Monday, August 14, 2017

Carla Del Ponte: her resignation and why

On Sunday 6 August 2017, Carla Del Ponte resigned from the United Nations (UN) Independent International Commission of Inquiry on the Syrian Arab Republic (Commission). Her departure has been widely reported in the New York Times and other major news outlets, and is part of the trend in the American news media to report more widely on the continued conflict in Syria and more generally on situations the International Criminal Court (ICC) is trying to address.

Del Ponte’s rationale for leaving the Commission highlights one barrier in attaining international justice through the ICC. The powers of the UN Security Council, specifically the Permanent Fives veto power provided by the UN Charter, can either stall or accelerate the process of international justice. This power held by United States, Russia, China, France and the United Kingdom is wide, thereby leaving international justice vulnerable to political will.  This blog will discuss how the Syrian situation demonstrates the damaging role of veto powers in the work of the ICC.

Carla Del Ponte, Commissioner on the UN Independent International 
Commission of Inquiry on the Syrian Arab Republic. 
Image sources from Justice Info Net. 

Human Rights Council (HRC) Resolution on 22 August 2011 established the Commission, and the UN General Assembly has since repeatedly endorsed it. The Commission’s mandate is to investigate all alleged violations of international human rights law in the Syrian Arab Republic, and to establish the facts and circumstances of any violations and crimes committed and to identify those responsible.  Further HRC resolutions expanded the Commission’s mandate including preserving evidence of crimes for possible future criminal prosecutions, with an emphasis on transparency and independence in holding those responsible to account. Over the years, the Commission has published several reports on the alleged atrocities committed by the Islamic State (IS), the Syrian Government and the opposition to the Government.

The Commission was the result of the growing international pressure to address the situation in Syria.  Mainstream media have widely reported that Syrian people are suffering from abuses perpetrated by IS, the Syrian Government and the Government opposition. The 2016 reception of the critically acclaimed documentary White Helmets testifies to the international community has continued concern. Amid this pressure, which does not appear to be subsiding any time soon, it has come as a shock to many that top war crimes expert, Del Ponte, has resigned from the Commission. With Del Ponte’s departure, the Commission is left with two Commissioners, Paulo Sergio Pinherio from Brazil and Karen Koning Abuzayd from the United States. Vitit Muntarbhorn from Thailand and Yakin Erturk from Turkey formerly sat upon the Commission. 

Del Ponte’s departure is a significant loss to the Commission, having served as a prosecutor in Switzerland and internationally. Del Ponte is a former Attorney-general of Switzerland, and acted as Prosecutor for both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). One of her most notable prosecutions was the indictment against acting Head of State Slobodan Milosevic in the ICTY, a prosecution that at the time seemed inconceivable.  Strong international criticisms of the Commission’s effectiveness and international inaction regarding the continued atrocities committed in Syria accompanied Del Ponte’s decision to leave the Commission. She particularly highlighted the inaction of the UN Security Council; the New York Times quoted Del Ponte as saying, “I was expecting to persuade the Security Council to do something for justice… Nothing happened for seven years. Now I resigned.”

It appears that the lack of support from the UN Security Council was the deciding factor for her resignation. Del Ponte is further quoted to have said “[t]he states in the Security Council don’t want justice… I can’t any longer be part of this commission which simply doesn’t do anything.” Supporting Del Ponte’s claim is the lack of intervention or action by the UN Security Council over the past seven years. In a recent interview, Del Ponte pointed the finger at Russia, noting that it supports the Bashar al-Assad Government. Del Ponte also acknowledged the failures of other states to put enough pressure on Russia to change its stance on Syria. CNN reported in April 2017 that Russia has blocked eight resolutions on Syria since 2011. In all instances Russia’s veto has either been accompanied by China, or China has abstained in the vote. These resolutions have attempted to address a variety of issues from the more mundane expression of ‘grave concern for the situation in Syria’, to clear condemnations of gas attacks on civilians. The Commission’s mandate is to research, report and collect evidence, but without the support of the UN Security Council, the Commission is rendered a toothless tiger. 

One of the UN Security Council’s major failings with respect to Syria was the Russian and Chinese veto of a resolution to refer the situation to the ICC in March 2014. This veto was condemned by Washington. Many Americans had already been shocked by the photographic evidence from Syrian defector Caesar, showing the deaths of 11,000 Government detainees .The draft resolution had also gained popular support among the international community with support from 65 states in the General Assembly. In 2014, it was estimated by the Syrian Observatory for Human Rights that the Syrian conflict had resulted in the deaths of 160,000 people and displaced millions of Syrian citizens since 2011. The organization I Am Syria estimated in August 2017 that a total of 470,000 people have died in the conflict. The 2014 draft resolution called for the ICC to have jurisdiction over crimes against humanity and war crimes committed in Syria, and was deliberately drafted to emphasize that all atrocities committed would be investigated, irrespective of the perpetrator. Although there have been continued calls within the international community to refer the situation to the ICC, no such subsequent resolution has been drafted by the UN Security Council.

Although the ICC does have limited capacity to investigate the situation in Syria through its  personal jurisdiction over  foreign fighters in Syria from ICC member states, this will not provide the international community and the Syrian people justice for the breadth of the atrocities. The successful prosecution of foreign fighters would send a message that the international community will not tolerate impunity. However, it is unlikely to affect those alleged criminals with command responsibility. This also resembles the limited impact of domestic trials based on the concept of universal jurisdiction. One such trial was pursued in Spain, although subsequently dropped in July 2017 for lack of a clear Spanish connection. These trials may provide the international community with some reassurance that we are working towards ending impunity, however those most responsible remain out of the reach of justice.

Del Ponte’s resignation signals to the world that the dysfunction and politics within the UN Security Council has a severe impact on the struggle for international peace and justice. As in this case, these severe failings of the UN Security Council restrict the ICC’s ability to provide the Syrian people with justice for the atrocities committed against them and to fulfill its mandate to end impunity for international crimes. It serves as a reminder of the grave responsibility of the UN Security Council to put aside its politics when atrocity crimes are before it and thus to sustain its legitimacy.

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Written by Ally L. Pettitt.
*For further analysis of the ICC's jurisdiction over foreign fighters, please refer to our last blog. <> 

Wednesday, August 09, 2017

Accountability of Foreign Fighters

The atrocities taking place in Iraq and Syria are a serious concern to the international community. Islamic State (IS) has inevitably caused generations of harm to the region, and the impacts are being felt all over the world. The rise of foreign terror fighters (foreign fighters) has brought an international character to this conflict, highlighting the need to end impunity. This blog will discuss in depth the possible avenues for domestic and international accountability with respect to foreign fighters in IS.

Foreign fighters are a threat through their capacity to radicalize before returning to their country of origin, bringing with them traumatic experiences and the technical experience to engage in terrorist activities.  The National Bureau of Economic Research in England has claimed that the majority of the foreign fighters recruited by IS come from Tunisia, Saudi Arabia, Russia, Turkey and Jordan. Although in lesser numbers, many European and Western sovereign governments have acknowledged nationals fighting for IS; including the United Kingdom (UK), Finland, Italy, Canada and Australia.

While foreign fighters do continue to preset a significant threat to state security, they may also be used as a possible avenue for the International Criminal Court (ICC) Prosecutor to gain jurisdiction over the atrocities committed by IS. The Court’s role in the global fight to end impunity accentuates the significance of the ICC’s prosecution of crimes committed by IS. In 2015 the ICC Prosecutor, Fatou Bensouda, released a statement explaining the ICC’s jurisdiction over the alleged crimes committed by IS. The Prosecutor clearly articulated that while the crimes that are being committed in Iraq and Syria are of unspeakable cruelty; including rape, enslavement and possibly genocide; the Court does not have territorial jurisdiction because Syria and Iraq are not State Parties to the Rome Statute.

Fatou Bensouda, ICC Prosecutor
Image sourced from Diplomat Magazine.

Although the decline of IS has led to an exodus of foreign fighters from its ranks, returning foreign fighters provide the international community with an opportunity to hold members of IS accountable for their crimes. State Parties are obliged under the Rome Statute preamble to exercise criminal jurisdiction over those responsible for international crimes; specifically crimes against humanity, war crimes and genocide. Should a State Party fail to prosecute individuals for those crimes nationally, the ICC’s jurisdiction is activated under Art 17. 

The jurisdiction that is activated is the Court’s personal jurisdiction over State Party’s nationals, who are alleged perpetrators of statute crimes. It is the same avenue used by the Prosecutor to gain jurisdiction over the alleged war crimes committed by UK nationals in their military intervention in Iraq. Personal jurisdiction, as distinct from territorial jurisdiction, gives the Court jurisdiction over individuals from State Parties, as opposed to the territory of a State Party. In 2015 the Prosecutor noted foreign fighters from State Parties were active in the region, including nationals from Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia.  Further, the Prosecutor highlighted the use of social media to publicize the atrocities committed by these foreign fighters, assisting the Prosecution’s evidentiary burden.

However, personal jurisdiction is not sufficient for the Prosecutor to begin a formal investigation or trial. The status of these foreign fighters is crucial; the Court’s understanding of the Rome Statute places particular emphasis on command responsibility. This is evident through a brief review of the ICC’s precedent; for example the ICC has convicted Thomas Lubanga, former President of the Union des Patriotes Congolais and Jean-Pierre Bemba, former President and Commander-in-chief of the Mouvement de liberation du Congo. In fact, Bemba was the first person convicted on command responsibility at the ICC.

The State Party nationals would also have had to commit crimes that meet the sufficient test of gravity required to initiate an investigation under Art 53(1)(c) and further to be admissible at trial under Art 17(1)(d). In both instances, the Pre-Trial Chamber and the Prosecutor must find that the alleged crimes are sufficiently grave to justify further action by the Court. Gravity was introduced into the Rome Statute to ensure that the ICC would only consider crimes of most serious concern in the international community. Although the term is not defined, the Prosecutor v. Thomas Lubanga trial determined that the test of gravity must consider whether the conduct was either systematic or large-scale, and the social alarm caused in the international community. Gravity is neither a strictly qualitative or quantitative evaluation. However, the alleged perpetrators status is relevant. An individual committing war crimes or crimes against humanity will cumulatively have less impact than those in command, and may not satisfy the systemic or widespread requirement. These characteristics more appropriately fit individuals with command responsibility, than foot soldiers.  

Although the Court is limited by territorial jurisdiction, the ICC’s inherent personal jurisdiction is crucial when discussing the accountability of foreign fighters. The Rome Statute requires that returned foreign fighters be investigated and tried in their nation of origin, and should a State Party fail to satisfy this obligation the Court has jurisdiction. This highlights the importance of sovereign nations ratifying the Rome Statute, by creating an obligation on State Parties to end impunity for international crimes domestically. In this instance, the Court is able to indirectly impose standards of international criminal law through soft measures; contributing to the Court’s objective in ending impunity.


Written by Ally L. Pettitt