Recent Developments in International Criminal Law: Justice, Peace, and the Role of the International Criminal Court

I have not yet managed to fix the commenting problems on my blog. Currently, I am exploring working alternatives, but this whole process will take me some more time ... so please bear with me...

Today's post will, again, not cover the difficulties of the European Union, but this fact shall not discourage anyone interested in contributing to the ongoing debate on regrouping the European Union [link to post and debate].

Instead, I would like to dwell in this post on another area of law covered extensively on this blog: international criminal law [link to my prior blog posts]. Some recent events in international criminal law have sparked some media attention and I cannot help but add my twopenn'orth:

• a former military leader was sentenced to life in prison for kidnapping, torture and murder [AP article on Menendez trial];

• another former war time leader indicted for genocide was arrested [N.Y. times article on Karadzic arrest];
  

• and an arrest warrant has been requested for an incumbent head of state on charges of genocide, war crimes, and crimes against humanity [ICC press release on situation in Darfur, Sudan].

A comparison of the above cases is incredibly revealing of the mechanisms and challenges in international criminal law. It is important to note that the first two cases (i.e. Menendez and Karadzic) differ considerably from the third (Darfur, Sudan): both Argentina and Former Yugoslavia are no longer on-going conflicts while Sudan still is.

The Menendez trial involved acts committed roughly 30 years ago and the massacre of Srebrenica happened in 1995. Since then, domestic peace has been re-established both in Argentina and Former Yugoslavia, respectively. And with some delay to their internal peace processes, both countries have tackled the issue of bringing former perpetrators to justice: Argentina with substantial delay, but self-propelling; Serbia somewhat quicker, yet upon increasing international pressure.

The situation in Sudan, however, is different. The conflict involving Darfur is still on-going and the regime accused of committing human rights violations is still in power. International peace efforts have not yet been successful. Therefore, the recent actions of the prosecutor of the International Criminal Court (ICC) [website] against the incumbent Sudanese President Omar Hassan Al-Bashir have stirred up a recurrent debate in international criminal law: i.e. the issue of the proper relationship between peace and justice.

Opponents of the recent request by the ICC prosecutor to issue an arrest warrant against the Sudanese President argue that the prospect of prosecution by the ICC might hamper current peace negotiations with the Sudanese government [see, e.g., N.Y. Times article on concerns brought by China and Russia in UN Security Council]. Proponents of an ICC arrest warrant generally put forward that an imminent ICC prosecution could allow UN representatives to press forward certain benchmarks in the current peace negotiations with Sudan [see today's International Crisis Group Weekly Update: Grono and Hara, Security Council Should Make President Meet Benchmarks]. Both arguments are, however, mainly focused on the peace negotiations and not on justice as an ultimate goal.

Therefore, I would be eager to learn your opinion on the relationship of peace and justice - in the case of Sudan, in particular, or from a more general, conceptional perspective.

Some further articles on this subject are listed below:

• Article by the Council of Foreign Relations [website] in today's Washington Post on Africa and the International Criminal Court [link to article].
• Article by Linda M. Keller, The False Dichotomy of Peace versus Justice and the International Criminal Court in the current issue of the Hague Justice Journal [link to journal website].
• My article Reconciling Peace with Justice: A Cooperative Division of Labor [link to abstract].

I am looking forward to your comments!

Presidential Elections in the US: Where Do the Respective Candidates Stand on International Law Issues?

Ever wondered about where your favorite presidential candidate stands on issues of international law? The American Society of International Law (ASIL) may have the answer. In its web-initiative International Law 2008, ASIL presents Presidential candidates' policy statements on international law topics, publishes the answers of some candidates to ASIL's candidate surveys (interestingly, though, only Democratic candidates seem to have answered the surveys), and provides some comments by ASIL Executive Council members on the question of the most important international policy issue that will face the next U.S. administration. Even as a foreigner, I find this website extremely useful.

In particular, as a strong proponent of the International Criminal Court (ICC), I found it especially interesting how candidates responded to the question what the U.S. policy towards the ICC should be. While the two leading Democratic candidates, Clinton and Obama, recognized the important role the ICC has played so far, they did not provide a clear answer whether the United States should sign the Rome Statute establishing the ICC or not. The other (former) Democratic candidates who submitted answers, Edwards and Kucinich, explicitly argued for a United States membership of the ICC. It would be interesting to know how the Republican candidates would answer this question...

Justive vs. Peace: The Role of the International Criminal Court in Northern Uganda

Today, I read a really interesting comment paper in the Weekly Update of the International Crisis Group: Justice in Conflict? The International Criminal Court and Peace Processes in Africa (by Nick Grono and Adam O'Brien). Focusing on the conflict in Uganda, the paper discusses the relationship between peace and justice. I was impressed by the positive impact of prosecutions by the International Criminal Court (ICC) on peace negotiations.

U.N. Security Council and the Future of the ICC: Some Comments After the Authorization of UNAMID

Darfur has become an allegory for human rights violations and, according to the International Crisis Group [website], the situation has even deteriorated since the signing of a peace agreement in 2006 [click here for full report]. In 2005, the U.N. Security Council had referred the situation in Darfur to the International Criminal Court (ICC). Click here for Resolution 1593 of 31 March 2005 [pdf, in English]. This year, the ICC issued warrants for the first two suspects; yet, mostly due to the Sudanese government's defiance of the ICC, the execution of those warrants is still in the air. For previous posts on this topic, click here and here.

This week's U.N. Security Council Resolution 1769 [press release and text], which authorizes a joint U.N.-African force (UNAMID) for the Darfur region, could be a first step towards fighting impunity in Darfur. It illustrates that the U.N. is unwilling stand idly by. Maybe the U.N. should also give more attention to prompting the Sudan government to cooperate with the ICC ... Nick Grono and Donald Steinberg of the International Crisis Group have written an interesting article [text, in English] on how the ICC's future may depend upon the involvement of the U.N. Security Council.

Japan Accedes to the Rome Statute

Recently, on July 17, 2007, Japan acceded to the Rome Statute and will thus become the 105th member. For more information, click here [press release, in English].The Rome Statute constitutes the treaty that establishes the International Criminal Court (ICC). The Statute was adopted on July 17, 1998. The ICC is a permanent court with jurisdiction over crimes against humanity, genocide and war crimes. For more information, click here [website of ICC] and visit previous posts.

Hopefully, this recent accession by Japan serves as a role model for other states that are currently reluctant to acknowledge the ICC's authority ... At least, it strengthens the international task force against human rights violations and further drives perpetrators into a corner.

Fifth Anniversary of the Rome Statute

Five years ago, on July 1st, 2002, the Rome Statute establishing the International Criminal Court (ICC) entered into force. Meanwhile, 104 States have become parties to the Statute ... a fact that, according to the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, shows that the ICC is a "landmark in international justice." [U.N. News Centre] Furthermore, the Prosecutor points to the awareness raising impact the court already has, noting that "States recognize now that there are some limits, and that there can be no more genocide [...]." [U.N. News Centre]. Yet, the ICC is not supported worldwide. Some countries like the United States, China, and Russia are still not Parties to the Rome Statute. The Nuremberg Human Rights Center [website] on behalf of the Foreign Office of the Federal Republic of Germany and in collaboration with the Goethe Institute has created an exhibition on the ICC. The exhibition will be mainly displayed in States that are not (yet) Parties to the Rome Statute in order to promote the ICC's cause specifically in those countries. A brochure on the exhibition [pdf, in English] can be downloaded from the ICC page of the Nuremberg Human Rights Center.

An Obstreperous Defendant

The long anticipated trial of former Liberian President Charles Taylor has started in the Hague - without the defendant. In a letter, Taylor called the U.N.-backed Special Court for Sierra Leone (SCSL, website) a farce and challenged the court's ability to "dispense justice". Furthermore, Taylor's lawyer Karim Khan informed the court that he had been fired by his client and refused to represent Taylor during the initial meeting. Despite the absence of both defendant and counsel, the court decided to hear the prosecution's opening statements. The trial will continue in three weeks. For further information on the events, click here (JURIST article, in English).

Charles Taylor, who is charged with crimes against humanity and violations of international humanitarian law, seems to assume a similar strategy as former Yugoslavian President Slobodan Milosevic: Both tried to discredit the court before which they were summoned. The fact that both the SCSL and the ICTY are ad hoc tribunals, i.e. U.N.(-backed) courts that are established for one particular conflict, certainly invites such conduct. Accordingly, it is all the more important to endorse the International Criminal Court (ICC, website) - an independent and permanent institution with jurisdiction over genocide, crimes against humanity, and war crimes.

ICC vs. Sudan - Who has Jurisdiction over Darfur?

Last week, I reported on the chief prosecutor of the International Criminal Court (ICC) naming the first suspects in the case involving the situation in Darfur. One of those named suspects, Ali Kushayb, should be tried yesterday by the Darfur special court in El-Geneina, Sudan. This trial, however, was delayed due to an appeal filed by the accused [Reuters UK].

The Kushayb trial is just another way for Sudan showing its opposition to the current ICC investigation of the situation in Darfur. Thus, in 2005, when the U.N. Security Council referred the Darfur conflict to the ICC, the government in Sudan reacted with the formation of the Darfur special court [Reuters UK].

By conducting its own proceedings, Sudan tries to circumvent the ICC jurisdiction. According to the Rome Statute [text, pdf], the jurisdiction of the ICC is determined by the principle of complementarity which makes the admissibility of a case before the ICC dependent on the lack of a genuine prosecution in the original state (here Sudan).

The chief prosecutor of the ICC addressed the issue of admissibility in his opening remarks in connection with the naming of the first two Darfur suspects [text]:

The Government of the Sudan informed the Prosecution that Ali KUSHAYB is under criminal investigation and was arrested on the 28th of November 2006.

Our case is about Ahmad Harun and Ali Kushayb joining each other to attack the civilian population in Darfur. There is no such investigation in the Sudan.

On this basis, the Prosecution has concluded that the case is admissible. To be clear, the admissibility assessment is not a judgement on the Sudanese justice system as a whole. We are just assessing if the Sudanese authorities are carrying out the same case.

Thus, the chief prosecutor of the ICC, as of now, refuses to question the candor of the Dafur special court proceedings and relies on the assertion of joint responsibility as a factor sufficiently different to warrant parallel ICC proceedings. It remains to be seen how this strategy works out.

Chief Prosecutor of International Criminal Court Names First Darfur War Suspects

On Tuesday, the chief prosecutor of the International Criminal Court (ICC) announced the first suspects in the case involving the situation in Darfur. The Prosecution claims [ICC-OTP press release] to have found reasonable grounds to believe that Ali Kushayb, leader of the pro-government janjaweed militia, and Ahmad Harun, former Sudanese interior minister, have jointly committed crimes against humanity and war crimes. By accusing senior figures of Sudan of international crimes, the Prosecution follows its policy to focus investigation and prosecution efforts on the big fish.

Tuesday's announcement came two years after the UN Security Council had referred the situation in Darfur, Sudan, to the prosecutor of the ICC [Security Council press release]. Besides Darfur, the following three situations have been referred to the prosecutor of the ICC: Democratic Republic of the Congo, Uganda, Central African Republic.

A Pre-Trial Chamber of the ICC now has to review the evidence submitted by the Prosecution. If the judges find that there is indeed reasonable grounds to believe that Kushayb and Harun committed the alleged crimes, they have to decide how to further proceed, specifically, how to ensure Kushayb's and Harun's appearance in court. This raises the important question of execution of arrest warrants issued by the ICC. The ICC lacks its own enforcement mechanism and therefore has to rely on state cooperation. Hence, what if a state is either unable or even unwilling to execute an arrest warrant issued by the ICC?

The chief prosecutor of the ICC has recently called on academics and practitioners to publish on the topic of international criminal prosecution [Jurist Forum].