Go On! Transitional Justice for Darfur

(Go On! is an occasional item on symposia and other events of interest)

A report entitled Toward Peace with Justice in Darfur: A Framework for Accountability will be launched this Wednesday, March 23, from 10 -11:30 a.m. at Tillar House, American Society of International Law, 2223 Massachusetts Avenue, N.W., Washington, D.C. The report represents the culmination of the two-year Darfur Project partnership between the D.C.-based Robert F. Kennedy Center for Justice and Human Rights and the California International Law Center at King Hall, University of California Davis, School of Law.
Envisioned by Dr. Mohammed Ahmed Abdallah Eisa (prior posts), Darfuri physician and recipient of the 2007 RFK Human Rights Award, and principally authored by yours truly, CILC Fellow Kathleen A. Doty, the report was prepared under the direction of RFK Human Rights Director Monika Kalra Varma, an IntLawGrrls guest/alumna, and CILC Director Diane Marie Amann, IntLawGrrl. Each of the four of us will speak at Wednesday's event.
The Toward Peace with Justice report provides a comprehensive analysis of the key transitional justice issues that will face the Darfuri people as they come to grips with past atrocities in Sudan. It is intended to be used as a tool to aid members of Darfuri civil society in determining which transitional justice mechanisms to implement.
Please join us for the launch. Space is limited, so please reserve your place to rsvp@rfkcenter.org.

Breaking News from the ICC

The ICC recently released three important decisions in the last two days:

1. The first two are decisions by Pre-Trial Chamber II, by a majority, to issue summons to the six Kenyan suspects (about which we've blogged before) to appear before the ICC on April 4, 2011:

• William Samoei Ruto (Ruto),
• Henry Kiprono Kosgey (Kosgey),
• Joshua Arap Sang (Sang),
• Francis Kirimi Muthaura (Muthaura),
• Uhuru Muigai Kenyatta (Kenyatta) and
• Mohammed Hussein Ali (Ali).

The Chamber found reasonable grounds to believe that Ruto, Kosgey and Sang (the Odinga defendants) can be prosecute for specified crimes against humanity (murder, forcible transfer and persecution). (The Chamber rejected efforts to prosecute the three for torture). The cases against Ruto and Kosgey will proceed under a theory of indirect co-perpetration (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute. The case against Sang, by contrast, will proceed under a theory of complicity rather than co-perpetration, because the PTC determined that no reasonable grounds existed to believe that Sang's contribution to the commission of the crimes was essential.

Maintaining almost perfect symmetry, the PTC determined Muthaura and Kenyatta (the Kibaki defendants) will be prosecuted as co-perpetrators of the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. Likewise, the case against Ali will proceed under a theory of complicity based on the finding that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

Unsurprisingly (see prior post), Judge Hans-Peter Kaul dissented (opinion as yet unavailable), arguing that the Prosecutor had failed to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization as required by the definition of crimes against humanity in the ICC Statute.

2. In the Darfur situation, PTC I confirmed charges against two rebel leaders (Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus) based upon alleged attacks on the compound of the African Union peacekeeping mission in Sudan on the evening of September 29, 2007. The two will be prosecuted for the war crimes of:

•violence to life and attempted violence to life;
•intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
•pillaging.

Stay tuned...

Look On, Read On: Can watching & reading stop a renewal of Sudan's other war?

Yesterday marked the launch of the Satellite Sentinel Project, which aims to use technology to provide early warnings and raise public awareness about violence in Africa's largest country (map credit), and so to try "to deter the resumption of war between North and South Sudan."
Satellite Sentinel's a partnership of Hollywood celebrities (George Clooney et al.), corporate America (Google et al.), nongovernmental organizations (the Enough Project and the Harvard Humanitarian Initiative), and intergovernmental organizations (agencies of the United Nations). It promises to provide corroborated information

in near real-time (within 24-36 hours), with the aim of heading off humanitarian disaster and human rights crimes before they occur.

A core objective -- to use this information to prod the public to pressure public officials -- is apparent in the Project's slogan: "The world is watching because you are watching."

Can it work?

At the least, it may make more difficult a full-scale return to Sudan's other war -- not Darfur, the western Sudan (green on the map) turmoil that continues to simmer even as Sudanese President Omar al-Bashir continues to evade an International Criminal Court warrant, but rather the civil war that ravaged the southerly regions of Sudan for 20 years before the signing of a Comprehensive Peace Agreement in 2005. The agreement granted the south some autonomy and provided for a future referendum on full independence from the government in Khartoum (in the orange region on the map). Voting is just around the corner: January 9, 2011, in Southern Sudan (blue) and Abyei (red). Backers of Satellite Sentinel hope that the Project's eyes in the sky -- commercial satellites -- and voices on the ground will help to avoid violence during or after the election.

(Unstated is another potential use of these data. Should proactive efforts fall short, surveillance footage and contemporaneous reports would create a trove of evidence for prosecution of perpetators. To name a possible forum, the International Criminal Court is keenly interested these days in election-related violence. (And see here.)

Missing from the Project mix?

In contrast with Darfur, the history of North-South troubles is largely unknown. This absence of background knowledge may make it harder to push the public to push their officials. But there is much background information available.

In addition to any number of weighty tomes, here are a few mass market treatments that provide contexts for what is to come:
► Emma's War: An Aid Worker, a Warlord, Radical Islam, and the Politics of Oil--A True Story of Love and Death in Sudan (2002) by Deborah Scroggins, formerly a reporter for the Atlanta Journal-Constitution. The title pretty much says it all: this is the biography of Emma McCune, a Briton whose art history studies led her to Southern Sudan, 1st as an aid worker, then as an independence advocate, and ultimately to marriage with a rebel leader and death, in a Nairobi car crash, at age 30. McCune's trajectory sweeps with it much about the war.

► Acts of Faith (2005) by Philip Caputo, a onetime Chicago Tribune reporter and Pulitzer Prizewinner. Readers of Emma's War will find in this novel a familiar charater -- a lost young woman, American rather than British, who arrives in Sudan as an aid worker and eventually marries a rebel warlord. She's easier to understand than McCune, perhaps because the fictional format allowed the author more free rein. Acts benefits too from other characters and other subplots, all woven around a large and complex story of Western involvement (charitable and otherwise) in the civil war and the warriors' practice of enslaving captives.
► What Is the What (2006) by Dave Eggers. In this book Eggers, the subject of a prior post, writes the autobiography of Valentino Achak Deng, born in the midst of the civil war. Deng's tragic journeys include a short stint as a child soldier and a much longer one as a "Lost Boy," wandering with other unfortunates in a wilderness that leads 1st to a refugee camp in Kenya and ultimately to a new and strange life in the United States. This is the best written of the 3 books, but the reader will better understand it if informed as well by the other 2.

The United States & the ICC

(Part 2 of a 3-part series)

For all the years of its existence, the International Criminal Court has, in effect, shared space with another occupant. Ever present, though sometimes hard to see, has been the United States of America.
The story of the ICC is also a story of U.S. foreign policy. It is a story of the relation between the world’s remaining superpower, a key proponent of the post-World War II International Military Tribunals, and today’s direct descendant of those tribunals, the ICC.
The United States was among a handful of countries to vote against the ICC Statute at the 1998 Rome diplomatic conference (above left). (credit) The United States has kept its distance ever since, sometimes quite hostilely so. Its status as a nonparty state deprived it of any vote at the 2010 Kampala Review Conference and other meetings of the ICC Assembly of States Parties. Yet the importance of the United States to the project of international criminal justice cannot be ignored.

Thus it was at the recent 4th International Humanitarian Law Dialogs at Chautauqua, New York, on "Crimes Against Peace - Aggression in the 21st Century": participants repeatedly turned to talk of the United States.
John L. Washburn, Convener of AMICC, the American NGO Coalition for the ICC, said it well:

For a country as powerful as the United States, the limitation of being a nonparty state is that instead of being the 2,000-pound gorilla, you’re the 1,800-pound gorilla in the room.

U.S. heft left its imprint on the package of crime-of-aggression amendments adopted at Kampala.
A definition forged in the years when U.S. officials had absented themselves from ICC discussions survived with little change, save for the agreement that the offense occurs only when a U.N. Charter violation is "manifest" – an adjective deemed more stringent than others considered. Even more important was the effect that concerns voiced by the United States had on amendments setting forth the paths by which the ICC may investigate and prosecute allegations of aggression.
At Chautauqua, 2 succinct critiques underscored this effect:
► "We came out of Kampala with a consensus," said former Nuremberg Prosecutor Benjamin B. Ferencz, a longstanding supporter of making the crime of aggression punishable in international criminal fora. The consensus, in his view: "Everybody can veto everything."
► Washburn again came quickly to the point. "Any country that’s paying attention can avoid jurisdiction over it for aggression," he said, adding, "I think this was probably the outcome that the United States was hoping for but not sure they could get."

(The negotiations leading to the Kampala package, now open for states’ ratification, are aptly detailed in IntLawGrrl Beth Van Schaack's new paper, on which she recently posted.)

For the official U.S. perspective, Dialogs participants turned to one of their own – former international prosecutor Stephen J. Rapp (right), since last September the United States’ Ambassador-at-Large for War Crimes Issues. Rapp, whose arrival at the State Department coincided with the return of the United States to ICC negotiations (prior posts here and here), told the Dialogs participants:

While we had been absent from the ICC, we had not been silent in the faces of crimes that shock the conscience.

Rapp cited as proof U.S. support for the Special Court for Sierra Leone (of which he used to be Chief Prosecutor), for the International Criminal Tribunal for the former Yugoslavia, and for other tribunals.
Why the rapprochement?

The reason for our involvement in the ICC is that if there’s to be an answer at the international level for the atrocities that are being committed, tonight, it will not be in the ad hoc tribunals. It will be either at the national level, where of course it’s always best, or in the ICC.

Rapp continued:

That’s where the butchers will be tried. That’s where Americans need to be supportive, to ensure its success.

(See too this transcript of a post-Kampala press conference featuring Rapp and State Department Legal Adviser Harold Hongju Koh.) Though he deemed U.S. ratification of the ICC treaty "difficult," Rapp said that "at least at this stage we want to make it possible for this institution to succeed."
As IntLawGrrls’ own Valerie Oosterveld explained in her superb year-in-review lecture at the Dialogs (left), since late last year the United States has pursued a policy of positive engagement with the ICC. Although the United States remains a nonparty state, on a case-by-case basis it makes political or diplomatic statements in support of the ICC, considers ICC cooperation requests, shares information with the ICC, and provides the ICC with witness assistance.
Rapp gave to 2 specific examples of this policy in action:
► This spring, Congress enacted the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act (prior post); and
► Just weeks ago, President Barack Obama criticized Kenya for giving safe passage to Omar al-Bashir, the Sudanese President whom the ICC seeks to arrest on charges of genocide.

► Had Rapp spoken today rather than last week, he might have added yesterday's related news; specifically, the proclamation by Secretary of State Hillary Clinton of a "new American moment" of "global leadership," and the announcement by the United States' U.N. Ambassador, Susan E. Rice, that on September 24 Obama will attend a U.N.-organized summit on Sudan, focusing on Darfur and the impending referendum on South Sudan secession.

And what of the crime-of-aggression amendments adopted at Kampala?

On this, Rapp was rather less fervid.
Rapp described the definition of aggression in proposed Article 8 bis as "one that departed significantly from Nuremberg." He cited an International Herald Tribune op-ed that another Dialogs participant – former international prosecutor Richard J. Goldstone – had written in the runup to Kampala (prior post), and warned that definitional ambiguity could invite confused constructions and could force the ICC on one side or the other of a conflict.
A particular concern, Rapp said, is that worthy military interventions might be subjected to allegations of aggression. Resounding a note that Obama had struck in his Nobel Peace Prize Lecture last year, Rapp spoke of "the debt we owe to people who went into harm’s way and who exercised force." Referring to the Nuremberg trials (right), Rapp added, "The Nazi leaders would never have been in the dock if lives were not lost."
That note stirs many in the world to unease, particularly when it is struck by a country engaged in military intervention, Rapp acknowledged. "That’s a challenge that we in Kampala had to confront," he said, "to deal with the reality in the world while signaling our desire for a world of law, a world where law can eventually displace force."
A number of participants welcomed the United States’ embrace of ICC observer status.
Noting Rapp’s reiteration of the positive-engagement policy in his Chautauqua remarks, Oosterveld, who has served as a member of the Canadian delegation to the ICC Assembly of States Parties, commented,

I felt very heartwarmed about it because I had been there in 2000 when the United States withdrew from the ICC. To hear this from Rapp was a very, very wonderful breakthrough.

Washburn nonetheless expressed concern that as events elsewhere have moved to the fore, on the matter of the ICC "there has been a certain complacency" among U.S. officials since Kampala. He warned against too great a disconnect.

Washburn’s cautionary tale?

Reminder of the dysfunction that impeded relations between the United States and others at the Rome Conference that established the ICC.

(This series on the crime of aggression and the 4th IHL Dialogs, which IntLawGrrls cosponsored, concludes tomorrow with Part 3 (here), a report on the celebratory speech that closed the Dialogs. Part 1 of this series is here.)

Darfur.Gitmo.dot.

There's a constant in the subtext of stories about Sudan.
For years, criticism of Sudan's treatment of its western and southern regions has come from many corners -- from college campuses, political candidates, human rights groups, aid workers, even states themselves. Not much progress, for all of that:
► The western region, Darfur, remains a humanitarian-aid disaster, as posted just days ago. Moreover, the current suspension of outright civil war in that region (in light green on the map at left) seems to have a rather short fuse.
► The warrant issued in March 2009 by the International Criminal Court, for the arrest of Sudan's President on charges of genocide and other atrocities in Darfur, remains unfulfilled. Indeed, it is flouted not only by its target, Omar al-Bashir, but also by the African Union, the regional organization through which some of Bashir's fellow leaders have promised him cover against the global court.
► Meanwhile, concerns mount that the government will put off a Southern Sudan independence referendum, which a 2005 peace agreement set for January 2011. Yesterday, according to the Associated Press, a local leader predicted "the collapse of a peace accord that ended a war that killed more than 2 million people if it stalls" the election, "which could turn the arid region," in red on the map at left, "into the world's newest nation and split Africa's largest country in two."
That's the text.
Why such disarray?
Why no change given the apparent consensus, at least in the West, that the Darfur conflict needs to come to an end?

Given further apparent consensus that the Southern Sudan peace agreement should be honored?

In short, what's the subtext?

In an article published this week, the Wall Street Journal's Jess Bravin connected dots that may answer some of these questions.

Reporting from Guantánamo Bay, Cuba, on a military commission's recommendation that "former al Qaeda cook Ibrahim al-Qosi" be sentenced to 14 years in prison, Bravin wrote:

The U.S. has been working with the Sudanese government to repatriate detainees from Guantanamo Bay, according to evidence presented ....

Indications are that upon imposition of sentence, Qosi will be repatriated to Sudan, along with 9 other Sudanese men detained at Gitmo. Adduced, Bravin wrote, was a letter which said:

'Sudan is ready to cooperate with President Obama in his effort to close down the Guantanamo facility ...'

Bravin connected this readiness to cooperate to Bashir's continuing at-large status. Experts he contacted -- Juan E. Méndez and IntLawGrrls' own guest/alumna, Mary Ellen O'Connell, disagreed on whether including Gitmo in the Sudan/ICC mix was a good or bad idea.

Truth is, given the way that countries interact, conflation of the 2 is probably inevitable. So too the add-on of concerns about the on-the-ground situation in Darfur -- even apart from consideration of the ICC charges. So three the add-on of concerns about what's up with Southern Sudan.

There's yet a 4th add-on, implicit but not quite overt in these Guantánamo revelations: Sudan's been a linchpin in counterterrorism at least since the days that the government tolerated Osama bin Laden's presence there, so that the United States and its allies are loathe to dismiss out of hand any aid the Sudanese government gives to anti-Qaeda efforts.

Kudos to Bravin for bringing subtext to light.

Time now for people who care to push the United States -- and other countries with clout, in the Security Council or elsewhere -- squarely to confront the complex of issues related to policy on Sudan.

Darfur, again

'The situation is grave.'

Those few words sum up matters at Kalma (left), whose more than 80,000 inhabitants make it the largest camp for persons displaced by years of conflict in Sudan's westernmost region, locus of the International Criminal Court's stalled Situation in Darfur. (prior posts)
The words were spoken yesterday by a U.N. spokesperson based in Khartoum. He told Agence France-Presse that the government of Sudan had barred all humanitarian aid workers -- whether from the United Nations or a nongovernmental organization -- from entering the Kalma camp or the nearby town of Bilal. For its part, the government denied the charge through a local official, even as it acknowledged that the situation "'remains explosive'" in the wake of:
► last week's internecine killings among rebels; and
►the refusal by the U.N./African Union hybrid peacekeeping operation, UNAMID, to turn over persons it has detained to Sudanese officials.
In short, the words serve to remind that conflict is far from over in Darfur.

Identification of genocide victim groups

(I am very grateful to IntLawGrrls for the opportunity to contribute this guest post, which is based on my article “How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide,” 10 International Criminal Law Review 1 (2010))

Any reference to “victim groups” pursuant to the 1948 Convention on the Prevention and Punishment the Crime of Genocide likely causes an instinctive turn toward the perennially popular question of which types of groups should be included within the definition of genocide. An equally fundamental, but often overlooked, question is how such victim groups are identified. Is identification based on objective indicators of the group’s existence, or is it based on subjective perceptions of both the group itself and those around it?
The 2005 Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, by a U.N. panel led by Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, reflects what has become a conventional legal wisdom: that identification of victim groups for the purpose of genocide has evolved to such extent that it may now be based on entirely subjective evidence. At the heart of this position one usually finds the jurisprudence of the ICTY and its counterpart, the International Criminal Tribunal for Rwanda, with the latter often identified as the “birth place” of the subjective identification of victims groups.
Close examination of this jurisprudence reveals, however, significant discord between the principles espoused and the actual forms of evidence used to identify victims in a given case. Despite strong statements that a victim group may be identified based on either self-perception or the perception of perpetrators, almost no case before the ad hoc tribunals has identified a victim group using subjective evidence alone. Before the ICTR, all cases have relied on a combination of objective factors, such as evidence of the Rwandan legal and administrative system, with subjective factors, such as the self-identification of persons appearing before the tribunal.
Where, then, is the subjective evolution referred to in the Darfur Report?
It lies in the fact that the evidence that the ad hoc tribunals have labelled as objective -- for example, a legal system dividing persons into the categories of Hutu and Tutsi -- has an underlying subjective essence. The Darfur Report describes this process as follows:

[T]he process of formation of a perception and self-perception of another group as distinct (on ethnic, national, religious or racial grounds) … may begin as a subjective view, as a way of regarding the others as making up a different and opposed group, it gradually hardens and crystallizes into a real and factual opposition … from subjective becomes objective.

This notion is key to understanding the purported subjective evolution referred to in the Darfur Report. The evolution is not in the method of identification itself, but in the manner in which one understands the process of identification. Those factors -- which lawyers and the ad hoc tribunals have been quick to regard as objective (such as legal and administrative mechanisms) -- may be more properly understood as part of ongoing subjective processes of group identification. Indeed, they have long been so regarded in the field of sociology.
The first foray of the International Criminal Court into the crime of genocide in the case against Sudan's incumbent President, Prosecutor v. Omar Hassan Ahmad Al Bashir, neatly demonstrates the relevance of these issues. Although the issue arises only obliquely, that case demonstrates that the victim group itself may be different depending on how it is identified:
► The majority of the Pre-Trial Chamber I, in its March 4, 2009, decision on the Prosecutor’s application for a warrant of arrest, sought to rely on objective factors related to language, custom, and land to identify the victim group. In so doing, it identified three separate victim groups – the Fur, Masalit, and Zaghawa.
► But in her dissenting opinion, Judge Anita Ušacka focused instead on the existence of a group which, in the societal context of the counter-insurgency campaign in Darfur, is regarded simply as a group of “African tribes”. By focusing more on subjective perceptions, Judge Ušacka identified a different victim group than did her judicial colleagues. (As IntLawGrrl Beth Van Schaack posted, this past February the ICC Appeals Chamber endorsed Judge Ušacka's approach, and thus reversed the 2009 ruling of the pretrial panel. A 2d warrant to arrest Bashir on genocide was issued last Monday.)
The identification of the victim group of genocide, in short, depends on where and how one is looking in the first place.
The underlying theme is that both subjective and objective evidence of group identification is permissible, and that there is no need to “disguise” as objective those factors ultimately having subjective foundations.

(credit for photo of camp for displaced Darfuris (c) UNICEF/NYHQ2006-0559/Shehzad Noorani)

Breaking News: Genocide Charges Against Al-Bashir

As we've blogged before (see here, here, here, here, here, and here, among others) the question of whether the violence in Darfur rises to the level of genocide has been an issue of some dispute. Today, Pre-Trial Chamber I of the International Criminal Court issued a second warrant of arrest against Omar Al-Bashir, the newly re-elected President of Sudan. The issuance of the warrant is based on a finding (per Art. 58) that "there are reasonable grounds to believe" he is responsible for genocide against protected ethnic groups.
The particular manifestations of genocide charged are:

• genocide by killing members of the group,
• genocide by causing serious bodily or mental harm, and
• genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.

The first arrest warrant covering war crimes and crimes against humanity (issued in March 2009) remains extant.
As you may recall, the Pre-Trial Chamber originally rejected the Prosecutor’s application for a warrant of arrest in respect of the crime of genocide. In July 2009, the Prosecutor appealed this decision. The Appeals Chamber in Feburary 2010 reversed and remanded, finding that the Pre-Trial Chamber had applied the wrong standard of proof. The new arrest warrant is the result of a reconsideration of all the evidence under the appropriate burden of proof. It concludes that there are reasonable grounds to believe that Al-Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups. (Photo, left, from the U.S. Holocaust Memorial Museum, which has excellent facts and figures on the crisis in Darfur here).
The Registrar will now prepare and submit a supplementary request for cooperation to the Sudanese authorities, all State Parties, and the Security Council, which originally referred the situation to the Court in March 2005.
At the moment, four cases are being heard in the Darfur situation:

• The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”);
• The Prosecutor v. Omar Hassan Ahmad Al Bashir;
• The Prosecutor v. Bahar Idriss Abu Garda and
• The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

We have witnessed with shame the horrible events that occurred in Rwanda, Sierra Leone, Somalia and even here in Kenya. Thousands of Africans have been killed and displaced, women raped and forced to live as sex slaves, property destroyed and communities displaced.
As a Kenyan, and as an African woman, I can affirm that whether it is here in Kenya or in Darfur, in the Democratic Republic of Congo, in the Central African Republic or in Uganda, the need for justice is universal. The ICC is bringing us hope that we can finally see the fulfilment of the right of the victims to learn the truth, to see the perpetrators of these crimes tried, and to receive reparation. The only reason we might fear ICC is if we are guilty.

-- The 2004 Nobel Peace Prizewinner, Dr. Wangari Maathai (above left), in an op-ed, which she published yesterday in the Nairobi-based Daily Nation, reflecting on the work of the Kampala International Criminal Court Conference. (credit for photo by Martin Rowe)

ICC Review Conference Considers When International Criminal Adjudication Makes Sense

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post to IntLawGrrls' series on the ICC Kampala Conference)

KAMPALA, Uganda – As others have noted in this series of posts, the Review Conference of the Rome Statute of the International Criminal Court under way in Kampala has devoted two days to a “stocktaking” exercise. The idea was to review key issues in international criminal justice with a view to enhancing the work of the ICC. These portions of the Review Conference felt a lot like law school panel discussions, except that after the panelists spoke they took questions and comments from representatives of states and NGOs rather than from faculty and students.

Two of the stocktaking topics – peace/justice and complementarity – raised important issues relevant to the advisability and legitimacy of ICC prosecutions in particular situations. The peace/justice discussion considered whether it is ever appropriate for justice to be sacrificed in the name of peace (a question on which IntLawGrrl Kathleen A. Doty yesterday posted with regard to Darfur). The complementarity session, meanwhile, concerned how the task of providing justice should be allocated between international and domestic courts. This post provides some details on those discussions, as well as a few thoughts about what was left out.

Peace/justice

Setting the stage for the peace/justice session was Human Rights Watch Executive Director Kenneth Roth session, who questioned the common assumption that peace and justice are in conflict. As evidence of a more harmonious relationship between these goals, Roth cited the claim by Richard Goldstone, the 1st Prosecutor of the ad hoc tribunals, that the Dayton peace accord would not have been possible without the issuance of arrest warrants of Bosnian Serb leaders Radovan Karadžić and Ratko Mladić. Roth also noted that many believe the peace process was assisted both by the indictments of Charles Taylor, then President of Liberia, by the Special Court for Sierra Leone and by the ICC’s pursuit of the leaders of the Lord's Resistance Army in Uganda. In contrast, Roth noted that amnesty agreements have often failed to secure lasting peace, citing Sierra Leone and Angola as examples.

David Tolbert, formerly Deputy Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia and now head of of the International Center for Transitional Justice, opined that amnesty is now entirely off the table in conflict resolution efforts. Tolbert noted, however, that prosecutors must be sensitive to the political situation on the ground – although politics can’t impact the decision to prosecute they might affect the timing of prosecutions.

Providing a somewhat different perspective was James LeMoyne, an experienced conflict mediator. LeMoyne emphasized the importance of stopping conflict to advance human rights. He recalled the threats of commanders with whom he negotiated in El Salvador that any talk of prosecution would lead directly to more killing. LeMoyne also pointed out that many of the people with whom he negotiates have not even heard of the ICC.

Barney Afako, a Ugandan human rights lawyer, cautioned that the LRA arrest warrants may have prevented an agreement to end the war, while Cambodian activist and Khmer Rouge survivor Youk Chhang asserted that victims always want justice. State representatives also expressed conflicting views on the peace/justice debate.

While many delegates, including representatives of Congo and the European Parliament, emphasized the importance of justice for peace, China expressed the view that the two sometimes conflict and that the ICC should be more careful about exercising jurisdiction in ongoing conflicts. Iran also spoke out in favor of amnesty in some circumstances.

In sum, the discussion surfaced many of the crucial and controversial elements of the peace/justice debate. At the same time, there was little concrete discussion of the ICC’s contributions thus far to peace or justice, and even less progress in resolving how the ICC should approach the selection of situations and cases in ongoing conflicts.

Complementarity
The complementarity discussion was kicked off by U.N. High Commissioner for Human Rights Navanethem Pillay (right) (prior posts), who raised concerns about the ICC’s policy of focusing on the most responsible perpetrators. Pillay worried that the policy may leave states with the impression that national prosecutorial obligations are also limited to high-level perpetrators. Pillay also expressed the hope that the ICC’s complementarity regime would promote respect for the ability of states to conduct trials for international crimes; in so doing, she stated that the ad hoc tribunals have not always shown such respect. She implicitly criticized decisions by which the International Criminal Tribunal for Rwanda (of which she previously served as President, before becoming an ICC Judge and, subsequently, the High Commissioner) refused to transfer cases to the domestic courts, refusals based on the ICTR's conclusion that domestic trials would not meet international standards.

Two national court judges involved in adjudicating international crimes provided interesting perspectives from the national justice side. Justice Dan Akiiki-Kiiza of Uganda, along with a Congolese counterpart, emphasized that their national systems are cooperating with the ICC. Interestingly, however, Justice Kiiza also stated that the Ugandan system is both willing and able to try all suspected criminals – in effect, saying that Uganda doesn’t really need the ICC.

The state interventions after the panel were mostly pledges of support for the notions that states must take primary responsibility for prosecuting international crimes and reiterations of the view that it is appropriate for both the ICC and states to assist one another in developing such capacity.

Some states, including Spain and Germany, seemed concerned about the ICC’s policy of “positive complementarity,” whereby it seeks to assist states in bolstering their ability to prosecute international crimes. These states were concerned that positive complementarity implies some additional bureaucracy outside the confines of the Rome Statute. The German representative noted that complementarity is a negative concept in Article 17 of the Rome Statute, which precludes the ICC from intervening when a relevant state is doing so genuinely.

At the end of the session, however, ICC Prosecutor Luis Moreno-Ocampo (near left) addressed the issue. (photo credit) In Moreno-Ocampo's view, the statutory basis for “positive complementarity” is not Article 17, but rather Article 93(10), which authorizes the Court to provide various kinds of assistance to states. Moreno-Ocampo assured the states that no additional bureaucracy is needed for such assistance, since the ICC already possesses the relevant information and materials by virtue of its regular activities.

Finally, the ICC President, Judge Sang-Hyun Song (above, far left), said that in his view, complementarity is either a rule of customary international law or close to attaining that status.

In all, the complementarity discussion was fairly uncontroversial – certainly less so than peace/justice. Like in the earlier session, though, there were little in the way of concrete suggestions concerning the appropriate relationship between the ICC and national courts. A number of difficult issues remained just under the surface of the conversation – including whether it is appropriate for the ICC to prosecute “self-referred” cases if the referring government is perfectly capable of doing the job itself.

Conclusion
In all, the Review Conference’s stocktaking on peace/justice and complementarity was more interesting for its tone than its content. Unlike at the 1998 Rome Conference, where many states expressed skepticism or even outright hostility toward the notion of international criminal justice, those that spoke in Kampala were overwhelmingly supportive of the enterprise. Even non-party states that have traditionally portrayed the ICC as an improper assault on sovereignty were careful to couch their comments as broadly supportive of international justice efforts.

Anyone who was hoping for a more substantive and introspective discussion of the legitimacy of ICC action was, however, disappointed.

Dark Days in Darfur

(Another in IntLawGrrls' series of posts in connection with the Kampala Conference)

The crisis in Darfur remains on the international criminal justice agenda, not only at the ongoing International Criminal Court Review Conference ongoing in Uganda, but also, sadly, in that Sudanese region some thousand miles to the northwest of Kampala. (map credit)

In Kampala, Uganda

► At the Kampala Conference, a demand that Sudanese President Omar al-Bashir be held accountable for crimes committed in Darfur, particularly those against women and children, was made by the Nobel Women's Initiative, an Ottawa-based NGO founded in 2006 by 6 Peace Laureates: Jody Williams of the United States, Shirin Ebadi of Iran, Rigoberta Menchú of Guatemala, Irishwomen Betty Williams and Máiread Maguire, and Dr. Wangari Maathai of Kenya.

► Meanwhile, remarks this past weekend by Ugandan President Yoweri Museveni (prior IntLawGrrls post) prompted reports that Bashir had not been invited to the African Union summit scheduled for next month in Kampala, Uganda's capital city. As a Voice of America dispatch explained:

Uganda is a member nation of the ICC, and theoretically would be required to arrest Mr. Bashir if he attended the AU meeting.

But yesterday the BBC reported that after expressions of "outrage" in Sudan's capital, Khartoum, "Uganda's foreign ministry issued a statement to 'clarify' that Mr Bashir had been invited to the summit of African leaders." It's now said that the 1st statement was "misconstrued" from a remark that Bashir is in any event unlikely to attend.

In Darfur, Sudan

► Those events to the southeast occurred against the backdrop of a sharp rise in violence in Darfur itself. Dispatches this week cited a African Union/United Nations hybrid peacekeeping operation in Darfur (UNAMID) report that 600 people died in Darfur during the month of May, "the highest monthly toll since peacekeepers were deployed in 2008."

Casualties spiked after a breakdown in peace talks.

After multiparty elections in April -- Sudan's first in 24 years -- the rebels of the Justice and Equality Movement (JEM) claimed that the government had launched new raids against it, and thus walked out of negotiations then under way in Qatar. JEM announced on Monday that it intended to continue to boycott the talks, and asserted that its forces are clashing "continuously" with the Sudanese army.

Peace, justice

It is unclear whether the increase of violence and this international pressure are connected. Any possibility of a link certainly plays into one of the deepest fears voiced about the International Criminal Court, and about international prosecutions generally: that prosecutions may upset the extraordinarily fragile peace of a post-conflict nation. This "peace vs. justice" argument often is advanced as a reason that countries are reluctant to prosecute war criminals -- sometimes even decades later, as has been discussed in IntLawGrrls' series on Khmer Rouge accountability in Cambodia.

Risks seem especially high in the case of Darfur.

► On the one hand, the situation in that region of Sudan marks the first time that the ICC has issued an arrest warrant for a sitting head of state. This occurred -- and continues to occur -- amid a crisis that can hardly be said to have reached the "post-conflict" stage. The warrant issued despite the absence of ICC power actually to arrest Bashir, and despite the absence of any U.N. Security Council action to effect that arrest. This standoff may be seen as an invitation to further violence and oppression.

► On the other hand, the prospect of regional policing holds some promise. While Sudan's indicted President (right) has reportedly travelled abroad "in defiance" of the warrant for his arrest, Bashir evidently has avoided ICC member states as destinations. This leaves one with the idealistic thought that perhaps he might dare Uganda and be arrested there next month -- not to mention the overly idealistic dream that his arrest would end the cycle of violence in Darfur.

But, like most issues, the question is not nearly so simple.

While international pressure to prosecute, particularly for crimes of gender-based violence, is a good thing, the international community must also pressure all warring parties in Sudan to come back to the negotiating table. It is only with peace that prosecutions will be meaningful symbols of justice in Darfur.

Nexus of Film & Activism in Kampala

(Delighted to welcome back IntLawGrrls alumna and filmmaker Pamela Yates, who contributes this guest post to IntLawGrrls' series on the ICC Kampala Conference)

At Skylight Pictures we (Peter Kinoy, Paco de Onís, and I) spend a lot of time thinking about ways to heighten the impact of our films in order to increase awareness of human rights and justice issues. For over 25 years we’ve been committed to the art of storytelling through the language of cinema – lush cinematography, music woven in to enhance the narrative, thoughtful editing that seamlessly transports the viewer through time and space – in the belief that it will bring audiences to a deeper level of engagement.
In recent years, as social media tools have proliferated, we have adapted many of them to our mission. An example is the international justice Twitter feed on the IJCentral map, about which I blogged in this IntLawGrrls post.
But because much of our outreach work is in developing countries, we also produce lo-tech projects designed to engage audiences on the ground, for whom traveling through cyberspace is not an option.
And that’s the reason that Skylight's at the International Criminal Court Review Conference in Kampala, with 1,000 Screening Kits of our film The Reckoning: The Battle for the International Criminal Court (prior IntLawGrrls posts here and here) -- to give out free of charge to civil society organizations, to country delegations, and to the press. (Thanks to generous support from Humanity United and the John D. and Catherine T. MacArthur Foundation.) The Kits are in English and French, and include:
► The Reckoning (60-minute version)
► ICC and Africa (20-minute film)
► Peace & Justice (20-minute film)
► Screening/Discussion Guide
► Audience Survey Form
► FAQs about the ICC
The impetus to make the Screening Kits came from 180 African civil society organizations that banded together and signed a petition to protest the 2009 declaration (available here) by the African Union (logo at right) of non-cooperation with the ICC with regard to the arrest warrant it issued for Sudanese President Omar al-Bashir. While the international press focused on the AU declaration and its critique of the ICC, the pushback against impunity coming from the civil society organizations wasn’t getting any attention. The latter organisations were saying that the AU wasn’t offering the victims any justice alternative to the ICC -- that it was effectively declaring Africa an “impunity zone”. They wanted to raise public awareness of how the ICC works and how it operates as a court of last resort.
So we reached out to these organisations to see if we could produce a media tool they could use to increase awareness of the role that the ICC can play in the battle against impunity. In coordination with Pivot Pictures, a media initiative of the International Center for Transitional Justice, we coordinated with the ICTJ country offices in Kenya, Uganda, Morocco, and South Africa to work out what materials and themes to include in the Kit. After a period of exchanging ideas and getting feedback from the civil society organizations on 2 short films that we produced for the project, we arrived at the menu listed above. Now those organisations will receive their Screening Kits and go forth to use them – we’ve created an online Screening Report form for the them to use, so that we may track the use of the Kits and the impact they are having.
The Kampala ICC Review Conference is an extraordinary opportunity to have massive impact with The Reckoning and a range of short films and microdocs we produced about international justice themes. We will be screening all this material non-stop at the RC Media Centre, and we also have several screenings planned at the People’s Space, where civil society organizations from around the world are gathered this 2 weeks in order to discuss the ICC. The Kampala theatrical Premiere of The Reckoning was at Watoto Church yesterday, and there will be a national broadcast on UBC, Ugandan national television, today.
And watch for our video blogs at the RC Media Centre. They'll be posted daily at IJCentral.

ICC reports Sudan's non-cooperation to Security Council

Pre-Trial Chamber I of the International Criminal Court has rendered a decision in the case of Prosecutor v. Harun and Ali Kushayb, informing the U.N. Security Council about Sudan's lack of cooperation in the proceedings.
The decision issued Tuesday was in response to the Prosecutor's April 19 request for a finding on Sudan's non-cooperation in executing warrants, issued by the Chamber 3 years earlier, for the arrest of former State Minister for the Interior Ahmad Muhammad Harun and militia leader Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb. In these past 3 years, Sudan has refused to cooperate in efforts to deliver Harun, who faces 42 counts of war crimes and crimes against humanity, and militia leader Ali Kushayb, who faces 50 counts of war crimes and crimes against humanity, to the Court. Moreover, Sudanese President Omar al-Bashir, who himself is the subject of an ICC warrant for arrest (prior IntLawGrrls posts), has publicly denounced the proceedings and vowed never to turn a single Sudanese citizen over to the Court.
It is in this context that Pre-Trial Chamber I -- comprising Presiding Judge Sylvia Steiner (Brazil) (left) and Judges Sanji Mmasenono Monageng (Botswana) (below, near left) and Cuno Tarfusser (Italy) -- issued Tuesday's decision. It gave notice of Sudan's non-cooperation to the Security Council, which in Resolution 1593 (2005) had referred the situation in Sudan to the ICC.
While Sudan is not a party to the Rome Statute of the ICC, the Chamber noted that as a U.N. member state, Sudan is obligated under Article 25 of the U.N. Charter to comply with Resolution 1593 -- and that paragraph 2 of that resolution states that Sudan

shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor ....

In its order, the Chamber simply stated that its decision was to be transmitted to the Security Council so that the Council could

take any action it may deem appropriate.

While it remains to be seen how the Security Council will respond to the Chamber's decision, the Council has responded to reports of non-cooperation from international tribunals in the past. For example, in 1996, the Council condemned the Republic of Serbia's and Serbia and Montenegro's failure to execute arrest warrants against Radovan Karadžić and Ratko Mladić after receiving a report from the President of the International Criminal Tribunal for the former Yugoslavia that referred to an ICTY Trial Chamber's finding that neither State was cooperating with the execution of the warrants. In its statement, the Security Council demanded full cooperation from the Republic of Serbia and Serbia and Montenegro. In July 2008, as we then posted, Serbian authorities finally arrested Karadžić.

One can only hope that the ICC need not wait 12 years for Sudan's cooperation on the warrants for Harun and Ali-Kushayb.

ICC Appeals Chamber & the Bashir warrant

(Many thanks to IntLawGrrls for inviting me to contribute this guest post)

The Appeals Chamber of the International Criminal Court recently ruled against Pre-Trial Chamber I's March 2009 decision granting granting an arrest warrant against Sudanese President Omar al-Bashir (below left) only on charges of crimes against humanity and war crimes, but not for genocide charges. (photo credit) (Prior IntLawGrrls post) The Appeals Chamber's ruling has alternately been:
► Hailed as a momentous development in the ICC’s attempts to pursue Bashir; and
► Dismissed as a meaningless procedural move that could have been accomplished without an appeal—and without the seven months it took the five-member panel to reach a decision.
As I explain in my ASIL Insight on the decision, perhaps it is neither one. But it is important nonetheless.
The Appeals Chamber’s decision centered on the proper interpretation of Article 58(1)(a) of the Rome Statute, which requires the Pre-Trial Chamber to grant the Prosecutor’s request for an arrest warrant if

[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.

The Appeals Chamber held that by requiring that genocidal intent be the only reasonable inference available from the evidence, rather than only one of the reasonable inferences available, the Pre-Trial Chamber had constructed too rigorous a standard for determining what constitutes “reasonable grounds to believe.”
The Appeals Chamber, however, left it at that, and it did not define a standard for evaluating whether “reasonable grounds to believe” exist; that determination is left up to the Pre-Trial Chamber. Nor did the Appeals Chamber use its power under the ICC’s Rules of Procedure to decide on its own to issue the warrant for Bashir on the genocide charges. That, too, is up to the Pre-Trial Chamber. Given the divergence of views about whether the violence in Darfur—which according to UN officials has caused some 300,000 deaths and forced more than 2.7 million people from their homes—constitutes genocide, a decision by the Pre-Trial Chamber to issue the warrant on genocide charges is not a sure thing. And with Bashir still in power—Bashir recently received the official nomination of his party to run again for the presidency in Sudan’s April elections—the Appeals Chamber’s decision looks even less like a development of much import in the fight for accountability in Darfur.
Perhaps that is a fair assessment of the decision.
But even if it results in the ICC eventually holding a sitting head of state criminally responsible for genocide, the Appeals Chamber’s decision is also significant, right now, for what it tells us about international criminal law and about the internal dynamics of the Court:
► As a preliminary matter, the Appeals Chamber corrected an error in the Pre-Trial Chamber’s interpretation of the “reasonable grounds to believe” standard, an error which, had the Prosecutor chosen not to appeal, would have impacted future cases dealing not only with genocide charges, but also with any other crimes under the ICC’s jurisdiction.
► Moreover, beyond this important advance in interpretation and application of the Rome Statute, the decision provides a fascinating glimpse into the Appeals Chamber’s vision of its own powers relative to the Pre-Trial Chamber, and of the Pre-Trial Chamber’s powers relative to the Office of the Prosecutor. In finding error in the decision of the Pre-Trial Chamber, but reserving for that body for the ultimate determination about the standard for issuance of a warrant and the grounds for the warrant itself, the Appeals Chamber is protecting the Pre-Trial Chamber’s role as the gatekeeper for investigations, as the check on the Office of the Prosecutor, while at the same time it is preventing the Pre-Trial Chamber from too strictly performing these necessary functions.
In short, the Appeals Chamber has defined for itself a limited role in interlocutory appeals—a role that holds great power despite its limits.

Breaking News: Al Bashir Can Be Prosecuted for Genocide

As we've blogged in the past (see, e.g., here, here, & here) the question of genocide in Darfur remained an open one. The Appeals Chamber of the ICC recently ruled that the Pre-Trial Chamber had erred in a prior ruling when it failed to confirm the genocide counts proposed by the Prosecution against Sudanese President Omar Al-Bashir (right).

The new ruling is premised on the burden of proof at the arrest warrant stage. The Appeals Chamber concluded that the Pre-Trial Chamber (PTC) had essentially demanded proof beyond a reasonable doubt of Al Bashir's genocidal intent when it required proof that

the only reasonable conclusion to be drawn [from the evidence presented] is the existence of reasonable grounds to believe in the existence of the [Government of Sudan's] dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.

In so holding, the Appeals Chamber agreed with the lone dissent on the PTC, Judge Anita Ušacka of Latvia (left), who argued that the Prosecution had met its burden at the arrest warrant stage.

In its ruling, the Appeals Chamber emphasized that

the evidentiary threshold of "reasonable grounds to believe" for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges ("substantial grounds to believe", article 61 (7) of the Statute) and the threshold for a conviction ("beyond reasonable doubt", article 66 (3) of the Statute).

The Pre-Trial Chamber has been directed to re-consider the scope of the arrest warrant pursuant to the appropriate standard of proof on remand. Stay tuned!