IJCentral: International Justice Central

Tunisia Leads Arab Democratic Transition
October 23, 2011 set the first democratic elections in the Middle East since revolutions swept the region. After years of rigged elections under now-ousted President Ben Ali, Tunisians, both inside the country and those living abroad, elected a constituent assembly that will write a new constitution, appoint a government to replace the interim government, and set dates for the parliamentary and presidential elections. Along with leading the way in the Arab revolution on January 14th, ousting an authoritarian leader, and now, holding the first representative elections, Tunisia has became a state party to the International Criminal Court (ICC). On June 24, Tunisia became the 116th state to accede to the ICC’s governing treaty, the Rome Statute that entered into force for the country in September.

H.E. Ambassador Ben Becher expressed Tunisia’s “commitment to supporting the efforts of the court in order to put an end to impunity, promote accountability, broaden its scope of action and enshrine its universal character”. Tunisia has already shown a commitment to international law, namely, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by refusing to extradite the former Libyan prime minister to Libya where he would be at risk of torture. According to the ICC, the President of the Assembly of States Parties to the Rome Statute commended Tunisia’s decision as an expression of commitment to the rule of law and the country’s future, adding, “Tunisia’s accession to the Rome Statute is also a testament of the profound changes brought about by the ‘Arab Spring’, which started in Tunisia”. 

Islamic Parties’ Appeal
The democratic elections resulted in the Al-Nahda (Renaissance) party, founded in 1981, winning forty percent of seats in Tunisia’s 217- member constituent assembly. Other winning parties included the Progressive Democratic Party and the Etajdid Movement. Al-Nahda was the strongest opposition force in Tunisia before the crackdown that forced Ghannoushi, the movement’s leader, out of the country in 1989. Upon the fall of Ben Ali, Ghannoushi returned from 21 years of exile in London. The Al-Nahda Party, a long-banned Islamist movement, had not been involved in Tunisian elections since 1989 and was legalized after the ouster of Ben Ali in January. The party identifies itself as a democratic Islamic party advocating Islam as a political solution. What is important to keep in mind during these representative elections is that the revolution was not led in the name of a single political party or Islam but rather stressed universal human rights, democracy, dignity, and even secularism. This can only confirm that parties such as these will not be allowed to exploit the revolution or they will be removed.

One aspect of the success of Islamic parties is their role as organized opposition to the former corrupt regimes. Under Ben Ali and Mubarak, Al- Nahda and the Muslim Brotherhood, respectively, were placed in a negative light. Now that those regimes themselves have been revealed to be corrupt, the Islamic opposition parties have become relatively favorable. Al-Nahda has also invoked nationalist rhetoric and pride, stressing the need for Arabic to emerge as the prevalent language and also a factor uniting Tunisia with the rest of the modern Arab world. These parties are identifying ways to reach their constituents and are getting better at doing so. Al Nahda has its own website, Nahda.info in Arabic, and Egypt’s Muslim Brotherhood (Ikhwan) has its Ikhwanweb in English which claims: “From the beginning, Ikhwan’s goals were both social and political, promoting the causes of benevolence, charity and development on the one hand, and nationalist independence and Islamism on the other… This goal has been expanded to include the full establishment of shari’ah”. Yet this is not to say that countries electing Islamic representatives will be completely Islamicized. In fact, under Bourguiba and Ben Ali, Sharia law had already been implemented in courts in terms of family law, and its practice is not something to be attributed to Al-Nahda.

It is too early down the path of transitional democracy to predict the success of new governments with a considerable Islamic influence. Yet Turkey has been constantly cited as an appropriate “model” for the democratizing Arab countries. Prime Minister Erdogan’s Justice and Development Party operates using the French concept of laïcité, while simultaneously maintaining Islamic values. His popularity among Arab states has risen in his recent stance against Israeli injustices with regards to Palestinians. The Turkish ability to reconcile Islam, democracy and simultaneously achieve economic expansion is viewed as exemplary and remarkable.

Western response
In her speech at the National Democratic Institute on Monday, Secretary of State Clinton addressed inconsistencies in U.S. policy toward the revolutions. The U.S.’s so far fickle policies toward the various regional uprisings was recognized, and a pledge for the United States to work with the Islamist Al-Nahda party in Tunisia was made. It seems to be in the U.S.’s best interest to engage with these different forms of democratic representations, whether or not it views them favorably. Democracy involves the will and participation of the people, and future election results will most likely reveal an Arab desire to shift away from Western- backed governments like the ones they’ve had for decades prior. Whether this trend will be in U.S. and foreign interest should not undermine the movement’s representative and democratic characteristic. At the same time, while the West should evolve in terms of its foreign policy in the Middle East, the ideological movements in the Arab countries will need to adjust to the different post- revolutionary reality.

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com

Some say it’s “too bland”. Others brand it a “form of torture”. Notorious detainees held at the UN International Criminal Court (ICC) detention centre in Scheveningen have cause for complaint when it comes to the food being served by the Dutch. There is an alternative – as long as your wallet is fat enough.

Complaining about prison food isn’t new. We’ve moved on from the old days of bread and water, but for the prisoners in the UN section of the Scheveningen prison, just outside The Hague, meal times are not a piece of cake either.

Cookery club
“My rights are not being violated, but the food is an abomination,” declared former Liberian president Charles Taylor when he was brought to trial at the Special Court for Sierra Leone in Scheveningen in 2006.
Taylor, who was accused of crimes against humanity and orchestrating war crimes carried out by militias, was used to his own personal cook who made spicy African meals.

Unable to adjust to Dutch culinary blandness, he set up a cookery club using the facilities at the Scheveningen remand centre.

Daily torture
Extreme Serbian nationalist and former paramilitary leader Vojislav Seselj is another notorious prisoner who slams the Dutch diet. Seselj, who was charged by the International Criminal Tribunal for the former Yugoslavia (ICTY) with crimes against humanity, arrived in Scheveningen in 2003.

During one of the hearings in his trial, he publicly castigated the remand centre’s menu. The food was “a daily torture. Even pigs wouldn’t go near it.”

It’s unclear whether Seselj just couldn’t stomach the traditional Dutch potatoes, meat and veg combination – the standard menu served in the detention centre - or whether he was referring to the way it was prepared. The Serbian demanded that he be given prison food “fit for human beings”.

But doesn’t everyone long for the food from his or her home country?

Hamburger-Seselj
And are the complainers not just plain spoiled? In better times, 57-year-old Seselj enjoyed copious quantities of calorie-rich food.

His favourite restaurant near Belgrade served the renowned ‘Pjeskovica’, better known as Hamburger à la Seselj – super-sized, heavily-spiced, with bounteous sauces and salads. The Serbian nationalist found it literally finger-licking good.

Apparently, he’d drive out of his way for a Pjeskovica burger. Since coming to Scheveningen, he has shed a lot of pounds.

Healthy and balanced
The ICTY says all the fuss is blown out of proportion. The food is “healthy and balanced”. It is prepared according to Dutch rules, which allow for three meals a day, including one warm microwave meal.

But detainees are also permitted to cook themselves. There is a wide selection of ingredients in the prison shop – including products from the Balkan region.

Seselj claims his campaign isn’t just for his own benefit. If you want to do your own cooking in the detention centre, you have to pay for the ingredients yourself. A choice not open to everyone.

Nonchalant
The Yugoslavia Tribunal also remains nonchalant in its response to this argument. “The prices in the shop are not exorbitant and many detainees have enough money to shop there. They can also earn money if they work in the prison, or if they have savings or get remittances from family and sympathisers,” a spokesperson said.

There are ways to escape Scheveningen’s food regime and to have a tasty dinner put on the table. But, on the other hand, life in a remand centre has drastic limitations – so surely, serving food that is seen as a punishment can be avoided.

An opportunity to enhance the image of the international courts?

Read original article here.

Read original article here.

Hilary Clinton thought it was funny. Millions rejoiced and took to the streets in celebration. Some were simply disgusted. Others worried about what it all meant, for Libya and for justice. Indeed, the reactions to the death of Muammar Gaddafi have been remarkably mixed and contradictory. In particular, there has been a vast gulf between those who see Gaddafi’s killing as having finally served justice to a man who reigned, at times brutally, over his police state and those who viewed his killing as a concerning demonstration of injustice. Perhaps even more worrying is the reality that, rather than being exceptional, Gaddafi’s killing is part of an increasingly acknowledged trend which may challenge not only international law but the nature of justice itself.

The “Justice Cascade”

Numerous scholars, diplomats, human rights activists and lawyers often proclaim that we live in a world where impunity is a thing of the past. This high rhetoric represents the belief that international criminals – including heads of states who perpetrate war crimes, crimes against humanity and genocide – have no place to hide. Even if they escape justice now, accountability will catch up with them eventually.

Kathryn Sikkink, for example, recently published The Justice Cascade, wherein she argues that we have been in the midst of a tectonic normative change in how we deal with human rights abuses and international crimes. Today, Sikkink argues, the world expects that leaders who abuse their people will be held to account. That is the conclusion we should draw, according to Sikkink, from the experiences of Argentina’s junta trials, the indictment for Pinochet, and from seeing Slobodan Milosevic in the dock. But does Sikkink’s notion of a “justice cascade” represent an accurate reflection of the way the world is or is it instead a form of talking norms into reality?

Blinded by the Light

It is worth wondering whether part of the reason so many observers were so shocked by Gaddafi’s death was because they believed in the justice cascade. Surely, a justice cascade existed, Gaddafi would have been presented alive, in front of his victims, in a cold court room, rather than dead, his corpse lying half-naked in a cold storage container.
Indeed, it seems that the belief in a settled norm where leaders who commit international crimes are held legally accountable is an expression of hope of where international politics could go, rather than a reflection of where it actually is.Shaping the belief that a norm of international accountability exists is a selection bias in the narratives of transitional justice. For example, most studies tend to look at only one type of mechanism with criminal prosecutions being by far the most popular. The result is that much greater attention has been paid to the fact that leaders like Pinochet and Milosevic sat in the docks of international tribunals than to the fact that the use of amnesty laws to protect perpetrators of human rights violations has actually increased in recent years.

Remarkably, only in 2010 was the first truly comprehensive quantitative analysis of various transitional justice mechanisms produced. The conclusions drawn from the study by Tricia Olsen, Leigh Payne and Andrew Reiter run in direct contradiction to what many have for so long believed by demonstrating evidence that: first, that the use of trials with amnesties has a positive effect on democratization and respect for human rights; and, second, that when taking into account the increased number of national transitions from violent autocracy to peaceful democracy, the frequency of trials has not actually changed at all.

Gaddafi and the “InJustice Cascade”: A Worrying Trend

The extent to which expectations were created that Gaddafi would face his day at the ICC, masked the reality that his killing was, unfortunately, no surprise. Nor was the fact that his death was called “justice” surprising. Killing Gaddafi only comes as a shock if we are blind to the trends which suggest that killing Gaddafi and calling it “justice” was not unlikely. It is worth remembering that following the assassination of Osama bin Laden, President Obama declared that anyone who questioned whether bin Laden’s killing was just “should get their head checked.”

In his thoughtful and thought-provoking post at the JURIST, Kevin Govern laid out an emerging trend wherein “[e]xtensive tracking, investigation and a lengthy trial process for trying tyrants and terrorists may be supplanted by the trend of foreign intervention, targeted killings and domestic extrajudicial sanctions of foreign intervention, targeted killings and domestic extrajudicial sanctions.” The proof, as it were, is in the pudding: the killing of individuals like bin Laden and Gaddafi, as well as the dramatic increase in the use of drone strikes by the US is symptomatic of a shift in practice towards eliminating enemies rather than ensuring they face justice in front of judges.

Scholars, pundits, and diplomats can debate ad nauseam that the bin Laden assassination isn’t the same as the Gaddafi killing which isn’t the same as using drones. And they would be right – they are not the same. But they do have two troubling key elements in common: first, they suggest an increasing practice of eliminating inconvenient enemies by killing them and second, they have been framed as just and necessary acts.

What a Difference a Few Months Make: Fighting Back

A remarkable feature of the “Arab Spring” was the demonstration that a region of the world not known for being a champion of international criminal justice was speaking in the language of accountability, respect for human rights, and the rule of law. More recently, however, hopes for justice and accountability have been challenged on a fundamental level. The fact is that killing leaders like Gaddafi is in direct contradiction to what international criminal law and justice is attempting to do. Such acts are in contravention of any possible “justice cascade”. Not only does killing remove the possibility of such leaders ever being held legally to account for their crimes, but framing Gaddafi’s, bin Laden’s and other deaths as “justice” brings the “justice” served by assassinating and killing enemies into the same moral space as the “justice” served by holding individuals to account by trial.

The palpable trend of killing adversaries rather than bringing them to account in front of a panel of judges – whether in The Hague or elsewhere – presents perhaps the most significant normative challenge to the possibility of living in a world where international criminal justice is the rule and not the exception. For some this may be painting a picture a few shades to stark. But my premise is rather simple: to ensure that accountability and not killing does become the new norm, advocates of international justice need to stop talking about the world they wished we lived in and start dealing with the shortcomings and injustices of the one we do live in.

A historic ruling convicting 16 people accused of crimes against humanity was handed down by a Federal Court in Buenos Aires on October 26. They were convicted of arbitrary detention, torture and unlawful killing, committed at the Naval Mechanical School (ESMA) during the military dictatorship that ruled Argentina from 1976 to 1983.

The 16 included former naval officers that used the ESMA as a clandestine detention and torture facility. Twelve were sentenced to life imprisonment; two to 25 years; one to 20 and one to 18 years in prison. Two of the accused were acquitted but will remain under arrest pending other cases. One of the persons convicted is Alfredo Astiz, also known as the Argentine “Angel of Death”.
The trial lasted almost two years and covered 86 separate crimes. It included testimony from more than 150 witnesses, including 80 survivors. Although the verdict was given in October, the entire ruling will only be published in December.

This is the first case that addresses the gross human rights violations perpetrated in the ESMA centre and it is expected that another trial will take place in 2012 over other human rights violations allegedly committed in this detention facility.

ESMA, a landmark case
The Escuela Mecánica de la Armada (ESMA) is a former navy school which became the biggest clandestine detention centre during the military dictatorship. It is estimated that more than 5,000 people were arbitrarily detained, tortured and ‘disappeared’ at this facility. Fewer than 200 of these are believed to have survived.

According to testimonies, including from one of the accused, Antonio Pernías, many of those detained at ESMA were thrown into the nearby Río de la Plata from aeroplanes, in the infamous Death Flights. Nowadays, the ESMA is open to the public and serves as a human rights memorial.

The conviction of the Angel of Death
One of the most symbolic suspects in this trial, Alfredo Astiz, was sentenced to life imprisonment. He was known as the Angel of Death and was accused of torture, murder and other crimes. He managed to infiltrate the Mothers of Plaza de Mayo, pretending to be searching for his missing brother. Among his victims are the French nuns Alice Domon and Léonie Renée Duquet, journalist and writer Rodolfo Walsh, and the founders of the Mothers movement: Azucena Villaflor, Esther Careaga and María Bianco.

Astiz often challenged the authority of the court to put him to trial, claiming it was political. During the closing remarks, he accused the court of being partial and handed a copy of the National Constitution to the presiding judge.

Junta trial, amnesties and today
More than 600 cases have been brought to national courts since the Trial of the Juntas in 1985.

According to the Specialized Unit of the National Prosecutor’s Office in charge of human right proceedings, since 1983, approximately 262 people have been convicted and 802 have been charged for crimes committed during the military dictatorship. There are currently 14 more cases being tried, and 10 more are scheduled to begin trial.

Justice and the road ahead
The first ESMA verdict reflects one of the findings of the Nunca Más Report. Approximately 30,000 people were murdered or disappeared during the military regime and although this marks a significant effort by the judiciary, there are other trials pending, especially in the interior of the country.

Pablo Parenti, the Coordinator of the Prosecutor’s Office for these cases, says the there is a need to gather as many cases as possible into one trial in order to have a speedy judgement and avoid unnecessary delays. However, as important as the first ESMA trial might have been, “the challenge is to fight the idea that the job has been done”. For many this statement rings true not only for Argentina but also for Brazil, Chile, Colombia, Peru, and Uruguay.

—-

By Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco in Buenos Aries
Re-posted from Radio Netherlands Worldwide. View the original post here.

Last week saw the death of Libyan Colonel Qaddafi, August saw the beginning of Mubarak’s trial in Egypt, and early on in January the world witnessed Ben Ali flee from Tunisia to Saudi Arabia. As the authoritarian rulers of the Middle East and North African region are slowly but surely being deposed, one question arises: What of Syria’s Bashar al-Assad? The Syrian president and Syrian military forces have been responsible, since protests began in March, for the death of more than 3,000 revolutionaries and the displacement of more than 10,000 civilians to neighboring countries such as Turkey and Lebanon. The Free Syrian Army, consisting of about 15,000 defected soldiers and the Syrian National Council (SNC) have emerged as the main opposition groups claiming to represent the revolution. As groups such as these continue to organize and gain support, they have the potential to undermine Al-Assad’s legitimacy and the decades-long rule of his family. It is hard to imagine how a leader who has killed so many of his citizens and whose power rests on the support of a few powerful elites and the army, plus the unwillingness of certain international actors to condemn him, can possibly rule for much longer. It is logical, therefore, to see this as a point of no return for the Assad regime; the important question to consider now is not if and when, but how Al-Assad will be deposed.

Possible exit strategies for Al-Assad resemble those of his former fellow Arab leaders, namely: defeat at the hands of the opposition, asylum in a country that would agree to harbor Al-Assad, and legal trial. Let’s examine the first option: The actual capture of Al-Assad would require months of intense and bloody fighting. The seizure of Damascus and government headquarters in the capital would most likely prove to be a long and brutal process, resulting in large numbers of civilian deaths and massive infrastructural damage. While there have been no considerable protests in Damascus compared with Hama and Homs, local businessmen have in fact supported the opposition through large monetary transactions, contributing to the dissent. To avoid a similar fate to Qaddafi, Al-Assad should step down and let his future be determined by trial. After all, who wants to see the humiliating image of another Arab leader’s rule end with his being captured from a hole in the ground?

Seeking refuge from a sympathetic regime is another potential escape route, but with Assad’s reputation worsening, his options are becoming limited. At the start of the Syrian uprisings in March, countries such as Turkey were working to secure a safe exit for Bashar. However, as the leader proved obstinate in clinging onto power, causing the death of thousands along the way, he earned the status of a pariah. Today, countries like Iran still provide a viable option for Assad. But in this case, justice would not be achieved. Let’s remember, this is not a leader like Tunisia’s Ben Ali who stepped down immediately. He has been responsible for the death, imprisonment, and displacement of thousands and should be held accountable for such actions.

The most viable option for Al-Assad and for post-revolutionary transitional justice in Syria is trial at the International Criminal Court (ICC). One of the advantages of having Al-Assad tried by an international court rather than a local one is that the transitional Syrian National Council will be able to orchestrate a quicker transition and focus its resources on restructuring the government rather than on a distracting trial as has been the case in Egypt. So far, Mubarak’s trial has been postponed twice and procedures to replace the first judge for the case have been put in place. Meanwhile, Egyptian presidential and parliamentary elections have been stalled, and much of the public has instead been concerned with trial updates.

There have been calls for international trial by protesters both in Syria and abroad. In a recent protest in New York calling for the end of the regime, I heard Syrian Americans chanting, “Bye Bye Assad, we want to see you in The Hague”.  It is now the role of the international community to respond to these internal demands and take action to delegitimize the regime. The U.N. Security Council has been urged to refer charges of crimes against humanity by Al-Assad to the ICC. U.S. Senators have written similar pleas to U.N. Ambassador to the U.S., Susan Rice. The U.S. has also called for targeted sanctions against the regime, which would constrain profit from oil that is currently being used to fund military operations. However, China, which holds energy contracts, and Russia, which seeks to preserve its military agreements with Syria, have vetoed such attempts, prolonging the Syrian struggle and the possibility of international law playing a positive role in the country.

The current factors on the ground are stalling potentially successful transitional methods. As of this week, the Syrian president has made agreements with the Arab League to stop violence against peaceful protesters and for negotiations between the regime and the Syrian National Council.  Already, protesters have been killed and more proof of Al-Assad’s noncompliance is to be seen as Friday protests continue. This agreement appears to be a time-buying ploy from Assad, but eventually, if the Arab states are unable to put effective pressure on Al-Assad, the violence will continue and the likelihood of the international community imposing sanctions or taking military action will increase.

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com

By   Ruti Teitel November 2, 2011, 5:24 pm

NEW YORK: Barack Obama has promised to send a group of 100 armed United States military personnel to Uganda — a high-powered posse to help bring to heel (and to justice) the notorious war criminal Joseph Kony, the leader of a brutal rebel group known as the Lord’s Resistance Army. “These forces will act as advisers to partner forces that have the goal of removing from the battlefield Joseph Kony and other senior leadership of the LRA,” Obama wrote in a letter submitted to the leadership of the American congress.

Obama’s foreign policy is often criticized for being reactive or improvisational. But this latest intervention exemplifies the doctrine that he set out in his Nobel acceptance speech in 2009. “Those regimes that break the rules must be held accountable,” and so should their leaders, who are “sworn to protect and defend.” Force might well be necessary to implement the doctrine, because “the world must remember that it was not simply international institutions that brought stability to a post-World War II world.”

Obama can count on at least some bipartisan support at home for the initiative against Kony: a bill requiring US action against the LRA was signed into law in May 2010, with support from Democrats and Republicans in both houses of Congress.

The logic of pursuing Kony closely resembles that of the recent NATO-led intervention in Libya. In that case, operating under a United Nations Security Council resolution, and with broader support, including from the Arab League, the United States and its allies intervened for the ostensible humanitarian goal of preventing the mass killing of civilians at the hands of forces loyal to Colonel Muammar El-Qaddafi.

But the Kony operation is different. Whereas the airstrikes in Libya were mandated to protect civilians from imminent attack, in Kony’s case the sole stated operational objective is his removal from the battlefield, so that he can be brought to justice at the International Criminal Court in The Hague. The ICC indicted Kony and four other LRA commanders in 2005 on charges of war crimes and crimes against humanity.

The LRA, which first emerged in northern Uganda in the late 1980’s, is blamed for at least 30,000 deaths and the displacement of two million people. It is notorious for abducting and forcibly recruiting children into its ranks, hacking off its victims’ limbs, mass rape, and sexual enslavement of girls. It is now five years since Kony and the LRA were referred to the ICC — by Uganda itself, reflecting its own lack of capacity to deal with the rebel movement.

What, then, is the legal basis for what the Obama administration is doing? After all, the US is not a member of the ICC. Moreover, the conflict in Uganda is largely internal, and the US operation is not premised on individual or collective self-defense, unlike recent operations in Afghanistan, Pakistan, and Yemen. And yet Obama has asserted that sending US troops to Uganda is in “the national security and foreign policy interests of the United States.”

Such a conception of national interest can rely only on full acceptance of the UN’s “responsibility to protect” doctrine, approved unanimously by the General Assembly in 2005. Accordingly, foreign forces must protect the population from a monster, because Uganda says that it lacks the capacity to do so itself. In the words of Jason Russell, founder of the charity Invisible Children, “It isn’t a political issue. It is a human issue.”

But, as Obama has recognized, the responsibility to protect is also a national-security issue. That recognition reflects a growing trend in international affairs: concerns about human security are displacing — or, as in the US, being subsumed under — traditional Realpolitik.

At the same time, US troops in Uganda are subject to legal limits — at a minimum, the Geneva Conventions, whose most important norms include the prohibition of murder, torture, and cruel treatment. Civilians may not be targeted; the principle of proportionality requires the avoidance of excessive force in pursuing a legitimate military objective; and prisoners must be treated humanely. Obama has stated that the advisers will use force only in self-defense. At the same time, obviously, they will be working in close cooperation with Ugandan forces.

But does the Uganda operation, following so closely on the Libya intervention, herald a police role for the US whenever the UN or the ICC — which, lacking their own police force, rely on their members and interstate cooperation — judges it necessary? Given America’s reluctance to join the ICC (or to bring its own torturers to justice in US courts), such a role would be vulnerable to both international and domestic political attack.

Nevertheless, the extent of US cooperation with the ICC has exceeded even the constructive role that the Obama administration had proposed. Evidently, American policymakers are increasingly receptive to the potential of international criminal justice to undergird the terms of a new form of global engagement.

Ruti Teitel, a professor of international law at New York Law School and a visiting professor at the London School of Economics, is the author of Humanity’s Law. This commentary is published by DAILY NEWS EGYPT in collaboration with Project Syndicate (www.project-syndicate.org).

BY DAVID BOSCO | OCTOBER 31, 2011
Click here to read the original article.

If the latest media reports are to be believed, Muammar al-Qaddafi’s most famous son and one-time heir, Saif al-Islam, is thinking about surrendering himself to the International Criminal Court (ICC). In June, the court charged him, alongside his now-deceased father and Libya’s intelligence chief, with war crimes and crimes against humanity. Most accounts now place Saif somewhere in southern Libya or Niger, negotiating with the international court through intermediaries. It’s not clear how serious those negotiations are, but a man who’s just been bombed by NATO, had his father executed, and fled across the desert, may well find a comfortable cell in a quiet Dutch suburb increasingly attractive.

If Saif does manage to get himself to The Hague, he would instantly become the young court’s most famous prisoner. The ICC, which opened its doors in 2002, has struggled to get hold of its most prominent targets, including Sudanese president Omar al-Bashir and Lord’s Resistance Army commander Joseph Kony. So a 39-year old jet-setter who once wrote a London School of Economics (LSE) dissertation on global governance could become a key test case for an international court still trying to prove itself. 

For the court, turning precious custody into an actual conviction will not be simple, however. The ICC’s own rules and the weirdness of the Qaddafi regime could haunt international prosecutors.

The prosecution’s first task would be simply holding onto its prize catch. Libya’s new authorities would likely bid to get him back, and the court’s statute gives them that right. The ICC is designed to complement, not supplant, national court systems. A Libyan spokesman recently insisted that Saif should face justice at home. “We will not accept that our sovereignty be violated like that,” he said. “We will put him on trial here.”

If Libya does launch a domestic case against Saif, the international court first would have to determine that the country’s new authorities aren’t able or willing to hold a genuine proceeding. The judges would have plenty of evidence to draw on; the execution of Col. Qaddafi at the hands of his captors does not instill great confidence in Libyan justice. By most accounts, the decades of Qaddafi rule left the country without even basic institutions. But the international judges at the The Hague may also hesitate to publicly damn the new government by declaring it incapable of administering justice.

If the ICC does insist that Saif remain in The Hague, the key legal question will be what authority he had in Libya during the key weeks in February and March when the government chose to crush the protest movement. Muammar Qaddafi’s conceit was that Libya was actually ruled by the masses, a self-styled political philosophy called jamahiriya, and neither he nor his son held a formal government post. Saif himself led a peripatetic, quasi-official existence. A trained architect fluent in several languages, he also headed up a charity foundation, studied for several years at LSE, hobnobbed with British elites, and cared for pet tigers. He sometimes negotiated on behalf of his father, but he also criticized the regime’s policies and, in 2008, even publicly renounced politics. Outside of Libya, he was widely perceived to be a voice for reform. LSE political theorist David Held once described Saif as “someone who looks to democracy, civil society and deep liberal values for the core of his inspiration.” 

In granting the arrest warrant, the court’s judges grappled with the muddiness of Saif’s role in the regime. “There are reasonable grounds,” they wrote, “to believe that Saif Al-Islam Qaddafi, although not having an official position, is Muammar Qaddafi’s unspoken successor and the most influential person within his inner circle and ... exercised control over crucial parts of the State apparatus, including finances and logistics and had the powers of a de facto Prime Minister.” Damning as those words are, they leave plenty of room for Saif’s legal team to work: the court can issue arrest warrants with “reasonable” evidence, after all, but much more is required to convict. And the fact that so much about the Qaddafi regime was “unspoken” and “de facto” could make constructing a paper trail devilishly difficult. 

The death of the lead defendant in the case may also complicate the prosecution’s strategy. The arrest warrants focused heavily on the role of his father, who is described as having “absolute, ultimate, and unquestioned control of the Libyan State apparatus of power.” With the senior Qaddafi now gone, prosecutors may have trouble introducing certain evidence that relies heavily on actions by him, notes James Goldston, executive director of the Open Society Justice Initiative and a former federal prosecutor. And David Kaye of UCLA’s Human Rights Center is skeptical that the court will be able to simply hang the sins of the father around Saif’s neck. “At the end of the day, it’s his trial, not his father’s trial,” says Kaye.

Though he was widely seen as heir to his father’s power, Saif held no formal leadership position, no military rank, and no government title. As the conflict developed, however, he often appeared to be the public face of the regime. “Even just through his public statements in the early days of the revolution, it would appear that Saif put himself at the center of responsibility,” said Paul Seils, vice president of the International Center for Transitional Justice and a former ICC prosecution official. Law professor Kevin Jon Heller believes the prosecution may be able to convince the judges that the younger Qaddafi instigated or solicited crimes on behalf of the regime even without formal control. “The assistance does not have to be material; psychological encouragement that makes the commission of the crime more likely is sufficient,” Heller says.

Many observers, including ICC prosecutor Luis Moreno-Ocampo, believe that Saif’s Feb. 20 interview on national television had just such a catalyzing effect. On air, Qaddafi pledged, “we will fight to the last man, woman, and bullet” and warned of “rivers of blood.” At another point, Saif apparently promised a crowd of supporters that he would provide weapons. But Saif’s often rambling and ambiguous public statements may not be enough on their own to put him behind bars.

The prosecution will be on much firmer ground if it can demonstrate that Saif was in effective command of some of the regime’s forces. A commander who knows about abuses and does not stop them can be criminally liable, even if he did not explicitly order the abuses. But how much did Saif actually know about what government forces were doing? In a February interview with ABC’s Christiane Amanpour, Saif emphatically denied that the regime was carrying out attacks on civilians. “Show me a single attack,” he demanded. “Show me a single bomb. Show me a single casualty. The Libyan air force destroyed just the ammunition sites.” Saif may claim at trial that nobody ever told him about abuses, and it will be up to the prosecutors to demonstrate otherwise.

They may well have the goods to do so. ICC prosecutors apparently have dozens of text messages sent by senior Libyan officials, which could help give the lie to Saif’s claims of ignorance. Testimony from former regime insiders, who could testify to Saif giving specific orders or receiving briefings, would also bolster the prosecution case. As James Goldston points out, the collapse of the Qaddafi regime will make soliciting insider testimony much easier than in the case of Sudan, where indictee Omar al-Bashir remains firmly in control.

At the ICC, Saif’s fate would be in the hands of professional judges, not a jury. And what would prevent him from seeking to turn what will undoubtedly be a drawn-out trial into an exposé of Western hypocrisy and double standards? He has already embarrassed Western power brokers on several occasions. After he helped negotiate the release of Lockerbie bomber Ali Mohmed al Megrahi, Saif said on camera that Megrahi’s case had been on the agenda whenever Libya negotiated oil deals with Western governments and companies. The comments sparked a furor in Britain and Scotland, where senior politicians were forced to deny any quid pro quo with the regime.

Taking a page out of former Serbian president Slobodan Milosevic’s book, the 39-year-old Qaddafi may also attack the court itself as illegitimate. Here his LSE dissertation could come in handy. In the more than 400 pages of that opus—sections of which were allegedly plagiarized—he argued that key international institutions including the World Trade Organization and International Monetary Fund lack legitimacy because they are under the thumb of major powers. What better evidence than the fact that the ICC could only investigate Libya when the powerful U.N. Security Council gave it the green light? 

Those kind of arguments won’t cut much ice with the court’s judges. But combined with any holes in the prosecution’s case, they could turn what would be the ICC’s most closely watched trial into a genuine contest. As former ICC official Paul Seils said of high-profile war crimes trials, “It’s always wise to expect the unexpected.”

Libyans rejoiced last Thursday upon hearing of the death of former Libyan leader, Muammar al Qaddafi, who was captured by National Transitional Council fighters in Sirte. This was seen as a victorious moment in the country he had ruled for 42 years and the interim government said it would officially declare Libya’s liberation on Sunday in the eastern city of Benghazi, where the revolution to oust him began in February. Under a United Nations Security Council resolution to protect Libyan civilians, NATO has been conducting aerial assaults on Colonel Qaddafi’s forces since March. These assaults are credited to have helped the rebel forces overthrow him.

As explicit footage of Qaddafi’s dead body was released as proof of his death, requests for an investigation were made by organizations such as Amnesty International, Human Rights Watch, and the U.N. Human Rights Watch has stated that the deliberate killing of a person in custody is a war crime that could be prosecuted by the International Criminal Court (ICC). Since then, the new Libyan authorities have been split on the issue, some seeing Qaddafi’s death as a just end, hoping to close the door on this chapter in Libyan history. Others, however, have expressed a desire to carry out an investigation. Mustafa Abdel-Jalil, head of the ruling National Transitional Council (NTC), said the NTC had set up a committee to examine the circumstances leading to the deaths of Qaddafi and his son Mutassim in Sirte, adding that Libyans would have preferred to see their deposed leader stand trial and be held accountable for his crimes. The missed opportunity to try Qaddafi through legal means at the ICC would have been advantageous to Libya’s transition for a number of reasons: First, handing over Qaddafi to the ICC would have improved the perception of legitimacy for Libya’s new leaders, in a period when the newly formed NTC remains fragile. Second, for the victims of Qaddafi’s regime, which was at times brutal and ruthless, a trial would have given voice to those victims, and revealed truths about the details of his crimes, which may now – in light of his extrajudicial killing – remain buried. Third, Qaddafi’s death most likely constitutes a war crime, and it is therefore the responsibility of the international community to see it dealt with as such.

Qaddafi’s Death in the realm of International Law

Putting aside Libya’s internal affairs for a moment, it is important to note that Qaddafi’s killing was seen by the international community as an extrajudicial act. Following a unanimous decision by the United Nations Security Council to refer Libya to the Prosecutor of the International Criminal Court, the ICC had issued an arrest warrant for Qaddafi as well as his son, Saif al Islam and the Director of Military Intelligence, Abdullah Al-Senussion. They have been indicted on charges of crimes against humanity such as the attack on unarmed civilians. The ICC is an independent, permanent criminal court mandated to investigate and prosecute persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes if national authorities with jurisdiction are unwilling or unable to do so.

The death of Qaddafi has prevented him from further imposing injustices upon his people, but it leaves the potential for his supporters to retaliate and the continuation of civil strife. Qaddafi’s crimes could have been accounted for by other means such as having the leader stand trial, either at the ICC, or locally as is being done in neighboring Egypt. Such trials are seen as being more conducive to post-revolutionary peace in that citizens stand a chance at material rewards and institutional changes, far more valuable than the ephemeral sense of victory tied to reprisal. In standing trial, Qaddafi could have revealed more sources and other culprits who could also stand trial and be removed from Libya’s future political arena. By utilizing institutions such as the ICC, greater transparency within Libyan politics is possible, and Libyan citizens can strengthen their own political and judicial institutions as they move beyond the current transitional phase. This would also set a system of accountability for future leaders, establish a precedent of seeking justice and finally, help fulfill the role for which ICC was formed.

The Reckoning: Battling for Justice in the Arab Spring
An IJCentral – Skylight Pictures Outreach Project

The Reckoning is a film produced by Skylight pictures dealing with the ICC’s role in bringing justice to violence-affected countries, such as Libya. It brings to light the purpose, processes, and progress that the ICC has made since its formation in 2002. A Middle East and North Africa (MENA) outreach program has been initiated to increase awareness about the ICC and hopefully to see the ICC recognized as a useful tool in dealing with national injustices in this region just as it has been useful for communities in Africa in the past.
Only 4 of the 22 Arab League states are presently states parties to the Rome Statute of the ICC. They are Comoros, Djibouti, Jordan, and Tunisia, which acceded on June 24, 2011 after the toppling of former president Ben Ali. Tunisia’s accession shows that there is practicality for MENA countries to take interest in what the ICC stands for. Skylight hopes to engage citizens in this region through an examination and discussion of the ICC and will be reaching out to them through a Facebook page and a Twitter account, which we hope will become an open forum for discussion on the ICC’s potential role to shape the region’s transition to democracy and justice.

As this outreach develops, I will be keeping a journal on IJCentral of our experiences working with the newly translated Arabic version of The Reckoning, relating what we learn along this journey about justice-seeking in the Middle East, and how Arab citizens are responding to the increased engagement of the ICC in the region. Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com

Follow the journey on Twitter for a @JustMiddleEast

October 24, 2011
David Bosco reports on the new world order for The Multilateralist.

It now appears very likely that Moammar Gadhafi was killed at the hands of his captors. Human rights groups are calling for an inquiry and the International Criminal Court has reportedly asked to examine the former leader’s body (it’s not at all clear that the Libyan authorities will acquiesce to that request). The question that is already arising is whether Gadhafi’s killing constituted a war crime that could be investigated by the ICC. The answer, in short: Yes, it was likely a war crime; and no, the ICC is not likely to prosecute anyone for it.

First, the question of whether Gadhafi’s execution constitutes a war crime that falls under the ICC’s jurisdiction. To be a war crime, there’s got to be a war (or state of armed conflict). Here, there’s no doubt that there was an armed conflict underway when Gadhafi was killed. Does killing a combatant who has surrendered constitute a crime? Quite clearly. The ICC statute includes in its list of war crimes the following:

Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion…
What’s more, the ICC’s jurisdiction over crimes committed in Libya extends to the actions of the NTC and anti-Gadhafi fighters just as it does to Gadhafi’s own men. The Security Council referred the “situation” in Libya to the court, not the particular behavior of one party or another.

But the fact that the ICC would have jurisdiction over Gadhafi’s killing does not answer the question of whether it’s likely to investigate. The court has no obligation to prosecute all or even most of the crimes that fall under its jurisdiction. In fact, the ICC’s governing statute clearly guides the prosecutor away from isolated acts toward large-scale behavior:

The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

The choices of the prosecutor and the rulings of the ICC judges in recent years have made abundantly clear that the court prioritizes large-scale crimes that form part of a broad pattern or practice. Given that emphasis, it is unlikely the court will ultimately prosecute anyone for Gadhafi’s killing unless they decide that there existed within the anti-Gadhafi forces a broad practice of war crimes or crimes against humanity and that the Gadhafi killing was a manifestation of that.

What’s more, the new Libyan authorities could foil any ICC investigation by carrying out their own investigation. With a national investigation underway, the ICC must yield unless it determines that the investigation is a sham. To the chagrin of many (mostly outside Libya, it seems), Gadhafi will never now see a courtroom in the Hague; neither will whoever killed him.