IJCentral: International Justice Central

The International Criminal Court was created to provide a way to hold those who commit war crimes, crimes against humanity and genocide accountable. It was designed to put an end to the impunity with which leaders had previously been able to commit such crimes. More than 115 countries are party to the Rome Statute that established the I.C.C. Shamefully, the United States is not.

The arguments against ratifying the Rome Statute are based on the concern that, should we become a state party, our citizens (our soldiers) could be subject to prosecution for war crimes. This scares war criminals like Donald Rumsfeld. But it should not scare the rest of us. Though becoming part of the I.C.C. surrenders a small amount of national sovereignty, the only reason one need fear accountability for crimes like genocide is unconscionable. Something more serious is awry if we resist membership in the I.C.C. because we are committing the very crimes the court was created to deter.

Concerns about a politically motivated prosecution of the United States are unjustified. The I.C.C. has shown restraint and objectivity in their investigations of conduct in Iraq. It is not perfect by any means, but it is a work in progress. Investigations launched by the prosecutor on his own initiative must be approved by other justices, and even if those members of the court had some nefarious objective, the Security Council could indefinitely delay I.C.C. prosecutions. Any fear that Americans would be brought against our will before the I.C.C. is overblown. War, by itself, is not a punishable crime under the Rome Statute.

The I.C.C. prosecutes only those who commit crimes of a sufficient gravity, and only when the domestic judicial system is unable or unwilling to prosecute such criminals. We are talking about the Joseph Konys, the Omar al Bashirs, the Qaddafis of the world. Shouldn’t we, as decent Cornellians who respect human dignity, want such heinous criminals brought to justice regardless of their nationality? In multiple cases, the I.C.C. has intervened to stop leaders from killing their own citizens. This is a protection we should want extended to all people.

At present, the I.C.C. walks a fine line on its road to relevance and efficacy. Launch prosecutions with no chance of success, and the court risks becoming impotent. Focus on only easy cases, and the court risks losing legitimacy. The United States could help expedite the court’s movement towards greater legitimacy. As the global superpower, putting ourselves within the jurisdiction of the I.C.C. expresses the court’s legitimacy to countries who have not yet joined the court and countries who are currently members but sometimes ignore their obligations to the court.

The promise of the I.C.C. — the promise of international law — is that another Rwanda will one day become unthinkable. Joining the I.C.C. could make a real difference in deterring those who might commit these types of crimes. The creation of the I.C.C. represents a shift from “justice” being written by the victor of a war, and instead toward a more predictable, equitable system of justice based on enduring principles of human dignity. The United States has spent the first decade of the court’s existence opposing almost everything the court has done. Instead of standing in the way, the United States could help move this noble endeavor forward.

As Cornellians, many of us will likely be in positions of leadership sooner than we think. For the sake of us all, let us hope we are better than those who are afraid of prosecution for crimes against humanity. For the sake of those less privileged than us, for whom our worst nightmares are their daily realities, let us stand in support of a court that deters such crimes and holds the perpetrators accountable.

The court aligns with our core values. Ending Joseph Kony’s reign of terror in Uganda, stopping the Janjaweed militias in Darfur, seeing Qaddafi face trial for killing his fellow Libyans — these are all things we believe in.

President Obama often frames debates in terms of “which side of history” we wish to be on. Do we, as Americans, want to be on the historical side of impunity when it comes to those who commit crimes against humanity? Or do we want to be on the side of bringing those who commit these horrible crimes to justice?

Soon enough, it will be our turn to help lead our country forward. I propose we lead our country in the direction of human dignity by becoming members of the International Criminal Court.

Nicholas Kaasik is a first-year law student at Cornell. He may be reached at nek43@cornell.edu. Read original article here.

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In 1993, Shell Oil was complicit in, the Nigerian government’s arrest and execution of several people protesting Shell’s labor and environmental practices. The case was settled before it started in a United States federal court, but—Should the International Criminal Court have the opportunity to prosecute cases, like this one against Shell Oil?

This week I gave a talk on why it is important that U.S. anti-trafficking laws be amended to include corporate liability provisions. Corporations and businesses control the majority of the demand for labor trafficking, thus if they are liable for this crime, it is likely that the crime will greatly decrease. The same is true for many other international crimes. Yet, not only are there not corporate liability provisions in many international human rights laws, but, no international court, including the International Criminal Court (ICC), can even prosecute businesses.

The Basics of Corporate Liability

The basic concept of corporate liability has not received universal recognition. In fact, most countries do not prosecute corporations. However, many common law based countries recognize corporate liability, including Australia, Canada, and the United States.

In the U.S., corporate liability works by imputing the crime from a person to the rest of the corporation. To do this you must (1) have an actor who is personally guilty of the crime and (2) that actor must be an “agent” of the corporation. To be an agent of the corporation, the actor must be authorized to act on behalf of the corporation and must be working to benefit the corporation while acting under its control. If these factors are present, the court can impute liability from the actor and hold the corporation liable. 

Penalties for corporations convicted of crimes can include heavily fines, dissolution and reorganization, revocation of licenses or permits, or even the surrender of the corporation’s ability to conduct business in the jurisdiction. Thus, when corporate liability is a possibility, corporations pay attention because the results can be devastating. 

Leaving Companies Out of the ICC

The idea of prosecuting businesses was considered during the development of the ICC. One of the initial drafts of the Rome Statute, the founding document of the ICC, contained a provision on the criminal liability of all legal persons except states. Because “legal person” includes both people and organizations recognized by law, the ability to prosecute all legal persons would allow the court to prosecute corporations. France actually submitted a draft provision which would hold a corporation liable if an agent was found guilty of committing a crime on the corporation’s behalf.

However, there was a “deep divergence” of views over the advisability of prosecuting corporations. Many supported the inclusions of corporate liability because it would be an effective way to eliminate certain crimes. Many other countries had trouble supporting it because their own national legal systems don’t prosecute corporations, thus making it hard to authorize an international one to prosecute them.

There are arguments that despite the final decision to leave corporations out of the ICC, they may still be prosecutable under it- but we have yet to see this attempted or even considered.

The Debate: Should We Be Able to Prosecute Corporations?

So should the ICC ever revisit this and consider amending their jurisdiction to include fictional legal persons or corporations? In short, yes. Here’s why.

The legal purpose of a corporation is to make money for their shareholders. If a corporation is taking time out of this purpose to give money to charity or, for example, ensure there is no slavery occurring in its supply chains, there’s a chance it that its shareholders could actually bring a law suit against the business’s board of directors. For example, in the famous case Dodge v. Ford Motor
, shareholders sued Ford Motor Company for giving nice benefits to its employees and factory workers and thus failing to maximize profits for its shareholders.

This means that movements encouraging corporate social responsibility can only go so far. The company will still have that legal obligation to make money for its shareholders. However, if corporations risked being prosecuted for human rights crimes, this would give the company the legal obligation and incentive it needs to invest in being responsible. Because a company that is prosecuted for committing human rights violations is not maximizing shareholder profits.

And the more companies that invest in responsible business practices, the less human rights violations we will have. Prosecution in the International Criminal Court would not only scare corporations into social responsibility, but actually provide them with a path to social responsibility that didn’t previously exist.

In a world of increasing corporate influence and sway, where multi-national conglomerates exceed many countries in terms of annual turnover, it is irresponsible to leave these actors outside the law. History has proven that where loopholes exist in international law, they will inevitably be exploited. Implementing corporate liability at the international level can serve to protect us against this risk.

Share if you approve of bringing these changes to the ICC, and re-post on corporations’ Facebook pages.

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Sarah Pierce is a recent law school graduate with a long history of experience working with nonprofit organizations devoted to international justice and social change.

Follow Sarah on Twitter: @sarahcpierce

Who?

Joseph Kony was born in the early 1960s, probably 1961, in Odek, a village east of Gulu in northern Uganda. The son of a farmer, Kony was remembered by a former classmate as being a gentle, good-natured boy in his early school days, “he played football and was a brilliant dancer.” However, he was also known to come down hard on his siblings when they crossed him. In his youth, Kony was involved with the community, serving as an alter boy until his teenage years, at which time he apprenticed as the village witch doctor with his brother.

Kony is thought to be the cousin, or nephew, of Alice “Lakwena” Auma, a reported prostitute-turned-mystic who started the Holy Spirit Movement against the Ugandan government in 1986. Claiming to represent the Acholi people, who felt excluded from the political power structure after the overthrow of the northern leader Milton Obote, the Holy Spirit Movement promised its followers immunity from the bullets of the Ugandan army. Lakwena’s movement was defeated by the government forces in 1988, leading Joseph Kony to found the Lord’s Resistance Army and embark upon a campaign of kidnapping and terror which spread from Uganda, to the DRC, the CAR, and South Sudan, reeking havoc on the security of vulnerable people’s throughout the region.

Why?

Though Kony initially enjoyed strong public support, his LRA turned on the Acholi people, with Kony determined in his mission to ‘cleanse’ and ‘purify’ the Acholi people, and turn Uganda into a theocracy ruled by the Ten Commandments.

Since the LRA started fighting in 1986, it is estimated to have abducted tens of thousands boys and girls and used them either as sex slaves or as child soldiers. By 1988 the bulk of his foot soldiers were children, who were forced to kill their own parents in brutal initiation processes. In some cases, the children were even forced to eat their own victims.

In a campaign characterized by two decades of sadism, Kony has orchestrated and overseen wholesale massacres of entire villages, wherein the victims’ ears, lips and limbs were chopped off. One fortunate escapee has described the sadistic nature of Kony’s soldiers, entering villages in silence, “without a shot being fired… The group prefers to use machetes. They don’t shoot, they are just chopping. You don’t know where they are until they reach your house.”

Where?

Joseph Kony continues to defy the ICC, remaining one of the world’s most deadly fugitives. He is known to have had links to Omar Al-Bashir, the President of Sudan, meeting him at least twice in 2004 to arrange a heavy arms deal. Kony is believed to have escaped the clutches of the Ugandan army in August 2010 fleeing to the Sudan, perhaps to renew ties with his former benefactors.

When?

Kony’s crimes have gone unpunished for over two decades. Perhaps deterred by the potential for damaging countless futile attempts at peace talks, the international community has until relatively recently shied away from pursuing justice against Joseph Kony.

However in October 2005, the ICC announced that arrest warrants had been issued for 5 members of the LRA, including Mr Kony. Shedding light on the 33 charges of crimes against humanity and war crimes, Luis Moreno Ocampo, the Chief Prosecutor of the ICC, confirmed that Kony’s indictment detailed the murder, enslavement, sexual enslavement, rape and cruel treatment of civilians, as well as intentionally directing attacks against civilian populations.

What he says…

Confronted with the accusations that he is responsible for thousands of deaths and abductions and for maiming civilians, Kony, in a rare interview in 2006, emphatically denied the allegations, declaring, “that is not true. It’s just propaganda” and subsequently shifted the blame on President Museveni, adding, “I cannot cut the eye of my brother… I am a human being like you.” Denying outright the claims that he is responsible for abducting thousands of children for his army, Kony declared: “we don’t have children. We only have combatants.” Responding to the ICC charges, he insisted, rather predictably, “I am not guilty… we are fighting for democracy.”

What now?

Joseph Kony remains at large and his LRA insurgency, having spread into parts of Sudan and the DRC, remains one of Africa’s longest running conflicts. International efforts at capturing Kony have proved impotent at best.

Recently President Obama signed into law the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act, making it American policy to kill or capture Joseph Kony and to finally defeat his rebellion, which undermines other efforts at peace and stability in the region. US military efforts at killing Kony in 2008 proved futile, paving the way for a new killing spree that continues to this day.

As with the indictment of Omar Al-Bashir, critics of the ICC, particularly in Africa, respond to the arrest warrant for Kony by accusing the Court of representing nothing more than the neo-imperialist justice of the West, who is still unfairly picking on Africa. Whilst these misconceptions may partly be down to regional misunderstanding of the ICC and its aims and processes, the relatively poor standards of justice on the continent cannot be ignored, particularly when such grievous crimes are carried out there. National judicial systems must be strengthened in order that African courts can do the job of the ICC themselves, but until that goal is realized ICC intervention in situations such as this one must continue.

The indictment of Kony has, rather unfortunately, been suggested to have contributed to stalling the peace talks with the Ugandan government and is accused of exacerbating the violence in the region. Luis Moreno-Ocampo has fervently denied these claims by religious and community leaders, insisting that Kony previously used peace talks as a means of regrouping and rearming. And with the net seemingly closing in on Kony, rebel attacks have dramatically declined since his indictment, supporting the ICC’s stance that pursuing justice helps facilitate peace.

Achieving international justice for Kony’s victims is crucial. His barbarism and abhorrent disregard for human life has destroyed the aspirations and potential of generations of children who could otherwise have grown to become valuable contributors to the establishment of a peaceful, stable and developing Uganda.

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IJCentral’s Most Wanted is written by Aneil Sharma.
Aneil studied for his LLM in International Criminal Justice and Armed Conflict at University of Nottingham (2006) and recently graduated law school (2010), where he was also an editor of the students’ human rights law journal. He has done internships with Oxfam and The British Institute of International and Comparative Law in London and has completed casework for Amicus, who assist US lawyers on capital punishment cases. He intends to return to school to study for his PhD.

Follow Aneil on Twitter: @theSharmz

With the vast majority of international justice attention focused on the unfolding situation in Libya, the search for justice in post-conflict Ivory Coast has been chugging along without much international scrutiny. In sharp contrast to the rigid either-or-debate regarding where Muammar Gaddafi and the Tripoli Three should be tried, the transitional government in Ivory Coast appears to have decided that justice will be served both locally and internationally.

The ICC’s interest in Ivory Coast is nothing new. The Court has been pondering its course since the country declared, in 2003, that it accepted the ICC’s jurisdiction. When widespread post-election violence erupted across across the country late last year, the Court began to apply pressure on Ivory Coast officials, declaring that the Office of the Prosecution would not hesitate to issue arrest warrants for key Ivorian leaders responsible for large-scale violence amounting to war crimes or crimes against humanity. However, as pressure mounted to get involved in Libya and other Arab Spring states, Ivory Coast was largely relegated to the backburners of international scrutiny and interest.

On deeper inspection, Ivorian authorities have been quite busy in their pursuit of accountability and reconciliation. Inspired by the South African experience, a truth commission, the Truth, Reconciliation and Dialogue Commission, (which includes football star Didier Drogba!) has been set up to examine the four months of turmoil that swept and ravaged Ivory Coast. Along with the Commission, there has been significant pressure to bring former President, Laurent Gbagbo, and others to account for their role in the post-election violence. For four months, Gbagbo refused to concede electoral defeat, instead holing up in his Presidential palace in Abidjan, as his and Ouattara’s supporters engaged in brutal street wars. Thousands perished in what has been described as Ivory Coast’s “second civil war”. Gbagbo was finally, and forcefully, removed from power with the help of a French and UN military mission.

The new government has since begun the process of seeking retributive, criminal justice for key individuals. While fears of one-sided victors’ justice persist, despite evidence that both sides committed war crimes, in August, the government charged 12 Gbagbo supporters, including the former president’s son.

Since the guns were silenced in Ivory Coast, Ouattara has appeared eager to have the ICC involved in the process of the country’s political transition. Since then, the ICC’s Office of the Prosecutor’s requested the opening of an official investigation into the post-election violence. While the ICC still cites the Ivory Coast as being “under preliminary investigation”, a few days after the request for opening an official investigation, the Court’s Deputy Prosecutor, Fatou Bensouda, visited Ivory Coast and signed a deal allowing the Court to conduct a formal investigation.

The ICC’s investigation will undoubtedly focus around the role of Gbagbo. For the Court, putting its first head of state in the dock would be a first, and a tremendous political and politically symbolic victory. It also appears to be a priority for Bensouda, who is most likely to become the Court’s top prosecutor when Luis Moreno-Ocampo’s term concludes next year.

Responding to the dilemma of where justice should be served, President Ouattara recently declared that justice would be served both domestically and at the ICC:

“He will be judged in Ivory Coast for economic crimes and he will also be judged by the ICC at our request so that the trial is fair…The law will be the same for everybody. Impunity will not be tolerated and those who should face the judge will do so. We will not make any exemptions.”

Ouattara’s comments, and the recent debates regarding the location of justice in the Libyan situation, pose fascinating and important questions: in fragile, post-conflict settings, where should justice take place? Can justice be pursued both domestically and internationally?

As readers of this blog will know, in the case of Libya, the issue of where justice should be served remains polarizing. Despite some arguing for a more creative approach where international and local justice is combined in an ICC trial in Libya, justice in Libya continues to be framed as a battle between two, mutually exclusive options: ICC justice in The Hague versus local justice in Tripoli.

Within this broader debate about justice’s place, Ouattara’s comment demonstrates that some countries may see a division of labour approach where some crimes (economic crimes and more minor crimes) will be tried and judged in the country and the commission of international crimes, which retains the risk of becoming heavily politicized, can be adjudicated at the ICC.

The development of such a practice would have profound effects on how justice is achieved. On first glance, however, these would appear to be largely positive. A state, such as Ivory Coast, could achieve justice for violations caused domestically and subsequently demonstrate to the world its intentions to respect the rule of law and human rights by outsourcing accountability of the worst crimes to a much more depoliticized Court. Just as importantly, “menial” crimes, which often affect victims on a similar scale to large-scale human rights violations, would be adjudicated as well as large-scale international crimes. Unlike the debate it Libya, serving justice domestically and internationally would be shown not to be an either-or situation.

Read original article here.

Over the next several months, the International Criminal Court will undergo its most significant leadership transition since coming into existence in 2002.

This December, the court’s governing body—the Assembly of States Parties—will select a new prosecutor (Luis Moreno-Ocampo, the first prosecutor, must step down in 2012 after a nine-year term of office) and six new judges (out of a total of 18). Early next year, elections will be held among the judges for the court’s next president and two vice presidents. In 2013, the judges will also select a new registrar, the court’s chief administrator. These changes happen as the ICC is completing its first trials. Together, they offer a major challenge and a significant opportunity for this still-young institution to deliver on its promise of ending impunity for grave crimes.

Unfortunately, the same governments that elect these officials regularly treat the court as a political football—embracing it when it suits their interests, bargaining it away for other aims when it doesn’t. Though the UN Security Council has referred crises like Darfur and Libya to the court when it needed to appear tough, it has then failed to support, or even downplayed, the ICC when its actions—like the indictment of a head of state—are seen at odds with changing political goals. This lack of commitment towards the ICC weakens it. Nowhere is this more evident than in the selection of its senior officers.

Many capable and committed persons have staffed international courts over the years. And yet, it is no secret that there have been glaring exceptions. Judges with little or no trial experience—including at least one who lacked a law degree—have allowed proceedings to drag on, devoted unnecessary time to frivolous arguments, made legally unfounded rulings, and let some defendants misuse the courtroom as a platform for political speeches.  On occasion, judges have fallen asleep during proceedings, and even, in one notorious case at an international tribunal addressing crimes in Rwanda, were seen laughing during testimony by a rape victim.

Such lapses not only impair the integrity of the trial in question. They also diminish public trust in these institutions, and in the overarching struggle for the rule of law.

Prior contests for judicial office at international courts have been marred by political horse trading among sponsoring states. The ICC selection process was supposed to mark an improvement—with stricter qualifications for office, more transparency, and emphasis on merit over connections. But the experience so far has been mixed.

The elections this December offer a chance to do better. Perhaps no choice is more important than that of prosecutor, the public face of the court.  The leading candidate, many believe, is the current deputy prosecutor, Fatou Bensouda, a respected former attorney general from The Gambia. This June, Bensouda received the formal endorsement of the African Union. If in the end Bensouda is chosen, she and the ICC will be stronger if her election is seen to be founded upon her genuine strengths—prosecutorial experience; sound judgment; a commitment to, and skill at, engaging both victims and the wider public in the court’s work—rather than a pay-off to any state or group of states.

The next prosecutor and new judges will inherit a full docket of complex cases, outstanding arrest warrants for leaders from Sudan’s Bashir to Libya’s Qaddafi, and pressure from financially strapped governments to do more with less. Perhaps most challenging, the court must overcome perceptions that Africa has been singled out for scrutiny while abuses by Western leaders get a free pass. Only by adhering to the highest standards of professional conduct may court officials win sufficient legitimacy over time to persuade the major powers presently outside the current ICC system—including China, India, Russia and the US—to join.

In these circumstances, the importance of choosing only the most competent candidates cannot be overstated.  The court’s mission, and the hopes that victims place in it, are too important to be subjected to cynical back room deals.

Between now and December, when the Assembly of States Parties convenes in New York, diplomats will be tested. Governments must put aside their parochial interests for the larger aim of building an institution to serve all humanity.

Read original article here.

Earlier this week, the Center for Constitutional Rights (CCR) submitted, on behalf of the Survivors Network of Those Abused by Priests, a communication to the International Criminal Court requesting that an investigation be opened for Crimes against Humanity committed by high-level Vatican officials.

In a nutshell, the submission argues that there is evidence of widespread and systematic abuse (both rape and torture) of a civilian population by priests in a number of countries and that the Vatican, and more specifically Joseph Ratzinger, both in his former capacity as Prefect of the Congreation of the Doctrine of the Faith, and current capacity as Pope Benedict XVI, should be held liable for covering this up, even to the point of promoting it (this last point is a little ambiguous and I’ll return to it later).
This idea has been floating around for a while now. Geoffrey Robertson published a book last year arguing for such an approach. I remain skeptical however and think that there are a number of difficulties with the submission.
As a preliminary remark, one should remember that the Prosecutor is under no obligation to proceed from here, neither to open a preliminary examination, nor, of course, to open a formal investigation. The submission by the CCR does not “trigger” the jurisdiction of the ICC, as would a referral by a State Party of the Security Council, and the OTP is not even under an obligation to respond to the submission (although it claims that, for reasons of transparency, it generally will “aim” to respond to communications).
I would like to comment on three aspects: jurisdiction, the scope of the situation, and finally on whether the crime is actually constituted.

Jurisdiction

First of all, it should be pointed out that the Prosecutor, should it proceed with an investigation, would only be able to look into crimes that were committed after the entry into force of the Statute in July 2002. Moreover, he will only be able to look at alleged crimes that took place, either on the territory of a State Party or by a national of a State Party. In this sense, it explains why the Communication includes the United States and one alleged american perpetrator, to the extent that the crimes in the US could have been committed by nationals of State Parties and that the American Citizen might have committed crimes on the territory of State Parties.

The scope of the situation
Second of all, the submission raises the question of the scope of the “situation” that would be the object of an investigation. Traditionally, situations have been expected to be limited in some way, especially from a territorial perspective. Up to now, this has been the case for all the situations looked into by the Court. The CCR submission, if it was followed would therefore be a first in the history of the Court, by defining a situation through a unity of crimes and alleged perpetrators exclusively, rather than through a territorial criteria. It should be pointed out that this is an implicit consequence of the reasoning of the CCR, because they don’t actually explicitely deal with this issue. Three brief comments on this.

1) One should remember that the ICC Statute does not define what a situation is. Therefore, as I’ve discussed before in relation to the Libya Referral, any challenges to the scope of a situation faces this difficulty of having no statutory guidelines on which to base such a challenge. The case-law has suggested some limitations to the scope of a situation, but these are vague enough for anybody to argue that they could be extended to cover the events in the current submission.

2) It remains that there might be a difficulty with the submission when one considers not so much the concept of “situation” in general, but consider it in relation to the other ICC distinction, namely a “case”. Indeed, I might not be able to define a situation, but what the CCR is describing in its communication certainly appears to me to be a “case”: they identify a crime, the perpetrators and the mode of liabity. In this sense, the OTP, even should it accept a broader approach to a “situation”, would be in violation of the Statute and the rights of the defense should it define the situation in the terms used by the CCR.

3) Which leaves the question open of how this situation would be phrased. One option would be to open a distinct investigation into each of the countries named by the CCR, but in practice, it would still require that it be shown that the crime is constituted based on a transnational policy.

Is the alleged crime of “Crimes against Humanity” actually constituted? (and another rant on the confusion between HR and ICL…)

Which brings me to my third point : there is the major issue of whether Crimes against Humanity are indeed constituted. There is no doubt that the abuse in the catholic church has been widespread and systematic. Where the communication fails to convince, is on the organizational element required by the Elements of the Crimes in the following way:
“Attack directed against a civilian population”[...] is understood to mean a course of conduct [...] pursuant to or in furtherance of a State or organizational policy to commit such attack. [...] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.
A footnote to this paragraph specifies that:

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.

How does this apply to the current situation? For one, no one seems to be arguing that the Vatican set up an actual policy to perpetrate widespread and systematic abuse against persons in the care of priests. It is their “deliberate failure to take action” which is put forward. However, even if the conduct of Church authorities is subject to criticism, I think it falls short of showing that it was “consciously aimed at encouraging such attack”. In this sense, when the communication says that the Vatican has been dealing with such situations in ways that ensured such violence would continue”, I think it still does not establish intent, even by omission.
In relation to this, the reasoning of the CCR is even more confusing as regards the modes of liability put forward. Indeed, the CCR is clearly confusing the constitutive elements of the crime and the modes of liability. Let me explain. The CCR considers three possible modes of liability: superior responsibility (Article 28), contribution (25(3)(d)) and aiding and abetting (25(3)(c)). All these modes of liability have in common to be “subsidiary” to the main crime, which still has to be constituted. But the CCR does not do that. It would have to show that independently of the Vatican, its officials are claimed to “only” be the accomplice, the priests that committed the abuse acted under a plan or policy that they had set up, which, again, is not argued here. Indeed, without an established Vatican policy there is nothing that links the individual cases of abuse in a sufficiently organisational way to constitute a crime against humanity.
The consequence of this is that the Vatican officials are either responsible for “direct” commission under 25(3)(a), or not responsible at all. But they cannot be held complicit for a crime that is not constituted independently of them. Which leaves us with one, arguably progressive, but at least coherent way of putting the case forward. It is the systematic cover up of this widespread abuse that constitutes the crime against humanity, not the abuse itself. This would mirror the development under human rights law of positive obligations, whereby if the State does not prevent the violation of a right under the ECHR, for example, by a third party, it is held responsible for the violation of that right. This reasoning would at least solve the issue of the modes of liability and the constitution of the crime.
However, and regular readers of this blog won’t be surprised, I am not in favour of such an approach. This communication illustrates once again the slow (and apparently inevitable) blurring of the line between human rights and international criminal law. For me, widespread and systematic human rights violations do not necessarily constitute crimes under international law. These are related, but conceptually distinct domains that should remain distinct. In relation to this, it is unsurprising that the Communication relies heavily on the ICC Pre-Trial Chamber decision that authorized the opening of the investigation in the Kenya situation. I criticised it at the time, agreeing with the dissenting opinion of Judge Kaul, for broadening too much the scope of Crimes against Humanity. I expressed similar doubts in relation to the reference to Crimes against Humanity in the Libyan Arrest warrants. In a way, you can’t blame the CCR for its communication. It’s a direct consequence of all-encompassing conceptually blurred approach to crimes against humanity by the ICC judges themselves that is to blame. The conduct of the Church in past decades is certainly appalling, requires the utmost attention and should be dealt with accordingly, but, but I remain convinced that the ICC is not the right forum.
Hopefully, the Prosecutor and judges will not fall victim once again to the “boy scout mentality”, which leads them to systematically want to save the world with two twigs and a piece of rope, even if someone else might have a far better set of tools…
UPDATE: Of course, another angle to approach this is from a PR perspective. It is clearly the ambition of the CCR to get media attention over the issue. This plays into the general trend of trying to get the ICC involved in every situation, to get some news coverage. Indeed, no situation seems to escape this trend (Palestine, Syria, Tunisia…). As discussed above, I disagree with this conceptually, but I have to admit that it is certainly effective. Thanks Joe for pointing this out.

Original article here.

TIME is running out for former government officials accused of murder, genocide and crimes against humanity. In the past few months, the final Serbian war-crimes fugitives were extradited to The Hague, the trial of the former Egyptian president, Hosni Mubarak, began in Cairo, and the International Criminal Court opened hearings on the post-election violence that plagued Kenya in 2007-8.

These events have provoked a chorus of trial skeptics, who contend that the threat of prosecution undermines democracy, exacerbates conflict and could lead to greater human rights violations.

Critics argue that the threat of prosecution leads dictators like Col. Muammar el-Qaddafi of Libya and Omar Hassan al-Bashir of Sudan to entrench themselves in power rather than negotiate a transition to democracy. In El Salvador, where domestic courts have refused to extradite officers accused of murdering Jesuit priests 22 years ago, critics claim that such a prosecution would undermine stability and sovereignty.

But we do not know whether extraditions would destabilize El Salvador, or whether Sudan and Libya would have been better off than they are today if the I.C.C. had not indicted Mr. Bashir or Colonel Qaddafi.

Indeed, those arguments rest on proving or disproving a counterfactual. While the I.C.C. indictment may have prompted Colonel Qaddafi’s desire to hide once he left power, we do not know whether it shortened his last days in power or prolonged them.

Historical and statistical evidence gives us reason to question criticisms of human rights trials. My research shows that transitional countries — those moving from authoritarian governments to democracy or from civil war to peace — where human rights prosecutions have taken place subsequently become less repressive than transitional countries without prosecutions, holding other factors constant.

By comparing countries like Argentina and Chile that have used human rights prosecutions with those like Brazil that have not, I found that prosecutions tended not to exacerbate human rights violations, undermine democracy or lead to violence.

Of 100 countries that underwent a transition from 1980 to 2004 (the period for which extensive data is available), 48 pursued at least one human rights prosecution, and 33 of those pursued two or more. Countries that have prosecuted former officials exhibit lower levels of torture, summary execution, forced disappearances and political imprisonment. Although civil war heightens repression, prosecutions in the context of civil war do not make the situation worse, as critics claim.

Such evidence doesn’t tell us what will happen in any individual country, but it is a better basis from which to reason than a counterfactual guess. The possibility of punishment and disgrace makes violating human rights more costly, and thus deters future leaders from doing so.

From the final Nuremberg trials in 1949 until the 1970s, there was virtually no chance that heads of state and government officials would be held accountable for human rights violations. But in the last two decades, the likelihood of punishment has increased, and newly installed officials may be more cautious before deciding to murder or torture their political opponents.

In addition, trials seem to project deterrence across borders. If a number of countries in a region pursue prosecutions, nearby countries also show a decrease in the level of repression, even if they have not held trials.

In Latin America, young military officers need only look to Argentina and Chile, where 81 and 66 individuals, respectively, have been convicted for crimes during previous dictatorships, to absorb the lesson that the possibility of punishment is much greater than it was in the past. This may help explain why military coups are now so rare in the region.

Likewise, the sight of Mr. Mubarak in a cage in a Cairo courtroom could deter government officials elsewhere in the region who are considering repressive measures against their populations. This may not help much with Mr. Bashir or President Bashar al-Assad of Syria, who are already deeply complicit in violent repression, and are unlikely to be deterred. But the history of dictators shows that some leaders cling to power at any cost, so it is hard to argue that the threat of prosecution is uniquely responsible for their continuing iron grip.

This does not mean that all governments must immediately and simultaneously begin far-reaching prosecutions. The desire for justice is persistent, and if political conditions for prosecutions are not ripe immediately after a democratic transition, such prosecutions can be held later.

Cambodia issued its first war-crimes conviction last year, over 30 years after the horrors of the killing fields. And domestic courts in Uruguay took 20 years to sentence the former authoritarian leader Juan María Bordaberry for human rights violations. Mr. Bordaberry died this summer in his home, where he was serving a 30-year sentence for ordering the murder of political opponents.

It has never been easy for any country to confront its past. Almost all leaders, when faced with calls for accountability, have wanted to turn the page and look toward the future. But demands for justice are robust, and countries that have held former leaders accountable have in most cases come away stronger.

Kathryn Sikkink, a professor of political science at the University of Minnesota, is the author of “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics.”

Selective cases often bypass major perpetrators and crimes and undermine prosecutor’s impartiality.

The international criminal court prosecutor, Luis Moreno-Ocampo, made headlines in March when he opened an investigation into attacks by government forces on demonstrators in Libya. His investigation led straight to the former leader Muammar Gaddafi.

Now that Libyan rebels have taken Tripoli, attention has returned to accountability, although Gadaffi is still at large.

The ICC warrant for Gaddafi covers crimes committed since February, and will not touch on many horrific abuses committed during his decades in power.

If the new Libyan government wants to try Gaddafi in Libya it will need to bring that request before ICC judges. But the over-burdened National Transitional Council will require considerable time and money to establish a functioning, fair justice system, let alone conduct complex prosecutions of international crimes.

Co-operating with ICC investigations and surrendering Gaddafi to The Hague is the better choice, but one not without difficulties.

Prosecutions carried out by international courts run the risk of failing to resonate with victims and affected communities. To bridge the distance from The Hague, the ICC prosecutor needs strategies rooted in the local context and designed to bring to trial those most responsible for the gravest crimes.

Moreno-Ocampo’s choices in his first ICC investigations - from Congo to Darfur - have so far not met this challenge. As the court’s first prosecutor, his job was always going to be difficult. He has faced tough choices in kick-starting the court’s work. But ICC investigations have often bypassed major perpetrators and crimes.

An example is Congo, where civilians have suffered abuses from all sides during years of conflict. Closing arguments recently wrapped up the ICC’s first trial, that of a Congolese militia leader charged with using child soldiers.

This is an important case. But the prosecutor did not pursue investigations of officials in neighbouring countries who supported abusive militias and may share responsibility for crimes.

When announcing a possible Uganda investigation in 2004, Moreno-Ocampo stood side-by-side with President Yoweri Museveni, although the Ugandan army had committed abuses.

Seven years on, the prosecutor has sought only arrest warrants for rebel Lord’s Resistance Army leaders, and none for Ugandan officials. The prosecutor’s failure to clearly explain these choices has done little to reassure observers of the ICC’s independence from political pressure.

In Sudan, the prosecutor sought warrants for two mid-level leaders for government atrocities in Darfur. But he has so far named only one senior leader – President Omar al-Bashir – for these crimes. The charity Human Rights Watch and others have uncovered considerable information implicating other senior Sudanese leaders in atrocities. Pursuing Bashir without his high-level cohorts has left the ICC open to charges of politicisation and falls short of prosecuting those most responsible for abuses.

These choices matter. They have left too many victims without justice and have disappointed the public. They have undermined perceptions of the court’s independence and impartiality.

With less than a year left in office, Moreno-Ocampo can still address shortcomings and make strong recommendations to his successor, who will be elected by ICC member countries in December.

His Kenya investigations show it can be done better. While investigations there are not complete, Moreno-Ocampo has sought charges against both sides over 2007 election violence, extending justice and affirming impartiality.

The burden is not on the ICC prosecutor alone. Without arrests in open cases – a responsibility countries must shoulder – there can be no justice. And the ICC will need additional resources to square new and existing demands.

But a renewed commitment by the ICC prosecutor to bring justice where it is needed most would go to the heart of delivering on the ICC’s promise. Such a commitment deserves our support.

Elizabeth Evenson is a senior counsel in the International Justice Programme of Human Rights Watch and the author of the Human Rights Watch report, Unfinished Business: Closing Gaps in the Selection of ICC Cases. Read the original article on The Guardian here.