justice.

At the same time the OTP must not become complacent in its prosecutions. Stewart’s statement highlights the fact that the OTP may sometimes need to move forward with the prosecution of one side of a conflict without prosecuting crimes committed by other sides at the same time. The danger is that the OTP will not follow up with prosecutions of crimes committed by the other sides. This is particularly so because the OTP is already stretched thin, and because new crises regularly arise and may require immediate attention before the OTP has circled back to prosecute follow-up cases. The OTP needs to internalize practices and standards that guard against this.

Read More
 

From 2005-2008, Corrie served as an Assistant District Attorney in New York County (Manhattan). From 2009-2012, Corrie served as an analyst and trial lawyer with the OTP. She has also worked on international human rights litigation with the Open Society Justice Initiative, and now acts as a consultant to the President of the Assembly of States Parties of the ICC. The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, any organization with whom the author has worked or currently works.

Tuesday, July 30, 2013

A New Era of Justice

On Wednesday, June 17th, communities around the world celebrated International Justice Day (IJD). This is the landmark day on which the international community adopted the Rome Statute of 1998 at a United Nations (UN) conference, the treaty which created the International Criminal Court (ICC). The treaty itself entered into force on July 1, 2002, following the required 60th ratification.

IJD provides an opportunity to reflect upon how international justice has progressed in the 15 years since the Court’s inception; it also reminds us to consider the challenges that the ICC faces as it matures into this new era in its life. Today, of the 139 states that have signed the Rome Statute, 122 have ratified or acceded to it. 18 cases in eight situations have been brought before the Court. Arrest warrants have been issued for 21 people and summonses for nine. Five are in custody; and one, Congolese warlord Thomas Lubanga, has been found guilty by the Court.

Unfortunately, as the ICC now reaches this new phase of maturity, it must prepare to face a new host of obstacles. With increasing political pressure, financial strain, and issues of enforcement; the list of potential threats to the Court - and to international justice in general - is seemingly endless. How will the Court respond to the challenges it faces? Will Fatou Bensouda, current ICC Prosecutor succeeding Luis Moreno Ocampo, be able to steer the Court’s prosecutions in the right direction? 15 years from now, having celebrated IJD 2028, what will we have to say about the current efforts towards international justice by the ICC and the international community?
The answers to these questions will come with time. For now, read our article A New Era of Justice, to reflect upon and appreciate this exciting and dynamic new era for international justice.

Friday, July 19, 2013

Wise Souls and Noble Goals: The UN's commemoration of International Justice Day



Ambassador Stephen Rapp, John Washburn, William Pace

The American NGO Coalition for the International Criminal Court was proud to commemorate International Justice Day on Wednesday July 17th at the United Nations. AMICC’s Convener, John Washburn, was invited to speak on a panel on the subject of the future of Global Criminal Justice. Other speakers at the event included Ambassador Stephen Rapp, the United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice, William Pace, the Convener of the Coalition for the International Criminal Court, and Ambassador Richard Williamson, the former Special Envoy to Sudan under President George W. Bush. 

Thursday, July 18, 2013

Ready for that Close-Up: The International Criminal Court's Recent Representations on Film



            By David Benger

Filmmakers have recently revived their interest in the International Criminal Court. A film called “The Court” has just been completed and released in Germany. The Economist’s blog summarizes the film as a “fascinating documentary about the pioneering work of the [ICC].” The summary is wrong in calling the ICC the “first world court” and is incorrect about the reach of the ICC’s jurisdiction, but gives an excellent overview of the film itself. 
             
 
[An image from the promotional materials for "The Court"]