The Local Impact of the International Criminal Court: From Law to Justice 1009152742, 9781009152747

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The Local Impact of the International Criminal Court The International Criminal Court (ICC) seeks to end impunity for the world’s worst crimes to contribute to their prevention. But what is its impact to date? This book takes an in-depth look at four countries under scrutiny of the ICC: Afghanistan, Colombia, Libya, and Uganda. It puts forward an analytical framework to assess the impact of the ICC on four levels: on domestic legal systems (systemic effect); on peace negotiations and agreements (transformative effect); on victims (reparative effect); and on the perceptions of affected populations (demonstration effect). It concludes that the ICC is having a normative impact on domestic legal systems and peace agreements, but it has brought little reparative justice for victims, and it does not necessarily correspond with how affected populations view justice priorities. The book concludes that justice for the world’s worst crimes has no “universal formula” that can easily be captured in the law of the ICC. Marieke Wierda is a Dutch lawyer and is currently Deputy Ambassador of The Netherlands to Yemen. She was educated in the UK and the US and specialized in international criminal law and transitional justice. She has worked with the Netherlands Foreign Ministry, the United Nations, the International Criminal Tribunal for the former Yugoslavia, and the International Center for Transitional Justice, alongside extensive field experience.

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Published online by Cambridge University Press

The Local Impact of the International Criminal Court from law to justice MARIEKE WIERDA Leiden University

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Shaftesbury Road, Cambridge cb2 8ea, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, usa 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009152747 doi: 10.1017/9781009153805 © Marieke Wierda 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library. A Cataloging-in-Publication data record for this book is available from the Library of Congress isbn 978-1-009-15274-7 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

Acknowledgmentspage xi xiii

List of Abbreviations

Introduction1 I From Law to Justice: A Personal Note 1 II The ICC: Idea or Ideal? 4 1

A Framework for Assessing the Impact of the ICC I Introduction II What Is the ICC’s “Theory of Change”? A No Consensus on the ICC’s Goals B Commonly Cited Assumptions Underlying the ICC III How to Assess the Expressivist Role of the ICC A Norm Projection: Condemning and Prohibiting the Crimes B Norm Projection: Repairing Victims C Norm Projection: Demonstration Effect IV Lessons from Impact Studies from Other Tribunals A Norm Projection: Condemning and Prohibiting the Crimes B Norm Projection: Repairing Victims C Norm Projection: Demonstration Effect V Proposing a Framework A Systemic Effect B Transformative Effect C Reparative Effect D Demonstration Effect VI Conclusion v

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Systemic Effect I: The Flaws of Complementarity I Introduction II The Flaws of Complementarity A “Positive” Complementarity? B Complementarity and Rule of Law Challenges C The Blindness of Complementarity vis-à-vis Due Process III Conclusion: Parallelism? Systemic Effect II: Internalization of the Rome Statute I Introduction II Implementing Legislation A Incorporation of Rome Statute Crimes B Victims’ Rights under Domestic Law C Modes of Liability D Incorporation of ICC Procedures III Specialized Domestic Investigative Units or Chambers A Uganda International Crimes Division B The Context and Analysis Unit in Colombia C Kenyan Special Tribunal and International and Organized Crimes Division D The International Crimes Directorate in Afghanistan IV National Proceedings and Genuineness A Domestic Trials in Colombia: Paramilitaries, Politicians, and “False Positives” B Indicators of Genuineness V The Tale of Kwoyelo: Internalization without (a) Conviction? VI Conclusion: Systemic Effect in Domestic Legal Systems

50 50 52 52 64 70 81 83 83 85 85 89 90 90 92 92 94 96 98 99 100 105 110 113

Transformative Effect I: A Paradigm Shift in Peace Negotiations? 116 I Introduction 116 II Setting the Parameters: The New Legal Limits 117 A Article 16: Reluctance of the Security Council? 117 B Article 53: An Uncompromising Prosecutor 118 C Interests of Justice: An Overly Compromising PTC122 III Who Sets the Parameters? The Interests of Victims 123

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IV Testing the Parameters: Does Promoting Arrest Warrants Hinder Peace? A The Debacle of Kony 2012 B No Negotiations or Exile for Al-Qadhafi Due to the ICC C Afghanistan: No Peace, No Justice? V Challenging the Parameters: Amnesia about Amnesties? A Uganda’s Amnesty Act 2000 B Afghanistan’s Amnesty C Libya: Amnesty for Revolutionary Acts? VI Conclusion Transformative Effect II: Peace Negotiations in the Shadow of the ICC I Introduction II Uganda: Impact of the ICC on the Conflict and Negotiations A Uganda: Did the ICC Intervention Increase Awareness of Accountability? B Did the ICC Focus Increase (Humanitarian) Attention on the Conflict? C Influence of the ICC on Conduct of State Actors D The ICC’s Role in Empowering Victims in Peace Negotiations E The ICC as an Incentive to Negotiate? F The ICC as an Obstacle to Negotiations? III The Ugandan Agreement on Accountability and Reconciliation IV Impact of the Rome Statute on the Justice and Peace Law in Colombia V Impact of the Rome Statute on the Peace Process with the FARC A The Rome Statute’s Impact on the Legal Framework for Peace B The Rome Statute’s Impact on the Havana Agreement VI Spectator or Player? Impact of the OTP’s Actions on Peace Negotiations VII Peace with Punishment VIII Conclusion: No Universal Formula

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Societal Impact I: Reparative Effect for Victims? I Introduction II Legal Framework for Victims A Meaningful Participation? B Who Is Eligible for Reparations? C The TFV: Centerpiece or Sideshow? D Conclusion III Reparative Effect in Situation Countries A Uganda: A Troubled Decade of Intervention B Kenya: Do No Harm? The Victims of PEV IV Conclusion on Reparative Effect: Does the ICC Deliver Justice to Victims?

187 187 189 189 194 198 200 201 201 209 214

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Societal Impact II: Demonstration Effect in Affected Communities217 I Introduction 217 II Four Situation Countries 218 A Uganda and the ICC: Love at First Sight? 218 B Libya: From Infatuation to Estrangement 231 C Colombia and the ICC: Separate but Symbiotic 241 D Afghanistan: The Court’s Situation of Last Resort 248 III Conclusion 258

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Conclusion: From Law to Justice I Introduction II No Shortcut to Utopia III More Law Than Justice A Systemic Effect: Complementarity or Parallelism? B Transformative Effect: The Interests of Victims in Peace C Reparative Effect: Justice for Victims? D Demonstration Effect: “Derivative” Expressivism IV From Law to Justice: Can the ICC Maximize Its Impact? A Understanding the Local Context B Should the ICC Continue to Seek Universality? V From Law to Justice for the World’s Worst Crimes

261 261 262 263 263 267 269 271 273 273 278 280

Postscript282

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Contents

Appendix A: Methodological Note I Introduction A Field Experience B Country Selection C Data Collection Appendix B: The Current State of the International Criminal Court I Introduction A The Court’s Performance: Facts and Figures B Factors Impacting Performance II A Global Court without Universality? A Reliance on Self-Referrals: Focus on Africa B Impact of Security Council Referrals on Legitimacy C Threat of Withdrawals III Damned If You Do, Damned If You Don’t: The Hard Cases A Allegations against the UK in Iraq B The Palestinian Situation IV Conclusion Index

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Contents

Acknowledgmentspage xi xiii

List of Abbreviations

Introduction1 I From Law to Justice: A Personal Note 1 II The ICC: Idea or Ideal? 4 1

A Framework for Assessing the Impact of the ICC I Introduction II What Is the ICC’s “Theory of Change”? A No Consensus on the ICC’s Goals B Commonly Cited Assumptions Underlying the ICC III How to Assess the Expressivist Role of the ICC A Norm Projection: Condemning and Prohibiting the Crimes B Norm Projection: Repairing Victims C Norm Projection: Demonstration Effect IV Lessons from Impact Studies from Other Tribunals A Norm Projection: Condemning and Prohibiting the Crimes B Norm Projection: Repairing Victims C Norm Projection: Demonstration Effect V Proposing a Framework A Systemic Effect B Transformative Effect C Reparative Effect D Demonstration Effect VI Conclusion v

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Systemic Effect I: The Flaws of Complementarity I Introduction II The Flaws of Complementarity A “Positive” Complementarity? B Complementarity and Rule of Law Challenges C The Blindness of Complementarity vis-à-vis Due Process III Conclusion: Parallelism? Systemic Effect II: Internalization of the Rome Statute I Introduction II Implementing Legislation A Incorporation of Rome Statute Crimes B Victims’ Rights under Domestic Law C Modes of Liability D Incorporation of ICC Procedures III Specialized Domestic Investigative Units or Chambers A Uganda International Crimes Division B The Context and Analysis Unit in Colombia C Kenyan Special Tribunal and International and Organized Crimes Division D The International Crimes Directorate in Afghanistan IV National Proceedings and Genuineness A Domestic Trials in Colombia: Paramilitaries, Politicians, and “False Positives” B Indicators of Genuineness V The Tale of Kwoyelo: Internalization without (a) Conviction? VI Conclusion: Systemic Effect in Domestic Legal Systems

50 50 52 52 64 70 81 83 83 85 85 89 90 90 92 92 94 96 98 99 100 105 110 113

Transformative Effect I: A Paradigm Shift in Peace Negotiations? 116 I Introduction 116 II Setting the Parameters: The New Legal Limits 117 A Article 16: Reluctance of the Security Council? 117 B Article 53: An Uncompromising Prosecutor 118 C Interests of Justice: An Overly Compromising PTC122 III Who Sets the Parameters? The Interests of Victims 123

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IV Testing the Parameters: Does Promoting Arrest Warrants Hinder Peace? A The Debacle of Kony 2012 B No Negotiations or Exile for Al-Qadhafi Due to the ICC C Afghanistan: No Peace, No Justice? V Challenging the Parameters: Amnesia about Amnesties? A Uganda’s Amnesty Act 2000 B Afghanistan’s Amnesty C Libya: Amnesty for Revolutionary Acts? VI Conclusion Transformative Effect II: Peace Negotiations in the Shadow of the ICC I Introduction II Uganda: Impact of the ICC on the Conflict and Negotiations A Uganda: Did the ICC Intervention Increase Awareness of Accountability? B Did the ICC Focus Increase (Humanitarian) Attention on the Conflict? C Influence of the ICC on Conduct of State Actors D The ICC’s Role in Empowering Victims in Peace Negotiations E The ICC as an Incentive to Negotiate? F The ICC as an Obstacle to Negotiations? III The Ugandan Agreement on Accountability and Reconciliation IV Impact of the Rome Statute on the Justice and Peace Law in Colombia V Impact of the Rome Statute on the Peace Process with the FARC A The Rome Statute’s Impact on the Legal Framework for Peace B The Rome Statute’s Impact on the Havana Agreement VI Spectator or Player? Impact of the OTP’s Actions on Peace Negotiations VII Peace with Punishment VIII Conclusion: No Universal Formula

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Societal Impact I: Reparative Effect for Victims? I Introduction II Legal Framework for Victims A Meaningful Participation? B Who Is Eligible for Reparations? C The TFV: Centerpiece or Sideshow? D Conclusion III Reparative Effect in Situation Countries A Uganda: A Troubled Decade of Intervention B Kenya: Do No Harm? The Victims of PEV IV Conclusion on Reparative Effect: Does the ICC Deliver Justice to Victims?

187 187 189 189 194 198 200 201 201 209 214

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Societal Impact II: Demonstration Effect in Affected Communities217 I Introduction 217 II Four Situation Countries 218 A Uganda and the ICC: Love at First Sight? 218 B Libya: From Infatuation to Estrangement 231 C Colombia and the ICC: Separate but Symbiotic 241 D Afghanistan: The Court’s Situation of Last Resort 248 III Conclusion 258

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Conclusion: From Law to Justice I Introduction II No Shortcut to Utopia III More Law Than Justice A Systemic Effect: Complementarity or Parallelism? B Transformative Effect: The Interests of Victims in Peace C Reparative Effect: Justice for Victims? D Demonstration Effect: “Derivative” Expressivism IV From Law to Justice: Can the ICC Maximize Its Impact? A Understanding the Local Context B Should the ICC Continue to Seek Universality? V From Law to Justice for the World’s Worst Crimes

261 261 262 263 263 267 269 271 273 273 278 280

Postscript282

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Contents

Appendix A: Methodological Note I Introduction A Field Experience B Country Selection C Data Collection Appendix B: The Current State of the International Criminal Court I Introduction A The Court’s Performance: Facts and Figures B Factors Impacting Performance II A Global Court without Universality? A Reliance on Self-Referrals: Focus on Africa B Impact of Security Council Referrals on Legitimacy C Threat of Withdrawals III Damned If You Do, Damned If You Don’t: The Hard Cases A Allegations against the UK in Iraq B The Palestinian Situation IV Conclusion Index

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Abbreviations

AI ASF ASP AU CAR DPP DRC ECCC EU FARC FIDH HRW ICC ICD ICTJ ICTR ICTY IDP IER IHL IMT ISAF ISIL JCCD JLOS JPL LFP

Amnesty International Avocats Sans Frontières (Lawyers without Borders) Assembly of States Parties African Union Central African Republic Department of Public Prosecutions (Uganda) Democratic Republic of Congo Extraordinary Chambers in the Courts of Cambodia European Union Fuerzas Armadas Revolucionarias de Colombia (Revolu­tionary Armed Forces of Colombia) International Federation for Human Rights Human Rights Watch International Criminal Court International Crimes Division (Uganda and Kenya) International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia internally displaced person Independent Expert Review 2020 International Humanitarian Law International Military Tribunal (in Nuremberg or the Far East) International Security Assistance Force (Afghanistan) Islamic State in Iraq and the Levant Jurisdiction, Complementarity and Cooperation Division Justice, Law and Order Sector Uganda Justice and Peace Law (Law 975) Colombia Legal Framework for Peace Colombia xiii

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LRA NGO OHCHR OSCE OTP PEV PRDP PRIO SCSL SGBV TFV UNAC UNAMA UNAMID UNSC UNSMIL UPDF

List of Abbreviations

Lord’s Resistance Army nongovernmental organization Office of the High Commissioner for Human Rights Organization for Security and Co-operation in Europe Office of the Prosecutor Post-Election Violence in Kenya Peace, Recovery and Development Plan Peace Research Institute Oslo Special Court for Sierra Leone sexual and gender-based violence Trust Fund for Victims Context and Analysis Unit Colombia United Nations Assistance Mission in Afghanistan United Nations Assistance Mission in Darfur United Nations Security Council United Nations Assistance Mission in Libya Uganda People’s Defence Forces

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Introduction

We wept with joy because we had succeeded in ensuring that for us to be a human civilization worthy of some self-respect, the strong would henceforth forfeit voluntarily their protections in respect of the weak, and most particularly, the victims, whenever allegations of criminal conduct crossed the boundary separating the ordinary from the outrageous. It was, and still is, the most enlightened step in human history ever taken.1 H.R.H. Prince Zeid Raad Zeid Al-Hussein Justice? You get justice in the next world. In this one you have the law. William Gaddis, American Novelist

I  From Law to Justice: A Personal Note On April 11, 2002, I was present in the room at the United Nations Headquarters in New York when the final ten of the sixty ratifications required for the coming into force of the Rome Statute of the International Criminal Court (ICC) were deposited with the treaty section of the United Nations. I remember well the cheers of joy, the sense of optimism, and the hope that filled the room when state delegates and representatives of civil society and the media rose to their feet and applauded at the conclusion of the ceremony. They did so in the knowledge that the dream of a global court was now a reality. In the aftermath of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the ICC seemed an idea whose time had come. I myself was a keen advocate of international criminal justice, having started my career as an associate legal officer at the International Criminal 1

Statement by H. R. H. Prince Zeid Raad Zeid Al-Hussein, the Hashemite Kingdom of Jordan, also speaking on behalf of H. E. Christian Wenaweser, Ambassador of the Principality of Liechtenstein, to the twelfth session of the Assembly of States Parties, November 20, 2013.

1

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Tribunal for the former Yugoslavia (ICTY) from 1997 to 2000. The ICTY had demonstrated that fair and functional criminal justice at the international level is indeed possible.2 I had witnessed firsthand the power of the law and the normative impact of the ICTY’s judgments. A sense prevailed at the ICTY that we were involved in a global justice project and that we were the continuation of the Nuremberg legacy in strengthening the law worldwide. At the time, I did not realize that there can be a gap between law and justice. Neither I nor others at the Tribunal asked many questions about how it was perceived in the former Yugoslavia. I never visited the former Yugoslavia as a part of my work: A single site visit that was planned in one of the trials was canceled for security reasons. International criminal justice was on the rise, and the jewel in its crown was expected to be the ICC.3 In subsequent years, my professional experiences led me to spend significant time in a number of countries under the scrutiny of the ICC. My observations in the course of my extensive field experiences in Afghanistan, Colombia, Libya, and Uganda led me to start to doubt whether the ICC is having the desired impact on the ground. I started to see a gap between law and justice. I developed doubts about the deterrent effect of the Court. In all of these ­countries, violence continued in spite of the involvement of the ICC.4 In Afghanistan, in March 2014, I spoke to Abdel-Hakim Mujahid, former Taliban Ambassador to the United Nations prior to 9/11 and Vice President of the High Peace Council, about whether the ICC’s potential jurisdiction had any d ­ eterrent effect on the Taliban. His response was that the Taliban have a different world view: They are ignorant of international conventions and are willing to commit suicide attacks to go to paradise.5 This implied that they do not fear an ICC. The impact on victims, and whether they associate the ICC with justice, was not apparent. When I first traveled to Northern Uganda in 2005, I presumed victims would welcome the Court. I was surprised to find out that many did not. In Northern Uganda, most of the population were living in internally displaced persons (IDP) camps and suffering from extreme poverty. Their general living conditions were costing more lives than Lord’s Resistance 2

The trajectory of the ICTY’s growth is eloquently described in Mirko Klarin. The Tribunal’s Four Battles. Journal of International Criminal Justice, Vol. 2 (2004) pp. 546–57. 3 I was a participant in the last few PrepComs, the first few Assembly of States Parties (ASPs), several expert groups that sought to define policy on complementarity, the Trust Fund for Victims, Peace versus Justice, and Article 53, and the Review Conference in Kampala in 2010. 4 See Chapter 1 on “deterrence.” 5 Interview with Abdel-Hakim Mujahid, Kabul, March 18, 2014.

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Introduction

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Army (LRA) violence. In general, Northern Ugandans were furious with their government for failing to protect them or for aggravating their undignified living conditions. A civil society activist observed: “the trial of a few individuals is not going to bring justice for two million victims.” Many victims in Northern Uganda are primarily concerned with receiving reparations and more concrete forms of assistance. ICC involvement can lead to friction with domestic systems. In fact, the Court’s focus on a small number of cases and individuals has often been perceived as highly arbitrary against a background of enormous rule of law challenges prevalent in countries where the world’s worst crimes occur. For instance, in the aftermath of the Libyan Revolution, large numbers of persons were detained for presumed links with the old regime. Many remain in detention today and have often been subject to ill treatment or torture. In Libya, the Minister of Justice at the time, Mr. Salah Marghani, exclaimed during a conversation we had in 2013: “Why does the international community only care about two individuals when we have 7,000 former Qadhafi loyalists in detention?” Moreover, the existence of the Court raised real dilemmas, for instance, whether it would stand in the way of peaceful resolution of conflict. In Northern Uganda, the Court’s first case, many people did not understand why the international community was promoting an ICC as a solution to their conflict, rather than sending international peacekeepers. In Colombia, in 2014, I had the opportunity to meet with President Juan Manuel Santos, the president in charge of negotiating an end to the forty years of conflict (who later won a Nobel Prize). Many Colombians expressed the burden of having to weigh the views of the international community in finding a ­solution. The year before, President Santos had appeared before the General Assembly, making an impassioned plea: “What we are asking from the UN and the international community is to respect Colombia’s right, and the right of every nation, to pursue peace. We ask you to keep accompanying us in this effort, respecting our choices, the way in which we act, and trusting that our decisions have never been against the international community’s needs.” The involvement of the ICC raised the question in all of these situations about whether the application of the law necessarily results in justice for victims and affected communities. The ICC sets important normative standards and serves to strengthen the law, but the pristine courtrooms and offices of international courts in The Hague, The Netherlands are a long way from the bush on the north side of the Nile in Uganda; the snowcapped mountains of Afghanistan; the sun-soaked beachside cities and desert towns of Libya; or

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The Local Impact of the International Criminal Court

the jungles and cities of Colombia. These experiences inspired me to further investigate the impact of the Rome Statute and the ICC. Does this advancement in the law mean justice to those most affected by the crimes?

II  The ICC: Idea or Ideal? The adoption of the Rome Statute by some 120 states in 1998, after years of negotiation, defied expectations. The Rome Statute represented an apex in the struggle against impunity: a sign of true human progress, a measure to reduce conflict and suffering, an instrument to defend the weak against the powerful, and an ultimate universal standard in the globalization of human rights. The zeitgeist of the ICC’s origins should not be underestimated, nor should the strength of its ambition. At the core of the project of the ICC is an ideal of a “shared heritage”: a “delicate mosaic” that may be “shattered at any time” by “unimaginable atrocities” committed against children, women, and men. The Statute Preamble pledges that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured.”6 The Rome Statute was seen as a critical building block in the international legal order, and a crucial addition to a long list of treaties and conventions prohibiting and criminalizing war crimes, crimes against humanity, and genocide after World War II. What was lacking in these treaties was an effective enforcement mechanism. National jurisdictions were not effective in enforcement; hence, the crimes continued. Supporters of this idea viewed the establishment of the ICC as a paradigm shift in global relations: a pinnacle in the fight for the universality of human rights, a triumph of liberalism, and an equalizer between nations. Former Prosecutor Luis Moreno Ocampo referred to an “empire of the law” replacing the “law of the empire.”7 The Court became a powerful symbol that “law would speak to power.” Indeed, a world without war crimes, crimes against humanity, or genocide could mean a world where peace, rather than conflict, is the norm. However, it remained to be seen if this ideal could be converted into an idea that worked. Twenty years later, these are troubled times for the ICC.8 First is the ICC’s poor track record in terms of numbers of cases it has investigated and tried successfully. To date, in early 2021, only five persons have been convicted of “core 6

Preamble of the Rome Statute of the ICC. Interview with Luis Moreno Ocampo, New York, November 2014. 8 See Appendix B on the “The Current State of the International Criminal Court.” 7

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Introduction

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crimes.” In one calamitous year in 2019, three senior African politicians were acquitted from all charges: Jean-Pierre Bemba, Laurent Gbagbo, and Charles Blé Goudé. While commentators have argued that acquittals are a hallmark of fair trials, the political reality is that low numbers of convictions are perceived by governments to be a poor return on investment. Increasingly, States Parties, who fund the Court with taxpayer money, have begun to show “buyers’ remorse,” as indicated by a UK delegate at the Assembly of States Parties (ASP) in 2018: After 20 years, and 1.5 billion Euros spent, we have only three core crimes convictions. As others have said, and I quote: “it is undeniable that the Rome project still falls short of the expectations of the participants at the groundbreaking conference in Rome.”9

Second, the political environment in which the Court functions was fraught from the outset, but it has worsened. In the first fifteen years, most of the opposition came from the African continent. More recently, fierce opposition is coming from powerful states who find themselves under the scrutiny of the Court. In September 2020, the United States implemented sanctions against the Chief Prosecutor and another member of her staff, pursuant to the opening of an investigation in Afghanistan. Israel, too, has called the ICC “a perversion of justice.” On the other hand, if the Prosecutor avoids all the “hard cases,” including Afghanistan, Iraq, and Palestine, it will be perceived as insisting on a double standard, and this may lead to further withdrawals from the Rome Statute. Third, the Court has been plagued by internal difficulties, described by Douglas Guilfoyle as “organizational failure.”10 First was the legacy of the first Prosecutor, in and out of office. Ocampo is blamed by many for the ­current ­malaise of the Court, including its poor track record on investigations and prosecutions. In October 2017, a series of articles appeared about former ­ Prosecutor Luis Moreno Ocampo containing serious allegations about offshore back accounts, collusion with a millionaire in Libya to give advice to those loyal to General Haftar on how to avoid the ICC (for a hefty fee), and attempts to have the case against Uhuru Kenyatta withdrawn after he left the Court.11 The second Prosecutor had a high level of integrity but brought very few new indictments. While these allegations are damaging, the state of the institution or the lack of the desired impact cannot be ascribed to a single individual. Neither 9

UK Statement to ICC Assembly of States Parties 17th session, December 5, 2018. Douglas Guilfoyle. Lacking Conviction: Is the International Criminal Court Broken? An Organisational Failure Analysis. Melbourne Journal of International Law, Vol 20, No. 2 (2019) p. 1. 11 Morten Bergsmo, Wolfgang Kaleck, Sam Muller, and William Wiley. A Prosecutor Falls, Time for the Court to Rise. Torkel Opsahl Academic E-Publisher, FICHL Policy Brief Series No. 86 (2017). 10

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The Local Impact of the International Criminal Court

can the “rescue” of the ICC project be expected to lie in the hands of a single individual: the next Prosecutor of the ICC. Nonetheless, the selection of the third Prosecutor was mired in controversy.12 On February 12, 2021, a British lawyer, Karim Khan, was elected to the post. On September 30, 2020, an Independent Expert Review (IER) of the Court’s operations made 384 recommendations to improve the Court.13 The IER criticizes the internal working culture of the Court, noting “distrust,” a “culture of fear,” and an antagonistic approach between the various organs of the Court.14 The IER states that the Court is “widely perceived from within as too bureaucratic, too inflexible, and lacking in leadership and accountability.”15 The report also describes the low morale at the Court, including a prevalence of harassment and bullying, as well as gender inequality and discrimination.16 (In fact, more cases have been brought before the ILO Administrative Tribunal by ICC staff than the Court itself has litigated.)17 Additionally, some of the judges have demanded higher salaries, which is regarded by states as inappropriate considering the meager judicial caseload of the Court.18 Fourth, the issue of the Court’s resources is disputed. On the one hand, many proponents blame the lack of resources for the Court’s underperformance. The budget for 2020 was almost 150 million euros.19 The IER refers to a “mismatch between resources and actual work.” Others, including some State Parties, argue that the Court should have performed better with the resources that it has been allocated. The Court has available to it less than 15 million euros to spend annually on any situation, about 10% of the budget of the ICTY. Some argue that the Court is spreading itself too thin.20 The opening of eleven investigations in highly varied situations has created a very high potential workload for the Court. In addition, the Court is following a number of situations through preliminary examinations, which seek to contribute to encouraging domestic proceedings. At the same time, the current budget of 12 13 14 15 16 17 18 19 20

Gunnar Ekelove-Skydal. The Process of Electing the Next ICC Prosecutor Should Be Opened Up, August 10, 2020, opiniojuris.org. The establishment of the IER is described in more detail in the following text. IER of the International Criminal Court and the Rome Statute System, Final Report (hereafter, IER), September 30, 2020, para. 60. IER, para. 63. IER, para. 72. Douglas Guilfoyle. Lacking Conviction: Is the ICC Broken? An Organisational Failure Analysis. Melbourne Journal of Int. Law, Vol. 20, No. 2 (2019) p. 19. New York Times, In The Hague’s Lofty Judicial Halls, Judges Wrangle over Pay, January 20, 2019. ICC ASP, Proposed Budget, Res. ICC-ASP/18/Res 1. Guilfoyle. Lacking Conviction, p. 20.

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Introduction

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the Court allows it to conduct around eight investigations.21 This presumes only a few cases per situation. In response to this, perceptions of the ICC worldwide are suffering. In countries under the Court’s jurisdiction, among populations that are supposed to be the target of its norm projection, perceptions are often far from positive.22 Increasingly, policymakers and practitioners are questioning whether the ICC is capable of meeting the noble goals for which it was established. While these issues have generated ample criticism of the ICC, some of these weaknesses could be the growing pains of a relatively new and highly complex international institution. These could be addressed and corrected, as suggested by the IER, but will that lead to more impact for the ICC? What ought to be the standards by which the ICC should be assessed? What is its theory of change? What are the goals that it should realistically be expected to meet? How should its impact be understood? The last years have seen increased discussion on performance indicators for the ICC. However, the main focus of that discussion is on the internal processes of the Court rather than its external impact. In 2014, the ASP requested the ICC to “intensify its efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs, as well as allowing States Parties to assess the Court’s performance in a more strategic manner.”23 All of these indicators are within the span of control of the Court and deal with its performance rather than its impact. Likewise, the Prosecutor has identified indicators related to its performance.24 These indicators also focus on matters within the Office of the Prosecutor (OTP) or the Court’s control, thus avoiding “causation complexity.”25 21 22 23

24 25

As the IER observed: “more investigations allow for fewer cases per situation, thus reducing the Court’s impact in situation countries.” IER, para. 643. See Chapter 7. ICC-ASP/13/Res.5, December 17, 2014, Annex I, para. 7 (b). See OSJI Briefing Paper, Establishing Performance Indicators for the ICC, November 2015. The Court took steps accordingly to identify indicators to assess its performance in four areas, namely whether (1) the Court’s proceedings are expeditious, fair, and transparent at every stage; (2) the ICC’s leadership and management are effective; (3) the ICC ensures adequate security for its work, including protection of those at risk from involvement with the Court; and (4) victims have adequate access to the Court. In November 2016, the Court issued the second of its reports on these performance areas, suggesting specific indicators in each area. OTP. Strategic Plan 2016–2018, July 6, 2015, para. 104. Birju Kotecha. The ICC’s Office of the Prosecutor and the Limits of Performance Indicators. JICL, Vol. 15, No. 3 (July 1, 2007) pp. 543–65. Kotecha. The ICC’s Office of the Prosecutor and the Limits of Performance Indicators. These included the numbers of arrest warrants and summons to appear granted, the number of persons with charges confirmed, number of convicted persons, as well as various internal operational and managerial indicators.

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Criticism of the Court’s performance by State Parties was what led to the establishment of the previously mentioned IER on January 1, 2020.26 The IER can lead to improvements of the Court’s functioning. However, any attempt to assess the Court’s performance or efficacy by looking mainly at its internal procedures is too narrow and avoids the more fundamental question of the Court’s impact in relation to its broader goals. The latter requires the examination of factors external to the Court, as observed by Carsten Stahn: “It requires a relational account, which takes into account how justice is communicated and perceived. The ICC matters to states or global audiences, but mostly to countries and societies where the crimes are committed.”27 Indeed, the Prosecutor should be highly concerned with the Court’s impact on the ground.28 This realization is growing both inside the Court and the ASP. The OTP has said that it will include the measurement of positive impact in situation and non-situation states in its key performance indicators and will include this in a policy on completion strategies.29 Chapter 1 of this study suggests a framework for assessment. In applying the framework in Chapters 2–7, this study will seek to answer the following questions: What is the evidence of the normative impact of the Rome Statute and the ICC on the country level, both at the level of impact on legal systems and on political processes such as peace negotiations? What is its impact as an instrument of law? What is the evidence of the societal impact, at the level of victims or affected populations? Are the standards of the Rome Statute being internalized in the countries where crimes are being committed? Is the Court also seen as an instrument of justice? A concluding chapter will analyze the implications of the findings for the ICC project going forward. 26

27 28 29

ICC-ASP/18/Res.7. The goal of the IER was: “To identify ways to strengthen the International Criminal Court and the Rome Statute system in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning, while upholding the key principles enshrined in the Statute, including those of complementarity, integrity and judicial and prosecutorial independence.” Carsten Stahn. Human Rights and International Criminal Law Forum: http://iccforum.com/ performance (2017). Patryk Labuda. Less Is More: Rediscovering the Prosecutor’s Core Mandate, April 14, 2020, Justice in Conflict blog. IER, para. 694. The IER commented that “externalizing implementation does not prevent the Court and the ASP from reflecting on the results and considering whether any actions are needed based on the report’s conclusions.” Para. 369.

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1 A Framework for Assessing the Impact of the ICC

At the Court, we can’t take our impact into consideration. The law must guide us, not our effects on the ground. International justice cannot bring change in a country. Luis Moreno Ocampo1

I Introduction The two decades since the Court came into existence have generated surprisingly little scholarship on the impact of the ICC. Why is the assessment of the Court’s impact so limited, considering that this is a joint project of 123 countries, which will have cost the international community upward of two billion euros in the first twenty years? The reasons for this are diverse. The scholarship on the ICC has largely focused on the legal dimensions of the Court as an instrument of law.2 Few scholars sought to analyze the broader impact of the ICC in situation countries, with some notable exceptions.3 1

Luis Moreno Ocampo. The International Criminal Court and Prospects for Peace in Africa, expert roundtable on Peace, Justice and the Dilemmas of the ICC in Africa, London School of Economics, March 2, 2007, cited in Phil Clark. Distant Justice: The Impact of the International Criminal Court on African Politics. Cambridge University Press (2018) p. 43. 2 Kirsten Ainley. The International Criminal Court on Trial. Cambridge Review of International Affairs, Vol. 24, No. 3 (2011) pp. 309–33: “As a centralized, permanent institution for investigating and prosecuting war crimes, the Court has (or should have) two main structural advantages over ad hoc tribunals: cost and efficiency.” 3 See, for instance: Phil Clark. Distant Justice. Sarah Nouwen. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press (2013). Mark Kersten. Justice in Conflict: The Effect of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Oxford University Press (2016). Tim Allen. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. Bloomsbury Publishing Plc. (2006). Mahmood Mamdani. Saviors and Survivors: Darfur, Politics and the War on Terror. HSRC Press (2009). Kamari M. Clarke, Abel Knottnerus, and Eefje de Volder. Africa and the ICC: Perceptions of Justice. Cambridge

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The establishment of the ICC was seen as a great achievement in itself, a cornerstone in the fight against impunity. The ICC’s first decade was beset with anxiety that its trajectory would be cut short by political attacks. The major powers, including China, India, and Indonesia, did not sign the Rome Statute, whereas the United States, Israel, Sudan, and Russia all “unsigned” it, indicating that they would not become members. In particular, opposition from the United States from the outset meant that the Court was considered an underdog, and any gain was considered a victory. The Court enjoyed strong support from an ecosystem of dedicated supporters, including diplomats and government officials, activists, ­ ­nongovernmental organizations (NGOs), international lawyers and judges, and academics and scholars.4 Many of those involved in the creation of the ICC went on to work for it. Numerous individuals have been involved in the project for decades. Many commentators tended to be lawyers producing legalistic ­analysis.5 Judith Shklar defines legalism as “the ethical attitude that holds moral ­conduct to be a matter of rule following, and moral relationships to ­consist of rights and duties determined by rules.”6 According to Shklar, legalism seeks to “isolate law from the political, social and historical context in which it exists.”7 The elevation of the Court as an institution above all forms of political considerations hampers the evaluation of its impact.8 A crucial inhibiting factor on analysis is the distance between the ICC and situation countries, in physical and political terms, as highlighted by Clark.9 The Court itself is located in the quiet and prosperous city of The Hague in University Press (2016). Christian de Vos. Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya and the Democratic Republic of Congo. Cambridge University Press (2020). See also Jane Stromseth. The International Criminal Court and Justice on the Ground. Arizona State Law Journal, Vol. 43 (2009) p. 427. 4 Leslie Vinjamuri and Jack Snyder. Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice. Annual Review of Political Science, Vol. 7 (2004) pp. 345–62. Numerous delegates from the Rome Conference, Preparatory Committee, or Assembly of State Parties joined the Court staff in various capacities, as did representatives of NGOs. 5 Daryl Robinson. Inescapable Dyads: Why the ICC Cannot Win. Leiden Journal of International Law, Vol. 28, No. 2 (2015) pp. 323–47. Antonio Cassese. Is the ICC Still Having Teething Problems? Journal of International Criminal Justice, Vol. 4, No. 3 (July 1, 2006) pp.  434–41. David Bosco. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press (2014) p. 181. 6 Judith Shklar. Legalism: Law, Morals and Political Trials. Harvard University Press (1964) p. 1. 7 Ibid., pp. 2–3. 8 David Koller. The Faith of the International Criminal Lawyer. International Law and Politics, Vol. 40 (2008) p. 1019. 9 Clark. Distant Justice.

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The Netherlands. Scholars writing about the ICC often hail from the West and have not spent significant time in situation countries.10 This distance has led to “detachment,” in the words of the IER. Some empirical studies were conducted in situation countries, for instance, on attitudinal responses to the Court, but such studies remain rare.11 Recent years have seen an increase in scholarship from situation countries, but this is not equally true for all countries.12 In general, policy at the international level is not always sufficiently evidence based. In this sense, the ICC is not an exception.

II  What Is the ICC’s “Theory of Change”? A  No Consensus on the ICC’s Goals The most important reason for the lack of assessment of the ICC’s impact, however, is the fundamental lack of clarity on the ICC’s goals. Many of the Court’s supporters are driven by a deep conviction that the Court is necessary to put an end to the world’s worst crimes. However, in their support for this norm, they have not often stopped to evaluate whether the Court is the best avenue for reaching that goal. A theory of change is a description of how an intervention is meant to accomplish change. This requires identifying the overall goals of the intervention, as well as the assumptions upon which these are based. In the case of the ICC, its theory of change lacks definition: It is supposed to contribute to ending impunity, but people may disagree on how. The Rome Statute Preamble states that the establishment of the ICC seeks to “contribute to ending impunity by conducting fair investigations and trials 10

Some Third World Approaches to International Law (TWAIL) scholarship has addressed the ICC. See for instance John Reynolds, Sujith Xavier, and Asad Kiyani. Third World Approaches to International Criminal Law. Journal of International Criminal Justice, Vol. 14, No. 4 (2016) p. 916. See also Vasuki Nesiah. Local Ownership of Global Governance. Journal of International Criminal Justice, Vol. 14, No. 4 (September 2016) pp. 985–1009. 11 See, for instance: Human Rights Center, University of California at Berkeley; Payson Center for International Development, Tulane University; ICTJ, Living with Fear: A PopulationBased Survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Republic of Congo, August 2008; Human Rights Center, University of California at Berkeley. Building Peace Seeking Justice: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Central African Republic, August 2010. A number of other surveys are discussed in detail in Chapter 6. 12 Colombia has generated a wealth of scholarship from inside the country, and many of the scholars are cited in this work. Uganda, too, has a number of commentators and scholars also cited here, but fewer Libyans or Afghans are writing about the ICC in English or in scholarly works. Those who have written about it are also cited where possible.

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for the worst crimes, thereby contributing to their prevention.”13 At the heart of this idea is the assumption that “criminal punishment is … the most effective insurance against future repression.”14 However, at the time of the creation of the Court, this assumption was more a matter of “faith” than that it was based on empirical evidence or “fact.”15 International criminal justice has become “more of a faith-based conviction than a conclusion based on sober analyses of the legalities of the matter and of the policy dilemmas.”16 Stahn refers to a “fundamental uncertainty about the actual goals and the focus of the Court. The fundamental question of what the Court can and should realistically achieve is still unresolved.”17 This is particularly the case considering how few investigations and trials are actually being conducted. For some, the Court’s main contribution is as an instrument of law and thus, its main measure of success should be its contribution to the international legal order, through the normative contribution of the Rome Statute itself as a treaty and through the jurisprudence of the Court. However, the ambitions of the Rome Statute go beyond the law. The enforcement role of the Court was supposed to fundamentally change the world, by decreasing and ultimately eliminating the worst crimes. In the least, the Court must also demonstrate change on the ground in terms of the laws and institutions of affected countries. The Court is also meant to deliver justice to victims and affected communities. 13

14 15

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Impunity has been defined by the United Nations as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account—whether in criminal, civil, administrative or disciplinary proceedings—since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.” United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, 2005, E/CN.4/2005/102/Add.1 Article 1. Diane Orentlicher. Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime. The Yale Law Journal, Vol. 100, No. 8 (1991) p. 2542. José Alvarez. Multilateralism and Its Discontents. European Journal of International Law, Vol. 11 (2000) pp. 393–411 p. 394, quoting Martti Koskenniemi. International Law in a PostRealist Era. Australian Yearbook of International Law, Vol. 16 (1995) p. 11: “International lawyers share an appealing evangelical, even messianic agenda. We are on a mission to improve the human condition. For many, perhaps most of us, this mission requires preferring the international ‘over the national, integration over sovereignty.’ ” Multilateralism is our shared secular religion. Mark Wiesburd. International Law and the Problem of Evil. Vanderbilt Journal of Transnational Law, Vol. 34, No. 2 (March 2001) p. 230. Carsten Stahn. How Is the Water? Light and Shadow in the First Years of the Court. Criminal Law Forum, Vol. 22 (2011) pp. 175–97 p. 187. Stahn advocates for a greater degree of realism in terms of what can be achieved by international justice, while acknowledging the limitations of facts and empirical assessment. Carsten Stahn. Editorial: Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice? Leiden Journal of International Law, Vol. 5, No. 2 (2012) pp. 257–58.

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In the field of international development and rule of law promotion, practitioners increasingly recognize that real impact is not just found in law reform or the building of institutional capacities, but that impact ought to be assessed on the level of society and individuals. A first generation of law reform efforts focused strongly on drafting laws, building courthouses, and training judges and lawyers. The impact of such interventions, often topdown in nature and heavily focused on the criminal justice sector, was notoriously meager.18 Now, a second generation of law reform is more cognizant of the rule of law as part of a social contract between the state and society.19 Impact measurement has become widely accepted and applied in international interventions, but as mentioned, rigorous evidence gathering is not always carried out. Assessing the impact of the Court requires clarity on what it has intended to accomplish. Yuval Shany proposes a “goal-based approach” to analyzing the effectiveness of international judicial institutions.20 He argues that the “mandate providers are key to identifying the overall goals of international courts” but cautions that “research focusing on mandate providers … cannot ignore the expectations of other constituencies.” Beyond ending impunity for the world’s worst crimes, there is no consensus on other goals of the Rome Statute.21 Mandate providers, in their statements and resolutions, entrusted the ICC with a wide range of goals, including ending impunity, encouraging domestic proceedings against perpetrators, generating deterrence against future crimes, promoting peace and security, internationalization of international criminal law, satisfying victim’s needs, conveying a message of condemnation of international crimes, projecting an image of procedural fairness and legitimacy, and—possibly also—establishing a historical record of atrocities.22 (Similar hopes were once expressed for the ICTY.23) 18 19 20 21 22 23

David Marshall. The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward. Human Rights Program Series, Harvard Law School (2014). Rachel Kleinfeld. Advancing the Rule of Law Abroad: Next Generation Reform. Carnegie Endowment for International Peace (2012). Yuval Shany. Assessing the Effectiveness of International Courts. Oxford University Press (2014) p. 13. Ainley. The International Criminal Court on Trial. Yuval Shany at the Human Rights and International Criminal Law Forum. http: //iccforum .com/performance. As an ICTY official observed, “the idea that one institution that has been built from scratch 20 years ago can single-handedly resolve the conflict in the Balkans that goes back centuries I don’t think … was a realistic expectation.” Impunity Watch Policy Brief, The Expanding Societal Impact of International Criminal Justice—Exploring the Links with Memory Initiatives, February 2014, p. 6, quoting a representative from the ICTY’s outreach department.

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The result is confusion about the goals. Mirjan Damaška has noted that the discussion on the goals of international criminal justice is “in disarray” and hampers the assessment of their performance.24 The list of goals, he says, suffers from “overabundance” and “tensions” (such as peace versus justice, proving guilt versus historical record, and collective versus individual responsibility, the rights of the accused versus the rights of victims, prosecuting architects of crimes versus direct perpetrators, to name a few).25 It also suffers from the absence of a ranking order.26 Many see the ICC as more than just a criminal court and express hope that it will achieve wider peace-building goals.27 The result of a lack of clarity is inflated expectations. Some of the assumptions articulated by supporters are inevitably far-fetched.28 Against these inflated expectations, it becomes very difficult to assess the ICC fairly. In any case, if the overall goal of the Rome Statute is to end impunity of the world’s worst crimes, what is clear is that this change needs to be assessed most of all in the countries where the crimes are occurring. It should be an instrument of law and justice. Not only will ending impunity contribute to the elimination of the worst of human suffering, but it would also have other positive effects, such as strengthening the rule of law, decreasing conflict with its manifold negative consequences, and bringing justice to victims. However, is it realistic?

B  Commonly Cited Assumptions Underlying the ICC The following sections will briefly discuss a series of goals or assumptions that are commonly identified with the ICC. Three assumptions are often cited: deterrence, historic clarification (to promote reconciliation), and retribution. However, none of these are strongly supported by evidence.

24 25 26 27

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Mirjan Damaška. What Is the Point of International Criminal Justice? Chicago-Kent Law Review, Vol. 83 (2008) pp. 329–65 p. 330. Ibid., pp. 330–35. Ibid., p. 339. Florian Jessberger and Julia Geneuss. The Many Faces of the International Criminal Court. Journal of International Criminal Justice, Vol. 10 (2012) pp. 1081–94 p. 1081. Jessberger and Geneuss refer to the Court as a criminal court; a watchdog court (in terms of supervising the complementarity role of domestic courts); and a security court (in terms of balancing peace and justice, for instance through Security Council referrals). See also Kai Ambos. International Criminal Court and the Traditional Principles of International Cooperation in Criminal Matters. Finnish Yearbook of International Law, Vol. 9 (1998) p. 413. For example, the website of the Coalition for the International Criminal Court identifies the goal of the ICC as “100% of humanity protected by the rule of law. Justice, deterrence of crime and peace [sic].” www.coalitionfortheicc.org/fight/global-justice-atrocities.

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1 Deterrence Among the assumptions underlying the creation of the ICC, deterrence has gained the most currency.29 Deterrence is most commonly cited as the primary goal of the ICC by states, Court officials, and NGOs.30 General deterrence may contribute to a culture of accountability through which potential perpetrators decide against committing crimes. Hyeran Jo and Beth Simmons make a distinction between prosecutorial (or specific) deterrence, which is a “direct consequence of legal punishment,” and social (or general) deterrence, which is “a consequence of the broader social milieu in which actors operate” and causes potential perpetrators to “calculate the informal consequences of lawmaking.”31 Similar arguments were made about the ad hoc Tribunals.32 Anecdotal evidence suggests that the risk of prosecution by the ICC has entered the public consciousness.33 For instance, there is evidence in Eastern Congo that, due to the ICC, awareness grew that child recruitment was a crime after the Lubanga arrest warrant.34 In Uganda, people in the street invoke the Court against corrupt police or army officials: “I will take you to the ICC.”35 Priscilla Hayner argues on the basis of examples from Congo, Côte d’Ivoire, Guinea, and Kenya that the ICC does have a short-term deterrent effect.36 In the context of Libya, observers have mentioned that militia leaders showed concern about being prosecuted by the ICC. Yet, in the words of the ICC president, there is no “consistent pattern” of accountability coming out of ICC prosecutions to date.37 Criminological studies 29

30

31 32 33

34 35 36 37

Koller. The Faith of the International Criminal Lawyer, pp. 1019–27. Hyeran Jo and Beth Simmons. Can the International Criminal Court Deter Atrocity? International Organizations, Vol. 70 (Summer 2016) pp. 443–75. Leslie Vinjamuri. Deterrence, Democracy, and the Pursuit of International Justice. Carnegie Council for Ethics and International Affairs, Vol. 24, No. 2 (2010) p. 191. Parliamentarians for Global Action, A Deterrent International Criminal Court: The Ultimate Objective, citing various government officials, NGO representatives, and others on deterrence (not dated, available online). Jo and Simmons. Can the International Criminal Court Deter Atrocity? pp. 443–75. Payam Akhavan. Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? The American Journal of International Law, Vol. 95, No. 1 (2001) pp. 7–31. Priscilla Hayner. The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict. Routledge (2018), Chapter 6. HRW. Courting History: The Landmark International Criminal Court’s First Years (2008) p. 68: HRW said that in the Katanga province, Congolese army and Mai Mai rebel leaders said they did not want to end up like Thomas Lubanga. HRW. Courting History, p. 68. Interview with ICC outreach officer, February 6, 2014. Interview with judge from International Crimes Division (Uganda), February 6, 2014. Hayner. The Peacemaker’s Paradox, Chapter 6. Speech by Silvia Fernandez de Gurmendi at Nuremberg Forum 17, 10 Years after the Nuremberg Declaration on Peace and Justice “The Fight Against Impunity at a Crossroad,” October 20–21, 2017.

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on the domestic level point to two factors that tend to positively impact deterrence: certainty of punishment and severity of the sentence.38 These are not applicable on the international level, where the chance of being apprehended and tried remains low,39 and the sentences meted out are relatively light. Deterrence also presumes a rationality of actors, who are able to conduct a cost-benefit a­ nalysis, which may be less applicable in situations of political violence.40 For many, the threat of prosecution by the ICC may remain “mild and nebulous.”41 Recently, a variety of empirical studies attempt to demonstrate the deterrent effect of the ICC. An empirical study by Beth Simmons and Hyeron Jo suggests that the ICC may have a deterrent effect particularly on government actors, rather than on rebel groups.42 Their study seeks to assess whether ICC ratification or actions resulted in a reduction in intentional civilian deaths at the hands of governments or rebel groups worldwide. The study relies on the one-sided violence dataset generated by Peace Research Institute Oslo (PRIO).43 It finds that “investigation reduces intentional civilian killing (by governments) by 9%.”44 In terms of deterrent effect on rebels, the study concludes that ICC action has reduced killings, although ratification in itself does not produce that change among rebel groups. However, the conclusions of this study have been criticized due to the small sample size, its presumption that conflicts are limited to state boundaries, and strong claims for causation without sufficient consideration of variables.45 38

39

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41 42 43 44 45

Kate Cronin-Furman. Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity. International Journal of Transitional Justice, Vol. 7 (2013) pp. 434–54. Julian Ku and Jide Nzelibe. Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities? Hofstra University School of Law Legal Studies Research papers, Research Paper No. 06-27 (2006). The authors examined evidence concerning the fate of failed coup plotters and dictators in Africa to show that the probability of those individuals facing sanctions, in some cases severe, is much higher than the threat of sanctions of international criminal law. Some have argued that the Prosecutorial Strategy of the ICC should be readjusted and targeted more at commanders of organized military structures: Kate CroninFurman. Managing Expectations, pp. 434–54. Robert Sloane. The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law. Stanford Journal of International Law, Vol. 43 (2007) pp. 39–94, p. 73. Tim Meijers and Marlies Glasius. Trials as Messages of Justice: What Should Be Expected of International Criminal Courts. Ethics and International Affairs, Vol. 30, No. 4 (2016) p. 431. Jo and Simmons. Can the International Criminal Court Deter Atrocity? pp. 443–75. See the one-sided violence dataset. www,pcr.uu.se/research/ucdp/datasets/ucdp_onesidedviolence-dataset. See also www.prio.org/Data/Armed-Conflict/Battle-Deaths/. Jo and Simmons. Can the International Criminal Court Deter Atrocity? pp. 443–75. Chris Mahony. If You’re Not at the Table, You’re on the Menu: Complementarity and SelfInterest in Domestic Processes for Core International Crimes, in Military Self-Interest in Accountability for Core International Crimes, edited by Morten Bergsmo and Song Tianying, Brussels: Torkel Opsahl Academic EPublisher (2015) pp. 625–29.

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Moreover, the PRIO dataset, which relies on media reports, is most likely underreporting civilian deaths by focusing on battle-related deaths rather than on indirect casualties of conflict. Another study conducted by Benjamin Appel suggests “governments from states that have ratified the Rome Statute commit lower levels of human rights abuses than governments from non-ratifier states.”46 This study relies on the Cingranelli–Richards index of physical integrity, including torture, summary executions, physical disappearances, and political imprisonment.47 The study suggests that ICC ratification correlates or is associated with a reduction in human rights violations.48 One author goes so far as to conclude “recent empirical articles … have convincingly demonstrated that the ICC prevents serious violations of international law. Prevention of violations is the principal goal of the ICC.”49 On the other side, there are also empirical studies that argue that accountability may make conflict more likely: For instance, one large-scale study finds that trials of mid- and low-level actors made nonrecurrence of civil war 70% less likely, whereas trials of high-ranking actors made it 65% more likely.50 In any case, the evidentiary basis to date is thin. With additional time, more evidence on the deterrent value of the ICC will emerge. However, according to PRIO, state-based conflict is generally on the rise. More state-based armed conflicts (fifty-four in total) were reported in 2019 than since the end of World War II.51 A quick scan of the specific countries in which the ICC has ongoing investigations is enough to cast serious doubt on the claim that there is conclusive evidence of deterrence. For instance, crimes of the LRA in Uganda made a steep fall after 2005, but LRA killing continued in Central African Republic (CAR), Democratic Republic of Congo (DRC), and Southern Sudan, for 46 47 48 49

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Benjamin Appel. In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations? Journal of Conflict Resolution (2016) pp. 1–26. The CIRI index relies on US State Department Country Reports and Amnesty International’s Annual Reports. Ibid., p. 3. Stuart Ford. Can the International Criminal Court Succeed? An Analysis of the Empirical Evidence of Violence Prevention. Loyola of Los Angeles International and Comparative Law Review, Vol. 43 (2020) p. 101. Leigh Payne, Andy Reiter, Chris Mahony, and Laura Bernal–Bermudez, Conflict Prevention and Guarantees of Non-Recurrence, April 12, 2017. The study relies on the Transitional Justice Research Collaborative database of 119 transitions in eighty-six countries found at www .transitionaljusticedata.com. However, this dataset does not include information on the quality of the legal process. Julia Palik, Siri Aas Rustad, and Frederik Methi. Conflict Trends: A Global Overview, 1946– 2019 (2020), PRIO Paper, Oslo.

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instance, in the notorious “Christmas massacres” between Christmas and January 17, 2009, resulting in the killings of 865 persons in Doruma, Faraje, and other villages of the Haut Uele District of Eastern Congo.52 Human Rights Watch (HRW) reported that interviewees said that Joseph Kony himself, under an ICC arrest warrant, had ordered the attack.53 The run-up to the 2021 elections in Uganda has been marred by violence, including the killing of fifty-four demonstrators in November 2020. About the DRC, the UN Special Rapporteur for Children in Armed Conflict Radhika Coomaraswamy famously remarked on the “enormous impact” of the ICC and supports the work of the Court by highlighting criminal accountability for child recruitment.54 However, HRW reported that in Ituri, militia leaders were known to hide child soldiers, or abandon them, after the Lubanga case. Some were told to lie about their age, and there were threats against child protection officials. Child recruitment also continued in other parts of DRC.55 Another article argues that the ICC can either exacerbate atrocities or contribute to prevention, depending on the stage of the legal process. The article argues that fear of arrest contributed to Ntaganda forming the M23, which committed many atrocities, but that his surrender to the ICC contributed to prevention.56 In 2020, the province of Ituri, from which several of the ICC cases hail, continued to be embroiled in ethnic violence that killed hundreds of civilians.57 In Sudan, the United Nations reported that in 2013, Darfur saw 460,000 new displacements and an increase in killings and abductions, with ­intercommunal fighting, reports of aerial strikes by the Sudanese authorities, and an attack on 52

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HRW. The Christmas Massacres: LRA Attacks on Civilians in Northern Congo, February 2009. See Refugee Law Project, Ambiguous Impacts: The Effects of the International Criminal Court in Investigations in Northern Uganda, Working Paper No. 22, October 2012, p. 14. The LRA also engaged in widespread abductions in the area and its attacks caused widespread displacement of up to 140,000 civilians in the area. These atrocities were likely in retaliation to Operation Lightening Thunder. HRW. The Christmas Massacres, p. 5. The trial of Thomas Lubanga was argued to have prompted new awareness among militias that child recruitment is a crime. UN staff on the ground claimed that some militia leaders released child soldiers to become part of a DDR program. IRIN Africa, Analysis: Jury Still Out on ICC Trials in DRC, Bunia, January 19, 2011. See also Niki Frencken, The International Criminal Court and Deterrence: The Lubanga Syndrome. Justice in Conflict, April 6, 2012. HRW. Courting History, pp. 68–69. Child recruitment continued most notably with the FARDC forces, which were reported to have recruited 49% of 1,593 children, who were recruited between October 2008 and December 2009. Michael Broache. Beyond Deterrence: The ICC Effect in the DRC. Open Global Rights, February 19, 2015. See also Michael Broache. The ICC and Atrocities in DRC: A Case Study of RCD-Goma (Nkunda faction) CNDP/M23 Rebel Group, September 1, 2014. HRW. Unrelenting Killings in Congo’s Ituri Province, June 22, 2020.

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the United Nations Assistance Mission in Darfur.58 In 2020, violence and massacres in Darfur continued, even after President Al-Bashir had been forced to step down. In Libya, one study claims that the civilian death toll decreased in the immediate aftermath of the ICC intervention.59 However, several large-scale massacres occurred after the arrest warrants had been issued on June 27, 2011, at the hands of Qadhafi loyalists (the Yarmouk massacre in Tripoli in late August)60 and rebels (the massacre at the Mahari Hotel in Sirte in late October). Violence flared up again after 2014 in spite of the continued jurisdiction of the Court. The subsequent years of conflict and the mounting civilian death toll, in spite of continued ICC scrutiny, calls any finding of deterrence into serious doubt. In July 2020, mass graves were discovered near the town of Tarhuna. Mahmoud Al-Werfalli was captured on camera committing additional atrocities after the arrest warrant against him was issued.61 The elections in Kenya in 2013 were remarkably violence-free, particularly when contrasted to the vicious violence following the 2007 elections (known as the “post-election violence”), in which the Waki Commission concluded that up to 1,133 Kenyans died and around 600,000 were displaced. Knowledgeable observers have cited the ICC as a “key variable” in the absence of violence.62 The ICC also had a direct impact on the outcome of the elections. Opposition to the ICC led Kenyatta and Ruto to combine forces in the “Uhuruto” ­alliance, referred to as a “marriage of convenience.” Opposition to the ICC was described as the “life blood” of the Kenyan “coalition of the accused,”63 and differences between the two main protagonists have given rise to a dangerous resurgence of Kikuyu-Kalenjin tensions in the Rift Valley. Kenya’s 2017 elections, in which Kenyatta and Ruto ran together once more, were dramatically nullified by the Supreme Court.64 In this context, there were isolated incidents of violence, but not on the scale seen earlier. 58

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Relief Web. International Criminal Court Prosecutor Tells Security Council Violence in Darfur Will Not End without Robust Determination to Apprehend Perpetrators, Security Council, December 11, 2013. Courtney Hillebrecht. The Deterrent Effects of the International Criminal Court: Evidence from Libya, International Interactions Vol. 42 (2016) p. 616. Physicians for Human Rights, 32nd Brigade Massacre: Evidence of War Crimes and the Need to Ensure Justice and Accountability in Libya, December 2011. See also A/HRC/19/68, pp. 68–71. The Libya Observer. ICC Wanted Killer Al-Werfalli Defies Arrest Warrant and Executes 5 Prisoners. September 7, 2017. Interview with civil society representative, Nairobi, February 3, 2014. Interview with civil society representative, Nairobi, February 4, 2014. Rael Ombour and Paul Schemm. Kenya Supreme Court Cancels Presidential Election Result for Irregularities, Orders New Election, Washington Post, September 1, 2017.

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In Colombia, some believe that the ICC contributed to a reduction of violence in the last ten years of the conflict.65 For instance, some argue that the Fuerzas Armadas Revolucionarias de Colombia  (Revolutionary Armed Forces of Colombia, or FARC) engaged in less kidnappings in this period. On the other hand, the phenomenon of “false positives,” or extrajudicial killings committed by Colombia’s military, emerged after Colombia became a state party to the Rome Statute in 2002. In addition, paramilitaries have continued to commit acts of violence in spite of the fact of a demobilization process, maintaining much of their structure and violent practices.66 The Office of the High Commissioner for Human Rights (OHCHR) recorded the deaths of 255 people in sixty-six massacres in 2020, including the killing of 120 human rights defenders.67 In Afghanistan, 2020 saw a decrease in civilian casualties, but the numbers were still far too high to show deterrent effect on any party to the conflict. For instance, in 2020, 2,117 civilians were killed and 3,822 injured by October, with 31% of these being children.68 The onset of peace talks between the Taliban and the government of Afghanistan was accompanied by an increase in targeted killings of Afghan civilians.69 The experiences of other tribunals also cast doubts on deterrence claims. Orentlicher concludes that fifteen years after its establishment, the evidence on the deterrent effect of the ICTY was “inconclusive.”70 The genocide at Srebernica was committed after the ICTY’s establishment. In Lebanon, a string of political assassinations took place after the establishment of the Special Tribunal for Lebanon (STL).71 Hassan Jallow has argued about the

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Interview with Member of the High Judicial Council, Bogotá, May 14, 2014. Ibid. UN News, UN Documents 375 Killings in Colombia in 2020, Urges Government Action, December 15, 2020. UNAMA. Afghanistan Peace Talks Fail to Slow Civilian Casualty Toll, October 27, 2020. Ayaz Gul. VOA. US, UN Slam Targeted Killings of Prominent Afghan Civilians, December 23, 2020. For instance, the Srebrenica massacre of 1995 found to be a genocide by the Tribunal, happened two years after the ICTY was established, and the Kosovo campaign of 1998–1999 was planned and executed when the Court was well into its activities. Diane Orentlicher. Shrinking the Space for Denial: The Impact of the ICTY in Serbia, Open Society Justice Initiative (2008). Weeks before the first proceedings of the Special Tribunal for Lebanon were due to start in The Hague, a former finance minister and close advisor of Saad Hariri, Mohamed Chatah, was assassinated in Beirut on December 27, 2013, hundreds of meters from the location of the original assassination of Rafiq Hariri in 2005. Political assassinations in Lebanon continue in 2021, with the killing of prominent activist Lokman Slim in March 2021.

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Special Court for Sierra Leone (SCSL) that it may have contributed to the reduction of violence and peaceful national elections in 2007 by taking influential military and political leaders out of circulation in Sierra Leone, but the SCSL was mainly operational in the post-conflict context.72 As the empirical evidence on deterrence remains inconclusive, it is important to look at other potential goals by which to assess the ICC. 2  Historic Clarification to Promote Reconciliation International crimes are often committed in deeply divided societies, and international criminal law aspires for the truth to play a role in building peace. Peace, or the cessation of violence, is often cited as one of the goals of international justice.73 The Security Council Resolution creating the ICTY stated it was intended to contribute to the restoration of peace.74 Similar language was used in the Resolution on the SCSL.75 Reconciliation was a clearly stated objective at the time of the creation of the ad hoc Tribunals.76 However, the ICC is not a conflict-resolution mechanism and should not be expected to play a direct role in ending conflicts.77 In the past, some have voiced the hope that ascribing individual criminal responsibility will contribute to reconciliation in divided societies. Antonio Cassese, the first president of the ICTY, in his report to the General Assembly said: “the history of the region clearly shows that clinging to feelings of ‘collective responsibility’ easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes.”78 Cassese argued that

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Hassan Jallow. Special Court for Sierra Leone: Achieving Justice? Michigan Journal for International Law, Vol. 32, No. 3 (2011) pp. 452–53. Vinjamuri. Deterrence, Democracy, and the Pursuit of International Justice. UN Sec. Council Resolution 827 (1993). Nonetheless, it is sometimes expected that truthtelling through ICC trials will contribute to peacebuilding and that the existence of the ICC will contribute to goals such as reconciliation. See also UN Sec. Council Resolution 955(1994) that created the ICTR. UN Sec. Council Resolution 1315 (2000). Laurel Fletcher and Harvey Weinstein. A World unto Itself? The Application of International Justice in the Former Yugoslavia, in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, edited by Eric Stover and Harvey Weinstein, Cambridge University Press (2004) p. 36. See also Eric Stover and Harvey Weinstein. “Conclusion: A Common Objective, a Universe of Alternatives,” Ibid., p. 323. It is possible that extending the jurisdiction of the ICC to the crime of aggression will have an impact on this relationship in the future, but that is too early to assess. Shany. Assessing the Effectiveness of International Courts, p. 232. Refik Hodžić. Accepting a Difficult Truth: ICTY Is Not Our Court. Balkan Insight March 6, 2013.

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the individual responsibility applied by the ICTY would help to prevent further violence. However, Refik Hodžić, former spokesperson for the Tribunal, later commented: Neither Cassese nor any of his successors ever clearly outline how was this court to do so other than by conducting lengthy, complicated trials in an insulated legal bubble, completely removed from the realities of a region ravaged by vicious fratricide, with most of the underlying causes of violence left unaddressed and without anything resembling a comprehensive transitional justice framework.79

In fact, some studies suggest that trials dealing with senior state officials such as heads of state or military leaders lead affected populations to view such proceedings as imposing collective responsibility or national guilt. For instance, Madoka Futamura records that just after the conclusion of the Tokyo trial in November 1948, the newspaper Asahi Shimbun wrote that the Japanese people felt that the trial had judged Japan as a nation, not in legal terms, but historically and morally”, “because the country as a whole could have never moved towards the war without organizations supported by people.”80 Diane Orentlicher observes that “while Serbia was not on trial before the ICTY, the prosecution of Milošević illuminated facts implicating the country’s responsibility for the crimes charged against its former leader.”81 Historian Christian Axboe-Nielsen, who served as an expert witness in many ICTY trials, noted that the major Croatian newspaper Jutarnji List posted the headline “Croatia Is Innocent,” after the acquittal of Ante Gotovina and his co-accused.82 These examples show that international trials can lead to a perception of collective responsibility.

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Ibid. Madoka Futamura. Japanese Societal Attitudes towards the Tokyo Trial: A Contemporary Perspective. The Asia-Pacific Journal, Vol. 9, Issue 29, No. 5 (July 18, 2011). In the case of the Holocaust, some would suggest that viewing it through the lens of individual responsibility is misplaced. Burchard similarly writes the following about Nuremberg: “It is a simple and brutal reality that it was Germany, not the Nazi party, who started the war and industrialized genocide. To forget or suppress this fact denies a historical truth. Yet, exactly this view was, to some extent, fostered by the individualization of criminal guilt in Nuremberg. The major war criminals were made to shoulder the responsibility of the German people as a whole: they were objects for the transfer of guilt.” Christoph Burchard. The Nuremberg Trial and Its Impact on Germany. Journal of International Criminal Justice, Vol. 4 (2006) p. 824. Orentlicher. Shrinking the Space for Denial, p. 26. Rachel Irwin. Do Overturned Convictions Undermine Hague Tribunal, March 20, 2013, IWPR, International Justice, ICTY, Issue 780. See also Marko Milanović. Establishing the Facts about Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences. Georgetown Journal of International Law, Vol. 47, No. 4 (2016) pp. 1321–78.

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Whether tribunals contribute to reconciliation by recording historical truth is also debatable. Impact studies show that witnesses are motivated by a need to ensure that the “truth” about their conflict is recorded.83 ICTY describes its own contribution on its website: “The Tribunal’s judgements have contributed to creating a historical record, combatting denial and preventing attempts at revisionism and provided a basis for future transitional justice in the region.”84 The length of many international judgments reflects a desire to contribute to the establishment of a historical record. Yet Damaška comments that “seen through the prism of a historian … judicial portrayals of the background of international criminality inevitably appear fragmentary, foreshortened, and locked in an arbitrary time frame.”85 A clear illustration is the fact that at Nuremberg and Tokyo, the accused were not allowed to bring evidence of Allied war crimes, including, in particular, the dropping of the atomic bomb on Hiroshima and Nagasaki.86 International criminal tribunals are not necessarily well placed to comprehend all the complexities of the historical context in which they operate. The ICTY has been criticized for lack of contextual knowledge on behalf of the judges and lawyers conducting the trials.87 The contextual part of the indictment, which laid out Milošević’s dreams for a “greater Serbia,” lent itself to sparring on historical factors.88 Plea-bargaining had a detrimental effect on the ICTY’s truth-telling function,89 particularly in cases in which the accused pleaded guilty to crimes against humanity in order to avoid genocide charges, such as in the Plavšić case. Laurel Fletcher and Harvey Weinstein thus conclude that trials alone cannot establish “incontrovertible truth,” because each warring group will interpret the trials according to its own

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Diane Orentlicher. That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia. OSJI (2010) p. 19. See www.icty.org/en/about/tribunal/achievements. Damaška. What Is the Point of International Criminal Justice? p. 336. Arendt writes about the Eichmann trial: “The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes … can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.” Hannah Arendt. Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin NY (2006) p. 253. Orentlicher. Shrinking the Space for Denial, p. 74. As Milošević was representing himself, he was able to show his vastly superior knowledge of the political context as well as pander to domestic audiences in the televised proceedings. Orentlicher. Shrinking the Space for Denial, pp. 75–79. Vijay Padmanabhan. Norm Internationalization through Trials for Violations of International Law: Four Conditions for Success and Their Application to Trials of Detainees at Guantanamo Bay. University of Pennsylvania Journal of International Law, Vol. 31 (2009) p. 447.

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political views.90 Orentlicher suggests that the role played by local NGOs such as the Humanitarian Law Center in Serbia has been more prominent than that of the ICTY in helping Serbian society confront its past.91 Against the experience of the ICTY, which tried many cases arising from a single context, it is prudent to be cautious about what the contribution of the ICC can be in establishing multiple historical records of the conflicts where it is active. Often, large parts of the conflict fall outside of the Court’s temporal jurisdiction. The limited number of cases is another hindrance in pursuing a full historical account. In addition, perceptions are shaped by many factors other than the judgments of international tribunals.92 In short, contributing to reconciliation through the establishment of a historical record may not be a realistic goal for the ICC. 3  Criminal Law Goals: Retribution for the World’s Worst Crimes? Hannah Arendt famously wrote: “Men are unable to forgive what they cannot punish and are unable to punish what turns out to be unforgivable.”93 While the application of sentencing at international criminal tribunals remains undertheorized,94 retribution is often cited as a key goal of international criminal tribunals. It is compelling on an intuitive level. The perpetrators of the world’s worst crimes ought to be punished. The ICTY has stated that retribution “should not be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.”95 One study concludes that gravity of the crime and aggravating factors are significantly related to sentence length at the ad hoc Tribunals.96

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Fletcher and Weinstein. A World unto Itself? The Application of International Justice in the Former Yugoslavia, p. 44. Jallow argues that in the case of the SCSL, the Hinga Norman indictment “exposed the intense political cleavages in Sierra Leone” and that the Court’s failure to allow him to testify before the ICC further diminished the Court’s contribution to reconciliation. Jallow. Special Court for Sierra Leone: Achieving Justice? pp. 455–56. Orentlicher. Shrinking the Space for Denial, p. 59. Milanović. Establishing the Facts about Mass Atrocities, pp. 1321–78. In the words of Donais: “No amount of externally generated policy prescriptions can shift postconflict societies from a culture of violence to a culture of peace.” Timothy Donais. Empowerment or Imposition? Dilemmas of Local Ownership in Post-Conflict Peace-Building Processes. Peace and Change, Vol. 34, No. 1 (January 2009) p. 11. Hannah Arendt. The Human Condition (1958) p. 241. Sloane. The Expressive Capacity of International Punishment. Prosecutor versus Aleksovski, Appeals Chamber Judgment, IT-95-14/1-A, March 24, 2000, para. 185. Joseph Doherty and Richard Steinberg. Punishment and Policy in International Criminal Sentencing: An Empirical Study. American Journal of International Law, Vol. 110, No. 49 (2016) pp. 49–81.

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What is certain is that the application of international criminal justice to a handful of cases cannot be described as an effective exercise in retribution. In addition, international sentences, while varying wildly,97 tend to be significantly lighter than sentences for similar crimes at the domestic level and are far from proportional. Likewise, if incapacitation of perpetrators, another common goal of criminal law, was a central goal of the ICC, the small numbers of arrest warrants combined with difficulties in securing arrests would render the project ineffective. This has sparked debate about the appropriateness of applying a criminal law framework to political violence.98 Yet in the application of ordinary criminal law, breaches of the law are the exception, whereas in times of mass violence, they become the rule.99 In fact, those accused of heinous crimes during war could have been law-abiding citizens in peacetime. The historical, political, social, and psychological factors that allow the commission of international crimes are numerous. This allows for ordinary individuals to perpetrate extraordinary cruelty. Some have therefore questioned the relevance of applying a criminal framework to complex political violence, which is often rooted in horizontal grievances or in deep inequalities.100 Thabo Mbeki and Mahmood Mamdani, in an op-ed about South Sudan, argue that courts should only play a role after a new political order is in place, in times of peace: In civil wars, no one is wholly innocent and no one wholly guilty. And extreme violence is seldom a stand-alone act. More often than not, it is part of a cycle of violence. Victims and perpetrators often trade places, and each side has a narrative of violence. To call simply for victims’ justice, as the ICC does, is to risk a continuation of civil war. Human rights may be universal, but human wrongs are specific.101 97

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Barbara Hola, Alette Smeulers, and Catrien Bijleveld, Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice. Leiden Journal of International Law, No. 22 (2009) pp. 79–97. As Drumbl puts it, “many extraordinary international criminals, who engaged in acts of unfathomable barbarity, were able to conform easily and live unobtrusively for the remainder of their lives as normal citizens.” Mark Drumbl. Atrocity, Punishment and International Law. Cambridge University Press (2007) p. 8. Luban says: “international criminal law uses trials, punishments, and forms of law to project a radically different set of norms, one that reclassifies political violence from the domain of the sacred to the domain of ordinary thuggery.” David Luban. After the Honeymoon: Reflections on the Current State of International Criminal Justice. Journal of International Criminal Justice, Vol. 11 (2013) p. 510. Sloane. The Expressive Capacity of International Punishment, p. 41. United Nations: World Bank. Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict (2017). McCargo writes, “international tribunals have been created to solve political problems that lie well beyond their capacity to fix.” Duncan McCargo. Transitional Justice and Its Discontents. Journal of Democracy, Vol. 26 (April 2015) p. 9. Thabo Mbeki and Mahmood Mamdani, Courts Can’t End Civil Wars, Op-Ed, International New York Times (February 4, 2014).

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Nonetheless, moral (or legal) equivalence about labels such as “victim” or “perpetrator” disregards the statistical fact that mass violence often victimizes civilians in general, and specifically preys on the weak, including children and the elderly. Decades of development of international legal norms including, in particular, the Geneva Conventions and the Genocide and Torture Conventions, seek the protection of civilians, prisoners of war, or vulnerable groups.102 The Rome Statute Preamble, along similar lines, recalls, “millions of children, women and men have been victims of unimaginable atrocities.” International criminal law, in terms of its normative framework, has become a permanent feature of the post–World War II world. This points to the importance of a normative role beyond retribution. 4  Norm Projection: (Derivative) Expressivism Recently, international scholars have increasingly coalesced around expressivism, or norm projection, as an important goal for the ICC.103 The ICC rearticulates norms through the public denunciation of criminal behavior and through conducting fair trials.104 Ultimately, these norms ought to be internalized in societies, which will contribute to prevention. In the words of Argentine scholar Carlos Nino, who wrote extensively on the role of domestic trials in the restoration of democracy in Argentina: “Trials are great occasions for social deliberation and for collective examination of the moral values underlying public institutions. They can help to break a power structure and invent a new democratic society.”105 The trial plays an important role, as “graphic accounts of past human rights abuses and 102

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Louise Arbour, President and CEO of International Crisis Group, Are Freedom, Peace and Justice Incompatible Agendas? The Inaugural Berge Lecture, March 3, 2014, at Oxford University Press. The United Nations, too, takes a normative approach on accountability for massive violations of human rights and international humanitarian law. The Brahimi report, which reviewed UN peacekeeping after failures such as Srebrenica and Rwanda, found that “no failure did more to damage the standing and credibility of United Nations peacekeeping in the 1990s than its reluctance to distinguish victim from aggressor.” Report of the Panel on United Nations Peace Operations, UN. Doc. A/55/305-S/2000/809, August 21, 2000. In the words of the UN Secretary-General: “Criminal trials … express public denunciation of criminal behavior. They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims by giving them the chance to see their former tormentors made to answer for their crimes.” United Nations Report of the Secretary-General to the Security Council, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, August 23, 2004 (S/2004/616) para. 39. Robert Cryer, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure (2nd Ed.) Cambridge University Press (2010) p. 29. Carlos Niño. Radical Evil on Trial. Yale University (1996) p. 131.

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war crimes may be a powerful tool to internalize norms prohibiting such conduct.”106 Norm projection can be measured at three levels, each of which reflect a deeper degree of internalization of Rome Statute norms. First, norm projection can be reflected in the laws, processes, and institutions of State Parties. If the Court succeeds at this, it is clearly an instrument of law. But there are deeper realms of impact that the Court also aspires to. It can also be assessed in terms of impact on victims of Rome Statute crimes, who are meant to be its primary constituency. Finally, the Court can serve as an example to demonstrate justice to wider audiences, including through its qualities of independence and impartiality. This could lead to a wider societal impact, which may create a culture of accountability and end impunity. The latter is most likely to ultimately lead to effective prevention of Rome Statute crimes. This would mean that the Court is also an instrument of justice. These three levels will now be explored in more detail.

III  How to Assess the Expressivist Role of the ICC A  Norm Projection: Condemning and Prohibiting the Crimes The first level of measurable impact of the Rome Statute and ICC is at the level of changes in the law, in terms of condemning and prohibiting the world’s worst crimes. The expressive function of the Court is reflected in the criteria of gravity applied by the OTP. The Prosecutor’s Policy Paper on Case Selection and Prioritization gives further definition to this concept,107 focusing on elements such as the scale of the crimes; the vulnerability of the victims (including sexual or gender-based violence or crimes against children); the motives of the perpetrators (including discrimination or persecution); and even the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land.108 An example of the Court’s expressive function is found in the case against Ahmed Al Faqi Al-Mahdi from Mali, convicted on September 27, 2016, which was prosecuted because 106

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Padhamabhan. Norm Internationalization through Trials for Violations of International Law, p. 438. See also Luban: “Its mode of functioning is expressive, and its aim is norm projection, the dissemination through trials, punishments and jurisprudence of a set of norms very different from the Machiavellian brutality of the past.” Luban. After the Honeymoon, p. 511. McCargo. Transitional Justice and Its Discontents, p. 8. OTP. Policy Paper on Case Selection and Prioritization, September 15, 2016. Ibid., para. 41.

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it constituted an attack against protected objects (in this case, attacks on nine mausoleums and a mosque in Timbuktu) at a time when such attacks were prevalent by the Islamic State in Iraq and the Levant in Syria (ISIL).109 In another example, Dominic Ongwen had many more charges included in his arrest warrant (seventy in total) than Thomas Lubanga (who had only three charges against him), including sexual offences such as forced marriage, rape, torture, sexual slavery, and enslavement. He was convicted on sixty-one counts, on February 4, 2021. But does the expressive function have impact, in terms of norm projection? The first level of assessing this norm projection can be to see if states themselves criminalize Rome Statute crimes. The next step is to see whether they in fact prosecute those crimes. Another manifestation of norm projection is if states take Rome Statute crimes into consideration when they engage in political processes such as peace negotiations. All of these relate to the impact of the Rome Statute and the ICC as an instrument of law. B  Norm Projection: Repairing Victims Inherent in the expressive role is a commitment to deliver justice for victims. The expressive function also has consequences for how trials ought to be conducted. In the words of Rosa Aloisi and James Meernik:110 “Moral condemnation does what retribution and punishment alone cannot do, it shrinks the ‘physical and moral distance’ between the victims and the communities shattered by the events and the legal proceedings adjudicating the crimes.”111 The importance of the expressive function is that it communicates the ­condemnation of the suffering of the victims to the perpetrators, to affected ­communities, and to the rest of the world.112 The ICC becomes a “loudspeaker echoing the values of the international community.”113 The way in which this may be measured is in how victims experience the processes of the Court, in particular their ability to participate in trials and to obtain reparations. In the longer term, ICC trials ought to contribute to an overall recognition of the harm done to victims and contribute to restoring their dignity. Victims ought to experience the ICC as justice. 109 110 111 112 113

The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-1 Red. Rosa Aloisi and James Meernik. Judgement Day: Judicial Decision Making at the International Criminal Tribunals. Cambridge University Press (2017). Ibid. Meijers and Glasius argue that it is important to look at the sender, the message, the medium, and the audience. Meijers and Glasius. Trials as Messages of Justice, pp. 429–47, p. 439. Jessberger and Geneuss, The Many Faces of the International Criminal Court, pp. 1081–94.

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C  Norm Projection: Demonstration Effect Finally, in the deepest form of impact, the ICC can serve as a vehicle to communicate broader justice values to affected populations. If these norms are fully internalized, this may contribute to prevention. This can be termed “demonstration effect.” Time Meijers and Marlies Glasius believe that “laws and legal institutions have the potential to alter people’s behavior and attitudes through messaging.”114 They make the ambitious claim that “international courts can, instead of expressing the values of an existing legal order, help to transform the base values and contribute to forging a new social order.”115 This role has to do with internalization of the values of the Rome Statute and the ICC at the societal level. The trial in this respect may be more important than the punishment as the “messaging starts long before the verdict is pronounced.”116 Stahn describes expressivism as a “justice theory, which stresses the communicative virtues of the justice process and explains how justice is produced. It is more about accountability, rather than justification of punitive sanction.”117 The process and its outcomes ought to be effectively communicated to broader audiences, so that the justice delivered is properly understood.118 The broader values that may be communicated can include fair, impartial, and independent justice. Some argue that the “ICC’s global platform and scope make it an especially effective mechanism for expressing shared social norms.”119 Domestic criminal trials have a more direct role in “demonstration effect” than international criminal trials. Domestic criminal trials may contribute directly to rebuilding the social contract in a post-conflict society, as described by Orentlicher: “Trials may, as well, inspire societies that are re-examining their basic values to affirm the fundamental principles of respect for the rule of law, civic trust, and the inherent dignity of individuals.”120 In respect of international trials, their expressive function is far less direct and may constitute “derivative expressivism.” This may complicate their role as an instrument of justice.

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Meijers and Glasius. Trials as Messages of Justice, pp. 429–47, p. 432. Ibid., p. 438. Ibid., p. 436. Carsten Stahn. Justice as Message Symposium: Message from the Author, Opinio Juris, December 14, 2020. OHCHR, Rule of Law Tools for Post-Conflict States, Prosecution Initiatives (2005) p. 5. Margaret DeGuzman. Choosing to Prosecute: Expressive Selection at the International Criminal Court. Michigan Journal of International Law, Vol. 33 (2012) p. 316. Orentlicher. Settling Accounts, p. 2542.

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IV  Lessons from Impact Studies from Other Tribunals A  Norm Projection: Condemning and Prohibiting the Crimes There can be no doubt that historically, international criminal trials have had a clearly measurable impact on the law, in terms of international criminal, humanitarian, and human rights law. In particular, the Nuremberg trial of twenty-four major Nazi political and military leaders by the International Military Tribunal, and the other trials that followed it, are directly linked to the post–World War II treaties that form the framework of international humanitarian and human rights law. The Nuremberg trial left an indelible impact on human history in this respect. At the same time, while Germany had its “Nuremberg moment,” few historians would claim that the International Military Tribunal (in Nuremberg or the Far East) or trials that followed it were solely responsible for the reorientation of the German society away from fascism and toward liberal democracy. This depended on a range of other factors including subsequently conducted domestic trials, de-Nazification, re-education efforts, and large-scale economic assistance.121 Likewise, the normative impact of the ad hoc Tribunals is considerable.122 Not only did the ICTY result in the prosecution of a large number of high-ranking political and military leaders internationally, the ICTY also contributed to domestic trials of mid-level perpetrators in the region. The ICTY also had significant political impact in the sense that those convicted were removed from political life. The ICTY led to the establishment of the Bosnian War Crimes Chamber and also prompted domestic prosecutions in other c­ ountries. Also, the ICTY made highly significant contributions to ­international criminal law, including recognizing individual criminal responsibility as part of internal armed conflict.123 ICTY judgments are widely cited in domestic courts around the world. Debate also surrounds the legacy of the International Criminal Tribunal for Rwanda (ICTR), particularly in Rwanda itself, although less empirical 1 21 1 22

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Padmanabhan. Norm Internationalization through Trials for Violations of International Law, p. 439. OSCE and Belgrade Center for Human Rights, Attitudes Towards War Crimes Issues, ICTY and the National Judiciary, October 2011. In 2011, 30% said many civilians were killed by ­snipers in Sarajevo; 40% had heard of Srebernica and 33% said it constitutes a war crime (but 33% also said that far less than 7,000 people were killed). Marko Milanović. The Impact of the ICTY in the Former Yugoslavia: An Anticipatory Postmortem. American Journal of International Law, Vol. 110 (2016) p. 223.

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work exists on the subject.124 On its website, the ICTR emphasizes its own impact, particularly with respect to its achievements in investigations and trials; its contribution to the formation of international law in relation to genocide; and its contribution to Rwanda, including the construction of an “indisputable historical record,” but also the referral to Rwandan courts, outreach and education, and bringing “healing.”125 However, the ICTR’s attempts to expand investigations to the Rwanda Patriotic Front (RPF) led the Rwandan government to threaten to withdraw all cooperation. The attempts eventually failed, rendering the justice delivered by ICTR ­one-sided. This resulted in a less than full account of history, aligning with the narrative of Paul Kagame’s government. Thus, “RPF impunity forms part of the legacy of the Tribunal.”126 In Rwanda today, genocide denial is considered a crime. However, in the words of one scholar: “The closure of the ICTR does not signify the endpoint of history.”127 In that respect, the long-term legacy of the ICTR remains to be seen. The Rwandan legal system did undergo important changes, incentivized by the possibility of receiving cases from the ICTR and extradited individuals from other countries. These included the abolition of the death penalty, the non-application of solitary confinement during life imprisonment, and better witness protection and prison conditions.128 Rwanda also pursued extensive domestic trials, and the gacaca proceedings for genocide originated in the country. However, these cannot easily be attributed to the ICTR’s impact.129 As instruments of law, all these tribunals made important contributions. At the same time, the shortcomings in the normative impact of the historic (and ad hoc) tribunals, in terms of global enforcement of these norms, or the deterrence or prevention of the crimes, ultimately led to the establishment of the ICC.

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1 25 1 26 1 27 1 28 1 29

Sarah Kendall and Sarah Nouwen. Speaking of Legacy: Towards an Ethos of Modesty at the ICTR. 110 AJIL (2016) p. 212. See also Wippman, David. Exaggerating the ICC. Cornell Law School Research Paper No. 04–018, available online at pp. 188–89: “The ICTR commands very little respect within Rwanda. Some decry the Tribunal’s almost exclusive focus on Hutu perpetrators; others criticize the slow pace of justice, instances of tribunal mismanagement, and procedural irregularities … one-sided prosecutions, or an inability to secure prosecution of senior political and military leaders, will simply fuel perceptions of bias and illegitimacy.” See http://unictr.unmict.org/. Kendall and Nouwen. Speaking of Legacy, p. 220. Larissa van den Herik. International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy. AJIL Unbound, Vol. 110 (2016) p. 212. Kendall and Nouwen. Speaking of Legacy, pp. 223–24. Ibid., p. 227.

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B  Norm Projection: Repairing Victims While the historic trials may have had significant normative impact, this is not to say that these trials were perceived as justice by victims. Victims did not play a major part in the Nuremberg trial nor in the Control Council ten trials that followed it. The Prosecutors relied mainly on documentary evidence. Fourteen victim witnesses testified at the trial, but their testimony was “functional to furthering the impact of the Tribunal, rather than to address the victims’ suffering.”130 The victims were not representative of all the groups and communities that had been ravaged by the Nazis. The fact that the law applied at Nuremberg required a nexus between crimes against humanity and war crimes and crimes against the peace further reduced attention to victims and survivors of the Holocaust. Ben Ferencz, leading Prosecutor in the Einsatzgruppen trial, has said: The Nuremberg trials under the auspices of the allied armies were an entity unto itself. They played no significant role in the lives of the victims. The survivors were not even in the audience, which were mostly Germans.131

In the aftermath of the trials, not only did victims not receive reparations, but they also faced denial, victim-blaming, and a “conspiracy of silence.”132 The Tokyo Tribunal also ignored millions of Asian victims, including Japanese victims of the automatic bombs, and victims of systematic sexual violence at the hands of the Japanese military. Only twenty-seven victim witnesses testified, and the most attention went to former Allied prisoners and civilians. Japan paid military pensions to perpetrators but no reparations to victims.133 In this sense, the historical trials failed in providing reparative justice for victims. In the trials before the ad hoc Tribunals, victims did not have a direct role and could only participate as witnesses. President Robinson said in 2009 of the ICTY: “I fear that the failure by the international community to address the needs of victims of conflicts that occurred in the former Yugoslavia will undermine the Tribunal’s efforts to contribute to long-term peace and stability in the region.”134 One study concludes that even though Bosnian Muslims experienced the ICTY as “imperfect justice,” it was “infinitely preferable” 130 131 132 133 134

Luke Moffett. The Role of Victims in the International Criminal Tribunals of WWII. International Criminal Law Review, Vol. 12 (2012) pp. 245–55. Yael Danieli. Reappraising the Nuremberg Trials and Their Legacy: The Role of Victims in International Law. Cardozo Law Review, Vol. 27 (2006) pp. 1633–42. Ibid. Moffett. The Role of Victims in the International Criminal Tribunals of WWII, pp. 262–67. ICTY President Patrick Robinson’s address to the General Assembly, October 2009, cited in Mariana Pena and Gaelle Carayon, Is the ICC Making the Most of Victim Participation? International Journal of Transitional Justice, Vol. 7 (2013) p. 522.

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to no justice at all.135 Nonetheless, Bosnian victims have consistently exp­ ressed disappointment at sentences handed down by the ICTY, as well as at the practice of plea agreements.136 Victims also expressed a view that the proceedings were too long and complicated.137 Studies indicate that victims generally felt that the ICTR placed an excessive emphasis on the rights of the accused and that more ought to have been done for victims or survivors of the genocide.138 Rape was extremely widespread during the genocide in Rwanda, but a report in 2005 on rape victims indicated that they were deeply disappointed with the ICTR.139 A serious critique of the ICTR was that while those on trial were afforded valuable retro-viral drugs to stave off AIDS, victims of rape were not.140 Victims and witnesses indicated that they had a sense of being “mistreated” in the courtroom through aggressive cross-examination. Victims also criticized the slow pace of trials at the Tribunal.141 In Sierra Leone, victims had a sense that more was done for the perpetrators in custody of the Special Court than was done for them.142 C  Norm Projection: Demonstration Effect The impact of the historic trials on the societies for which they were established is mixed and varied over time. Gradually, acceptance of the Nuremberg 135

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137 138

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Orentlicher. That Someone Guilty Be Punished, pp. 13–14. The Krstic judgment is of particular importance in Bosnia because it held that the events in Srebernica constituted a genocide. Ibid., p. 14. Before Karadžić and Mladić were arrested, their absence also clouded the perceptions of many Bosnian victims and threatened to undermine the legacy of the ICTY: Orentlicher, p. 15. Mirko Klarin. The Impact of ICTY Trials on the Public Opinion of the Former Yugoslavia. Oxford Journal of International Criminal Law, Vol. 7 March (2009) pp. 89–96. Orentlicher. That Someone Guilty Be Punished, p. 15. Kingsley Moghalu. Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda. The Fletcher Forum of World Affairs, Vol. 26, No. 2 (Summer/Fall 2002) p. 29. Apart from the fact that the ICTR did not proceed with rape charges in many cases, victims of rape also felt that they received inadequate protection, that they were subjected to lengthy and humiliating questioning, and that their identities were often revealed following their testimonies. Moghalu. Image and Reality of War Crimes Justice, p. 30. In one case, a rape victim perceived that the judges were ridiculing her and laughing at her testimony. Binaifer Nowrojee. “Your Justice Is Too Slow” Will the ICTR Fail Rwanda’s Rape Victims? United Nations Research Institute for Social Development. November 2005. For the impact of the genocide in Rwanda on rape victims, see African Rights, Broken Bodies, Torn Spirits: Living with Genocide, Rape and HIV/AIDS (2004). Moghalu. Image and Reality of War Crimes Justice, p. 33. Rachel Kerr and Jessica Lincoln. The Special Court for Sierra Leone: Outreach, Legacy and Impact: Kings College London War Crimes Research Group, Department of War Studies, Final Report (2008).

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trials grew, but it was only consolidated after the reunification of Germany. Originally, the Nuremberg trial provoked harsh legal criticism in West Germany as a trial of victor’s justice imposed by an occupational court. The charges of crimes against the peace were criticized for violating the prohibition on retroactivity or nullem crimen sine lege (which the Nazis themselves had abolished from their law).143 The denial of admission of any evidence of crimes against the Germans, including the complete destruction of towns such as Dresden, was perceived as further evidence of victor’s justice.144 Burchard describes how initial reactions to the Nuremberg trial were more positive than subsequent ones.145 Now, the Nuremberg legacy is generally accepted in Germany. In general, the Tokyo Tribunal has a far more ambiguous legacy than the Nuremberg Tribunal, with criticisms of retroactive application of the law; emphasis on conspiracy rather than individual criminal responsibility; onesidedness (made worse by the Allied use of nuclear bombs in Hiroshima and Nagasaki, which constituted crimes against humanity); and lack of respect for fair trial rights.146 In her study spanning sixty years of Japanese societal attitudes toward the Tokyo trials, Futamura concludes that while the Tokyo trials were debated by elites,147 including Japanese historians and intellectuals, the 1 43

1 44 1 45

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The new German Grundgesetz included a prohibition on ex-post facto laws without exception. Burchard. The Nuremberg Trial and Its Impact on Germany, pp. 800–29. See also Kristen Sellars. Imperfect Justice at Nuremberg and Tokyo. EJIL Vol. 21, No. 4 (2010) pp. 1085–102. Christian Tomuschat. The Legacy of Nuremberg. JICJ, Vol. 4 (2006) p. 833. Burchard. The Nuremberg Trial and Its Impact on Germany, pp. 800–29. Ibid., pp. 800–29. During the trial, 87% of German interviewees knew the trial was taking place; 80% considered the proceedings fair; a majority deemed the defendants guilty; and 70% thought there are others who should be tried. Only 6% expressed negative or critical assessments and 9% that the proceedings were too harsh. Nevertheless, in the 1950s, in West Germany, 30% believed proceedings to have been unfair, and 40% believed that the verdicts had been too harsh. Only 10% said they were satisfied with how the Allies dealt with the problem of war criminals, whereas 59% disapproved. Sellars. Imperfect Justice at Nuremberg and Tokyo, pp. 1085–102. See also Tim Maga. Judgement at Tokyo: The Japanese War Crimes Trials. University Press of Kentucky (2001). B.V.A Rolling and Antonio Cassese, The Tokyo Trial and Beyond. Polity Press (1993) pp. 85– 89. Rolling cites an American, General Willoughby, who called the Tokyo trial “the worst hypocrisy in recorded history.” Sellars cites the work of historian Yuma Totani, who describes Japanese responses as follows: the legal academic in the late 1940s generally saw the trials as an advancement in the law; from the 1950s, conservative nationalists dismissed the trials as victors’ justice (based, for instance, on the severity of sentences); and after that, historians criticized the trials for its “expedient narrative of the Asian-Pacific War” which left out events such as the bombings of Hiroshima and Nagasaki. Sellars, Imperfect Justice at Nuremberg and Tokyo. See also Yuma Totani. The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. Harvard University Press (2008).

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general public remained rather apathetic about the topic. From opinion polls conducted in 2005 and 2006, 60–70% of Japanese did not know any specifics about the trial.148 She describes the overriding Japanese attitude toward the trials over sixty years as “passive acceptance” and a “consequence of defeat.”149 The controversy surrounding the visits by prime ministers, especially Prime Minister Koizumi, to the Yasukuni shrine every year, has provoked further debate.150 Futamura concludes that “the various problems in the way the Tokyo Trial was conducted and the way it has been debated by some critics made it more difficult for Japanese society and the Japanese people to reexamine their war responsibility.”151 In this sense, the Tokyo Tribunal seems to have failed in its expressive function. In Serbia, attitudes toward the ICTY remain rather negative, despite the passage of time. It was only in 1999 that the Tribunal translated its judgments into Bosnian-Croatian-Serbian.152 Politicians and the local media filled the political space left by the ICTY, and their views probably had much more impact on the local population than ICTY outreach.153 The ICTY was widely perceived in Serbia as a NATO court, which disproportionately prosecuted Serbs, rather than being viewed as an impartial vehicle of justice.154 As observed by Klarin, “the public was weaned on the Marxist maxim that law was an instrument in the hands of the ruling class” and had no experience of an independent judiciary.155 Whether more assertive outreach from the beginning could have changed some of the prevailing views, particularly in Serbia, remains doubtful.156 Diane Orentlicher’s impact studies of the ICTY in 2008 highlight the highly detrimental impact of the death of Milošević during his trial on the image of the Tribunal.157 Further setbacks were suffered with acquittals of senior Croat and 1 48 1 49 150

151 152

153 154 155 156 157

Futamura. Japanese Societal Attitudes towards the Tokyo Trial: A Contemporary Perspective. Ibid. The shrine contains the remains of twelve accused who were convicted at Tokyo, as well as two who died before the end of the trial. It is deemed offensive by China and Korea, both of which host large victim populations. This has provoked international debate about whether Japan really came to terms with its responsibility. Futamura. Japanese Societal Attitudes towards the Tokyo Trial: A Contemporary Perspective. Orentlicher. Shrinking the Space for Denial, p. 65. In her highly incisive study, she looks at impact on victims and perpetrators, impact in terms of doing justice and dispelling impunity, educational impact, as well as impact on the rule of law and on reconciliation. Klarin. The Impact of ICTY Trials on the Public Opinion of the Former Yugoslavia, pp. 89–96. Orentlicher. Shrinking the Space for Denial. Klarin. The Impact of ICTY Trials on the Public Opinion of the Former Yugoslavia, pp. 89–96. Orentlicher. Shrinking the Space for Denial, p. 66. Ibid., at p. 80. Serb supporters of the Tribunal had hoped that the judgment would confront the Serb population with the broad historical truth of the role of Serb institutions in atrocities, but without a final verdict this would prove far more difficult.

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Serbian accused just when the Tribunal was nearing the end of its mandate. In these cases, the accused returned home as war heroes.158 At the same time, Serb lawyer Ivanisević observes that since the ICTY, “there is incomparably less distortion of the past.”159 Public awareness of atrocities such as the shelling of Sarajevo, or the massacre at Srebrenica, has grown with the work of the Tribunal. The relationship that communities have to victimhood can shape perceptions of international justice efforts.160 As can be expected, views of the ICTY in Bosnia in 2012 were much more positive: 59% overall reported positive attitudes toward the Tribunal, as opposed to 39% who reported negative attitudes.161 However, according to Milanović, “the different ethnic communities in the former Yugoslavia are (still) engaged in competitive victimhood, which is a major impediment to mutual forgiveness and reconciliation.”162 The popularity of the ICTY in various parts of the former Yugoslavia is “inversely proportional to the number of accused that come from the countries, entities, and in particular, the ethnic communities.”163 Klarin, however, concludes: “Unfortunately, the negative image of the ICTY has been shaped by the tendency of domestic audiences to regard the ICTY and its actions, especially those of the Prosecutor, as supremely political.”164 Milanović concludes that “revisionism is rampant” and that “the ICTY failed to persuade the relevant target populations that the findings in its judgments are true. It manifestly did not succeed in combatting denial and preventing attempts at revisionism.”165 The question of why this is the case is crucial to better understanding the potential of the expressive function of international tribunals.166 One unpublished but significant study based on extensive fieldwork of

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162 163 164 165 166

A Danish judge in the ICTY claimed that the President had exerted pressure to acquit Gotovina and Perisić, in order to apply legal standards that would shield big military powers, including the United States and Israel, from criminal liability. This scandal damaged perceptions of the ICTY. www.ejiltalk.org/danish-judge-blasts-icty-president/, June 13, 2013. Orentlicher. Shrinking the Space for Denial, p. 63. Fletcher and Weinstein. A World unto Itself? The Application of International Justice in the Former Yugoslavia, p. 33. Milanović. The Impact of the ICTY in the Former Yugoslavia, p. 223. In Croatia, in a survey conducted by BCHR in 2011, 64% of respondents said they were mainly negative about the ICTY and only 23% mainly positive. In contrast, in a survey conducted by UNDP in Kosovo in 2012, 82% of Kosovar Albanians reported that they were partially or very satisfied with ICTY, whereas 87% of Kosovar Serbs were not satisfied. Ibid. Klarin. The Impact of ICTY Trials on the Public Opinion of the Former Yugoslavia, pp. 89–96. Ibid., pp. 89–96. Milanović. The Impact of the ICTY in the Former Yugoslavia, p. 223. The question why is discussed in Milanović. Establishing the Facts about Mass Atrocities, pp. 1321–78. This question is discussed further in Chapter 7.

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the ICTY and ICTR concludes: “the legitimacy and effectiveness of transitional justice mechanisms decreases with the perception of external imposition.”167 Milanović, in his work on the ICTY, gives some context to what may constitute “derivative expressivism.” He identifies the different cognitive, objective, and subjective factors that influence perceptions: the comprehensive core belief systems that form the lens through which information about atrocities is filtered; remoteness or lack of immediate experience of the event, which gives space for third-party “interpreters” such as the media or politicians; prejudgments about sources of information (including the ICTY itself)168; psychological factors such as a simple lack of time and energy to search for the truth, leading to recourse to cognitive shortcuts; confirmation bias, motivated reasoning, and heuristics, which tend to favor information obtained early in the cognitive process; and the pervasiveness of nationalist or other entrenched narratives.169 Visual material such as the video of the killings of Bosnian youth by the Scorpions paramilitary unit shown at the Milošević trial had impact, but were also questioned for their authenticity.170 Studies of the hybrid tribunals indicate that they are perceived in a more positive light. A survey conducted in 2012 sponsored by the SCSL itself interviewed 2,841 respondents in Liberia and Sierra Leone and found that a remarkable 92% in Sierra Leone and 90% in Liberia had heard of the Special Court.171 The 2012 survey suggests that the SCSL generally seems to invoke positive perceptions.172 Research on the Cambodia Tribunal shows similar, 167 168

169 170 171

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Selfja Izabela. (In)Humanity on Trial: On the Ground Perceptions of International Criminal Tribunals (2015), unpublished PhD thesis available online. Milanović. Establishing the Facts about Mass Atrocities, pp. 1321–78: surveys by the BCHR showed that 90% of Croatian and Bosnian respondents never visited the ICTY webpage, and a similar number never read an ICTY judgment; 73% of Bosnian respondents and 84% of Serbian respondents said that television and radio where their main media sources; 44% of Serbs admitted to being influenced by local analysts including political analysts, writers, and intellectuals. Only 19% cited the ICTY as a strong influence. Milanović. Establishing the Facts about Mass Atrocities, pp. 1321–78. Ibid. Many said they had heard of the Court when it was first established, in 2002–2003. Out of the respondents, 52.74% said that the SCSL was established to prosecute perpetrators, and 79.16% said it had accomplished what it set out to achieve. Special Court for Sierra Leone, Sierra Leone Institute for International Law, Manifesto 99, No Peace Without Justice, Liberian NGOs Network, and Coalition for Justice and Accountability, Making Justice Count: Addressing the Impact and Legacy of the Special Court for Sierra Leone and Liberia, September (2012) pp. 26–28. According to the survey, up to 83.92% of respondents in a 2012 survey in Sierra Leone and Liberia said the Court had done a good job in bringing those responsible for atrocities to justice. Almost half of all respondents said they were victims of war crimes or crimes against humanity (although it is not certain whether they understood these definitions). Special

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more positive perceptions.173 On the other hand, it is not clear how much people understood about the Special Court process. Some qualitative studies dissect the legacy of the SCSL, including the way its local legitimacy was affected when it indicted members of the popular Civil Defence Forces174; blunders by its investigators who were not sensitive to local context; outreach that was too little too late; strained relationships with the local legal profession; and the application of legal doctrines that were illsuited to the local cultural reality, including the emphasis on recruitment of child soldiers under eighteen, or the emphasis on forced marriages when individual consent was not culturally a big part of marriage in Sierra Leone in the first place.175 This again points to the fact that the impact of an international court’s norm projection can be hampered by insufficiently connecting it with the social and cultural context. A study on the impact of the Special Court concluded: “There was a pervading sense of disconnect with the Court, which seemed removed and irrelevant to the issues now facing Sierra Leone.”176 What does appear clear from the studies of the impact of the ICC’s predecessors is a stark lesson about the three levels of impact. All of the historical tribunals have had a clear impact as instruments of law, in terms of influencing the international and domestic legal orders. In some cases, they prompted the establishment of new courts. On the other hand, their reparative effect on victims is far less certain. Lastly, their impact in terms of demonstration effect

173

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Court for Sierra Leone, Sierra Leone Institute for International Law, Manifesto 99, No Peace without Justice, Liberian NGOs Network, and Coalition for Justice and Accountability, Making Justice Count: Addressing the Impact and Legacy of the Special Court for Sierra Leone and Liberia, September 2012, pp. 29–30. A nation-wide, population-based survey of the ECCC was carried out in Cambodia in 2009. Desire for accountability for the Khmer Rouge in Cambodia was very high (at 90%), but knowledge of the ECCC was relatively low (39% said they had no knowledge, whereas 46% said they had little knowledge). Out of those who had heard of the ECCC, 87% said it would respond to the crimes committed by the Khmer Rouge and 67% believed it to be fair and neutral (although 33% said it was not neutral and 23% said it may be corrupt). Phuong Pham, Patrick Vinck, Mychelle Balthazard, Sokhom Hean, and Eric Stover. “So We Will Never Forget”: A Population-Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia, Human Rights Center, University of California, Berkeley, January 2009. The fact that Hinga Norman, the popular former Head of the Civil Defence Forces, died while in custody of the Special Court fueled rumors that the Court had killed him. Moreover, many Sierra Leoneans were very disappointed that Charles Taylor was tried in The Hague. Tim Kelsall. Insufficiently Hybrid: Assessing the Special Court for Sierra Leone. Law Context: A Socio-Legal Journal, Vol. 27, No. 132(2009) pp. 132–53. Kerr and Lincoln. The Special Court for Sierra Leone: Outreach, Legacy and Impact: Kings College London War Crimes Research Group, Department of War Studies, Final Report (2008).

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was limited. In general, international criminal courts and tribunals suffered from being externally imposed and were perceived as such by local populations. This diminished their social impact and their role as instruments of justice.

V  Proposing a Framework At the Review Conference of the ICC in Kampala in 2010, the ASP identified three areas to debate in terms of the impact of the Court: impact of the ICC on domestic legal systems, through complementarity; impact of the ICC on the question of peace and justice; and the impact of the ICC firstly on victims, as well as on affected communities.177 These areas of impact relate broadly to the three levels of norm projection described above, in terms of impact on laws and institutions; on individual victims who are meant to be the main constituency of the Court, in terms of justice; and on societies that have experienced the world’s worst crimes. Victims and affected populations are often referred to together, whereas in this study, it is argued that each should be viewed separately, as the interests of victims and the broader communities from which they come may diverge in many conflicts. This study suggests that, in fact, there are four types of effects that constitute a framework of assessment of the ICC, namely: (a) systemic effect, (b) transformative effect, (c) reparative effect, and (d) demonstration effect. The first two can be said to be normative and relate mainly to the application of law, whereas the last two relate to societal impact and to notions of justice. For the Rome Statute and the ICC to have maximum effect, its norms should not just be reflected in changes in laws and institutions, but also on a societal level, in terms of bringing meaningful justice to victims and affected communities. A  Systemic Effect Systemic effect refers to the impact of the Rome Statute or the ICC on domestic legal systems. The Preamble of the Rome Statute refers to “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” If states undertake prosecutions of their own, this “catalytic effect”may be the most significant area of impact of the “Rome Statute system.”178 This ought to ultimately lead to deterrence, to combating impunity, and, over time, to the Rome Statute’s ultimate aim of prevention. 177 178

The author also prepared or contributed to various papers for the Stocktaking Exercise. See the ICTJ series on impact of the Court in Colombia, DRC, Kenya, Sudan, and Uganda. Nouwen. Complementarity in the Line of Fire.

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Systemic effect is a form of normative impact that can be relatively easy to assess through process tracing. Often cited is Luis Moreno Ocampo’s statement in 2003 that “[t]he effectiveness of the ICC should not be assessed by the numbers of cases that reach it,” but that “complementarity implies that the absence of trials before the Court, as a consequence of the regular functioning of national institutions, would be a major success.”179 Stahn refers to the ICC’s “potential to create a broader culture of accountability, and prevention of mass atrocity crimes constitutes one of the prerequisites for the long-term impact and success of the ICC.”180 The Rome Statue is often referred to as a “legal revolution.” Leila Nadya Sadat refers to the Rome Statute as a “quasi-legislative event that produced a criminal code for the world.”181 Systemic effect is linked to the admissibility framework in Articles 17–19. Before and during the Review Conference, “positive complementarity” was increasingly identified as a central justification for the Rome Statute and the Court itself, including by the Prosecutor.182 As the limitations of the Court became more apparent, positive complementarity, that is, the strengthening of domestic legal systems, gained currency. The Review Conference, held in Kampala in 2010, highlighted positive complementarity as a central objective for promotion by States Parties, and the ASP was assigned a role in coordinating these efforts.183 The OTP continues to put a strong emphasis on complementarity, while remarking that the Office has not been allowed by the ASP to participate in capacity-building activities, as these are considered outside the scope of its budget. While there is broad agreement about the importance of streng­ thening domestic legal systems, the question is whether “complementarity” is really the best way to reach this goal. Chapter 2 questions the vision of “positive” complementarity as the relationship between two jurisdictions, one national and one international, which address each other’s weaknesses in 179 180

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Statement of Luis Moreno Ocampo at Inauguration of Prosecutor and Judges of the ICC, June 16, 2003. Carsten Stahn. Taking Complementarity Seriously, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed El-Zeidy, Cambridge University Press (2011) p. 234. Leila Nadya Sadat. The International Criminal Court and the Transformation for International Law: Justice for the New Millennium. New York: Transnational Publishers (2002) p. 263. The OTP has cited Article 93(10) as a basis for positive complementarity, which refers to forms of assistance that the Court may give to State Parties. Luis Moreno Ocampo. A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed El-Zeidy, Cambridge University Press (2011) p. 24. See ASP Resolution RC/ Res. 1 on Complementarity, adopted on June 8, 2010.

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ensuring that the world’s worst crimes do not go unpunished. Instead, the ICC itself has often promoted court-centric notions of complementarity, resulting in investigations and trials in The Hague. Instead, Chapter 3 suggests that the impact of the Rome Statute and the Court on domestic jurisdictions can better be viewed as internalization, which refers to the process whereby states demonstrate compliance with international law.184 In fact, domestic proceedings have become a common feature in countries where the ICC is active. Geoff Dancy and Florencia Montal argue that ICC involvement in countries significantly increases domestic human rights prosecutions in the immediate term.185 Certainly, this is the case in many countries that are under investigation or preliminary examination. There is proof of internalization in different countries. Many of the steps that States Parties are taking go beyond the strict requirements of the Rome Statute and its complementarity regime. Unlike the Geneva Conventions, the Statute does not impose a legal duty as such for states to implement the Statute by incorporating Rome Statute crimes into its domestic law.186 As stated by the Pre-Trial Chamber, it is sufficient for domestic proceedings in relation to Rome Statute crimes to focus “on the alleged conduct and not its legal characterization.”187 However, currently, at least half of the States Parties have undertaken steps to amend their national 184 185

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See for instance Padhamabhan. Norm Internationalization through Trials for Violations of International Law, p. 435. Geoff Dancy and Florencia Montal. Unintended Positive Complementarity: Why International Criminal Court Investigations May Increase Domestic Human Rights Prosecutions, AJIL, Vol. 111, No. 3 (2017) CUP, pp. 689–723. Some scholars argue that incorporation is necessary because the use of ordinary criminal offences fails to capture the gravity and aggravated nature of the international crimes and that trials should closely mirror international criminal trials: “Regular national prosecutions for ordinary crimes are not desirable and would undermine the fundamental idea on which the international criminal justice system is founded.” Julio Bacio Terracino. National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC. JICL, Vol. 5 (2007) p. 439. Kevin Jon Heller. A Sentence-Based Theory of Complementarity. Harvard International Law Journal, Vol. 53 (2012) p. 88. Heller convincingly argues that the Rome Statute does not support the view that prosecuting an international crime as an ordinary crime cannot satisfy the complementarity threshold, what he calls the “hard mirror thesis.” Heller makes the point that if the Appeals Chamber believed that a national prosecution for an ordinary crime was insufficient, it would not have endorsed the “same person same conduct” test in Lubanga. Moreover, the ne bis in idem standard in Article 20(3) refers to the same conduct test. States in the drafting stage explicitly rejected the distinction between international and ordinary crimes. See also Carsten Stahn. One Step Forward, Two Steps Back? Second Thoughts on a “Sentence-Based” Theory of Complementarity. Harvard International Law Journal, Vol. 53 (April 2012) p. 185. Prosecutor versus Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, ICC-01/11-01/11, May 31, 2013, para. 85.

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law to include Rome Statute crimes, and many more are in the process of doing so.188 The Rome Statute does not require the establishment of specialized capacities to investigate or prosecute international crimes. Yet in recent years, various specialized capacities were established in Afghanistan, Colombia, Kenya, and Uganda (as well as in other countries). Finally, the Rome Statute does not require states to conduct their own investigations or prosecutions, although if they do not act, states risk an ICC intervention through their inactivity. From the earliest days, the OTP used the terminology of complementarity to refer to this process of building a culture of accountability at the domestic level.189 Domestic proceedings, provided they are genuine, are the most meaningful indicator of the systemic effect of the Rome Statute and the ICC. Domestic proceedings can be difficult to evaluate for their genuineness, as will be further discussed in Chapter 3. At the same time, domestic proceedings are an important indicator of normative impact, and may contribute to the long-term desired impact of preventing atrocities. B  Transformative Effect Transformative effect refers to the impact of the Rome Statute and the ICC on political processes such as peace negotiations. The transformative effect of the Rome Statute and the ICC is best demonstrated when its standards are upheld in situations where those who committed massive violations refuse to lay down their arms unless they are promised some form of immunity from prosecution.190 Peace negotiations present a challenge to the normative impact of the Court because they have historically given rise to amnesties or other forms of impunity. At the same time, peace is, in many cases, the best way to prevent further international crimes from being committed. Peace negotiations present a challenge to the Court’s theory of change: Is impunity a necessary tool for prevention of further atrocities in certain situations?

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Coalition for the International Criminal Court and Global Advocacy Campaign for the International Criminal Court. Summary Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities. Not dated. Paper on policy issues before the OTP, September 2003. The question whether and how far successor governments must fulfill the obligation of dispensing justice for past crimes is at the core of the field of transitional justice. José Zalaquett. Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal, Vol. 43 (1992) pp. 1425–38.

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The dilemma of peace and justice long predates the Rome Statute. Prior to the coming into force of the Statute, the South African transition inspired countries around the world.191 The crime against humanity of apartheid provoked unique universal condemnation. In South Africa, victim repre­ sentatives played a part in the negotiated solution and had a chance to democratically ratify the proposed political solution.192 The ANC leadership decided to forego the idea of “Nuremberg-style trials,” in the words of Desmond Tutu, in favor of a Truth and Reconciliation Commission as a “historic bridge” from the past to the future. The inspiration of South Africa lies not just in the innovation of the TRC’s individualized “amnesty for truth” formula, or the operations of the TRC, but rather in what the path chosen by Nelson Mandela represented in political and moral terms.193 While widely internationally welcomed, including by the United Nations,194 the South African approach was controversial at the time. It remains widely referenced around the world today.195 A powerful argument can be made that an end to conflict may be more likely to prevent further atrocities than subsequent retribution or punishment. In the words of Argentinian scholar Carlos Niño: Though it is true that many people approach the issue of human rights violations with a strong retributive impulse, almost all who think momentarily about the issue are not prepared to defend a policy of punishing those abuses once it becomes clear that such a policy would probably provoke, by a causal chain, similar or even worse abuses.196

191 192 193

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In Afghanistan, two of the five MPs interviewed mentioned South Africa as a possible example to follow in the context of a conversation about the ICC. Zalaquett. Balancing Ethical Imperatives and Political Constraints, p. 1429. In the words of the South African Constitutional Court: “It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realized that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past.” Azanian Peoples’ Organization (AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996). John Dugard. Dealing with Crimes of a Past Regime. Is Amnesty Still an Option? Leiden Journal of International Law, Vol. 12 (1999) pp. 1001–15 p. 1003. Some argue that victims were badly deceived due to the fact that almost no one was prosecuted, even though most applications for amnesty were denied. Even Bishop Tutu has referred to its “unfinished business.” Desmond Tutu, “Unfinished Business” of the TRC’s Healing, Mail & Guardian, April 25, 2014. Carlos Niño. The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, Yale Law Journal, Vol. 100 (1991) p. 2619.

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Similar arguments were raised by other Latin American scholars.197 At the same time, the Rome Statute represents a clear choice in favor of criminal prosecutions in such situations. The OTP claims in its strategic plan that it has had impact on “the growing importance of justice components in peace negotiations” and that it is imposing new legal limits. These legal limits are discussed in Chapter 4, which questions whether they are as set in stone as the Prosecutor has indicated. Chapter 5 assesses the transformative effect of the Court on recent peace negotiations in Colombia and Uganda.198

C  Reparative Effect Victims are at the heart of the mission of the ICC and are often regarded as the main source of its legitimacy.199 Delivering justice for victims is one of the indisputable goals of the Rome Statute. Reparative effect is meant to dignify victims and to impact on the lives of individuals. The Court is based on the notion of one shared identity, shared among all of humanity.200 The consequence of this shared identity is that the violation of the rights of victims as part of this corpus is seen as the violation against all. The recognition of victims is a key part of the ICC’s expressivism. At the same time, its reparative role can also have important societal impact in allowing victims to receive remedies for the harm suffered and to claim their rightful place in society. In contrast to the ICTY and other tribunals, which were accused of having instrumentalized victims,201 the Rome Statute is heralded as the first

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Well-known Chilean lawyer and human rights activist Jose Zalaquett argued that according to Max Weber, when confronted with the dilemma of a trying to negotiate a peaceful transition, politicians should be governed by the ethics of responsibility, rather than the ethics of conviction. He argues that States have ample discretion regarding leniency or clemency, albeit that they are constrained by international law. Zalaquett. Balancing Ethical Imperatives and Political Constraints, pp. 1430–31. 198 OTP Strategic Plan 2012–2015. 199 Antonio Cassese. The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice. Leiden Journal of International Law, Vol. 25, No. 2 (June 2012) pp. 491–501 p. 492. 2 00 David Koller. The Faith of the International Criminal Lawyer, 1019 p. 1050. 2 01 At Nuremberg, victims were practically absent from the proceedings: Christine Van den Wyngaert. Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge. Case Western Reserve Journal of International Law, Vol. 44 (2011) p. 476. Liesbeth Zegveld. Victims’ Reparations Claims and International Criminal Courts: Incompatible Values? Journal of International Criminal Justice, Vol. 8 (2010) pp. 79–111.

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international criminal forum that actualizes both retributive justice and “reparative” justice for victims. The Court’s Statute and Rules provide for victim participation and for reparations, but these processes have led to extensive administrative and bureaucratic procedures, as will be discussed in Chapter 6. The large numbers of victims in some of the cases threaten to overwhelm the Court in administrative terms. Quantitative indicators such as numbers of victims participating do not give insight into whether this participation is meaningful. The Court’s proceedings on reparations are at an early stage, but the limited resources available to the Trust Fund for Victims (TFV) do not bode well for the Court’s ability to provide anything beyond symbolic relief for victims. The TFV, while innovative in its approach to assistance for victims, was criticized in the recent IER as “not fit for purpose” and remains limited in its activities due to its resources. Victims are often referred to as an abstraction, whereas little is known about their actual individual circumstances, or indeed their immediate needs or wishes. In Chapter 6, the impact of the Court on victims in Uganda and Kenya is explored further. Given the centrality of victims to the Court’s mandate and its legitimacy, it is important that the Court should be able to deliver justice to victims. D  Demonstration Effect Demonstration effect refers to the ability of an ICC or tribunal to contribute to “a culture shift and demands for change or increased accountability through increased rights awareness.”202 This is a form of societal impact that strives for the internalization of Rome Statute norms, so that these become part of the social fabric of affected communities. This may be the deepest level of impact. If this can be achieved, it will contribute to prevention. Public perceptions are essential in determining the “demonstration effect” of the Court; that is, whether the Court is seen to deliver fair and impartial justice to affected communities. The views of affected communities should be seen as essential to the Court’s success.203 If the ICC is not being understood as rendering fair and impartial justice, it may be seen as a “spaceship phenomenon,”204 with little connection to the society where it operates, and its 2 02 2 03 2 04

OHCHR Rule of Law Tools. Maximizing the Legacy of Hybrid Tribunals (2006). OSJI Briefing Paper. Establishing Performance Indicators for the International Criminal Court, November 2015. In earlier writings, the author used this term in relation to the SCSL. Tom Perriello and Marieke Wierda. The Special Court for Sierra Leone under Scrutiny. International Center for Transitional Justice (March 2006) p. 40.

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overall impact, in terms of expressivism, will be reduced.205 The 2010 Kampala Review Conference emphasized the importance of assessing the impact of the Court on affected populations as a whole. Yet sometimes, it is far from clear who is the main audience of its work.206 Is it the international community as a whole,207 or the society in which the crimes took place? Which is more important? If it is the latter, then why is there more emphasis on the former in the Court’s operations? Proponents of the ICC’s expressive role have yet to analyze its “derivative” nature. ICC trials do not directly contribute to restoring the social contract between citizens and institutions at the national level.208 Instead, the expressive function of the ICC is indirect. But what is the impact on local audiences? As noted by Drumbl: When justice is externalized from the afflicted societies for which it ought to be most proximately intended, it then becomes even more difficult for any of the proclaimed goals of prosecuting and punishing atrocity perpetrators—whether denouncing extreme evil, expressing rule of law, voicing retribution, or preventing recidivism—to take hold.209

The Court’s officials themselves have often suggested that support for, and hence the legitimacy of, the Court, will flow automatically from its performance. As long as its processes are fair, efficient, independent, and impartial, legitimacy ought to follow.210 The second Chief Prosecutor refers to “the 2 05

In the words of Tolbert: “Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially—respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.” Blog by David Tolbert, March 3, 2015. http:// jamesgstewart.com/the-iccs-credibility-depends-on-much-more-than-just-power-politics/ 2 06 For a discussion of this question, see Aloisi and Meernik. Judgement Day: Judicial Decision Making at the International Criminal Tribunals. 2 07 In the Katanga sentencing judgment, the Trial Chamber explicitly recognized the expressive function of sentencing, when it held: “Elle considère que la peine a donc deux fonctions importantes : le châtiment d’une part, c’est-à-dire l’expression de la réprobation sociale qui entoure l’acte criminel et son auteur et qui est aussi une manière de reconnaitre le préjudice et les souffrances causées aux victimes; la dissuasion d’autre part, dont l’objectif est de détourner de leur projet d’éventuels candidats à la perpétration de crimes similaires.” Le Procureur c. Germain Katanga, Decision relative a la peine (article 76 du Statut), Mai 23, 2014, ICC-01/04-01-07, para. 38. 2 08 Sloane. The Expressive Capacity of International Punishment, p. 53. “The Hobbesian notion of an implicit social contract—whereby individuals surrender certain rights to the state, which then gets a monopoly on legitimate coercion, in exchange for a measure of security—is strained in this context.” 2 09 Drumbl. Atrocity, Punishment and International Law, p. 128. 210 For an extensive study on independence and impartiality, see Luc Côté, Independence and Impartiality, in International Prosecutors, edited by L. Reydams, J. Wouters and C. Ryngaert, Oxford University Press (2012) pp. 319–415.

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standardized, clear, transparent, and predictable working methods of the Office of the Prosecutor, providing it with the necessary legitimacy as a strictly judicial actor, in order to function effectively in a highly political international environment.”211 But Chapter 7 will show that the issue of perceptions is not so clear-cut. Situation and case selection have a major impact on expressivism and, hence, on demonstration effect.212 Different scholars have commented on prosecutorial discretion and whether it should be circumscribed by criteria213 or guidelines. The Prosecutor has published its Policy Paper on Case Selection and Prioritization, which broadly draws the contours of how it exercises discretion. Case selection, however, has prompted controversy in almost every situation in which the Court is involved. In the words of Guzman: “since the ICC lacks agreed goals and priorities, articulating ‘criteria’ or ‘guidelines’ for selection may simply highlight the inconsistent manner in which such decisions are made.”214 In any case, the expressivism of the Court is filtered by domestic audiences through a lens influenced by historical, political, and sociological factors. International criminal justice supporters describe main barriers to such messaging as coming from “ethnic, religious or other conflict-related bias,”215 thus implying that misunderstandings come from domestic audiences. As will be argued in Chapter 7, this “derivative expressivism” of the Court may be perceived differently than it was intended.216 At the moment, relatively little data exist about perceptions of the ICC. This is in the absence of quantitative data, beyond the limited survey work conducted to date.217 Perceptions in different countries are shaped by the unique historical, cultural, and political factors of that context, and it is further

211 212 213

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Fatou Bensouda. Reflections from the ICC Prosecutor. Case Western Reserve Journal of International Law, Vol. 45 (2012) pp. 505–11 p. 506. De Guzman. Choosing to Prosecute: Expressive Selection at the International Criminal Court, p. 265. James Goldston. More Candour about Criteria, JICJ, Vol. 8 (2010) pp. 383–401. Goldston argues in favor of guidelines, warning that else the Court is trapped between a pristine notion of “law in a vacuum,” promoted by its embattled supporters and attacks from its critics that it is politicized. De Guzman. Choosing to Prosecute: Expressive Selection at the International Criminal Court, p. 298. Meijers and Glasius. Trials as Messages of Justice, pp. 429–47 p. 443. See Chapter 7. A Gallup 2005 Voice of the People survey asked about trust in the ICC, but this was too early in the life of the ICC to give rise to significant results. The survey was applied in sixty-seven countries plus Kosovo, but knowledge of the ICC was low. Over the sixty-seven countries, 45% of those who mentioned the ICC were positive about it, whereas 13% had a negative

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influenced by key opinion makers, including the authorities, the media, and civil society. While the Court is “a court of law and justice, not a political institution that needs to pander to the public opinion,”218 negative perception can ultimately undermine the Court’s normative impact. Jane Stromseth remarks that “if [international] tribunals … simply ignore local perceptions about justice, they may undermine public confidence in fair justice, reinforce cynicism and despair, rather than helping to build public trust in justice and the rule of law.”219 Support for the Court depends in part on “the agendas of the relevant audiences of the court, that is, the issues these audiences view as important and central.”220 This study seeks to identify trends in perceptions across four situations, based on qualitative interviews and long-term firsthand observation. Chapter 7 discusses the perceptions of the ICC along the following trends: (a) whether the Court was perceived as impartial, (b) whether the Court was perceived as relevant and responsive to local justice struggles, (c) how the Court was perceived as interacting with local justice solutions, and (d) whether the Court was perceived as independent or influenced by foreign agendas. Indications are that perceptions may be most positive in countries where the ICC is the least known, in the “shadows” of the preliminary examination phase, rather than in the “spotlight” of investigations. In the shadows, it may be more feared. When the Court is more active, its limitations are more apparent. Unless the ICC succeeds in being perceived as independent and impartial on the one hand, but also as relevant in terms of being attuned to local justice priorities, the power of its expressivism and its overall impact as an instrument of justice may be diminished.

VI Conclusion The founders of the ICC believed in the fact that its establishment would lead to a reduction in the world’s worst crimes. Yet in the first twenty years of its existence, it is not clear that the ICC is contributing to reducing atrocities in

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opinion. In a few countries, the negative opinions outnumbered the positive, including Austria, Croatia, Israel, Serbia, and the United States. Voeten found a correlation between support for the United Nations and support for the ICC. See Erik Voeten. Public Opinion and the Legitimacy of International Courts. Theoretical Inquiries in Law, Vol. 14 (2013) p. 427. Moghalu. Image and Reality of War Crimes Justice. Jane Stromseth. Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies? Georgetown University Law Center (2009) p. 89. Shai Dothan. How International Courts Enhance Their Legitimacy. Theoretical Inquiries in Law, Vol. 14, No. 455 (2013) p. 473.

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the short term. In fact, most countries that are under investigation have experienced further atrocities, sometimes committed by the same actors. Understanding the impact of the ICC in more realistic terms requires clarity on its goals. Goals such as deterrence are not easily applicable to the ICC. The experience to date with other tribunals tends to indicate that the historic clarification provided by criminal trials do not necessarily contribute to reconciliation. Sentences imposed by international courts are often too lenient to be considered retributive. Nonetheless, the Court can be said to play an essential role in norm projection. If the ultimate goal of the ICC is expressivism, how should this be assessed? Expressivism can be assessed on different levels, including on the level of laws and institutions, but also on the level of individuals (victims) or society. International criminal tribunals have historically had a significant normative footprint as instruments of law, in terms of the formation of new laws and treaties. They have also managed to promote domestic proceedings in certain situations. The societal impact of international criminal tribunals before the ICC, in terms of delivering justice to victims or societies, is more disputed. Nonetheless, both normative and societal impact are important to assess. The ASP itself conceded this in its “stock-taking” exercise during the Review Conference, where it essentially put forward the framework that is used in this study. Ultimately, the impact of the Rome Statute can be assessed through (1) systemic effect on domestic legal systems, resulting in increased capacity to investigate or prosecute Rome Statute crimes and (2) transformative effect on peace negotiations, resulting in agreements that promote accountability for international crimes. The impact can also be studied through (3) reparative effects for victims, including through victim participation and reparations and (4) “demonstration effect,” leading to an internalization of the norms of the Rome Statute and the Court on the societal level. The following chapters will assess various country situations to measure these areas against the four effects of the proposed framework, to assess overall impact of the ICC in situation countries, in terms of normative and societal impact. The implications are discussed in Chapter 8, including whether achieving more impact is a matter of adjusting the operations of the ICC, or whether the Court can have its desired impact as an instrument of both law and justice.

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2 Systemic Effect I The Flaws of Complementarity

Courts are built to do justice, but to insist on trials in The Hague is to use justice to build a court. Timothy Waters1

I Introduction “Systemic effect” refers to the impact of the Rome Statute and the ICC on domestic legal systems. This is an important and measurable form of normative impact and stems from the Rome Statute and the Court as instruments of law. Systemic effect is closely related to, but not synonymous with, complementarity. “Complementarity” is often used as shorthand for a principle that encourages national systems to conduct their own investigations and trials. Legally, the term means exactly the opposite, that is, the complementarity regime allows the Court to conduct investigations and trials in situations where national systems are unwilling or unable genuinely to conduct investigations or prosecutions.2 The Rome Statute does not use the word complementarity, but it does refer to national proceedings within its admissibility framework in Articles 17–19. The term “positive” complementarity, in the sense of strengthening domestic legal systems, assumed such prominence among the ASP and supporters of the ICC that it is retroactively seen as one of the main intended effects of the Rome Statute.3 In the words of William Burke-White, “encouraging national 1

Timothy Waters. Let Tripoli Try Saif Al-Islam: Why the Qaddafi Trial Is the Wrong Case for the ICC, Foreign Affairs, December 9, 2011. 2 Paul Seils. Putting Complementarity in Its Place, Law and Practice of the International Criminal Court, edited by Carsten Stahn. Oxford University Press (2015) pp. 305–27. 3 Carsten Stahn. Taking Complementarity Seriously, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed El-Zeidy. Cambridge University Press (2011) p. 234.

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prosecutions within the ‘Rome System of Justice’ and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity.”4 Positive complementarity could be a main vehicle to further “systemic effect.” This chapter, however, argues that the “systemic effect” seen on the domestic level is not necessarily a consequence of the complementarity regime as it is applied now. The interpretation of complementarity that has prevailed at the Court is Court-centric. Instead of allowing states a margin of appreciation or “qualified deference” to conduct their own trials for Rome Statute crimes, the application of the complementarity framework, with its strict legal definitions, often generates an adversarial relationship with states. While there are examples of “positive” complementarity, in many cases, the “systemic effects” are implemented by states to avoid the ICC. The complementarity regime as currently applied yields unsatisfactory results from a policy perspective. It does not allow for a sufficient margin of appreciation for domestic prosecutions on the one hand, and on the other, it cannot curb blatantly unfair domestic prosecutions. It has been suggested that the ASP should play a more active role in promoting national proceedings. This role could be played in situations where national jurisdictions are not directly competing with the Court, such as when preliminary examinations are still ongoing, where the Court has agreed on “burden sharing” with the national jurisdiction (such as in the CAR) or where the Court has concluded its investigations and prosecutions (as part of a completion strategy). Until now, the ASP however has not had a major role, and its preoccupation with matters of budget may preclude this. The Court itself has been criticized for lengthening preliminary ­examinations to allow for positive complementarity, allowing too much time for countries to demonstrate willingness or ability. The recent IER urges the Court to establish clear strategic plans for preliminary ­examinations, ­including benchmarks and deadlines.5 The IER found that dialogue and ­cooperation with States, including situation countries, on positive ­ complementarity can also take place during the investigation stage and that the ASP could play a role even then. It remains to be seen, however, whether situation ­countries would welcome this approach. For instance, Colombia has pursued 4

William Burke-White. Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice. Harvard International Law Journal, Vol. 49 (2008) p. 53. 5 Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report, para. 718, September 30, 2020. Available online.

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national proceedings to avoid ICC jurisdiction, as will be described further. Stahn suggests that the Assembly could play a role in “dialogue and consultation” around complementarity.6 However, this would require a considerably more proactive role from the ASP than it has played to date.7 This would require resources as well as political will.8 This chapter will examine the “flaws of complementarity,” which demonstrate a gap between the law and justice. Chapter 3 will go on to examine the evidence of systemic effect in the four countries under scrutiny through the lens of “internalization.”

II  The Flaws of Complementarity A  “Positive” Complementarity? 1  A Court-Centric Conception of Complementarity The full history of complementarity has been explored elsewhere and will not be recited here.9 In the lead-up to the adoption of the Rome Statute, States Parties heavily debated the notion. Many states wanted a strong presumption favoring national jurisdictions.10 Likewise, the concept of “unwillingness” was controversial and difficult to negotiate.11 After all, state representatives who negotiated the Statute were mindful of state sovereignty and did not want a “primacy” model as represented by the ICTY. On the other hand, states also wanted to create an effective and credible court, able to act where states are ineffective.12 6

Secretariat of the Assembly of States Parties to the Rome Statute of the International Criminal Court, The Hague Working Group, Complementarity, June 24, 2020. 7 In 2010–2012, the ICTJ and UNDP co-hosted a number of meetings that were known as the “Greentree” meetings that were supposed to result in more cooperation between international criminal law practitioners and development actors, but this did not fully materialize. 8 The Court is working on new policy papers on complementarity and on completion strategy. 9 For an in-depth analysis of the topic see Carsten Stahn and Mohammed El-Zeidy (eds). The International Criminal Court and Complementarity: From Theory to Practice. Cambridge University Press, Vol. I (2011). See also Jan Kleffner. Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford University Press (2008). 10 Sharon A. Williams and William A. Schabas. Commentary on the Rome Statute of the ICC, edited by Otto Triffterer, 2nd ed. Beck/Hart (2008) p. 608. 11 Ibid., p. 610. 12 Dissenting Opinion of Jude Anita Usacka, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Appeals Chamber Judgment on the appeal of Libya against the decision of PreTrial Chamber I of May 31, 2013, entitled “Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi,” ICC-01/11-01/11 OA4, May 21, 2014, para. 16.

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As the concept of complementarity developed in the jurisprudence and was analyzed in the writings of academics and activists, notions of sovereignty were diluted. From the establishment of the Court, those tasked with formulating the Court’s policies on the principle of complementarity took a Courtcentric approach. They defined complementarity through concepts such as division of labor, uncontested admissibility, the impunity gap, and positive complementarity, all concepts that use the Court as the center and domestic jurisdictions as secondary. Originally, experts voiced hope for more cooperation between the Court and domestic systems. In 2003, an informal expert group convened in The Hague to discuss the principle of complementarity. The vision of the relationship between the Court and States Parties foreseen in the report did not anticipate antagonism.13 Instead, it sketched a “cooperation-based vision of complementarity.”14 The experts saw the Court as a gentle giant and mentor for domestic justice systems through a combination of “partnership” on the one hand and “vigilance” on the other. The paper argued that: Partnership highlights the fact that the relationship with States that are genuinely investigating and prosecuting can and should be a positive, constructive one. The Prosecutor can, acting within the mandate provided by the Statute, encourage the State concerned to initiate national proceedings, help develop anti-impunity strategies, and possibly provide advice and certain forms of assistance to facilitate national efforts.15

In the years to follow, increasingly Court-centric notions started to dominate discussions on complementarity. For instance, some experts proposed a “division of labor” between the ICC and domestic courts in terms of trials of highand low-ranking perpetrators: The Court is an institution with limited resources. The Office will function with a two-tiered approach to combat impunity. On the one hand it will initiate prosecutions of the leaders who will bear the most responsibility for the crimes. On the other hand it will encourage national prosecutions, where possible, for the lower-ranking perpetrators.16

Some suggested that states could make a referral or choose not to contest admiss­ ibility, if they were “willing to become able.” One vision of this approach argued that 13 14 15 16

William Schabas. Complementarity in Practice: Some Uncomplimentary Thoughts. Criminal Law Forum, Vol. 19 (2008) pp. 5–33 at p. 6. Stahn. Taking Complementarity Seriously, p. 261. Informal expert paper: The Principle of Complementarity in Practice, ICC-OTP 2003, para. 3. The author was a participant in one of the expert group’s meetings. OTP Paper on some policy issues before the OTP, September 2003, p. 3.

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“the parallel action of two judicial systems will be seen as complementary, and not in terms of inferiority/superiority, although there may be differences between the two systems (in terms of in salary, resources, prison conditions, etc.) that may suggest such a (potentially damaging) hierarchy.”17 Some scholars subsequently spoke of the Rome Statute creating a “shared responsibility.”18 A few scholars actively promoted the idea that the ICC ought to engage in capacity building.19 This debate was repeated in relation to specific situations. In the context of Libya, it was argued, “the overriding benefit of the ICC is that when national authorities are not yet in a position to conduct genuine investigations and prosecutions, the Court can step in to investigate and prosecute some cases in accordance with fair trial standards.”20 However, this does not take into account the fact that proceeding with ICC trials might, in fact, be disempowering to domestic justice actors. As argued by Timothy Waters, “the sight of English-speaking judges listening to Arabic on headphones would leave Libyans doubtful that their stories were being told, much less understood.”21 A “division of labor” model demands that the Court should be the centerpiece, leaving national jurisdictions to try secondary offenders or “­ remnants.”22 This is also referred to as the “impunity gap,” defined as “the base of a pyramid of perpetrators (i.e., those other than the top-echelon offenders) who are not likely to be the focus of attention for the ICC.”23 In another scenario, it was suggested that countries may voluntarily forego doing justice due to lack of capacity or if “groups bitterly divided by conflict may oppose prosecution at each other’s hands and yet agree to a prosecution by a Court perceived to

17 18

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Conference Report: Vancouver Dialogue on the Impunity Gap, Liu Institute Global Justice Program and ICTJ, April 4, 2004. Stahn. Taking Complementarity Seriously, p. 263. See also Carsten Stahn, Libya, the International Criminal Court and Complementarity: A Test for “Shared Responsibility.” Journal of International Criminal Justice (2012) pp. 1–25. See for instance Jane Stromseth. Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies? Georgetown University Law Center (2009) p. 89. Jonathan O’Donohue and Sophie Rigney. The ICC Must Consider Fair Trial Concerns in Determining Libya’s Application to Prosecute Saif Al-Islam Gaddafi Nationally, EJILtalk.org, June 8, 2012. Waters. Let Tripoli Try Saif Al-Islam. See for instance Jonathan O’Donohue, Libya’s Defining Moment: Justice or Revenge? Gaddafi-Regime Officials Must Be Tried in the International Criminal Court to Ensure a Fair Trial. Al Jazeera, September 22, 2013. O’Donohue argues: “While the two most high-profile cases are conducted at the ICC, the national authorities can focus on continuing its efforts to improve the security situation and strengthen the national justice system.” Conference Report: Vancouver Dialogue on the Impunity Gap, Liu Institute Global Justice Program and ICTJ, April 4, 2004.

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be neutral and impartial.”24 This has happened to a degree with self-referrals. However, the question whether the Court is perceived to be neutral and impartial deserves further query, as will be discussed in Chapter 7. The notion of deferred jurisdiction is also linked to the doctrine of “uncontested admissibility,” widely used in self-referrals. This became a central part of the Court’s approach. Uncontested admissibility is part of a two-prong test for admissibility in the jurisprudence, with “inaction,” that is, failure to open an investigation, being the first prong: If there is inaction, the ICC can investigate and prosecute without testing unwillingness or inability (the second prong).25 The fact that the Court can act as soon as domestic jurisdictions are shown to fail to do so greatly enhanced the scope of the Court’s role in different situations, particularly in countries where national authorities have struggled to open investigations. The lack of in situ proceedings can be seen as further evidence of a focus on the Court in The Hague. In situ ICC trials were considered in a n ­ umber of contexts, including DRC, Libya, and Kenya, but to date they have not materialized, as they proved too difficult to implement, both from political and security perspectives. Judge Fulford describes the preparations that were made for in situ hearings in the Lubanga trial in an old hanger on a United Nations Mission in the Democratic Republic of the Congo (MONUC) base, where opening statements of the trial were due to be given. The Minister of Justice ultimately refused because the presence of the Court could be destabilizing.26 Similarly, civil society in Kenya opposed in situ hearings on the grounds that these were unlikely to be able to adequately safeguard victims, witnesses, and affected communities.27 A plenary of judges of the ICC eventually decided against an in situ trial, as well as against using the ICTR premises in Arusha, Tanzania.28 A judicial site visit was at least conducted in the Ongwen case in 2018.29 Generally, the IER has recommended more in situ proceedings and judicial site visits.30 24 25 26 27

28

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OTP paper on some policy issues before the OTP, September 2003, p. 5. Stahn. Taking Complementarity Seriously, p. 241. Judge Sir Adrian Fulford. The Reflections of a Trial Judge. Criminal Law Forum, Vol. 22 (2011) p. 216. Kenyans for Peace, Truth and Justice, Open Letter to the President of the International Criminal Court (ICC) on the Decision on William Ruto’s Excusal from Continuous Presence at His Trial and the Forthcoming Decision on In Situ Hearings, July 9, 2013. Decision of the Plenary of Judges on the Joint Defence Application for a Change of Place Where the Court Shall Sit for Trial in the Case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC, August 26, 2013. IER, para. 559. IER, paras. 557–63.

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2  The Birth of “Positive Complementarity” As early as 2004, the Chief Prosecutor Luis Moreno Ocampo said he would be taking “a positive approach” to complementarity. He said that “rather than competing with national systems for jurisdiction, we will encourage national proceedings wherever possible.”31 In its 2006 strategy, the OTP specified that this would be achieved through encouraging national proceedings, reliance on national and international networks, and participating in a system of national cooperation as central to positive complementarity.32 The OTP referred to itself as a channel for implementation, and referred to its ability to catalyze national proceedings, including in countries under preliminary examination. The Prosecutor also said that it would support a comprehensive strategy to fight impunity at the domestic level.33 At the Review Conference in Kampala in 2010, the ASP reaffirmed the importance of the principle of complementarity, but emphasized that the Court itself should not play a central role in positive complementarity, mainly due to resource constraints.34 At the same time, the dominant view remains that of viewing national systems as complementing the ICC, rather than the ICC complementing national systems. Court supporters seem to view positive complementarity mainly as “an instrument to strengthen the goals and impact of the Court.”35 3  The “Case Snatcher”: A Court Competing for Cases As mentioned, the current, so-called “two-prong” approach of the Court to admissibility, which allows the Court to investigate in cases of “inaction,”36

31 32 33

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Statement of the Prosecutor Luis Moreno Ocampo to Diplomatic Corps in The Hague, the Netherlands, February 12, 2004. ICC-OTP, Report on Prosecutorial Strategy (September 14, 2006). Luis Moreno Ocampo. A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed El-Zeidy. Cambridge University Press (2011) p. 26. The ASP Bureau Report redefined positive complementarity as “all activities/actions by which national jurisdictions are strengthened and enabled to conduct genuine investigations and trials of crimes included in the Rome Statute, without involving the Court in capacitybuilding, financial support, and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.” ASP Report of the Bureau on Stocktaking: Complementarity, Resumed eighth session, March 18, 2010, ICC-ASP/8/51, p. 16. Stahn. Taking Complementarity Seriously, p. 277. Ibid., p. 277.

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gives considerable leeway to the Prosecutor to meet the admissibility threshold, considering the inactivity and delay in pursuing domestic cases at the domestic level, particularly in countries in conflict. Furthermore, the requirement that an admissibility challenge should be filed as early as possible and in principle only once, according to Article 19, means that once the Court opens an investigation, it becomes very difficult for the country to “win the case back.” The net result is that the Court competes for cases with national jurisdictions and often wins.37 Thomas Lubanga was already in custody awaiting trial for crimes against humanity and genocide before a national court.38 This resulted in the wellknown ruling by the Pre-Trial Chamber that the “national proceedings must encompass both the person and the conduct which is the subject of the case before the Court.”39 The ICC only charged Lubanga with the recruitment of child soldiers. In response to criticism about the narrowness of these charges, the former Prosecutor (over)emphasized the gravity of the crime of child recruitment: “forcing children to be killers jeopardises the future of mankind.”40 Katanga and Ngudjolo Chui, too, had been arrested and held in custody on national charges, but all were “referred” to the Court. Upon Katanga’s release by the ICC, he was in fact rearrested and tried with crimes that mirror the ICC case.41 In the CAR legal proceedings had been commenced against Bemba, but the Cour de Cassation made a decision that it was unable to investigate and prosecute and the Court took the case.42 Alfred Yekatom was transferred to the ICC on November 17, 2018, just as the Special Criminal Court in

37

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Phil Clark. Law, Politics, and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda. In Courting Conflict: Justice, Peace and the ICC in Africa. Royal African Society (2008) p. 37–46. Schabas. Complementarity in Practice, p. 11. Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of October 3, 2006, ICC-01-04-01/06772, December 14, 2006, para. 37. Statement by Luis Moreno Ocampo, Press Conference in relation with the surrender to the Court of Mr. Thomas Lubanga Dyilo, March 18, 2006. The Court asked for Lubanga at a time when he could have been released and child recruitment charges were the only ones that were ready at the time: Paul Seils. The Selection and Prioritization of Cases by the Office of the Prosecutor of the International Criminal Court, in Case Selection and Prioritization, edited by Morten Bergsmo, FICHL, Publication Series No. 4 (2010) p. 74. Seils also argues that the DRC had no intention of trying Lubanga. Patryk Labuda. Taking Complementarity Seriously: Why Is the International Criminal Court not Investigating Government Crimes in Congo? Opinio Juris, April 28, 2017. Schabas. Complementarity in Practice, p. 12.

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CAR had started functioning.43 In the meantime, by 2021, two other suspects were transferred from CAR to the ICC, including Patrice-Edouard Ngaissona and Mahamat Said Abdel Kani. Yekatom and Ngaissona are from Anti-Balaka militias, whereas Said is from the Seleka militia. The security situation in CAR remains very poor, but the Special Criminal Court is continuing its work. As concluded by Schabas, “neither the Uganda nor the Democratic Republic of Congo situations have been addressed by the Court in a manner aimed at best encouraging the national system to assume its duties under international law.”44 At the same time, the ICC has been criticized for not pursuing any cases against Congolese military actors aligned with the Kabila government.45 This tendency to compete was also witnessed in Libya. The Prosecutor visited Libya shortly after the Revolution, in November 2011, to convince Libyan authorities to surrender Saif Al-Islam to the ICC. During his visit, he declared: “I respect that it’s important for the cases to be tried in Libya … and I am not competing for the case.”46 This left many Libyans with the impression that the ICC would quickly cede way to their claim, not realizing that this was not in fact in the hands of the Prosecutor and would require a judicial decision.47 The Prosecutor also suggested alternative options, including sequencing the proceedings at the ICC and in the domestic courts according to Article 94 or the possibility of an in situ trial.48 However, the judges decided differently. On May 21, 2014, the Appeals Chamber upheld the Trial Chamber decision on the admissibility of the case of Saif Al-Islam. 43

44 45 46

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Patryk Labuda. At Long Last: The International Criminal Court Strikes in the Central African Republic, Opinio Juris, November 19, 2018. The ICC subsequently decided the case was admissible under the Inactivity Test: Trial Chamber Decision on the Yekatom Defence’s Admissibility Challenge, Situation in the Central African Republic II, Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaissona, April 28, 2020. The decision read: “Increasing or encouraging State capacity for the investigation and prosecution of the most serious international crimes is not within the Chamber’s purview … Issues arising from the admissibility of cases before the Court under article 17 of the Rome Statute all remain a judicial matter to be addressed by the judges of the Court.” Ibid., p. 27. Labuda. Taking Complementarity Seriously. BBC World News, Ocampo: Saif Al-Islam Case Is Huge Responsibility for Libya, November 23, 2011. www.bbc.com/news/av/world-africa-15866040/ocampo-saif-al-islam-case-is-hugeresponsibility-for-libya. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Request to Disqualify the Prosecutor from Participating in the Case Against Saif Al-Islam Gaddafi, ICC-01/11-01/11, May 3, 2012. Prosecutor’s Submissions on the Prosecutor’s recent trip to Libya, Gaddafi and Al-Senussi (IC-01/11-1/11-31), OTP, November 25, 2011. The author met with the Prosecutor during this trip.

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The “same person same conduct” test is derived from Article 90 of the Statute and is linked to the concept of non bis in idem found in Article 20. It is meant to avoid the situation of double jeopardy. However, it could be said that the strict approach to “same person same conduct” applied until now violates the spirit of complementarity. As is demonstrated in the case of Saif Al-Islam, the test leads to several distortions. First, national investigations must precisely mirror ICC charges, even if the latter were put together in considerable haste, as was the case with Saif Al-Islam. It therefore forces local, ill-equipped prosecutors in transition countries to quickly build complex cases which mirror ICC crimes and modes of liability. Moreover, the mounting of international pressure of a pending ICC arrest warrant may cause States to bring complementarity challenges before these are fully prepared. In the words of one author: “If the objective of the exercise is to address impunity, the fact that an offender is being held accountable for serious crimes should satisfy the requirements of international law.”49 Judge Anita Usacka, in her Dissenting Opinion in the case of Saif Al-Islam, made important observations about the admissibility test: “The problem lies with the test itself, which, contrary to the express language of the chapeau of article 17(1) of the Statute, disregards the principle of complementarity … the Court will come to wrong and even absurd results, potentially undermining the principle of complementarity and threatening the integrity of the Court.”50 Judge Usacka argued that if the test prompted Libya to bring narrower charges against Saif Al-Islam than it intended, this would be harmful for Libyan v­ ictims and that they would be better served by domestic investigations and prosecutions.51 She proposed that “conduct” be given a much wider definition and should not be construed so narrowly as to mean the same material and mental elements as the Court has charged.52 Yet the “same accused same conduct” test has been repeatedly upheld in subsequent jurisprudence, albeit softened to “substantially the same ­conduct.”53 Mégret and Samson observe that “it is important to remember 49 50

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Williams and Schabas. Commentary on the Rome Statute of the ICC, p. 616. Separate opinion of Judge Anita Usacka, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Appeals Chamber Judgment on the appeal of Libya against the decision of PreTrial Chamber I of May 31, 2013, entitled “Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi,” ICC-01/11-01/11 OA4, May 21, 2014, paras. 47–48. Ibid., para. 55. Ibid., para. 58. Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of May 30, 2011, entitled “Decision on the Application of the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” ICC-01-09-02/11-274, May 30, 2011.

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that depriving a state of its criminal jurisdiction over cases that it has a perfectly legitimate case to try under ordinary principles of jurisdiction, particularly ones that it will (to put it mildly) feel strongly about, is an exorbitant prerogative.”54 Stahn and other scholars have therefore argued for “qualified deference,” giving more leeway to domestic jurisdictions while at the same time limiting possible manipulation of the Court.55 4  Admissibility Dynamics: Amicable or Adversarial? In spite of attempts to the contrary by the OTP, the relationship between national jurisdictions and the Court often developed into an adversarial one, which at times limited opportunities for positive cooperation. While ­complementarity is conceived as “largely based on incentives, and ‘carrots and sticks’ rather than coercion,”56 this is not reflected in practice. The situations of Kenya, Libya, and Uganda all resulted in litigation on admissibility and in adversarial relationships with the political leadership. This limited the possibility to pursue cases either at the ICC or domestically. (It should be mentioned that in all these examples, the political leadership may be implicated in Rome Statute crimes.) While the Ugandan authorities were originally supportive to the ICC while it was investigating the LRA, this changed during the Juba peace negotiations with the LRA in 2006–2008, when President Museveni took the position that the ICC arrest warrants ought to be lifted. When the International Crimes Division was established in Uganda, the Pre-Trial Chamber itself initiated an admissibility assessment under Article 19(1) of the Statute. The Ugandan government submitted that: “The War Crimes Division of the High Court is meant to supplant the work of the International Criminal Court, and accordingly those individuals who were indicted by the International Criminal Court will have to be brought before the War Crimes Division of the High Court for Trial.” Nonetheless, the Pre-Trial Chamber found that Uganda was in a continued state of inaction and that the case remained admissible. The Appeals Chamber upheld this finding.57 Cooperation between the ICC and the ICD exists but is limited.58 54

55 56 57 58

Frederic Mégret and Marika Giles Samson. Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials. Journal of International Criminal Justice, Vol. 11 (2013) p. 578. Secretariat of the Assembly of States Parties to the Rome Statute of the International Criminal Court, The Hague Working Group, Complementarity, June 24, 2020. Stahn. Taking Complementarity Seriously, p. 250. Prosecutor v. Kony et al., Decision on the Admissibility of the Case under Article 19(1) of the Statute, ICC-02/04-01/05-377, March 10, 2009. Interview with the late Joan Kaghezi, Kampala, February 2014. The Head of the Prosecutions Division and the Head of the Police team made working visits to The Hague of several weeks. The ICD Prosecution and OTP shared evidence in non-ICC cases and also shared best

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Museveni has displayed a great deal of antipathy to the ICC. He became one of the most vocal leaders of the AU opposition against the Court, after arrest warrants were issued against Al-Bashir and Kenyatta. He invited Al-Bashir to Uganda and attended Kenyatta’s inauguration, where he said: I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution … What happened here in 2007 was regrettable and must be condemned. A legalistic process, especially an external one, however, cannot address those events.59

On the other hand, the Ugandan authorities supported the surrender of Dominic Ongwen to the ICC in February 2015. They issued a statement to say that they supported his trial at the ICC rather than the ICD due to the “cross-border nature of the crimes.”60 The government is giving full cooperation in the case. At the same time, President Museveni continued to attack the ICC: At his inauguration in 2016, he referred to the ICC as a “bunch of useless people,” prompting Western Ambassadors to walk out.61 In Kenya, the Prosecutor first attempted to entice cooperation by ­supporting the creation of a Special Tribunal for Kenya.62 When Kenya failed to establish a Special Tribunal, the Prosecutor announced on September 30, 2009 that he favored a three-prong approach, consisting of the ICC prosecuting those bearing the greatest responsibility; national ­proceedings to target secondary perpetrators; and other reforms plus the Truth, Justice and Reconciliation Commission to address underlying causes of the violence.63 He then requested a proprio motu investigation to be opened on November 26, 2009, which was approved by the Pre-Trial Chamber on March 31, 2010.

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practices. The shared evidence raised some technical concerns, in that transcripts of ICC interviews are not necessarily admissible in Uganda. The fact that some persons are ICC witnesses can be a complicating factor because the ICC instructs them not to talk to anybody else. However, some of the information on LRA command structures gathered by the ICC was useful to Uganda prosecutors. International Justice Monitor, Tom Maliti, Ugandan President Attacks ICC During Kenyatta Inauguration, April 9, 2013. Statement by the government to the public on the Dominic Ongwen Case at the ICC: www .mofa.go.ug/data/dnews/139/Statement-by-the-Government-to-the-public-on-the-DominicOngwen-case-at-the-International-Criminal-Court. The Guardian, Walkout at Ugandan President’s Inauguration over ICC remarks, May 12, 2016. Stahn. Taking Complementarity Seriously, p. 259. Chistine Alai and Njonjo Mue. Complementarity in Kenya, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed M. El-Zeidy. Cambridge University Press (2011) p. 1228.

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Originally, the government of Kenya took a cooperative position to the ICC. The Prosecutor issued summons for the six accused, all of whom attended confirmation of charges hearings in person. Kenya then filed an admissibility challenge under Article 19 in March 2011 but failed to demonstrate that it was acting against the six accused. Its argument that judicial reforms should be taken to constitute evidence of investigation or prosecution for the purposes of Article 17(1) was rejected by the ICC.64 The cases against the six accused proceeded. Since that time, the relationship with Kenya dramatically deteriorated, during the course of the trials of President Kenyatta and Vice President Ruto. The relationship between the post-Revolution Libyan authorities and the Prosecutor, which began as amicable, soon soured over the admissibility of cases. Originally, the National Transitional Council did whatever it could to facilitate the evidence gathering of the OTP. After the capture of Saif Al-Islam, it became obvious that the Libyans intended to conduct their own trials. In the words of one of their spokespersons at the time: We will not accept that our sovereignty be violated like that. We will put him on trial here. This is where he must face the consequences of what he has done. We will prove to the world that we are a civilized people with a fair justice system. Libya has its rights and its sovereignty, and we will exercise them.65

On April 30, 2012, Libya filed an admissibility challenge before the ICC, arguing that it had opened an investigation against Saif Al-Islam and should be allowed to proceed. On May 31, 2012, the Pre-Trial Chamber ruled on the admissibility challenge in the case, finding it admissible.66 The Appeals Chamber upheld this on May 21, 2014. In contrast, on October 11, 2013, in 64

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Thomas Obel Hansen. Prosecuting International Crimes in Kenyan Courts? Paper presented at “The Nuremberg Principles 70 Years Later: Contemporary Challenges,” November 21, 2016. Words of Col. Ahmed Bani cited in Chulov, Martin. Libya Insists Saif Al-Islam Should Be Tried at Home, The Guardian, October 29, 2011, quoted in Mark Kersten, Justice After the War: The ICC and Post-Gaddafi Libya, available online. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Public Redacted Decision on the Admissibility of the case against Saif Al-Islam, ICC-01/11-01/11, May 31, 2013. The ICC considered that Libyan authorities were unable to carry out the proceedings against Saif Al-Islam for three reasons. First, it considered that the Libyan government could not secure his transfer from Zintan into state custody. Second, it judged the judicial system unable to obtain witness testimonies, exercise full control over detention facilities, and provide adequate witness protection. Third, it saw significant impediments to securing legal representation for Saif Al-Islam, given the security situation in Libya and the risks faced by lawyers representing former government figures. The Trial Chamber concluded that it had not been

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deference to domestic proceedings, the ICC decided that the case against Abdullah Al-Senussi was inadmissible. The Pre-Trial Chamber found that the Libyan investigations against Al-Senussi include the same conduct as was being investigated by the ICC. It concluded that Libya is willing to bring him to trial, in spite of the fact that he remained unrepresented, and in spite of the poor security situation, the absence of witness protection, and the inability of the government to exercise control over certain detention facilities. The decisive factor that differed from the Saif Al-Islam case was that the Libyan authorities had custody over Al-Senussi. Saif was being held by a militia in Zintan. Also, the Libyan authorities had gathered far more evidence against Al-Senussi than against Saif Al-Islam.67 In spite of the adversarial litigation around admissibility, and the failure to hand over any suspects, the ICC continued to cooperate with the Libyan authorities. In her remarks to the Security Council in November 2013, the Prosecutor announced that she had signed a “burden-sharing” Memorandum of Understanding with the Libyan government, “to ensure that individuals allegedly responsible for committing crimes in Libya as of 15 February 2011 are brought to justice either at the ICC or in Libya itself.”68 But so far, the scope of this arrangement seems to be mainly restricted to investigating Qadhafi era officials, as evidenced by the arrest warrant against Al-Tuhamy Mohamed Khaled issued on April 24, 2017. More recently, the Prosecutor has said cooperation was extended to cases involving illegal ­migration.69 In August 2017, the Prosecutor issued an arrest warrant against Saiqa Commander Mahmoud Al-Werfalli, but General Haftar has refused

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able “to discern the actual contours of the national case against Saif Al-Islam so that Libya had not demonstrated that that the domestic investigation covers the same case that is before the Court, a legal requirement in order to succeed at an admissibility challenge before the ICC. It also noted that Libya, assisted by national governments and regional and international organizations, had deployed significant efforts to rebuild institutions, restore the rule of law and to enhance capacity, with respect to transitional justice in the face of extremely difficult circumstances.” Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Public Redacted Decision on Admissibility of the Case against Abdullah Al-Senussi, ICC-01/11-01/11, October 11, 2013. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011) Mrs. Fatou Bensouda, Prosecutor of the International Criminal Court, New York, November 14, 2013. The OTP will prioritize those who are outside of the territory of Libya, whereas Libyans will prioritize those inside of its territory. The MoU also covers information sharing, subject to confidentiality and witness protection. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011). Mrs. Fatou Bensouda, Prosecutor of the International Criminal Court, New York, November 14, 2013. Several human traffickers have also been the subject of UN or US sanctions.

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to hand him over to the ICC.70 In February 2018, Al-Werfalli reportedly went to hand himself in, but he returned home, encouraged by protests in his favor. Protesters reportedly held signs that read: “We are all Major Mahmoud Al-Werfalli.”71 The OTP maintains better relations with the General National Authority in Western Libya and in 2020, carried out two missions to ­investigate mass graves in Tarhuna and Tripoli.72 In short, all these examples demonstrate a generally adversarial relationship between national authorities and the ICC, albeit that in some of these examples, national political figures themselves were among the accused. B  Complementarity and Rule of Law Challenges 1  Complementarity Cannot Fix Systemic Problems in Domestic Systems Complementarity is narrow in scope and cannot claim to address the systemic problems of domestic legal systems in countries where Rome Statute crimes have occurred. The scope of these problems is described by the SecretaryGeneral of the United Nations: Helping war-torn societies re-establish the rule of law and come to terms with large-scale past abuses, all within a context marked by devastated institutions, exhausted resources, diminished security and a traumatized and divided population, is a daunting, often overwhelming task.73

National legal systems in countries with ongoing conflict or emerging from conflicts are often in a chronic state of disrepair. In contexts as varied as Afghanistan, Colombia, and Libya, countries face the dilemma of being called on to deliver justice in a potentially large number of cases at a time when the justice system is struggling to recover from decades of dictatorship or conflict, or both. Some countries did not have developed legal systems in the first place. 70 71

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The Libya Observer. ICC Wanted Killer Al-Werfalli Defies Arrest Warrant and Executes 5 Prisoners, September 7, 2017. Al Jazeera, Libya Commander Wanted by ICC Hands Himself in, February 8, 2018. Reuters, Libyan Commander Wanted by ICC Freed after Protest, February 8, 2018. Al-Werfalli was killed in Benghazi by unknown gunmen on March 24, 2021. Statement of the ICC Prosecutor to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), November 10, 2020. Secretary-General’s Report. The Rule of Law and Transitional Justice in Conflict and Postconflict Society, S/2004/616, August 23, 2004 at para. 3: “It requires attention to myriad deficits, among which are a lack of political will for reform, a lack of institutional independence within the justice sector, a lack of domestic technical capacity, a lack of material and financial resources, a lack of public confidence in government, a lack of official respect for human rights, and more generally, a lack of peace and security.”

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In Colombia and Libya, a significant number of alleged perpetrators of high and low levels are in custody. In other cases, such as Afghanistan, impunity is widespread, yielding a very different set of challenges. Afghanistan has been in a continuous state of conflict and insecurity, which poses big challenges to the legal system. To illustrate, Afghanistan’s legal system remained weak in spite of fifteen years of rule of law programming on behalf of the national authorities assisted by the international community to strengthen it as part of a general state-building strategy. In 2010, the International Crisis Group said that Afghanistan’s justice system was in a “catastrophic state of disrepair,” with “many courts inoperable,” and “insecurity, lack of proper training and low salaries” driving judges and prosecutors from their jobs.74 Corruption is another endemic factor. The Taliban operated a parallel justice and taxation system in areas under its control. Many Afghans turned to traditional nonstate dispute resolution provided by shuras and jirgas.75 Afghanistan remained bottom of the list (175th) on Transparency International’s corruption perception index, a place it shares with North Korea and Somalia.76 Afghanistan produces 90% of the world’s opium. The US and NATO considered drug traffickers as combatants because they provide funding to the Taliban.77 In 2010, the executive director of UNODC said that drugs and bribes combined corresponded to about half of the country’s illicit GDP.78 Insecurity can specifically target justice actors. Throughout the years, the Taliban committed many attacks on the judiciary. The Supreme Court itself was targeted in a Taliban attack in June 2013, in a suicide bombing that killed seventeen. Hartmann, a rule of law practitioner with many years of experience in Afghanistan, concluded: The international community has failed to help establish the necessary preconditions for the long-term legal and political development necessary to make the justice system a source of legitimacy, predictability and protection for the wider society. Among these, none is more fundamental, as has belatedly been recognized, than checking corruption and ending impunity for the powerful.79 74 75 76 77 78 79

International Crisis Group. Reforming Afghanistan’s Broken Judiciary, November 17, 2010. The USIP has estimated that up to 80% of civil and criminal disputes are handled by these mechanisms. See Transparency International: cpi.transparency.org/cpi2013/results/. Michael Hartmann. Casualties of Myopia, in The Rule of Law in Afghanistan: Missing in Inaction, edited by Whit Mason. Cambridge University (2011) p. 176. Ibid., p. 175. Ibid., p. 172.

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Broader rule of law challenges also exist in other situation countries. With the shrinking of political space in Uganda, the judiciary itself has come under increasing political pressure.80 Human rights violations such as arbitrary detentions, torture, and extrajudicial killing are on the rise in Uganda. NGOs and human rights defenders have come under pressure with new restrictive laws, as has the political opposition. These trends worsened around the 2021 elections. Libya’s justice system after the Revolution in 2011 was impeded by the volatile security situation. While almost all judges and prosecutors initially reported back to duty, in most parts of the country, judges are reluctant to hold regular court sessions, except in family and civil law cases. Prior to the outbreak of violence in 2014, the east of Libya (Benghazi and Derna) saw numerous physical attacks on court buildings as well as assassinations of prominent judges and prosecutors. In February 2014, the first pro-Qadhafi General Prosecutor, Abdel-Aziz Al-Hassadi, and a main interlocutor with the ICC, was assassinated in Derna. The enormous challenges that exist at the domestic level require a response that goes far beyond complementarity and requires involvement of development actors such as the United Nations.81 Supporters of complementarity often lack experience in international development.82 While some of the specialized jurisdictions created to pursue complementarity, described below, may seek to create “islands of competence” within these faulty legal systems, the limits of the complementarity approach become clear in situations where the rule of law is highly tenuous, such as in Libya and Afghanistan. 2  Complementarity’s Distorting Effect Scholars sometimes speak of the “catalyzing” effect of complementarity, focusing on the fact that the ICC may serve to encourage criminal trials 80

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International Bar Association. Judicial Independence Undermined: A Report on Uganda, September 2007. In March 2007, elite government forces known as the Black Mambas invaded the trial of opposition leader, Dr. Kizza Besigye, charged with terrorist offences in relation to the LRA. In 2000, the United Nations published a seminal report on peace operations that concluded that “where peace-building missions require it, international judicial experts, penal experts and human rights specialists, as well as civilian police, must be available in sufficient numbers to strengthen rule of law institutions.” Report of the Panel on United Nations Peace Operations, A/55/305-S/2000/809, August 21, 2000, at para 39. The focal points on complementarity and the ICTJ convened several meetings at Greentree in order to foster links between the supporters of the ICC and the development community. Reports of the Greentree meetings are at http://ictj.org/sites/default/files/ICTJ-GlobalComplementarity-Greentree-2010 -English.pdf.

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that may otherwise not have taken place. But complementarity tends to narrow the debate to focus on the fate of a few individuals who may become the subject of arrest warrants. Complementarity can therefore have a “distorting effect”: It puts the focus on a very limited number of cases while ignoring the general context. In addition, the Court’s “own ability to hold large numbers of trials undercuts the incentive for states to hold their own trials.”83 This distortion is demonstrated in the Libya case. The focus of the international community after the Revolution was exclusively on Saif Al-Islam and Abdullah Al-Senussi, while a large number of other senior regime figures were also in custody. This prompted the Minister of Justice to ask why the attention of the international community is only on two out of 7,000 detainees.84 Similarly in Uganda, a conflict that resulted in mass displacement over two decades, the focus was reduced to a discussion of what should happen to the five LRA leaders subject to arrest warrants. In Kenya, a great deal of attention focused on the arrest warrants against Kenyatta and Ruto, attention that could have gone to the plight of the victims of post-election violence.85 The Court can therefore serve to distract from broader justice challenges or from alternative measures that benefit victims. 3  Is Complementarity an Illusion? Is It in Fact Parallelism? Proponents of the ICC often argue that the Court is necessary precisely because domestic legal systems are so flawed.86 Systemic problems are often cited as evidence that national systems are not capable to conduct their own trials.87 The Court and national systems are therefore conceived of as symbiotic: where 83 84

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David Wippman. Exaggerating the ICC. Cornell Law School Research Paper No. 04–018, available online. After Tripoli fell, hundreds of perceived Qadhafi loyalists, including former members of the regime and security apparatus, were systematically rounded up, in most cases without arrest warrants. Brigades arrested over 8,000 persons throughout Libya and detained them both in prisons and informal detention centers throughout the country. Those arrested included perceived Qadhafi supporters; suspected mercenaries; and many Tawergha accused of atrocities in Misrata; but they also include senior members of the former regime. Many detainees were kept in poor conditions, mistreated, and denied access to medical facilities or a legal process. Torture has been particularly prevalent in Misrata, but numerous cases have also been uncovered by the United Nations in Zawiya, Zintan, and Tripoli. UNSMIL and OHCHR, Torture and Deaths in Detention in Libya, October 2013. See Chapter 3. See Jonathan O’Donohue and Sophie Rigney: The ICC Must Consider Fair Trial Concerns in Determining Libya’s Application to Prosecute Saif Al-Islam Gaddafi Nationally, EJILtalk .org, June 8, 2012. Ibid.

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the one fails, the other steps in. This creates the illusion that the Court can “complement” or deliver when national systems cannot. In practice, however, the ICC is often confronted with exactly the same challenges, due to its reliance on national authorities for functions ranging from uncovering evidence, to witness protection, to arresting the accused. In fact, the ICC often inherits the weaknesses of domestic systems. The main Achilles’ heel of the ICC is its lack of enforcement powers and its reliance on state cooperation. State cooperation can be hindered by either unwillingness or inability. Where either of these factors prevent national jurisdictions from moving forward with genuine investigations or prosecutions, it will be equally difficult for the Court to make significant advances. It may therefore be more appropriate to speak of “parallelism” than of complementarity in most situations. Two prominent examples of unwillingness are the two Security Council referrals for Sudan and Libya. Neither has resulted in those named in arrest warrants being surrendered to the ICC, with the exception of the Darfurian rebels. In both of these cases, the Court is prevented from moving forward, in spite of bringing pressure to bear via the Security Council or other political avenues. While the involvement of the Court in these situations resulted in arrest warrants such as those against Al-Bashir, Saif Al-Islam, or Al-Werfalli, it is not clear whether these cases will ever end up in The Hague. (Although President Omar Al-Bashir was overthrown in 2019, Sudanese authorities have not yet handed him over to the ICC.) But inability also brings pitfalls. Inability can arise when a country itself has limited abilities to enforce law in its own territory, as can be the case in States that are in conflict. For instance, the Ugandan referral was prompted in large part by the fact that Uganda was unable to arrest persons who might bear the greatest responsibility for the relevant crimes.88 However, years after the issuance of arrest warrants and in spite of extensive Uganda People’s Defence Forces (UPDF) operations on Congolese soil, direct assistance to the UPDF by US military advisors, and an increased public campaign against the LRA by Invisible Children over the years, the ICC has not been able to orchestrate the arrest of Joseph Kony. Dominic Ongwen voluntarily surrendered to the Central African Authorities, with the technical assistance of US special forces and the UPDF, with the purpose of being transferred to the ICC.89 88 89

Schabas. Complementarity in Practice, p. 10. Pre-Trial Chamber II, Situation in Uganda, Confidential Report of the Registry on the Voluntary Surrender of Dominic Ongwen and His Transfer to the Court, ICC-02/04-01/05, January 22, 2015.

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State institutions themselves may render the enforcement of arrest warrants, or the effective protection of witnesses, impossible. In the aftermath of the post-election violence in Kenya, a main reason why a Special Tribunal for Kenya was not established is because of the direct role of the police in PostElection Violence in Kenya (PEV), which gave rise to fears about effective witness protection.90 The Waki Commission found widespread problems with the Kenyan police, including their involvement in PEV.91 Fears about the safety of witnesses also meant that the Court was not able to hold in situ hearings in Kenya.92 Predictably, this same inability to protect witnesses has seriously hampered the work of the ICC. The absence of basic security in countries in conflict also hampers the enforcement powers of governments. In Afghanistan, the ICC cited the security situation and difficulties of conducting in-country investigations in its reports on preliminary examinations, to account for lack of progress.93 The Pre-Trial Chamber also cited security concerns in its decision not to open an investigation. But the same conditions inhibited Afghanistan’s own efforts in seeking accountability, at least in respect of the Taliban. In situations of inability, the ICC would best serve its complementary purpose if it were able to act as an incubator of domestic proceedings. Scholars refer to this as “catalyzing effect.”94 However, the ambitions of the ASP to allow the Court to develop into such an incubator are limited by resource constraints. Other factors serve as further inhibitors, including the Court-centric conception of complementarity; the Court’s role as a “case-snatcher”; its often adversarial relationships with states under its scrutiny; its inability to address the broader rule of law challenges; and its focus on a small number of individual cases, which has a distorting effect. The same factors that impair the progress of national proceedings, be it the inability to arrest, challenges due to

90 91

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Alai and Mue. Complementarity in Kenya, p. 1232. Open Society Institute, Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya (2011) p. 90. I traveled to Kenya in 2008 to advise on the establishment of the Special Tribunal. Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision of the Plenary of Judges on the Joint Defence Application for a Change of Place where the Court Shall Sit for Trial in the case of ICC, ICC-01/09-01/11-875, August 26, 2013. OTP’s Report on Preliminary Examinations, 2015, para. 133: “In October 2015, the Office carried out a security assessment mission to Kabul. To date, however, the Office’s planned mission for admissibility assessment purposes has been frustrated by the non-permissive situation in the country.” Sarah Nouwen. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press (2013).

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the security situation, or absence of political will, will also hamper the ICC. As concluded by Nouwen: No technical assistance can overcome unwillingness and even in situations of inability the question arises whether the ICC is the most appropriate institution for the facilitation of domestic proceedings and whether the Court should be involved in such matters in the first place. In situations of absolute inability, the ICC cannot remedy the essential obstacles to domestic proceedings.95

In this respect, complementarity creates an illusion. It promises that the Court will deliver on justice if countries do not, but often, the Court may be unable to do so for the very same reasons. C  The Blindness of Complementarity vis-à-vis Due Process Complementarity is often seen as a tool to increase the quality of proceedings at the domestic level, according to what Kevin Heller referred to as the “due process thesis” of complementarity.96 While many would agree that it is desirable for a successful challenge to admissibility to require the observance of basic human rights standards, the real question is whether the Rome Statute requires it. While supporters of the Court would like the ICC’s legal framework to promote procedural fairness in domestic proceedings, the admissibility framework makes this a questionable proposition. The “due process theory” in relation to complementarity requires a particular interpretation of the Rome Statute. Proponents argue that references in Article 17(1) to genuineness, unwillingness, or ability, all require States to observe fairness principles. Others interpret the reference in Article 17(2) to due process standards to extend to national proceedings. Some argue that the reference to “independence and impartiality” in Article 17(2) requires the observance of due process standards. Supporters of the due process theory also cite Article 21 of the Statute, which states, “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.” Some argue that this means that domestic proceedings held under Article 17 must also meet international human rights standards. International human rights organizations are strong proponents of the “due process theory” and argue that domestic systems ought to implement not just substantive provisions, but also “principles of criminal responsibility” 95 96

Ibid., p. 401. Kevin Heller. The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process. Criminal Law Forum (2006).

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as found in Part 3 of the Rome Statute; procedural requirements; elimination of immunities; provision on victim participation and reparations; and abolition of the death penalty.97 Amnesty International argued in the context of the Juba Peace Agreement in Uganda: “The International Criminal Court may not defer to national courts unless it is satisfied that the proceedings are consistent with an intention to bring those responsible to justice, the suspect will receive a fair trial and that the suspect will not be subjected to torture or other cruel, inhuman or degrading treatment.”98 Variations of the due process theory include the argument that states should provide for victim participation or reparations as part of complementarity. As stated by the Avocats Sans Frontières (ASF) in the context of Uganda: “Since Uganda is a state party to the Rome Statute, its domestic legislation should reflect its international obligation within the Statute to have applications for reparations in the ICD.”99 Some argue that the possibility of the application of the death penalty should render the case inadmissible.100 Supporters of this view cite the Appeals Chamber dictum in Lubanga that “Human rights underpin the Statute; every aspect of it, including the exercise of jurisdiction.”101 An early expert group paper expressed a similar view: “Of course, although the ICC is not a ‘human rights court’, human rights standards may still be of relevance and utility in assessing whether the proceedings are carried out genuinely.”102 However, the due process theory, desirable though it may be, is not supported by a plain reading of the text of Article 17 of the Statute. As remarked by Mégret and Samson, “to apply this provision as a basis for the Court to insist upon admissibility is a considerable stretch.”103 Heller argues a plain reading gives rise to a different interpretation.104 For instance, the requirement “independence 97 98 9 9 100

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Amnesty International Checklist for Effective Implementation; HRW, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute (2001). Amnesty International. Ugandan Agreement and Annex on Accountability and Reconciliation Fall Short of a Comprehensive Plan to End Impunity. March 1, 2008. ASF. Evaluation of Knowledge and Expertise in International Criminal Justice in Uganda, Baseline Survey Report, November 2011. The Uganda ICC Act 2010 makes no specific provision on whether the death penalty should apply or not. JLOS/PILPG National Consultations on the International Crimes Bill, August 6–7, 2009, Entebbe. Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of October 3, 2006, ICC-01-04-01/06772, December 14, 2006, para. 37. Informal expert paper, The Principle of Complementarity in Practice, ICC-OTP (2003), para. 23. Mégret and Samson. Holding the Line on Complementarity in Libya, p. 575. Heller. The Shadow Side of Complementarity.

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and impartiality” must be considered in conjunction with whether a proceeding is “being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.” Similarly, the reference to due process in the chapeau of Article 17(2) should not be read as a separate requirement. Furthermore, there is nothing in the explanations of genuineness, willingness, or ability in the Statute that refers to a due process requirement.105 Holmes in his commentary notes that “many delegations believed that procedural fairness should not be a ground for the purpose of defining complementarity.”106 Heller examines the drafting history of the Rome Statute and notes that Italy tried to introduce a clause that would require the Court to consider whether proceedings were “conducted with full respect for the rights of the accused” but that delegations decided against it.107 Heller convincingly argues that a textual interpretation of Article 17 (or the remainder of the Statute) does not support a due process theory.108 On inability, the Rome Statute sets a very low threshold, namely that of examining whether “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or is otherwise unable to carry out its proceedings.”109 This means that the Court gives significant deference to national legal systems: “the standard for showing inability should be a stringent one, as the ICC is not a human rights monitoring body, and its role is not to ensure perfect procedures and compliance with all international standards.”110 This issue was clarified in the Libya admissibility decisions.

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109 110

For an opposite view, see Jonathan O’Donohue and Sophie Rigney, The ICC Must Consider Fair Trial Concerns In Determining Libya’s Application to Prosecute Saif Al-Islam Gaddafi Nationally, EJILtalk.org, June 8, 2012: “Safeguarding the rights of the accused is at the heart of a functional legal system. In the absence of such protection, there simply is no ability to carry out proceedings which deliver justice.” John T. Holmes. The Principle of Complementarity, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results, edited by Roy S. Lee, Kluwer Law International (1999) p. 50. Heller. The Shadow Side of Complementarity citing Holmes, The Principle of Complementarity, p. 50. Heller in fact argued that there is a “shadow side” of complementarity: “Complementarity is thus a double-edged sword. On the one hand, ICC deferrals will reflect the willingness of States to take the lead in bringing the perpetrators of serious international crimes to justice. On the other hand, those deferrals will expose perpetrators to national judicial systems that are far less likely than the ICC to provide them with due process, increasing the probability of wrongful convictions.” Heller. The Shadow Side of Complementarity. Rome Statute, Article 17(3). Group of Experts, The Principle of Complementarity in Practice, ICC OTP, 2003.

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1  The Libyan Admissibility Decisions The consequence of not accepting a due process theory of admissibility is that the ICC essentially has to turn a blind eye to unfairness in trials under the Rome Statute framework, if these meet the lower standards of admissibility. This is demonstrated in the Libya admissibility decisions.111 On May 16, 2011, the Prosecutor of the ICC requested the issuance of arrest warrants against Muammar Qadhafi, Abdullah Al-Senussi, and Saif Al-Islam Qadhafi for “crimes against humanity,” including persecution and murder allegedly committed from February 15, 2011, until at least February 28, 2011. The ICC’s Pre-Trial Chamber issued the arrest warrants on June 27, 2011. After the death of Qadhafi on October 20, 2011, Saif Al-Islam and Al-Senussi remained at large until their capture. Saif Al-Islam was captured on November 19, 2011, near Sabha, Libya, and Abdullah Al-Senussi was caught on March 17, 2012, at Nouakchott airport in Mauritania. On September 5, 2012, Abdullah Al-Senussi was extradited to Libya from Mauritania. As described, the ICC Prosecutor paid a visit to Libya in November 2011, a month after Qadhafi’s death, to persuade the Libyans to surrender Saif Al-Islam to the ICC, but the Libyan authorities remained adamant that they wished to try him in Libya. In February 2012, the Libyan General Prosecutor’s Office released a directive to indicate that it would prioritize the trials of senior regime figures, pursuant to advice given by UNSMIL. It authorized a special team of investigators to start working on those cases.112 The ICC Prosecutor said in the Security Council on May 8, 2013 that if Libya can conduct fair trials of alleged perpetrators, these could constitute Libya’s “Nuremberg moment.” The senior Qadhafi-era figures thus appeared before the Tripoli Court of Assize. A fierce international debate erupted on whether Libya would be able to guarantee a fair trial. For instance, O’Donohue and Rigney argued that a plain reading of Article 17 of the Rome Statute, the interpretation of Article 21(3), and a teleological approach all confirm that a case will not be admissible if judges are not satisfied that the fair trial rights of the accused will be respected within a domestic system.113 The authors argue that genuineness 111 112 113

See Mark Kersten. Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Oxford University Press (2016) pp. 145–55. The author had several meetings with this ICC Prosecutor and team of investigators in Libya during 2012–2013 in her capacity as UNSMIL’s transitional justice advisor. Jonathan O’Donohue and Sophie Rigney. The ICC Must Consider Fair Trial Concerns in Determining Libya’s Application to Prosecute Saif Al-Islam Gaddafi Nationally, EJILtalk.org, June 8, 2012.

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requires a certain quality of the proceedings, including “ensuring the rights of the accused.”114 However, the Prosecutor himself stated: “We are not checking the f­ airness of the proceedings. We are checking the genuineness of the proceedings.”115 The Pre-Trial Chamber in the case of Abdullah Senussi further clarified the issue: The Chamber emphasizes that alleged violations of the accused’s procedural rights are not per se a ground for a finding of unwillingness or inability under article 17 of the Statute. In order to have a bearing on the Chamber’s determination, any such violation must be linked to one of the scenarios provided for in article 17(2) or (3) of the Statute.116

Since that, the Appeals Chamber put the matter to rest when it upheld the Pre-Trial Chamber decision in the case of Abdullah Al-Senussi: [T]he Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights … Had this been the intention behind article 17, the Appeals Chamber would have expected this to have been included expressly in the text of the provision … Other less extreme instances may arise when the violation of the rights of the suspect are so egregious that it is clear that the international community would not accept that the accused was being brought to any genuine form of justice. In such circumstances, it is even arguable that a State is not genuinely investigating or prosecuting at all. Whether a case will ultimately be admissible in such circumstances will necessarily depend upon its precise facts.117

Later on in the judgment, the Appeals Chamber reiterated that admissibility could only be reconsidered if “violations of the rights of the suspects are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect.”118 As observed by Mégret: “The ICC’s complementarity scrutiny is quite far removed from a 114 115 116

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Ibid. Ibid., citing Luis Moreno Ocampo. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Public redacted Decision on the Admissibility of the Case against Abdullah Al-Senussi, October 11, 2013, ICC-01/11-01/11, para. 235. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of the Pre-Trial Chamber I of October 11, 2013, entitled “Decision on the Admissibility of the Case against Abdullah Al-Senussi,” July 24, 2014 at paras. 219, 230. Ibid., at para. 230.

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human rights compliance analysis.”119 He concluded: “just because the ICC does not exercise jurisdiction over cases on grounds of due process violations does not mean that those accused have nowhere to turn. Rather, they should be encouraged to seek human rights remedies both at home and, where applicable, internationally.”120 These decisions were made before the Libyan national proceedings had been concluded. The conclusion of those proceedings has given rise to renewed debate whether the admissibility decision in the case of Al-Senussi should be reviewed under Article 19(10) of the Statute, which states that “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which a case had previously been found inadmissible under article 17.” Counsel for Saif Al-Islam mounted another challenge to admissibility, which was dismissed first by the Pre-Trial Chamber, on April 5, 2019, and subsequently, by the Appeals Chamber in March 2020. The Appeals Chamber found that the judgment against Saif Al-Islam had been rendered in absentia and could not be considered final. Also, the Appeals Chamber found that the House of Representatives Amnesty law of 2015 (Law No. 6) was not applicable to the crimes for which Saif Al-Islam was convicted by the Tripoli Court.121 2  Libya’s National Proceedings against Senior Qadhafi-Era Officials The Libyan national trials will be described in some detail here, as they have generally not been scrutinized by scholars. On March 24, 2014, the General Prosecutor opened joint proceedings against thirty-seven senior regime figures for a wide variety of crimes committed during the revolution in 2011. Among the accused were Saif Al-Islam Qadhafi and Abdullah Al-Senussi, but the trial also included a number of other senior accused well known in the Libyan context. The charges were of a wide variety, including crimes not recognized by the Rome Statute: the murdering and bombardment of civilians during the 2011 revolution, including through the use of 119

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Frederic Mégret. Too Much of a Good Thing? Implementation and the Use of Complementarity, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed M. El-Zeidy (2014) p. 385. Mégret and Samson. Holding the Line on Complementarity in Libya, p. 578. Prosecutor v. Saif Al-Islam Gaddafi, Judgment on the appeal of Mr. Saif Al-Islam Gaddafi against the decision of Pre-Trial Chamber I entitled “Decision on the “Admissibility Challenge by Dr. Saif Al-Islam Gaddafi Pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute” of April 5, 2019, ICC-01/11-01/11-695, March 9, 2020.

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fighter jets; decisions to squash and kill demonstrators in Tripoli and prevent them from reaching Green Square at any cost; murder and bombing of the eastern region; the detentions of thousands of Libyans without trial, accused of opposing the regime; recruiting mercenaries from Africa, and giving them Libyan citizenship; trafficking and distributing illicit drugs and psychotropic substances among soldiers and volunteers; corruption or embezzlement of public funds by using state funds without detailed invoices from suppliers; and organized sexual violence as a means to suppress the revolution, carried out against men and women. The charges also included “starting a civil war in the country, undermining national unity, dividing the Libyan citizens”122 and “publicly humiliating the Libyan people” by describing them as “rats and traitors” or “dirty groups, agents of Israel and America.”123 All these acts (some of which may not constitute crimes as such) were charged under the Penal Code of Libya, as well as particular additional laws. The Justice Minister, Salah Marghani, gave assurances that the trial would be fair: “How we will be judged in history is how we dealt with the Qhadafi regime … We will not have Mickey Mouse trials under this government—we had Mickey Mouse trials in the past and we saw the results.”124 Nonetheless, the trial ultimately fell short of international fair trial standards. On July 28, 2015, after a trial that lasted over a year, the Court of Assize in Tripoli issued its judgment in the case of thirty-seven former members of the Qadhafi regime, in relation to charges linked to the February 17 Revolution. Nine defendants were condemned to death by firing squad (including Saif Al-Islam and Abdullah Al-Senussi); eight other defendants received life imprisonment; fifteen received sentences from five to twelve years, and four were acquitted. Saif Al-Islam Qadhafi was tried in absentia, which means that he will be entitled to a retrial if arrested.125 The Libyan proceedings suffered from an application of antiquated and flawed domestic law to a complex criminal case. It is difficult to discern whether the international scrutiny by the ICC and others, including the United Nations, led to improvements to the process which might have otherwise been worse.126

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UNSMIL/OHCHR Report on the trial of thirty-seven former members of the Qadhafi regime (Case 630/ 2012), February 21, 2017, p. 19. The author was one of the main authors of this report. Ibid., p. 20. Christopher Stephen. Judicial Performance in the Midst of Chaos, International Justice Tribune No. 157, April 16, 2014. Ibid. The author was the UNSMIL advisor who offered assistance to the Libyan authorities.

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The case was still under review by the Cassation Chamber of the Supreme Court in 2021, but this process does not include a review of the facts or the evidence. The Cassation Chamber has not made a ruling since Libya fell into chaos after 2014. A monitoring report by UNSMIL describes in detail the flaws of the trial. Some of the accused were reportedly held in solitary confinement or incommunicado—without access to the outside world—for many months.127 Saif Al-Islam Qadhafi was held in virtual isolation for a period of over three years before the trial, being allowed only occasional meetings with external actors. The bulk of the prosecution’s case against the accused was composed of interrogation records or confessions of persons in detention, including the accused themselves, taken in unclear circumstances and by persons who were not prosecutors or judicial officers.128 Some were not represented by a lawyer while they were interrogated, neither is there evidence that they were informed of their right not to self-incriminate. Some defendants told the Court that they were called in as witnesses and subsequently found themselves accused.129 Torture is widespread in detention facilities in Libya. Many of the detention facilities were run by armed groups, which assumed law-enforcement functions.130 Several of the accused alleged that they were mistreated or tortured.131 The court, however, dismissed such concerns and did not rule the evidence inadmissible. Instead, it put the burden of proof on the accused to prove torture or mistreatment.132 On August 2, 2015, a film appeared on the internet showing the mistreatment of Saadi Qadhafi at Al-Hadba prison, the same prison where many senior accused were kept during the trial, adding further credence to claims of torture.133 Beyond the charges themselves, the accused were not provided with ­information of the material facts alleged against them.134 The prosecutor alleged  that the accused were part of a “criminal plan” in which each one “played a role” but did not specify beyond that.135 These allegations may have 1 27 1 28 1 29 130 131 132

133 134 135

Ibid., pp. 22–25. Ibid., p. 32. Ibid. UNSMIL/ OHCHR, Torture and Deaths in Detention in Libya, October 2013. UNSMIL/ OHCHR Report on the trial of thirty-seven former members of the Qadhafi regime (Case 630/ 2012), February 21, 2017, at pp. 26–31. Ibid. Allegations of mistreatment at Al-Hadba, where many of the accused were held and where the trial took place, came to the fore when a video surfaced showing the mistreatment of Saadi Qadhafi and other prisoners. Ibid., p. 30. Ibid., pp. 32–34. Session of April 27, 2016.

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been buried in the written dossier, but many of the accused and their lawyers reportedly only received the dossier shortly before the trial and had insufficient time to consider all its contents. The Libyan authorities did make efforts to publicize the trial mainly by means of televising it.136 Prior to the start of the trial on March 24, 2014, Article 241 of the Libyan Code of Criminal Procedure was amended to state that a trial session would be considered public if it was broadcast live on satellite TV channels, on public screens, or any other method. Accordingly, local media had access to the trial and most of the Court’s sessions were broadcast live on Al-Nabaa television. UNSMIL monitors were granted access to the trial from the outset. Since the outbreak of violence in Tripoli, few observers were able to attend, and UNSMIL did not attend a session after June 22, 2014. Most of the accused complained that they had insufficient access to their lawyers and have only been able to meet with them on a handful of occasions.137 Lawyers who received the dossier maintained that they did not necessarily have time to adequately investigate or respond to the evidence.138 The political climate in Libya made it very difficult for lawyers to represent these accused, particularly senior former regime figures. At the same time, foreign lawyers who were willing to represent the accused did not get authorization to do so from the Court. The case itself was held in Al-Hadba, a former police academy formally under the Judicial Police of the Ministry of Justice, but under de facto control of an armed group, which constituted an intimidating environment for defendants, families, and their lawyers.139 Several defence lawyers claimed that they were attacked, harassed, or threatened. Defence lawyers said that some of their witnesses were reluctant to appear. An UNSMIL observer was arrested and briefly detained in May 2014.140 Saif Al-Islam Qadhafi was not connected to the trial since the session of June 22, and subsequent sessions took place without his presence as required under Article 243, nor was any lawyer representing him. In total, he only attended four sessions. Several other accused were also absent from individual hearings, including one who missed at least half the trial.141 The prosecutor gave an oral presentation of its case in Court for only about forty-five minutes, on June 22, 2014. The prosecutor indicated that  there 136 137 138 139 1 40 1 41

Ibid., pp. 34–36. Ibid., pp. 36–39. Ibid., pp. 39–42. The author visited one of the accused, Baghdadi Al-Mahmoudi, in Al-Hadba in the summer of 2013. Ibid., p. 21. Ibid., p. 35. Ibid., pp. 45–47.

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were 238 witnesses in the case and referred specifically to the testimonies of about ten individuals. None of the prosecution witnesses were presented in court, as this is not required under Libyan law.142 At least one accused asked to hear prosecution witnesses, but the Court did not respond to this request. In addition to raising serious concerns about the fairness of the proceedings, the lack of public presentation of the prosecution’s evidence constituted a crucial missed historical opportunity, depriving the victims and the public from the opportunity to confront and reflect on the crimes of the former regime. The rights of the defense were further undermined when the Court limited them to calling two to three witnesses per defendant.143 For example, in the hearing on November 30, 2014, two defense witnesses were heard, but the Court only devoted a few minutes to the testimony of each. Moreover, on several occasions, defense counsel put forward arguments which should have been considered in detail but appear to have been summarily dismissed by the Court, including complaints that the trial was being rushed; that they were obeying superior orders or existing laws; or that they had left the regime before 2011. In the verdict, however, the Court did give justifications for its decision, based largely on the confessions and testimony collected by the prosecution.144 The case against the former regime figures was part of a broader docket.145 The realm of charges that are being brought against accused were wider than those pursued by the ICC. Libyan prosecutors also pursued a variety of financial crimes, but lacked a coherent prosecutorial strategy.146

1 42 1 43 1 44 1 45

1 46

Ibid., pp. 42–45. See Articles 159, 244, and 245 of the Libyan Criminal Procedure Code. Ibid., p. 44. Ibid., p. 48. On June 5, 2012, the trial of former Chief of the External Intelligence and Libyan Permanent Representative to the United Nations, Abu Zaid Dorda, opened in Tripoli. Dorda was accused of ordering the use of live ammunition against demonstrators during the 2011 Revolution. On November 12, 2012, the Special Criminal Division of the Tripoli Appeal Court convened the first hearing in the criminal trial of Baghdadi Al-Mahmoudi, former Secretary of the General People’s Committee under Qadhafi. Al-Mahmoudi was charged with “committing actions jeopardizing national security.” On July 17, 2012, an investigation of three prominent individuals affiliated with the former regime, Ahmed Ibrahim, Mansour Daw, and Khalid Tantush, opened in Misrata. Ibrahim Mansour was sentenced to death in July 2013, but at the time of writing, the death penalty had not been enforced. For instance, the former Foreign Minister Abdul-Ati al-Obaidi and his Head of Parliament Belgassem al-Zwai were charged with mismanaging public funds by compensating families of victims of the 1988 Lockerbie attack, for which Libya accepted responsibility in 2003. Libya eventually paid relatives of the victims USD 2.7 billion in compensation. The two men were acquitted of these charges.

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Since the trial began, Libya slipped into increasing chaos, and poor security impeded their work. Public prosecutors and judges faced consistent threats and intimidation. In the summer of 2014, increased fighting between two broad military coalitions, known as Operation Dawn in the West and Operation Dignity in the East, threatened to split the country entirely. The fighting has continued until 2020, with significant new violations on both sides including hundreds of abductions and assassinations. Several of the senior former regime members have been released either on health grounds (Abu Zaid Dorda) or according to reconciliation proceedings. The Libyan proceedings show the pitfalls of proceeding under national laws without adequate fair trial safeguards. While this is an undesirable outcome, the admissibility test as currently interpreted by the Appeals Chamber provides no solution. After all, the trial and conviction, albeit unfair, could be said to constitute a genuine attempt to investigate and try the accused for their crimes. Some subsequently took the view that the ICC should reexamine the ­admissibility of the Al-Senussi case under “new facts.” The International Bar Association argued that “shortcomings in the proceedings and the volatile security situation have severely compromised the fairness of the trial.”147 Others argue that the legitimacy of the Rome Statute would be eroded if the Court were to exceed the Rome Statute by taking on fair trial and death penalty cases.148 A “glass half full” analysis would indicate that the international scrutiny that accompanied the ICC intervention, albeit mostly focused on the cases of Saif Al-Islam and Abdullah Al-Senussi, may have played a role in preventing a scenario of “rough justice” with quick trials and summary executions. The Libyan authorities were sensitive to the scrutiny of the international community. The United Nations expressed serious concerns about the fairness of the trial while it was ongoing and engaged in discussions with the General Prosecutor.149 United Nations monitoring of the trial and detention facilities may have contributed to the trial proceeding being more extensive than may otherwise have been the case. Also, until now, none of the death sentences handed down have resulted in executions. Saif Al-Islam was released from detention in 2016.150 Other accused, too, have  been 1 47

1 48 1 49 150

Mark Ellis. Trial of the Libyan Regime: An Investigation into International Fair Trial Standards, November 2015. Ellis argued that the test adopted in the Al-Senussi case is too high and that the fair trial violations in this case are so serious that they should amount to “new facts,” so that the ICC itself is not tarnished by the outcome of the Libyan trials. IBA Expert Roundtable, Fair Trials and Complementarity, The Hague, July 6, 2017. UNSMIL/OHCHR Report on the trial of thirty-seven former members of the Qadhafi regime (Case 630/2012), February 21, 2017. See www.dailymail.co.uk/news/article-3678568/Colonel-Gaddafi-s-son-Saif-al-Islam-walksfree-prison-just-one-year-sentenced-death-Tripoli-court.html.

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encouraged  to  participate  in reconciliation processes. (The accused are likely more valuable alive than dead by the warring factions.) In spite of the “glass half full” analysis, the fact remains that under complementarity, the ICC is blind to due process considerations of domestic trials, provided they result in convictions. 3  Superior versus Inferior? While the challenges facing national systems in conducting fair trials of Rome Statute crimes are real and pervasive, supporters of the Rome Statute in general show considerable skepticism toward national legal systems. For example, one lawyer described the detention of Saif Al-Islam in Zintan to the BBC as “Libya’s Guantanamo Bay.”151 On another occasion, he said about the Libyan authorities: “they just want a show trial and be done with it.”152 Emmerson, counsel for Abdullah Senussi, said the following in the context of the admissibility proceedings: “The ICC has ordered an immediate halt to Libya’s unseemly rush to drag Mr. Al-Senussi to the gallows before the law has taken its course. Libya’s rebel authorities need to understand that the days of show trials and summary executions are over.”153 While the trial of Al-Senussi was flawed, it cannot justifiably be described as a rush to the gallows. While Libya is but one example, the idea that trials at the ICC are infinitely superior to trials before domestic courts is prevalent among international criminal lawyers. While it may be the case in some situations, it may not be the case in others, and it is not helpful nor grounded in the Rome Statute to view all international and domestic proceedings through a superior and inferior dichotomy.

III  Conclusion: Parallelism? The Hague-based courts, such as the ICTY and ICC, constitute a considerable investment in terms of the length and expense of proceedings. Complementarity has thus become the vessel that encompassed the hope of creating a new legal order, or in the words of Stahn, “a structural principle of a new system of justice.”154 But rather than staying true to the vision of the ICC 151 152 153 154

BBC News Africa. Lawyers Appointed for Saif Al-Islam Gaddafi, May 2, 2013. Vivienne Welt. Libya’s Disaster of Justice: The Case of Saif Al-Islam Gaddafi Reveals a Country in Chaos, June 28, 2013. Owen Bowcott. Libya Ordered to Hand over Lockerbie Mastermind, The Guardian, February 7, 2013. Carsten Stahn. Introduction: Bridge over Troubled Waters? Complementarity Themes and Debates in Context, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I. Cambridge University Press (2010) p. 1.

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as a court of last resort, supporters of the Court often promoted it as the centerpiece of a global justice order. Rather than deferring to domestic jurisdictions, the Court resorted to asserting its central role and “snatching” cases that could have been tried domestically. Its relationship with national jurisdictions was often adversarial, rather than within a “positive” framework. Rebuilding the rule of law in postconflict societies is an ambitious and large-scale exercise, as reflected in the experience of the United Nations.155 The World Bank has estimated that rebuilding institutions after conflict and reestablishing the rule of law can take between seventeen and forty-one years: “Transforming institutions—always tough—is particularly difficult in fragile situations … Creating legitimate institutions that can prevent violence is, in plain language, slow. It takes a generation.”156 The ICC is unlikely to contribute significantly to this process within its current limited resources and other constraints. Moreover, complementarity may create an illusion that it can deliver when national systems cannot. Experience indicates that where domestic legal ­systems are unable to investigate or prosecute, such as in Afghanistan, Kenya, or Uganda, the Court inherits the same obstacles. After all, effective ­enforcement and state cooperation is the Court’s Achilles’ heel, and it readily inherits the problems that situation countries themselves face in this regard. This leads to parallelism rather than complementarity. Furthermore, complementarity may have a distorting effect, by focusing investigations and prosecutions on a few individual cases. States can thus invest a lot of resources in individual cases, creating a disparity in attention between cases without addressing systemic problems. While many domestic systems and their proceedings are flawed, some seek to depict national ­jurisdictions as inherently inferior, instead of assessing each situation on its specific circumstances. At the same time, complementarity is necessarily largely blind to concerns of due process, thus leaving human rights advocates frustrated that the Court is not a “standard-bearer.” Such are the flaws of complementarity, which may mean it is limiting the Court’s impact as an instrument of law. Chapter 3 will suggest another way to assess the “systemic effect” of the Rome Statute and ICC in domestic legal systems. 155

156

The United Nations gave renewed emphasis to rule of law in the Brahimi report a.k.a. the UN Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809 of August 21, 2000. World Development Report. Conflict, Security and Development (2011) pp. 36, 38. See Table 2.1.

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3 Systemic Effect II Internalization of the Rome Statute

[I]n the long term, no ad hoc, temporary or external measures can ever replace a functioning national justice system. Kofi Annan1

I Introduction The systemic effect or impact of the Rome Statute on domestic legal systems is best described as “internalization.” Internalization is the process by which states demonstrate compliance with international law. Internalization is present if states take action to investigate or prosecute Rome Statute crimes. This action may consist of new legislation, building new specialized capacities to try Rome Statute crimes, or conducting trials for Rome Statute crimes. Scholars have debated whether international law promotes compliance through coercion or persuasion.2 Harold Koh distinguishes between social, political, and legal internalization,3 the latter occurring “when an international norm is incorporated into the domestic legal system through executive action, judicial interpretation, legislative action, or some combination of the three.”4 Ryan Goodman and Derek Jinks argue that states are influenced to adopt international human rights law not through persuasion or coercion, but through a process of “acculturation,”5 that is, “the general process by which actors adopt 1

Secretary-General’s Report. The Rule of Law and Transitional Justice in Conflict and Postconflict Society, S/2004/616, August 23, 2004, para. 34. 2 Harold Hongju Koh. Why Do Nations Obey International Law? Yale Law Journal, Vol. 106 (1997) p. 2599. 3 Ibid., p. 2656. 4 Ibid., p. 2657. 5 Ryan Goodman and Derek Jinks. Incomplete Internalization and Compliance with Human Rights Law. European Journal of International Law, Vol. 19, no. 4 (2008) pp. 725–48.

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the beliefs and behavioral patterns of the wider culture.”6 Koh in turn argues that the evolution of a state’s norm internalization from coercion to persuasion to internal acceptance is a dynamic process “whereby persuasion often occurs in the shadow of coercion, and acculturation often occurs in the shadow of persuasion.”7 In the words of Koh: Nations react to other states’ reputations as law-abiding or not … Domestic decision-making becomes “enmeshed” with international legal norms, as institutional arrangements for the making and maintenance of an international commitment becomes entrenched in domestic legal and political processes. It is through this repeated process of interaction and internalization that international law requires its “stickiness,” that nation-states acquire their identity, and that nations define promoting the rule of international law as part of their national self-interest.8

The Rome Statute is promoted through a mixture of persuasion and coercion. While the Rome Statute concerns individuals rather than states, many of the individuals under the Court’s remit are in senior official positions, or are in a position to themselves orchestrate noncompliance with the Rome Statute. This may contribute to a lack of internalization. Nonetheless, many countries are internalizing the Rome Statute’s norms. Prohibitions on genocide, war crimes, and crimes against humanity are being incorporated into domestic law even if States Parties were not strictly required to do. Some states, such as Colombia, are conducting extensive domestic proceedings. While these systemic effects at times may amount to what Drumbl has called “legal mimicry,”9 the impact may still be positive, in terms of contributing to states’ ability to investigate and prosecute Rome Statute crimes in the future. In the words of Phillip Kastner, “a commitment that is internalized—whether consciously or unconsciously—is based on a stronger sense of obligation and may actually be more effective than an imposed or supposedly enforceable obligation.”10 Indicators of internalization include the adoption of implementing legislation, including procedural rules that incorporate international standards, 6 7 8 9 10

Ibid., p. 726. Harold Koh. Internalization through Socialization. Duke Law Journal, Vol. 54 (2005) p. 981. Harold Koh. Transnational Legal Process. Nebraska Law Review, Vol. 75, No. 181 (1996) p. 204. Mark Drumbl. Atrocity, Punishment and International Law. Cambridge University Press (2007) Chapter 5. Philipp Kastner. Armed Conflicts and Referrals to the ICC: From Measuring Impact to Emerging Legal Obligations. Journal of International Criminal Justice, Vol. 12 (2014) pp. 471–90, p. 486.

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the establishment of specialized courts or chambers to try Rome Statute crimes, and national trials proceedings. These will all be discussed in turn. However, as the experiences below will demonstrate, internalization is seldom a straightforward matter or linear process. It can be complex to assess whether systemic effect stems from the legal obligations found in the Rome Statute or whether it is prompted by the actions of the Court. Likewise, it can be difficult to discern genuineness, good faith, or “acculturation.” For instance, the establishment of specialized domestic capacities to investigate and try Rome Statute crimes, such as the International Crimes Division in Uganda, is not necessarily an indicator of genuine political will to investigate and prosecute Rome Statute crimes. The establishment of these capacities can also serve as decoy or an attempt to obscure a lack of political will. At the same time, such institutions may still succeed in building local capacity to investigate and prosecute Rome Statute crimes in the future. National trials can suffer from many flaws, which makes them difficult to assess for genuineness (as is apparent from the Libyan trials discussed in Chapter 2). At the same time, national proceedings, in spite of their flaws, are an important indicator of internalization or systemic effect. It can be useful to map out indicators of “genuineness” to deconstruct that concept, as will be attempted below.

II  Implementing Legislation A  Incorporation of Rome Statute Crimes A significant number of State Parties have domesticated Rome Statute crimes, in spite of not being strictly obligated to do so under the Rome Statute. This can be seen as evidence that states increasingly accept Rome Statute norms.11 While the incorporation of the Rome Statute in domestic law is an important step toward internalization, it may face many of the same challenges faced by any other law reform initiative: Legislation can usually not be imposed retroactively, or may be in tension with other laws or Constitutional norms (such as head of state immunity). Uganda and Kenya both passed implementing legislation that incorporates Rome Statute crimes into domestic law and gives jurisdiction to domestic courts (the High Court in both cases). In both countries, the respective International Criminal Court Act (2010) and the International Crimes Act No. 11

Julio Bacio Terracino. National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC. Journal of International Criminal Justice, Vol. 5 (2007) pp. 421–40. Yet other states have also passed legislation that allows for cooperation with the ICC.

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16 are prospective only and cannot be applied retroactively.12 In passing the 2010 ICC Act in Uganda, the Committee of Legal and Parliamentary Affairs reverted largely to language from an earlier draft ICC Bill from 2006, abandoning a more extensive draft International Crimes Bill drafted by international advisors because the latter was drafted with insufficient local ownership.13 The quick passage of the Act, which omitted many complex provisions, reflected a drive to pass legislation before the Review Conference, held in Kampala in 2010. The International Crimes Act in Kenya was passed in December 2008, but only came into force in January 2009. It does not apply to the PEV, which took place in early 2008.14 The Judicial Service Commission argued that these crimes could still be prosecuted because of the 2010 Constitution,15 which states in Article 50(2) that every person has the right not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya or an offence under international law. However, the principle of legality may require specific and written law, so the matter remains unclear.16 When Colombia ratified the Rome Statute, it passed a provision in Law 742(2002) making the Rome Statute applicable in domestic courts, but Article 93 of the Constitution restricted the application of the Rome Statute purely to 12

13 14

15 16

Article 28(7) of the Ugandan Constitution (1995) states: “No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.” Uganda is a member of the ICCPR, but it is not clear whether this provision could ever be used to overcome a Constitutional prohibition on retroactivity. Uganda had already ratified the Geneva Conventions and incorporated them into domestic law in 1964: However, it is not clear whether the LRA conflict is international in character, and it is not clear whether war crimes in internal armed conflict were criminalized under customary international law or Ugandan law at the time they were committed. Some experts argue that the “underlying acts” of crimes against humanity and war crimes, such as murder, abduction, or rape are criminalized in the Ugandan Penal Code and that on that basis, it would not be unfair to convict people of war crimes and crimes against humanity that were committed before the Act was passed. See for instance Pal Wrange. The Agreement and the Annexure on Accountability and Reconciliation between the Government of Uganda and the Lord’s Resistance Army: A Legal and Pragmatic Commentary. Uganda Living Law Journal, Vol. 6 (2008) pp. 42–128. Uganda is also a State Party to the Genocide Convention but has not incorporated it into domestic law. Report of the Committee on Legal and Parliamentary Affairs on the International Criminal Court Bill 2006. Chistine Alai and Njonjo Mue. Complementarity in Kenya, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed M. El-Zeidy. Cambridge University Press (2011) p. 1125. Report of the Judicial Services Commission on the Establishment of an International Crimes Division in the High Court of Kenya, October 30, 2012, pp. 88–95. Kenyans for Peace with Truth and Justice, Securing Justice: Establishing a Domestic Mechanism for the 2007/8 Post-election Violence in Kenya, May 2013.

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“the ambit of the subject matter regulated in the Statute.”17 This was intended to avoid any procedural difficulties that could have given rise to inconsistencies with the Colombian Constitution.18 Certain Rome Statute crimes are also criminalized under domestic law in Colombia, but the fact that there is no single piece of legislation incorporating Rome Statute crimes creates a complex legal picture. The Criminal Code Law 599/2000 contains certain international crimes, including genocide (including genocide against political groups). Certain crimes against humanity, such as torture, enforced disappearances, or forced displacement, are also included,19 although they are not labeled as crimes against humanity.20 Some war crimes were incorporated in the Criminal Code under a chapter on “Crimes against Persons and Property protected by IHL,” which identified up to twenty-nine new International Humanitarian Law (IHL) breaches.21 But accountability for IHL was long hampered by the official denial of the existence of an armed conflict.22 Colombian domestic law differs from international law in crucial ways, including on the issue of who constitutes a protected person, and the question of nexus to the armed conflict. The Colombian Congress did amend Colombia’s Criminal Code to include various forms of conflict-related sexual violence, including forced nudity, abortion, and pregnancy, specifying that certain types of evidence ordinarily required under domestic law are not required to prove these crimes.23 The law refers to these crimes as crimes against humanity. In 2020, several proceedings were taking place on sexual violence under the Justice and Peace Law, and before the Special Jurisdiction for Peace.24 The Afghan Penal Code drafted in 1976 did not contain war crimes, crimes against humanity, or genocide. The Rome Statute was not directly applicable in Afghanistan, as Article 7 of the Afghan Constitution stated: “The state shall abide by the United Nations Charter, international treaties, international conventions

17 18 19 20

21 22

23 24

Alejandro Chetman. The Impact of the ICC in Colombia: Positive Complementarity on Trial, DOMAC/October 17, 2011, p. 19. Ibid., p. 17. Colombia also filed an exception to the Court’s jurisdiction on war crimes, under Article 124 of the Rome Statute, which expired in 2009. Ibid., p. 16. Ibid., p. 48. A number of Colombian jurists believe that Rome Statute crimes, particularly crimes against humanity, are so vaguely defined as to violate notions of the principle of legality and would be difficult to apply by Colombian courts. Interview with former Deputy Minister of Justice, Bogotá, May 14, 2014. Also, the Colombian government sought to avoid the scrutiny of the Security Council for child recruitment. The FARC, paramilitary, and military in Colombia have used children either as combatants or as informants. OTP Report on Preliminary Examinations, 2013, para. 144. OTP Report on Preliminary Examinations, 2020, paras. 128–34.

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that Afghanistan has signed, and the Universal Declaration of Human Rights.”25 While this article may imply the system is monist, Afghan lawyers in fact consider it dualist.26 In 2005, the Afghan Independent Human Rights Commission drafted a law to implement the Rome Statute into domestic law in Afghanistan. The draft law was forwarded to the Department for Legislative Drafting (“Taqnin”),27 but it was not tabled at the Council of Ministers.28 In an interview, the Ministry of Justice said that it could not endorse the draft, without specifying why.29 Subsequently, the Taqnin, advised by the Criminal Law Reform Working Group, drafted a comprehensive new penal code,30 with a chapter that incorporates the Rome Statute definitions for aggression, war crimes, crimes against humanity, and genocide (Articles 6, 7, 8, and 8bis of the Rome Statute).31 The crimes were mostly adopted verbatim, with some crucial omissions, such as the requirement of a plan or policy for war crimes; or the crime of recruitment of children under the age of fifteen into armed forces.32 Afghan law only recognized recruitment of children as a crime for those under eighteen. A draft of this new penal code was adopted in 2017.33 However, the penal code did not have retroactive application because Article 27 of the Constitution stated: “no deed shall be considered a crime unless ruled by a law promulgated prior to commitment of the offence.”34 Afghan penal law did provide for the death penalty for crimes such as murder, terrorism, treason, but also for adultery and apostasy.35 25 26

27 28 29 30 31

32 33 34

35

A similar provision was found in the 1964 Constitution. Interview with Michael Hartmann, Kabul, March 2014. Obligations such as those contained in the ICCPR, ratified by Afghanistan in 1983, are not directly enforceable before Afghanistan’s courts. For their website, see http://moj.gov.af/en/page/1670. Interview with AIHRC Commissioner (subsequently Attorney General), November 20, 2013. Interview with Head of Criminal Law Department, Ministry of Justice, Kabul, March 15, 2014. The Taqnin received technical assistance from the Criminal Law Reform Working Group. Interview with Michael Hartmann, Head of UNAMA Rule of Law Division, March 16, 2014. Articles 315–322 of the Afghan Penal Code. Interview with Head of Criminal Law Department, Ministry of Justice, Kabul, March 15, 2014. See also interview with previous staff member at the Taqnin, Kabul, March 15, 2014. Ehsan Qaane. Nuremberg Academy Afghanistan Complementarity Study (2016), on file with author. See also www.nurembergacademy .org/projects/detail/resource-center-on-complementarity-monitoring-13/. Qaane. Nuremberg Academy Afghanistan Complementarity Study. Ibid. Article 27 of the Afghan Constitution states: Article 27 [Punishment]: (1) No act is considered a crime, unless determined by a law adopted prior to the date the offense is committed. (2) No person can be pursued, arrested or detained but in accordance with provisions of law. (3) No person can be punished but in accordance with the decision of an authorized court and in conformity with the law adopted before the date of offense. Qaane. Nuremberg Academy Afghanistan Complementarity Study.

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B  Victims’ Rights under Domestic Law In some situations, victims’ rights have been incorporated into domestic legislation as a direct or indirect effect of the Rome Statute. In Colombia, the “internalization” of the Rome Statute can be seen in improved frameworks for victims, both through the Victims and Land Restitution Law (Law 1448), and through various Constitutional Court judgments.36 In Uganda, a number of legal reform initiatives were also proposed by the Uganda Law Reform Commission,37 including a new law on witness protection, revisions to the Evidence Act to allow for witnesses to appear via video link, and certain revisions to the penal code.38 Victims are allowed to participate in the trials of the ICD. Under Kenya’s Criminal Procedure Act, as in other common law systems, victims can participate in a number of ways, such as in the context of a plea agreement, or through “impact statements” at the sentencing stage, compensation, or restitution of property.39 In 2014, the Kenyan legislature passed the Victims Protection Act, which gave further rights to victims. For instance, the Act requires national authorities to undertake a preliminary assessment of victims. It gives victims the right to be present at trial and to participate in ways that are similar to the ICC trials. It also gives them rights to security and medical treatment, and a right to take part in restorative procedures. The Act also created a Victim Protection Trust Fund, similar to the ICC Trust Fund. However, as of 2015, this legislation had not yet been used in Kenyan courts.40 Additionally, in Kenya, the Witness Protection Act 2006 provided for a Victims Compensation Fund and established a new Witness Protection Agency.41 While the Act gives this agency a solid framework, witness protection remains a major challenge in the Kenyan context. The program does not apply to defence witnesses. The Agency, however, lacked funding and is not sufficiently independent from other government agencies such as the police.42 Afghanistan incorporated a variety of witness protection measures into its Criminal Procedure Code, but these seem to originate mainly from US law,

36 37 38 39

40 41 42

See Constitutional Court Decision T-025, 2004. Interview with Ugandan Prosecutor, February 10, 2014. See also Ugandan Law Reform Commission website. Interview with Ugandan Prosecutor, February 10, 2014. Kenya Criminal Procedure Code, Article 137(d), Article 329(C)(1), Article 175(2)(b), Article 177. Thomas Obel Hansen. Prosecuting International Crimes in Kenyan Courts? Paper presented at “The Nuremberg Principles 70 Years Later: Contemporary Challenges.” November 21, 2015. Ibid. See Witness Protection Act, 2006 Article 3(1)(1). Hansen. Prosecuting International Crimes in Kenyan Courts?

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and are not inspired by the ICC. Victims had a right to participate in trials according to Article 6(3) and could also claim compensation (Article 189–201).43 C  Modes of Liability In some cases, domestic systems have incorporated modes of liability from the Rome Statute, although command responsibility in particular remains a difficult issue in national law. Colombian courts do refer to international law and to the jurisprudence of the ICC.44 On the other hand, the Supreme Court has generally rejected international law concepts such as command responsibility and perpetration-by-means,45 until 2010, when it applied the latter notion to a paramilitary leader, Alvaro Alfonso Garcia Romero. It seemed, however, to be guided by regional jurisprudence such as the Fujimori decision in Peru.46 The Supreme Court also designated “aggravated conspiracy to commit a crime” as a substantive offence rather than as a mode of liability, an approach that has been criticized by scholars.47 In Kenya, modes of liability of the Rome Statute are applicable according to Article 7(1) of the International Crimes Act, “with any necessary modifications.” D  Incorporation of ICC Procedures When states set up specialized capacities to try Rome Statute crimes, some seek to rely on ICC procedures: An example is the ICD in Uganda. The ICD drafted Rules of Procedure and Evidence, which were approved by the Rules Committee, subject to the Judicature Act, and came into force in March 2016.48 The Rules reflect a complex attempt to transplant specific procedural elements from the Rome Statute or Rules of Procedure and Evidence of 43 44

45 46 47 48

Qaane. Nuremberg Academy Afghanistan Complementarity Study. The Judiciary in Colombia includes the Constitutional Court, the Supreme Court of Justice, the State Council, the Supreme Council for the Judiciary, the Prosecutor General (Fiscalia), the lower Tribunals and Judges, and the Military Criminal Justice. In the criminal system, the top of the hierarchy is the Criminal Chamber of the Supreme Court of Justice, followed by district tribunals, and circuit and municipal courts. Some specialized circuit courts were also established. Chetman. The Impact of the ICC in Colombia, pp. 14–15. The Justice and Peace magistrates are known to have cited ICC cases, including decisions from Lubanga and Katanga. Perpetration-by-means is included in Article 25(3)(a) of the Rome Statute but is foreign to Colombia. Chetman. The Impact of the ICC in Colombia, p. 46. Ibid., p. 48. While conspiracy is not a mode of liability recognized in the Rome Statute, common purpose is. Ibid., p. 49. The ICD received assistance from ASF and various international and local consultants in drafting the rules.

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the ICC. For instance, the Rules suggested the creation of Pre-Trial and Trial Divisions within the ICD.49 Mégret comments that this area “of international criminal law … has been fraught with tensions, contradictions, and evolutions so that it should now be transposed as such to domestic systems strikes one as odd.”50 The Rules also provided for the creation of a TFV analogous to that of the ICC.51 An interesting impact of the ICC procedures can be seen in Libya. In November 2013, the ASP amended adopted Rules 134 bis, ter, and quarter on the use of video-link technology, excusal from presence at trial, and excusal from presence at trial due to extraordinary public duties. Before violence broke out in Tripoli in July 2014, Saif Al-Islam Qadhafi was participating in the trial via video link according to Article 2 of Law No. 7 of 2014 amending Article 243 of the Code of Criminal Procedure to give the court discretion to use “advanced communication means” to link the accused to the trial session if there is fear for his security or his escape. This amendment was directly inspired by the 49

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Draft Rules of Procedure and Evidence of the International Crimes Division of the High Court of Uganda 2013. The Rules included the establishment of a Victims and Witnesses Unit and the suggestion of a list of counsel similar to that of the ICC. Victims are therefore allowed to participate in ICD trials, a feature that is new to the Ugandan system. The Rules suggest creating a War Crimes Prosecution unit as a separate organ of the ICD, as well as an Investigation Unit within the Police force. The Draft Rules also follow international practices of allowing for the admission of various forms of evidence, including evidence via audio link or video link; or conversely not allowing certain forms of evidence in cases of sexual violence or evidence which may self-incriminate a witness. Other areas where the Rules seek to follow international practices are in disclosure of evidence; practices dealing with the protection of victims and witnesses, including their participation and legal representation during proceedings; reparations to victims. The Rules incorporate ICC procedures on arrest and detention; Pre-Trial procedures including confirmation hearings; and various trial procedures, such as status conferences, the filing of various motions, and the possibility to join or separate trials. Frederic Mégret. Too Much of a Good Thing? Implementation and the Use of Complementarity, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, edited by Carsten Stahn and Mohamed M. El-Zeidy. Cambridge University Press (2011) p. 374. For instance, Afghanistan has a lengthy history of international efforts in law reform since the fall of the Taliban in 2001. In particular, many actors in Afghanistan sought to introduce “legal transplants,” most often through introducing draft bills through the executive, without a consensus-based technical and political law reform process, which would engender the legitimacy needed for real internalization of new laws. A prime example of this was the Italian-drafted Interim Criminal Procedure Code introduced in Afghanistan. Some of these problems were remedied through the creation of a Criminal Law Reform Working Group, comprised of domestic and international actors. Michael E. Hartmann and Agnieszka Klonowiecka-Milart. Lost in Translation: Legal Transplants without ConsensusBased Adaption, in The Rule of Law in Afghanistan: Missing in Inaction, edited by Whit Mason. Cambridge University (2011).

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amendment at the ASP. But after violence worsened, Saif Al-Islam Qadhafi was disconnected from the trial since the session of June 22, 2014.

III  Specialized Domestic Investigative Units or Chambers An important indicator of internalization is the establishment of specialized institutions to try Rome Statute crimes. Since the coming into force of the Rome Statute, several countries under the Court’s jurisdiction established new capacities specialized in investigating and prosecuting Rome Statute crimes. On occasion, these were created at least in part to allow national authorities to pose more effective admissibility challenges to the ICC. Their creation was the result of pressure from the OTP rather than compliance with legal obligations arising from the Rome Statute. Establishing national capacities to investigate or Rome Statute crimes can potentially promote domestic proceedings. However, the establishment of these new institutions can also disguise unwillingness to genuinely investigate or try ­certain crimes, for instance those committed by state actors. A  Uganda International Crimes Division The creation of specialized capacities can have several advantages for domestic systems, as is demonstrated in Uganda. These include (1) clarifying which court has jurisdiction over international crimes, (2) designating and developing capacities to try these crimes, and (3) obtaining access to technical assistance and funding. 1  Clarifying Jurisdiction over International Crimes In July 2008, the government of Uganda set up a War Crimes Division (later renamed International Crimes Division) of the High Court.52 The establishment of the ICD has helped to clarify which court has jurisdiction over international crimes, including, but not limited to, Rome Statute crimes. The ICD has jurisdiction over a range of international crimes additional to Rome Statute crimes, including human trafficking, piracy, and terrorism.53 A disadvantage of 52

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Annexure to the Juba Agreement, section 7. The Division was established pursuant to Article 141 of the Ugandan Constitution. The High Court (International Crimes Division), Practice Directions (“ICD Practice Directions”), Legal Notice no. 10 of 2011, Legal Notice Supplement, Uganda Gazette, no. 38, vol. CIV, May 31, 2011. Legislation relevant to the subject-matter jurisdiction of the ICD includes the ICC Act 2010; the Geneva Conventions Act 1964; and the Ugandan Penal Code (charged in the alternative in the case of Thomas Kwoyelo). Cases from the ICD can be appealed to the Constitutional Court and the Supreme Court.

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the ICD is that does not have clear jurisdiction over state agents. While such jurisdiction is not formally excluded by the mandate of the ICD, there is a strong presumption that the ICD is only able to try nonstate actors. In practice, UPDF crimes were not tried by the ICD but were referred to the courts martial. 2  Designating and Developing Specialized Capacities Another clear advantage is the designation of specialized capacities for investigating, prosecuting, and judging international crimes, in terms of human resources. Unfortunately, this does not always include capacity for defence counsel. The principal judge originally appointed four Ugandan judges to the ICD. A number of these judges had international experience in Rwanda, Sierra Leone, and elsewhere.54 In 2014, the department of Uganda’s Directorate of Public Prosecutions (DPP) dealing with ICD cases was composed of six prosecutors. This included the late Joan Kagezi, the Head of the ICD who was murdered in April 2015, presumably in relation to a terrorism case on a series of bombings in Kampala during the World Cup in 2010, which killed seventy-nine people. In addition, the Criminal Investigations Department (CID) was composed of six police investigators and forty-five district focal points.55 Defendants before the ICD have the right to retain private counsel or will be represented by state lawyers but only if they are charged with offenses punishable by life in prison or the death penalty.56 HRW warned in 2012 that the ICD suffers from deficits in fairness and quality.57 3  Access to Funding and Technical Assistance An obvious advantage of establishing a specialized capacity is its ability to attract external support in terms of funding and technical assistance. The ICD is funded by the government and (to a significant extent) international donors, channeled through the Justice Law and Order Sector.58 54 55 56

57 58

HRW. Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division (2012) p. 6. Interview with Joan Kagezi, February 10, 2014. HRW. Justice for Serious Crimes before National Courts, p. 8. Kwoyelo’s defense was not court-appointed but privately paid. Court appointed lawyers can be chosen from a list maintained by the Uganda Law Society, but it can be difficult to attract high-quality lawyers because the fees are not considered profitable. Interview with ICD Registrar, February 10, 2014. HRW. Justice for Serious Crimes before National Courts, p. 8. JLOS donors also provided additional support to the ICD, for instance by funding a study tour to Bosnia, Sierra Leone, and The Hague in 2009.

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In fact, the ICD was initially viewed by some Ugandans as a donor-driven initiative rather than a response to local priorities. As one observer put it, the Ugandan government was “playing to the gallery” when it put in place the ICD.59 The case of Thomas Kwoyelo has been the only war crimes case before the ICD, although a second case was brought against an Allied Democratic Forces leader. Religious and traditional leaders opposed Kwoyelo’s prosecution and continue to oppose prosecutions of the LRA in general.60 It remains to be seen whether the ICD will try other LRA actors such as Caesar Acellam, once a Brigadier in the LRA, but this seems less likely as time goes on.61 Kwoyelo is said to have been on a list of ten originally provided by the UPDF Intelligence to the ICC, of which five were eventually selected for prosecution.62 B  The Context and Analysis Unit in Colombia The advantages that arise from establishing specialized capacities in terms of “systemic effect” are most apparent from Colombia, including (1) the ability to investigate and prosecute “system crimes” and (2) allowing for multidisciplinary investigations and use of analysts. 1  Ability to Investigate and Prosecute “System Crimes” One of the critical advantages of establishing specialized capacities is the ability to investigate and prosecute “system crimes.” The term “system crimes” was coined by the Dutch jurist B. V. A. Röling, to refer to complex international crimes such as war crimes, crimes against humanity, and genocide. The challenges of successfully investigating and prosecuting these crimes are unique, as these crimes are generally characterized by a division of labor between planners and executants. Also, these crimes are crimes of scale that are logistically challenging to investigate.63 The Context and Analysis Unit (UNAC) in Colombia was established in 2012, under the Office of the General Prosecutor (Fiscalia). Its mandate is to

59 60 61 62 63

Interview with ASF, Kampala, February 10, 2014. A prominent religious leader referred to Kwoyelo as an “innocent man.” Interview with religious leader, Gulu, February 9, 2014. Ledio Cakaj. The Lord’s Resistance Army of Today, Enough, November 2010. Interview with Ugandan Prosecutor, February 10, 2014. OHCHR Rule of Law Tools for Post-Conflict States, Prosecution Initiatives, 2006 pp. 11–12.

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investigate large criminal structures using analytical methods.64 The work of the unit allowed Colombian prosecutors to “prioritize” and focus on cases of those bearing the greatest responsibility, according to the Fiscalia’s Directive 00001 of October 2012. Its creation was intended to better capacitate the Fiscalia to investigate Rome Statute crimes. 2  Allowing for Multidisciplinary Investigations and Use of Analysts The UNAC combined the capacities of prosecutors, analysts, and investigators, to investigate the “context” of the crimes, including those who bear the greatest responsibility for the crimes and the criminal plan that was formed. The investigation explored the political, historical, and economic factors of the context, through social science methodology, followed by a description of the criminal organization and a reconstruction of its actual function. Analysts were drawn from many different disciplines.65 The investigations intended to show the nexus between the military structures, financiers (such as banana companies or cattle farmers), politicians, and armed forces.66 The UNAC was investigating crimes committed by different actors and in different phases of the conflict, including extrajudicial killings by the military (false positives), violence against trade unionists, and violence against the Patriotic Union.67 The UNAC achieved some important results in investigations. For instance, in an investigation on “false positives,” it discovered that the military was documenting FARC kills in an area where FARC was not present.68 UNAC also took steps to prepare charges against FARC, including new charges on narcotrafficking, international humanitarian law, attacks on indigenous communities, and displacement.69 These could not proceed further because of the Havana Talks. UNAC staff said that the ICTY rather than the ICC inspired the methods of the UNAC.70 Different criticisms emerged on the UNAC approach. First, critics argued that the UNAC was “mimicking” international legal structures without being suitably adjusted to the context of the local legal system.71 Its analytical reports 64 65 66 67 68 69 70 71

Interview with Head of the UNAC, November 12, 2013. Ibid. Interview with Director of ICTJ Colombia, November 12, 2013 Interview with Head of the UNAC, November 12, 2013 Ibid. Ibid. Ibid. Interview with OHCHR staff member, November 9, 2013.

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were not necessarily admissible in Court, unless admitted as expert evidence.72 If the reports did become evidence, they could be challenged by the defense, which contributed to the length and complexity of litigation.73 Some civil society worried that the prioritization principles of the unit would lead to impunity.74 They argued that the structure of the unit was not sufficiently equipped to deal with the complexity of different kinds of crimes in Colombia.75 The UNAC’s efforts to investigate state crimes were limited. The (former) General Prosecutor himself was the main author of the Military Justice reforms, which sought to make it more difficult to pursue military cases.76 The UNAC is just one in a series of units created in the Fiscalia over the years.77 A new unit was established under the Special Jurisdiction for Peace after the Havana Agreement described in Chapter 5: The Investigation and Accusation Unit.78 The IAU has eight field offices and a variety of capacities, including investigators, forensic specialists, a context analysis and statistics team, investigators specialized in sexual violence, and a victims and witness protection group.79 The IAU has distinguished itself by a special focus on victims of ­sexual violence. C  Kenyan Special Tribunal and International and Organized Crimes Division The establishment of specialized capacities at the domestic level can also be highly fraught or fail. In Kenya, state actors at the highest levels were directly implicated in the post-election violence. The Waki report criticized state security institutions, both for their failure to anticipate violence and their direct involvement.80 It recommended the establishment of a Special Tribunal for 72 73 74 75 76 77

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Either Law 600 or Law 906 could apply, depending on how old the case is. For crimes before January 1, 2005, the former applies, whereas Law 906 applies to crimes committed afterward. Interview with Director of ICTJ Colombia, November 12, 2013. Ibid. Interview with OHCHR staff member, November 9, 2013. Ibid. First was the National Unit for Human Rights, then the Justice and Peace Law unit, then UNAC, and under the Havana Peace Talks, a Special Jurisdiction for Peace was established. Interview with OHCHR representative, Bogotá, May 13, 2014; Interview with Director of Colombia ICTJ, May 16, 2014. Gwen Burnyeat, Par Engstrom, Andrei Gomez Suarez, and Jenny Peace, Justice after War: Innovations and Challenges of Colombia’s Special Jurisdiction for Peace, 3 April 2020, blogs. lse.ac.uk. Transitional Justice Snapshots, Rodeemos el Dialogo, March 2020 at https://uk .rodeemoseldialogo.org/wp-content/uploads/2020/03/TJS-7-ENG-PDF.pdf. Alai and Mue, Complementarity in Kenya, p. 1224.

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Kenya, a court of mixed composition that would investigate and prosecute PEV, particularly crimes against humanity.81 The Prosecutor was to be a nonKenyan.82 Proponents of the Tribunal hoped that the threat of an ICC intervention would be enough to prompt the Kenyan legislature to pass the bill.83 But the bill failed to obtain the required two-thirds majority in Parliament and was abandoned in July 2009. After that, pro-accountability groups lobbied with the slogan: “Don’t be vague, go to The Hague.”84 The failure to establish a Special Tribunal was a clear indication of a lack of political will to prosecute PEV on behalf of the Kenyan government. It also foreshadowed the challenges that would later be faced by the ICC. Unsurprisingly, attempts to establish an International and Organized Crimes Division, after the ICC cases were opened, were unsuccessful. Under section 8(2) of the International Crimes Act No. 16 of 2008, Kenya’s High Court has jurisdiction to conduct trials over persons responsible for international crimes committed locally or abroad by a Kenyan, or committed in any place against a Kenyan as of January 2009.85 In October 2012, the Judicial Service Commission published a Report suggesting the establishment of an International and Organized Crimes Division, for “international-scale crimes” including PEV but also for transnational crimes, including terrorism, piracy, cybercrime, human trafficking, money laundering, small arms smuggling and drug trafficking as well as the International Crimes Act No. 16 of 2008.86 Reverend Samuel Cobia, Head of the Judicial Service Commission subcommittee, said the International and Organized Crimes Division would be established “modeled on standards of ICC, with necessary modifications to suit the Kenyan Judiciary,” with seven judges sitting in three panels with an extra judge, and with its seat in Nairobi.87 In the words of Willy Mutunga, 81 82

83 84 85

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Ibid. See also Institute for Security Studies, The International Criminal Court’s Cases in Kenya: Origin and Impact, No. 237 (August 2012) p. 7. Open Society Institute, Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya, 2011. The author traveled to Kenya in 2008 to advise on the establishment of the Special Tribunal. Alai and Mue, Complementarity in Kenya, p. 1225. Ibid. See Institute for Security Studies, The International Criminal Court’s Cases in Kenya, p. 9. Hon. Rev. Dr. Samuel Kobia, Commissioner JSC/Chair ICD Committee, Complementarity in Practice: Examples from Kenya, Paper presented at the German-Kenyan Side Event at the ASP (November 23, 2013) p. 8. The Judicial Service Commission, Report of the Committee of the Judicial Service Commission on the Establishment of an International Crimes Division in The High Court of Kenya, October 2012. Later, in 2015, the name was changed to the International and Organized Crimes Division. Hon. Rev. Dr. Samuel Kobia, Commissioner JSC/ Chair ICD Committee, Complementarity in Practice, p. 7.

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the Chief Justice of Kenya at the time: “The IOCD is a Kenyan solution to a local problem … The IOCD promises to borrow smart and best practices from the world over to try these cases. In a real sense, this is implementing the Constitutional imperative: to domesticate international law in ways that are useful in terms of substantive law.”88 However, in 2013, Kenyatta and Ruto were elected as President and Vice President in Kenya’s General Election. In the political climate in Kenya, particularly after the collapse of the ICC cases, civil society took the view that this attempt to set up an IOCD did not constitute a “good faith attempt” to do justice for PEV.89 Civil society described the IOCD as “motion without movement.”90 The Kenyan Director of Public Prosecutions, Keriako Tobiko, said at ASP in November 2013 that he is pursuing hundreds of cases. But in February 2014, he said that up to 4,000 PEV cases could not be prosecuted due to lack of evidence.91 In March 2015, President Kenyatta said that PEV would see no further accountability but that a fund will be established to help victims.92 After the election of Kenyatta and Ruto, government officials dubbed civil society the “evil society” and attempted to restrict their activities and funding base through new legislation.93 With the demise of the Kenya cases at the ICC, not a single case of PEV in Kenya was prosecuted. D  The International Crimes Directorate in Afghanistan In Afghanistan, in 2018, after its revised penal code came into force, the government issued Decree 863 establishing a Directorate of Combat against International Crimes Prosecution (ICD) in the Attorney General’s Office (AGO). The ICD had a mandate to investigate crimes found in Articles 332–343 of the penal code (war crimes, crimes against humanity, genocide, and aggression) committed after the entry into force of the penal code in February 2018. The Directorate would deal with requests for extradition and evidence. It was also tasked with strengthening relations and coordination

88 89

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News Ghana, IOCD Is a Local Solution to a National Problem, Chief Justice Mutunga (April 29, 2015). www.newsghana.com.gh/iocd-is-kenyan-solution-to-local-problem-cj-mutunga/. Kenyans for Peace with Truth and Justice, and the Kenyan Human Rights Commission, Security Justice: Establishing a Domestic Mechanism for the 2007/2008 Post-election Violence in Kenya, May 2013. Interview with civil society activist, Nairobi, February 5, 2014. Interview with civil society activists, Nairobi, February 3, 2014. Bernard Koech. French Doubts about Mandate of Kenya’s Special Court, IWPR February 21, 2014. Hansen. Prosecuting International Crimes in Kenyan Courts? Interview with civil society activists, Nairobi, February 3, 2014.

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with other departments and agencies with regard to collecting evidence of international crimes.94 In 2019, it had around forty staff working for it, including investigators, prosecutors, and appellate prosecutors. Cases could be referred to the Directorate by different law enforcement agencies (MoI, MoD, or National Directorate of Security), or could be brought directly by the AIHRC, complainants, or NGOs, or could also be initiated by the AGO. Steps were taken to set up a specialized branch in the MoI to act as a counterpart to the ICD.95 The ICD was intended to be key in pursuing 151 domestic cases which have been the subject of a request to defer the ICC investigation. This will be discussed further in Chapter 4.

IV  National Proceedings and Genuineness Domestic proceedings are the most significant evidence of “systemic effects” or internalization of the Rome Statute, at least in terms of normative impact. Domestic prosecutions can, over time, contribute to building a “culture of accountability” through strengthening domestic institutions and demonstrating that no one is above the law. Domestic prosecutions can also generate significant “demonstration effect” and societal impact, although this is not a given. Detailed studies on the impact of domestic proceedings held for Rome Statute crimes in countries such as Afghanistan, Libya, and Uganda are lacking, whereas they do exist in Colombia. Impact studies from other international tribunals indicate that domestic trials can significantly contribute to “internalizing” and processing questions of guilt and acknowledgment. For instance, Germany adopted and internalized the Nuremberg Principles over time.96 Similarly, Orentlicher argues that the Bosnian War Crimes Chamber in Serbia would not have existed but for the ICTY, and that the work of the ICTY created a climate in which domestic

94 95 96

Islamic Republic of Afghanistan, Attorney General Office, Office of Prosecution against International Crimes, Terms of Reference. Capacity-Building Needs Assessment of the International Crimes Directorate, Attorney General, Afghanistan, UNAMA March 2019. Unlike Germany, Japan did not conduct any further domestic trials after the conclusion of the Tokyo trials, and it can be argued that “internalization” was more limited in Japan. The “hybrid court” model may show higher degrees of internalization of values, as indicated by the high approval ratings of the SCSL. In Cambodia, respondents were quite explicit, for instance, that they do not trust the national justice system. Phuong Pham, Patrick Vinck, Mychelle Balthazard, Sokhom Hean, and Eric Stover. “So We Will Never Forget”: A Population-Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia. Human Rights Center, University of California, Berkeley (January 2009): only 36% of respondents said they trusted it.

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prosecutors could proceed, if only through a desire to prove their professional competence and preserve their national pride.97 In 2004, up to 71% of Serb respondents in an opinion poll believed it was better to institute war crimes cases in national courts than at the ICTY.98 In spite of some mixed results, the Serbian prosecutions were viewed as more legitimate and less controversial than the trials in The Hague and contributed to “normalizing” the prosecution of war crimes.99 At the same time, domestic trials can be difficult to assess for genuineness. It is important to analyze the experiences in Colombia, in order to distill “indicia of genuineness” that could be used to evaluate future cases. A  Domestic Trials in Colombia: Paramilitaries, Politicians, and “False Positives” Colombia is often mentioned as the prime example of “positive complementarity” with the ICC as its “ally in the fight against impunity.”100 Certainly, there are more domestic proceedings being conducted in Colombia than in almost any other post-conflict country. Colombia ratified the ICC Statute on August 5, 2002.101 Law 742 (2002) approved implementation of the Rome Statute.102 Court officials often refer to

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Diane Orentlicher. Shrinking the Space for Denial: The Impact of the ICTY in Serbia. Open Society Justice Initiative (2008) p. 18. Orenticher also points to the role of the assassination of Zoran Djindjić in creating sufficient political will to proceed with domestic trials. The BWCC was further assisted by transfer of evidence from the ICTY and the transfer of “knowhow” particularly in relation to practical issues on how to conduct complex war crimes trials: Ibid., p. 48. Ibid., p. 47. Ibid., p. 56. Remarks by Ruth Stella Correa Palacio, Minister of Justice and Law, International Conference Concerning International Humanitarian Law and International Criminal Law in Domestic Law, and Organized Crime, Pintificia Universidad Javeriana, June 20–21, 2013. At the time of ratification, President Pastrana appended a declaration under Article 124 of the Statute, under which ICC would lack jurisdiction over war crimes committed in Colombia for a period of seven years, reflecting a protectiveness over its military institutions which continues to this date. Chehtman. The Impact of the ICC in Colombia, p. 19. An article was added to the law to clarify that any inconsistencies between Colombian law and the Rome Statute would “have effect exclusively within the ambit of the subject-matter regulated in the Statute.” Differences included the ability to give life sentences (in Colombia the highest sentences were restricted to sixty years), and the application of statutes of limitations, as well as modifications to the res judicata and non bis in idem principles in cases of ICC intervention. This law in turn was reviewed by the Constitutional Court, in a detailed decision. Constitutional Court for Colombia Decision C-578 of 2002. Chehtman. The Impact of the ICC in Colombia, p. 18.

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Colombia’s national proceedings as an example of the ICC’s impact.103 The Colombian government says it is making “all efforts to ensure that war crimes and crimes against humanity are not left in impunity.”104 In 2005, the Colombian parliament passed Law 975, the background of which is described at length in Chapter 5.105 In spite of the existence of Law 975, the Colombian authorities subsequently moved to extradite up to twenty-nine paramilitary leaders to the United States on drug-related offences between September 2008 and March 2009. The ICC OTP was urged to intervene by those who considered this a clear indication of unwillingness, but did not.106 Proponents of Law 975 pointed to its successes, including the acknowledgment of 40,000 crimes, the participation of nearly 77,000 victims, and the recovery of 5,000 bodies.107 Experts continue to disagree on their assessment of Law 975 and whether it led to effective prosecution of Rome Statute crimes at the domestic level. Human rights organizations argued that Law 975 constituted an attempt to “shield” responsibility and masked unwillingness, whereas others argue that the law probably amounted in more revealed truth and prosecutions than would otherwise have been the case.108 A poignant criticism often leveled at Law 975 is that it did not result in non-repetition of the crimes, as many paramilitaries continue their involvement in para-politics and para-­economics.109 In the words of a prominent Colombian parliamentarian, the Justice and Peace Law (Law 975) Colombia (JPL) resulted in “0.1% reparations, 5% justice, 20% truth, but 0% in terms of non-repetition.”110 In 2020, the AGO said that its Directorate of Transitional Justice had devised a timeframe to complete JPL proceedings, but JPL Tribunals were yet to adjudicate 122,219 criminal acts.111 103 104

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James Stewart, Transitional Justice in Colombia and the Role of the International Criminal Court, May 13, 2015. www.icc-cpi.int/iccdocs/otp/otp-stat-13-05-2015-ENG.pdf. Remarks by Ruth Stella Correa Palacio, Minister of Justice and Law, International Conference Concerning International Humanitarian Law and International Criminal Law in Domestic Law, and Organized Crime, Pintificia Universidad Javeriana, June 20–21, 2013. Chehtman. The Impact of the ICC in Colombia, p. 20. Law 975 (2005) was passed alongside Law 782/2002 and Regulatory Decree 128/03, which provided the framework for demobilization by providing economic packages to demobilizing paramilitaries. Interview with Member of Congress 2, Bogotá, May 14, 2014. Chehtman. The Impact of the ICC in Colombia, p. 30. International Crisis Group, Transitional Justice and Colombia’s Peace Talks, Latin America Report No. 49, 29 (August 2013) p. 5. Avocats sans Frontiers, The Principle of Complementarity in the Rome Statute and the Colombian Situation: A Case That Demands More Than a “Positive” Approach. Lawyers Without Borders Canada (2011) p. 18. Interview with Member of Congress, Bogotá, May 14, 2014. Ibid. OTP Report on Preliminary Examinations, 2020, para. 121.

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On paper, Law 975 appeared to be a great innovation, but in practice, it has not worked well, due to the low number of overall convictions, which only came to ten in the first seven years, and 110 in 2015.112 A new law, Law 1592 (2012), refocused prosecutions on the “most responsible”: Sixteen macro-level trials were planned for senior leaders, and the judgments will be applied to all those in custody, hopefully before their sentences run out in 2014.113 Nonetheless, Colombians point to innovations of Law 975, and broadly ­speaking, it served to inspire the Special Jurisdiction for Peace.114 It is also worth noting that the JPL law led to a significant number of convictions on the crime of forced displacement.115 The Prosecutor of the ICC referred to Colombia in unusually positive terms at an early stage: No doubt that in Colombia these proceedings are genuine … Colombian judges are very good and the Justice and Peace Law has allowed them to uncover hundreds of thousands of killings. Colombia is a sophisticated country and this law is also a very sophisticated one, very complex and interesting. It is a unique process in the world.116

After the extradition of senior paramilitaries to the United States, ­increasingly, paramilitaries used their version libres to expose their ties with Colombian politicians.117 At least sixty members of Congress were exposed as having such links and were convicted. The OTP in its report noted that as of August 2012, over fifty former congressmen had been convicted for “concierto para delinquir.”118 Most of the convictions dealt with election crimes, but four public officials were also convicted of murder, enforced disappearances, kidnapping, and torture.119 The impact of the ICC on the trials of the para-­politics was probably limited in practice. This is in spite of the fact that the Prosecutor’s second visit coincided with the para-politics scandal on which  he  had

112 113 114 115 116 117

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Priscilla Hayner. The PeaceMakers Paradox: Pursuing Justice in the Shadow of Conflict. Routledge (2018) (Case Study on Colombia) p. 198. International Crisis Group, Transitional Justice and Colombia’s Peace Talks, Latin America Report No. 49 (August 29, 2013) p. 5. Interview with Carlos Holmes Trojillo, Bogotá, May 17, 2014. In the words of Carlos Holmes Trojillo, Vice Presidential candidate, “the Peace and Justice Law was a good model.” OTP Report on Preliminary Examinations, 2020, paras. 121–22. Sheila Velez and Luis Moreno-Ocampo, Chief Prosecutor of the ICC: “I Have the Most Important Mission in the World,” AEGIS trust website, February 22, 2011. Paul Seils. Making Complementarity Work: Maximizing the Limited Role of the Prosecutor, in The International Criminal Court and Complementarity: From Theory to Practice, Vol. II, edited by Carsten Stahn and Mohamed M. El-Zeidy. Cambridge University Press (2011) p. 1004. OTP Interim Report, Situation in Colombia, November 2012 para. 175. Ibid., para. 178.

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addressed a letter to the Colombians on June 18, 2008, referring to it as a “key issue” for the ICC.120 The AGO has continued investigating cases against civilians or state agents not members of the public forces, for crimes related to the promotion, support, or financing of illegal groups. In 2020, it was conducting a total of 2,683 such cases. This included a well-known case against former executives and employees of the banana company Chiquita Brands.121 A total of 1,273 nonmilitary state agents and civilians had requested to participate in Special Jurisdiction for Peace proceedings for promotion, support, or financing of illegal groups. A final set of cases has posed a particular challenge to Colombia’s “internalization” of Rome Statute crimes: These are the cases known as the “False Positives.” Between 2004 and 2008, during the Alvaro Uribe presidency and its Democratic Security Policy, it is alleged that at least 5,000 civilians, including men, women, and children, were executed by the Colombian military and that their bodies were presented in guerilla uniforms and counted as members of the FARC killed in combat.122 The widespread nature of this phenomenon points to the existence of a policy,123 which the Colombian government has denied.124 Originally, the government took the position that the persons killed were criminals.125 Various incentives were offered to increase the number of “combat kills,” and in the words of a senior Colombian military official, the success of the military should be measured in “litres of blood.”126 Under the Santos government, the military “self-corrected” and abandoned this practice (although Santos was Minister of Defence under Uribe).127 The Colombian authorities did investigate and prosecute some cases, although early efforts targeted rank-and-file, whereas there are indications that this practice was condoned at higher levels.128 Factors that influenced 1 20 1 21 1 22 1 23

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Vieira, Constanza. Colombia: International Criminal Court Scrutinizes Paramilitary Crimes. IPS News Agency, August 27, 2008. OTP Report on Preliminary Examinations, 2020, paras. 112–14. Seils. Making Complementarity Work, p. 1005. The Special Rapporteur said in 2010 that it appeared that these killings were not carried out “as a matter of state policy,” but the high numbers may indicate otherwise. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, March 31, 2010, UN Doc. A/HRC/14/24/Add.2. Seils. Making Complementarity Work, p. 1005. Interview with OHCHR representative, Bogotá, May 13, 2014. FIDH, Colombia: The War Is Measured in Litres of Blood: False Positives, Crimes against Humanity: Those Most Responsible Enjoy Impunity, May 2012, p. 10. Interview with Head of OHCHR, Bogotá, May 13, 2014. In 2013, the Center for Research and Popular Education alleged that there were still around ten false positives cases. Acuna, Phillip, Ten “False Positives” Cases, 232 Extrajudicial Killings in 2013: Human Rights Organization, Colombia Reports, May 15, 2014. FIDH, Colombia: The War Is Measured in Litres of Blood.

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the Colombian state to conduct these investigations include pressure from various sources, including the OHCHR, the Special Rapporteur on extrajudicial, summary or arbitrary executions,129 the Inter American Human Rights Commission and the conditions laid down for US assistance by the Leahy law.130 Pressure from the ICC has undoubtedly played a part.131 For instance, the military responsible for the San José Apartado peace community massacre was eventually tried.132 The OTP Interim Report of 2012 found that the false positive cases could constitute crimes against humanity.133 The report also notes that high officials were aware of the killings but did not act.134 Trials of higher-level military could constitute an important step forward in prompting accountability for state actors in the Colombian conflict.135 In 2017, the OTP further specified that it had identified five potential cases to date relating to false positives, focusing on different divisions and brigades of the Colombian army, including twenty-nine commanding officers who were reportedly in charge of these units between 2002 and 2009. Proceedings by the Colombian authorities were initiated against seventeen of these twenty-nine, but the status of some of these cases remains uncertain.136 The OTP shared information on this with the Colombian authorities, to incentivize them to take further action. In the Preliminary Examination report of 2020, the OTP reported significant activity by the Colombian AGO on false positives, including 2,314 active cases against 10,949 members of the army involving 3,966 victims of false positive killings. The AGO also provided additional information on the five potential cases identified by the OTP, including proceedings that were being brought against both colonels and majors.137 The Directorate of Prosecutions 1 29 130

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Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, March 31, 2010 UN Doc. A/HRC/14/24/Add.2. The Leahy Law or Leahy amendment is a US human rights law that prohibits the US Department of State and Department of Defense from providing military assistance to foreign military units that violate human rights with impunity. Interview with Head of OHCHR, Bogotá, May 13, 2014. Interview with Head of OHCHR, Bogotá, May 13, 2014. For instance, the military responsible for the San Jose Apartado peace community massacre was eventually tried. Seven peace activists including four children were killed in the crime. Global Post, A Massacre Explored: Murder in the Jungle, March 16, 2010. Global Post, A Massacre Explored: Murder in the Jungle, March 16, 2010. OTP Interim Report, Situation in Colombia, November 2012, para. 95. Ibid., para. 100. Kai Ambos. ICC OTP Report on the Situation in Colombia—A Critical Analysis. www.ejiltalk .org (February 1, 2013). OTP Report on Preliminary Examinations, 2017. OTP Report on Preliminary Examinations, 2020, paras. 137–38.

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before the Supreme Court and the SJP were also pursuing cases against army actors, including against generals, brigadier generals, colonels, and ­lieutenant colonels.138 In February 2021, the SJP announced that it had identified 6,400 cases of “false positive” victims, leading to calls for former President Uribe to appear before the Court.139 This represents a dramatic breakthrough in these cases. The 2012 OTP report on preliminary examinations is one of the most detailed reports the ICC has issued on any preliminary examination. Some have said it concentrates only on a quantitative analysis of the number of open proceeding and indicted persons, without delving into the subject matter of the cases or evaluating their quality.140 However, the report, taken together with subsequent developments, is evidence that the ICC has incentivized domestic proceedings in Colombia through its “shadow effect.” B  Indicators of Genuineness Moreover, the Colombian national proceedings provide valuable lessons on possible indicators of genuineness for other contexts. 1  Absence of Appropriate Punishment Law 975 in its original form did not anticipate imprisonment as a punishment.141 This resulted in challenges by victims and the civil society, which yielded Constitutional Court Decision C-370 of 2006, a decision that amended the Justice and Peace Law in significant ways. The Court decided that the reduced sentences of five to eight years offered by the Justice and Peace law should only be available under certain conditions, including that (1) the offender does not repeat any criminal offense; (2) the offender declares “freely 138 139 1 40

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Ibid., para. 142. Al Jazeera website, Colombian Army “False Positives” Scandal: “No One Listened to Us,” February 23, 2021. Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation. Executive Summary. Some commentators expressed frustration that the OTP’s report only deals with the assessment of national proceedings “in a purely quantitative way and thus leaves out some qualitative aspects of a legal and judicial nature that are indispensable to adequately evaluate the results of the Colombian criminal justice system with regard to the prosecution of international crimes.” Kai Ambo. ICC OTP Report on the Situation in Colombia. Paul Seils. Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes. International Center for Transitional Justice (2016) p. 64: Does a National Court’s Decision on Punishment after Conviction Have a Bearing on Determining of the Proceedings Are Genuine?

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and voluntarily” the facts related to all crimes committed as a member of the illegal armed group, without any “omission or concealment of crimes”142; (3) the victims have rights to participate in various stages of the investigation and prosecution, and punishment is guaranteed; (4) the sentence is served in a regular prison, subsequent to sentencing by a judge, rather than in a “zone of concentration”; and (5) the offender contributes to reparations for the victim through contributing their assets, whether obtained legally or illegally. The OTP in its 2012 report considered the reduced sentences in the JPL “acceptable,” at least to the point of rendering the domestic proceedings against paramilitaries inadmissible.143 The OTP concluded the fact that forty-three out of forty-six paramilitary leaders alive had been investigated, prosecuted, or sentenced for Rome Statute crimes, meant “that these specific cases would not be admissible before the ICC.”144 The issue of appropriate punishment for Rome Statute crimes is complex and is analyzed in Chapter 5. After all, proportionality, which is a principle used in domestic law, is not an adequate standard for meting out punishment for mass atrocities, where the punishment will almost never be proportional to the crime. 2  Casting the Net Too Wide Law 975 encompassed too many alleged perpetrators, including perpetrators who were not senior. The list of targets for prosecutions was not the product of investigation but of an executive decision, which appended a list with roughly 4,714 names on it of persons who already had criminal records.145 The list represented an approach opposite to the prosecutorial strategy of the ICC, with its focus on “those with the greatest responsibility.” The compilation of this list undermined the impartiality of the AGO.146 Around 1,200 alleged perpetrators estimated that the Attorney General did not have evidence against them and withdrew from the process without confessions.147 Moreover, up to 20,000 paramilitaries did not participate in Law 975, instead attempting to avail themselves of Law 782 (2002), which grants pardons for political crimes, or Law 1424 (2010), which grants a form of use immunity for their testimony.148 1 42 1 43 1 44 1 45 1 46

1 47 1 48

Constitutional Claim Decision C-370 de 2006, available on the Constitutional Court website. OTP Interim Report, Situation in Colombia, November 2012, para. 166. Ibid., para. 173. Ibid. Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation, p. 14. The same report says that there are suggestions that the lists of candidates were created by the paramilitaries themselves (p. 15). Ibid., p. 15. Ibid., p. 15.

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Nonetheless, the number of persons who had to be processed under the law was so large as to be unmanageable.149 This is a dilemma common to many national jurisdictions, where the principle of legality requires the prosecution of crimes when there is sufficient evidence. This also applies in Colombia. At the same time, it is now well recognized by international criminal lawyers that prioritization and selection of cases of those bearing the most responsibility for Rome Statute crimes are acceptable also at the national level.150 3  Selecting Low-Level Targets for Investigation and Prosecution A common indicator of genuineness is whether national authorities pursue “system crimes” up the chain of command. The OTP Interim Report of 2012 noted that the Colombian authorities reported that 207 members of the armed forces were convicted for murdering civilians within the ICC temporal jurisdiction, with sentences ranging from nine to fifty-one years. Out of these, at the time, fifty-two convictions were rendered in relation to “false positives.”151 But the OTP acknowledged that in general these prosecutions did not focus on those bearing the greatest responsibility.152 In 2015, HRW said that: “The apparently widespread and systematic extrajudicial killings by troops attached to virtually all brigades in every single division across Colombia point to the conclusion that the highest levels of the army command at least should have known about the killings and may have ordered or otherwise actively furthered their commission.” In 2016, the OTP said it had identified five potential cases relating to the false positives.153 It noted that a significant number of persons (961) had been convicted, but these were mid and lower level.154 In addition, investigations were initiated against fourteen commanding officers, but available information on these was limited.155 The para-politics proceedings likewise did not initially sufficiently expose the responsibility of politicians who “acted as perpetrators-by-means, co-perpetrators, and instigators of many violent crimes in the different regions of Colombia.”156 1 49 150 151 152

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Seils. Making Complementarity Work, p. 1007. See Chapter 4. ICC Interim Report, Situation in Colombia, November 2012, paras. 180–81. Remarks by OTP representative, International Conference Concerning International Humanitarian Law and International Criminal Law in Domestic Law, and Organized Crime, June 20–21, 2013, Pintificia Universidad Javeriana. OTP Report on Preliminary Examination Activities, 2016, para. 242. Ibid., para. 243. Ibid., para. 244. Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation, p. 20.

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Since that time, however, prosecutions on false positives and on connections with illegal armed groups advanced considerably, as noted earlier. 4  Failure to Conduct Independent Investigations ASF in 2009 conducted an extensive analysis of the false positive cases to demonstrate that the Colombian state has no willingness to investigate itself, pointing to numerous deficiencies in the pursuit of these cases. Using statistical data, it argued that a very large proportion of allegations of homicide against members of the armed forces were not pursued beyond the preliminary stage. Many of the cases were lodged under military jurisdiction, which resulted in them being classified as killings committed in the course of duty, rather than homicides. Homicides were not analyzed according to patterns in order to determine who may be at the top of the chain of command. Insider testimony was not used. All of these factors pointed to such an ineffective investigation and prosecution of “false positives” cases so as to constitute a lack of genuine willingness.157 A weakness of Law 975 was its overreliance on confessions, rather than investigations, as a primary source of evidence. Constantly changing rules by the courts applying Law 975, in particular in relation to partial indictments, caused further delays.158 In May 2007, the Constitutional Court ruled that the law should be amended to withdraw benefits from any applicants who did not make “full confessions,” including for all the crimes committed by their subordinates (whether or not they knew about them).159 This led to the bizarre situation of commanders confessing to long lists of crimes they themselves put together, but may not have known about. In the absence of an equivalent of superior responsibility in Colombian law, prosecutors then attempted to bring partial indictments to remedy this problem, but the courts rejected this.160 This problem was compounded by the fact that the Justice and Peace Unit of the Fiscalia for many years lacked the capacity and the tools to conduct effective and independent investigations on information gathered from the version libres (voluntary confessions) and from other sources. The cases they were able to compile were insufficiently tailored to mass crimes.161 As observed by one 157

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Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation, pp. 24–42: “Homicides to Win and Cover Up: The Institutional Lie Escaping Investigation.” Ibid., p. 17. Seils. Making Complementarity Work, p. 1008. Ibid., p. 1008. See remarks of Mr. Juan Pablo Cadona in the Report of the expert conference, In the Shadow of the ICC: Colombia and International Criminal Justice, Convened by the Human Rights Consortium, the Institute of Commonwealth Studies, and the Institute for the Study of the Americas at the School of Advanced Study, University of London, May 26–27, 2011 p. 41.

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commentator: “The procedural advances do not respond to the gravity or patterns of crimes; there are paramilitaries indicted for isolated homicides with no connection to a broader context of violence or attack on the civilian population.”162 The version libres gave rise to a serious bottleneck in the streamlining of the process through to the “formulation and attribution of charges” or trial stages.163 By 2013, it was already clear that many paramilitaries would serve out their minimum ­sentences of five to eight years before concluding their judicial proceedings. 5  Use of Military Jurisdiction or Structures to Shield Perpetrators The military enjoys a high degree of respect in Colombian society. The Ministry of Defence in Colombia is a powerful institution that controls both the military and the police, with limited civilian oversight.164 Many cases that ought to be transferred to civilian jurisdiction are not, remaining with military jurisdiction where victims do not have the same rights.165 In 2012, the Colombian government proposed constitutional amendments to Articles 116, 152, and 221, seeking to transfer cases from civilian to military jurisdiction, based on notions of personal jurisdiction, known as the “Military Justice Reform.” This would apply to all crimes committed by the military “related to acts of military service,” except genocide and certain crimes against humanity, including enforced disappearances, extrajudicial executions, sexual violence, torture, and forced displacement. Other violations, such as certain war crimes and arbitrary detention, would only be investigated and tried by military courts. The reforms suggested a definition of “direct participation in hostilities” which diverges from that of the ICRC and is much broader.166 The Congress adopted the Amendment in a statutory law in June 2013. The reforms were criticized by the United Nations and human rights group on the ground who said that military jurisdiction often equals lenience and the reform is at odds with international human rights standards and threatens to deny justice to victims.167 The Constitutional Court 162

163 164 165 166 167

Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation, p. 17. Steps were taken to remedy this through the establishment of a Context and Analysis Unit (UNAC) in the Prosecutor’s office. Avocats sans Frontiers. The Principle of Complementarity in the Rome Statute and the Colombian Situation, p. 17. While the Senate appoints generals, this is considered rubber-stamping. Interview with Member of the High Judicial Council, Bogotá, May 14, 2014. OTP Report on Preliminary Examinations, 2013, para. 135. UN News Centre, UN Independent Experts Urge Colombia to Reconsider Proposed Criminal Law for the Military, October 22, 2012. UN News Centre, UN Human Rights Office Concerned over Colombia’s Military Justice Reform Bid, November 27, 2012. Zach Eding, Colombia’s Military Justice Reform Could Lead to ICC Intervention, Colombia Reports, November 19, 2012.

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struck down the law in October 2013 on a technical ground, and it did not enter into force.168

V  The Tale of Kwoyelo: Internalization without (a) Conviction? What if a domestic proceeding does take place but does not result in a conviction? Is it still evidence of internalization? An example is the trial of LRA commander Colonel Thomas Kwoyelo before the ICD in Uganda.169 The proceedings started with his capture in 2008 and remain unfinished in 2021. (By comparison, Ongwen was surrendered to the ICC in January 2015, and he was convicted by the ICC on February 4, 2021.) This again calls into question whether the trial displays internalization or whether there is a lack of genuineness on behalf of the Ugandan government to pursue such cases. The Kwoyelo trial did impact on the national debate on accountability and whether amnesty is an appropriate tool in the reintegration of the LRA in Northern Uganda. While the crimes he is accused of are serious, Kwoyelo was not of senior rank in the LRA and fell outside the purview of the ICC.170 Kwoyelo was captured in Garamba in 2008, but the circumstances of his capture remain unclear. On March 18, 2010, the Commission forwarded the application to the Department of Public Prosecutions, stating that it believed Kwoyelo qualified for amnesty. Instead, on September 6, 2010, the DPP charged Kwoyelo with various offences of Grave Breaches under Article 147 of the Fourth Geneva Convention (criminalized through Uganda’s Geneva Conventions Act).171 He was also charged with various domestic offences under the Penal Code Act, including murder, kidnap with intent to murder, robbery with aggravation, and attempted murder. Kwoyelo entered a plea of not guilty to all charges. (He was charged with ninety-three counts between 1993 and 2005 in Amuru district.172) Kwoyelo filed a petition to the Ugandan Constitutional 168 169

170 171 172

Daniel Freeman. Colombia’s Constitutional Court Knocks Down Controversial Military Justice Reform Law, October 24, 2013. Sarah Nouwen. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press (2013) p. 231: “The Kwoyelo case is so far the only case indirectly catalyzed by the ICC’s complementarity principle.” See also interview with Ledio Cakaj in the International Justice Tribune, January 12, 2017, by Stephanie van den Berg. Uganda v. Kwoyelo Thomas Alias Latoni, Amended Indictment, International Crimes Division of the High Court of Uganda at Kampala, July 5, 2011. Grace Matsiko. 12 Years on, Uganda’s International Crimes Division Has Little to Show, March 9, 2020, Justicinfo.net.

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Court,173 arguing that the failure by the Director of Public Prosecutions and the Amnesty Commission was discriminatory according to Article 121 of the Ugandan Constitution. Kwoyelo pointed to the fact that the DPP and the Amnesty Commission granted amnesty certificates to other LRA commanders, such as Kenneth Banya and Sam Kolo, captured under similar circumstances in 2004. The Attorney General, however, argued that the amnesty violated Uganda’s legal obligations assumed under the Rome Statute.174 She noted that Uganda’s foreign policy supported the prosecution of international crimes as illustrated in its enactment of the Rome Statute and the establishment of the International Crimes Division. The Attorney General cited a variety of international law sources to argue that a blanket amnesty is in violation of Uganda’s international law obligations.175 In a decision rendered on September 22, 2011, the Constitutional Court ruled in favor of Thomas Kwoyelo.176 The Constitutional Court argued: “The Act was meant to be used as one of the many possible ways of bringing a rebellion to an end by granting amnesty to those who renounced their activities … The Act is also in line with national objectives and principles of State policy and our historical past which was

173

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Constitutional Petition No. 036/11 (Reference) arising out of HCT-00-ICD-Case No. 02/10 between Thomas Kwoyelo Alias Latoni (Applicant) and Uganda (Respondent), Constitutional Court of Uganda, September 22, 2011. Article 287 states that “Where (a) any treaty, agreement or convention with any country or international organization was made or affirmed by Uganda or the Government on or after the ninth day of October 1962, and was still in force immediately before the coming into force of this Constitution; or (b) Uganda or the Government was otherwise a party immediately before the coming into force of this Constitution to any such treaty, agreement or convention, the treaty, agreement or convention shall not be affected by the coming into force of this Constitution; and Uganda or the Government as the case may be, shall continue to be a party to it.” The Attorney General argued that the amnesty is unconstitutional because it granted amnesty for war crimes, including grave breaches of the Geneva Conventions to which Uganda is a party and that Article 287 recognized the validity of ratified treaties under Ugandan law such as the Geneva Conventions Act. International authorities cited by the Attorney General included the Inter-American Court of Human Rights, Barrios Altos v. Peru, Judgment March 14, 2001; Prosecutor v. Morris Kallon and Brima Bazzy Kamara (SCSL 2004–15/16-AR72); Prosecutor v. Anton Furundžija, Judgment, December 10, 1998 (IT-95-17/1-T). Kwoyelo’s counsel cited Hamdard Dawakhana (Wakf) Lal Delhi and Others v. Union of India and Others, 1960 AIR 554, 1960 SCR (2) 671 to argue that in examining the c­ onstitutionality of a law, the constitutional court can take into account factors such as the history and p ­ urpose of the legislation and the “mischief it intended to suppress.” He also cited Azanian Peoples’ Organization and 7 Others v. President of South Africa and Others (CCT 17/96) [1996] ZACC 16, the well-known South African Constitutional Court decision upholding the constitutionality of certain provisions of the South African Truth and Reconciliation Act, including the amnesty provision.

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characterized by political and constitutional instability.”177 It went on to hold that the indictment of senior LRA leaders “[c]learly shows that Uganda is aware of its international obligations, while at the same time it can use the law of amnesty to solve domestic problems.”178 However, this was not the end of the story. The case was referred to the Supreme Court, but once there, it faced extensive delay due to a lack of quorum. A final decision was rendered only on April 8, 2015. First, the Supreme Court decided that there is no uniform practice in respect of amnesties. Uganda had opted for a “dual conflict response model” of peace and accountability, but the Amnesty Act effectively covers crimes committed in the cause of war or armed rebellion. The Supreme Court found that crimes against innocent civilians or communities could not qualify as such and should not be amnestied.179 The Court therefore referred the Kwoyelo case back to the High Court’s ICD for trial. The Kwoyelo case temporarily prompted much interest in Uganda and abroad. It provoked a longer-term discussion on the compatibility of amnesty with international obligations.180 While the case gave rise to important debates in Uganda, the outreach function of the ICD proved difficult to finance and staff.181 The ICD did receive permission to broadcast the proceedings through government-owned radio stations.182 Since that time, the Kwoyelo trial has been delayed incessantly, to the point that the African Commission for human rights has ruled the delay a violation of Articles 3 and 7 of the African Charter. One of his defense lawyers has said that perhaps Kwoyelo would have preferred to be tried by the ICC.183 Pretrial 177

178

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Constitutional Petition No. 036/11 (Reference) arising out of HCT-00-ICD-Case No. 02/10 between Thomas Kwoyelo Alias Latoni (Applicant) and Uganda (Respondent), Constitutional Court of Uganda, September 22, 2011, at lines 500–10. The Constitutional Court noted that the UPDF, as state agents, is not eligible for amnesties and that this makes it different from the South African Truth and Reconciliation Act, which “granted amnesty to all wrong doers within the apartheid government and within the rebel ranks.” Constitutional Petition No. 036/11 (Reference) arising out of HCT-00-ICD-Case No. 02/10 between Thomas Kwoyelo Alias Latoni (Applicant) and Uganda (Respondent), Constitutional Court of Uganda, September 22, 2011, lines 595–600. Sharon Nakanda. Supreme Court of Uganda Rules on the Application of the Amnesty Act, International Justice Monitor, April 16, 2015. www.ijmonitor.org. The judges referred to the Juba agreement as indicating that the Ugandan government wishes to pursue accountability, and they concluded that impunity couldn’t bring about peace. Stephanie van den Berg. Interview with Ledio Cakaj, International Justice Tribune, January 12, 2017. Sharon Nakanda. The Kwoyelo Case at the ICD: The Realities of Complementary in Practice, International Justice Monitor, May 5, 2016. Ibid. Sharon Nakanda. Complementarity Reality Check: The Case of Uganda’s International Crimes Division, International Justice Monitor, June 21, 2020.

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hearings and a lack of clarity over the rules of procedure, including the scope of victim participation, have taken much time. Further delays were caused in the turnover of judges. The ICD, which is a division of the High Court, tried a terrorism case in the interim and concluded that much faster. The judges are not full time. Only in 2019 was the case picked up by new judges, who opened a stakeholders forum to discuss progress in the trial, involving the ICD judges, prosecution, defense, victim’s counsel, and the Justice Law and Order Sector Uganda (JLOS) advisor. The defense counsel has said that they have insufficient resources for investigation.184 The trial eventually opened in March 2019, but before the outbreak of the COVID-19 pandemic in March 2020, the ICD had succeeded in hearing only a few prosecution witnesses. In the perception of certain victims, the delays amount to a denial of justice.185 In the words of one commentator, “a deterministic state building logic prioritized ‘building capacity’ for the ICD and ensuring the correct legal frameworks and procedures were in place, but this neglected the ‘real politics’ of war crimes accountability in Uganda.”186 In June 2020, the International Justice Monitor, the main international source for news about the Kwoyelo trial, announced it will no longer be monitoring it. It remains unclear whether the Kwoyelo trial has resulted in “internalization” of international norms in Uganda.

VI  Conclusion: Systemic Effect in Domestic Legal Systems Systemic effect can be viewed as a process of internalization of Rome Statute norms. This is part of the normative impact of the Rome Statute and of the Court. Ideally, internalization can be a profound process: Al-Naim suggests in the context of international human rights that a “desirable approach … is to seek to diminish the negative consequence of the paradox of self-regulation by infusing the human rights ethos into the fabric of the state itself and the global context in which it operates.”187 Likewise, the Rome Statute can be infused into the fabric of states themselves through legislation, specialized capacities, and ultimately domestic 184 185 186

187

Ibid. Lino Owor Ogora. Civil Society in Uganda Express Mixed Reactions over Kwoyelo Trial as Proceedings Remain on Hold, International Justice Monitor, June 22, 2020. Anna Macdonald. “Somehow This Whole Process Became So Artificial”: Exploring the Transitional Justice Implementation Gap in Uganda. International Journal of Transitional Justice, Vol. 13, No. 2 (July 2019) pp. 225–48. Own emphasis. An-Naim, Abdullah Ahmed in the Blackwell Companion to Sociology, edited by Judith Blau. Blackwell Publishers (2002) pp. 90–91.

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proceedings. At first, this impact may be felt mainly on the level of law, but ultimately, it can also result in social impact or “demonstration effect.” As observed by Mégret, “ICC implementation could thus be characterized as less about certain forms and more about certain goals, emphasizing a degree of political and social preparedness about the need to deal with the worst crimes.”188 That is not yet the case today. As observed by Drumbl, some “mimicry” accompanies internalization, as can be seen in the proceedings of the ICD in Uganda. However, the establishment of legal frameworks and institutions may still represent a step forward in building local capacity to investigate and prosecute Rome Statute crimes in the future, therefore contributing to longterm prevention and a culture of accountability. Domestic proceedings for Rome Statute crimes are the most important indicator of internalization and are taking place in many countries under ICC scrutiny, including those outside the scope of this study. Domestic proceedings are difficult to analyze for genuineness, but are one of the most important systemic effects, and may contribute to ending impunity, the overall goal of the Rome Statute. Domestic trials have important potential to play an expressive function and to constitute meaningful justice for local audiences.189 Domestic trials can also contribute to national debates on Rome Statute norms, which in itself may contribute to internalization over time, as societies grapple with how to confront impunity. Colombia is often highlighted by the Court itself as the most significant example of “positive complementarity.” While the involvement of the ICC helped to promote national trials, other factors also played a part. In Colombia, the rule of law in society is more prominent than it is in countries such as Afghanistan or Libya. Colombia has a robust and independent legal system, particularly at the levels of the Constitutional Court and Supreme Court. The regional human rights system, with the Inter-American Commission and Court, can also be credited for promoting domestic investigations and prosecutions.190 This points to another irony in the Rome Statute system. The example of Colombia suggests that the impact of ICC in terms of incentivizing domestic proceedings is more likely found in countries that already have robust legal systems, as opposed to those where the role of law is weaker. According to 188 189

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Mégret. Too Much of a Good Thing? p. 390. Frederic Mégret and Marika Giles Samson. Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials. Journal of International Criminal Justice (2013) pp. 571–89. Interview with OHCHR representative, November 9, 2013.

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Voeten, “both across and within countries, citizens who trust their domestic courts more also have more trust in international courts … [C]itizens see international courts not as substitutes for, but as extensions to the domestic rule of law.”191 This conclusion is troubling because it could be that the Rome Statute and the Court are having the most impact in countries where they are needed the least. This is yet another form of parallelism. Where respect for the rule of law is stronger and where local courts play an important role, the Court as an instrument of law is more feared and respected. 191

Erik Voeten. Public Opinion and the Legitimacy of International Courts. Theoretical Inquiries in Law, Vol. 14 (2013) p. 414.

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4 Transformative Effect I A Paradigm Shift in Peace Negotiations?

Peace is more important than all justice; and peace was not made for the sake of justice, but justice for the sake of peace. Martin Luther On the horns of a dilemma, there is no room for dogma. Barney Afako, Uganda1

I Introduction The following chapters will discuss whether the existence of the Rome Statute and the ICC as instruments of law are having a transformative effect on peace proce­sses. As discussed in Chapter 1, the logic of the Rome Statute is that effective investig­ ation and prosecution will contribute to prevention of the world’s worst crimes. While the Rome Statute has different provisions that enable the Prosecutor, the Court, and the Security Council to balance peace and justice in Articles 16 and 53, these are underutilized.2 The tension between peace and justice also brings into focus tensions between law and justice. This chapter will first discuss the legal framework for the peace versus jus­ tice dilemma. During the ICC Review Conference in Kampala in 2010, the Prosecutor said: “Let me conclude on peace and justice. … We cannot both claim that we will “never again” let atrocities happen and continue to appease 1

Barney Afako. Undermining the LRA: Role of Uganda’s Amnesty Act, Conciliation Resources, August 2012. 2 Article 16 states: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted by Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

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the criminals, conducting “business as usual.”3 Other speakers referred to a “paradigm shift, in which there was now a positive relation between peace and justice.”4 Amnesties were considered “no longer an option” and “mediators had to find ways to convince parties to come to the negotiating table against a back­ drop of actual or possible indictments.”5 Nonetheless, as this chapter will demonstrate, in spite of these definitive statements, the dilemmas posed by peace and justice are not yet resolved. Dilemmas remain, including questions of who sets the parameters and what is the role of victims, whether arrest warrants pose an obstacle to peaceful solutions in specific contexts, and the application of amnesty laws. In this respect, tracing the transformative effect of the Rome Statute and the ICC requires going beyond the legal framework and analyzing transfor­ mative effect in specific situations. Chapter 5 will analyze the impact of the Rome Statute on peace negotiations in Uganda and Colombia.

II  Setting the Parameters: The New Legal Limits A  Article 16: Reluctance of the Security Council? Article 16, which allows the Security Council to defer an investigation for six months, was a result of the “Singapore compromise,” intended to balance two radically different views of the ICC, one in which the Court would be sub­ servient to the Security Council, and another of an independent court which could act on its own, irrespective of the Security Council.6 In spite of its potentially crucial role in balancing peace and justice, in the first twelve years, deferrals have been used, but Article 16 has not yet been used to suspend an ongoing investigation. During the Ugandan Peace Talks, Article 16 was contemplated on several occasions, but Uganda was not on the Security Council agenda, which raised practical problems in request­ ing an Article 16 deferral.7 Deferrals were voted on in the cases of Al-Bashir 3

Luis Moreno Ocampo. Prosecutor of the International Criminal Court, Review Conference General Debate. Statement, Kampala, May 31, 2010. 4 Moderator’s Summary of Stocktaking of International Criminal Justice, Peace and Justice, RC/11 at para. 29 (2010). 5 Ibid., para. 31. 6 William Schabas. The International Criminal Court: A Commentary on the Rome Statute. Oxford University Press (2010) pp. 326–27. 7 Juba Agreement on Implementing and Monitoring Mechanisms, section 37. The parties to the peace talks in Uganda included a provision late in the talks to agree that the government of Uganda would request a Security Council deferral.

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and Kenyatta, but did not succeed in getting the requisite votes.8 The Council has seemingly been reluctant to use Article 16 in practice, perhaps because of the perceived impact on the credibility of the Court.9 B  Article 53: An Uncompromising Prosecutor South African delegates raised the possibility of amnesties during the Rome Statute negotiations,10 but their attempts found no consensus and no expression in the Statute.11 A non-paper drafted by the US delegation in August 1997 also tabled the suggestion that the ICC should recognize amnesties to facilitate transitions to democracy. This eventually led to the inclusion of Article 53 in the Statute.12 According to Article 53, the Prosecutor can choose to suspend an investigation or prosecution “in the interests of justice,” a decision that is reviewable by the PTC. The inclusion of this article led to extensive discussions on whether the interests of justice can demand that an investigation or prosecution be halted in the “inter­ ests of peace.” Shortly after the Rome Statute came into force, experts argued that the “interests of justice” should be interpreted broadly.13 Phillip Kirsch noted that this phrase was included in the Rome Statute to allow for “creative ambiguity” in possibly recognizing amnesties.14 The expert group on complementarity in 2003 argued that the “stance of the OTP with respect to alternative forms of justice should probably be framed, conceptually, under Article 53.”15 Daryl Robinson argued that Article 53 juxtaposes the gravity of the crime and interests of victims with the interests of justice, therefore indicating that the latter may trump the former.16 8

UN Doc S/RES/1828 (2008). See also Robert Cryer. Prosecuting the Leaders: Promises, Politics and Practicalities. Gottingen Journal of International Law, Vol. 1 (2009) 45 p. 68. Decision Ext/Assembly/AU/Dec. 1 (October 2013). 9 David Bosco. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press (2014) p. 181. 10 South Africa’s delegation shared its experience, but beyond Articles 16 and 53, nothing definitive was included in the Statute. William Schabas. Complementarity in Practice: Some Uncomplimentary Thoughts. Criminal Law Forum (2008) p. 22. 11 There were those who “had misgivings about laying down an iron rule for all time, mandat­ ing prosecutions as the only acceptable response in all situations”: Daryl Robinson. Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court. European Journal of International Law (June 2003) p. 483. 12 Michael Scharf. The Amnesty Exception to the Jurisdiction of the International Criminal Court. Cornell International Law Journal, Vol. 31 (1999) p. 507. 13 Priscilla Hayner. The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict. Routledge (2018) pp. 100–2. 14 Ibid., p. 522. 15 Informal expert paper: The Principle of Complementarity in Practice, ICC-OTP (2003) p. 71. 16 Daryl Robinson. Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court. European Journal of International Law (June 2003) p. 488.

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The wording of Article 53, which requires the Prosecutor to take into account the gravity of the crimes and the interests of victims on the one hand, and the interests of justice on the other, seems to support the view that a balancing test is required. In this respect, some scholars have argued that the “interests of justice” is akin to “public interest” considerations in domestic legal systems. Human rights organizations, however, have argued that the meaning is narrower and refers to considerations in a specific case and not to an overall policy objective.17 HRW and AI argue that a broader interpretation would be contrary to the object and purpose of the Rome Statute.18 HRW has suggested that any such considerations would fall into the realm of the “­political” and would be inappropriate to consider.19 Originally, the OTP seemed to favor a broader interpretation.20 In announc­ ing the arrest warrants in Uganda in 2005, the Prosecutor said that the ICC would “help bring justice, peace and security for the people of Northern Uganda.”21 During the negotiations led by Betty Bigombe, the Prosecutor mentioned that the warrants were still reversible under Article 53, creating the impression of a process similar to a “tap” that could be turned on or off, rather than an unstoppable “train” set on a certain course. At a meeting with traditional and religious leaders from Northern Uganda in The Hague, the Prosecutor suggested that Article 53 could be used to suspend investigations.22 However, the policy paper on “the interests of justice” issued in 2007 elimi­ nated the space for “creative ambiguity.” The paper stressed that “the exer­ cise of the Prosecutor’s discretion under Article 53(1) (c) and Article 53(2)(c) is exceptional in its nature and that there is a presumption in favor of investiga­ tion and prosecution.” Secondly, it argued that the criteria of the “interests of justice” test should be informed by the objects and purposes of the Statute, namely the prevention of serious crimes of concern to the international community through ending impunity. Thirdly, the paper states, “there is a

17

18 19 20

21 22

Carsten Stahn. Complementarity, Amnesties and Alternative Forms of Justice:  Some  Inter­ pretative Guidelines for the International Criminal Court. Journal of International Criminal Justice, Vol. 3 (2005) p. 718. HRW. Policy Paper: The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute, June 2005. Ibid., p. 7. Matthew Brubacher. The ICC Investigation of the Lord’s Resistance Army, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 263. Statement by Luis Moreno Ocampo. Prosecutor of the International Criminal Court, The Hague, October 14, 2005. IRIN News Kenya, Uganda: ICC Could Suspend Northern Investigations—Spokesman, April 18, 2005.

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difference between the concepts of the interests of justice and the interests of peace” and finds that “the latter falls within the mandate of institutions other than the Office of the Prosecutor.”23 The Policy Paper argued that the responsibility for peace remains with the Security Council, and that “the interests of justice provision should not be considered a conflict management tool requiring the Prosecutor assume the role of a mediator in political negotiations.”24 The paper argues that the word­ ing of Article 53(1)(c) implies that the interests of victims “will generally weigh in favor of prosecution.” The paper states that other justice mechanisms are to be considered relevant only as complementary, or in addressing the “impunity gap” (reverting to a Court-centric view, as discussed in Chapter 2). Essentially, the Prosecutor positioned the Court as an instrument of law only. During the Juba Peace negotiations in 2007–2009, the Prosecutor main­ tained this hard line as described in the policy paper.25 Court officials were skeptical that the talks would yield anything and viewed it mainly as an attempt by the LRA to regroup and rearm.26 The Prosecutor took a strong stance that the arrest warrants ought to be enforced in spite of the talks.27 At the Nuremberg Conference in 2007, speaking in the historic courtroom where the Nazi leadership was tried, the Prosecutor said: “If States Parties do not actively support the Court, in this area as in others, then they are actively undermining it. … It is the lack of enforcement of the Court’s decisions which is the real threat to enduring Peace.”28 HRW shared this view: “[E]xperience indicates that justice, rather than being an obstacle, is a precondition for meaningful peace.”29 At the Review Conference in Kampala in 2010, the Chief Prosecutor reiterated: “Let me conclude on peace and justice. … The Prosecutor and Judges cannot and will not take political considerations into account. 23 24 25

26

27 28

29

OTP Policy Paper on the Interests of Justice, September 2007, pp. 1–2. Policy Paper on Preliminary Examinations, October 4, 2010. Paul Seils. The Impact of the ICC on Peace Negotiations, Expert Paper Workshop 7: The Impact of the International Criminal Court, Conference on Building a Future on Peace and Justice, Nuremberg, June 25–27, 2007: “The Rome Statute provides the legal framework in which the discussion about the pursuit for peace must be circumscribed.” Matthew Brubacher. The ICC Investigation of the Lord’s Resistance Army, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 263. Interview with civil society activist, February 6, 2014. Address by Luis Moreno Ocampo, Prosecutor of the International Criminal Court, June 25, 2007, International Conference “Building a Future on Peace and Justice,” Nuremberg. Own emphasis. HRW Policy Paper: The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute, June 2005.

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This was a conscious decision to force political actors to adjust to the new legal limits.”30 Other speakers also argued that peace and justice are fundamentally complementary, and that any conflict between them is virtually imagined.31 Only one speaker took a much more cautious line, arguing that arrest warrants had hindered the successful conclusion of a peace agreement in Uganda, and that “The Ugandan people and the international community would have to live with the consequences of that decision.”32 In 2012, when peace talks were just commencing in Colombia, the Prosecutor still maintained this hard line when she said: “The international community has put in place some clear divisions of responsibility. The UN Security Council is in charge of peace and security. The ICC is doing jus­ tice.”33 In a press release in April 2013, the OTP again insisted on the role of the Rome Statute’s legal framework in “underpinning durable solutions that provide for both peace and justice.”34 Fatou Bensouda reiterated in the New York Times: “The debate about peace versus justice or peace over justice is a patently false choice. Peace and justice are two sides of the same coin. The road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.”35 Later on, when the peace negotiations in Colombia advanced, the Prosecutor stated: “To preserve its impartiality, the Office cannot participate in peace initiatives, but it makes clear that any proposed solutions in peace talks have to be compatible with the Rome Statute. It will inform the political actors of its actions in advance, so they can factor the Court into their activi­ ties.”36 The Prosecutor’s position is controversial and is approaching one of fiat

30 31

32 33

34 35 36

Ocampo, Prosecutor of the International Criminal Court. The Prosecutor called for four pledges at the Review Conference, including public and dip­ lomatic support to executing arrest warrants, severance of nonessential contacts with persons who are the object of an ICC arrest warrants, cutting off the supply networks of those per­ sons, and providing concrete support for arrest operations. Barney Afako. Moderator’s Summary of Stocktaking of International Criminal Justice, Peace and Justice, RC/11 (2010) para. 2. Fatou Bensouda, Seminar Institute for Security Studies (ISS): Setting the Record Straight—the ICC’s New Prosecutor Responds to African Concerns: Reconciling the Independent Role of the ICC Prosecutor with Conflict Resolution Initiatives, Keynote address, Pretoria, October 10, 2012. Press Release, ICC Office of the Prosecutor concludes visit to Colombia, April 19, 2013. Fatou Bensouda. New York Times Op-Ed, International Justice and Diplomacy, March 19, 2013. Fatou Bensouda. Seminar Institute for Security Studies (ISS): Setting the Record Straight—the ICC’s New Prosecutor Responds to African Concerns, Reconciling the Independent Role of the ICC Prosecutor with Conflict Resolution Initiatives, Keynote address, Pretoria, October 10, 2012.

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justitia ruat caelum (Let justice be done though the heavens fall).37 It exac­ erbates tensions between law and justice. C  Interests of Justice: An Overly Compromising PTC If the Prosecutor’s stance on interests of justice is too rigid, the PTC, when deciding on the Prosecutor’s request to proceed with an investigation in Afghanistan, went to the other extreme in being overly pragmatic. On April 12, 2019, PTC II unanimously rejected the Prosecutor’s request to open an investigation in Afghanistan, stating that this would not serve the interest of justice. The PTC found that sufficient information existed that war crimes and crimes against humanity were committed by Taliban, Afghan govern­ ment, and US forces after May 1, 2003, and that there were no national pro­ ceedings ongoing. But it still found that proceeding with an investigation was not in the interests of justice, considering the significant time that had elapsed since the opening of the preliminary examination in 2006, and the lack of state cooperation which the Prosecutor had received, noting that this coopera­ tion would only become more difficult in light of current “changes within the relevant political landscape.” The PTC found that the likelihood that relevant evidence and suspects may be available and within reach was too low. This would make the chances of a successful investigation and prosecution slim. The PTC therefore argued that the Court should use its resources on more promising cases.38 The decision implies that the Court is not made for the “hard cases”: The Court is not meant—or equipped—to address any and all scenarios where the most serious international crimes might have been committed; therefore, focusing on those scenarios where the prospects for successful and meaningful investigations are serious and substantive is key to its ultimate success.39

37

38

39

Priscilla Hayner argues that this approach should be revised on three grounds: (1) holding off on prosecutions may lead to better justice later, after a conclusion of a peace agreement; (2) the concept of “justice” should be understood more broadly than criminal prosecutions of a few perpetrators; and (3) ending war may be inherently in the interests of justice and in the interest of preventing further atrocities, irrespective of new justice initiatives included in a peace deal. Priscilla Hayner. The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict. Routledge (2018) pp. 105–6. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan, Pre-Trial Chamber II Decision, ICC-02/17-33, April 12, 2019. Ibid., para. 90.

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The PTC interpreted the “interests of justice” test against the global mandate of the Court and the question of its limited resources.40 The PTC decision was heavily criticized on both procedural and substantive grounds,41 with some arguing that it rested on nonlegal or political grounds, and that the judges “have handed states a playbook to insulate themselves from the law’s reach.”42 Many felt the credibility of the Court was fundamentally at stake, as the decision was seen to reward uncooperative States (in this case, both Afghanistan and the United States). On March 5, 2020, the Appeals Chamber overturned the PTC’s deci­ sion, ruling that the PTC had erred in considering the “interests of justice” when examining the OTP request to open an investigation. The PTC should have addressed only whether there was a reasonable basis for the Prosecutor to proceed with an investigation, and whether the potential cases would fall within the Court’s jurisdiction. It was not authorized to apply the “interests of justice” test. The Appeals Chamber itself decided to authorize the opening of the investigation.43 On the other hand, the Appeals Chamber did not shed any further light on how the interests of justice ought to be interpreted. Between the uncompromising position of the Prosecutor and the overly pragmatic position of the PTC exists a spectrum of options on what the inter­ ests of justice should mean, in order to reach just solutions. The interests of victims ought to be a central consideration.

III  Who Sets the Parameters? The Interests of Victims In asserting that the interests of victims “will generally weigh in favor of pros­ ecution,” the OTP policy paper disregards two fundamental issues. First, do victims have an interest in peace that the ICC ought to consider? And second, do the interests of victims in justice span beyond prosecutions? The first is a complex issue, as it raises logistical questions about how the ICC should discern the views of victims in any given situation. In some

40 41 42 43

For further discussion on the question of resources, see Appendix A. See for instance Chistian de Vos. International Justice Monitor: No ICC Investigation in Afghanistan: A Bad Decision with Big Implications, April 15, 2019. OpenGlobalRights. In Afghanistan, the ICC Abandons the Field, Param-Preet Singh, April 23, 2019. ICC Appeals Chamber Judgment on the Appeal Against the Decision on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-138, March 5, 2020.

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situations, the “do no harm” principle may mean that the interests of victims weigh against proceeding with prosecutions in cases where victims face addi­ tional violence or harm, including through prolonged conflict.44 A “do no harm assessment” goes beyond a mere operational assessment of protection obligations in relation to individual witnesses. In the situation on Afghanistan, the ICC gathered information of the impact of the conflict on women and girls as a step toward the do no harm principle.45 But experience in how to manage this highly complex issue remains scant. The situation in Northern Uganda raised the question of what the Court should do if victims or their representatives express opposition to an ICC intervention, or support a peace agreement that proposes justice measures other than the ICC. This in turn raises a highly complex question of who legitimately repre­ sents victims. In Northern Uganda, the religious and local leaders and the humanitarian organizations were on one side. On the other side were the human rights organizations and international actors supporting the ICC. The latter often questioned the legitimacy and integrity of the former local actors, 46 sometimes equating opposition to the ICC with opposition to jus­ tice.47 The “local actors” in turn made a strong argument that it was the ICC intervention that lacked legitimacy. They argued that the ICC had entered Uganda at the invitation of President Museveni, himself a party to the con­ flict. They also argued that the ICC would be ineffective, due to its inability to enforce its arrest warrants, and that it would reinforce a military solution to the conflict. Most of all, they argued that the form of justice that the ICC would deliver was not relevant to the victim communities. As argued by Lucy Hovil: “to the people of Northern Uganda, justice looked like an opportunity 44

45 46 47

Carlos Niño describes in his book the end of the military dictatorship in Argentina: “Even though Alfonsin believed that punishment of the worst abuses were essential for the longterm consolidation of democracy, he was also fully aware that a miscalculation could jeop­ ardize democracy. … Therefore, if he threatened democracy through trials and weighty sentences to discourage human rights violations, he might in fact be risking future viola­ tions.” Carlos Niño. Radical Evil on Trial. Yale University (1996). See also Maria Varaki. Revising the “Interests of Justice” Policy Paper. Journal of International Criminal Justice, Vol. 15, No. 3, pp. 455–70. OTP Report on Preliminary Examination Activities 2016, para. 227. Lucy Hovil. Challenging International Justice: The Initial Years of the International Criminal Court’s Intervention in Uganda. Stability, Vol. 2, No. 1 (2013) Ibid., p. 8. Ibid., p. 5: “By questioning the ICC’s involvement at that point in the conflict, those who criticized the intervention were not turning their backs on the promotion of justice. Rather, they were demanding more justice: justice that was robust and genuinely engaged with the context; justice that would contribute to, or at least complement, the promotion of fair and equal governance; and justice that would deliver.”

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to go home in safety and then pursue appropriate forms of justice.”48 In the words of Adam Branch: The decision, on the one hand, to seek justice through punishment or, on the other, to forgo punishment in favor or justice through reconciliation, is a decision that must be made by the concrete community that is the victim of the crimes and that will have to live with the consequences of the decision. “Humanity” is too thin a community upon which to base a universal right to punish.49

Prior to the Juba peace process in 2006–2008, this debate became polarized on whether or not international justice and traditional forms justice belong­ ing to the Acholi are complementary.50 According to Tim Allen, the ICC involvement in Uganda entrenched the traditional justice movement to the extent that it became unpopular to pose questions or proffer views against it.51 Allen argued that Ugandans “like decent people everywhere else, … require a functioning state to make the best of their lives, including conventional forms of legal protection from those who may oppress them.”52 In Sarah Nouwen’s observation, the promotion of local justice was a form of resistance against the international justice movement, and succeeded in attracting its own donor investment.53 While traditional and religious leaders, as well as humanitarian organizations in Northern Uganda, insisted that the majority of the population opposed the ICC, the views of the affected population were much more diverse. Allen continued to argue:54 “Most of those I spoke to in the displacement camps mixed concern about the security implications of issuing warrants for the arrest of Kony and his

48 49 50 51

52 53 54

Ibid., p. 7. Adam Branch. International Justice, Local Justice: The International Criminal Court in Northern Uganda. Dissent (Summer 2004) p. 22. Sarah Nouwen. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press (2013) pp. 152–53. Tim Allen. Bitter Roots: The “Invention” of Acholi Traditional Justice, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) pp. 242–43. Tim Allen. Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark. Royal African Society (2008) p. 52. Allen. Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda, p. 52. Nouwen. Complementarity in the Line of Fire, pp. 147–49. Tim Allen. Trial Justice: The International Criminal Court and the Lord’s Resistance Army, African Arguments (2006) p. 138. For instance, Walter Ochora, the local council chairman in Gulu in 2005 with extensive contact with the LRA, commented that there were many reasons why the LRA chose to remain in the bush, including access to power and women, and that the ICC would not negatively affect the ability to deal with the LRA.

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senior commanders with a willingness to see them prosecuted or punished. Cert­ ainly there was no general rejection of international justice.”55 The controversy around “what victims want” led to a race to determine their views through quantitative methodologies, or “survey wars.” Numerous organizations conducted their own surveys of the views of victims in Northern Uganda, including local organizations (Refugee Law Project, Justice, and Reconciliation Project); humanitarian organizations (Oxfam, Quaker Peace), the United Nations Office of the High Commissioner for Human Rights; and academic institutions. All claimed to have special insight into what victims want, either by virtue of context-related knowledge or through their methodol­ ogy, whether quantitative or qualitative. Among the most extensive of these surveys were the general populationbased surveys carried out by Berkeley and ICTJ. These surveys were carried out in different districts in the North, including Gulu, Kitgum, Lira, and Soroti. The respondents numbered around 2,500 in total and lived both in camps and villages.56 The surveys were repeated over time, in 2005, 2007, and 2010. The survey chose to target the general population, rather than singling out direct victims of the conflict, thus avoiding the question of who constitutes a victim. The views expressed in the surveys demonstrate two conclusions. One is that the views of victims and affected populations are rarely homogeneous. The other is that these views of victims change, depending on the circum­ stances. If peace seemed less likely, support for prosecutions was higher, but when peace seemed nearer, victims had a higher willingness to compromise. Emphasis on accountability for the LRA diminished over time as the crimes subsided, whereas emphasis on government accountability grew. In 2005, in the period just after ICC arrest warrants were issued, 2,585 respondents in four districts (Gulu, Kitgum, Lira, and Soroti) were asked what they thought should happen to the LRA leaders who were respon­ sible for violations. Sixty-six percent said that they favored trial and imprisonment for the LRA, whereas only 22% said that they supported forgiveness (reconciliation and reintegration).57 In 2005, only 27% had

55 56 57

Tim Allen. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. African Arguments (2006) p. 160. Sample sizes were calculated proportional to population size. The questionnaire used openended questions and was analyzed using Statistical Package for Social Science software. Phuong Pham et al. Forgotten Voices: A Population-Based Survey of Attitudes about Peace and Justice in Northern Uganda. ICTJ and Human Rights Center, University of California (July 2005) p. 26.

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heard of the ICC, mainly through the media. The ICC and its supporters widely cited the results of this survey as scientific evidence of the presence of victims in Northern Uganda who favored their involvement. In 2007, during the height of the Juba peace process, the survey was repeated with 2,875 respondents in Acholi Districts (Amuru, Gulu, Kitgum, Pader), Lango (Lira, Oyam), and Teso (Amuria, Soroti).58 When victims were asked what they would like to see happen to the LRA leaders, this time the majority (54%) favored soft options, including forgiveness, reconciliation, and reintegration, whereas around 41% still favored hard options for dealing with them. At the same time, 44% favored international trials, whereas 24.7% favored national trials and 31% said they preferred no trials. By 2007, 60% had heard of the ICC.59 Opinions related to the ICC’s impact on the Juba peace process appeared contradictory. Of those who had heard of the ICC, 65% now believed that the Court would contribute to achieving justice and 61% said it would attribute to achieving peace. But interestingly, 55% said that the ICC was helping rather than hindering the peace process, although when asked specifically about Juba, 51% had the opinion that the ICC could jeopardize the peace talks.60Another general population survey taken in the whole of Uganda in 2008 showed more support for the ICC: 67% of those who answered said they trusted the ICC either “somewhat” or “a lot.”61 A third survey was carried out in 2010, encompassing 2,498 respondents across 154 villages in Amuru, Gulu, Pader, and Kitgum, Acholi districts only.62 This was in the aftermath of the conflict, and up to 83% of respon­ dents had now returned to living in villages: 85% considered that there was peace in Northern Uganda. In 2010, respondents focused on basic needs and provision of services, including food (28%), agriculture, including access to land and seeds (19%), education (15%), and health services (13%). In terms of

58

59 60 61

62

Phuong Pham, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda, and Richard Bailey. When the War Ends: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Northern Uganda. International Center for Transitional Justice, Payson Center, and Human Rights Center (December 2007) pp. 37–39. Ibid. Ibid. See Erik Voeten. Public Opinion and the Legitimacy of International Courts. Theoretical Inquiries in Law, Vol. 14 (2013) pp. 429–30: citing the Afrobarometer from 2008. www .afrobarometer.org/data/data-rounds-merged. Phuong Pham and Patrick Vinck. Transitioning to Peace: A Population-Based Survey on Attitudes about Social Reconstruction and Justice in Northern Uganda. Human Rights Center (December 2010). ICTJ did not participate in this survey.

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accountability, 64% of respondents thought that it is important to hold the government accountable, whereas only 19% mentioned the LRA leadership, and 5% the LRA in general.63 Interestingly, the number of respondents who had heard of the ICC had decreased in 2010, from 70% to 59%. Less than half who knew about the ICC (43%) felt it helped the situation, either through bringing peace and security (40%), forcing negotiations (35%), or bringing attention to the conflict in Northern Uganda (17%). The other 40% believed it had no effect, and 10% said that it hindered the situation.64 This is not to suggest that the ICC should be guided just by quantitative sur­ veys. Quantitative surveys are blunt instruments often yielding contradictory information that do not give deep insight into what respondents understand by complex concepts such as “justice.” Vasuki Nesiah critiques the survey meth­ odology, commenting that the finite response options meant that “preferences could be recorded, tabulated and fed into an algorithm that made ‘local’ voice politically intelligible” to international criminal law audiences.65 The “survey wars” in Uganda also contributed to “consultation fatigue” among affected populations.66 In general, surveys should not displace the need for more indepth victim consultation and representation. The positions of victims may differ per situation. For example, in late 2017 and early 2018, the Victims Participation and Reparations Section (VPRS) reached out to organizations working in Afghanistan and gathered the views of victims and those affected by the conflict. Seven hundred and eighty-four victim representations (165 individuals and 534 collectives) were gathered in this way, mostly through online forms or emails. The vast majority of victim representations (680) “overwhelmingly supported” the Prosecutor to open an investigation in Afghanistan, stating that “the current government of Afghanistan cannot overpower the warlords … and there are a lot of crimes happening, but no one can raise their voices because 63

64 65 66

Ibid., p. 43. In results very similar to 2007, 29% said that the ICC was the appropriate mech­ anism to hold perpetrators accountable, whereas 28% said the Ugandan courts, 25% the Amnesty commission, and 8% traditional mechanisms. When asked what should happen to LRA members responsible for violence, 24% said that they should be persuaded to come out of the bush, and 23% said they should be given amnesty. Only 16% said they should be put on trial and 13% said they should be captured. Seventy-three percent said that they had already forgiven the LRA. Eighty-seven percent said it should not be possible to prosecute combat­ ants who have received amnesty. Ibid., pp. 39–40. Ibid., p. 43. Vasuki Nesiah. Local Ownership of Global Governance. Journal of International Criminal Justice, Vol. 14, No. 4 (September 1, 2016) pp. 985–1009. Chris Tenove. International Justice for Victims? Assessing the International Criminal Court from the Perspective of Victims in Kenya and Uganda. AfricaPortal research paper, September 2013, p. 4.

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of fear.”67 When the PTC declined to open an investigation, some victims appealed the decision. At the same time, different surveys in Afghanistan also indicated public support for the peace process. Nonetheless, surveys can give some insight into the views of local popu­ lations, including their willingness to compromise on hard justice options if peace is on the table. The surveys demonstrate that victims have many con­ crete interests that they wish to be met beyond prosecutions, including their immediate needs. Finally, the surveys also show that victims have conceptions of justice that go beyond (ICC) prosecutions. In Northern Uganda, victims and affected populations showed interest in a range of transitional justice mea­ sures. All of these are important considerations in balancing peace and justice.

IV  Testing the Parameters: Does Promoting Arrest Warrants Hinder Peace? Once the ICC issues arrest warrants, its quest to have them enforced can be seen as promoting military solutions to the conflict. This was the case in Uganda, and to some extent in Libya.68 In the context of Uganda, at the Review Conference in 2010 the Prosecutor said: “If we care about victims we need to implement the arrest warrants pending since July 2005.”69 However, aligning closely with military actors can harm perceptions of the impartiality of ICC, as will be further explored in Chapter 7. It can also give rise to a perception that an ICC intervention by way of arrest warrants can serve to prolong conflict. A  The Debacle of Kony 2012 In the situation in Uganda, the Prosecutor frequently asserted that the best way to end the conflict in Northern Uganda is through arresting the LRA 67

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Final Report of the VPRS. www.icc-cpi.int/RelatedRecords/CR2018_01452.PDF, Appendix I, para. 46(f). Victims supported opening an ICC investigation for the following reasons: “investigation by an impartial and independent court; bringing the perceived perpetrators of crimes to justice, ending impunity; preventing future crimes; knowing the truth about what happened to victims of enforced disappearance; allowing for victims’ voices to be heard, and protecting the freedom of speech and freedom of press in Afghanistan.” Most cited reasons against an investigation (in only fifteen of the representations) included security concerns and doubts as to whether perpetrators would be brought to justice. Victims wanted the ICC to investigate murder; attempted murder; imprisonment or other severe deprivation of liberty; torture; rape; sexual violence; persecution; enforced disappearance of persons; other inhumane attacks; attacks against civilian population; attack against protected objects; destruction of property; pillage; forced displacement; outrages upon personal dignity; and denying a fair trial. Appendix I, paras. 39 and 40, 44. Adam Branch. Displacing Human Rights: War and Intervention in Northern Uganda. Oxford University Press (2011) p. 201. Ocampo. Prosecutor of the International Criminal Court.

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leadership. This gave rise to a perception that the ICC is aligned with military actors and their solutions to the conflict.70 For years, the UPDF fought the LRA in Uganda, South Sudan, and DRC. The National Resistance Movement, Uganda’s ruling party, is intimately connected with the UPDF.71 Senior UPDF commanders Lt. General Salim Saleh and Major General James Kazini are both direct relatives of Museveni.72 Protection of civilians was not a priority: instead, the UPDF exploited the local population and engaged in serious abuses.73 Over time, the conflict generated its own economy and war ­profiteers. In the aftermath of September 11, the government of Uganda succeeded in portraying itself as on the frontline in the war on terror and putting the LRA on the “B” list of terrorist organizations kept by the United States. Some scholars argue that the involvement of the ICC has served to further legitimize Museveni,74 but this may be overstating the ICC’s importance. Before the ICC referral, Museveni was coined as a “new breed of African leaders,” with his liberal economic policies.75 Uganda was the recipient of USD 1.3 billion in international aid in 2003, one of the most aid-dependent governments in Africa.76 Museveni is credited for stabilizing Uganda, bring­ ing economic development, promulgating the 1995 Constitution, and reduc­ ing HIV infection rates. This meant that he was given leeway on thorny issues such as the involvement of the UPDF in DRC, military corruption, and the war against the LRA. Museveni was also able to capitalize on Uganda’s mem­ bership of the ICC, including by hosting the ICC Review Conference in Entebbe in 2010. At the same time, democratic space in Uganda continuously eroded as Museveni sought to hold onto power.77 While the ICC alone did not “legitimize” Museveni, its support for a mili­ tary solution does lend indirect support to the UPDF. Thus, the Court indi­ rectly supported Museveni’s patronage network. As argued by one scholar:

70 71 72 73 74 75 76

77

Adam Branch. Uganda’s Civil War and the Politics of ICC Intervention. Ethics and International Affairs, Vol. 21 (2007) 179 p. 184. International Crisis Group. Northern Uganda: Understanding and Solving the Conflict, April 14, 2004. Ibid., p. 13. OHCHR. “The Dust Has Not Yet Settled”: Victims’ Views on the Right to Remedy and Reparation: A Report from the Greater North of Uganda (2011) p. xiv. Mark Kersten. Plus Ça Change: Museveni and the ICC. Justice in Conflict, June 12, 2013. Interview with Ugandan civil society leader, February 12, 2014. This aid was provided by countries including the UK, Germany, Japanese, and the United States: David Bosco. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press (2014) p. 97. International Crisis Group, Uganda: No Resolution to Growing Tensions, April 5, 2012.

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“the patronage network that keeps the regime in power requires high mili­ tary spending and corrupt practices that leave its military prone to violating human rights.”78 The UPDF, already known previously for its practices of ghost soldiers and purchasing of “junk helicopters,” enriched and entrenched itself through various conflicts in the region, including the LRA conflict.79 While donors had put some pressure on Uganda to decrease military spending prior to the ICC arrest warrants, this pressure eased afterward and European support for the military approach increased.80 President Museveni played on this by also involving the UPDF in AU-led military operations against the Al-Shabab movement in Somalia. Thus, “the Museveni regime emerged from the ICC’s investigation not only unscathed but with an improved inter­ national reputation.”81 On December 14, 2008, the joint forces of Uganda, DRC, and South Sudan organized a military attack on the LRA known as “Operation Lightning Thunder.” The attack came as a surprise to many and meant the effective death of the Juba peace process.82 Operation Lightning Thunder was another example of an ineffective UPDF operation: airstrikes were carried out by heli­ copter gunships, as jets could not fly due to bad weather.83 Helicopter gun­ ships could be heard approaching, allowing the LRA to escape into the forest. The airstrikes were not followed up by infantry troops until a week later. In any case, Joseph Kony was thought not to be present, perhaps due to advance warnings.84 In the weeks after “Operation Lightning Thunder,” the LRA ­perpetrated the “Christmas Massacres” leading to the deaths of hundreds of civilians in DRC. Due to the lobbying of different civil society groups in the United States, such as Invisible Children, Enough, and Resolve, the US Congress in May 2010 enacted the Lord’s Resistance Army Disarmament and North Uganda Recovery Act, calling on the White House to take steps to eliminate 78 79 80 81 82

83 84

Valerie Freeland. Rebranding the State: Uganda’s Strategic Use of the International Criminal Court. Development and Change. Institute of Social Studies (2015) p. 294. Ibid., p. 308. Ibid., p. 309. Ibid., p. 310. HRW. The Christmas Massacres: LRA Attacks on Civilians in Northern Congo, February 2009. Joost van Puijenbroek en Nico Plooijer, How Enlightening Is the Thunder? Study on the Lord’s Resistance Army in the Border Region of DR Congo, Sudan, and Uganda, IKV Pax Christi (February 2009) at section 12. Richard Downie. The Lord’s Resistance Army, October 18, 2011, Center for Strategic and International Studies. csis.org.publication/lords-resistance-army. Ibid.

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the LRA.85 In 2011, Invisible Children released the “Kony 2012” documen­ tary. The YouTube video of Kony 2012 quickly went viral. If the goal was to achieve notoriety for Joseph Kony, this was certainly accomplished: millions of people in the West, who might otherwise not know who Joseph Kony is, quickly became aware of his existence. Invisible Children argued that this would increase political pressure, which would result in his arrest within 2012. Victim populations in Northern Uganda however widely rejected the film as a simplistic and naïve account of the conflict, intended to demonstrate how white people would save the Northern Ugandans from themselves. Merchandise with Kony’s name, sold for profit, was interpreted by victims as glorifying him and an attempt to make money from their suffering. In Lira, rocks were thrown at the screen during its viewing,86 but Invisible Children decided to proceed with a viewing in Gulu, where the reaction was so hostile that it caused a confrontation between viewers and police in which one person was killed and others injured.87 The vehemence with which local populations reacted to the film showed the risks of “irrespon­ sible advocacy.”88 In the words of Mahmood Mamdani: The LRA is given as the reason why there must be constant mobilization, at first in Northern Uganda, and now in the entire region, why the military budget must have priority and now, why the US must send soldiers and weap­ onry, including drones, to the region … The reason why the LRA continues is that the victims—the civilian population of the area—trust neither the LRA nor government forces.89

The ICC Prosecutor appeared in Kony 2012 several times, including in a sequel. In the film as well as on other occasions, the ICC OTP openly lobbied for a special military force, led by the United States, to enforce ICC arrest warrants. Moreover, its close alliance with the United States was described by Branch as “a Faustian bargain that will be made at the price of the Court’s legitimacy, impartiality, and legality.”90 85 86 87 88 89 90

Ibid. Rosebell Kagumire in Lira and David Smith in Johannesburg, Kony 2012 Video Screening Met with Anger in Northern Uganda, The Guardian, March 14, 2012. Acholi Times, David Livingston Okumu, Akena Moses, and Sam Lawino, Kony 2012 Screening in Gulu Leaves One Dead and Many Injured, April 16, 2012. Adam Branch. Dangerous Ignorance: The Hysteria of Kony 2012, Al Jazeera Opinion, March 12, 2012. Mahmood Mamdani. What Jason Didn’t Tell Gavin and His Army of Invisible Children, Daily Monitor, March 13, 2012. Adam Branch. Displacing Human Rights: War and Intervention in Northern Uganda. Oxford University Press (2011) p. 202.

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B  No Negotiations or Exile for Al-Qadhafi Due to the ICC The arrest warrants in Libya were originally perceived by actors other than Libyans as complicating a peaceful settlement of the conflict by narrowing Qadhafi’s chances of escape. In Libya itself, these perceptions did not play a big part, since the revolutionaries in Libya made it clear from the outset that they were out to topple the regime and would not accept clemency for regime members. Nevertheless, in July 2011, when the situation looked as if it was headed for a stalemate, both the UK and France publicly flirted with the idea that Qadhafi would be able to remain in Libya if he agreed to leave power, but this idea remained hypothetical, particularly after the fall of Tripoli in late August.91 Several states are said to have offered asylum to Qadhafi, including Uganda, Chad, Malawi, Venezuela, and Zimbabwe.92 NATO was reported to have approved his exile to a non-ICC member state.93 But there is no evidence that any of these deals were seriously considered by Qadhafi himself, who continuously declared he would die a martyr in Libya,94 and diverted to Sirte after the fall of Tripoli. “We have plans A, B, and C. Plan A is to live and die in Libya. Plan B is to live and die in Libya. Plan C is to live and die in Libya,” Saif Al-Islam had said to CNN in late February.95 In fact, even at the time of his capture and death at the hands of a Misrata brigade, Qadhafi showed bewil­ derment at his treatment by his fellow Libyans to the moment he was killed. Some argue that the ICC arrest warrants complicated attempts to mediate the conflict by the African Union. In the aftermath of ten years of instability that followed, some policymakers bemoan the fact that there was no gradual transition in Libya. However, whether this could have succeeded at the behest of the AU is debatable.96 It is not clear to which extent the Libyan opposition trusted the AU, considering Qadhafi’s history within it. The AU had declared in early July 2011 that the ICC arrest warrants would not be implemented in

91

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93 94 95 96

Willliam Booth. France: Gaddafi Could Possibly Stay in Libya, Washington Post, July 20, 2011; Theo Usherwood, Gaddafi Must Relinquish Power Says William Hague, The Independent, July 26, 2011. Cited in Hayner, Priscilla, International Justice and the Prevention of Atrocities: Case Study Libya: The ICC Enters during War, ECFR Background Paper, November 2013. David Smith. Where Could Colonel Muammar Qadhafi Go If He Were Exiled, The Guardian, February 21, 2011. See Mark Kersten. Between Justice and Politics: The International Criminal Court’s Intervention in Libya, available online. Kersten. Between Justice and Politics. Ian Black. Gaddafi Urges Violent Showdown and Tells Libya I’ll Die a Martyr, The Guardian, February 22, 2011. See also Kersten. Between Justice and Politics. UK Telegraph, Gaddafi’s Son: Our Plan Is to “Live and Die” in Libya, February 25, 2011. Mark Kersten. Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Oxford University Press (2016) pp. 140–41.

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its member states.97 Nonetheless, the AU attempts to negotiate were not given much weight by France, Britain, and the United States.98 Alex de Waal, an expert on African affairs, concluded: The AU was not able to convince Libyans, Africans, or the world that it was a credible interlocutor for peace in Libya. Africa did not present a united position, and did not provide the financial, military or diplomatic resources necessary for the AU initiative to appear a genuine alternative, let alone to prevail. This is particularly regrettable because the AU’s diagnosis of the Libyan conflict was fundamentally correct. This conflict was both a popu­ lar uprising against a dictatorship and a civil war within a patronage-based political order, with regional repercussions.99

At the same time, the ICC intervention and especially the speed of issuing the arrest warrants, was very much aligned with a military solution (resulting in regime change) in the Libyan context. NATO was in open support of the arrest warrants, because they gave credence to the official NATO line that the intervention in Libya aimed to protect civilians, and that the regime could not stay in place: All the evidence that the Prosecutor has gathered is a stark reminder of why NATO is conducting operations in Libya—to protect civilians against what the prosecutor described as crimes against humanity perpetrated by the Qadhafi regime. … It is hard to imagine that a genuine transition in Libya can take place while those responsible for widespread and systematic attacks against the civilian population remain in power.100

C  Afghanistan: No Peace, No Justice? A prevailing view among the international community in Afghanistan since the original fall of the Taliban in 2001 was that peace should take priority over justice. The conflict in Afghanistan was a high-intensity conflict: UNAMA documented more than 100,000 civilians casualties in the conflict since 2009, with 35,000 killed and 65,000 injured.101 The Taliban Code of Conduct, the Layha, allowed for attacks on civilians, as reaffirmed in statements by Taliban 97

98 99 100 101

African Union, Decision on the Implementation of the Assembly Decisions on the International Criminal Court, Doc. EX.CL/670 (XIX), Assembly/ AU/ Doc 366(XVII), July 1, 2011, para. 6. Alex de Waal, African Roles in the Libyan Conflict of 2011. Chatham House (March 2013). Ibid. NATO Spokesperson Oana Lungescu and Wing Commander Mike Bracken, the Operation Unified Protector Spokesperson, Press briefing on Libya, May 17, 2011. These are the total civilian casualties between 2009 and 2019: Afghanistan: Protection of Civilians in Armed Conflict 2019, UNAMA and OHCHR.

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leaders. The history of transitional justice in Afghanistan is described in Chapter 7. Yet Afghanistan saw no justice for international crimes committed as part of the conflict since 2001. Members of the Taliban were tried in Afghanistan for crimes against the state as contained in the 1976 Penal Code, the 1987 Penal Law on Crimes against Internal and External Security, and the 2008 Law on Combat against Terrorist Offences. A few government officials were also prosecuted, as well as two senior members of the notorious Haqqani Network, but little public information exists on these cases.102 These tri­ als were conducted in secrecy. Some defendants were executed, leading to retaliatory attacks by Taliban on the judiciary.103 Nonetheless, several NATO powers expressed concern when the Court opened a preliminary examination.104 This concern may have stemmed from allegations of violations committed by international forces. Originally, the OTP was slow to conclude that there was a reasonable basis to believe that international forces may be responsible for violations. The OTP first said in 2013 that it was looking at torture allegations but that these had an insufficient nexus to the conflict in Afghanistan.105 It was unsure that these “were committed as part of a policy.”106 In the aftermath of the US Senate Armed Services Committee Report, and the evidence it presented on torture, in 2014 the OTP went into more detail on US interrogation practices in Afghanistan.107 However, it did not make any findings on whether there was a reasonable basis to believe international forces had committed international

102 103

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OTP Report on Preliminary Examination Activities 2016, para. 215. Ehsan Qaane. Nuremberg Academy Afghanistan Complementarity Study (2016), on file with author. See also www.nurembergacademy.org/projects/detail/resource-center-oncomplementarity-monitoring-13/. David Bosco. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press (2014) p. 181. OTP Report on Preliminary Examinations 2013, paras. 49–50. Ibid., paras. 51–52. OTP Report on Preliminary Examinations 2014, para. 94: “In this context, the informa­ tion available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from inter­ rogations. The development and implementation of such techniques is documented inter alia in declassified US government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.”

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crimes, although it had information that at least eighty-eight persons held in US custody were allegedly tortured.108 Only in 2016 did the OTP find that there is a “reasonable basis to believe that, in the course of the interrogating these detainees, and in the conduct supporting those interrogations, members of the US armed forces and the US CIA resorted to techniques” amounting to war crimes (including rape) as part of approved interrogation techniques.109 The OTP also concluded in its report that the US Attorney General did not investigate those most responsible for the alleged crimes. Aside from the question of torture committed by international forces themselves, these forces may also have aided and abetted torture by handing detainees over to Afghan authorities, with a high likelihood that they would be tortured. UNAMA documented a 35–51% torture rate in detention facili­ ties.110 ISAF rules dictated that detainees could not be transferred under any circumstances where there is a risk that they will be subjected to torture and ill-treatment. Yet direct torture also remained an issue: in 2013, UNAMA still uncovered reports of transfers to such facilities not by ISAF but by the “other government agency,” which is taken to be a reference to the US intelligence agencies active in those areas.111 In late October 2016, the Prosecutor announced she was about to open an investigation in Afghanistan.112 The Afghan government allegedly was unhappy with the Prosecutor’s unilateral initiative, and rumors were that it even threatened to withdraw from the Court. It submitted new information relevant to an admissibility assessment, sending information of fifteen cases to the Court.113 As stated by a senior Presidential Advisor in 2019: “We already took major steps to fulfill our obligation. Prosecutions were carried [out] on cases of torture. Afghanistan’s Attorney General conducted a major criminal investigation on war crimes carried out by Taliban. The OTP pressure has only been on our government.”114 On November 20, 2017, the Prosecutor filed a request for authorization to open an investigation of crimes committed in the territory of Afghanistan 108 109 110 111 112 113 114

OTP Report on Preliminary Examination Activities 2016, para. 224. Ibid., para. 211. Ibid., para. 217. UNAMA and OHCHR, Treatment of Conflict-Related Detainees in Afghan Custody One Year On, January 2013, Kabul, Afghanistan, p. 64. David Bosco. Exclusive: ICC Poised to Open Investigation into War Crimes in Afghanistan. Foreign Policy, October 31, 2016. Kate Clark and Ehsan Qaane, AAN, One Step Closer to War Crimes Trials (2): ICC Prosecutor Requests Authorization to Investigate, November 5, 2017. Email to the author dated June 15, 2018.

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since May 1, 2003. These crimes included crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network; war crimes by the Afghan National Security Forces (ANSF), in particular, members of the National Directorate for Security (NDS) and the Afghan National Police (ANP). The OTP concluded that no investigations or prosecutions against Taliban, NDS, or ANP had taken place by November 2017.115 It also included war crimes such as torture by members of the United States armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency (CIA) in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003–2004.116 The OTP named Poland, Lithuania, and Romania as other such State Parties. The OTP said that even though the alleged acts of torture are a small percentage of the total of those detained, they can still be considered “serious both in their number and in their effect.”117 For these cases too, the OTP found that no relevant investigations or prosecutions have been concluded that would prevent admissibility in these cases.118 As men­ tioned, victims in Afghanistan generally favored the ICC intervention. As described above, on April 12, 2019, PTC II of the ICC rejected the Prosecutor’s request to proceed with an investigation. This decision came only weeks after US Secretary of State Mike Pompeo and National Security Advisor John Bolton threatened to take measures against the Court, should the Afghanistan investigation proceed. The US visa of the Chief Prosecutor was revoked on April 5, 2019. On March 5, 2020, the Appeals Chamber overturned the PTC’s decision and authorized the opening of an investigation.119 Inevitably, further back­ lash from the United States followed and it was severe. On June 11, 2020, the Trump administration passed an “Executive Order on Blocking Property of Certain Persons Associated with the International Criminal Court,” which allowed the United States to deny entry to such persons, calling any attempt to investigate, arrest, detain, or prosecute any US personnel (or those of its allies) without the consent of the US “an unusual and extraordinary threat to the

115 116

117 118 119

OTP Report on Preliminary Examinations, 2017. ICC Statement, The Prosecutor of the ICC Fatou Bensouda Requests Judicial Authorization to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan, November 20, 2017. OTP Report on Preliminary Examination Activities, 2017, para. 273. Ibid. ICC Appeals Chamber Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138, March 5, 2020.

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national security and foreign policy of the United States,” declaring a “national emergency to deal with that threat.” Pompeo referred to the Court as a “thor­ oughly broken and corrupted institution.”120 In September, the United States announced that such measures would be taken against the Chief Prosecutor, Fatou Bensouda, and the Chief of the Jurisdiction, Complementarity and Cooperation Division (JCCD), Phakiso Machochoko. After Biden assumed office, the sanctions were overturned in April 2021. But this will not transform the United States into a supporter of an ICC inves­ tigation in Afghanistan. Bosco has written optimistically: “Even an energetic and multifaceted US campaign against the court would most certainly fail to cripple it.”121 In the meantime, the government of Afghanistan submitted a request for deferral of the ICC’s investigation under Article 18 of the Statute, on April 15, 2020. It submitted that it was investigating or has investigated 151 cases of nationals alleged to have committed war crimes and crimes against humanity, including ANSF and international forces (26), Taliban and related groups (33), other terrorist groups such as Islamic State (4), cases of torture by the NDS (47) and 30 cases where the identity of the perpetrators is unknown. Of these, only 28 were presented in court, or resulted in conviction; the remaining 123 cases are under investigation.122 HRW expressed doubts about Afghanistan’s motives and abilities, pointing to the fact that none of the cases against senior govern­ ment officials included those most responsible from the senior police, such as officials from the ANP (Afghan National Police) in Kandahar. HRW also pointed to the fact that the Afghan government had released many Taliban fighters in the context of peace negotiations.123 In 2018, the Taliban began direct negotiations with the United States about the withdrawal of international troops, under the leadership of US Envoy Zalmay Khalilzad. An agreement was reached in February 2020 in Doha. The “Agreement for Bringing Peace to Afghanistan” provided that American troops would withdraw within fourteen months. It committed the Taliban to prevent Al-Qaeda from operating from its territory, and to enter into Intra-Afghan Negotiations with the government of Afghanistan. In return,

1 20 1 21 1 22 1 23

ICC Officials Sanctioned by the US, BBC news, September 2, 2020. David Bosco. US Options for Responding to ICC Scrutiny in Afghanistan. Lawfare Blog, February 23, 2017. Ehsan Qaane. A Request to Delay: Another Afghan Government Attempt to Prevent an ICC War Crimes Investigation? Afghan Analyst Network, May 13, 2020. Patricia Gossman. ICC Investigation Vital for Justice in Afghanistan, Tolo News, June 11, 2020.

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the Taliban agreed to a reduction of violence against international troops but not against the government or civilian population. The decision of the Americans to deal directly with the Taliban legitimized them and weakened the government of Afghanistan. Moreover, the government of Afghanistan was pressured to release 5,000 Taliban prisoners (as promised by the Americans to the Taliban), includ­ ing persons suspected of serious international crimes.124 (No State Parties made any comment that this may contravene the Rome Statute.) In 2020, the Taliban significantly escalated violent attacks against the government and civilian population. Nonetheless, Intra-Afghan Negotiations began in September 2020 in Doha. Some in the Afghan government and the diplomatic community argued that pursuing justice will diminish incentives for the Taliban to negotiate and lead to a prolongation of conflict: “[T]he ICC’s involvement in the Afghan situation at this juncture is both ineffective and counter-productive. … Any ICC investigation and potential prosecution of anyone at this time will not achieve the intended goal of preventing impunity or result in peace.”125 The Afghan government stated: “the unique set of circumstances of our sta­ bilization efforts requires a comprehensive approach that aims to ensure jus­ tice, while preserving the political stability which is fundamentally important in any post-conflict setting.”126 In November 2017, a Presidential Advisor said about President Ghani: “morally he is on the side of the ICC but legally he is not,” because an ICC intervention may harm the peace process and would have a negative impact on the presence of international troops in the country, thus it would contravene the “interests of justice.”127 On November 19, 2020, the Australian Defence Force released findings in a four-year investigation that nineteen current or ex-special forces soldiers should be investigated for killing civilians in Afghanistan.128 But the Taliban’s takeover of Afghanistan in the summer of 2021 complicated any further steps toward accountability.

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The Guardian. Afghanistan Releases More Taliban Prisoners to Pave Way for Talks, August 14, 2020. President Ghani convened a Loya Jirga to obtain “permission” for the prisoner release, which took place in August 2020. Afghanistan Justice Organization and the Global Partnership for the Prevention of Armed Conflict, Transitional Justice in Afghanistan: “We Should Not Repeat Old Issues?” October 2013. Statement by H. E. Mahmoud Saikal, Permanent Representative of the Islamic Republic of Afghanistan to the United Nations, delivered at the 16th Session of the ASP to the Rome Statute of the ICC, December 7, 2017. Clark and Qaane, AAN, One Step Closer to War Crimes Trials (2). BBC News, Australian “War Crimes”: Elite Troops Killed Afghan Civilians, Report Finds, November 19, 2020.

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V  Challenging the Parameters: Amnesia about Amnesties? In spite of the Rome Statute, State practice on amnesties remains inconsistent and indicates that States continue to resort to amnesties to end armed conflicts or to pursue peace and stability. A comprehensive study by Louise Mallinder of over 500 situations has highlighted that amnesties, including for international crimes, remain a reality in today’s world.129 Another study on 119 transitions in eighty-six countries concludes that amnesties neither increase nor decrease the likelihood of nonrecurrence of conflict in civil wars.130 In the words of Mark Freeman: “amnesties are as prevalent today as at any time in modern history … we are no more at the end of amnesties than we are at the ‘end of history.’”131 National courts have upheld amnesty laws in recent years in Uganda (in the Kwoyelo case, later reversed as discussed in Chapter 3), Spain, and Brazil.132 In the Massacres of El Mozote and Nearby Places versus El-Salvador,133 the InterAmerican Court for Human Rights drew a distinction between self-amnesties granted at the end of dictatorships, and amnesties used to end civil wars. In a separate opinion, Judge Diego Garcia Sargan stated that when negotiating the end to an armed conflict, “States must weigh the effect of criminal jus­ tice both on the rights of the victim and on the need to end the conflict.”134 A set of guidelines proposed by a group of prominent international lawyers similarly argues in favor of keeping the door open to conditional amnesties.135 1 29 130 131 132

133 134

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Louise Mallinder. Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide. Hart Publishing 1st ed. (2008) p. 404. Leigh Payne, Andy Reiter, Chris Mahony, and Laura Bernal-Bermudez. Conflict Prevention and Guarantees of Non-Recurrence, April 12, 2017. Mark Freeman. Necessary Evils: Amnesties and the Search for Justice. Cambridge University Press (2009) p. 4. See Kwoyelo case below. Supremo Tribunal Federal, ADPF 153—arguicao de descumpri­ mento de preceito fundamental (2010) Brazil; Tribunal Supremo, Setencia Absolutoria, Sentencia No: 101/2012 (February 27, 2012), Spain. Inter-American Court of Human Rights, Case of the Massacres of El Mozote and Nearby Places v. El-Salvador, Judgment of October 25, 2012 (Merits, reparations and costs) paras. 287–300. Inter-American Court of Human Rights, Case of the Massacres of El Mozote and Nearby Places v. El-Salvador, Judgment of October 25, 2012 (Merits, reparations and costs), concur­ ring opinion of Judge Diego Garcia-Sayan, paras. 26–27. The Belfast Guidelines on Amnesty and Accountability, General Principles (2013). The Belfast Principles argue that various international obligations, including the obligation to prevent international crimes and the obligation to hold perpetrators accountable should be balanced in the form of amnesties that attach conditionalities, such as participation in truthseeking or reparations. See also the Nuremberg Declaration on Peace and Justice, UN Doc. A/62/885 (June 19, 2008), which states that “amnesties, other than those for bearing the great­ est responsibility for genocide, crimes against humanity and war crimes, may be permissible in a specific context and may even be required for the release, demobilization and reintegra­ tion of conflict-related prisoners and detainees.”

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Louise Arbour, former ICTY Prosecutor, commented: “there must be incen­ tives. ... Without compromising the core integrity of justice, this could include very lenient treatment in exchange for disclosing facts, expressing remorse and making some form of restitution.”136 In all the countries examined as part of this thesis, amnesties continued to be considered.137 Uganda, Afghanistan, and Libya are discussed below. A  Uganda’s Amnesty Act 2000 In May 2012, the Ugandan Minister of Internal Affairs, Hilary Onek, passed Statutory Instrument 34/2012, with the effect of lapsing Part II of the Amnesty Act 2000. This was in response to advocacy from JLOS, Refugee Law Project, International Commission of Jurists, and the Ugandan Coalition for the ICC in the aftermath of Kwoyelo’s acquittal. These organizations argued that the amnesty is in breach of international law standards.138 The JLOS Secretariat drafted a memo in which it argued that the Amnesty Act contravenes interna­ tional obligations.139 Nonetheless, in May 2013, the Parliament voted to rein­ state Part II of the Amnesty Act.140 The lapsing of the amnesty had caused a wave of concern from local groups. As of 2012, up to 26,288 rebels from twenty-nine rebel groups had uti­ lized the amnesty law: of these, an estimated 12,971 belonged to the LRA.141 A 2006 report refers to the amnesty as the most important “pull factor” in encouraging people to leave the LRA.142 A communiqué of May 23, 2012, on 136 137 138 139 1 40

1 41 1 42

Louise Arbour. Are Freedom, Peace and Justice Incompatible Agendas? Inaugural lecture on Human Rights and Human Dignity. Oxford University (February 17, 2014). Colombia also has an amnesty, but it does not include international crimes. HRW. Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division, 2012. Interview with former JLOS advisor, Kampala, February 12, 2014. Daily Monitor, Lawmakers Agree to Extend Amnesty Act, May 16, 2013. Macdonald suggests that this was after a May 2013 visit by US war crimes ambassador Stephen Rapp, since the US position was that amnesty was central to the success of the US-supported military efforts against the LRA. Anna Macdonald. “Somehow This Whole Process Became So Artificial”: Exploring the Transitional Justice Implementation Gap in Uganda. International Journal of Transitional Justice, Vol. 13, No. 2 (July 2019) pp. 225–48. Kasper Agger. The End of Amnesty in Uganda: Implications for LRA Defections, Enough Project, August 2012. Louise Mallinder. Uganda at a Crossroads: Narrowing the Amnesty? Working Paper No. 1 from Beyond Legalism: Amnesties, Transition and Conflict Transformation, Institute of Criminology and Criminal Justice, Queen’s University Belfast, March 2009 at p. 32 citing Conciliation Resources and Quaker Peace and Social Witness, Coming Home: Understanding Why Commanders of the Lord’s Resistance Army Choose to Return to a Civilian Life (May 2006) p. 10.

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behalf of traditional and religious leaders, civil society and other organiza­ tions called on the government to reinstate it immediately. The communiqué argued that the amnesty was appropriate considering that the LRA is largely composed of abducted children; that the conflict is unresolved, it continues to affect DRC, CAR, and South Sudan, and Uganda has a moral obligation to contribute to resolving it; and that the Amnesty Act is an important tool for reconciliation.143 Twenty-two civil society groups from LRA-affected areas in Congo, CAR, South Sudan, and Uganda issued a similar communiqué on June 12, 2012.144 The amnesty represented one of the few forms of government assistance available to ex-combatants.145 Generally, the reintegration of ex-combatants in Northern Uganda was rela­ tively successful.146 However, as noted by Adam Branch, “the ICC irresponsi­ bly frames the Amnesty Act not as the product of mobilization by the Acholi trying to find peace and duly promulgated by the Ugandan parliament, but as a gift from the Ugandan executive, to be withdrawn by President Museveni at his convenience.”147 B  Afghanistan’s Amnesty In 2002, shortly after he took power, President Karzai declared, “peace is a necessity and justice a luxury that Afghanistan cannot afford.”148 Likewise, the international community supported a “peace first, justice later” approach in Afghanistan since 2001.149 The Afghan Independent Human Rights Commission and human rights groups argued that accountability was impor­ tant in order to increase stability. A seminal moment was the release of the HRW “Bloodstained Hands” and Afghan Justice Projects “Casting Shadows” reports, followed by a HRW press release in December 2006 that called for the investigation of several individuals by name, including parliamentarians 1 43 1 44 1 45 1 46

1 47 1 48 1 49

Communiqué of traditional and religious leaders, civil society and other organizations, May 23, 2012, Fairway, Kampala. See also Note Accompanying Fairway Communiqué. Kasper Agger. The End of Amnesty in Uganda: Implications for LRA Defections, Enough Project, August 2012. Interview with Northern Uganda civil society leader, February 12, 2014. Louise Mallinder. Uganda at a Crossroads: Narrowing the Amnesty? Working Paper No. 1 from Beyond Legalism: Amnesties, Transition and Conflict Transformation, Institute of Criminology and Criminal Justice, Queen’s University Belfast (March 2009) p. 33. Adam Branch. Uganda’s Civil War and the Politics of ICC Intervention. Ethics and International Affairs, Vol. 21 (2007) pp. 179, 184. Barnett Rubin. Transitional Justice and Human Rights in Afghanistan. International Affairs, Vol. 79, No. 2 (2003) p. 574. Ahmad Nader Nadery. Peace or Justice? Transitional Justice in Afghanistan. International Journal of Transitional Justice, Vol. 1 (2007) pp. 173–79.

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Abdel-Rassoul Sayyaf, Mohammed Qasim Fahim, and Burhanuddin Rabbani, Minister of Energy Ismail Khan, Army Chief of Staff Abdul Rashid Dostum, as well as Vice President Karim Khalili.150 It is worth noting that since 2006, three of these six, Dostum, Khalili and Fahim, were at one point Vice Presidents and four were on the Presidential or Vice Presidential list of can­ didates for the 2014 elections, while one (Rabbani) was assassinated and one (Hekmatyar) was invited back to Afghanistan in a controversial clemency agreement in 2017.151 The HRW press release sparked a debate in the National Assembly on the need for an amnesty law. In their discussions, the National Assembly rep­ resentatives referred to existence of the ICC and the hanging of Saddam Hussein in December 2006 as reasons why an amnesty might be ­necessary.152 In February 2007, the National Assembly of Afghanistan passed a law on “National Reconciliation, General Amnesty and National Stability.” The law, though poorly drafted, grants a blanket amnesty that was so broad as to include Rome Statute crimes, both those committed in the past and those to be committed in future.153 The law also provided that it “shall not affect the claims of individuals against individuals based up on Haqullabd (rights of people) and criminal offences in respect of individual crimes.”154 This provi­ sion distinguished between the “rights of God” or collective rights enforced by the government in its mandate to provide for public order, and the “rights of man” or individual rights directly enforceable against other individuals. It followed the reasoning that under Islamic law, the “rights of man” cannot be bargained away through an amnesty.155 150

151

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HRW. Afghanistan: Justice for War Criminals Essential for Peace: Karzai Must Hold Officials Accountable for War Crimes, December 13, 2006. See also Afghanistan Analysts Network, Patricia Gossman and Sari Kuovo. Tell Us How This Ends: Transitional Justice and Prospects for Peace in Afghanistan, February 2013, p. 29. Shereena Qazi, Al Jazeera. UN Lifts Sanctions against Gulbuddin Hekmatyar, February 4, 2017. The deal gave Hekmatyar amnesty for past crimes and gave him full political rights. The amnesty was accompanied by a lifting of a UN travel ban, arms embargo, and asset freeze. Unofficial notes of National Assembly debate on file with the author. Article 3(1) of the National Reconciliation, General Amnesty and National Stability Law, Afghanistan states: “All political factions and hostile parties who were involved in a way or another in hostilities before establishing of the Interim Administration shall be included in the reconciliation and general amnesty program for the purpose of reconciliation among different segments of society, strengthening of peace and stability and starting of new life in the contemporary political history of Afghanistan, and enjoy all their legal rights and shall not be legally and judicially prosecuted.” Article 3(3) of the National Reconciliation, General Amnesty and National Stability Law, Afghanistan. Interview with Abdel-Hakim Mujahid, High Peace Council, Kabul, March 18, 2014.

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Theoretically, therefore, victims of Rome Statute crimes could still go to court in Afghanistan and demand prosecutions of perpetrators, provided they themselves bring the evidence. While this may provide a loophole, the practical reality and political power balance was such that victims were unlikely to go to court to take on warlords on their own accord without sup­ port from the state. The passage of the amnesty law was controversial in Afghanistan.156 Apart from criticism from the general public, the religious leaders, or ulema, disap­ proved of the law as un-Islamic. The law was not published in the gazette until 2009, and President Karzai refused to sign it, casting doubt on its legal ­status. The law contained no mechanism for its enforcement and, in this sense, remained inoperable. On the other hand, neither has any prosecution been ­initiated after its passage. Even if its legal status was doubtful, the amnesty largely extinguished the quest for justice in Afghanistan. Moreover, amnesty continued to be viewed as a cornerstone of the strat­ egy for reconciliation with the Taliban. The Afghan Penal Code provided for general amnesty (Article 170) and special amnesty (171), the latter of which incorporates the 2007 National Reconciliation, General Amnesty and National Stability Law.157 In 2005, President Karzai established the Independent Peace and Reconciliation Commission to oversee the reinte­ gration of low-level former fighters.158 Also in December 2005, the Afghan Cabinet adopted an Action Plan on Peace, Justice, and Reconciliation in Afghanistan. In 2010, President Karzai convened a Peace Jirga to ratify the Afghanistan Peace and Reconciliation Program (APRP).159 He also estab­ lished a High Peace Council (HPC). Its members include many former mujahidin leaders and a few former Taliban and Hezb-i-Islami members.160 Amnesty was a part of the APRP. On the local level, the HPC sponsored provincial peace committees, main­ tained a Secretariat, and facilitated reintegration of rank-and-file Taliban 156 157

158

159 160

Afghan Independent Human Rights Commission and International Center for Transitional Justice, Discussion Paper on the Legality of Amnesties, February 21, 2010. Ehsan Qaane. Nuremberg Academy Afghanistan Complementarity Study (2016), on file with author. See also www.nurembergacademy.org/projects/detail/resource-center-oncomplementarity-monitoring-13/. Afghanistan Analysts Network, Gossman and Kuovo. Tell Us How This Ends, p. 44. See also Mohammed Masoom Stanekzai. Thwarting Afghanistan’s Insurgency: A Pragmatic Approach toward Peace and Reconciliation, USIP Special Report, September 2008. For more information on the APRP see www.af.undp.org/content/afghanistan/en/home/ operations/projects/crisis_prevention_and_recovery/aprp/. Interview with High Peace Council staff member, Kabul, March 15, 2014.

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through the Afghanistan Peace and Reintegration Program. The program sought to reintegrate combatants by simultaneously seeking to engage in social outreach, confidence building and negotiation, demobilization, and consolidation of peace and community recovery.161 The number of Taliban reintegrated in 2014 was around 10,000.162 It is not clear that Rome Statute obligations were specifically discussed in the context of formulating the APRP.163 According to an unpublished policy paper by the Joint Secretariat, the amnesty was for political rather than serious crimes,164 but those taking part have de facto been granted amnesty. The European Union did not fund the program because of the amnesty clause.165 According to former Taliban leader Abdel-Hakim Mujahid, insurgents were not aware of the amnesty passed by the National Assembly, neither did they consider it a “benefit,” since they did not acknowledge the legitimacy of the Afghan government (or of the HPC).166 Nonetheless, the broader public was supportive of the government’s reconciliation efforts, particu­ larly in the provinces bordering Pakistan.167 On the other hand, women and minorities remained fearful of the implications of a reintegrated Taliban, and argued that the rights of these groups ought to be protected in any peace arrangement.168

161 162

163

164 165 166 167 168

Afghanistan Analysts Network, Gossman and Kuovo. Tell Us How This Ends, p. 45. Interview with UK Embassy official, Kabul, March 19, 2014. Those ready to reintegrate were met by the provincial governor, to go through a reintegration ceremony, and given a lump rein­ tegration sum of about USD 200 and a chapan (an Afghan silk robe often worn by Karzai). The burden of proof for insurgents wishing to benefit from the process was low: they had to hand in a weapon and pledge their commitment to the insurgency. When they reported, they were kept for some days in order to conduct background checks and biometric tests. Sometimes groups of combatants reintegrated at the same time; if it included a more senior commander, the HPC could contribute to his upkeep. None were reintegrated into the Afghan National Army for now and there were unconfirmed reports that some rejoined the insurgency. Interview with High Peace Council Staff member, Kabul, March 15, 2014. www.af.undp.org/content/ afghanistan/en/home/operations/projects/crisis_prevention_and_recovery/aprp.html. Afghanistan Analysts Network, Patricia Gossman and Sari Kuovo. Tell Us How This Ends, p.  46. The program’s Rule of Law, Governance and Human Rights Pillar promised to be “compliant with the laws and Constitution of Afghanistan and Afghanistan’s international treaty obligations.” Interview with UNAMA Deputy Head of Human Rights, Kabul, March 18, 2014. Interview with EU official, Kabul, March 16, 2014. Interview with Abdel-Hakim Mujahid, High Peace Council, Kabul, March 18, 2014. The Asia Foundation. Afghanistan in 2013: A Survey of the Afghan People. Sixty-three percent if surveyed Afghans thought that reconciliation could help to stabilize the country. Afghan People’s Dialogue on Peace, Laying the Foundations for an Inclusive Peace Process, December 2011.

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In 2016, President Ashraf Ghani signed a peace accord with Hezb-i-Islami, which led to the return of Gulbuddin Hekmatyar to Afghanistan without his being held to account. In February 2018, President Ashraf Ghani once again invited the Taliban to unconditional peace talks, offering them political rec­ ognition.169 But as mentioned, the United States subsequently approached the Taliban directly to sign an agreement. C  Libya: Amnesty for Revolutionary Acts? In Libya in May 2012, the National Transitional Council passed Law 38 titled “special measures for the transitional period,” which stated in Article 4 that “there shall be no penalty for military, security, or civil actions dictated by the February 17 revolution performed by revolutionaries with the goal of pro­ moting or protecting the revolution.” There is no evidence that ICC obliga­ tions were considered, mirroring a belief held by many Libya that the ICC’s jurisdiction ended with the Revolution.170 The law was condemned by inter­ national human rights groups: HRW wrote a letter to the OTP about it.171 But its practical effect was limited by the passage of a subsequent law intro­ duced by the Justice Minister titled “Criminalization of Torture, Enforced Disappearances, and Discrimination.” This law, which entered into force in April 2013, made it clear that those crimes are punishable, no matter who has committed them.172 In July 2015, in the aftermath of the verdict against former senior regime officials of the Qadhafi government, the Parliament in Tubruq issued another amnesty law (Law No. 6) granting amnesty for crimes committed since the 2011 Revolution if the accused expresses remorse, makes a commitment not to reoffend, and reconciles with the victim, but exempting terrorism, drug importing and trafficking, sexual and indecent assault, murder, abduction, 169 170

171 172

Deutsche Welle. Afghan President Ashraf Ghani Offers Taliban Peace Talks and Political Recognition, February 28, 2018. The National Transitional Council also passed Law 35 on Granting Amnesties for some Crimes, mainly applicable to the former regime but excluding certain crimes such as torture and rape. Theoretically, this law could apply to international crimes, but it was so poorly drafted that it is unlikely to be applied at all. HRW. Libya: Letter to the ICC Prosecutor on Libyan Amnesty Laws, May 25, 2012. An early version of the law provided that “punishment shall be increased by one third to whomsoever abuses his position as being one of the revolutionary fighters and carries out acts in contradiction with Article (4) of Law 38 such as arresting of individuals, entry and search­ ing of houses, detention of individuals previously required for the success and protection of the revolution.” While this provision was deleted but the revolutionaries continued to insist that it is wrong to “criminalize” them when they liberated the nation.

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forced disappearance and torture, Huddud crimes under sharia’, and corrup­ tion.173 In December 2015, the United Nations brokered the “Libyan Political Agreement,” which sought to end the conflict between supporters of the General National Congress in Tripoli and the House of Representatives in Tubruq. On the issue of accountability, the agreement stipulated that the par­ ties committed to the principles of “prosecuting and punishing perpetrators of murder, torture and other crimes under the international law, including all forms of mistreatment against those detained, whoever they are.” In 2020, pursuant to Security Council Resolution 2510 (2020), which endorsed the conclusions of an international conference on Libya in Berlin, UNSMIL facilitated a Libyan Political Dialogue Forum in Tunis, consisting of seventy-five participants, men and women, representing a cross-spectrum of the Libyan society. The LPDF adopted a roadmap toward elections, to be held December 24, 2021. Pursuant to the roadmap, a new Executive Authority was formed, which nominated a government endorsed by the House of Representatives in March 2021. Among the objectives of the roadmap were “Launching a comprehensive national reconciliation process based on the principles of transitional justice and promoting the culture of amnesty and tolerance in parallel with truth-seeking and reparation.”174 Criminal account­ ability was not mentioned.

VI Conclusion It may be early to speak about a “paradigm shift” in the way that countries balance peace and justice. The peace versus justice debate raises fundamental questions about the legitimacy of the Court and “who decides.” This creates dilemmas for the ICC, since it raises questions about its “democratic defi­ cit” as a supranational institution.175 If peace agreements derail, the ICC risks being viewed as an instrument of law rather than of justice. Some would argue that victims should be the ones to decide. 173 174 175

House of Representatives Law 6/2015 on General Amnesty. LPDF. Roadmap, Article 1 Objectives, subarticle 2.9. Madeline Morris. The Democratic Dilemma of the International Criminal Court. Buffalo Criminal Law Review, Vol. 5 (2002) p. 596: “A supra-national judicial authority has been created, but there has been virtually no examination of its democratic legitimacy.” In the words of Rabkin: “The international community is likely to be paying much less attention to the consequences of prosecutions in a particular country than the people who live in that country. A domestic prosecutor must live with the people affected by his decisions, while the international prosecutor can move on to new assignments, without ever returning to that country. Jeremy Rabkin, Global Criminal Justice: An Idea Whose Time Has Passed. Cornell International Law Journal, Vol. 38 (2005) pp. 753, 767.

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The OTP position paper makes the argument that the interest of victims is always in criminal justice. In the human rights movement, “impunity” became increasingly identified with retribution. A broader interpretation of “impunity” should go beyond punishment of perpetrators and incorporate remedies for victims. In the words of the High Commissioner for Peace in Colombia: Impunity is necessarily measured according to the degree to which the rights of the victims are satisfied. We think that the mistake has been to concentrate simply on the perpetrators. The victims should be the centre of attention.176

In the words of John Dugard, a well-known South African scholar: International opinion, often driven by NGO’s and western activists who are strangers to repression, fails to pay sufficient attention to the circumstances of the society which chooses amnesty above prosecutions; and to the argu­ ment that wounds are best healed at home, by national courts and truth commissions, rather than by foreign courts and international tribunals.177

Indeed, experiences in Uganda, Afghanistan, and Libya show that amnesties continue to be contemplated in certain circumstances. Ending conflict may be necessary to prevent further atrocities,178 as noted by various Latin American scholars.179 The interests of victims ought to be paramount. Louise Arbour, former ICTY prosecutor, has said that peace and justice “requires compromise—both sides have to give. Many justice advocates, how­ ever, wary of losing ground, are unwilling to support that approach.”180 However, balancing questions of peace and justice requires a delicate balance in the law, rather than a dogmatic stance which may serve neither peace nor justice. 176 177 178

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Speech given by the High Commissioner for Peace, Sergio Jaramillo, at Externado University on May 9, 2013, published at El Tiempo. John Dugard. Dealing with Crimes of a Past Regime. Is Amnesty Still an Option? Leiden Journal of International Law, Vol. 12 (1999) 1001–15, p. 1006. In the words of Carlos Niño: “Though it is true that many people approach the issue of human rights violations with a strong retributive impulse, almost all who think momentarily about the issue are not prepared to defend a policy of punishing those abuses once it becomes clear that such a policy would probably provoke, by a causal chain, similar or even worse abuses.” Carlos Niño. The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina. Yale Law Journal, Vol. 100 (1991) p. 2619. Well-known Chilean lawyer and human rights activist José Zalaquett argued that according to Max Weber, when confronted with the dilemma of a trying to negotiate a peaceful transi­ tion, politicians should be governed by the ethics of responsibility, rather than the ethics of conviction. Jose Zalaquett, Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal, Vol. 43 (1992) pp. 1430–31. Louise Arbour. Doctrines Derailed? Internationalism’s Uncertain Future, International Crisis Group’s Global Briefing, October 28, 2013.

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5 Transformative Effect II Peace Negotiations in the Shadow of the ICC

The goal should be to achieve peace with maximum justice.1 President Juan Manuel Santos, Colombia

I Introduction This chapter seeks to assess the transformative effect that the Rome Statute and the ICC had on peace negotiations held in its shadow. The picture is mixed. Experiences in Uganda and Colombia show that the peace versus justice dilemma is not imaginary. In Uganda, peace talks between the g­ overnment of Uganda and the LRA resulted in an Agreement on Accountability and Reconciliation but ultimately broke down and did not produce a final peace agreement. Commentators remain divided over the question whether this was a result of the ICC involvement. On the other hand, the government did proceed in implementing parts of the Agreement on Accountability and Reconciliation, including establishing the International Crimes Division described in Chapters 3 and 4. In Colombia, the Havana peace talks between the government of Colombia and the FARC did result in an Agreement, based on a complex formula of peace with alternative penalties, known as the “Comprehensive System for Truth, Justice, Reparations and Guarantees of Non-Recurrence.” The Agreement in Colombia may form the new international standard on how to balance peace and justice. It represents a very significant achievement that succeeded in the shadow of the ICC. But the Agreement has not yet succeeded in eliminating violence in Colombia. In 2020,

1

UN News Center, Both Peace and Justice Vital to Heal Wounds of Conflict, Colombian Leader Tells UN, September 24, 2013.

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the United Nations recorded the deaths of 255 persons in 66 massacres, as well as 120 human rights defenders and 244 former FARC fighters, figures similar to 2019.2

II  Uganda: Impact of the ICC on the Conflict and Negotiations A  Uganda: Did the ICC Intervention Increase Awareness of Accountability? Uganda has a bloodstained history, but in the past, criminal justice was not used to account for political violence. After the overthrow of Idi Amin Dada in Uganda, many of his security officials were detained but released and never tried.3 In 1987, when Yoweri Museveni came to power, he offered amnesty to all opposing forces who surrendered, excluding “heinous crimes” such as genocide, murder, kidnapping, and rape.4 In the words of Barney Afako: “Ugandans have had to grapple with the meaning of justice in this context.”5 Some scholars have suggested that the ICC was instrumental in shaping the accountability debate in Uganda.6 But as in many societies facing prolonged conflict, discussions on striking a balance between accountability and reconciliation in resolving the LRA conflict predated the ICC intervention.7 With the advent of the ICC, criminal accountability became a more central consideration to these debates.

2

UN News, UN Documents 376 Killings in Colombia in 2020, Urges Government Action, December 15, 2020. 3 See Barney Afako. Reconciliation and Justice: Mato Oput and the Amnesty Act, Conciliation Resources (2002). www.c-r.org/our-work/accord/northern-uganda/­reconciliation-justice.php. 4 Louise Mallinder. Uganda at a Crossroads: Narrowing the Amnesty? Working Paper No.1 from Beyond Legalism: Amnesties, Transition and Conflict Transformation, Institute of Criminology and Criminal Justice, Queen’s University Belfast (March 2009) p. 18. 5 Afako. Reconciliation and Justice, p. 65. 6 This is argued by Sarah Nouwen and Mark Kersten. 7 Prior to the involvement of the ICC, there had been a lively debate in Uganda on traditional ceremonies among both conflict resolution specialists and anthropologists. See Afako, Reconciliation and Justice. Sverker Finnstrom, Living with Bad Surroundings: War and Existential Uncertainty in Acholiland in Northern Uganda. Uppsala: Acta Universitatis Upsaliensis, Uppsala Studies in Cultural Anthropology no. 35 (2003) pp. 297–99. The conversation alternated between a focus on the need for a truth commission, traditional justice, and amnesties or reintegration of former combatants. These mechanisms provide for various degrees of accountability, albeit not criminal accountability.

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B  Did the ICC Focus Increase (Humanitarian) Attention on the Conflict? Some would argue that one of the most significant impacts of the ICC in Northern Uganda was to bring renewed international attention, and with it, new resources, to those victimized by the conflict.8 New actors or organizations did come forward to offer various forms of assistance. Some did get involved due to the ICC’s presence,9 but with others, the connection was less direct. Several new US-based organizations, such as Invisible Children, were formed after the ICC investigation.10 The Enough Project focused on Africa, including Northern Uganda.11 Both organizations engaged in advocacy that sometimes depicted the conflict in simplistic terms and presented the LRA as an isolated criminal “problem” that has to be resolved (not unlike the ICC’s original narrative of the conflict as described in the arrest warrants). As Branch wrote, the ICC “reduced the deep internal political crisis of the Acholi to a simple division between the criminal LRA and innocent civilians.”12 The increased focus of the international community on the conflict was also a result of other developments, independent from the ICC’s intervention, such as the publication of the report, The Hidden War, The Forgotten People,13 or the visit of UN OCHA Chief Jan Egeland in 2003,14 or the activism of the 8

Tim Allen. War in Northern Uganda: An Assessment of the International Criminal Court’s Intervention, Special Report. London, UK: Crisis States Research Centre (2005). 9 See for instance, Erin Baines, Eric Stover, and Marieke Wierda. MacArthur Foundation, WarAffected Children and Youth in Northern Uganda: An Assessment Report, May 1, 2006. This report resulted in the establishment of a new fund in Northern Uganda, pursuant to ICC involvement. 10 Invisible Children was founded in 2004, according to its website, when its founders encountered a boy named Jacob and promised him “we would do whatever we could to stop Joseph Kony and the LRA.” Invisible Children “focuses exclusively on the LRA conflict through an integrated four-part model that addresses the problem in its entirety: immediate needs and long-term effects.” www.invisiblechilden.com. 11 The Enough Project was founded in 2006 by a small group of concerned policy makers, including Gayle Smith and John Prendergast. It is a project that “fights to end genocide and crimes against humanity, focused on areas where some of the world’s worst atrocities occur. We get the facts on the ground, use rigorous analysts to determine the most sustainable solutions, influence political leaders to adopt our proposals, and mobilize the American public to demand change.” www.enoughproject.org. 12 Adam Branch. Uganda’s Civil War and the Politics of ICC Intervention. Ethics and International Affairs, Vol. 21, No. 179 (2007) p. 191. 13 Liu Institute for Global Studies. The Hidden War, the Forgotten People: War in Acholiland and Its Ramifications for Peace and Security in Uganda, October 20, 2003. 14 In November 2003, UN OCHA Chief Jan Egeland visited Northern Uganda for the first time and famously referred to the crisis in Northern Uganda as the world’s “worst, forgotten crisis.” Refugee Law Project, Ambiguous Impacts: The Effects of the International Criminal Court Investigations in Northern Uganda, Working Paper No. 22, October 12, 2012. Egeland, Jan. A Billion Lives. Simon & Shuster (March 2008) p. 201. See also http://reliefweb.int/report/uganda/ war-northern-uganda-worlds-worst-forgotten-crisis-un. See www.irinnews.org/report/58646/ uganda-interview-with-jan-egeland-un-under-secretary-general-for-humanitarian-affairs.

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Canadian Ambassador to the United States Alan Rock, who successfully ­lobbied to have the LRA conflict included in the Security Council agenda.15 The additional spotlight on the LRA by the ICC and other international actors did put more pressure on the government of Uganda to seek solutions to the conflict. C  Influence of the ICC on Conduct of State Actors Some have credited the ICC for improved conduct on the part of the Ugandan People’s Defence Forces, in respect of its human rights record.16 The former ICC Prosecutor himself claimed impact in this area: “one of the most interesting achievements of the Rome Statute’s provisions is that armies around the world are adjusting their regulations to avoid the possibility of committing acts faliing under ICC jurisdiction.”17 There is indeed some evidence of improvements of conduct within the Ugandan People’s Defence Forces (UPDF). For instance, a Human Rights Desk was opened, and new rules were established for cordon and search operations in the context of the conflict in Karamajong.18 A few cases in martial courts were pursued for rape committed in the CAR.19 The former Prosecutor said that the Ugandan troops left DRC immediately after its ratification of the Rome Statute, but evidence suggests that this departure was pursuant to the Luanda Agreement between the governments of Uganda and DRC.20 Other factors, such as pressure from the Uganda Human Rights Commission, also played a role in curbing the behavior of the UPDF. The International Committee of the Red Cross conducted different trainings for the UPDF in recent years.21 Improving the image of the UPDF was also a political priority for Museveni, in the aftermath of numerous corruption scandals.22 15

16 17 18 19 20 21 22

See letter dated January 5, 2006, from the Permanent Representative of Canada to the United Nations addressed to the President of the Security Council, January 9, 2006, UN Doc. S/2006/13. Justice and Reconciliation Project. The Dog That Barks but Doesn’t Bite: Victims’ Perspectives on the International Criminal Court in Uganda, Policy Brief No. 6 (February 2013) p. 5. Luis Moreno Ocampo. The International Criminal Court: Seeking Global Justice. Case Western Reserve Journal of International Law, Vol. 40 (2007–2008) p. 217. Refugee Law Project. Ambiguous Impacts, pp. 14–15. Ibid. Luis Moreno Ocampo. The Office of the Chief Prosecutor: The Challenges of the Inaugural Years, Gruber Distinguished Lecture in Global Justice, 2013. Interview with Ugandan Prosecutor, February 10, 2014. Years ago, the Judgment of the International Court of Justice condemning UPDF for its operations in Eastern Congo, including finding it responsible for killing, torture, and inhumane treatment of Congolese civilians; training of child soldiers; and also looting, plundering, and exploitation of Congolese natural resources. International Court of Justice, Case Concerning Armed Activities on the Territory of Congo, DRC vs. Uganda, Judgment December 19, 2005 No. 2005/26.

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Nonetheless the UPDF was still implicated in killings of political opponents and demonstrators.23 The UPDF remained the military branch of the NRM (National Resistance Movement) and “is not so much pro-regime as it is integrated into the regime itself, each dependent on the other’s well-being.”24 Museveni continued to deny that the UPDF was involved in abuses in DRC.25 A UN Group of Experts in October 2012 also accused Uganda of supporting the M23. The leader of the M23, Bosco Ntaganda, was already under arrest warrant by the ICC at the time.26 D  The ICC’s Role in Empowering Victims in Peace Negotiations A remarkable impact of the ICC is the enhanced role of victims in peace negotiations, in terms of enabling their voices to be heard. In Uganda, the original Agreement on Accountability and Reconciliation was informed by many studies and surveys of victims’ perspectives, which had been conducted before June 2007. Once that Agreement was in place, both parties undertook further official consultations among affected communities on which mechanisms of accountability should be put in place, before concluding the Annexure to the Agreement. The consultations contributed to increasing the trust between war-affected communities in the North and the government.27 This is mirrored in Colombia, where perhaps the single biggest triumph of the peace process may be the empowerment of victim organizations. The Ministry of Justice and the Congress organized victims’ consultations.28 In the Havana peace talks, the mediators and the United Nations helped to organize groups of victims to attend the talks and represent their experiences and views. Different groups of up to sixty victims traveled to Havana to participate in the process.29

23

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HRW. No Justice for April 2011 Killings, 2013. In 2020, the OTP reported on communications about UPDF killings in Kasese, in Western Uganda, on November 26 and 27, 2016, but it did not proceed with a preliminary examination: OTP Report on Preliminary Examinations, 2020 at paras. 37–43. Valerie Freeland. Rebranding the State: Uganda’s Strategic Use of the International Criminal Court. Development and Change. Institute of Social Studies, The Hague (2015) p. 307. Ibid., p. 299. Al Jazeera International, UN Accuses Rwanda of Leading DR Congo Rebels, October 17, 2012. The fact that the Minister of Internal Affairs, Rugunda, who had headed the government delegation at Juba participated personally was particularly important. See Michael Otim and Marieke Wierda, Justice at Juba: International Obligations and Local Demands in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa, Royal African Society, March 2008. Interview with Member of Congress, Bogotá, May 14, 2014. See BBC, Colombia’s Victims Join FARC Peace Talks in Cuba, August 17, 2014. www.bbc .com/news/world-latin-america-28822683.

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Directly  hearing victims as part of the process is a significant step forward in the practice of conducting peace negotiations. Commentators suggest that the debate around international law and legal trainings on the Rome Statute served to strengthen victim organizations, who then rallied around the Justice and Peace Law, which they viewed as an instrument of impunity.30 Victim groups and lawyers seized on the language of victims’ rights31 and the definition of crimes against humanity to analyze their situation and to send communications to the ICC.32 In the opinion of knowledgeable commentators, the ICC strengthened the position of the ­victims in Colombia.33 E  The ICC as an Incentive to Negotiate? The argument is sometimes made that the ICC incentivized negotiations in Northern Uganda by bringing the LRA to the negotiating table. But the evidence on this remains inconclusive, as it is very difficult to demonstrate causality. When the ICC opened its investigation in 2004, peace negotiations in Northern Uganda were at a virtual standstill. Betty Bigombe, the chief negotiator, declared that she would resign if the ICC were to issue arrest warrants against the LRA leadership.34 The talks in 2004 initially led to a cease-fire but broke down when the senior commander involved in the negotiations, Sam Kolo, himself defected in early 2005.35 By the time the ICC unsealed its arrest warrants against senior LRA leaders in October 2005, Bigombe’s further attempts had wilted. By October 2005, the LRA had mostly moved to Garamba National Park in Eastern Congo and was less likely to carry out retaliatory actions.36 While there were allegations that the ICC arrest warrants contributed to several LRA attacks on foreigners in the weeks after they were 30

31 32 33 34 35 36

See remarks of Mr. Reinaldo Villalba of the Jose Alvaer Restrepo Lawyer’s Collective in the report of the expert conference, In the Shadow of the ICC: Colombia and International Criminal Justice, convened by the Human Rights Consortium, the Institute of Commonwealth Studies, and the Institute for the Study of the Americas at the School of Advanced Study, University of London, May 26–27, 2011, p. 36. See remarks of Ms. Catalina Diaz. Ibid., p. 37. See remarks of Mr. Reinaldo Villalba of the Jose Alvaer Restrepo Lawyer’s Collective. Ibid., p. 36. Interview with Member of Congress, Bogotá, May 14, 2014. See ICTJ and UC Berkeley’s Human Rights Center, Forgotten Voices (2005) p. 18. Lucy Hovil and Joanna Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda, Refugee Law Project Working Paper No. 17, July 2005, p. 3. Matthew Brubacher. The ICC Investigation of the Lord’s Resistance Army, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 274.

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unsealed, these rumors were never substantiated.37 Although the initiation of an investigation and the unsealing of arrest warrants provoked much debate and controversy, initially there was no direct negative impact. In August 2006, the government of Uganda and the LRA announced a new cease-fire and the initiation of new peace talks to be mediated by Riekh Machar, the vice president of South Sudan. Agenda item number 3 of the talks was devoted to “accountability and reconciliation.” The peace talks quickly became the most serious attempt to resolve the conflict to date.38 However, fearing possible arrest, senior military leaders of the LRA did not come to Juba to negotiate in person.39 Instead, they were represented by a delegation composed of mainly diaspora Acholi, who often sought to advance their own political agendas. A number of meetings between the LRA, the Ugandan government delegation, and the mediator were arranged in remote locations near Marimba, to build some trust, but this limited contact was clearly insufficient. (As remarked by Barney Afako: “it is not a crime to talk.”) The talks raised questions about whether countries could support them and whether senior negotiators could have contact with subjects of ICC arrest warrants.40 But these concerns did not prevent the talks, and countries generally took the view that the ICC could coexist with ongoing negotiations.41 The Prosecutor in fact argued that the ICC arrest warrants brought the LRA to the negotiating table: “The loss of their safe haven led the LRA commanders to engage in negotiations, resulting in a cessation of hostilities agreement in August 2006.”42 This assertion was adopted by scholars such as Schabas, who wrote “it is widely acknowledged that the threat of prosecution by the International Criminal Court helped to bring the Lord’s Resistance Army to the negotiating table,” citing the Ugandan Ministry for Security, Amana Mbabazi, and Jan Egeland.43 37

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The author was in Uganda in October 2005 when these attacks took place and notified officials of the ICC that there was a perception that these attacks were linked to the ICC. For instance, Finnstrom alleged this in his book at p. 200. The ICC itself subsequently investigated this but was unable to detect such a link. Nick Grono and Adam O’Brien. Justice in Conflict? The ICC and Peace Processes, in Courting Conflict: Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark. Royal African Society (2008) p. 16. Louise Mallinder. Uganda at a Crossroads, p. 37. United Nations Guidance for Effective Mediation, September 2012. Tim Allen, Frederick Laker, Holly Porter, and Mareike Schomerus. Postscript: A Kind of Peace and an Exported War, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 288 Chief Prosecutor’s Address to the Assembly of State Parties, November 23, 2006. William Schabas. Unimaginable Atrocities: Justice, Politics and Rights at the War Crimes Tribunals. Oxford University Press (2012) p. 194.

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In fact, there is no evidence that the LRA had reason to believe that they would be arrested in Sudan and that this is what prompted their move to Garamba. The only serious (but failed) attempt to arrest the LRA was by MONUSCO in Garamba, in January 2006. Barney Afako, legal advisor to the Juba talks, remembers talking to Vincent Otti in late 2005, after the arrest warrants were issued. Afako urged Otti to consider negotiations, but Otti said the LRA preferred to wait for the presidential elections to see if Kizza Besigje, their preferred candidate, would win. According to Afako, the LRA leaders were “not panicked by the arrest warrants.”44 A more likely factor in driving the LRA to the negotiating table was the changed situation in Sudan, after the Comprehensive Peace Agreement between North and South Sudan.45 After the Comprehensive Peace Agreement was concluded, it was difficult for the LRA to remain in South Sudan, as it suddenly found itself in enemy territory and cut off from their supplies. Whether the Sudanese government in Khartoum continued to support the LRA is a disputed matter.46 The LRA was militarily weakened and the opportunity to negotiate gave it a new “lease on life.”47 The factors that drove the LRA to the negotiating table included the constant military pressure on the LRA exerted by the UPDF and fatigue of fighting; practical difficulties in continuing the war in Uganda from Garamba; defections resulting from the Amnesty Act 48; and a general reassessment of strategic options (including creating space to rearm and go back to war if need be).49 While the ICC arrest warrants may have contributed to further isolation of the LRA, “the ICC reinforced an already existing tendency” and ought not to be exaggerated.50 44 45

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47 48 49 50

Discussion with Barney Afako, Barcelona, March 2014. While the ICC has sometimes taken credit for creating a rift between Khartoum and the LRA through concluding an Agreement with the government of Sudan to arrest the LRA in October 2005, it is clear that the distancing by the government of Sudan of the LRA began already with the Nairobi Agreement between Sudan and Uganda in 1999 and was a gradual process. Refugee Law Project, Ambiguous Impacts, p. 17. See also Ledio Cakaj, The Lord’s Resistance Army of Today, Enough (November 2010) on the loss of the support of the Sudanese Armed Forces for the LRA. Mallinder states: “It seems unlikely that a government willing to engage in such horrendous acts of violence against its own population will change its policies solely on the basis of international arrest warrants issued against nationals of another state.” Louise Mallinder. Uganda at a Crossroads, p. 36. But witnesses say that the SPLA gave them three alternatives: (1) conduct peace talks, facilitated by South Sudan; (2) leave South Sudan voluntarily; or (3) risk military action against them by the SPLA. Interview with Northern Ugandan civil society leader, February 12, 2014. Interview with Northern Ugandan civil society leader, February 12, 2014. Refugee Law Project, Ambiguous Impacts. Nick Grono and Adam O’Brien, Justice in Conflict?, p. 16. Refugee Law Project, Ambiguous Impacts, p. 18.

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As soon as the talks got underway, a vigorous debate began on what should be the consequence of the pending arrest warrants.51 HRW argued that the average sentence of the ICTY for comparable crimes was seventeen years and that the Juba agreement should specify similar proportional sentencing.52 As a practical matter, insisting on sentences of this nature would have made any agreement impossible. F  The ICC as an Obstacle to Negotiations? In a curious way, the Juba peace process was simultaneously a success and a failure.53 Juba was a success because it brought relative calm to Northern Uganda, as the conflict moved elsewhere, and provided the legal framework according to which the government implemented transitional justice. But it can also be considered a failure, because the LRA did not sign the Final Peace Agreement nor did it demobilize. In fact, it has continued to wage attacks outside of Uganda.54 However, the assertion that the ICC led to a breakdown of the Juba peace talks is difficult to prove in terms of causality. The ICC took the view that the talks eventually broke down on grounds other than the arrest warrants.55 Advocates of the ICC refer to the fact that all prior attempts to negotiate peace with Joseph Kony over the years also failed.56

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On May 11, 2007, the OHCHR issued a statement in the margins of the Juba Peace Talks to remind the parties “discussions concerning those persons should be focusing on the terms and circumstances of their surrender so they can go and address the charges against them before the ICC.” The mediator issued a response under the title “ignoring complementarity,” arguing that under the Rome Statute Uganda was entitled to explore its own approaches to accountability for the LRA. HRW. The June 29 Agreement on Accountability and Reconciliation and the Need for Adequate Penalties for the Most Serious Crimes, July 2007. Michael Otim and Marieke Wierda, Uganda: Impact of the Rome Statute and the International Criminal Court. International Center for Transitional Justice, Briefing for the Rome Statute Review Conference (May 2010). In recent years, there is some evidence that eventually, the LRA may seek to return to Uganda: Cakaj, Ledio. The Lord’s Resistance Army of Today, Enough (November 2010) p. 20. In the words of the Prosecutor herself: “The role of the ICC has never precluded or put an end to such processes. Rather, I would say, it has proved a spur to action. … As the e­ xample of Joseph Kony shows, there can be obvious perverse side effects from deferring judicial ­proceedings in the name of peace and security. Succumbing to pressure to restrain justice may send out a message to perpetrators that arrest warrants can be stayed if only they c­ ommit more crimes or threaten regional peace and security.” Bensouda, Fatou, Setting the Record Straight: The ICC’s New Prosecutor Responds to African Concerns: Reconciling the Independent Role of the ICC Prosecutor with Conflict Resolution Initiatives, Keynote address, Seminar Institute for Security Studies (ISS), Pretoria (October 10, 2102). Interview with ICC outreach officer, February 6, 2014.

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However, a Catholic priest who served for decades in the conflict-affected area, Father Carlos Rodriguez, said: “nobody can convince a rebel leader to come to the negotiating table and at the same time tell him that when the war ends, he will be brought to trial.”57 Joseph Kony himself, in a rare interview with German journalist Mareike Schomerus, said the following: I read in the paper like this. LRA leadership, Joseph Kony is wanted by the International Criminal Case. That one, as I see, I am not bad and I am not guilty. I did not. I have not done what Museveni is accusing me of … And that accusation was sent by Museveni to [The Hague].… we know very well that Museveni is the one who did that to block us or to spoil or name.58

Later in the same interview, Kony said rather ominously: “So if they want peace, they will take that case from us. But if they do not want peace, then they will continue with it.”59 As with any peace talks, personalities also played a very important role. The statements of President Museveni were inconsistent, veering between willingness to grant amnesty to the LRA or guaranteeing that he would not hand over the LRA to the ICC to expressing skepticism about the talks and continuing to promote a military solution.60 Vincent Otti in particular showed significant interest in the talks and seemed to be considering returning to Uganda but was killed.61 Close observers say that it is not accurate that at the last minute, Joseph Kony chose not to sign due to the existence of the ICC arrest warrants.62 Michael Otim, a prominent civil society activist and firsthand observer of the talks who met with Kony, Otti, and other LRA leaders in Garamba nine times during the peace process, describes how in the early meetings, senior LRA leaders engaged with the talks. During Otim’s first meeting with the LRA leadership 57

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David Lanz. The ICC’s Intervention in Northern Uganda: Beyond the Simplicity of Peace versus Justice. The Fletcher School of Law and Diplomacy (May 2007) p. 1. See also Barney Afako’s remarks at the Review Conference: Moderator’s Summary of Stocktaking of International Criminal Justice, Peace and Justice, RC/11 (2011) para. 2. Mareike Schomerus. “A Terrorist Is Not a Person Like Me”: An Interview with Joseph Kony, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 127. Ibid., p. 128. Chris McGreal. Museveni Refuses to Hand over Rebel Leaders to a War Crimes Court, The Guardian, March 13, 2008. Refugee Law Project, Ambiguous Impacts, p. 18. The author has worked closely with and coauthored several reports with Michael Otim, a prominent civil society leader who met the LRA leadership up to nine times over the course of the Juba Peace Process. For further analysis on this issue, see Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Oxford University Press (2016) pp. 105–8.

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in Garamba in August 2006, most of the LRA had assembled and the senior leadership was present. By the time of the second meeting, in October 2006, it took Kony three days to show up and he seemed “less interested.” Other commanders such as Okot Odhiambo were not present and said to be “on mission.” In September 2006, legal experts, including Barney Afako, traveled to Garamba to explain in more detail the implications of the ICC warrants and to explain that full amnesty would not be available.63 Otim observed how Kony engaged less and less with the talks. For instance, when Riekh Machar traveled to Garamba in November 2008, Kony did not show up at all.64 Otim also described how external actors and donors increasingly drove the talks, some of whom invested significantly, both financially and politically, including the United States. The United States also continued to support a military solution through a tripartite agreement with DRC, Rwanda, and Tanzania to hunt down the LRA and to rid the region of “negative forces.” Local civil society, religious, and traditional leaders were cajoled to act as an interface with the LRA and were afraid to sound skeptical because they were afraid of being labelled as LRA collaborators. In aggregate, it is most likely that a variety of factors put strain on the talks and caused their disintegration. The two-and-a-half years of negotiation were fraught and suffered numerous challenges and setbacks. Cessations of Hostility Agreements were breached, and deadlines to assemble were not respected. The talks also got mired in financial controversies. A rift developed between members of the delegation representing the LRA and the military leadership in the bush.65 The head of the delegation changed from Martin Ojul to David Matsanga to James Obita. These differences caused significant tensions within the LRA and culminated in the murder of Vincent Otti in early October 2007, which in itself was a significant setback. What is clear is that ICC’s warrants were a complicating factor, considering that one of the key demands of the LRA, the lifting of arrest warrants, could not be met. Until the second failed signing ceremony in November 2008, there were intensive efforts to clarify with the LRA leadership what was being proposed in Agreement No. 3, particularly regarding the relationship between the proposed Special Division and traditional justice.66 In final meetings between Joseph Kony and religious and traditional leaders in

63 64 65 66

See www.wikileaks.org/plusd/cables/06KHARTOUM2701_a.html. Interview, February 12, 2014. Interview with religious leader, Gulu, February 9, 2014. Report of the Workshop on Accountability and Reconciliation in Uganda held in the Fairway Hotel on May 6–7, 2008.

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November 2008, it was clear to observers that the LRA senior leadership did not trust the process and that they were not inclined to surrender.67 What was in Kony’s mind during those final weeks is impossible to fathom, although the mistrust he felt was unlikely solely due to insistence on criminal accountability. It is more likely that he was ultimately unwilling to take the leap of faith to entrust his security to the government of Uganda due to a fear of being double-crossed or killed.68 In May 2008, Kony expressed anxiety that the government delegation might be accompanied by snipers tasked to kill him. During the final meeting with religious and traditional leaders, Otim says it was clear that Kony was aware that new military operations were being prepared against them.69 Kony said that he wanted peace but that the circumstances were “very tricky.”70 He said he could hide in Garamba without being found for 100 years if he had to. He thanked the religious and traditional leaders for their work and said he would call them when the time was right.

III  The Ugandan Agreement on Accountability and Reconciliation Initially, there was a large gap in the negotiations between the government of Uganda, which wanted simply to give the LRA a “soft landing” to reinte­ grate them back into Ugandan society, and the LRA, which held out vain hopes that they would be welcomed back to Uganda as “freedom fighters” who had fought for just causes. In the course of the negotiations, the LRA vehemently and repeatedly demanded that the arrest warrants be withdrawn. The ­government of Uganda, on the other hand, publicly stated on several occasions that it would approach the ICC or the Security Council to have the arrest warrants halted if and when the LRA signed the final agreement. The discussions on what incentives or benefits were offered to the LRA leadership were not public and are not reflected in the text.71 A number of 67 68

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Interview, February 12, 2014. Ledio Cakaj. The Lord’s Resistance Army of Today, Enough (November 2010). This report states: “Kony apparently fears being killed or poisoned by the Ugandan government if he decides to come out peacefully. … One of Kony’s wives captured in July 2010 said that Kony thinks the ICC indictments are the biggest stumbling block to peace although he apparently also fears he will hang if he agrees to go to The Hague. Even though Kony was briefed on the ICC indictments during the two years of negotiations as part of the Juba Talks, he appears not to understand some of the basic functions of the ICC” (p. 11). The same report alleges that Ongwen claimed that the Juba Talks offered insufficient incentives to the LRA (p. 13). Interview, February 12, 2014. Ibid. Ibid.

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informal, off-the-record discussions took place with the LRA leadership during the course of the negotiations, to explain to them the nature and consequences of the ICC arrest warrants and to present options for a way forward, while clarifying that neither the war-affected population nor the international community would accept impunity. As the talks approached the negotiations on Agenda Item 3 on “accountability and reconciliation,” a daylong workshop was held at Juba on June 1, 2007,72 to discuss current trends in transitional justice around the world73 and the consequences of the Rome Statute.74 The provisions of the Agreement on Accountability and Reconciliation are clearly influenced by the Rome Statute, as well as other international human rights conventions. The Agreement seeks to balance two essential notions: justice and the “restoration of broken relationships.”75 The Annexure set out the mechanisms that will form part of an “overarching justice framework,” and the ways in which they relate to each other.76 Multiple mechanisms were deemed necessary, including formal justice, traditional justice, truth seeking, reparations, and the Amnesty and Ugandan Human Rights Commissions. A cornerstone of the Agreement is found in Article 4.1, which states: Formal criminal and civil justice measures shall be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict. Provided that, state actors shall be subjected to existing criminal justice processes and not to special justice processes under this agreement.

The Annexure further specifies “a Special Division of the High Court of Uganda shall be established to try individuals who are alleged to have 72

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The workshop prepared the ground for the eventual written agreement and addressed a number of topics including (1) traditional justice in Acholi and other northern areas; (2) international standards and practices relating to transitional justice; and (3) the Ugandan constitution, the Ugandan legal system, and national institutions such as the Amnesty Commission and the Ugandan Human Rights Commission. All of these topics would eventually be reflected in the Agreement itself. The discussion also concluded that the most relevant provisions of the Rome Statute for current purposes were Articles 17–19, which set out the complementarity framework, rather than Article 53 or 16, both of which had been a part of the discussions prior to Juba. Participants discussed the fact that criminal proceedings were most likely to meet the complementarity threshold, but that investigations would need to be for the same conduct charged in the ICC arrest warrants. Participants considered the Colombian Justice and Peace Law (2005) on how to combine various transitional justice approaches and on its practice of reduced sentences. The Agreement on Accountability and Reconciliation defines reconciliation as the “process of restoring broken relationships and re-establishing harmony” (hereafter: Agreement) (see Definitions). Agreement, s. 5.2.

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committed serious crimes during the conflict.” The establishment of this mechanism opened the door to challenging the admissibility of the ICC proceedings.77 In particular, the Agreement also referred to a “regime of alternative penalties,” that was not specified further.78 The impact of the Rome Statute can also be seen in the definition of victims specified in the Agreement.79 The Agreement on Implementation and Monitoring Mechanisms contained several additional provisions referring to the ICC. The government also undertook to “give the ICC a comprehensive report on the Juba Peace Process, the Agreements between the Parties, and the progress on the implementation of the Agreement on Accountability and Reconciliation.”80 The Agreement was generally considered to meet international law standards when reviewed by the United Nations (both the OHCHR81 and the Office of Legal Affairs).82 However, international NGOs and the ICC OTP remained skeptical. On February 20, 2008, Amnesty International issued a statement which said that “it is not acceptable for the Ugandan government and the LRA to make a deal that circumvents international law”83 and that Uganda would still need to hand senior LRA leaders over to the ICC. Similarly, the International Federation for Human Rights (FIDH) said: “Uganda is … under an absolute obligation to co-operate with the ICC and to hand over the LRA leaders.”84

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The Agreement refers to various due process rights of the accused, also protected by Uganda’s constitution, including the right to a “fair, speedy and public hearing before an independent and impartial court or tribunal established by law,” the right to legal representation (Agreement, s. 3.7–3.8.), and the right to finality of the proceedings and protection from double jeopardy (Agreement, s. 3.9–3.10). Agreement, s. 4.7. The Agreement gives a definition of victims, which constituted an elaborated version of the definition of victims found in Rule 85 of the Rules of Procedure and Evidence of the Rome Statute: Victims are “persons who have individually or collectively suffered harm; including physical or psychological injury, emotional suffering or economic loss, as a consequence of crimes and human rights violations committed during the conflict.” Agreement, s. 6.1. Agreement on Implementation and Monitoring Mechanisms, section 38. For ­discussion of the impact of the ICC on the Juba Peace process, see Kersten, Justice in Conflict, pp. 98–100. The author had discussions with OHCHR in the aftermath of the Agreement in which they confirmed that they basically considered it acceptable. The continued participation of the UN Envoy, Joaqim Chissano, is an indication that the UN found the Agreement to meet its standards. See www.amnesty.org.uk/news_details.asp?NewsID=17665. The OHCHR did in fact have an extensive indirect engagement with the talks and prepared a number of other position papers on detailed proposals for the Juba Agreement. See www.fidh.org/spip.php?article5256.

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These statements neglected Article 95 of the Rome Statute, which allows for challenges to admissibility even after arrest warrants are brought.85 The “transformative effect” of the ICC can most clearly be seen in the fact that the Juba Agreement was unique in giving a central place to individual responsibility for the crimes that were committed in the conflict, in contrast to other peace agreements in the region.86 But the wording of the Agreement remains ambiguous on key aspects, most notably on the issue of punishment. Options discussed in secret included house arrests or the possibility of a presidential pardon.87

IV  Impact of the Rome Statute on the Justice and Peace Law in Colombia In 2003, President Uribe introduced an agreement with the majority of Colombia’s right-wing paramilitaries, the AUC (Autodefensas Unidas de Colombia), agreeing to a cessation of hostilities and gradual demobilization plan.88 Due to the ratification by Colombia of the Rome Statute, offering the paramilitaries a complete amnesty was no longer deemed possible. A prominent paramilitary leader, one of the Castaño brothers, retired the day before the Rome Statute entered into force.89 His brother later said in an interview that he had quit in order to protect himself from ICC liability.90 In March 2005, the OTP sent a public letter to the Colombian government to say that the OTP was “monitoring” the situation and that the proposed Justice and Peace Law (Law 975) should comply with the requirements of peace, justice, and reparations.91 The letter sent by the Prosecutor was debated in Colombia’s Congress.92 The Justice and Peace Law was passed on July 22, 2005, but was immediately challenged by human rights organizations and victim 85

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Article 95 of the Rome Statute states: “Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.” See, for instance, the 1999 Lome Agreement in Sierra Leone, which provided for a Truth and Reconciliation Commission, and the 2003 Comprehensive Peace Agreement in Liberia, which contained a similar provision. Interview with civil society leader, February 14, 2014. Some say that President Uribe was inspired by a visit to Northern Ireland in proposing the law. Alejandro Chehtman. The Impact of the ICC in Colombia: Positive Complementarity on Trial. Domac/17 (October 2011) p. 19. Revista Semana. Habla Vicente Castaño, June 5, 2005. Chehtman. The Impact of the ICC in Colombia, p. 21. Interview with Member of Congress, Bogotá, May 14, 2014.

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organizations.93 The revised Justice and Peace Law offered reduced sentences of five to eight years to Colombia’s paramilitaries, under certain conditions. The ICC was specifically mentioned during parliamentary debates on the Justice and Peace Law.94 Secret recordings between the government and the AUC were leaked to the press in which the High Commissioner for Peace at the time was heard to say: “The government has proposed a draft law that will block the action of the International Criminal Court.”95 Others, too, have said that in their contacts with paramilitary leaders, the desire to escape the ICC was one of the motivating factors for paramilitaries to agree to the Justice and Peace law. Other factors included the desire to avoid extradition to the United States and the reduced sentences proposed.96 As part of his “Democratic Security Policy,” President Uribe inclined toward lenience for the paramilitaries. He first introduced a bill on alternative sentencing entitled Ley de Alternatividad Penal. The law proposed legal pardons for all armed actors who accepted to demobilize, based on the reasoning that punishment could be an obstacle to reconciliation.97 Paramilitaries would also continue to have access to their considerable wealth.98 The law was opposed by Members of Parliament, NGOs, victim organizations, and external actors,99 who perceived it as an attempt by the paramilitaries and their sponsors to escape any form of punishment, thus promoting impunity while disregarding the rights of victims.100 Others took the view that the position of human rights organizations and victim organizations was marked by “the maximalist rightsbased approach … according to which victims’ rights should be protected without any constraint-the political need of achieving peace notwithstanding.”101

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Maria Paula Saffon and Rodrigo Uprimny. Uses and Abuses of Transitional Justice in Colombia. PRIO Policy Brief 6 (2007). 94 Chehtman. The Impact of the ICC in Colombia, p. 19. 95 Michael Reed-Hurtado and Amanda Lyons. Colombia: Impact of the Rome Statute and the International Criminal Court, May 2010, paper presented to the Rome Statute Review Conference in June 2010, Kampala, citing Semana, Revelaciones Explosivas, September 24, 2004. 96 See remarks of Professor Eduardo Pizarro in the report of the expert conference, In the Shadow of the ICC: Colombia and International Criminal Justice, convened by the Human Rights Consortium, the Institute of Commonwealth Studies and the Institute for the Study of the Americas at the School of Advanced Study, University of London (May 26–27, 2011) p. 28. 97 Saffon and Uprimny. Uses and Abuses of Transitional Justice Discourse in Colombia. 98 Chehtman. The Impact of the ICC in Colombia, p. 20. 99 Ibid. 100 Ibid. See also victim comments at the Consultations conducted by the Ministry of Justice in Bogotá on November 8–9, at which the High Commissioner for Peace, Sergio Jaramillo, commented that the Justice and Peace law was intended to think of offenders, whereas a new law would take into account offenders as well as victims. 101 Saffon and Uprimny. Uses and Abuses of Transitional Justice Discourse in Colombia.

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Criticism of this law prompted the government to draft a new law in April 2004 on “Justice, Truth and Reconciliation.” Eventually, this law became known as the “Justice and Peace Law” (Law 975).102 “Originally the JPL was probably intended to ‘white-wash’ the paramilitaries, particularly since they were allowed to retain most of their assets which they could access after serving short prison terms. For these reasons, the JPL was criticized as a “more subtle and disguised form of impunity.”103 In 2005, Uribe’s administration explained its formula for the paramilitary negotiations: “As much justice as possible, as much impunity as necessary.”104 An original reference in Article 71, which defined membership in an illegal armed group as the political crime of “sedition” in the JPL and which would have prohibited extradition or transfer to the ICC, was deleted.105 The law eventually recognized the need to find a balance between peace and justice by more explicitly recognizing victims’ rights, and by imposing reduced sentences of five to eight years under certain preconditions.106 A challenge to the law posed by victim groups yielded Constitutional Court Decision C-370 of 2006, which revised the JPL in significant ways described in Chapter 3. In its decision, the Court recognized that the need to achieve a lasting and stable peace would involve “certain restrictions in terms of the objective value of justice and the correlative rights of the victims to justice” but that “peace does not justify everything.”107 It also held that the Justice and Peace law had to respect victims’ rights to truth, justice, and reparations.108 102 103 104

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Chehtman. The Impact of the ICC in Colombia, p. 20. Saffon and Uprimny. Uses and Abuses of Transitional Justice Discourse in Colombia. Michael Reed-Hurtado and Amanda Lyons. Colombia: Impact of the Rome Statute and the International Criminal Court, May 2010, paper presented to the Rome Statute Review Conference in June 2010, Kampala, citing El Tiempo, El as bajo da manga de los Uribistas, February 13, 2005. Ibid., FN 24. Saffon and Uprimny. Uses and Abuses of Transitional Justice Discourse in Colombia. Constitutional Claim Decision C-370 de 2006, s. 5.4. The Court therefore decided that the alternative sentence should only be available under the conditions laid out in Chapter 3. If all these conditions were met, the Court stated that the ordinary applicable punishment for crimes could be reduced to a sentence of five to eight years. The Court also ruled that membership in an illegal armed group could not be considered the political crime of sedition. The decision that membership of a paramilitary group could not be considered “sedition” also meant that the government’s promise of amnesty to some 18,000 paramilitaries not included in the JPL could not be realized. They therefore continued in a state of “legal limbo.” Subsequently, the government attempted to apply the “principle of opportunity” to this class of paramilitaries, but this, too, was ruled unconstitutional by the Constitutional Court in Decision 936/2010, which held that this application violates the principle of legality. Finally, the government passed Law 1424, which suspends arrest warrants and enforcement of sanctions of those paramilitaries: this was held constitutional in Decision 771/2011.

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Commentators agree that the existence of the Rome Statute contributed to a legal context in which accountability standards were critically reexamined,109 and the law was “firmed up” to include minimum prison sentences. However, some of the ruling’s practical effects were repealed by government regulations, which held inter alia that the Court’s decision was not retroactive.110 Revisions to Law 975 also caused backlash, much of it unrelated to the ICC. Senior paramilitaries perceived prison terms as a breach of the pact that they had made with the government and responded by revealing their links with senior politicians. Some commentators therefore link the “hardening” of the JPL, in which the ICC was a factor, to the perceived breakdown of the pact between paramilitaries and the government.111 However, the JPL law was a precursor for the Legal Framework for Peace and the Havana peace process. Many argued that it set a new standard for justice, one that should also apply to the FARC.112

V  Impact of the Rome Statute on the Peace Process with the FARC In 2012, President Santos said that the “stars have aligned” to allow for negotiations to end Colombia’s longstanding conflict with the FARC.113 The first of these “stars” was the altered position of the Santos government itself, which recognized the conflict with the FARC as an internal conflict that needs to be resolved through negotiations, thus treating the FARC as a political actor rather than a criminal organization. The second “star” was a “softening of the ground” among victims through the passage of the Victims Law (1446) designed to meet some of the basic needs of victims. Third, the regional context had changed to favor a peace negotiation, with the death of Hugo Chavez in Venezuela and decreasing regional support for the FARC. The fourth star was the legal context, as laid out in the Legal Framework for Peace. The fifth was the peace process in Havana, which sought to end the conflict and to commence peace-building and national reconstruction, in a situation where Colombia was experiencing considerable economic growth.114 The Havana negotiations were not preconditioned on a cease-fire, and violence continued to be perpetrated periodically by both sides. The Havana talks 109 110 111 112 113 114

Interview with Member of Congress, Bogotá, May 14, 2014. Chehtman. The Impact of the ICC in Colombia, p. 25. Ibid. Interview with Carlos Holmes Trojillo, Vice Presidential candidate, Bogotá, May 17, 2014. Speech given by the High Commissioner for Peace, Sergio Jaramillo, at Externado University on May 9, 2013, published in El Tiempo. Ibid.

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were “talks within the conflict,” something which the Central Democratic Party had opined would not work.115 In general, the population in Colombia opposed impunity for the FARC. The Vice Presidential candidate in the 2014 election stressed that any peace agreement that is seen to guarantee impunity would not be sustainable.116 In the words of Alejandro Ordóñez, the Inspector General in Bogotá: “We are not saying that all the rigor of the criminal code must be applied. There can be substantial reductions. But there can be no absolute impunity, nor can there be symbolic punishment.”117 The Havana talks applied the principle that “nothing is agreed until everything is agreed.”118 Part of the challenge for the government was to convince the FARC that the arrangement proposed on justice would provide legal certainty and that it would not subsequently be overturned by the Constitutional Court of Colombia, the Inter-American Court for Human Rights, or the ICC. The debate on accountability and international standards became diametrically opposed from where it was on Law 975. Leftists, and human rights activists now argued for lenience, whereas the conservatives, including those close to former President Uribe, argued that there can be no impunity and that international standards must apply.119 A  The Rome Statute’s Impact on the Legal Framework for Peace In order to prevent subsequent comprehensive judicial review by the Constitutional Court and to promote legal certainty in respect of the results of the Havana peace talks, the government proposed a constitutional amendment to Articles 66 and 67 of the Colombian Constitution. This took the form of Legislative Act No. 1 of June 2012, which is known as the “Legal Framework for Peace.” The Legal Framework for Peace (LPF) went through several versions and was elaborated in the Congress before its passage.120 An early version 115 116

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Interview with Carlos Holmes Trojillo, Vice Presidential candidate, Bogotá, May 17, 2014. Ivan Carlos Zuluaga, President Santos’s political opponent, said he would continue the peace process only under three conditions: (1) negotiations must be preceded by a cease-fire; (2) there can be no impunity for the crimes of the FARC; and (3) political participation in by the FARC in Colombian politics is not acceptable. Carlos Holmes Trojillo explained that there were many previous attempts to negotiate peace with the FARC but all failed. Interview with Carlos Holmes Trojillo, Bogotá, May 17, 2014. Interview with Alejandro Ordoñez, Inspector-General for Colombia, Bogotá, May 15, 2014. The talks in Havana covered six agenda items: land and rural development (concluded May 2013); political participation of the FARC (concluded November 2013); illicit drug trafficking (concluded May 2014); victims of the conflict; demobilization and transitional justice; and implementation, verification, and legalization of accords. Interview with Alejandro Ordoñez, Inspector General of Colombia, May 15, 2014; Interview with Carlos Holmes Trojillo, Vice Presidential candidate, May 17, 2014. Interview with Legal Advisor of the Constitutional Court, Bogotá, May 15, 2014.

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was very basic and just referred to case selection and prioritization.121 Members of Congress explicitly referred to Rome Statute obligations in the debates,122 and the influence of the Rome Statute can be seen in the text, in particular in relation to explicit references to war crimes, crimes against humanity, and genocide.123 On the other hand, the LFP seems to contravene international law in suggesting that crimes against humanity and genocide, (only) if committed systematically, may not be considered political crimes. The LFP, a short document, grants the National Congress powers to pass a statutory law allowing for the establishment of transitional justice mechanisms, which will “guarantee, to the greatest extent possible, the rights of victims to truth, justice and reparation.” The law may “authorize special and differentiated treatment for the different illegal armed groups that have been a part to the internal armed conflict and also for State agents with regard to their participation in the conflict.”124 The LFP stated that “both prioritization and selection criteria are inherent to transitional justice instruments.” It provided that the Congress would be able to establish selection criteria to “focus criminal investigation efforts on those most responsible for all crimes that acquire the connotation of crimes against humanity, genocide, or war crimes.” It stated that the Congress will also look at the “conditions for the suspension of the criminal sentence; establish the cases in which extra-judicial sanctions, alternative sentencing mechanisms or special modalities for the execution and fulfillment of the conviction may be applied; and authorize a conditional waiver of criminal prosecution of all non-selected cases.” Finally, the LFP provided through Article 67 that a statutory law will recognize which crimes can be considered as “political offences,” the commission of which would not prohibit future political participation. Colombia’s Criminal Code classifies the offences of rebellion, sedition, and mob violence as political crimes, which leaves open the question of which crimes may be considered “connected” to those crimes.125 The logic behind the LFP highlights the fact that the duty to prosecute 1 21 1 22 1 23 1 24

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Ibid. Ibid. Interview with Legal Advisor of the Constitutional Court, Bogotá, May 15, 2014. Own emphasis. Translation provided by the Colombian Ministry of Justice. The idea behind the framework was to be comprehensive, but at the same time, in the words of Sergio Jaramillo, “those who insist … on thinking that the violations of 50 years of war can be investigated on a case-by-case basis are frankly lying to themselves.” Speech given by the High Commissioner for Peace, Sergio Jaramillo, at Externado University on May 9, 2013, published in El Tiempo. Silvia Maldonado. Political Participation: An Implied Condition for Enduring Peace in Colombia, International Law/Rev. Colomb. Derecho Int. Bogotá (Colombia) No. 23, pp. 267–318 (July–December 2013) p. 308.

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still exists in the context of a political transition, but the scope is not the same, due to the concept of transitional justice.126 The LFP came under fierce criticism by human rights groups, both in Colombia and outside. Some groups called it a “backdoor amnesty.” HRW argued that the LFP violated the right of victims to “a judicial remedy for violations of fundamental rights.”127 It argued that victims of cases that would not be pursued through the courts would be denied their right to access to a court of law and that the fact that even those “most responsible” may be eligible for suspended sentences amounts to a “parody of justice.”128 HRW also argued that to include “state agents” such as military personnel constituted an “unnecessary and illogical concession to the perpetrators of atrocities.”129 Other commentators, too, have argued that principles of proportionality and necessity should have been included in the LFP.130 However, the High Commissioner for Peace highlighted that the LFP recognizes that justice is comprised of more than criminal justice. A special penal procedure is not enough. Instead, comprehensive justice is required, including truth-seeking, which will promote an understanding of the root causes, will uncover the fate of those kidnapped and disappeared, will lead to an “acknowledgment,” and will prevent a repetition of the crimes.131 The LFP was adopted by the Congress but was rejected by the FARC,132 neither was it accepted by Uribe’s party, the Democratic Center. B  The Rome Statute’s Impact on the Havana Agreement 1  Agreement Regarding the Victims of the Conflict The FARC’s position at the beginning of the talks was “not one day in jail.”133 The FARC referred to the Colombian justice system as the “justice of 1 26

1 27 1 28 1 29 130 131 132 133

Remarks by Ruth Stella Correa Palacio, Minister of Justice and Law, International Conference Concerning International Humanitarian Law and International Criminal Law in Domestic Law, and Organized Crime, Pontificia Universidad Javeriana, June 20–21, 2013. HRW. Colombia: Amend “Legal Framework for Peace” Bill, May 31, 2012. Ibid. Ibid. Felipe Gomez Isa. Justice, Truth and Reparation in the Colombian Peace Process, Norwegian Peacebuilding Resource Centre, Report (April 2013) p. 2. Speech given by the High Commissioner for Peace, Sergio Jaramillo, at Externado University on May 9, 2013, published at El Tiempo. Interview with Member of Congress, Bogotá, May 14, 2014. Helen Murphy and Luis Jaime Acosta. Colombia’s FARC May Face Alternative Justice, Not Impunity, Reuters, Bogotá September 5, 2013. See also Olle Ohlsen Petterson. We Will Not Go to Prison: FARC Secretariat, Colombia Reports, March 27, 2013.

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our enemies” and added “Even our enemies say it is bad.”134 Instead, the FARC said that they were the main victims of the war.135 During the talks, the FARC indicated that they might be willing to submit to a tribunal, even an international tribunal established by Union of South American Nations (UNASUL in Spanish) or another form of hybrid tribunal.136 On September 23, 2015, the Colombian government announced that it signed an Agreement Regarding the Victims of the Conflict with the FARC.137 The agreement is based on certain principles, including the fulfillment of victims’ rights; accountability for individuals who participated in crimes; nonrepetition of violence; promoting the rejection by society of armed conflict; adoption of territorial, group-based, and gender-based approaches according to how these were affected by the conflict; the guarantee of legal certainty for individuals who participated in the armed conflict as long as there is compliance with the agreement and especially the Special Jurisdiction of Peace; strengthening coexistence and cohesion within the Colombian society; and achieving legitimacy through respect for national and international obligations.138 Under the Agreement, the FARC agreed to “lay aside their weapons” and would be transformed to a political movement, for whom ten seats would be reserved in Congress until 2026. Members would be allowed to exercise their political rights, even if subject to an alternative penalty. In a twist, a public referendum held on October 2, 2016, rejected the peace agreement by 50.2%. While the reasons for the rejection of the agreement were complex, in part they were based on opposition to impunity for the FARC.139 After the referendum, the government summoned the main political forces for further consultations, which resulted in a (amended) Final Agreement to End the Conflict and Establish a Stable and Long-lasting Peace on November 24.140 This version of the Agreement was then approved by the Congress (the Democratic Center walked out of the parliament before it was voted on). 134 135 136 137 138

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It is possible that the FARC was referring to the critical statements by politicians about the justice system made in the context of the Justice and Peace law and the parapolitics scandals. Felipe Gomez Isa. Justice, Truth and Reparation in the Colombian Peace Process, Norwegian Peacebuilding Resource Centre, Report (April 2013) p. 3. Interview with Member of Congress, Bogotá, May 14, 2014. See English Summary of the September 23 Government-FARC Communiqué on the Transitional Justice Accord. Hector Olasolo and Joel M. F. Ramírez Mendoza, The Colombian Integrated System of Truth, Justice, Reparation and Non-repetition. Journal of International and Comparative Law, Vol. 15, No. 5 (December 1, 2017) pp. 1017–18. Agreement pp. 128–29. Ibid., p. 1015. Ibid., pp. 1011–47. An English translation of the Final Peace Agreement can be found at www .altocomisionadoparalapaz.gov.co/Prensa/Paginas/2017/Mayo/El-Acuerdo-de-paz-en-ingles .aspx.

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2  Comprehensive System of Truth, Justice, Reparations, and Guarantees of Non-repetition As part of the agreement, on December 15, 2016, the Colombian government announced in a seventy-five-point plan outlining a Comprehensive System of Truth, Justice, Reparations, and Guarantees of Non-repetition. The seventyfive-point plan provides for an array of transitional justice measures such as a Commission for the Identification of the Truth, Coexistence, and Non-repetition; a Commission for Missing Persons; a Special Unit for the Investigation and Dismantling of Criminal Organizations; various non-repetition guarantees141; and measures for victims reparations, mostly of a collective nature. On December 13, the Constitutional Court declared that legislation to implement the peace agreement could be approved by a “fast track” procedure in the Parliament. This resulted in the quick approval of several laws, including Law 1820 (2016) on amnesty, pardon, and special treatment, and Legislative Act 01, establishing a truth commission, the Special Unit for Finding Missing Persons, the Special Jurisdiction for Peace, and measures on reparations for victims.142 HRW condemned the agreement as “agreeing to impunity,” saying that it left many questions unanswered, including what is meant by restriction of liberties and rights, and the duration of the restriction.143 It also criticized the fact that references to superior responsibility were struck out. In contrast, generally the international community welcomed the Agreement, awarding President Santos with the Noble Peace Prize. The ICC issued a press release welcoming the agreement, calling it a “historic achievement for Colombia and its people,” but this was before the details on restricted liberties became known.144 In its 2016 report, it stated that it “has not formed a specific or final position regarding the Special Jurisdiction for Peace.”145 In September 2017, Fatou Bensouda visited Colombia for the first time and commented positively on the “commitment, invaluable experience, and high standards” of the Colombian courts.146 The views of the 1 41

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Some of these are to prevent what happened to the Patriotic Union, a political party founded by FARC, after a cease-fire in 1985. Thousands were subsequently murdered by paramilitary groups. Olasolo and Ramírez Mendoza. The Colombian Integrated System of Truth, Justice, Reparation and Non-repetition, p. 1016. HRW. Analysis of the Colombia-FARC Agreement, December 21, 2015. Statement of the ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the government of Colombia and the Revolutionary Armed Forces of Colombia – People’s Army, September 2016. ICC OTP Report on Preliminary Examination Activities, 2016, para. 257. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the conclusion of her visit to Colombia, September 10–13, 2017.

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ICC on the fact that the Colombian agreement endorsed alternative, rather than reduced, sentences remained largely unknown, except that the Prosecutor continued to insist on “effective punishment.” However, as highlighted by HRW, references to Article 28, dealing with the responsibility of commanders and other superiors, of the Rome Statute were indeed eliminated from the final revised peace agreement signed on November 24. Legislative Act 01 contains a more restrictive definition of superior responsibility in relation to state officials than the Rome Statute.147 This may make it harder to try commanders, as the absence of superior responsibility may require their actual knowledge or “effective control” over subordinates who committed crimes. This prompted the ICC Prosecutor to give a statement on January 26, 2017, to say that she will try military commanders if the Colombian courts fail to do so.148 The OTP was also considering the definition of “grave” war crimes, and whether nonsystematic war crimes fall under the amnesty law, the determination of “active or determinative” participation in the crimes, and the sentences involving “effective restrictions of freedoms and rights.”149 It filed an amicus curiae brief with the Constitutional Court on certain aspects of Legislative Act 01 and the amnesty law. 3  The Special Jurisdiction for Peace Central to the Agreement is the creation, parallel to the domestic legal system, of a “Special Jurisdiction for Peace” (SJP), with the aim “to do away with impunity, obtain truth, contribute to victims’ reparations, and to judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, particularly the most serious and representative ones.” The SJP will “investigate and prosecute those most responsible for the most serious conflict-related crimes, including cases against members of the FARC-EP, members of the armed forces and those who, directly or indirectly, participated in the armed conflict.”150 It thus reinforces the concept of individual criminal responsibility, as well as victims’ rights. The Agreement and Legislative Act 01 prohibits the extradition of those falling under the SJP. Some of those previously accused under the Justice and Peace Law may also fall under the SJP. 1 47 1 48 1 49 150

Olasolo and Ramírez Mendoza. The Colombian Integrated System of Truth, Justice, Reparation and Non-repetition, p. 1026. Adriaan Alsema. Prosecutor Warns ICC Will Try Military Commanders If Colombia Transitional Justice Fails. Colombia Reports, January 26, 2017: colombiareports.com. OTP Report on Preliminary Examinations, 2017. OTP Report on Preliminary Examination Activities, 2016, para. 253.

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The SJP was originally intended to be an “internationalized” jurisdiction and was proposed to have a minority of foreign magistrates: These were later eliminated when the agreement had to be amended after the peace deal was rejected in a public referendum in October 2016.151 The subject matter of the SJP encompasses crimes that fall under Law 1820 (see the following text) as well as crimes amounting to gross human rights violations and grave breaches of international humanitarian law, committed on account of or in direct or indirect relation to the armed conflict prior to November 20, 2016.152 The SJP has three chambers: the Chamber for the Acceptance of Truth and Responsibility and Establishment of the Facts, the Chamber for Amnesty and Pardon, and the Chamber for Definition of Legal Situations. The Tribunal for Peace has different sections, including a first instance section for cases where there is acceptance of fact and responsibility; a first instance section where there is not; an appeals section; and a review section. There are also Investigation and Prosecution units and an executive secretariat. The Investigation and Prosecution Unit is anticipated to work closely with the Fiscalia (AGO) and has ten years to file all its requests. It can apply case selection and prioritization. The SJP was expected to last fifteen years but can be extended.153 The Tribunal for Peace has jurisdiction only over gross human rights vio­ lations and grave breaches of IHL. It will share its judgments with the Truth Commission. The Tribunal decides on legal qualification, and whether the crimes are covered by Law 1820. It can also decide on the sanction. The Special Jurisdiction for Peace can receive information from a wide variety of sources, including the AGO, but also from other jurisdictions and from victims and human rights organizations. Based on this information, it provides the opportunity to individuals to disclose “facts” and “accept responsibility.” This disclosure is then verified, and the Chamber decides whether amnesty, pardon, or special treatment can apply. In that case, it may send the case to the Chamber on Amnesty and Pardon (in the case of the FARC) or the Chamber for the Definition of Legal Situations (in the case of those eligible for pardons or state actors eligible for special treatment). If the person accepts responsibility, the Chamber may send the proceedings with a sanctions proposal to the First Instance Section of the Tribunal for Peace. If disclosure is incomplete, this Section can refer it to 151 152 153

Olasolo and Ramírez Mendoza. The Colombian Integrated System of Truth, Justice, Reparation and Non-repetition, pp. 1026–7. Agreement, p. 160. Ibid., pp. 1024–25. Agreement, pp. 147, 151. Law No. 1820 Articles 32, 30, 45. Ibid., pp. 1027, 1031.

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the Investigation and Prosecution Unit.154 The Chamber on Definitions of Legal Situations can establish criteria for the selection and prioritization of cases.155 4  Alternative Penalties under the Special Jurisdiction for Peace The real issue of contention in relation to the Rome Statute lies in the provisions on alternative penalties. The Agreement established a regime of alternative penalties other than imprisonment, to be imposed by the Special Jurisdiction. It may include “work, tasks, and activities” aimed at the “satisfaction of victims’ rights” by “compliance with reparative and restorative functions,” for five to eight years. These can include tasks on rural reform political participation, or related to solutions for illegal drugs, and can be directed at specific damage caused for instance to minors or women. Tasks can also relate to environmental protection and building of infrastructure, waste disposal, or demining.156 The punishment may include restrictions prohibiting movement outside of a defined geographical area for five to eight years.157 Those subject to penalties may still engage in political activities. The element of alternative penalties remained unchanged even after the referendum, although amendments were made to further specify what was meant by these components of restrictions and reparations. Also, victim representatives must be consulted in the implementation of a sanctions regime. In deciding on a specific sanction, the Tribunal for Peace considers the degree of disclosure, the gravity of the crimes, the existence of aggravating or mitigating circumstances, and the undertaking made by the individual concerned to provide reparations or his or her participation in demining.158 If the facts are contested, the case goes to the Trial Section, which will conduct an adversarial trial. The Trial Section can impose imprisonment of five to eight years for those who disclose their crimes and accept responsibility prior to judgment.159 These persons will go to regular prisons for five to eight years, where they will “contribute to their re-socialization through work, training or study.” If an accused never accepts responsibility, they may be liable to the ordinary penalty provided in the Colombian Penal Code, for a sentence between fifteen and twenty years, which can be further reduced

154 155 156 157 158 159

Ibid., pp. 1028–29. Agreement, p. 156. Ibid., p. 1031. Ibid., p. 1033. Agreement, pp. 172, 173. Ibid., p. 1033. Agreement, p. 172. Ibid., p. 1034. Agreement, pp. 171–72. Ibid., p. 1035. Agreement, pp. 162, 174.

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through the accused’s resocialization through work, study, or training.160 The Trial Chamber can order the Colombian State and organizations, including the FARC, to provide for symbolic reparations.161 The Appeals Chamber is competent to decide on appeals by individuals against any decision of the three Chambers of the SJP, as well as by victims who allege violations of their fundamental rights.162 The Review Chamber may review any order to appear before the SJP or settle conflicts of jurisdiction between the Chambers. It may also review decisions and is the instance of last jurisdiction.163 Law 1820, passed on December 30, 2016, contains provisions on amnesty, pardon, and special treatment. It applies to demobilized FARC, including those already convicted or subject to legal proceedings, or listed as FARC members as part of the demobilization process, or those convicted for political offences whose membership in the FARC can be inferred. These individuals may be eligible for amnesty. It also applies to other individuals convicted for political crimes such as illegal protests. Such individuals may be eligible for pardon. Finally, it applies to state officials who have been convicted, prosecuted, or identified as responsible for crimes committed in relation to the armed conflict.164 These individuals may be eligible for special treatment. Law 1820 applies to political offences but not to ordinary crimes. Neither does it apply to “gross human rights violations or grave breaches of international humanitarian law amounting to genocide, crimes against humanity, serious war crimes, kidnapping or other severe deprivations of physical liberty, torture, extrajudicial executions, enforced disappearances of persons, rape and other forms of sexual violence, abduction of minors, forcible displacement and the recruitment of children.”165 Law 1820 requires beneficiaries to participate in the truth commission or investigations of the Special Unit for Finding Missing Persons and provide disclosure of their crimes. 5  Special Jurisdiction for Peace in Action After the elections in May 2018, the continuation of the peace agreement was under strain. Right-wing parties, including the Democratic Center headed by President Iván Duque, opposed the peace agreement. Iván Duque stated in his campaign that “a true peace is built through the triumph of the rule of law not 160 161 162 163 164 165

Ibid., p. 1035. Agreement, p. 162. Ibid., pp. 1035–36. Agreement, p. 162. Ibid., p. 1036. Agreement, p. 160. Ibid., pp. 1036–37. Agreement, pp. 163–64. Ibid., pp. 1019–20. Ibid., p. 1021. Agreement, p. 145.

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through  the  relativization of justice.”166 The executive has objected to various ­provisions of the SJP statutory law. Nonetheless, the SJP (known as the JEP in Spanish) commenced its operations in early 2019. Its statutory law was passed on June 6, 2019.167 A report on the SJP’s functioning notes good coordination with the other Havana Agreement institutions and widespread support from the international community. The SJP’s Judicial Panel for Acknowledgment of Truth produced criteria and a methodology to prioritize cases and situations. This may make it possible to avoid some of the pitfalls of the JPL, and to provide better justice for victims. The International Commission of Jurists noted that “the JEP has … undertaken actions to be recognized as a court that guarantees victims’ rights and that counters impunity.”168 On the other hand, the SJP received less funding than it requested. It also faced problems with the implementation of victim participation and reparations. In a unique procedure, victim organizations were allowed to present reports to the Judicial Panel for Acknowledgment of Truth.169 As of November 2020, the SJP reported that it had issued over 35,000 decisions on seven “macro cases” concerning representative conflict-related crimes. The SJP stated that 12,625 people signed pledges of commitment before it, including 9,767 members of former FARC-EP, 2,733 members of the armed forces, and 115 other state agents. It had also received thirty reports on conflict-related crimes from victims’ organizations, civil society organizations and others, including thirty reports of sexual violence.170 With the full implementation of the SJP, Colombia has certainly become a world leader in implementing justice in the aftermath of a peace negotiation. In January 2021, the SJP issued an important decision in which it charged eight of the most senior FARC leaders with war crimes and crimes against humanity (including the kidnapping of up to 21,000 individuals). Two of the accused were serving in Colombia’s Parliament as part of the Common People’s Party, the successor to the FARC. These FARC leaders faced the choice of pleading guilty, which would make them eligible for alternative penalties, or to contest this finding, which would mean that they risk lengthy imprisonment.171 Also significant is the SJP announcement in February 2021 that it had identified 6,402 cases of “false positive” victims between 2002 and 2008 (the years 166 167 168 169 170 171

Associated Press. Critics of Peace Deal Dominate Colombia Election, Bogotá, March 11, 2018. International Commission of Jurists. Colombia: The Special Jurisdiction for Peace, Analysis One Year and a Half after Its Entry into Operation, 2019. Ibid. Ibid. OTP Report on Preliminary Examinations, 2020, at para. 110. France 24. Colombia Tribunal Charges Former FARC Members with War Crimes, January 29, 2021.

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of the Uribe administration).172 This was a far higher number than previously thought and illustrates the systematicity of the crime. The SJP Judicial Panel for Acknowledgment specified which region and military units they will focus on to build the case, starting with officers who were in charge of those regions and then building the case against senior commanders.173 However, former presidents cannot be prosecuted by the SJP.

VI  Spectator or Player? Impact of the OTP’s Actions on Peace Negotiations In Uganda, the strong public positions of the OTP were sometimes perceived as undermining the peace talks.174 In Colombia, the OTP also risked being cast into the position of a spoiler. This became most apparent during the saga of “the letters.” The Colombian Commission of Jurists put the Legal Framework for Peace to a constitutional challenge, arguing that the selection criteria violate Colombia’s international obligation to investigate, prosecute, and punish international crimes, not just when they are “systematic.” The Colombian Constitutional Court held a public hearing on the LFP on July 25, 2013.175 However, in an attempt to influence the process, the OTP sent two letters, which were subsequently described as “bombs” in the Colombian media. Both letters were confidential and addressed to the President of the Colombian Constitutional Court, but they appeared on the website of a major Colombian newspaper, the Semana.176 Both were sent shortly before the deadline of the final decision on August 17. The first was dated July 26, 2013, the same week that the Court was supposed to make its decision. In the letter, the Prosecutor stated that a sentence that is manifestly inadequate, considering the seriousness of the crime and the participation of the accused, could be interpreted as an attempt to shield a person from criminal responsibility under the “most reasonable” interpretation of 172 173 174 175

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Al Jazeera website. Colombian Army “False Positives” Scandal: “No One Listened to Us,” February 23, 2021. Andrés Bermúdez Liévano. Colombia: The “False Positive” Number That Sets Off a Political Storm. Justiceinfo.net. March 9, 2021. Interview with civil society leader, February 6, 2014. Interview with Legal Advisor of the Constitutional Court, Bogotá, May 15, 2014. The ICC was not invited, as it is an external organization. The Colombian Constitutional Court does not seek the views of international organizations in its public hearings because this would create legal complexity as to the legal status of those opinions. See Semana website, August 17, 2013: www.semana.com/nacion/articulo/una-carta-bomba/ 354430-3.

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the Rome Statute.177 She also stated that the object and purpose of the Rome Statute, described as “ending impunity of the most serious crimes” and seeing to it that these “do not go unpunished,” would be contravened by suspension of penalties, as these would effectively prevent punishment. Finally, the letter argues that a suspension of sentence would amount to the equivalent of a pardon, which it argues is prohibited for jus cogens crimes.178 In the second letter dated August 7, 2013, Prosecutor Bensouda addressed the LFP’s approach to prioritization and selection of cases. She noted that the “mandate of the International Criminal Court differs significantly from domestic judicial systems” and that its prosecutorial policy, which is to focus on those bearing the greatest responsibility for the most serious crimes, is a product of the “global nature of the ICC, its statutory and logistical restraints.” She also emphasized that she continued to encourage national authorities to pursue national investigations for offenders of lesser responsibility so as to avoid an “impunity gap,” in accordance with positive complementarity. She recited the preamble of the Statute that the most serious crimes “must not go unpunished.” The Prosecutor’s first letter appears to have impacted directly on the decision of the Constitutional Court. On August 28, the Constitutional Court of Colombia upheld the LFP in a 7–2 decision, in which it established parameters for the statutory law that should be passed after the Agreement. Originally, a press release mentioned eight parameters.179

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The Prosecutor referred to the fact that the travaux preparatoires of the Rome Statute refer to proportionality in relation to sentencing, as does a reference in the Expert Group on Complementarity’s report in 2003, which refers to “grossly inadequate sentences.” She also refers to other international human rights treaties such as the Genocide Convention, Torture Convention and the Inter-American Court of Human Rights. Although these treaties are silent on the matter of punishment, she cites the Barrios Altos case and several other decisions to say that penalties should not reflect impunity but should be proportional to the crimes. However, the Barrios Altos case dealt with a self-amnesty, which can be distinguished legally from a democratically ratified amnesty. Jus cogens norms are those norms of international law that cannot be set aside. The parameters included (1) respect by the state of a duty to investigate in ways that respect the rights of the society and victims, according to transparent selection and prioritization criteria that can be challenged, and if a case is not selected for prosecution to guarantee the right to compensation, truth, and search for and identification of the missing; (2) the armed conflict must end and demobilized groups and individuals must hand in their weapons and cannot commit further offences; (3) international human rights and IHL offences, as well as Rome Statute crimes committed in a systematic manner, ought to be investigated and those bearing maximum responsibility should be charged; (4) the following crimes ought to be prioritized: extrajudicial executions, torture, forced disappearance, sexual violence against women; forced displacement, and illegal recruitment of children, if these constitute genocide, war crimes, or crimes against humanity committed in a systematic manner; (5) ­statutory provisions should be respectful of international treaty obligations that are part

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However, when the full version of the judgment appeared, it included an additional parameter not included in the earlier press release: “The mechanism of total suspension of execution of sentence, may not operate for those convicted as most responsible for crimes against humanity, genocide and war crimes committed in a systematic manner.”180 This appears to have been added in response to the ICC. The sentence of the Constitutional Court in Decision 579 added signification new dimensions to the Court’s reasoning. The Court said it is justifiable to focus criminal proceedings on those bearing the most responsibility, as was done at Nuremberg, Tokyo, the ad hoc Tribunals, and the Cambodia Tribunal.181 The Decision also states that international crimes are by nature “systematic” but that the reference to “systematic” in relation to war crimes was justified as it reflected the requirement for a “policy” element in Article 8 of the Rome Statute.182 The letter of the ICC Prosecutor provoked considerable antagonism in Colombia, as many saw it as an attempt to interfere with national sovereignty and the independence of the Constitutional Court.183 Upon receipt of the letters, President Santos remarked that “all countries that have resolved conflicts are confronted with this decision, complicated decisions because generally not everybody is satisfied. Often the majority is dissatisfied. If one leans too much towards justice, maybe peace cannot be reached.” Iván Márquez from the FARC called the ICC “interventionist and biased” and said that it “knows little about the internal Colombian conflict.”184 In the words of one commentator: “if we have to choose between peace and the ICC, we choose peace.”185

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of the “Constitutional block”; (6) the statutory law shall determine the selection criteria and prioritization; (7) in order to benefit from selection and prioritization, the armed group must contribute in a real and effective way to finding the truth, reparations of victims, release of hostages and the release of all minors; and (8) should ensure the truth and disclosure of all the facts constituting serious violations of human rights and international humanitarian law, through judicial and other mechanisms such as the truth commission. Constitutional Court Dec. C-579/13, para. 8.4.9. Constitutional Court Dec. C-579, para. 8.2.3 – unofficial translation. The Decision gives a definition of “those most responsible” as persons who have “a key role in the criminal organization in the commission of each offense, who directed, exercised control or funded the commission of crimes against humanity, genocide and war crimes committed in a systematic manner.” The Decision suggests that more minor perpetrators could go before the truth commission. Constitutional Court Dec. C-579. Interview with Legal Advisor of the Constitutional Court, Bogotá, May 15, 2014. Interview with Director of Dejusticia, Bogotá, May 16, 2014. Adriaan Alsema. Colombia Challenges ICC over Possible Amnesty with the FARC, Colombia Reports, August 27, 2013. Interview with former Deputy Minister of Justice, Bogotá, May 14, 2014.

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At the hearings organized by the Constitutional Court, the respected intellectual Rodrigo Uprimny commented that the Court’s actions amounted to interference, and that the peace process is a matter of democratic deliberation for Colombians. An influential member of the Congress argued that the peace process needs a language of persuasion, not of threats.186 As mentioned, the FARC too reacted negatively to what they called “imperialist not democratic justice.”187 Others, however, welcomed the letter because it lent weight to the arguments of human rights organizations and others that the LFP should be carefully reviewed for its compliance with international standards.188 Some Colombians said they felt the ICC played a useful role in the peace process, for instance through serving as a useful guarantee for non-repetition.189 The position of the OTP was eventually softened in a speech given by the Deputy Prosecutor delivered in Bogotá in May 2015.190 The Deputy Prosecutor said that “in sentencing, States have wide discretion” and that “effective penal sanctions may take many forms” but that they “should serve appropriate goals, such as public condemnation of the criminal conduct, recognition of victims’ suffering, and deterrence of criminal conduct.” However, the Deputy Prosecutor maintained: “suspending sentences for those most responsible for war crimes and crimes against humanity would amount to shielding the persons concerned from criminal responsibility.”

VII  Peace with Punishment In both Uganda and Colombia, the Rome Statute was instrumental in ensuring that criminal accountability was incorporated into the peace agreement. At the same time, ICC involvement also sparked debates on the extent of the duty to prosecute and what number of prosecutions might satisfy this duty.191 Current practice in international criminal law uses case selection and prioritization to focus on persons bearing the greatest responsibility for the 186 187 188 189 190 191

Interview with Member of Congress, Bogotá, May 14, 2014. Ibid. Interviews in Bogotá, May 2014. Interview with Member of Congress 2, Bogotá May 14, 2014. James Stewart, Transitional Justice in Colombia and the Role of the International Criminal Court, May 13, 2015. www.icc-cpi.int/iccdocs/otp/otp-stat-13-05-2015-ENG.pdf. United Nations Report of the Secretary-General to the Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, August 23, 2004 (S/2004/616) para. 46. See also the Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparations, and Guarantees of Non-Repetition, Pablo de Greiff, presented at the 27th General Session of the Human Rights Council, August 27, 2014, A_HRC_27_56_ENG.pdf.

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most serious crimes.192 As stated by former chief international prosecutor in East Timor, Siri Frigaard: “It is unrealistic to expect that all crimes committed during a specific conflict will be tried in a court, or to expect that every perpetrator will be held criminally responsible for the offences they have ­committed.”193 Comprehensive prosecutions were attempted in the twenty years since the conflict in the former Yugoslavia, including at the ICTY and in domestic courts, but the total numbers remain small. ICTY tried about 200 individuals over seventeen years. The Bosnian War Crimes Chamber, a domestic court with international assistance, is generally considered quite successful but convicted around 110 individuals between 2004–2012, in around eighty trials.194 Bosnia drafted a War Crimes Strategy under which it will take fifteen years to complete trials: in 2012, it completed just over 400.195 The Colombian Legal Framework for Peace suggested both prioritization and selection as appropriate strategies. Directive 001 (2012) of the Colombian Attorney General laid out in much more detail both the policy and legal justifications for a prosecutorial strategy based on case prioritization.196 However, 192

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For an extensive discussion on the topic, see Morten Bergsmo (ed.), Criteria for Selecting and Prioritizing Core International Crimes Cases, Forum of International Criminal and Humanitarian Law. Torkal Opshal Academic Publisher (2010). See also the Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparations, and Guarantees of Non-Repetition, Pablo de Greiff, presented at the 27th General Session of the Human Rights Council, August 27, 2014, A_HRC_27_56_ENG.pdf. Siri Frigaard. Introductory Remarks in Criteria for Selecting and Prioritizing Core International Crimes Cases, edited by Morten Bergsmo. Forum of International Criminal and Humanitarian Law. Torkal Opshal Academic Publisher (2010) p. 2. Nidzara Ahmetasevic. Sarajevo’s Model under Threat, International Justice Tribune, February 15, 2012. In 2010, prosecutors were involved in 365 cases against some 1,165 individuals. According to National War Crimes Strategy, prosecutions in Bosnia were expected to last another 15 years and involve potentially 10,000 cases. Report of the Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, Pablo de Greiff, to the General Assembly 67th Session, September 13, 2012, at A/67/368. Directive 001 (2012) of the Colombian Attorney General. The policy reasons for allowing prioritization of such cases are that this allows justice to be delivered to larger numbers of victims; that prosecutions of high-level actors dismantles criminal structures, thereby contributing to non-repetition of the crimes; that it recognizes the links between various sectors of the society (such as politicians and military or paramilitary groups), thereby contributing to historical truth; and it can protect the rights of secondary offenders who may otherwise languish in jail for lengthy periods of time while awaiting their trial. The Directive also highlights the legal reasons for allowing a narrower focus. It argues that international humanitarian and human rights law do not recognize an absolute right to investigate or prosecute in each individual case. The Directive argues that there is no clear duty to prosecute crimes against humanity or crimes in internal armed conflict, as these are based on customary international law and not treaty law. The Directive also observes that prioritization is practiced by all the international criminal tribunals as well as in some domestic legal systems.

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as  discussed earlier, the ICC Prosecutor did not accept this approach and maintained that the national duty to prosecute remains much broader than that of the ICC. At the same time, in a survey in relation to the SCSL,197 which only prosecuted nine individuals, respondents overwhelmingly said they felt the SCSL had prosecuted those bearing the greatest responsibility.198 All of these imply that there ought to be a limit on the number of prosecutions that states can be expected to pursue as part of a peace process.199 The examples of Uganda and Colombia also suggest that states are increasingly experimenting with alternative penalties in peace agreements as an alternative to amnesties. The Rome Statute is silent on the question of punishment, apart from its Preamble, which states that crimes ought not to go “unpunished.” As mentioned, during the Havana talks, FARC advocated for “not one day in jail,”200 elaborating, “no peace process in the world has ended with leaders of the insurgency behind bars.”201 This raised the difficult question of what level of punishment is required for Rome Statute crimes to avoid mere “symbolic punishment.”202 The OTP seemed to leave the door open to alternative sentences under certain conditions.203 As argued by some authors, the criminal trial itself remains an important aspect of the expressive nature of international criminal law.204 The case that 197

Tom Periello and Marieke Wierda. The Special Court for Sierra Leone under Scrutiny. International Center for Transitional Justice, March 2006. 198 Special Court for Sierra Leone and No Peace without Justice. Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone and Liberia, September 2012. 199 It is not realistic to presume that national legal systems will be able to conduct hundreds, if not thousands, of prosecutions when international systems are clearly unable to do so. It is even questionable whether Colombia would be required to prosecute the 200 or so FARC members against whom in absentia cases were concluded. 2 00 Murphy and Acosta. Colombia’s FARC May Face Alternative Justice, Not Impunity. See also Olle Ohlsen Petterson. We Will Not Go to Prison. 2 01 Iván Márquez, FARC Guerillas Will Neither Go to Prison nor Surrender Weapons: Rebel Negotiator, Rebecca Florey, Colombia Reports, February 23, 2015. 2 02 Interview with Inspector General, Bogotá, May 15, 2014. 2 03 James Stewart, Transitional Justice in Colombia and the Role of the International Criminal Court, May 13, 2015. www.icc-cpi.int/iccdocs/otp/otp-stat-13-05-2015-ENG.pdf. The Deputy Prosecutor said in his speech in Bogotá that the following would help to determine whether an alternative sentence was consistent with a genuine intent to bring the convicted person to justice: the usual national practice sentencing for Rome Statute crimes; the proportionality of the sentence in relation to the gravity of the crime and the degree of responsibility of the offender; the type and degree of responsibility of the offender; the type and degree of restrictions on liberty; any mitigating circumstances; and the reasoning that the sentencing judge gave for passing the particular sentence. 2 04 Paul Seils. Squaring Colombia’s Circle: The Objectives of Punishment and the Pursuit of Peace. ICTJ briefing, June 2015. See also Tim Meijers and Marlies Glasius. Trials as Messages of Justice: What Should Be Expected of International Criminal Courts. Ethics and International Affairs, Vol. 30, No. 4 (2016) pp. 429–47 at 435.

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this expressive function must be fulfilled through long prison sentences is less convincing.205 The treaties providing for international crimes do not give much guidance on the matter of sentencing.206 Punishment may not need to constitute imprisonment as such. The question then becomes which other forms of punishment would still allow for adequate expression of condemnation for breach of social norms. This may differ widely per society, and may depend on the conception of “justice.” The policy objectives behind punishment in international criminal law remain an underdeveloped area.207 The ICTY and ICTR consistently emphasized the goals of retribution and general deterrence in their sentencing judgments.208 Judgments have also mentioned specific deterrence, rehabilitation, the protection of society, stigmatization, and reconciliation as goals of punishment, although retribution and general deterrence remain dominant.209 Nonetheless, sentences imposed by the ICTY over the years were inconsistent, although the scope of crimes and the level of the accused have emerged as important predictors.210 As argued in Chapter 1, neither deterrence nor retribution give adequate justification for sentencing at the international level.211 Imprisonment as a form of punishment should also be seen in historic perspective. The use of imprisonment as punishment in many countries is 2 05

This case is made by Robert Sloane. The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law. Stanford Journal of International Law, Vol. 43, No. 39 (2007). 2 06 The Convention on the Prevention of Genocide says that penalties ought to be “effective,” whereas the Torture against Convention speaks about “appropriate” penalties that take into account the “grave nature” of the crimes. Both international human rights law and domestic constitutions provide for a prohibition of retroactive penalties (nulla poena sine lege) and for the principle of proportionality of punishment in relation to the gravity of the crime and the circumstances of the offender. 2 07 Sloane. The Expressive Capacity of International Punishment. 2 08 Robert Cryer, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure, 2nd ed. Cambridge (2013) p. 497. 2 09 Ibid., pp. 498–99. 210 Barbara Hola, Alette Smeuler, and Catrien Bijleveld. Is the ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice. Leiden Journal of International Law, Vol. 22 (2009) pp. 79–97. 211 See Sloane, The Expressive Capacity of International Punishment, for a critique of retribution as a justification for punishment by an international tribunal. See, for instance, p. 79: “It is far from clear how punishment by an international tribunal, which derives its authority from either treaty or a Security Council resolution (at bottom, a function of state consent to the UN Charter, itself a multilateral treaty), can be a legitimate proxy for the penal interests of the literal victims who suffer extraordinary crimes of violence. This disjuncture may well be a major reason that international tribunals often suffer from a perceived lack of legitimacy in relation to affected local communities or states.”

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relatively recent.212 In Colombia, low-level drug traffickers and paramilitaries suffer the bad conditions of ordinary jails, whereas higher-level offenders usually enjoy considerable luxuries and freedoms even within the confine of prison (a famous example being Pablo Escobar’s detention in La Catedral). Both lowerlevel and higher-level offenders use prison to make connections to continue their illegal activities after their release.213 In the context of Colombia, restricted movement may therefore constitute a valid alternative to imprisonment.214 In Northern Uganda, people considered a prison cell in The Hague as a luxury, not a punishment: “Even if Kony is taken to The Hague, that will not be a punishment. The prisons there are air-conditioned! Rather he should be in the community. He should see the suffering he has caused.”215 Surveys conducted in Northern Uganda suggest that the views of victims on punishment vary. In Uganda in 2005, prior to the Juba peace talks, most respondents (66%) said they favored “hard options” in dealing with LRA, that is, trials, punishment, or imprisonment. Only 22% preferred “soft options” including forgiveness, reconciliation, and reintegration. In a second survey in 2007, taken during the Juba peace talks, 54% of respondents said they now preferred the “soft options,” whereas 41% preferred hard options for the LRA.216 Victim representatives in Colombia also voiced differing views on the issue of punishment.217 As observed by President Santos in his receipt of the Nobel 212 213

214 215 216

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UNODC. Handbook of Basic Principles and Promising Practices on Alternatives to Punishment, New York (2007) p. 3. The Criminal Code of Colombia makes reference to many concepts other than retribution. Colombia Penal Code Law 599/2000. Article 1 states that penal law has its basis in human dignity. Article 3 says that punishment shall be governed by the principles of necessity, proportionality, and reasonability. Article 4 refers to the goals of punishment as general deterrence, retribution, specific deterrence, social reinsertion, and respect for rights of the accused. Colombiapeace.org. Prison of Deprivation of Liberty for Human Rights Violations, 2015. Cited in Tim Allen. Trial Justice: The International Criminal Court and the Lord’s Resistance Army, African Arguments (2006) p. 135. Human Rights Center. Forgotten Voices: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Northern Uganda, July 2005, Human Rights Center, University of California at Berkeley, and the ICTJ. When asked what should happen to the LRA, respondents said that they should be persuaded to come out of the bush (24%) or pardoned/amnestied (23%), put on trial (16%), or captured (13%); 87% of respondents said it should not be possible to prosecute former combatants who have received amnesty. The main measures for accountability identified by respondents included the ICC (29%), Ugandan courts (28%), Amnesty Commission (25%), and traditional measures (8%). But respondents this time said that it was more important to pursue accountability for the government (64%) than for the LRA leadership (19%), or all the LRA (5%). De Justicia, a widely respected Colombian NGO argued that: “From the philosophical perspective, specifically with respect to reflections about the purposes of the punishment, it becomes necessary to have a minimum of retribution as a recognition of the suffering of the victims, and as an affirmation of the values that were negated by the serious human rights violations.” Monograph, www.dejusticia.com, 2013.

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Peace Prize in November 2016: “Victims want justice, but most of all they want to know the truth, and they—in a spirit of generosity—desire that no new victims should suffer as they did.” In an event hosted by the Ministry of Justice, a number of victim representatives remarked that historically in Colombia, perpetrators have often received more benefits than the victims.218 One group expressed the view that those who commit crimes should not become “pampered parties, in luxurious jails.”219 Another group expressed a view that penalties “should not be so harsh as to prevent demobilization and not so flexible as to condone impunity.” Some expressed the view that perpetrators should contribute to reconstruction and could thereby become eligible for a reduction of sentences.220 These views are broadly in line with the approach taken in the Havana peace process.

VIII  Conclusion: No Universal Formula The existence of the Rome Statute had a clearly traceable transformative effect on the process of peace negotiations in Uganda and Colombia. This translated in normative impact: It raised the profile of accountability issues and drew more international humanitarian attention to the conflict. In some respects, it impacted on state actors in Uganda and Colombia. Victims were heard and empowered as part of the process. Negotiators chose to include individual criminal accountability in the peace package, adopting a “peace with punishment” model, but leaving space to improvise on penalties. Crucially, victims’ rights were also considered as part of these agreements. One observer opines that “a process that does not even attempt to include a debate on transitional justice will most likely be considered incomplete and flawed, with negative consequences for the effectiveness and durability of a resulting peace agreement.”221 This statement, however, will be put to the test in the context of other peace negotiations that are to follow.

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Consultations of victim representatives organized by the Ministry of Justice on November 8–9, 2014, in Bogotá (attended by the author). Some stressed the importance of proportionality between the crime and the punishment, referred to the importance of international treaties, and voiced the view that eight years is insufficient. In general, representatives expressed concern at the fact that state actors such as the military may be accorded lenience. Remarks by Claudia Medina at the Consultations on Transitional Justice: A View from the Regions, hosted by the Ministry of Justice, November 7–9, Bogotá. Reports of the Working Groups on Consultations on Transitional Justice: A View from the Regions, hosted by the Ministry of Justice, November 7–9, Bogotá. Philipp Kastner. Armed Conflicts and Referrals to the ICC: From Measuring Impact to Emerging Legal Obligations. Journal of International and Comparative Law, Vol. 12 (2014) pp. 471–90, p. 485.

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So far, there is no clear evidence to suggest that involvement of the ICC in a situation either incentivizes or risks peace negotiations as such. In Uganda, peace negotiations in the shadow of the ICC failed, although conflict did not return to Northern Uganda. In Colombia, the peace process was able to succeed in the shadow of the ICC and is currently being implemented. In the words of Uprimny: “Each society will have its own approach. A universal formula does not exist.”222 The ICC should not seek to impose such a universal formula. To be fair, in the context of Colombia, it has not sought to do so. The speech given by the Deputy Prosecutor in Bogotá in 2015 showed far more deference to the Colombian process than had previously been the case when he acknowledged: “The issue for the Prosecutor of the ICC, but most importantly for State Parties, is how to meet the requirements of the Statute while achieving lasting peace and security.”223 That indeed remains the challenge. But in the case of Colombia, the Court’s restraint may have served the cause of justice. 2 22 2 23

Interview with Director of Dejusticia, Bogotá, May 16, 2014. James Stewart, Transitional Justice in Colombia and the Role of the International Criminal Court, May 13, 2015. www.icc-cpi.int/iccdocs/otp/otp-stat-13-05-2015-ENG.pdf.

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6 Societal Impact I Reparative Effect for Victims?

The victims have no time. They are waiting to be rescued; they are calling to stop the rapes and the killings now. Luis Moreno Ocampo, Review Conference, Kampala, May 31, 2010

I Introduction Reparative effect refers to the Court’s impact on victims. The Court is meant to provide justice for the victims of the world’s worst crimes. Victims are, or ought to be, the ultimate constituency of the Court and are at the heart of its mandate. Including them in the Rome Statute was an important recognition of their central role. But the implementation of the Statute raises questions about how victims participate in the process; how they are empowered; and, ultimately, whether they receive justice. Some commentators referred to the ICC’s effects on victims as restorative justice. However, restorative justice is not a dominant feature of the ICC.1 Instead, it is more accurate to refer to “reparative” justice in the context of the Rome Statute and ICC. The Rome Statute is heralded as the first international criminal forum that actualizes both retributive and reparative justice. The Rome Statute was inspired by the fact that at the domestic level, legal systems of the civil tradition allow for the direct participation of victims in criminal trials through the partie civiles system, and it has sought to reproduce this system on 1

Restorative justice is defined as “a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.” Restorative justice is a horizontal form of justice, which exists in different criminal systems. While in Lubanga, the Trial Chamber argued that the reparations function of the Court promotes reconciliation between victim and offender, this seems highly tentative. Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to Be Applied to Reparations, Trial Chamber I, August 7, 2012, ICC_01/04-01/06, para. 179.

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the international level. The Rome Statute also drew on other developments such as the 1995 Basic Principles and 2005 Guidelines to a Remedy and Reparation for Victims of Gross Violations.2 In 2009, the Court formulated a Strategy in Relation to Victims, which was further updated in 2012.3 The Court’s mandate of holding perpetrators accountable and providing for reparations is broadly supported by victims, who often perceive their domestic justice as biased, corrupted, or favoring impunity.4 At the same time, the existence of the Court raises significant expectations among victim communities. In the words of the FIDH: “Victims and local communities … place their hopes in the activities of the Court. They want justice, to tell their stories, and eventually, to obtain reparations.”5 The Court’s ability to serve victims is supremely important in assessing its overall impact or success, as acknowledged by the Registrar: The success of the Court will depend not only on its judgements and sentences … Rather, the success of the Court will also—if not even to a greater extent—depend on giving the victims voice and adequate reparation and assistance in re-building their lives.6

Reparative justice in the Rome Statute takes the form of victim participation in the legal process, followed by reparations for victims and in some cases, assistance through the TFV. This legal framework will be discussed in Section II. An analysis of whether the forms of reparative justice (participation, reparations) are meaningful should go beyond a quantitative analysis, which does not necessarily provide insight into whether the Court is delivering on its promise of justice for victims. It is rather more difficult to measure qualitative issues such as the acknowledgment that victims may obtain from being included in Court proceedings. At a bare minimum, under the “do no harm” principle, victims deserve protection when they come into contact with the ICC. 2

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law Adopted and Proclaimed by General Assembly Resolution 60/147, December 16, 2005. 3 Report of the Court on the Strategy in Relation to Victims, ICC-ASP/8/45, November 10, 2009. 4 Chris Tenove. International Justice for Victims? Assessing the International Criminal Court from the Perspective of Victims in Kenya and Uganda. AfricaPortal research paper (September 2013) p. 20. 5 FIDH, Enhancing Victims’ Rights before the ICC: A View from Situation Countries on Victims’ Rights at the International Criminal Court, November 2013. 6 Registrar’s Remarks at Coalition for the ICC Launch Forum Commemorating the 20th Anniversary of the Adoption of the Rome Statute, January 15, 2018.

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II  Legal Framework for Victims A  Meaningful Participation? Victim participation, guaranteed in Article 68(3), is one of the main vehicles of the Rome Statute’s promise of justice for victims. Victims have the right to participate in various stages of the proceedings in a variety of ways, although the extent of this right is subject to the discretion of the judges. But implementation has given rise to much debate on what constitutes “meaningful” participation against a challenge of scale that inevitably reduces participation to a bureaucratic process. Converting the ideal of victim participation into a reality was left to the judges of the ICC, who have readily admitted this is an enormous challenge in practice. Measures for victim participation were considered onerous and bureaucratic by all involved and were applied inconsistently.7 The length and complexity of the victim participation forms and the requirements for supporting evidence were criticized by both proponents and critics of victim participation.8 The decision by the judges in Lubanga that victims were to participate on an individual basis,9 led to an enormous burden on the Registry, which has to assist victims in preparing their supporting documentation.10 Moreover, at each new stage of the proceedings, the victim has to requalify for participation.11 As the number of victims who wanted to participate ran into thousands in the cases of Bemba and Gbagbo, new solutions had to be found. This led to

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FIDH. Enhancing Victims’ Rights before the ICC, pp. 14–15. See also Report of the Court on the Implementation in 2013 of the Revised Strategy in Relation to Victims, October 11, 2013, ICC-ASP/12/41, paras 28–37. 8 Christine Van den Wyngaert. Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge. Case Western Reserve Journal of International Law, Vol. 44 (2011) p. 481. See also War Crimes Research Office (2009). Victim Participation at the Case Stage of Proceedings, Washington: Washington College of Law, American University (2009). Chris Tenove. The International Criminal Court: Challenges of Victim Assistance, Participation, and Reparations, AfricaPortal Backgrounder No. 52 (January 2013). Mariana Pena and Gaelle Carayon. Is the ICC Making the Most of Victim Participation? International Journal of Transitional Justice, Vol. 7 (2013) p. 527. 9 Prosecutor v. Thomas Lubanga Dyilo, Decision on Victims’ Participation, ICC-01/04-01/061119, January 18, 2008. In each case, the Chamber must assess whether the victim qualifies as a victim under Rule 85. 10 Different offices in the Registry play an important role, including the Public Information and Outreach Section, the Victim Participation and Reparations Section, the Victims and Witnesses Section, and the Office of the Public Counsel for Victims. 11 Van den Wyngaert. Victims before International Criminal Courts, p. 482.

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the recognition of a simplified, collective application process in the Gbagbo case.12 In the Kenya cases, only victims who wished to appear before the Trial Chamber were required to fill out an application form. Those who wished to participate in proceedings without appearing could register through the common legal representative. However, victims were not always adequately consulted in the process of appointing a common legal representative, nor were there sufficient funds for legal representatives to conduct their field investigations.13 In 2016, a simplified individual approach for participation was laid out in the Court’s Practice Manual.14 Now, victims are required to file out a single-page form. This has greatly improved the process, as exemplified in the Ntaganda and Ongwen and other more recent cases.15 The IER concludes that “there are grounds for optimism that the procedure now followed holds the answer,”16 and that it provides for acknowledgment of individual victims by the Court. However, a number of judges still voiced reservations about victim participation. Judge van den Wyngaert reflected that “a huge amount of time is spent on victim-related issues” in ICC trials.17 Judge Fulford remarked that “the involvement of victims has not greatly added to the length of the case” and “their submissions and questioning have been focused, succinct and seemingly relevant.”18 Financial and efficiency considerations are increasingly featuring in the debate concerning victims’ rights.19 The ICC faces the challenge of scale, which limits its ability to consider the individual situations of victims. The system of a common legal representative is intended to resolve this problem,20 but the challenge remains, and 12 13

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Prosecutor v. Laurent Gbagbo, Second Decision on Issues Related to the Victims’ Application Process, ICC-02/11-01/11-86, April 5, 2012. Interview with Head of VPRS, May 2014. Gaelle Carayon and Jonathan O’Donohue. The International Criminal Court’s Strategies in Relation to Victims. Journal of International Criminal Justice, Vol. 15, No. 3 (July 1, 2017) pp. 567–91. In 2017, the Court presented a new legal aid system to the ASP, which would allow for field budgets to be calculated on a case-by-case basis. Carayon and O’Donohue. The International Criminal Court’s Strategies in Relation to Victims, pp. 567–91. Prosecutor v. Bosco Ntaganda, Decision on Victims’ Participation in the Trial Proceedings, ICC-01/04-02/06-499, February 6, 2015. IER, September 30, 2020, para. 849. Van den Wyngaert. Victims before International Criminal Courts, p. 494. Judge Sir Adrian Fulford. Reflections of a Trial Judge. Criminal Law Forum, Vol. 22 (2011) p. 222. FIDH. Enhancing Victims’ Rights before the ICC, p. 5: “Discussions at the Court and within different bodies of the ASP have a propensity to address victims’ challenges solely as a matter of budgetary concerns, portraying victims’ participation as a ‘cost driver’ or an administrative burden.” In fact, some research has indicated that the role of common legal representatives is quite positively perceived: Tenove. International Justice for Victims? p. 29.

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inevitably results in creating hierarchies of victims, as described by Kendall and Nouwen: “Of the millions of victims in the world, then, only thousands have managed to reach the top of the pyramid of juridified victimhood and have been granted provisional recognition as victims before the ICC.”21 The IER estimates that in the Ongwen case, from around 20,000 potential participating victims, only 4,107 are in fact participating in the case.22 Underlying these tensions is a lack of consensus on the actual purpose of victim participation.23 NGOs strongly argue that victim participation is essential, because victims “provide judges with contextual information, ensure a connection with the field and a degree of local ownership of ICC proceedings, thereby advancing the legitimacy of the ICC mandate.”24 They argue that victim participation can “empower victims and contribute to their healing” while “establishing a strong connection between the Court and victims, with victims providing important factual and cultural context to proceedings, which can also contribute to establishing the truth.”25 Some go even further to suggest that the victim participation function is what connects the process of the ICC with the local context: “Regularly, only a few of those involved in the proceedings are thoroughly familiar with the local context and customs that are relevant to understanding the manner and impact of the commission of the crimes and to interpreting the evidence.”26 Proponents argue that victim participation fills that gap.27 Participation contributes to public acknowledgment, according to the NGOs.28 Any suggestion to limit victim participation is vehemently opposed by them: “A narrow interpretation and application of the rights of victims by the Court may be 21

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Sara Kendall and Sarah Nouwen. Representational Practices at the ICC: The Gap between Juridified and Abstract Victimhood, University of Cambridge Faculty of Law, Research paper No. 24 (2013). IER, para. 862. Jo-Anne Wemmers. Victims’ Rights and the International Criminal Court: Perceptions within the Court Regarding the Victims’ Rights to Participate. Leiden Journal of International Law, Vol. 23 (2010) 629 p. 637. In her research, she indicates that officials inside the Court had different ideas on what were the goals of victim participation, whether it is providing information or a form of expression. FIDH. Enhancing Victims’ Rights before the ICC, p. 4. Redress. Independent Panel of Experts Report on Victim Participation at the International Criminal Court, July 2013. Pena and Carayon. Is the ICC Making the Most of Victim Participation?, p. 524. This was also stated by the Court in the Katanga and Ngudjolo case, in the Decision on the Set of Procedural Rights Attached to the Procedural Status of Victims at the Pre-Trial Stage of a Case, Doc. No. ICC-01/04-01/07-474 (May 13, 2008) paras. 31–36: victims can assist the judges to “better understand the contentious issues of the case in light of their local knowledge and socio-cultural background.” Pena and Carayon. Is the ICC Making the Most of Victim Participation?, p. 525.

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inconsistent with the requirements of the Statute and undermine the credibility of the Court.”29 The IER noted that improvements have been made to victim participation over time and found “no basis for suggesting any curb on the rights of victims to participate in proceedings of the Court.”30 The IER found that “victims were woven directly into the fabric of the Rome Statute.”31 The IER also commented that “bureaucracy and procedure are essential features of the working methods of any public institution.”32 It concluded: Victims play a significant role in a broad range of aspects of the work of the Court. Their views and concerns have informed decisions to open investigations, they have contributed legal argument on both substantive and procedural issues at all stages of the proceedings and they have played a central role in reparations proceedings.33

On the other hand, observers of the Court have found that victims “have not been an important consideration in the judges’ decision making in determining outcomes such as truth, justice and reparations.”34 The Bureau of the ASP stated: “participation must be meaningful for victims but also for the purposes of the proceedings, in other words, to provide sufficient relevant information for the Judges, the parties and participants.”35 Judge van den Wyngaert has said: There is an enormous distance—both in the literal and the cultural sense— that often separates the reality of victims’ lives from the proceedings in The Hague. Victims generally do not personally attend the hearings. Considering their numbers, this would simply be impossible. In general, therefore, victims are represented by counsel, and most of them never make it to The Hague … In those circumstances, can legal representation be anything more than symbolic?36

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Carayon and O’Dononue. The International Criminal Court’s Strategies in Relation to Victims, pp. 567–91. IER, September 30, 2020, para. 843. IER, para. 857. IER, para. 859. IER, para. 838. Luke Moffett. Realising Justice for Victims before the International Criminal Court. International Crimes Database (September 2014) p. 8. Report of the Bureau on victims and affected communities and the TFV, including reparations and intermediaries, Twelfth Session, The Hague 20–28 November 2013, ICC-ASP/12/38 at para. 10. Van den Wyngaert. Victims before International Criminal Courts, p. 489.

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A more informal, less judicial approach to victim participation could assist in shaping the perceptions of victims. Interaction between victims and Court officials, in the form of outreach and consultation, may also be perceived as contributing to the process of justice.37 Research indicates that until now, victims often perceive of the Court as engaging in one-way rather than two-way communication, and they perceive that meetings did not lead to feedback or action.38 In certain situations, such as Afghanistan or Uganda, outreach to victims started very late: in the case of Afghanistan, only after the Preliminary Examination had been open for ten years. In the case of Palestine, the Pre-Trial Chamber recognized the need for public information and outreach at an early stage.39 The presumption that participation as currently implemented serves to build local ownership in the Court deserves to be questioned.40 Some observers have commented that the Court is increasingly inclined to take decisions without involving victims.41 In any case, in the current model, legal representatives and Court staff consume many of the resources reserved for victim participation. Indeed, the gap between the promise of the Court and its delivery in practice is becoming more apparent as time goes on. As stated rather brusquely by the Bureau of Assembly of States Parties in 2013 that while “the debate on victims cannot be reduced to a cost-driver, they [proponents] should be aware that the world is still facing a financial crisis that has consequences in terms of the allocation of resources.”42 The IER also noted that the most fundamental concern in relation to victim participation related to the overall costs of the system versus the benefits.43 A Berkeley University study on victim participation in Uganda, DRC, Kenya, and Côte d’Ivoire concluded that most victims have insufficient knowledge to make informed decisions about whether to participate in ICC cases.44 In terms of expectations, victims want convictions and reparations: in fact, the latter was the main motivator for participation in Uganda and DRC. At the 37 38 39 40 41

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In one study less than 10% of the Court staff associated victim participation with consultation. Wemmers. Victims’ Rights and the International Criminal Court, p. 637. Tenove. International Justice for Victims?, p. 27. Pre Trial Chamber, Situation in the State of Palestine, July 13, 2018 ICC-01/18/2. Some argue that the victims’ participation function should constitute consultation: Pena and Carayon. Is the ICC Making the Most of Victim Participation?, p. 531. Pena and Carayon. Is the ICC Making the Most of Victim Participation?, p. 532. Carayon and O’Donohue. The International Criminal Court’s Strategies in Relation to Victims, pp. 567–91. Report of the Bureau on victims and affected communities and the TFV, including reparations and intermediaries, Twelfth Session, The Hague, 20–28 November 2013, ICC-ASP/12/38. IER, para. 856. Human Rights Center, University of California, Berkeley, The Victims Court? A Study of 622 Victim Participants at the ICC: Uganda, DRC, Kenya, Côte d’Ivoire (2015).

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same time, victims expressed frustration at the length of trials, and their satisfaction depended largely on their personal interactions with ICC staff or their legal representatives, which tended to be very few. Victims in some situations such as Kenya feared reprisals for their involvement in ICC proceedings.45 The findings of this study are also reflected in other studies. For instance, one smaller-scale study based on focus groups in Kenya and Uganda indicated that many victims want to be heard by the ICC and recommended that the ICC should “listen attentively to the experiences of individual victims.”46 The IER has called for a full appraisal of the victim participation scheme.47 It is apparent that further reflection is needed on the victim participation function of the Court, and whether it is really delivering justice for victims. B  Who Is Eligible for Reparations? If victim participation has given rise to doubts on whether it is delivering justice for victims, this doubt is more acute in the case of reparations. Reparations proceedings are governed by Article 75 of the Statute. In a national context, reparations are a crucial form of acknowledgment that the state violated the rights of victims. De Greiff argues that reparations should lead to “recognition, civic trust and social solidarity.”48 At the international level, such acknowledgment takes a different form. The big challenge facing reparations granted by the ICC is that the numbers that may be eligible for reparations will always be far larger than the resources available. Convicted persons themselves will often either be indigent, or it may prove impossible to access their resources. This means that most orders for reparations must be financed from voluntary contributions to the TFV. This inevitably reduces reparations to the realm of the symbolic. It is intended to be meaningful, but it remains to be seen whether it will be experienced as such. The Court currently approaches reparations on a case-by-case basis. The Trial Chamber in Lubanga laid down principles and procedures for reparations for that case as provided for in Article 75(1).49 In doing so, the Trial Chamber gave an expansive vision of reparations. It held that the reparations function had several important goals, including to require those responsible 45 46 47 48 49

Ibid. Tenove. International Justice for Victims?, p. 31. IER, para. 864. Pablo de Greiff. Justice & Reparations, in The Handbook of Reparations, edited by Pablo de Greiff, Oxford University Press (2006) p. 451. Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to Be Applied to Reparations, Trial Chamber I, ICC_01/04-01/06, August 7, 2012.

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to repair the harm they caused, and to alleviate the suffering of individuals and communities, thereby affording justice, deterring future violations, and contributing to reconciliation. Particularly notable is the fact that the Trial Chamber put proportionality at the center of its approach to reparation. For instance, the Trial Chamber held that compensation can be granted if there is economic quantifiable harm, if such an award is appropriate and proportionate, and if there are available means to make this approach feasible.50 The Trial Chamber held that “awards ought to be proportionate to the harm, injury, loss and damage.”51 On the other hand, the scope of reparations could be individual or collective: A collective approach may be appropriate to reach unidentified victims.52 At the same time, the Trial Chamber took the view that reparations should reflect local cultural and customary practices, if appropriate, and should support programs that are self-sustaining.53 The Appeals Chamber later clarified a number of issues from the Trial Chamber decision.54 The Appeals Chamber took a judicial approach to reparations, which closely links the individual criminal responsibility of the perpetrator with the rights of the victims. But the Appeals Chamber urged the TFV to continue “assistance” to victims who fall outside of the exclusionary categories that it laid out.55 On December 15, 2017, the Trial Chambers set the amount of Lubanga’s liability for collective reparations at 10 million USD. However, at the time of the accused’s release after a fourteen-year imprisonment, the implementation of reparations was still ongoing. Following the Appeals Chamber Decision, in the Katanga case,56 the Trial Chamber issued individual symbolic compensation of USD 250 per victim, intended to provide “meaningful relief” to the victims. It also ordered collective reparations in the form of support for housing, income-generating activities, education aid, and psychological support. The Chamber assessed the extent of damage in the case to a monetary value of USD 3,752,620 and, 50 51 52 53 54

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Ibid., para. 226. Ibid., para. 243. Ibid., paras. 217, 219. Ibid., paras. 245–46. Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of August 7, 2012, with AMENDED order for reparations (Appendix A) and public annexes 1 and 2, ICC-01/04-01/06-3129, March 3, 2015. Ibid., para. 215. Peter Dixon. Reparations, Assistance and the Experience of Justice: Lessons from Colombia and the Democratic Republic of the Congo. International Journal of Transitional Justice, Vol. 10, No. 1 (2016) at pp. 88–107. Prosecutor v. Germain Katanga, ICC-01/04-01/07-3728, Ordonnance de reparation en ertu de l’article 75 du Statut, March 24, 2017.

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observing proportionality, assessed Katanga’s liability at USD 1 million. The Appeals Chamber later held that the Trial Chamber’s assessment of each application caused unnecessary delays, and that its role should mainly be to define the harm and determine the appropriate modalities for repaying the harm.57 The TFV complements reparations awards made by the Chambers against accused persons, in order to seek to ensure meaningful reparations.58 In the Al-Mahdi case,59 the accused was held to owe 2.7 million in expenses for individual and collective reparations for the community of Timbuktu after his conviction for directing attacks against the religious and historic buildings in that city. Al-Mahdi being indigent, the TFV was tasked with drafting an implementation plan. The Trial Chamber stressed the potential of the award to contribute to deterrence and to reconciliation. The Trial Chamber also ordered individual reparations for those whose livelihoods depended on the attacked sites and whose ancestral burial places were damaged in the attack. On March 8, 2018, the Appeals Chamber ruled that the identities of the victims did not need to be disclosed to Al-Mahdi, but only to the TFV.60 Many inconsistencies and uncertainties remain in reparations proceedings. This lack of clarity is a source of frustration to victims.61 In the Ntaganda case, the Trial Chamber issued a Reparations Order at the value of thirty million for the victims of Ntaganda. It also issued new principles, including on “do no harm,” sexual- and gender-based violence, prioritization, the transformative quality of reparations, and “no over-­compensation.”62 The Chamber gave explicit priority to victims who require immediate medical and psychological care, victims with disabilities and the elderly, victims of sexual- or gender-based violence, victims who are homeless or experiencing financial hardship, and children born out of rape and sexual slavery and

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Prosecutor v. Germain Katanga, ICC-01/04-01/07 A3 A4 A5, Judgement on the appeals against the order of Trial Chamber II of 24 March entitled “Order for Reparation Pursuant to Article 75 of the Statute,” March 8, 2018. Redress, No Time to Wait: Realising Reparations for Victims before the International Criminal Court, 2019, p.12. Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-236, Reparations Order, August 17, 2017. Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-A, Appeals Chamber, Public Redacted Judgement on the Appeal of Victims against the “Reparations Order,” March 8, 2018. Carayon and O’Donohue. The International Criminal Court’s Strategies in Relation to Victims, pp. 567–91. The Prosecutor v. Bosco Ntaganda, Reparations Order, Trial Chamber VI, March 8, 2021, ICC-01/04-02/06.

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former child soldiers. The reparations would be dispensed on a community level, not to individuals. However, it effectively relegated the issue of financing these reparations to the TFV, because Ntaganda was indigent. It seems rather unlikely that the TFV can succeed in implementing this Order, thus widening the gap between what the Court promises to victims and what it delivers. One of the biggest difficulties of the reparations proceedings is their length. Judge van den Wyngaert has predicted: “if the extent of the harm suffered and the causal link with the crimes has to be proved on an individual basis, there is a good chance that the length of the reparations proceedings could exceed the duration of the criminal trial itself.”63 The IER concluded that the length of reparations proceedings had a significant impact on the expectation of victims and the reputation of the Court,64 and that “the Court is not functioning and delivering as envisioned.”65 The IER comments that “the Court’s conceptual and procedural processes for reparations are laden with complexity and uncertainty, which gravely affects the victims’ rights to meaningful participation and reparations…. Overall, profound delays exhibit the whole process. Victims … wait a lifetime.”66 Another study concludes that reparations proceedings have “delivered little by way of tangible results”67 and calls on the Court to produce a coherent set of general principles to guide reparations. The TFV has not been able to recover assets and will not be able to pay reparations to all the victims that are eligible in any manner proportionate to the crimes. At the same time, often victims continue to expect individual reparations, although this may vary according to the context.68 Even collective reparations, which in principle are to be welcomed, severely strain the resources of the TFV, which currently is not sufficiently resourced to build even a single school or hospital in any affected community. The expenditure in terms of staff costs and legal representation currently going into victim participation in 2012 was estimated at seven million.69 The fact that the victim participation function cost the Court more than the TFV has 63 64 65 66 67 68

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Van den Wyngaert. Victims before International Criminal Courts, p. 487. IER, para. 884. IER, para. 885. IER, para. 879. Redress, No Time to Wait. Tenove. International Justice for Victims?, p. 21. Discussants in Kenya believed that victims of PEV need individualized compensation and livelihood assistance. By contrast, respondents in Uganda were much more open to community-level reparations for the whole northern region. Participants also tended to agree on who ought to be prioritized, including the vulnerable (e.g., families without breadwinners, disabled). Ugandans tended to express more interest than Kenyans in symbolic reparations. Van den Wyngaert. Victims before International Criminal Courts, p. 492.

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available for victims shows an imbalance.70 The resources and time invested in victim participation may be better invested in reparations, as suggested by Judge van den Wyngaert.71 In contrast, the Colombian Victims and Land Restitution Law (1448) from 2011, which combines assistance and reparations, registered almost 16% of Colombia’s population as official victims of the conflict, including many victims of internal displacement.72 In 2016, the Colombian government had paid reparations payments to 473,257 victims and made assistance payments to 1,184,418.73 At the national level, reparations can be broad in scope and can also take nonmonetary forms such as free access to certain social services. C  The TFV: Centerpiece or Sideshow? According to Article 79 of the Rome Statute, the TFV has a twofold mandate: (1) to administer reparations ordered by the ICC against convicted persons and (2) to use other resources for the assistance of victims. So far, the TFV’s activities have centered mainly on the granting of assistance. By 2020, less than 300 victims had received reparations.74 The resources for the TFV come from voluntary contributions, some of which are earmarked, such as for victims of sexual and gender-based violence.75 The TFV has supported a range of humanitarian projects in ICC situation countries, including Uganda, DRC, and CAR. In 2020, it started work in Georgia, and activities were planned in Côte d’Ivoire and Mali. Its annual reports are filled with facts and figures on the performance of projects. In 2016, its projects had 70,667 direct beneficiaries and 230,641 indirect beneficiaries.76 The TFV has started to develop a plan with goals and indicators, in order to measure its own impact. In some respects “[t]he flexible procedures that the TFV may apply make it more suitable to design approaches to reparations for mass crimes than the Court itself.”77 On the other hand, 70 71 72 73 74 75 76 77

Ibid., p. 492. Ibid., p. 495. Dixon. Reparations, Assistance and the Experience of Justice, p. 93. Ibid., p. 94. Janet Anderson and Stephanie van den Berg. ICC Victims Fund: Who’s Responsible for Its Failure? (Everybody), January 21, 2021. Both the UK and Japan both made significant contributions earmarked for SGBV, of 800,000 and 600,000 euros, respectively. Second Court’s Report on the Development of Performance Indicators for the International Criminal Court, November 11, 2016, p. 65. Pablo de Greiff and Marieke Wierda. The Trust Fund for Victims of the International Criminal Court: Between Possibilities and Constraints, in Out of the Ashes: Reparation for Victims

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some argue that the distinction between reparations and assistance exposes tensions “between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and ultimately between the supposed symbolic power of reparative justice and victims’ actual experience of reparations in practice.”78 However, the TFV must also implement the reparations orders of the Court. The TFV has played a role in helping to design the reparations approach in Lubanga and in Al-Mahdi. This part of its mandate has experienced difficulties, and the TFV has been criticized by the judges on its ability to produce concrete and detailed implementation plans.79 In the Lubanga case, the design of reparations has taken so long that the child soldiers who were potential beneficiaries are now adults.80 In the Katanga case, reparations were disbursed more quickly because the TFV organized programs directly. Reparations awarded in the Al-Mahdi case were due to be implemented in early 2021.81 By late 2020, victims of only one case have received reparations. The TFV has vowed to work on assistance in CAR in spite of the Bemba acquittal. It is unlikely that fines and forfeitures will ever result in a sufficient yield to make a substantial difference to what victims are offered in terms of reparations.82 The TFV is highly dependent on voluntary contributions, mostly by governments. The donor base of the TFV is broad, but the level of contributions is low. Between 2010 and 2018, the TFV received 28.5 million euros in public donations and 218,000 euros in private donations, amounting to around 3.6 million euros a year.83 Additionally, around 40% of the TFV funds are spent on running costs.84 In 2016, the TFV spent 1,855,000 euros on its own administration and 1,530,372 euros on victims, causing Schabas to comment that “the main beneficiaries of the Trust Fund for Victims appear to be the professionals who work in The Hague at the seat of the Court, as well as airline companies and hotels.”85 The IER was very critical of the work of the TFV, faulting its management. It noted that the TFV has not been successful in attracting more donations “partly

78 79 80 81 82 83 84 85

of Gross and Systematic Human Rights Violations, edited by K. De Feyter, S. Parmentier, M. Bossuyt and P. Lemmens, Intersentia (2005) p. 243. Dixon. Reparations, Assistance and the Experience of Justice, p. 89. Interview with TFV Director, May 7, 2014. Janet Anderson and Stephanie van den Berg. ICC Trust Fund: The Black Hole. JusticeInfo. net, December 9, 2020. Ibid. Report of the Bureau on victims and affected communities and the TFV, including reparations and intermediaries, Twelfth Session, The Hague, 20–28 November 2013, ICC-ASP/12/38. IER, para. 889. Janet Anderson and Stephanie van den Berg. ICC Trust Fund. William Schabas. Two Ways to Live within the Budget: Restructure the Chambers; Tame Victim Participation and Reparations, iccforum.com/anniversary#Schabas, June 28, 2018.

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due to systematic challenges referring to how the TFV and its Secretariat have been construed, governance and management issues within the Secretariat, ineffective oversight, and the absence of a fundraising strategy. Such factors contributed to significant budgetary underperformance.”86 The IER noted that the TFV did not have a strategy document, guidelines, or principles in deciding on reparations or assistance projects.87 The IER found the TFV “unable to effectively and meaningfully carry out its reparations and assistance mandates,”88 and recommended that these be transferred to the VPRS. It recommended that the TFV should focus on its original mission as a trust fund, including fundraising, administration of funds, and release of the funds and property ordered by the Court, including the development of a fundraising strategy. The TFV remains chronically underfunded for its task. The cause of paying for the crimes of others seems not to attract significant donor support. A contributing factor may be the way foreign aid is structured: human rights and development are often financed from different departments, and ODA (Official Development Assistance) criteria apply to development funds (although the TFV can accept ODA funds). The assistance of the TFV may not easily be distinguishable from general humanitarian aid, which is also delivered through other channels. Innovative ways of financing have been explored but have not yet come to fruition. At the same time, even prior to the Ntaganda Reparations Order, the TFV would need about forty million euros in 2021 to live up to its current obligations, with situations such as Myanmar, with hundreds of thousands of victims, in the pipeline.89 While there may be a need for the TFV to explore other sources of funding, such as private donations, it is unrealistic to expect an enormous increase, considering that every year, States are eager to contain the costs of the ICC. All in all, the TFV remains a “side show” to the ICC project, and it also has all the dangers of overpromise to victims. D Conclusion In spite of the lofty goals of the Rome Statute, the Court’s practices on participation and reparations are falling short in delivering justice to victims. Some commentators criticize the ICC for not laying out a sufficient strategy on victims; not defining clear indicators for progress, with too much focus on quantitative, rather than qualitative, indicators in the Court’s Strategic Plan; and 86 87 88 89

IER, para. 890. IER, para. 927. IER, para. 942. IER, para. 889.

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for not subjecting this area of work to adequate evaluation. But the challenge remains that even if the Court would make those amendments, the scale of victims could never be addressed satisfactorily by one institution. As the IER has recommended: The Court’s communications and outreach strategies should aim to express to victims and victim communities the limitations in circumstances and situations in which the Court may or cannot provide timely and effective assistance to victims in its assistance and/or reparations mandates.90

If the Court’s legitimacy hinges on providing justice for victims, it may erode further. If victims are indeed the main constituency of the ICC, as is often claimed, then the ICC project is in acute danger of failing.

III  Reparative Effect in Situation Countries A  Uganda: A Troubled Decade of Intervention Uganda was the first case to be referred to the ICC, making it possible to trace the impact of the Court on victims over the longer term. Victims and affected communities were not consulted prior to the announcement of the referral. After the referral, the ostensible representatives of the victim community, Acholi local religious and traditional leaders as well as certain members from the civil society spoke out strongly against the ICC intervention.91 Local leaders even traveled to The Hague in a bid to ask the Prosecutor to drop the arrest warrants. The opposition of the religious and traditional leaders to the ICC was based on several factors, some of which have already been described. First, the ICC was seen to interfere with local initiatives to pacify the conflict, in particular the Amnesty Act and Acholi traditional justice; second, the ICC was seen as favoring the government, and the fact that UPDF was not investigated contributed to the impression that this was one-sided justice; and lastly, many local leaders feared that the involvement of the ICC would prevent the LRA from considering a peaceful settlement of the conflict.92 The enormity of the 90 91

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IER, Rec. 346. Adam Branch. Uganda’s Civil War and the Politics of ICC Intervention. Ethics and International Affairs, Vol. 21 (2007) p. 179. See also Lucy Hovil. Challenging International Justice: The Initial Years of the International Criminal Court’s Intervention in Uganda. Stability, Vol. 2, No. 1 (2013) pp. 1–11. See for instance Michael Otim and Marieke Wierda. Justice at Juba: International Obligations and Local Demands in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark, Royal African Society (2008) p. 21.

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humanitarian crisis in Northern Uganda led many humanitarian organizations to side with the local religious and traditional leaders in demanding “Peace First, Justice Later.”93 Apart from these substantive objections, traditional leaders also had objections based on the process of the ICC intervention: “There was minimal consultation about accountability and justice options before the ICC made its announcement, no prior warning about the announcement, and no mechanism provided for voicing dissent in the immediate aftermath.”94 The Court opened conversations with traditional and religious leaders in the North, but it was difficult to correct negative perceptions after the fact. These issues are discussed more in Chapter 7. The Court’s outreach in Northern Uganda was perceived as flawed from the outset because it started late, and when it did start, it focused more on non-Acholi areas such as Lira and Soroti, whereas the Acholi perceive themselves as the primary victims of the conflict.95 1  Maintenance or Completion Strategy When peace returned to Northern Uganda in 2008, victims and affected communities were left to return to land that often did not contain infrastructure or that was far removed from schools and hospitals. The fact that the ICC did not succeed in arresting the LRA was a source of disappointment to victims and its relevance diminished in their eyes.96 As stated by one civil society activist, “prosecuting five persons cannot respond to the needs of three million victims in the North.”97 With the implementation of the “maintenance strategy” around 2013, Ugandans felt that they were no longer a priority to the Court, and that the Court is turning its attention to situations “where it can deliver results.”98 In November 2013, the Court organized five regional meetings with all participating victims. Victims expressed anxiety that the ICC was “abandoning” Uganda, but they also expressed frustration at the lack of outcomes and the failure to arrest.99 Instead, victims turned their attention to the government’s Transitional Justice policy.100 Some ten years after the ICC opened 93

See Lucy Hovil and Joanna Quinn. Peace First, Justice Later: Traditional Justice in Northern Uganda, Refugee Law Project Working Paper No. 17 (July 2005). 94 Hovil. Challenging International Justice, p. 7. 95 Interview with Head of Justice and Reconciliation Project, Gulu, February 9, 2014. 96 Justice and Reconciliation Project. The Dog That Barks but Doesn’t Bite: Victims’ Perspectives on the International Criminal Court in Uganda, Policy Brief 6 (February 2013) p. 5. 97 Interview with Head of Justice and Reconciliation Project, February 9, 2014. 98 Ibid. 99 Interview with OHCHR local staff, February 6, 2014. 100 Interview with UCICC, February 11, 2014.

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its investigations, victims were yet to see concrete impact, other than the TFV programs. Victims described the ICC as the “dog that barks but doesn’t bite.”101 One study concluded that: “The legitimacy of the ICC interventions depended on extra-judicial expressions of support and social recognition, which ranged from verbal updates about court activities, to simple meals, to reparative surgeries.”102 The maintenance strategy in Uganda reflects challenges that face the ICC in carrying out completion strategies. Commentators have said that “done right, a situation-specific ICC completion strategy reverse engineers the Court’s mandate to ensure a clear focus on maximizing the Court’s impact.”103 The IER highlighted “the importance of consultation with situation and neighbouring countries, States Parties, and other potential ­partners.  … Affected communities especially should be consulted in the design of completion strategies, and should be provided with relevant and sufficient information on the process.”104 It also suggested that the Court should include “strategies that address the avoidance of impunity and support for local justice processes.”105 However, completion strategy can only make a difference to the legacy of the ICC if it is carefully planned for from the outset of an ICC intervention. The case of Uganda illustrates that completion strategy is not a tool to retrospectively fix flaws that hinder the impact of the ICC on victims. 2  The Ongwen Trial: Resurgence of Ambivalence In a surprising twist, on January 21, 2015, senior LRA commander Dominic Ongwen surrendered in CAR to US forces and was handed over to the ICC, with the consent of Ugandan authorities. The Ugandan authorities considered that in spite of the establishment of the International Crimes Division, 101 102

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Justice and Reconciliation Project. The Dog That Barks but Doesn’t Bite. The study involved 139 victim participants interviewed in Northern Uganda between October 2013 and February 2014. Cody, Stephen Smith. Procedural Justice, Legitimacy, and Victim Participation in Uganda, in The Legitimacy of International Criminal Tribunals, edited by Nobuo Hayashi and Cecilia Bailliet, Cambridge (2017) at p. 395. The same study concluded that “If (further outreach and education programmes are) not possible, it might be best to narrow the scope of victim participation. Current programmes create physical and psychological demands on victims and offer insufficient support services in return.” Elizabeth Evenson and Alison Smith. Invited Experts on Completion Strategy Question. https://iccforum/completion. See also Elizabeth Evenson and Alison Smith. Completion, Legacy and Complementarity at the ICC, The Law and Practice of the International Criminal Court 1259, 1261 (Stahn ed., May 1, 2015). IER, para. 691. IER, Rec. 247.

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they lacked the capacity to conduct the Ongwen case. Affected populations pointed to the perceived mismanagement of the Kwoyelo case in this regard.106 Ongwen’s surrender to the ICC provoked a mixed reaction in Uganda, but it revitalized interest in the Court. The opening of his trial was watched closely by thousands of victims as well as by a delegation of leaders and victim representatives who traveled to The Hague. Dominic Ongwen is one of the most senior LRA commanders, allegedly responsible for many killings including the “Christmas massacre,” which took place in Haut-Uélé in DRC in 2008.107 He was accused of seventy counts of war crimes and crimes against humanity under the Rome Statute committed between July 1, 2002, and December 31, 2005. On February 5, 2021, he was found guilty of sixty-one counts of war crimes and crimes against humanity, including “sexual and gender based crimes, namely, forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy and outrages upon personal dignity.” The Trial Chamber dismissed the defence submissions that Ongwen suffered from mental illness, or that he had committed the crimes under duress.108 Acholi traditional and religious leaders still maintained that a local solution in relation to Ongwen would be appropriate in regard to his perpetrator-­ victim status. Ongwen, born in 1980, was allegedly abducted himself when he was fourteen. Eventually he was groomed to become second-in-command in the LRA.109 New recruits were often subjected to cruelty, beatings, and indoctrination, and forced to participate in killings from an early stage, often in a ritualistic manner. This victim-perpetrator status cannot easily be accommodated in the ICC’s legal framework.110 At the start of his trial, Ongwen said “it was the LRA who committed atrocities” and “LRA is Joseph Kony and not me.”111 Some communities also expressed anxiety that the trial could complicate reconciliation between them, for instance, between Lukodi village, home to most of the victims, and Awach, where Ongwen hails from.112

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Refugee Law Project. Ongwen’s Justice Dilemma (January 16, 2015). Justice and Reconciliation Field Note 7, Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen (July 2008). ICC Press Release February 4, 2021, Dominic Ongwen Declared Guilty of War Crimes and Crimes against Humanity Committed in Uganda. Ibid. See also Stephanie van den Berg. Interview with Ledio Cakaj in the International Justice Tribune, January 12, 2017. Refugee Law Project. Ongwen’s Justice Dilemma. Stephanie van den Berg. Interview with Ledio Cakaj. Information provided in an email by ICC outreach officer, February 19, 2015.

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Many victims chose to participate in the trial.113 Around 4,107 victims were admitted to participate, represented by two common representatives.114 However, others in Northern Uganda continued to voice questions about the trial, including about the narrow narrative of the conflict in the case against him; a failure to hold the state responsible for protecting him; perceptions that he is kept in a “five star hotel” (the ICC detention unit in The Hague) while his victims live in poverty; and questions about how his family visits will be conducted when he has many wives (from forced marriage) and children. Some traditional leaders said that trying Ongwen in The Hague will not help to restore broken relationships in the community.115 When Ongwen was convicted, many victims welcomed the verdict,116 but one member of the local community said: Ongwen did bad things, but he deserves to be forgiven the way many commanders in northern Uganda were forgiven. He should be released and allowed to come home and ask for forgiveness.117

As concluded by the Refugee Law Project, there is a need “to complement the ICC proceedings with domestic processes that provide acknowledgment to the multiple victims of the conflict, provide healing to survivors and the affected community, and take steps to promote national reconciliation and guarantee non-recurrence.”118 3  The TFV in Northern Uganda The TFV’s assistance mandate represented the only concrete remedy for victims, pending reparations proceedings in the Ongwen trial. Around 230,000 persons have benefitted from TFV programs in Uganda, by 2020 either directly or indirectly.119 An external evaluation of the TFV’s activities

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Ibid. Case information sheet, www.icc-cpi.int/uganda/ongwen/documents/ongweneng.pdf. Refugee Law Project. Ongwen’s Justice Dilemma. The Association of LRA Victims in the CAR has called for Ongwen’s case to be extended to crimes committed in the CAR between 2008 and 2014. Hirondelle News Agency, Africa: Victims Want Ongwen to Be Tried for Crimes in Central African Republic, February 25, 2015. Lino Ower Ogora. Mixed Reactions from Northern Uganda as ICC Delivers Judgement in Ongwen Case: Community Members Call for Light Sentence, International Justice Monitor, February 5, 2021, citing Bernard from Gulu. Ibid. Refugee Law Project. Ongwen’s Justice Dilemma. This includes participants in peacebuilding activities. Janet Anderson and Stephanie van den Berg. ICC Trust Fund.

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in Uganda and DRC in 2013 showed that it was generally viewed positively, by victims, beneficiaries, implementing partners, and government agencies.120 The evaluation deemed its interventions as both highly relevant to the needs of victims as well as effective in improving their lives.121 The overall amount allocated to the TFV in Uganda was modest, around 600–800K euros annually.122 The TFV chose mainly humanitarian organizations as implementing partners.123 The TFV did not work with the same intermediaries as the OTP.124 A key area of TFV activity in Uganda was surgical assistance, including removal of bullets, treatment of burns, fitting of prosthetic devices, and surgical reconstruction including for victims who suffered facial disfigurement or SGBV. Funding from the TFV enabled several thousands of these surgical procedures.125 Psychological rehabilitation includes “individual or group-based trauma counseling; community-led healing of memories initiatives; and community sensitization around the rights of victims to promote reconciliation.”126 The maintenance strategy of the Court provided a challenge for the TFV and the sustainability of its programs. In 2013, the TFV in Uganda stopped providing material support127 and focused on rehabilitation, both physical and psychological. The National Policy on Transitional Justice included reparations, but remained to be implemented. The government sought to limit the financial implications of reparations, while local populations consistently stressed their desire for acknowledgment, apologies, requests for forgiveness, and memorials.128 The mandate of the TFV in Uganda presented many challenges in practice: for instance, those who contracted HIV were not necessarily able to demonstrate a nexus to the conflict. The TFV selects its partners through competitive bidding processes. The partners of the TFV selected 1 20

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External Evaluation of the Trust Fund for Victims Programmes in Northern Uganda and the Democratic Republic of Congo: Towards a Perspective of Upcoming Interventions, ICRW and the TFV, November 2013. Ibid., p. 8. In recent years, States Parties have started to contribute more to the TFV, with an increase from around 1.5 million to 4.5 million annually. Interview with Head of Justice and Reconciliation Project, Gulu, February 9, 2014. Interview with TFV Director, May 7, 2014. Interview with TFV Head of Office, Kampala, February 6, 2014. External Evaluation of the Trust Fund for Victims Programmes in Northern Uganda and the Democratic Republic of Congo, p. 12. Material support previously provided included access to safe shelter, vocational training, reintegration programs for former child soldiers, support for village savings and loans, education grants, and classes in accelerated literacy: Ibid., p. 8. OHCHR. The Dust Has Not Yet Settled: Victims’ Views on the Right to Remedy and Reparation: A Report from the Greater North of Uganda (2011).

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beneficiaries. Significantly, beneficiaries could include victims of UPDF crimes, even though these were not under investigation by the ICC. An external evaluation of the TFV commended it for “working with community resources and promoting local ownership.”129 The TFV’s choice to work in a low profile manner and in a way where it was not directly affiliated with the Court has meant that victims may not associate it with the ICC’s reparative justice.130 Some took the view that a closer relationship between the TFV and the ICC could have enhanced the image of the ICC in Northern Uganda as being responsive to the needs of victims.131 Some Acholi voiced a perception that the TFV favored non-Acholi areas.132 The larger debate on reparations in Uganda remains unresolved. The Ugandan government argued that the Peace, Recovery and Development Plan (PRDP) for the North ought to be viewed as reparations,133 even though it lacks an element of recognition of victims, and is largely funded by international donors.134 Victim representatives argue that the government of Uganda should take responsibility for reparations.135 Redress argues that “the complementary role of national reparations programs could significantly enhance the success of the ICC reparations system.”136 Rehabilitation, both physical and social, remained an urgent need among victim communities.137 Many victims experienced disfigurement or mutilation and needed psychological as well as physical rehabilitation. In particular, women returnees faced stigmatization and could experience great difficulty in

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External Evaluation of the Trust Fund for Victims Programmes in Northern Uganda and the Democratic Republic of Congo, p. 8. Chris Tenove. Uganda and the International Criminal Court: Debates and Developments, AfricaPortal, Backgrounder No. 60 (July 2013). Interview with Head of Justice and Reconciliation Project, Gulu, February 9, 2014. Ibid. The PRDP also only allocated a miniscule amount of around 3% to peacebuilding: Interview with OHCHR, February 10, 2014. Also, some women do not find it sufficiently engendered. Victims have highlighted that PRDP is aimed at “prosperity for all” rather than recognition of individual harm suffered. ICTJ Briefing, Reparations for Northern Uganda: Addressing the Needs of Victims and Affected Communities, September 2012. Victims stressed: “justice itself is an experience and a process, and not simply an outcome.” OHCHR, The Dust Has Not Yet Settled, p. xix. Moreover, the PRDP is “spread thin” and covers forty districts in the broader North, including many areas which were not affected by the LRA conflict. Interview with religious leader, Gulu, February 9, 2014. OHCHR. The Dust Has Not Yet Settled, p. xxi: In regard to international donors and development partners, interviewees said that they do not “want them to ‘hijack’ planning processes on truth-recovery or reparations.” Redress. No Time to Wait. Justice and Reconciliation Project. The Dog That Barks but Doesn’t Bite.

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issues of marriage, land ownership, and inheritance.138 The ICC Trust Fund focused some of its programs on these victims.139 Land distribution in Acholi remains contested, and the government is alleged to have taken advantage of displacement in Acholi areas to grab land for commercial enterprises.140 On June 17, 2019, the government of Uganda finally adopted a Transitional Justice (TJ) policy, which had been initiated in 2008. During the intervening years, justice remained “elusive for the vast majority of people who suffered during the conflict.”141 In the words of Anna Macdonald, the interaction of “technocratic donor approaches” and the “power imperative of domestic elites in non-transitioning places” produced both “isomorphic mimicry,” through the setting up of the ICD and the Kwoyelo trial, and “calculated statis,” where domestic political elites stall progress on TJ policy by gradually reframing political narratives, without having to reject it.142 The TJ policy contains vague references to “truth-telling mechanisms” but the political will to establish a truth commission in Uganda is absent. Similarly, in terms of reparations, the TJ policy highlights the range of “development, recovery and peace” efforts already being undertaken. Macdonald concludes that “there is very little evidence to suggest that the donor-sponsored national process has addressed the needs of victims or ‘empowered’ them.”143 Another observer argued that “ICC-centred debates in general narrowed the scope of conflict-related problems discussed in Uganda’s TJ policy scape without this being a purposeful decision by Ugandans writ large.”144 It resulted in the TJ policy being framed along the narrow issues coming out of the Juba Agreement on Accountability and Reconciliation, instead of other vital political issues in the Ugandan context, such as the lack of inclusiveness in governance and regional 138 139 1 40

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ICTJ Briefing. Reparations for Northern Uganda: Addressing the Needs of Victims and Affected Communities (September 2012). External Evaluation of the Trust Fund for Victims Programmes in Northern Uganda and the Democratic Republic of Congo, p. 17. Ronald Atkinson. Land Issues in Acholi in the Transition from War to Peace. The Examiner, No. 4 (December 2008) pp. 3–9, 17–25. See also Ronald Atkinson and Arthur Owor. Land Grabbing: The Ugandan Government, Madhvani, and Others versus the Community of Lakang, Amuru District. Journal of Peace and Security Studies. Vol. 1. Special Issue: Unfolding Land Conflicts in Northern Uganda (December 2013). Anna Macdonald. “Somehow This Whole Process Became So Artificial”: Exploring the Transitional Justice Implementation Gap in Uganda. Transitional Justice, Vol. 13, No. 2 (July 2019) pp. 225–48. Ibid. Ibid. Saghar Birjandian. Uganda’s Transitional Justice Policy Development Process and the International Criminal Court, April 21, 2020, www.e-ir.info/2020/04/21/ugandas-transitionaljustice-policy-development-process-and-the-international-criminal-court.

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disparities. In general, the overall conclusion is that the fifteen years of ICC intervention in Uganda had limited reparative effect on victims of the conflict. B  Kenya: Do No Harm? The Victims of PEV 1  The Prosecutor versus the President The first Prosecutor often cited the Kenyan case as an example of strong local support for the ICC. Originally, that was certainly true. A South Consulting poll in June 2011 recorded an 89% level of public support for the ICC, just after the six Kenyans originally appeared in court.145 In 2012, up to 68% are said to have supported the ICC, according to an Ipsos Synovate poll.146 However, by 2013, the ICC was outmaneuvered in the court of public opinion, after Kenyatta and Ruto decided to join forces and run together for Presidential elections. During their election campaign, Kenyatta and Ruto mounted a media campaign against the ICC, which impacted significantly on public opinion. In a poll of 2000 Kenyans released July 10, 2013, just after the elections, an Ipsos Synovate poll showed that 39% of Kenyans still supported the ICC, but this was a drop of 16% from April 2013.147 In 2014, up to 65% of Kenyans wanted the ICC cases to be dropped. The reasons for this shift in perception are manifold. The ICC did not engage consistently after it first got involved in Kenya and ended up ceding valuable political space.148 The ICC invested considerably in media training to increase the knowledge base on its processes, but this approach was not effective in countering media manipulation by political leaders.149 While the ICC continued to receive significant support from civil society groups in Kenya, this was not sufficient to counter the messaging from wily politicians. Prior to the discontinuance of the cases against Kenyatta and Ruto, perceptions of the former Prosecutor in Kenya were mixed. Some felt that the Prosecutor did a “shoddy investigation.”150 On one visit he diverted to an animal sanctuary to adopt a leopard cub, a move that caused one observer to dryly remark, “He came a jurist and left a tourist.”151 Another observed that the 1 45 1 46 1 47 1 48 1 49 150 151

Tom Maliti. Two Opinion Polls Show Support for the ICC Drops in Kenya, The ICC Kenya Monitor, July 31, 2013. Ibid. Ibid. Interview with civil society activists, Nairobi, February 3, 2014. Interview with ICC staff member, Nairobi, February 4, 2014. Interview with ICC staff, Nairobi, February 4, 2014. Interview with civil society activists, Nairobi, February 3, 2014.

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narrative of “witness coaching” spread by the politicians was more powerful than the narrative of “witness intimidation” coming from the Court.152 After their election, Kenyatta and Ruto mounted a massive diplomatic offensive against the ICC.153 Considerable money was spent on trying to eliminate the arrest warrants, including on travel to lobby the AU and on lawyers, all at the Kenyan taxpayer’s expense.154 The ICC became the “only game in town” and the Kenyan government was described as a “single issue government.”155 Some felt that the ICC distracted from, or complicated, the pursuit of victims’ claims for other forms of transitional justice, such as reparations, truth-seeking, or local prosecutions. Kenya successfully rallied the African Union to make several declarations against the ICC for unfairly targeting African leaders for prosecution. The AU amended the Protocol on the African Court of Human and People’s Rights to give it jurisdiction over Rome Statute crimes. In February 2016, the Kenyans sought AU backing for a proposal for African states to withdraw from the ICC.156 Kenya also waged war against the ICC at the ASP. During the twelfth ASP in 2013, the Kenyan delegation lobbied for an amendment to Article 27, which allows the ICC to prosecute sitting government officials, but it was averted because it was raised too late. Nevertheless, amendments were made to the Rules of Procedure and Evidence to excuse the accused from attending trial.157 During the ­thirteenth ASP, Kenya once more demanded a wide range of amendments to the Rome Statute. None of these demands succeeded. The diplomatic offensive culminated in a push by Kenya in the fourteenth session of the ASP to prevent the application of amended Rule 68 (on the admission of prior recorded testimony from some witnesses who later recanted) in the Ruto and Sang cases. The ASP affirmed that in its interpretation, the Rule could not be applied retroactively.158 152 153 154 155 156

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Interview with ICC staff, Nairobi, February 4, 2014. David Pilling. International Justice Has a Problem in Africa, Financial Times, April 13, 2016 at https://next.ft.com/content/1a33f4a2-fff7-11e5-ac98-3c15a1aa2e62. See Institute for Security Studies, The International Criminal Court’s Cases in Kenya: Origin and Impact, No. 237 (August 2012) p. 15. Interview with civil society member, Nairobi, February 4, 2014. The Guardian, African Union Members Back Kenya’s Plan to Leave the ICC, February 1, 2016, www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-internationalcriminal-court. These included Rule 100 (place of proceedings); Rule 68 (prior recorded testimony); and Rules 134bis (presence through the use of video technology), Rule 134ter (excusal from presence at trial), and Rule 34quarter (excusal from presence at trail due to extraordinary public duties). See Amnesty International, Kenya: State Parties Run Dangerously Close to Interfering with the ICC’s Independence, November 15, 2015, www.amnesty.org/en/latest/news/2015/11/ kenya-state-parties-run-dangerously-close-to-interfering-with-the-iccs-independence/

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A third prong of the strategy of the Kenyan politicians to defeat the ICC was their interference with or intimidation of witnesses. In a motion of December 19, 2013, the Prosecutor requested an adjournment in the trial of Kenyatta.159 She informed the Court that one witness had to be withdrawn from the case after admitting that he had provided false evidence, and another had indicated he was no longer willing to testify. The Prosecutor considered that she had insufficient evidence to proceed to trial. 2  Do No Harm? It is unclear why the first Prosecutor chose to proceed on a thin evidentiary base in such a high-profile case as that of Kenyatta, one where witnesses were likely to be severely threatened. On December 5, 2014, the Prosecutor announced the withdrawal of charges against Kenyatta.160 On March 13, 2015, Bensouda terminated proceedings in the case altogether. On April 5, 2016, the Trial Chamber dismissed charges against Ruto and Sang, on grounds of insufficient evidence.161 The Prosecutor had attempted to enter prior statements of witnesses who later recanted into evidence, but this attempt was denied. The collapse of the case also ended the case for reparations, although Judge Eboe-Osuji argued that reparations should still be possible.162 A number of cases were initiated against Kenyans for contempt of court and tampering with or intimidating witnesses. A subsequent external expert review of the Kenya cases concluded that the reasons for these failures lay partially with the autocratic leadership style of the first Prosecutor, faulty decision-making and staff practices, and that all concerned gravely underestimated the threats to witnesses.163 The experts noted that “decision-making by Prosecutor 1 was too often premised on nonprosecutorial considerations, such as bringing peace to the region, making an 159

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Prosecutor v. Uhuru Muigai Kenyatta, Notification of the removal of a witness from the Prosecution’s witness list and application for an adjournment of the provisional trial date, December 19, 2013 ICC-01/09-02/11. Marlies Simmons and Jeffrey Gettleman. International Court Ends Case against Kenyan President in Election Unrest: Uhuru Kenyatta Faced Allegations of Crimes against Humanity, International New York Times, December 5, 2014. Alistair Leathhead. Dismissal of Case against Kenya’s Ruto Huge Blow against the ICC, April 5, 2016, www.bbc.com/news/world-africa-35974172. Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber, Public redacted version of Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/112027-Red-Corr, June 16, 2016. ICC OTP Kenya Cases: Review and Recommendations: Executive Summary of the Report of External Independent Experts, 2019.

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impact to demonstrate the relevance of the ICC,” but that these could only be a consequence of “effective prosecutorial action based on law and facts.”164 The review found that in the absence of the witness interference campaign, the Prosecutor may have succeeded against Ruto, but that the other cases would likely not have succeeded. There can be no doubt that the dismissal of the cases against Kenyatta, Ruto, and others has damaged the perception of the ICC in Kenya and beyond. It has also meant that witnesses continue to be denied justice. Nonjo Mue, Chairperson of ICJ Kenya, commented: “All this has left the victims of post-election violence deeply wounded, frustrated, and desperate, not knowing where else to look for justice.”165 Years after the PEV in Kenya, little had been done to ease the plight of victims. A 2012 report by two prominent Kenyan NGOs found that the efforts of the Kenyan government focused almost entirely on displacement and not on the other violations such as killing, infliction of permanent injury, or SGBV.166 The report is the result of interviews with more than 800 respondents in around 200 sites.167 A few victims said they received medical care, but victims of SGBV reported that they did not receive psychosocial support or anti-­retroviral drugs. No comprehensive program was implemented on adequate livelihood assistance or compensation. Many people continued to live in camps, in very tenuous circumstances. Programs to deal with displacement suffered from corruption. Reparations in Kenya under national law are conceived of mostly as compensation. The TJRC (Truth, Justice and Reconciliation Commission) report incorporated a reparations policy for victims, drafted by civil society. This reparations policy was submitted to the National Assembly as part of the report, but the National Assembly did not adopt it.168 The 2,100 page report was not made publicly available.169 In 2015, President Uhuru Kenyatta announced a USD 110 million Restorative Justice Fund for victims of human rights violations, but it did not become operational.170 The government mainly focused 164 165 166 167 168 169 170

Ibid. See https://ciccglobaljustice.wordpress.com/2016/04/07/rutosang-icc-case-thrown-outexplanation-and-reaction/. See also Tenove. International Justice for Victims?, p. 13. KHRC and Kenyan Section of International Commission of Jurists, Elusive Justice: A Status Report on Victims of 2007–2008 Post-Election Violence in Kenya (2012). HRW, Kenya: Elusive Justice for Gross Injustice, Abuse: 6 Years On, No Action on Truth, Justice, Reconciliation Report, December 10, 2019. Ron Slye. 7 Years On, Let’s Dust off the Kenyan Truth Commission Final Report, JusticeInfo. net, May 28, 2020. Emily Kenney. What Next for the Victims of Kenya’s Post-election Violence? International Justice Monitor (May 26, 2016). www.ijmonitor.org/2016/05/what-next-for-the-victims-ofkenyas-post-election-violence/.

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on giving IDPs money to buy land, but the effort was described as politicized, and there are allegations that mainly Kikuyu have benefited.171 The Kenya case showed weaknesses in the Court’s ability to protect victims and witnesses. The ICC Prosecutor admitted: “several people who may have provided important evidence regarding Mr. Muthaura’s actions, have died, while others are too afraid to testify for the Prosecution.”172 As highlighted by the Court, “[i]n light of the two Kenya cases, the Court will face new and unprecedented challenges regarding witness protection, especially due to the large size of families requiring protection.”173 The cases against Kenyatta and Ruto both collapsed due to witnesses recanting their testimony or refusing to testify. On January 6, 2015, media sources reported that a key witness in the Ruto trial was killed.174 Kenya underwent a series of police reforms that may have impact on witness protection, but only in the long run.175 The Kenya cases raised fundamental questions about the Court’s ability to effectively protect witnesses. It failed to meet the “do no harm” standard, that should at a minimum apply to ICC interventions. On December 10, 2020, International Human Rights Day, the High Court in Nairobi found the “Government of Kenya was responsible for a failure to conduct independent and effective investigations and prosecutions on sexual and gender-based violence-related crimes during the post-election violence.” In a judgment that contained an extensive analysis of international and domestic law, it awarded four of the eight petitioners compensation of KES 4 million (approximately USD 35,000) “for the violation of their constitutional rights.”176 The case had been brought by a number of NGOs, including the Coalition on Violence against Women, ICJ Kenya, Independent Medico-Legal Unit, and Physicians for Human Rights as well as the individuals concerned. The respondents were a variety of Kenyan state institutions, including the Attorney General, the DPP, the Independent Policing Oversight Authority, and others. However, the Kenyan government does not always honor payments awarded by the courts.177

171 172 173 174 175 176 177

Interview with civil society member, Nairobi, February 5, 2014. Statement by ICC Prosecutor on the Notice to withdraw charges against Mr. Muthaura, March 11, 2013. Report of the Court on the implementation in 2013 of the revised strategy in relation to victims, October 11, 2013, ICC-ASP/12/41, para. 24. BBC, Kenya ICC Defence Witness in Ruto Trial Killed, January 6, 2015, www.bbc.com/news/ world-africa-30703876. www.ssrresourcecentre.org/2015/10/09/police-reform-in-kenya-challenges-and-opportunities/ The Republic of Kenya in the High Court of Kenya at Nairobi Constitutional and Human Rights Division Petition No. 122 of 2013. HRW, Kenya: Elusive Justice for Gross Injustice, Abuse.

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IV  Conclusion on Reparative Effect: Does the ICC Deliver Justice to Victims? The centrality of victims to the ICC project was heralded as a milestone in international criminal law and sets an important normative standard. The ICC is a first attempt to recognize the rights of victims in the context of mass atrocity and to specify avenues to justice, through participation and reparations. The question is whether the Court is delivering justice to victims. Victim participation is under strain. Technical rules that exclude large numbers of potential victims in ICC cases give rise to the danger of creating new “hierarchies of victims.” The ICC remains primarily a criminal forum. Whether it can guarantee “meaningful participation” is still a matter of debate. What emerges from the practice of the ICC to date is the progressive exclusionary nature of the proceedings of the Court. Those who self-identify as victims are often a far broader group than those so designated by the ICC.178 The selective nature of charges brought by the ICC can be perceived as arbitrary by victims.179 The narrow range of perpetrators and charges within the range of the Court’s purview serves as a source for considerable disappointment for many victims, who may feel that their perpetrators or the crimes they suffered are excluded.180 The expectations victims have for reparations risk being broken by lengthy proceedings, resulting in largely symbolic awards. Creating hierarchies of victims is not inclusive, and can even result in aggravating horizontal grievances and contributing to future conflict.181 The TFV has the potential to mitigate “hierarchies” of victims through its assistance mandate, but was criticized by the IER and is chronically under-resourced. Many victims support the key notions behind the ICC, including accountability for crimes, ­impartiality, reparations or assistance for victims, and victim participation, but their ­implementation is what victims often find unsatisfactory.182 178 179

180 181 182

Tenove. International Justice for Victims?, p. 11. A comparison may be made with the SCSL, which indicted thirteen individuals and conducted the trials of ten individuals, including Charles Taylor, former President of Liberia. In a recent survey, in 2012, respondents overwhelmingly said they felt the SCSL had prosecuted those bearing the greatest responsibility, but that there could have been additional prosecutions further down the chain of command. The Special Court for Sierra Leone and No Peace without Justice, Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone and Liberia, September 2012. FIDH. Enhancing Victims’ Rights before the ICC, p. 10. United Nations: World Bank. Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict (2017). Tenove. International Justice for Victims?, p. 4.

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In the “Savages, Victims and Saviors” paradigm, the Court has assumed the role of the savior, wishing to rescue the victims.183 Victims risk being passively subjected to the Court’s interventions, rather than being active participants in their own justice needs. This is the opposite of local ownership. Branch argues in the context of Uganda: The legitimacy of any specific model of justice for dealing with legacies of extreme violence will not come from any putatively absolute, unquestionable sources, whether human rights or tradition, but only through autonomous, democratic processes of deliberation, organization, and action within the community, including those who have been subject to violence themselves.184

The Court faces a large expectation gap in the countries where it works. The IER found that “for victims, so far the Court is not functioning and delivering as envisioned.”185 In Uganda, fifteen years of ICC intervention did little for victims. In the Kenya case, even the “do no harm” principle was not met. This should cause fundamental questions to be asked, including whether it is realistic for the Court to radically improve on delivering justice for victims, or whether its role should be revised. A critical aspect of justice is that cannot be imposed: it must be perceived as such by victims. Transitional justice options for victims on the national or local level are often more accessible to victims and may go further in meeting their need for interaction and their expectations. As Pablo de Greiff and I wrote in 2005: “it is important to both temper expectations of what the (Trust) Fund can actually do for victims, especially by way of compensation, and … the struggle for reparations for victims must continue in other fora, including the national arena.”186 Moffett and others argued for “reparative 183 184

185 186

Matuna Makau. Savages, Victims, and Saviors: The Metaphor of Human Rights. Harvard International Law Journal, Vol. 42, No. 1 Winter (2001) p. 204. Adam Branch. Uganda’s Civil War and the Politics of ICC Intervention. Ethics and International Affairs, Vol. 21 (2007) 179 at pp. 193–94. See also Mark Weisburd. International Law and the Problem of Evil. Vanderbilt Journal of Transnational Law, Vol. 34 (March 2001) p. 279: “If we insist on the importance of the responsiveness of the institution to the affected group, implicitly we admit the importance of according primacy to local values over any which may be preferred by persons acting at the international leave.” Timothy Donais. Empowerment or Imposition? Dilemmas of Local Ownership in Post-Conflict Peace-Building Processes. Peace & Change, Vol. 34, No. 1 (January 2009) p. 11: “in any post-conflict society, there is never a single coherent set of local owners, and that post-conflict spaces, almost by definition, are characterized far more by diversity and division than by unity.” IER, para. 885. De Greiff and Wierda. The Trust Fund for Victims of the International Criminal Court, pp. 225–26.

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complementarity.”187 In Colombia, many victims have received assistance through a national administrative reparations program. Real reparative effect for victims can only be achieved through a deeper knowledge of what justice actually means to victims, from a moral, social, and cultural perspective, rather than just from a legal perspective.188 For many victims, the Court has not yet bridged the gap between law and justice. 187

188

Luke Moffett. Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the ICC. International Journal for Human Rights, Vol. 17, No. 3 (2013) pp. 368–90. Holly Porter. After Rape: Justice and Social Harmony in Northern Uganda, London School of Economics and Political Science, 2013 at http://etheses.lse.ac.uk/717/. See also Erin Baines. Spirits and Social Reconstruction after Mass Violence: Rethinking Transitional Justice. African Affairs 109/436 (2010) pp. 409–30. This will be further elaborated in Chapter 7.

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7 Societal Impact II Demonstration Effect in Affected Communities

Justice must not only be seen to be done but has to be seen to be believed. J. B. Morton, English Author

I Introduction Demonstration effect is described as an idea, model, or institution that others are influenced by and try to copy.1 In international criminal law, demonstration effect refers to the ability of an international criminal court or tribunal to contribute to “a culture shift and demands for change or increased accountability through increased rights awareness.”2 To have impact, demonstration effect should occur mainly on the national level in countries where the Court is active, with a variety of audiences, including policy-makers, affected communities, and victims. In order for the Court to be perceived as delivering justice overall, it should be seen as impartial, independent, and relevant to local justice struggles, rather than undermining them. In the words of Fletcher and Weinstein: “These tribunals must be seen as legitimate by those on whose behalf they operate in order for their work to be accepted within affected societies.”3 This constitutes the ultimate “internalization,” where the norms of the Rome Statute are accepted into affected communities not just at the normative 1

Cambridge Dictionary. OHCHR Rule of Law Tools. Maximizing the Legacy of Hybrid Tribunals, 2008 at p. 17 (written by the author). The author first used this term in a report by UNDP and ICTJ on the Legacy of the Special Court for Sierra Leone in 2002. 3 Laurel Fletcher and Harvey Weinstein. A World unto Itself? The Application of International Justice in the Former Yugoslavia, in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, edited by Eric Stover and Harvey Weinstein. Cambridge University Press (2004) p. 30. 2

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but also at the social level. It is the most significant form of impact. In the words of Akhavan: “The prevention of future crimes is necessarily a long-term process of social and political transformation, entailing internalization of ideals in a particular context or ‘reality,’ or the gradual penetration of principles into given power realities.”4 This could ultimately result in prevention of the world’s worst crimes. However, preliminary trends in the case studies below indicate the following: The ICC is not necessarily viewed by local audiences as impartial, due to its case selection; it is not always seen as relevant to local justice struggles, which have their own histories, and in certain contexts it has been perceived as undermining local justice solutions; furthermore, in some ­ countries, it is perceived by certain actors as lacking independence or advancing foreign interests.

II  Four Situation Countries A  Uganda and the ICC: Love at First Sight? Uganda ratified the Rome Statute on June 14, 2002. In some ways, Uganda constituted an “ideal first case” because of the reviled subjects of the first arrest warrants, the LRA.5 However, the self-referral by Uganda to the ICC was sudden, and shrouded in controversy from the start, seemingly based on impulse rather than on consideration of the local context.6 No single event was as decisive to forming perceptions of the ICC in Northern Uganda, as the joint appearance of Luis Moreno Ocampo and President Museveni at the press conference to announce the referral.7 That event created a perception of collusion between the government of Uganda 4

Payam Akhavan. Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? The American Journal of International Law, Vol. 95, No. 1 (2001) p. 11. 5 See Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Oxford University Press (2016) pp. 66–73 for a narrative of the conflict. 6 Previously, the OTP had focused on obtaining a self-referral from the DRC, but the possibility of a self-referral from Uganda came out of a conversation between the Prosecutor and lawyers representing the government of Uganda in the ICJ litigation dealing with the UPDF’s role in DRC. Sarah Nouwen. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press (2013) p. 111. See also Adam Branch. International Justice, Local Injustice. Dissent—Politics Abroad (2004) p. 22. 7 Tim Allen. Trial Justice: The International Criminal Court and the Lord’s Resistance Army, African Arguments (2006) p. 128. See also Human Rights Watch. Courting History: The Landmark International Criminal Court’s First Years, 2008 at p. 41.

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and the Court that proved virtually impossible to correct. Ugandans from across the political spectrum respected the political wiliness of President Museveni, who they refer to as “M7.” From that day, Ugandans perceived that their President was directing the Court, and not the other way around. Yet M7 was not Ocampo’s ideal bedfellow. As discussed previously, the origins of the conflict with the LRA are complex. Uganda has a very violent history since it gained independence in 1962. Both the Milton Obote (I and II) and Idi Amin Dada governments were responsible for massive human rights violations. Obote and Idi Amin, both Northerners, were said to favor their own ethnic and national groups, giving rise to deep divisions.8 Up to 300,000 persons are estimated to have died during each of their reigns. After the second fall of Obote, an Acholi army officer by the name of Tito Okello briefly ruled Uganda. Events during NRM’s rise to power after its defeat of the Tito Okello regime in 1986 continue to be contested.9 It also sowed the seeds for long-term grievances between the people of the North, primarily the Acholi, and the NRM.10 The LRA rebellion in Northern Uganda links to grievances from these earlier periods of Ugandan history, as well as to a deep rift between the North and the South that dates back to the colonial period.11 The LRA is unusual in its high cohesiveness and almost cult-like qualities,12 all under the leadership of Joseph Kony, who is believed to have mystical qualities and to be possessed by spirits by many Northern Ugandans.13 The LRA is notorious for its highly violent and grotesque campaign of terror, mainly targeting civilians and resulting in horrific violence. Estimates are that over 66,000 persons were abducted during the LRA conflict in Uganda, 8

International Crisis Group. Uganda: No Resolution to Growing Tensions, April 2012. Atrocities were committed in the Luweero Triangle, allegedly committed by Acholi and Langi troops, but the NRM also committed revenge atrocities in return. International Crisis Group. Northern Uganda: Understanding and Solving the Conflict, April 14, 2004. 10 A commission was appointed to investigate atrocities committed before and during the NRM’s rise to power, but its findings were never made public. Priscilla B. Hayner. Fifteen Truth Commissions—1974 to 1990: A Comparative Study. Human Rights Quarterly, Vol. 16 No. 4 (November 1994) pp. 597–655. 11 During the colonial period, the Acholi traditionally dominated the military, whereas the British invested in industry and cash crop production in the South, which became economically much more affluent. International Crisis Group. Northern Uganda: Understanding and Solving the Conflict, April 14, 2004. 12 See Kristof Titeca. The Spiritual Order of the LRA, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010). 13 The group’s name is thought to be a parody on the National Resistance Army/Movement. Ruddy Doom and Koen Vlassenroot. Kony’s Message: A New Koine? The Lord’s Resistance Army in Northern Uganda. African Affairs, Vol. 98 (1999) p. 22. 9

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a large percentage of whom were between ten and eighteen years of age, up to a quarter of whom were killed.14 The systematic and horrific nature of their crimes, and the fact that they targeted civilians, including in particular children, made the LRA a seemingly suitable and logical candidate for a first ICC case.15 Victims of the LRA were often killed in ritualistic ways, by being beaten or hacked to death. Others were maimed by hacking off limbs or mutilating faces by cutting off the lips used to “betray them.”16 The LRA’s hallmark violation was the abduction of children and youth forced to join its ranks. Although the LRA did not generally engage in wanton rape, in their bush community, girls were distributed and forced into marriages with senior commanders.17 The LRA, often said to be barbaric, irrational, and without political agenda, fell squarely within Mutua’s “savages” paradigm.18 However, this label risks oversimplification of a conflict with historical roots outside of the ICC’s jurisdiction. Anthropologists such as Finnstrom suggest that the LRA wanted to establish a new moral order.19 Finnstrom argues that this is what motivated them to abduct children into their order and to kill elderly people, particularly spirit mediums and prophets, known as ajwaki and nebi.20 He warns against a “reductionist image of the war and its causes, only too common in the understanding of conflicts in Africa.”21 In Northern Uganda, Joseph Kony himself is believed to be an ajwaki who has spiritual powers.22 14 15

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19 20 21 22

OHCHR. “The Dust Has Not Yet Settled”: Victims’ Views on the Right to Remedy and Reparation: A Report from the Greater North of Uganda (2011) pp. xii–xiii. Matthew Brubacher. The ICC Investigation of the Lord’s Resistance Army, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) pp. 262–78. ICTJ and the Human Rights Center at University of California, Berkeley. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda, July 2005, pp. 13–14. For a detailed account of a particularly notorious abduction of a group of schoolgirls, see Els De Temmerman. Aboke Girls: Children Abducted in Northern Uganda. Fountain Publishers (2001). The Prosecutor encapsulated the ICC’s narrative of the conflict in his announcement accompanying the arrest warrants: “The LRA is an armed rebel group, claiming to fight for the freedom of the Acholi people in Northern Uganda. The LRA has mainly attacked the Acholis they claim to represent. For nineteen years, the people of Northern Uganda have been killed, abducted, enslaved and raped.” Statement by the Chief Prosecutor on the Uganda Arrest Warrants, The Hague, October 14, 2005. Sverker Finnstrom. Living with Bad Surroundings: War, History and Everyday Moments in Northern Uganda. Duke University Press (2008) p. 5. See also Allen. Trial Justice, p. 153. Finnstrom. Living with Bad Surroundings, p. 8. Allen. Trial Justice, p. 164.

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Over the years of conflict in Northern Uganda, religious and traditional leaders increasingly mobilized to find peaceful, local solutions to the conflict, devising a dual-track approach of peace negotiations and a focus on reintegration of LRA returnees.23 Humanitarian and human rights organizations also called for a peaceful solution to the conflict. This is not to suggest that opinions in the North were uniform on how to approach issues of accountability: There were differences in views, particularly between Acholi and non-Acholi regions.24 Religious leaders, and in particular the Acholi Religious Leaders Peace Initiative, were particularly active in lobbying for peace talks.25 Although the Acholi communities were badly victimized by the LRA, they viewed abductees as victims of the conflict, who ought to be forgiven and welcomed back.26 To subject former LRA returnees, many of whom are abducted youth or children, to punishment would be to “punish them twice,” according to local religious leaders.27 Reintegration was always seen as a priority, due to the large number of rank and file who were abducted against their will from their communities, often at a very young age. Other scholars point to the emphasis on social harmony in Acholi culture as a reason for the absence of insistence on punishment.28 Uniquely, the victim population, represented by the Acholi Religious Leaders Peace Initiative and the Concerned Parents Association, supported the passage of a comprehensive Amnesty Act, in 2000.29 The Attorney General consulted on the bill among the affected population in the North before it was

23 24

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26 27 28 29

ARLPI, CSOPNU, etc. See Barney Afako. Reconciliation and Justice: Mato Oput and the Amnesty Act, Conciliation Resources 2002. For quantitative studies of the views of affected populations on peace and justice in Northern Uganda, see ICTJ and UC Berkeley’s Human Rights Center. Forgotten Voices (2005), and When the War Ends (2007) (with Tulane University), both at www.ictj.org. Non-Acholi regions were particularly affected in the later stages of the conflict and had suffered brutal retaliation to Operation Iron Fist in 2002. Louise Mallinder. Uganda at a Crossroads: Narrowing the Amnesty? Working Paper No. 1 from Beyond Legalism: Amnesties, Transition and Conflict Transformation, Institute of Criminology and Criminal Justice, Queen’s University Belfast (March 2009) p. 20. Interview with civil society leader, February 12, 2014. Interview with religious leader, Gulu, February 8, 2014. Interview with religious leader, Gulu, February 9, 2014. Holly Porter. After Rape: Justice and Social Harmony in Northern Uganda. London School of Economics (2013). An early version of the amnesty included the same exception for “heinous crimes” as the 1987 amnesty, but this exception was later deleted: Mallinder. Uganda at a Crossroads, p. 20.

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passed, and participants generally expressed support for a broader amnesty.30 The bill was supported by a countrywide consultation prior to coming into force.31 The amnesty had a high level of public support, also among populations most affected by the violence.32 The amnesty was construed as an incentive to entice insurgents to defect from the LRA and was intended to spur its disintegration, although it has not ultimately had this effect.33 Significant efforts were made to publicize the amnesty and to communicate its terms, through Radio Mega FM and other stations.34 It came as a surprise to the ICC itself and its supporters that the ICC investigation, opened in July 2004, and the arrest warrants unsealed in October 2005 were not met with more enthusiasm among victim populations.35 This is partly due to the ambiguous relationship that exists between the Acholi victim population and the LRA in Northern Uganda. As mentioned, the Acholi view the LRA as primarily composed of abducted children and youth that the communities failed to protect.36 But the populations in the North also viewed themselves as the subject of a campaign of marginalization, displacement,

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Mallinder. Uganda at a Crossroads, p. 21. Interview with religious leader, Gulu, February 8, 2014. ICTJ and the Human Rights Center at University of California, Berkeley. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda; Conciliation Resources and QPSW. Coming Home: Understanding Why Commanders of the Lord’s Resistance Army Choose to Return to a Civilian Life, May 2006. Justice and Reconciliation Project. To Pardon or Punish? Current Perceptions and Opinions on Uganda’s Amnesty in Acholi-land. December 15, 2011. See also Refugee Law Project. Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Conflict Resolution and LongTerm Reconciliation, Working Paper 15, February 2005. Amnesty Act (2000): Preamble: “[I]t is the expressed desire of the people of Uganda to end armed hostilities, reconcile with those who have caused suffering and rebuild their communities.” Ugandans who engaged in war or armed rebellion against the government of Uganda since January 26, 1986 and who wish to claim amnesty (“reporters”) are required to renounce the insurgency and are then eligible for reintegration—they are not required to divulge information about atrocities or to participate in any other kind of justice process. The Act states in s. 4 that the requirements are to report to an Army or Police Unit, a Chief, a member of the Executive Committee of a local government unit, a magistrate or a religious leader; to renounce and abandon involvement in the war or armed rebellion; surrender weapons; and to be issued a Certificate of Amnesty. See Tim Allen. Bitter Roots: The “Invention” of Acholi Traditional Justice, in The Lord’s Resistance Army: Myth and Reality, edited by Tim Allen and Koen Vlassenroot. Zed Books (2010) p. 242. See, for instance, Justice and Reconciliation Project. To Pardon or Punish? This study finds a very high level of support for the amnesty law (98% of the forty-four respondents considered it relevant), primarily because it is “seen to encourage children forcefully abducted by the LRA to return home and reconcile with their communities.”

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and humiliation by the Ugandan Government and the Ugandan Peoples Defence Forces.37 The “vicious counterinsurgency” of the government, combined with suffering stemming from widespread displacement, has shaped the priorities of the local population in Uganda, which extend far beyond trials for the LRA.38 In addition, Northern Uganda continues to struggle with other challenges, such as poverty, large youth unemployment, and a general absence of law and order.39 1  Lack of Impartiality: No Investigation of the UPDF The Ugandan referral, never published, pertained to the “situation concerning the Lord’s Resistance Army.” The Prosecutor, in his decision to open an investigation, clarified that he would interpret the referral as consisting of crimes by both sides.40 Nonetheless, the Court’s focus in the Uganda situation has remained solely on the LRA. Many in Northern Uganda perceived the failure of the Court to open an investigation against the Ugandan People’s Defense Force (UPDF) as ultimate proof of the bias of the Court.41 This view was formed when the referral was first announced but persisted afterward.42 Many Ugandans view the Court’s dependence on cooperation from the government of Uganda as the real reason why the UPDF was not investigated. ICC representatives benefitted from UPDF protection in the North and were seen in the company of senior UPDF commanders, being given a

37

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OHCHR. “The Dust Has Not Yet Settled”: Victims’ Views on the Right to Remedy and Reparation: A Report from the Greater North of Uganda (2011) p. xv: “Nearly all interviewees spoke of the violence, impoverishment and humiliation that occurred as a result of forced displacement. They reported that IDP camps—over 240 in number at the height of the conflict were poorly protected and inadequately facilitated … At a minimum, tens of thousands of people died in the camps due to disease and violence.” Branch. International Justice, Local Injustice, p. 23. Interview with prominent female civil society activist, Gulu, February 9, 2014. Social services such as health care remain poor in the North. The police are seen as highly corrupt. The North also suffers from a high incidence of domestic violence and rape. Nouwen. Complementarity in the Line of Fire, p. 113. Phuong Pham et al. Forgotten Voices: A Population-Based Survey of Attitudes about Peace and Justice in Northern Uganda, ICTJ and Human Rights Center, University of California (July 2005) p. 18. Adam Branch. Displacing Human Rights: War and Intervention in Northern Uganda. Oxford University Press (2011) p. 187. Phil Clark. Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark. Royal African Society (March 2008). Interview with religious leader, Gulu, February 9, 2014. See also JRP. The Dog That Barks but Doesn’t Bite: Victims Perspectives on the International Criminal Court in Uganda, Policy Brief No. 6, February 2013.

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“guided tour” around Northern Uganda.43 In the early days of the investigation, court staff often stayed in the Acholi Inn in Gulu, which was owned by a local UPDF commander. All of these factors reinforced the image that the Court was not only close to the government but also dependent on it. This in turn gave rise to speculation as to whether there was a deal between the Prosecutor and the Ugandan government that gave immunity to the UPDF.44 Both the situations in Uganda and in eastern Congo raise questions of UPDF liability: In eastern Congo, the UPDF gave support to Hema militias including the militia run by Thomas Lubanga.45 The position of the Prosecutor was that it had insufficient information to proceed against the UPDF.46 The Prosecutor repeatedly stated that LRA crimes were “much more numerous and of much higher gravity than alleged crimes committed by the UPDF.”47 The OTP was receiving assistance from UPDF military intelligence to investigate LRA crimes. The OTP estimated that LRA crimes included 2,200 killings, 3,200 abductions, and numerous sexual attacks as part of 850 overall attacks between July 2002 and June 2004.48 But the WHO reported that 1,000 excess mortalities were occurring per week in the IDP camps in Acholi in Northern Uganda between January and June 2005.49 These indirect causes were causing far more deaths. It is worth noting that according to Mamdani, in the context of Darfur, the OTP was accused of an opposite tendency, counting all deaths in the conflict as a result of violence rather than a result of indirect causes such as drought-related diarrhea (which WHO said accounted for 70–80% of all deaths in Darfur in 2006).50 During the course of the conflict, 90% of the population in Acholi had been corralled into massive camps of thousands of small huts, crammed together into a 43

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Human Rights Watch. Courting History, p. 57. Branch. Displacing Human Rights, p. 187. Interview with Mike Otim, February 12, 2014. Valerie Freeland. Rebranding the State: Uganda’s Strategic Use of the International Criminal Court. Development and Change, Institute of Social Studies (2015) p. 310. Clark. Law, Politics and Pragmatism, p. 43. See www.internationalcrimesdatabase.org/Case/814 on the Thomas Lubanga case. See also Human Rights Watch. Courting History, p. 42. Statement by the Chief Prosecutor on the Uganda Arrest Warrants, The Hague, October 14, 2005. Matthew Brubacher. The ICC Investigation of the Lord’s Resistance Army, in The Lord’s Resistance Army, Myth and Reality, edited by Tim Allen and Koen Vlassenroot (2010) p. 269. The Republic of Uganda Ministry of Health, Health and Mortality Survey among Internally Displaced Persons in Gulu, Kitgum, and Pader Districts in Northern Uganda, July 2005, WHO, UNICEF, WFP, UNFPA, and IRC. Mahmood Mamdani. Beware Human Rights Fundamentalism, March 20, 2009, Mail and Guardian Opinion.

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small space. In Gulu district alone, 65% of the population lived below the national poverty line (of less than USD 1 a day) compared to 35% in the rest of Uganda.51 Deprived from their livelihood by farming,52 the population was dependent on food supplied by the World Food Program, which was delivered to them by convoy. Public services such as health care and education were poor. The living conditions and lack of economic opportunities destroyed much of the social fabric of the Acholi society. Men were unable to work and often spent what little money there was on alcohol, leaving it to the women to work the meager fields around the camps within the strictly enforced curfews, or to engage in small trading to feed the family.53 Most could not afford to marry, and many children were born out of wedlock. These conditions gave rise to the unique phenomenon of “night commuting,” captured in the film of the US advocacy group Invisible Children.54 Each night, hundreds of children would leave their villages to walk long distances to towns such as Gulu to spend the night in shelters, only to return home in the morning.55 Humanitarian groups such as Medicins Sans Frontiers emphasized that night commuting was not just a consequence of LRA insecurity but of the complete social disintegration and breakdown of the Acholi society. Malnutrition and communicable diseases such as tuberculosis and scabies were rife in the IDP camps.56 The conditions led to widespread anger against the government in the North. Many in Acholi considered themselves forcibly displaced by the government, but the Prosecutor maintained that much of the displacement fell outside of the temporal jurisdiction of the Court as it occurred before 2002. In addition, the UPDF engaged in violations against the local population included beatings torture, and extrajudicial killings,57 as well as recruitment of underage soldiers. The Ugandan crime of “defilement,” in which UPDF soldiers used promises

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Erin Baines, Eric Stover, and Marieke Wierda. War-Affected Children and Youth in Northern Uganda: Towards a Brighter Future, An Assessment Report for the MacArthur Foundation (May 2006). Tim Allen. The International Criminal Court and the Invention of Traditional Justice in Northern Uganda. Politique Africaine, Vol. 3, No. 107 (2007) pp. 147–66. Pham et al. Forgotten Voices, p. 16. Invisible Children: Rough Cut (2004). The film is criticized as a simplistic portrayal that does not touch on the IDP camps or UPDF violations. Mareike Schomerus, Tim Allen, and Koen Vlassenroot. Kony 2012 and the Prospects for Change, Foreign Affairs, March 13, 2012. Pham et al. Forgotten Voices, pp. 15–16. Human Rights Watch. Concerns Regarding Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Uganda, May 2005. OHCHR. “The Dust Has Not Yet Settled,” p. xiv. See also Chris Dolan. Which Children Count? The Politics of Children’s Rights in Northern Uganda, 2002.

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of money, food, or clothes or coercion to have sex with underage girls, provoked particular anger and condemnation. These crimes also resulted in stigmatization of the victims. Some Acholi suspected the UPDF and the government of sinister, punitive plans against the Acholi people, involving containing the population in “concentration camps” and grabbing their land, ostensibly for the purpose of increasing agricultural production through mass farming. One former Foreign Minister and Presidential candidate, Olaro Ottunu, referred to the actions of the government as “genocide.”58 Ugandan intellectual Mahmood Mamdani referred to the mass displacement as a crime against humanity.59 The report “We Can’t Be Sure Who Killed Us” states that “there is no widely held political or moral understanding of the conflict, and some doubt that one could ever emerge.”60 The report suggests that victims did not understand many fundamentals about the causes of the war, which atrocities were committed for which reasons, or the actions or motivations of the LRA, about which there was deep ambivalence. An illustrative example is the Barlonya massacre, an event in which over 300 IDPs were massacred in February 2004. It was investigated by the ICC as an LRA crime, but many questions remained about the role of the UPDF. The suggestion is that the UPDF consciously chose not to prevent the massacre and obscured facts in its aftermath. The report finds that in contrast to crimes committed by the LRA, “for some the Ugandan government’s crimes form part of a well-developed narrative … The strategy of forced displacement was in fact a deliberate policy of cultural and economic destruction, demonstrated by the failure of the Ugandan People’s Defense Force (UPDF) to offer protection against the LRA once people had been placed in the IDP camps.”61 The displacement of the Acholi may or may not fall under the temporal or subject-matter jurisdiction of the Court.62 The same may or may not be true for crimes of the UPDF. Nevertheless, many in Northern Uganda did not accept 58

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IRIN. Uganda: ICC to Investigate Allegations of Army Atrocities, June 3, 2010. Olaro Ottunu was previously the UN special representative of the secretary-general for children and armed conflict. Pete McCormack. Details and Reminders: An Interview with Mahmood Mamdani, October 17, 2005. Julian Hopwood. “We Can’t Be Sure Who Killed Us”, Memory and Memorialization in PostConflict Northern Uganda, ICTJ and Justice and Reconciliation Project, February 2011. See also OHCHR. Making Peace Their Own: Victims Perceptions of Accountability, Reconciliation and Transitional Justice in Uganda, August 14, 2008. Julian Hopwood. “We Can’t Be Sure Who Killed Us,” Memory and Memorialization in PostConflict Northern Uganda, ICTJ and Justice and Reconciliation Project, February 2011, p. 14. It is generally acknowledged that the displacement was caused both by LRA violence and as a result of government policy: Nowhere to Hide: Humanitarian Protection in Northern Uganda, Kampala: Civil Society for Organizations in Northern Uganda, 2004 at 63, citing OCHA figures.

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the explanations given by the OTP for not proceeding against the UPDF. As noted by one author: “through its accommodation to power, the ICC is imposing a solution that is based upon a narrative of the conflict that does not make sense to many Acholi, and so they reject that narrative and throw into question the model of justice it informs.”63 The OTP for its part said it had to resist “popular sentiment” which would push it into less objectivity.64 The manner in which the Prosecutor explained the OTP’s gravity criteria, mostly in terms of the number of direct conflict-related deaths, continued to be a source of controversy. Human Rights Watch concluded that “in the absence of clearer, more widely available public explanations, it is easy to understand how some have reached the conclusion that the Prosecutor has deliberately chosen not to target the Ugandan military and civilian authorities for prosecution for political reasons. Considerable damage has been done to the ICC’s reputation in Uganda due to these perceptions.”65 2  Lack of Relevance: Failure to Promote State Acknowledgment for Victims In Northern Uganda, the Court was also out of step with local justice demands. An extensive study on priorities for victims of the conflict conducted by the OHCHR from 2007 to 2011 concluded “victims and victim-focused CSOs named truth-recovery, acknowledgment of harms, redress and reparation as their top priorities for any future transitional justice initiatives.”66 The study revealed that people took a long-term view of the conflict, tracing its origins back to 1986, and that they prioritized fact-finding and inquiry to find out the whole truth about what they had suffered and to put these on a public record.67 In terms of reparations, victims and victim-focused CSOs mentioned the following priorities: “physical and mental health services, education, housing, land and inheritance, rebuilding livelihoods, empowering youth, public 63 64 65 66 67

Branch. Displacing Human Rights, p. 192. Brubacher. The ICC Investigation of the Lord’s Resistance Army, p. 269. Human Rights Watch. Unfinished Business: Closing Gaps in the Selection of ICC Cases, p. 27. OHCHR. “The Dust Has Not Yet Settled,” p. xvi. Justice, Law and Order Sector. Study Report on Traditional Justice, Truth-telling and National Reconciliation Uganda. Disappearances were a major concern to those interviewed. They also stressed in particular the need to look at violations committed against women and children. Victims and victim-focused communities stressed that they wanted to be involved in the design of a fact-finding body or that they favoured community-based truth-telling processes led at the local level, as well as national-level acknowledgment. Refugee Law Project had long worked on a bill, as part of its Beyond Juba Project, which proposed a decentralized model of truth-seeking: National Reconciliation Bill Draft, 2008.

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acknowledgment of harm and apologies, information on the disappeared, and proper treatment of the dead.”68 As highlighted above, an important priority for victims in Northern Uganda is state acknowledgment of the crimes, a priority that has gone unanswered by the ICC. While President Museveni made a statement of acknowledgment at the 28th NRM anniversary celebrations in January 2014, his remarks provoked a mixed reception, especially his claim that he was not aware of certain ­incidents.69 Events subsequent to the Juba Peace process, including the formulation of a Transitional Justice Policy, have not resulted in such acknowledgment. In any case, an exclusive focus on LRA crimes meant that the ICC could not fully align with the justice priorities of Ugandans particularly in the North. 3  Trumping Local Justice: The Hague or the Bitter Root? To some, the ICC represented “external justice,” perceived to trample on traditional Acholi justice alternatives.70 Proponents of traditional justice, which included traditional and religious leaders, humanitarian workers, and peace activists, claimed that ICC supporters were insensitive to local cultural practices. They claimed that the ICC sought to trump these with “Western style, retributive” justice. Acholi traditional justice ceremonies featured on the front page of the New York Times in 2005, in an article which noted: “[T]he two very different systems-one based on Western notions of justice, the other on a deep African tradition of forgiveness-are clashing in their response to one of this continent’s most bizarre and brutal guerrilla wars.”71 However, some anthropologists warned that proponents and opponents of traditional justice often misunderstood or oversimplified these practices in their quest to equate these with transitional justice mechanisms.72

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OHCHR. “The Dust Has Not Yet Settled,” p. xviii. At the 28th NRM anniversary celebrations on January 26, 2014, President Museveni made the following remarks: “An undisciplined and ideologically bankrupt army cannot create peace in the country. In spite of the general line of the NRA/UPDF of always being on the side of the people, there were incidents in the anti-insurgency campaign for which we are ashamed. I do not know why the people did not report those incidents … I am going to follow up all these incidents, unearth the culprits if they are still alive so as, to hold them accountable and compensate the victims or their descendants.” http://chimpreports.com/index.php/news/ politics/16415-full-speech-museveni-accounts-for-28-years-in-power.htm. Allen. The International Criminal Court and the Invention of Traditional Justice in Northern Uganda, pp. 147–66. Mark Lacey. Atrocity Victims in Uganda Choose to Forgive, NYT, April 18, 2005. Tim Allen made the point that the Luwo word Timo-Kica has several meanings, including forgiveness, amnesty, and reconciliation. Allen. Trial Justice, p. 131.

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Not long prior to the ICC’s involvement, in 2000, Rwot David Arcana II had been appointed paramount chief for the Acholi, through a civil society initiative.73 Before that there was no paramount chief of Acholi. This brought with it a resurgence of interest in traditional practices. Some of these practices were very common, but the more elaborate ceremonies rarely took place anymore due to poverty or poor living conditions in the camps. According to traditional beliefs, in the aftermath of a conflict in which the fate of so many remains unresolved, cen (polluting spirits) can haunt perpetrators of wrongdoing who fail to admit their guilt. These “living dead” can plague persons through nightmares, visions, and other misfortunes. The widespread violence prevalent in war creates what Finnstrom termed “bad surroundings,” which in turn result in other misfortunes such as sickness, failed crops, malnourishment, the presence of evil spirits, and widespread deaths.74 The traditional ceremonies reflect the spiritual beliefs of the Acholi and are used to ascribe meaning to their environment. These are by no means unique to Acholi: Similar traditional practices exist elsewhere, for instance in Mozambique.75 Neither are these local beliefs ubiquitous. Christian beliefs are also prevalent in Northern Uganda, and Christian religious leaders carry much influence.76 There is also a minority of Muslims. Some religious leaders oppose traditional practices such as going to the ajwaki on grounds that these are “Satanic.” But religious leaders in the North often have promoted certain ceremonies, arguing that they are compatible with Christian norms of forgiveness and reintegration. In the words of Bishop Baker Ochola: “God has revealed mato oput to our society-to taste the pain in our society, to taste pain and suffering and death … Acholi know that it is only through forgiveness that the problems can be solved.”77 Cleansing ceremonies were used to excise foreign and malignant influences or spirits from persons reentering the community.78 An example is the 73 74 75

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Allen. Trial Justice, p. 149. Finnstrom. Living with Bad Surroundings, p. 14. Victor Igreja. Justice and Reconciliation in the Aftermath of the Civil War in Gorongosa, Mozambique Central, in Building a Future on Peace and Justice, edited by Kai Ambos, Judith Large, and Marieke Wierda. Springer (2009) pp. 423–38. Allen. The International Criminal Court and the Invention of Traditional Justice in Northern Uganda, pp. 147–66. Refugee Law Project. Peace First, Justice Later: Traditional Justice in Northern Uganda, July 2005, p. 25. Allen. Trial Justice, p. 137. On the other hand, the “forgiveness” aspect of Acholi culture may be in danger of being overstated and some scholars, such as Holly Porter, have argued that dispensing justice in Northern Uganda is determined by a quest for social harmony, which may result in either peaceful or more violent means. See Holly Porter. After Rape: Justice and Social Harmony in Northern Uganda. PhD thesis submitted to the LSE, 2013. Copy on file with the author. ICTJ and the Human Rights Center at University of California, Berkeley. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda, pp. 50–51.

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ceremony of stepping on an egg (nyouo tong gweno), where the egg symbolizes the pure nature of the community, which is symbolically crushed by the entry of external influences and pressures. Adapted versions of cleansing ceremonies have been used to reintegrate former LRA.79 On the other hand, traditional beliefs also dictate how to deal with outsiders or punish persons excluded from the community, for instance, for accusations of witchcraft.80 A more elaborate and much-discussed ceremony is known as the Mato Oput or “drinking of the bitter root.”81 This ceremony is used to reconcile individuals within a clan, or clans with strong relationships, mostly in cases of unlawful killing, which can be intentional or accidental. The matter is discussed, a common version of events agreed, and compensation agreed. This is followed by a ceremony presided by the local chief (the Rwot Moo), which includes the joint drinking of the “bitter root,” followed by a shared meal, sometimes involving two goats that are cut in half and the two halves swapped.82 Traditional ceremonies carry a strong emphasis on resumption of relationships within the clan, or on reconciliation and unity of the community. Their application between different clans or communities, however, is less clear.83 The ICC intervention in Northern Uganda prompted extensive and polarized debates about the respective merits of international and traditional justice. Some argued that traditional justice practices were being “invented” or revived as an alternative to the ICC.84 However, a survey applied in 2005 indicated that in Acholi areas, about half of the population knew about traditional practices and 32% said they would assist in reconciliation (including respondents in Lira and Soroti).85 Some argued that this attention boom, prompted in part by the ICC, led to a distortion of the practice, putting all 79 80 81 82

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Allen. Trial Justice, p. 166. Allen. The International Criminal Court and the Invention of Traditional Justice in Northern Uganda, pp. 147–66. Ibid, pp. 147–66. ICTJ and the Human Rights Center at University of California, Berkeley. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda, p. 51. Allen. Trial Justice, p. 133. See for instance, Tim Allen. Ritual (A)buse? Problems with Traditional Justice in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark. Royal African Society (2008). ICTJ and the Human Rights Center at University of California, Berkeley. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda, pp. 31–32.

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the emphasis on accountability and that it inadvertently led to the empowerment of traditional power structures, which tend to discriminate women and youth.86 The traditional leadership of Ker Kwaro Acholi was later implicated in corruption.87 Discussion of codification of traditional practices led some to argue that this would detract from their inherent value as flexible, informal, and “living” spiritual processes.88 On the other hand, ICC supporters argued that traditional justice practices are inappropriate to deal with the large-scale atrocities of the LRA and that they could lead to impunity for LRA leaders. Eventually, the debate settled on a happier medium, a realization that formal and informal justice systems are not mutually exclusive, but that they each have a role to play. In a survey carried out in 2010, the post-conflict period, 53% of the population consider traditional ceremonies to be useful in dealing with LRA combatants.89 The contrast between the forms of justice delivered by the ICC and the Mato Oput in Northern Uganda illustrates the difficulties in imposing a uniform view of justice on populations around the world. B  Libya: From Infatuation to Estrangement The Libyan referral gave rise to renewed international optimism about the role of the Court, both because it was the result of a unanimous Security Council referral and because it was seemingly welcomed by local actors. The arrest warrant of the International Criminal Court against Muammar Al-Qadhafi in June 2011 came at the end of a forty-two-year rule, in which Qadhafi’s state security apparatus systematically menaced the population, creating a climate of fear and acting with absolute impunity.90

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Allen. Ritual (A)buse? Problems with Traditional Justice in Northern Uganda, pp. 47–54. See also Allen. Trial Justice, pp. 132–33. Allen. The International Criminal Court and the Invention of Traditional Justice in Northern Uganda, pp. 147–66. The Monitor. Acholi King in Trouble over Sh230m Donor Fund, December 2, 2013. Allen. Ritual (A)buse? Problems with Traditional Justice in Northern Uganda, p. 50. Phuong Pham et al. Building Peace Seeking Justice: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Central African Republic, August 2010, Human Rights Center, University of California at Berkeley. In addition to crimes committed in Libya, external security services assassinated political opponents abroad (the so-called “stray dog” policy); and during the 1980s, allegedly committed a number of terrorist acts against Western targets, contributing to Libya’s international image as a state sponsor of terrorism.

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The state machinery of Qadhafi’s regime was totalitarian in nature91 and routinely perpetrated summary executions, disappearances, and torture.92 It ran a parallel justice system of political courts and “black hole” prisons for political opponents, including the prisons of Abu Slim and Ain Zara, where hundreds were detained over the years. Any association or activity based on a political ideology contrary to the principles of the September 1, 1969 Revolution was illegal and punishable by death—and the death penalty was regularly and publicly enforced.93 The most significant atrocity of the Qadhafi era, and one that is imprinted on the Libyan national psyche, was the 1996 mass killing at Abu Slim prison. Within two days, over 1,200 prisoners were massacred by their guards during a prison “uprising.” Family members were not informed of the deaths until 2008, when a Benghazi court ruled that authorities must reveal the whereabouts of thirty-three individuals believed to have died in Abu Slim.94 Indeed, the original protest that sparked the February 17, 2011, Revolution was led by families of the victims. Abdullah Al-Senussi is one of the key suspects in the Abu Slim prison massacre, and this is one of the main reasons why many Libyans opposed sending him to The Hague. During the Revolution, it quickly became apparent that crimes within the jurisdiction of the Rome Statute were being perpetrated. Government forces responded to civilian protests with brute lethal force, firing live ammunition at protestors without warning.95 Security battalions used weapons prohibited by certain international treaties such as landmines and cluster munitions,96 and indiscriminately attacked civilians in al-Zawiya. The government also arrested hundreds in Tripoli, Misrata, and the Nafusa Mountains.97 Detainees were held in overcrowded shipping containers and warehouses, with poor ventilation, inadequate hygiene facilities, and with insufficient food and

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Life under the Qadhafi regime was vividly described by Hisham Matar, Libyan novelist and Pulitzer Prize winner, in his book In the Country of Men (2006). The Human Rights Committee has noted the large number of documented enforced disappearances and cases of extrajudicial, summary, or arbitrary executions in Libya. Considerations of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding observations of the Human Rights Council, Libya CCPR/C/LBY/CO/4 (October 15–November 2, 2007) para. 14. Report of the International Commission of Inquiry to investigate all alleged violations of international law in the Libyan Arab Jamahirya, A/HRC/17/44, p. 21. Ibid., p. 22. Report of the International Commission of Inquiry on Libya, A/HRC/19/68, 46, pp. 52–56. Ibid., p. 149 and Amnesty International. “The Battle for Libya”: Killings, Disappearances and Torture, September 13, 2011, p. 44. Ibid., pp. 91–94.

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water provision. Torture by the Qadhafi forces was widespread at facilities in Al-Khums, Al-Qal’a, and Yarmuk.98 On May 16, 2011, the ICC Prosecutor produced arrest warrants in the Libyan case at lightning speed, just some ten weeks after the Security Council referral. In the press conference the Prosecutor said: “we have strong and solid evidence. We have direct evidence of each of the individuals in crimes. We are almost ready for trial.”99 The arrest warrants were brief and reflected a simple assertion, that is, that “a State policy was designed at the highest level of the Libyan State machinery and aimed at deterring and quelling, by any means, including by the use of lethal force, the demonstrations of civilians against Qadhafi’s regime which started in February 2011.”100 Predictably, the regime rejected the arrest warrants, stating that they were a cover for NATO’s “illegal” military action, that the ICC was a Western puppet created to pursue African leaders, and that “the leader of the revolution and his son do not hold any official position in the Libyan government and therefore they have no connection to the claims of the ICC against them.”101 However, the ICC arrest warrants enjoyed wide public support from within Libya. The Libyan National Transitional Council (NTC), headed by Mustafa Abdel-Jalil and soon recognized by the international community as the legitimate representatives of the Libyan state, welcomed the Prosecutor’s arrest warrants.102 Immediately, civil society groups in Benghazi and Misrata worked with the NTC legal committee to collect evidence for the ICC. There were celebrations in the streets when the arrest warrants were announced. Some commentators say that this was viewed by some as “the beginning of the collapse of the regime.”103 All of this gave high hopes that Libya would yield quick wins for The Hague. But this was not to be. 1  Lack of Impartiality: The Court’s Revolutionaries It is difficult to know whether ICC arrest warrants had an impact on the ultimate outcome of the conflict, but they had an immediate effect on the morale 98 99 100 101 102 103

Ibid., pp. 60–68. Andrew Gilligan and Bruno Waterfield. Libya: Arrest Warrant Sought for Col. Gaddafi, Son and Intelligence Chief, May 16, 2011 in The Telegraph, UK. ICC. Situation in the Libyan Arab Jamahiriya, Public Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, June 27, 2011. BBC News Africa website. Libya Rejects ICC Arrest Warrant for Muammar Gaddafi, 27 June 2011, statement by Mohammed Al-Qamoodi. CCTV. Libya Rebels Welcome Gaddafi Arrest Warrants, June 28, 2011. Priscilla Hayner. International Justice and the Prevention of Atrocities: Case Study Libya: The ICC Enters During War, ECFR Background paper (November 2013).

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of revolutionaries, further legitimizing their cause.104 The Libyan revolutionaries throughout perceived that the Prosecutor was on “their side.” At the same time, the Revolutionaries themselves were implicated in crimes. This is in spite of the fact that the NTC had made a statement that it would adhere to the Geneva Conventions relating to the prisoners of war, and it issued a frontline manual with rules for conduct of armed forces in May 2011.105 The perception that the rebels were immune from scrutiny by the Prosecutor was reinforced by the Prosecutor’s visit to Misrata in April 2012. He was photographed standing on a tank at a NATO bombing site and paid a visit to the local museum where he left a hand-written letter on display to congratulate the people of Misrata on their brave Revolution.106 While the Prosecutor in the Security Council referred to the possibility of holding revolutionaries accountable, this did not seem to penetrate the consciousness of those on the ground.107 Many Libyans were not aware that the ICC jurisdiction continued beyond the 2011 Revolution. The revolutionaries moved swiftly to lobby for an amnesty for acts “with the goal of promoting or protecting the revolution,” passed by the NTC in May 2002 and known as Law 38.108 The amnesty covered crimes over which the ICC has jurisdiction. Subsequently, Justice Minister Marghani took the brave step of undoing this amnesty by passing a law titled “Criminalization of Torture, Enforced Disappearances, and Discrimination,” in April 2013. The ICC Prosecutor also actively contributed to the perception that Tawerghan fighters raped Misratan women on a wide scale during the Libyan Army’s occupation of Misrata in March and April 2011. The Prosecutor seized on this allegation, publicly declaring in a press conference on June 8, 2011, that he believed Qadhafi was using rape as a weapon of war and suggesting there were “hundreds of victims.”109 The Prosecutor said that: “By now we are 104

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Brian McQuinn. Interviews with local commanders in Misrata, July to August 2011, cited in Marieke Wierda. Confronting Qadhafi’s Legacy: Transitional Justice in Libya, in The Libyan Revolution and Its Aftermath, edited by Peter Cole and Brian McQuinn. Oxford University Press (2015) pp. 153–76. Iain Scobbie. EJIL: Talk! Operationalising the Law of Armed Conflict for Dissident Forces in Libya, August 31, 2011. See Final-Libyan-LOAC-Guidelines-17-May-2011. Seen by the author during a visit to Misrata in 2012. Hayner. International Justice and the Prevention of Atrocities. Libya National Transitional Congress. Law 38, para. 4. See Kersten, Justice in Conflict, p. 158. Owen Bowcott. Libya Mass Rape Claims: Using Viagra Would Be a Horrific First, The Guardian, June 9, 2011. See also, Prosecutor of the ICC. Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011), November 2, 2011 at para. 14: “While it is premature to draw conclusions on specific numbers, the information and evidence indicates at this stage that hundreds of rapes occurred during the conflict.”

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getting some information that Qadhafi himself decided to authorize the rapes and this is new. It never was the pattern he used to control the population. The rape is a new aspect of the repression. Apparently he decided to punish using rape.”110 The Prosecutor also said there was evidence of containers of “Viagra-type medicaments” being handed out to “enhance the possibility to rape women,”111 which in his words were “confirming the policy.”112 In another news report, he referred to Viagra being used “like a machete. It’s new. Viagra is a tool of massive rape. So we are investigating. We are not ready to present the case yet, but I hope in the coming month, we’ll add or review the charges for rape.”113 The Prosecutor followed up with a visit to Misrata on April 20, 2012, where he spoke about looking for the evidence of systematic rape without identifying the victims.114 These allegations were made by Libyan activists who suggested that thousands of rapes had occurred. For instance, Seham Sergiwa, a brave female activist who tragically disappeared in Libya in 2019, said that she personally interviewed 140 women who said they had been raped by Qadhafi forces. She gathered 50,000 responses to a mental health questionnaire in refugee camps in Tunisia and Egypt, including 295 responses of rape, but said she “lost contact” with the victims.115 She had shared her findings with the ICC. However, the charges of rape were not added to the arrest warrants published on June 27, 2011, neither were they added subsequently. The Head of the International Commission of Inquiry, Cherif Bassiouni, gave an interview in June 2011 stating: “People are accusing each other of a policy of rape … It is more of a hysterical social reaction. We have no evidence of it.”116 An Amnesty International representative, Donatella Rover, who was in Libya during the conflict investigating violations later said that Benghazi rebels had made false claims or manufactured evidence. She had been shown Viagra in Benghazi, by revolutionaries, allegedly from charred tanks, even though it was unclear 110 111 112 113 114 115 116

Bowcott. Libya Mass Rape Claims. Ibid. UN News Center. Evidence Emerging of Use of Rape as Tool of War in Misrata-ICC Prosecutor, June 8, 2011. Sara Sidner and Amir Ahmed. Psychologist: Proof of Hundreds of Rape Cases during Libya’s War, CNN, May 23, 2011. ICC Prosecutor Visits Libya’s Misrata to Investigate Mass Rapes. www.utube.com/ watch?v=uWCAZrlHw.” Sidner and Ahmed. Psychologist. See also Patrick Cockburn. Amnesty Questions Claims that Gaddafi Ordered Rape as a Weapon of War. The Independent, June 24, 2011. Andrew Harding. Libya Rape Claims: Seeking the Truth, June 10, 2011. www.bbc.co.uk/news/ world-africa-13725149.

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why the packets were not charred.117 Human Rights Watch seconded the absence of evidence for rape.118 Even after the conflict, no conclusive evidence of widespread rape in Misrata has emerged. The Commission of Inquiry reported in March 2012 that “the Commission recognizes the unique difficulties of confirming incidents of sexual violence in Libya. The Commission, however, received no substantiated information indicating that individual Tawergha or organized groups of Tawergha men raped women in Misrata or elsewhere.”119 A report on ConflictRelated Sexual Violence presented to the Security Council in January 2012 was similarly inconclusive, but found isolated cases of rape against both men and women during the conflict.120 While the absence of information itself is not conclusive, it suggests that initial reports on rapes in Misrata were likely exaggerated and used to gain legitimacy for the Revolution. These allegations have, however, entrenched themselves in the Libyan public consciousness. Moreover, and most seriously, they triggered widespread retaliation against the Tawerghan community accused of perpetrating rapes in Misrata, resulting in massive displacement, arbitrary arrest, torture, and many retaliatory killings. In spirit of vengeance that followed the Revolution, the revolutionaries committed a number of serious violations in their struggle to rid themselves of the former regime, including the killing of Qadhafi himself, his son Muatasim, and chief of staff.121 At the Mahari Hotel in Sirte, on October 20 or 21, 2011, an estimated sixty-five to seventy-eight bodies were discovered, some with their hands bound, with civilian residents mixed in among members of Qadhafi’s close protection unit.122 In addition, thousands of perceived loyalists, including former security sector and government employees, were rounded up and placed in arbitrary detention. Many were kept in poor conditions, mistreated, and denied access to medical facilities and to judicial authorities, and remain detained years later. Revolutionary fighters also committed revenge killings of former regime members—Revolutionary Committees, Revolutionary Guards, and

117 118 119 1 20

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Cockburn. Amnesty Questions Claims That Gaddafi Ordered Rape as a Weapon of War. Ibid. Report of the International Commission of Inquiry on Libya, A/HRC/19/68, p. 122. Report of the Secretary-General on Conflict-Related Sexual Violence, January 13, 2012, A/66/657- S/2012/33, pp. 11–12: “It is, however, too early to determine whether security forces of the former Qadhafi regime and its followers had received orders to carry out rape against women, men and children during the conflict.” Human Rights Watch. Death of a Dictator: Bloody Vengeance in Sirte, October 2012. Report of the International Commission of Inquiry on Libya, A/HRC/19/68, pp. 78–79.

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the Internal Security Agency.123 Cases of torture and deaths in custody were frequent, as reported by UNSMIL. HRW addressed a letter to the Misrata Local Council in April 2012, which stated that armed groups from Misrata may have committed crimes against humanity and that “senior officials, such as yourself, could be held criminally responsible for ordering these crimes, or for failing to prevent or punish them, by courts including the International Criminal Court (ICC) in The Hague.”124 HRW particularly referred to abuses in detention facilities. Nearly 3,000 conflict-related detainees were being held in Misrata at the time. This letter caused nervousness among those in charge of detentions in Misrata that they would be prosecuted by the ICC.125 Acts of vengeance were meted out against the Tawerghans, and other ethnic and “tribal” communities allegedly associated with the regime.126 Tawerghans relocated to Benghazi, Tripoli, and Al-Khoms, living in IDP camps or with host families.127 In late 2012, a short, GNC-mandated conflict was waged against Bani Walid, a perceived Qadhafi stronghold, resulting in the death of civilians and destruction of property. The crimes committed in the name of the “liberation” posed a challenge for the ICC because any investigation of these crimes would pit them directly against the new Libyan authorities. The OTP on multiple occasions highlighted these issues in its reports to the Security Council, referring to the plight of the conflict-related detainees, the Tawerghans,and the attack against Bani Walid.128 But Security Council members showed little appetite to put further pressure on Libya, either in respect of noncooperation or for investigating post-­ Revolution crimes. Libya disintegrated into more widespread violence in 2014, leading to yet further violations.129 By mid-2014, Libya had split into two competing camps, known as Operation Dignity (karama) and Operation Dawn (fajr). In a report 1 23 1 24 1 25 1 26 1 27 1 28

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Amnesty International. The Battle for Libya: Killings, Disappearances and Torture (2011) pp. 72–73. Human Rights Watch. Letter to Misrata Councils Regarding Serious Crimes by Armed Groups, April 9, 2012. At the time, the author was serving in UNSMIL’s Human Rights Section. Several of the commanders spoke to UNSMIL, voicing concern that it was sharing information with the ICC. International Commission of Inquiry on Libya, A/HRC/19/68, p. 122. Ibid., pp. 122–30. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, to the United Nations Security Council on the situation in Libya pursuant to UNSCR 1970 (2011), New York, November 14, 2013. United Nations Support Mission in Libya. Torture and Deaths in Detention in Libya, October 2013.

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of September 2014, the United Nations Mission (UNSMIL) accused all sides of war crimes, including indiscriminate shelling; abductions, torture, and extrajudicial killings or disappearances; and destruction of civilian objects. It was difficult for the ICC to conduct investigations in Libya, due to the security situation and constraints on its resources, but investigations did continue. In 2017, Der Spiegel published articles about emails from the former Prosecutor, which shed light on his conduct in the Libya case both prior to and after his stepping down. Der Spiegel wrote that during the time of the NATO attack on Libya, in April 2011, the Prosecutor (at the time) shared information with the French about who he was going to indict and also described a senior member of the Qadhafi regime Moussa Kousa in a letter to the British as a “cooperating witness” who should not be indicted. Furthermore, after he left office, in 2015, Ocampo accepted a contract from Hassan Tatanaki, a Libyan business man and oil tycoon who runs various radio stations. The goal of the contract as described in the emails was to pursue “Justice First” in Libya, through investigating terrorists and sharing information with the local courts and the ICC. The value of the contract was USD 3 million for three years (plus a daily allowance of USD 5,000 a day). However, some time into his assignment, an ICC former employee warned the former Prosecutor that General Haftar’s air force commander had used Tatanaki’s radio station to say that all Haftar’s opponents should be “slaughtered as traitors.” Furthermore, an ICC employee warned him about Tatanaki’s role in support of the regime during the uprising in 2011. Der Spiegel alleges on the basis of communications it obtained that Ocampo wrote to Tatanaki’s employee, urging that Tatanaki should ensure that “Haftar is neither committing nor inciting to commit crimes” and that it should be “impossible to conclude that Hassan and his channels are supporting crimes.” The former Prosecutor’s contract ended after an initial payment for USD 750K, for unknown reasons, but it is rumored that he orchestrated a meeting in The Hague between Tatanaki and ICC staff.130 The overriding impression is that the Libyan tycoon was buying Ocampo’s influence with the ICC and that Ocampo took steps attempt to shield him or Haftar from investigation. In April 2017, the ICC unveiled an arrest warrant for another Qadhafi-era official, ex-security chief Mohamed Khaled Al-Tuhamy, a warrant that had been kept under seal since 2013. In August 2017, the ICC issued an arrest warrant against Saiqa commander Mahmoud Mustafa Busaif Al-Werfalli, a man who had been filmed on several occasions executing prisoners in Eastern 130

Spiegel Online, Sven Becker, Marian Blasberg, and Dietmar Pieper. The Ocampo Affair: The Former ICC Chief ’s Dubious Links, October 5, 2017.

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Libya.131 Al-Werfalli was not a central character in events in Libya, but he reported to Haftar. In 2020, the ICC sent two missions to Libya to investigate mass graves in Tarhuna and Southern Tripoli, in cooperation with the national authorities.132 In this respect, perceptions in the Libyan context are an ever-moving picture. But a 2018 communiqué of a conference held in Gheryan expressed the following views about the ICC: The ICC has used … the “double standard justice” in practicing its jurisdiction vis à vis the committed crimes. While the measures taken by the Public Prosecutor—and led to the issuance of three warrants of arrest against those who were at the top of the regime—were considered very fast … the ICC did not take any action afterwards except issuing two other warrants of arrest despite the high volume of crimes committed by the Libyan conflicting groups.133

2  Lack of Legitimacy: Perception of Lack of Independence of the ICC Although there was general support from the NTC for the ICC arrest warrants at the time they were issued, from an early stage, Libyans maintained that Qadhafi ought to be tried in Libya if he were to be tried at all.134 His death at the hands of a Misrata brigade on October 20, 2011, rendered the question moot.135 While Qadhafi’s death, which amounted to a summary execution, was condemned outside of Libya, in Libya there was virtually no protest. While the NTC promised to investigate his death, no such investigation was instigated. But the intransigence of the Libyan authorities only became apparent when Saif Al-Islam was arrested on November 19, 2012. The Prosecutor immediately traveled to Libya to try to persuade the Libyans to surrender him to the ICC. But the Chairman of the NTC, Abdel-Jalil, told him that the Libyan authorities wanted to seize the opportunity to do justice in Libya, to prove how the new regime was different from Qadhafi.136 As stated by the Prime Minister at the time, Abdurahhim Al-Keib: “We intend to 131 132 133 134 135 136

Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17. Statement of ICC Prosecutor to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), November 10, 2020. Communiqué of Gheryan Conference on the Role of the UN following the Military Intervention in Libya in 2011, February 21–22, 2018, on file with the author. Dina Al-Shibeeb and Mustapha Al Baili. Rebels Welcome ICC Arrest Warrants for Qaddafi, as Explosions Rock Tripoli, May 16, 2011, Al Arabiya website. Human Rights Watch. Death of a Dictator. Human Rights Watch attributed his death to an unclear combination of shrapnel wounds, beatings, and gunshots. International Bar Association. Webcast Interview with ICC’s Former Prosecutor, Luis Moreno Ocampo, October 2012.

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project the real image of the new Libya.”137 The Prosecutor essentially ended up agreeing that the Libyans should be allowed to conduct the case themselves, although this was in fact for the Pre-Trial Chamber to decide. On April 22, 2012, Libya filed an admissibility challenge before the ICC, arguing that it had opened its own investigation against Saif Al-Islam and should be allowed to proceed. The collision with the ICC escalated further over the arrest of Abdullah Al-Senussi at the airport in Nouakchott on March 17, 2012. After protracted negotiations involving several countries, Abdullah Al-Senussi was extradited from Mauritania to Libya. His extradition was viewed as highly significant in the eyes of many Libyans, who view him as a key lynchpin in the Qadhafi regime. On February 6, 2012, Pre-Trial Chamber I of the ICC issued a decision ordering Libya to surrender Saif Al-Islam to the ICC, but this was not generally well perceived in Libya, and there was no public support for the authorities to hand him over. In addition to Saif and Senussi, the post-2011 Libyan authorities had a large number of high-level former regime figures in custody.138 All were eventually brought to trial before a Libyan court, as described in Chapter 3. Due to the particularities of its history, including years of isolation from the outside world during the Lockerbie sanctions, Libyans are suspicious of foreigners, who are frequently accused of espionage. The rhetoric of sovereignty was strong in Libya, and particularly immediately after the Revolution, Libya was keen to assert its jurisdiction as a new state. The Court neither had a presence nor had it conducted outreach in Libya. Libyans were aware that foreign intelligence agencies take a strong interest in Abdullah Al-Senussi because of his potential knowledge on involvement in terrorist acts abroad such as the Lockerbie bombing. Several foreign intelligence agencies sought access to Senussi, including from the US and UK. Many Libyans presumed that the ICC was linked to these foreign intelligence agencies and that it wanted to take custody of Senussi so as to facilitate foreign access to him. The depth of Libyan suspicion was demonstrated when a battalion in Zintan detained four members of the Court’s Office of Public Defence Counsel and the Registry for a month in early June 2012.

137 138

Zain Verjee. Libya Has “Great Evidence” Against Gadhafi’s Son, ICC Prosecutor Says, CNN, April 19, 2012. These included Baghdadi Al-Mahmoudi, former Prime Minister; Abu Zaid Dorda, former Chief of External Intelligence and Libyan Permanente Representative to the United Nations; Abdul-Ati al-Obaidi, the former Foreign Minister; and Belgassem al-Zwai, former Head of Parliament, as well as senior advisors Mansour Daw; Ahmed Ibrahim, Qadhafi’s cousin; and many others.

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C  Colombia and the ICC: Separate but Symbiotic Colombia and the ICC have a curious relationship. Each provided a key to the other’s success. For the Court, Colombia is the prime example of “positive complementarity.” Conversely, Colombia takes pride in being the first to resolve its conflict within the international legal framework provided for in the Rome Statute. But both seek to keep their distance from the other and to maintain separation in their symbiosis. Colombia was an active participant in the negotiations on the Rome Statute and the Elements of Crimes and was among the first sixty states to become a State Party. In 2001, it filed an exception to the Court’s jurisdiction on war crimes, under Article 124 of the Rome Statute, which expired in 2009. At the same time, much of the Colombian conflict is outside of the scope of the ICC. The fifty-year-old Colombian conflict is highly intricate and involved multiple actors, including the state and Colombian army fighting different guerilla forces (FARC, ELN, M19, and several others), but also saw fighting by paramilitary forces, deployed to fight guerillas and protect the interests of wealthy landowners; narco-traffickers (linked to all sides); and politicians or state actors that relied on paramilitary forces to protect their interests. Due to the weakness of the central state, various groups competed over resource-rich and drug-producing areas of the country.139 The late Colombian author Gabriel García Márquez referred to the conflict in Colombia as “a biblical holocaust.” The fifty years of violence generated millions of victims. According to a 2013 Report of the Colombian Center for Historical Memory, around 220,000 persons were killed in the conflict in Colombia; 23,154 were assassinated (with 40% of these killings by paramilitaries, 16.8% by guerillas, 27% unattributed, and 10% by public security forces); and 4.7 million were internally displaced (this number has since been revised upward to 7 million by UNCHR). Other hallmark violations included kidnappings, mostly by the FARC (27,023); deaths or amputations from antipersonnel land mines (10,189); and recruitment of children (6,400). No figures were given for forced disappearances and sexual violence.140 The violence disproportionately affected indigenous communities, groups of African descent, and the poor.141 Those who were displaced often moved to the cities, settling in slums.142 139 1 40 1 41 1 42

Nicole Summers. Colombia’s Victims’ Law: Transitional Justice in a Time of Violent Conflict? Harvard Human Rights Journal, Vol. 25 (2012) p. 221. Historical Memory Center. Basta Ya! Colombia: Memorias de Guerra y Dignidad (Enough Already! Colombia: Memories of War and Dignity), July 2013. Summers. Colombia’s Victims’ Law, pp. 221–22. Ibid., p. 223.

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Land issues and inequitable division of wealth are a fundamental source of conflict in Colombia. Roughly 1% of the population owns 50% of the cultivatable land. Displacement is a hallmark of the Colombian conflict and mostly affected poor populations in rural areas. In the last thirty years, victims of the conflict were forcibly dispossessed from an estimated 12.6% of Colombia’s agricultural land by guerillas, paramilitaries, or other armed actors.143 Some of the land was taken by large multinational companies who themselves cultivated links with paramilitary groups or the FARC and contributed to human rights violations.144 Rural development remains an important political issue in the aftermath of the conflict in Colombia. Since the enforcement of Alvaro Uribe’s Democratic Security Policy, the FARC was thought to have decreased in size from around 15,000 combatants to around 6,000. Only during the Santos administration did the government of Colombia recognize the conflict as an internal armed conflict in legal terms. Political recognition was given to the FARC and ELN by the Pastrana government in 1998, but the FARC’s ability to participate in politics was only decided as part of the Havana negotiations.145 1  Local Priorities: Negotiated Justice Much of the Colombian debate on justice has focused on fashioning “judicial benefits” to incentivize armed actors to demobilize and integrate them into political life. Discussions on accountability were trapped in a transactional dynamic about what benefits perpetrators could expect in return for an agreement to surrender to a measure of justice. In News of a Kidnapping, García Márquez describes the negotiations between the Colombian government and drug-lord Pablo Escobar and his “Extraditables” in the 1990s.146 This transactional dynamic led to the innovation of many different transitional justice mechanisms within a judicial framework in the context of Colombia, including the Justice and Peace Law (Law 975). It also created increased awareness of transitional justice among the general population and led to improvements in victim’s rights.147 1 43 1 44 1 45 1 46 1 47

Ibid., p. 222. See for instance Business and Human Rights Resource Centre. Case Profile: Chiquita Lawsuits. Alejandro Chetman. The Impact of the ICC in Colombia: Positive Complementarity on Trial, DOMAC, October 17, 2011, p. 13. Gabriel García Márquez. News of a Kidnapping. Vintage International (1997). Pablo de Greiff. Strategic Challenges of the Justice and Peace Law, August 23, 2011 at a conference in Sweden on “Selection or Prioritization as a Strategy for Prosecuting International Crimes.”

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In the late 1980s and the early 1990s, the government concluded a peace process with the M19. Some members of M19 participated in the drafting of Colombia’s Constitution of 1991, which contains several references to the right to peace.148 The Constitution also gave Congress powers to grant amnesties and pardons to political offenders and empowered the government to grant individual pardons.149 M19 members ran for politics.150 Many of the same concepts continued to be used in Colombia, including negotiations with the paramilitaries, resulting in Law 975 and the Legal Framework for Peace. Prosecutions for serious crimes by illegal armed groups are generally supported by the public in Colombia. One opinion poll conducted among urban Colombians by NGOs in 2006, during the enforcement of the Justice and Peace Law, suggested that the urban population supported dialogue with illegal armed groups, 63% supported criminal prosecutions of members of illegal armed groups, and not just the leaders, 75% thought that armed groups ought to be tried and punished, and even more (76%) thought that guerillas should be tried and punished. In general, only around one-third of the population supported pardons for the FARC or guerillas. Up to 50% favored punishments to be included in the criminal law, without special legal benefits for illegal armed groups. In another poll taken in 2012, most respondents (70%) said that the crimes of guerillas and paramilitaries were both serious and should both be severely punished. The Justice and Peace Law, however, enjoyed significant support among the population, particularly because of the central role of the criminal justice system in demobilizing the paramilitaries.151 Part of the reason why the Colombian public voted against the Havana peace deal with the FARC in a plebiscite held on November 1, 2016, was due to its perceived lenience in not providing for prison terms for the FARC. 1 48 1 49

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Colombia Constitution Article 22. “Peace is a right and a duty of which compliance is mandatory.” Silvia Delgado Maldonado. Political Participation: An Implied Condition for Enduring Peace in Colombia. International Law: Rev. Colomb. Derecho Int. Bogotá (Colombia) No. 23 pp. 267–318 (July–December 2013) at p. 308. These provisions allowed for a series of laws, passed by Colombia’s Congress, that allow for peace negotiations with guerrilla groups, including Law No. 104/93 and Law 418/97. Silvia Delgado Maldonado. Political Participation, p. 304. Respondents were roughly equally divided between offering incentives to members of paramilitary groups and guerillas to demobilize them and seeking to defeat them militarily. While most respondents favored sending paramilitaries to jail (48%), an important percentage favored legal benefits in exchange for truth and reparations (39%) and a minority (12%) favored freedom in exchange for truth and reparations. Centro de Memoria Histórica, Organización Internacional Para Las Migraciones, Unidad de Atención y Reparación Integral a Victimas y Universidad de Los Andes, ¿Que piensan los colombianos después de siete años de Justicia y Paz? Encuesta Nacional, Bogotá, 2012. www.centrodememoriahistorica .gov.co/descargas/ informes2012/encuesta.pdf.

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As part of the peace process with the FARC, Colombians expressed interest in instituting comprehensive truth-seeking as a missing part of transitional justice. Until the Havana Agreement, no comprehensive truth-seeking had been instituted in the Colombian context.152 Another local priority was reparations for victims. Until the passage of the Victims and Land Restitution Law in 2011 (Victims Law or Law 1448),153 the main avenue to reparations for victims was the Justice and Peace Law. However, out of the 410,000 victims who registered under that law, only 1,400 received reparations. This prompted the passage of a new law, Decree 1290 (2008), which established an administrative reparations scheme. Difficulties with that scheme in turn prompted the passage of Law 1592, which provides that victims (of crimes since 1985) should seek reparations under the Victims Law.154 152

153

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While the Center for Historical Memory played an important role in collecting and publishing information on the conflict, its role was limited to generating “knowledge” rather than “acknowledgment” of violations. Other initiatives included the use of version libres as part of the Justice and Peace law, and in inquiry into the M19 “Palace of Justice” siege. Also, Law 1424 (2010) allowed paramilitaries in “legal limbo” in Colombia, accused of “non-serious crimes,” to seek to have their sentences suspended (indefinitely) if they participated in truth-seeking. These paramilitaries could agree to give a statement to the Center for Historical Memory in which they (1) gave confirmation that they were with a paramilitary movement, (2) gave the context of their participation, and (3) gave information of the crimes they know about. In return, none of the information could be used against them, their paramilitary structure, or family or close friends. In addition, they would not go to prison. They would also be required to give a statement of basic information to the Fiscalía. In 2014, the Center for Historical Memory had signed around 8,300 agreements and gathered up to 2,500 testimonies from paramilitaries. In total, around 24,000 registered. However, the procedure did not link to their integration so it could be difficult to track them down. No witness protection was offered under the system. Some of the paramilitaries were subsequently revealed to have committed serious crimes, but the process provided confidentiality so that the Center for Historical Memory was not required to refer them to the Fiscalía. Interview with staff member, Center for Historical Memory, Bogotá, May 16, 2014. See also Silke Pfeiffer. Transitional Justice for Rank-and-File Combatants in Colombia: Insights from Law No. 1424, NOREF (Norwegian Peacebuilding Resource Center), Report February 2015. Victims included were broadly defined to include victims of human rights and IHL violations since 1985, and encompass those who disappeared, were murdered, or suffered other serious violations, as well as those who were displaced. Unlike in the Justice and Peace Law, there was no need to demonstrate perpetrator responsibility to qualify as a victim. Victims may be granted damages, restitution of prior living conditions, social services, and special protections in legal proceedings. Victims of displacement may be entitled to land restitution (both physical and legal) or, if that is not possible, compensation. In the Victims Law, once a victim raises a complaint the burden of proof of landownership “inverts” to the landowner to show that the land was lawfully obtained. Various symbolic measures of reparations are also included in the law. The Victims Law also seeks to regulate corporate land purchases and holds corporations responsible for their role in human rights violations by paying into a Victim’s Reparation Fund. At the same time, it is not clear that the Victims Law can deliver on security; on social services for victims at the local level, or that it contributes to truthseeking. Summers. Colombia’s Victims’ Law, pp. 225–35. International Crisis Group. Transitional Justice and Colombia’s Peace Talks, Latin America Report No. 49, August 29, 2013, p. 5. This law is still under review by the Constitutional Court.

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The Victims Law has been criticized for constituting a transitional justice measure applied in an ongoing armed conflict.155 At the same time, Colombia is a context where many transitional justice measures are being pursued simultaneously. The number of victims of different kinds of violations, by different perpetrators, poses a challenge for the ICC in terms of scope and complexity. The Court deliberately stayed in the shadows in Colombia, a role that many Colombians agree has been useful. The utility of the Court was mostly as an instrument to pressure for non-repetition, rather than as an actual tool for investigation, prosecution, and punishment.156 The political origins of the conflict in Colombia resulted in a strong polarization of the society.157 The conflict has a strong urban–rural divide, with the violence being less noticeable in Colombia’s urban centers in recent years, as it was mostly restricted to remote rural areas. Supporters of former President Uribe and the Central Democratic Party favored lenience for paramilitaries and military, but warned that there should be “no impunity” for the FARC. Conversely, those who supported the peace process or who had leftist leanings were more willing to promote lenience for the FARC, arguing that it is a political actor, but found that the Justice and Peace Law was too lenient. Both camps used the ICC and international legal standards to argue in their favor. Human rights groups argued that the ICC should have intervened during the Justice and Peace Law era because the outcomes of the law were so limited as to warrant ICC intervention on a finding of “unwillingness.” Conversely, those who opposed lenience for the FARC in the peace process in Havana were quick to cite the existence of the ICC in favor of a view that such lenience is not legally permissible.158 2  The ICC in Colombia: El Salvador or “El Coco”? In Colombia, many elites knew about the ICC because of the prominent debates around the peace negotiations with the FARC in Havana. But the ICC was known even among persons from rural or remote areas affected by the conflict. In November 2013, the Ministry of Justice in Colombia held a round of consultations with around 170 victim representatives from all over 155

156 157 158

Silvia Delgado Maldonado. Political Participation: An Implied Condition for Enduring Peace in Colombia, International Law: Revista Colombiana de Derecho Internacional. Bogotá (Colombia) No. 23, pp. 267–318 (July–December 2013) p. 270. Interview with Congressman, Bogotá, May 14, 2014. Maria Paula Saffon and Rodrigo Uprimny. Uses and Abuses of Transitional Justice in Colombia, PRIO Policy Brief 6 (2007). Interview with Alejandro Ordóñez, Inspector General, Bogotá, May 15, 2014; Interview with Carlos Holmes Trojillo, Vice Presidential candidate, Bogotá, May 16, 2014.

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Colombia. Victim representatives interviewed in the margins of the conference generally had rudimentary knowledge, but a positive view of the ICC.159 They said that they had lost faith in Colombian justice and the government, and expressed hope that the Court could apply pressure to prompt the national justice system to do more.160 A number of victim representatives said they do not feel adequately protected in Colombia,161 that the Colombian system is not able to deal with government actors, the military and paramilitaries, and drug traffickers, and that investigations generally stop at the lower levels.162 One victim said that the role of the ICC is important to deal with crimes that could not be judged or sentenced adequately under Colombian law, such as crimes against humanity or disappearances.163 Victim representatives expressed hope that the ICC would open an office in Colombia, so that they could have direct contact with the Court164 and show the Court “the reality of what is happening in the country, since the government does not show the full truth.”165 Some victim representatives said that the functions and operations of the Court are not advertised and that “the mechanism to contact them is not known.”166 The victim representatives that had heard of the Court had only heard about it indirectly, via the media, and had never met a Court representative.167 Some had the impression that the Court meets only with the government.168 As described in Chapter 3, judges of various courts in Colombia have referred to ICC jurisprudence in their decisions. At the same time, misperceptions are common even among judicial actors. For instance, the Prosecutor-General 159

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Out of the nine victims interviewed, eight spoke positively of the Court. One had not heard of it: Interview with victim representative from Santander, Bogotá, November 8, 2013. See, for example, interview with victim representative from Tolima, Bogotá, November 8, 2013. Interview with victim representative from ChocÓ, Bogotá, November 7, 2013. Interview with victim representative from Amazonas, Bogotá, November 7, 2013. Interview with victim representative from ChocÓ, Medellín, Bogotá, November 8, 2013. Interview with victim representative from Riohacha, Bogotá, November 8, 2013. Victim representatives said that they do not trust the public defenders or regional prosecutors, or even the Ministry of Justice, which had invited them to the conference. Interview with victim representative from ChocÓ, Bogotá, November 7, 2013. Interview victim representative from ChocÓ, Medellín, Bogotá, November, 2013. Interview with victim representative from Neiva, Bogotá, November 8, 2013; interview with victim representative from Caldas, Bogotá, November 8, 2013. Interview with victim representative from Caldas, Bogotá, November 8, 2013. Interview with victim representative from ChocÓ, Bogotá, November 7, 2013; interview with victim representative from Amazonas, Bogotá, November 7, 2013. Interview with victim representative from Amazonas, Bogotá, November 7, 2013. Interview with second victim representative from Amazonas, Bogotá, November 7, 2013. Interview with second victim representative from Amazonas, Bogotá, November 7, 2013. Interview with victim representative from Tolima, Bogotá, November 8, 2013. Interview with second victim representative from Amazonas, Bogotá, November 7, 2013.

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was heard to say that the ICC can prosecute disappearances that predate the Rome Statute, under the doctrine of continuous crimes.169 Some members of the judiciary were said to “fear” judicial oversight by the ICC. Certain NGOs perceived the Court as a “paper tiger” after its refusal to intervene in the Justice and Peace process, in spite of the many communications that were submitted to it.170 Even Constitutional Court judges expressed fears that if they would make a decision that goes against the opinion of the ICC Prosecutor, they could themselves be accused in The Hague of promoting impunity.171 As is likely the case in other countries, ordinary Colombians do not ­necessarily have a detailed awareness of the Court’s structure or ­functions. For instance, many accepted at face value President Uribe’s ­announcement that he had referred Hugo Chávez to the ICC. At the same time, Colombians consider their country as a nation that is governed by the rule of law. This self-perception contributes to a motivation to avoid external review by various international courts and tribunals, such as the IACHR and the ICC. Some actors in Colombia had trouble distinguishing between the different roles of the Inter-American Court and the International Criminal Court, and generally perceived their roles as similar.172 The first Prosecutor, Luis Moreno Ocampo, often featured in the Colombian media commenting on Colombia’s legal system.173 Likewise, the leaked letters of the second Prosecutor to the Constitutional Court of Colombia were seen as an exercise of “advisory capacity” similar to the role of the Inter-American Court.174 Moreover, an International Court of Justice litigation between Colombia and Nicaragua over the Archipelago de San Andrés y Providencia and Quita Sueño Bank islands and territorial shelf, resulting in a judgment in 2012 that was perceived as a victory for Nicaragua, contributed to a negative perception of international justice in Colombia.175 Some Colombians referred to the ICC as “El Coco,” which is a “boogey man” or “devil” used to scare children. Colombians refer to the fact that the “ICC will come” without knowing what it means.176 The result is that 169 170 171 172 173 174 175 176

Interview with OHCHR representative, Bogotá, November 9, 2013. Interviews in Bogotá, May 2014. Anonymous, Bogotá, November 10, 2013. Interview with OHCHR representative, Bogotá, November 9, 2013. Ibid. Ibid. Interview with former Deputy Minister of Justice, Bogotá, May 14, 2014 Interview with OHCHR representative, Bogotá, November 9, 2013.

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the Court is sometimes presumed as more powerful than it actually is. This in itself may account for the indirect impact of the Court because Colombians presume it is an all-powerful actor that can remove people to The Hague.177 D  Afghanistan: The Court’s Situation of Last Resort Afghanistan, the so-called Graveyard of Empires, is a country that the Court avoided between 2003 and 2017. The conflict in Afghanistan lasted for decades.178 In 1979, the Soviets invaded Afghanistan to assist the struggling PDPA government. Widespread violations prevalent during the People’s Democratic Party of Afghanistan/Soviet period included widespread illegal detention, torture, extra-judicial killings, in particular by the notorious KHAD (Khidamat-e Ittila’at-e Dawlati or State Information Service); imprisonment in the infamous Pul-e-Charkhi prison and disappearances; massive arial bombardments of cities, particularly Herat and rural areas; and large-scale massacres.179 The resistance, known as the Mujahideen, also engaged in violations including killings of government officials or their relatives and attacks on girls schools or on civilians associated with rival factions. After the withdrawal of Soviet forces in 1989 and the eventual collapse of the Najibullah government in 1992, violations continued unabated as rival Mujahideen factions fought for control over the government and Kabul. Chaos and a complete breakdown of the state resulted in further killings, lootings, highway robbery, and incidents of torture and rape.180 The Taliban period brought no reprieve, although particularly in the South, the Taliban were initially welcomed as a law and order movement and their attempts to 177 178

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Ibid. Afghanistan Analysts Network, Patricia Gossman and Sari Kuovo. Tell Us How This Ends: Transitional Justice and Prospects for Peace in Afghanistan, February 2013, citing Olivier Roy. Islam and Resistance. Cambridge University Press (1990) p. 95. A list of 5,000 Afghans who disappeared during the early communist period was released by Dutch investigators. See Emma Graham-Harrison, Names of 5000 Afghans Killed in Purges Published 35 Years On, September 20, 2013. www.theguardian.com/world/2013/sep/20/names-afghans-killed-purgespublished. See also, Afghan Independent Human Rights Commission. Death Lists to End Uncertainty of Relatives, Rotterdam, September 2013. www.aihrc.org.af/en/daily-reports/1730/ afghanistan-death-lists-to-end-uncertainty-of-relatives.html. A well-known massacre of up to 1,000 villagers took place in Kerala in Kunar Province in March and April 1979: Afghanistan Justice Project. Casting Shadows: War Crimes and Crimes against Humanity, 1978–2001, July 2005. http://afghanistanjusticeproject.org. A particularly notorious incident in this period include the massacre of Hazara civilians at Afshar in Kabul, in February 1993, by Shura-ye Nazar and Ittihad-e Islami. Violations included executions, torture, and rape. Afghanistan Justice Project. Casting Shadows.

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reign in the unruly warlords governing Afghanistan. But soon they showed their highly repressive face, severely curbing the rights of women and men. Their reign was marked by persecution of the Hazara as well as a number of large-scale massacres, notably in Mazar-e-Sharif in August 1998, and in the Central Highlands, Bamiyan, in 2001.181 The Taliban themselves were also the victims of massacres, including in Mazar-i-Sharif in May 1997 and at Dash-iLeili in December 2001.182 One publication on the rule of law in Afghanistan from 2011 uses the title, “Missing in Inaction.”183 While Afghanistan is party to a number of international treaties, violations remained common.184 Afghanistan’s legal system remained weak in spite of two decades of rule of law programming on behalf of the international community to strengthen it. In light of these challenges, it is not so surprising that the Court was slow to open an investigation in Afghanistan. Knowledge of the ICC was low even among key stakeholders. Several MPs interviewed in 2014 did not know that Afghanistan is a State Party to the ICC, neither did the Deputy Chief Judge of the Supreme Court.185 Few materials on the ICC existed in Dari (Afghanistan’s Farsi dialect) and even fewer in Pashtu. Most materials in Farsi dealing with 181 182

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See Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends. See section on “War Crimes and Human Rights Violations in Afghanistan.” At Mazar-i-Sharif, around 3,000 Taliban prisoners were summarily executed by Jombesh soldiers. Afghanistan Justice Project. Casting Shadows. On the Dasht-i-Leili massacre, see Barnett Rubin. Transitional Justice and Human Rights in Afghanistan. International Affairs, Vol. 79, No. 2 (2003) p. 574. Physicians for Human Rights investigated the massacre. Some reports allege US Special Forces as present at the scene of the massacre. Whit Mason. The Rule of Law in Afghanistan: Missing in Inaction. Cambridge University Press (2011). Afghanistan has ratified the following international instruments: the 1949 Geneva Conventions (ratified by Afghanistan in 1956); the Convention on the Prevention and Punishment of the Crime of Genocide (ratified by Afghanistan in 1956), and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (ratified by Afghanistan in 1987). International law is relevant to the Afghan legal order according to Article 7 of the Constitution (2004), which was also found in previous Constitutions, going back to 1964. According to this article, Afghanistan can be said to resemble a monist rather than dualist legal system. This would mean that international law may be directly applicable in Afghanistan. While the Constitution is not explicit on customary international law there is no jurisprudence on the issue, the spirit of the provision can be said to include general provisions of international law including custom. A Supreme Court judge voiced the view that while the Ministry of Foreign Affairs had signed a convention on international crimes, this had nothing to do with The Hague: Interview with Supreme Court Judge, Kabul, March 18, 2014. The five Parliamentarians and the Supreme Court judge whom the author interviewed all showed scant knowledge of the ICC, having heard of it but not knowing its implications or whether Afghanistan is a State Party.

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ICC originate from Iran, which has seen some scholarship on the issue.186 Since it became a State Party, a handful of public discussions took place on the ICC in Afghanistan, most of them immediately after ratification in 2003.187 The ICC received little media coverage. At the same time, human rights activists and victim organizations expressed strong support for ICC involvement in Afghanistan.188 These groups considered the ICC as the only viable alternative to an otherwise corrupt and untrustworthy domestic legal system.189 The idea of a global court that can remove perpetrators and spoilers from the scene was seen as attractive in Afghanistan.190 Some organizations argued that ICC involvement could curb crimes of the Taliban.191 The International Crisis Group in 2010 urged the ICC to open an investigation against the Taliban, in the aftermath of the arrest of Mullah Baradar in March 2010.192 (Mullah Baradar was released from custody under the reconciliation policy in September 2013. He later became a leading member of the Taliban delegation in Doha.) Human Rights Watch in 2013 argued that the ICC “should expedite a fact-finding mission to Afghanistan to collect testimony and improve its information exchange with Afghan organizations, government bodies and relevant international entities.”193 Some urged action, before a possible settlement with the Taliban.194 Proponents of this strategy argued that the Taliban would be sensitive to accusations that were leveled at 186 187 188

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Interview with Representative from Global Rights, Kabul, March 17, 2014. Interview with Director of Afghanistan Human Rights and Democracy Organization, Kabul, November 22, 2013. At an event titled “The Afghan ‘Death Lists’: Legacies of Past Violations and the Future of Afghanistan,” held in The Hague on March 4, 2014, several victim groups expressed hope that the ICC would get involved in Afghanistan. The event was organized by the Federation of Afghan Refugee Organizations in Europe, and around seventy persons were in attendance. Interview with Afghan Representative from Afghanistan Justice Sector Support Program, Kabul, November 20, 2013. Interview with Researcher 2, Afghanistan Analysts Network, Kabul, November 20, 2013. Interview with Representative from Afghanistan Forensic Science Organization, Kabul, November 20, 2013. Dallas Mazoori. Conference Paper, Justice for All, February 2012 (unpublished). On file with the author. Interview with AIHRC Commissioner, Kabul, November 20, 2013 (this member is now Attorney General of Afghanistan). Candice Rondeaux and Nick Grono. Prosecuting Taliban War Criminals, New York Times Op-Ed, March 23, 2010. Human Rights Watch. Afghanistan: ICC Prosecutor Finds Grave Crimes, December 1, 2013. See for instance, interview with Director of Afghanistan Human Rights and Democracy Organization, Kabul, November 22, 2013.

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them.195 However, this is contrary to the views expressed by a former senior Taliban leader: You have to understand the religious mentality of the new zealous youth. They wish to find paradise through martyrdom and suicide attacks. They look down on older Taliban leaders, who they say are not certain to go to paradise. The insurgency is made up of religious students, who are studying in seminaries with a curriculum that is 800 years old. Ninety-nine percent do not know about international conventions and they do not care.196

However, civil society activists also highlighted the fact that investigations that target only the Taliban may appear too partial.197 Civil society organizations in Afghanistan felt isolated in advocating for the Court.198 They came under pressure as a result of US hostility against the ICC and particularly in the aftermath of US sanctions against the Court. Afghan NGOs raised money on a project basis, mostly from foreign sources, and this inhibited their ability to build up effective and sustainable programs on monitoring and reporting human rights violations.199 NGOs found that donors in Kabul showed little interest in ICC-related activities.200 The ICC came briefly into focus in Afghanistan when the first Prosecutor held a press conference on September 9, 2009 to say that he was considering opening an investigation in Afghanistan.201 This announcement followed the bombing by German pilots of two petrol tankers in Kunduz on September 4, an incident in which ninety-one civilians were killed.202 The ICC press conference raised hope among some Afghans that the ICC would proceed, but the Prosecutor specified he would open an investigation only if 195

Interview with Director of UNAMA’s Human Rights Division, Kabul, November 21, 2013. Interview with Abdel-Hakim Mujahid, High Peace Council, Kabul, March 18, 2014. 197 Interview with Director of Afghanistan Human Rights and Democracy Organization, November 22, 2013. Interview with Researcher, Afghanistan Analyst Network, Kabul, November 22, 2013. 198 Interview with Researcher, Afghanistan Analysts Network, Kabul, November 20, 2013. See also Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends, p. 42. 199 Interview with Researcher, Afghanistan Analysts Network, Kabul, November 20, 2013. 2 00 See for instance, interview with Director of Afghanistan Human Rights and Democracy Organization, Kabul, November 22, 2013. 2 01 Louis Charbonneau. ICC Prosecutor Eyes Possible Afghanistan War Crimes, September 9, 2009. www.reuters.com/article/2009/09/09/us-afghanistan-warcrimes-idUSTRE58871K200 90909. 2 02 The tankers had become stuck in a riverbed, and civilians had surrounded them to tap fuel. Allegedly, US pilots had suggested to the German pilots to do a fly-over to scare away civilians, but this advice was ignored, raising questions about whether the airstrike constituted a breach of international humanitarian law, which in turn caused a political furor in Germany. See Deutsche Welle. Bonn Court Reviews 2009 Kunduz Air Strike, October 30, 2013. www.dw.de/bonn-court-reviews-2009-kunduz-air-strike/a-17194997. 196

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the Security Council or the government of Afghanistan would refer the case to the ICC.203 This rendered the entire question moot, since neither a Security Council nor a government referral were realistic at the time. In 2011, NGO representatives visited the ICC with a petition with suggestions for better collaboration and urged the OTP to put in place mechanisms for more effective communication, including the appointment of a focal point.204 NGOs feared that the ICC may not be able to support or protect them in an environment where local NGOs faced high threat levels.205 In 2020, after the opening of the investigation and in the face of increased US hostility to the Court, threats against NGOs grew, and it was increasingly difficult to identify the sources of the threats. 1  Local Priorities: Justice for Crimes of the Past Nowhere were the limitations of the ICC’s temporal jurisdiction as apparent as in Afghanistan. Afghanistan is one of the world’s most protracted conflicts, with an almost unparalleled scope of victims.206 Prior to the US-led military operation in 2001, estimates are that the war in Afghanistan had caused one million deaths. Around seven million Afghans sought refuge in Iran, Pakistan, and elsewhere. While the vast majority of the crimes in Afghanistan are not under the temporal jurisdiction of the ICC, war crimes and crimes against humanity were committed on a large scale in Afghanistan since the Saur Revolution in 1978. Many of the suspected perpetrators continued to wield power.207 The ICC’s temporal jurisdiction started on May 10, 2003, although a preliminary examination was only opened in 2007. The pervasive widespread impunity and continued power of past warlords who were in government positions translated into opposition to accountability for war crimes and crimes against humanity, whether committed in the past or more recently. The debate on justice in Afghanistan after 2001 was largely focused on accountability for the enormous crimes of the past and on how to achieve “transitional justice.” But impunity in Afghanistan was so 2 03

Charbonneau. ICC Prosecutor Eyes Possible Afghanistan War Crimes. Interview with Director of AHRDO, November 22, 2013. See also Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends, p. 43. 2 05 Interview with Director of AHRDO, Kabul, November 22, 2013. 2 06 Ibid. 2 07 Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends. See section on “War Crimes and Human Rights Violations in Afghanistan.” See also Conflict Mapping Report by the Office of the UN High Commissioner for Human Rights (www.flagrancy .net/ salvage/ UNMappingReportAfghanistan.pdf). See also the Afghanistan Justice Project. Casting Shadows. 2 04

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widespread that at least six of the candidates for President or Vice President in the elections held in 2014 were alleged to have committed war crimes or crimes against humanity.208 While the topic of their liability came up during their presidential campaigns, apart from General Dostum who issued an apology, other candidates categorically denied responsibility, including in particular Abdel-Rassoul Sayyaf and Ismail Khan. After the conclusion of the Bonn Agreement in December 2001, attempts were made to pursue transitional justice in Afghanistan, but none came to fruition. The Bonn Agreement, the settlement made between allies of the United States in the absence of the Taliban, was silent on the issue of transitional justice, although a draft affirmed the principle of “accountability.”209 Nonetheless, even this clause provoked severe criticism from certain Northern Alliance leaders, including political leaders and former Mujahideen Rabbani and Sayyaf, who said that this was disrespectful to the “liberators” of Afghanistan and that “foreigners would use the agreement to disarm them.”210 The clause was deleted. The Bonn Agreement served to empower and legitimize Northern Alliance warlords who had sided with the United States and its allies in the fight against the Taliban and Al-Qaeda.211 One analyst has called the unquestioning incorporation of these warlords into the new Afghan political order “the possibly single most important point that prevented Afghanistan from moving towards democracy and put it into the current quagmire.”212 At the Emergency Loya Jirga,213 a conference held to legitimize the postBonn transitional government in June 2002, a regulation required candidates to sign an “eligibility pledge” that they had not been involved in war crimes, crimes against humanity, or drug trafficking, but it was not successfully enforced.214 The United States in particular advocated an “inside the tent” 2 08

Afghanistan Analyst Network representative statement at International Seminar on Peace, Reconciliation and Transitional Justice, Kabul University, November 16–18, 2013. 2 09 In line with UN practice, the original UN-drafted Agreement stated that the interim administration would not be able to grant amnesty for war crimes or crimes against humanity. Lakhdar Brahimi, himself an Algerian, warned the participants against the dangers of an amnesty, based on his own experience. See also, Rubin, Transitional Justice and Human Rights in Afghanistan, p. 571. 210 Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends, p. 17. See also, Rubin, Transitional Justice and Human Rights in Afghanistan, pp. 571–72. 211 Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends, pp. 14–17. 212 Ibid., at p. 17 citing Thomas Rutig. 213 Loya Jirga is a name for Grand Assembly in Pashto. 214 Afghanistan Independent Human Rights Commission. A Call for Justice: A National Consultation on Past Human Rights Violations in Afghanistan (2005) p. 43. Human Rights Watch. Seductions of “Sequencing”: The Risks of Putting Justice Aside for Peace (December 2010) p. 9.

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approach, and up to fifty known warlords participated in the Emergency Loya Jirga.215 Later on, attempts to introduce vetting criteria into senior political appointments, through an advisory board on senior appointments to advise President Karzai, also failed. In 2002, the Afghan Independent Human Rights Commission was given a mandate over transitional justice.216 The AIHCR was one of the successes of post-Bonn Afghanistan. In 2005, it completed a widespread consultation on transitional justice summarized in the report “Call for Justice.” The report included the views of 4,151 respondents in a quantitative survey, complemented by focus group discussions with over 200 participants, administered in thirty-two of Afghanistan’s thirty-four provinces over an eight-month period.217 The report did not mention the ICC, but showed widespread public support for prosecutions for war crimes of the past. Up to 69% self-identified themselves or immediate family members as victims of crime during Afghanistan’s conflict. Up to 76.4% thought that bringing war criminals to justice would improve stability in Afghanistan. However, 57.8% said that they did not trust the Afghan justice system, whereas 38.6% said that they did (emphasizing that it was based on Islam).218

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Accusations of war crimes once more arose in the Constitutional Loya Jirga in December 2003, where a female delegate, Malalai Joya, famously spoke out against Northern Alliance warlords present in the gathering, calling them “war criminals” and asking them to be tried by a national or international court. She was removed from the assembly for criticizing the Mujahideen. Afghanistan Analysts Network, Gossman, and Kuovo. Tell Us How This Ends, p. 17. Ahmad Nader Nadery. Peace or Justice? Transitional Justice in Afghanistan. The International Journal for Transitional Justice, Vol. 1 (2007) p. 176. See Afghanistan Independent Human Rights Commission. A Call for Justice; Nadery. Peace or Justice? Transitional Justice in Afghanistan. The main problems identified with the justice system were lack of information, lack of speedy resolution of cases, lack of defense lawyers and gender balance. Judges were generally viewed as corrupt or unprofessional. For this reason, up to 49.6% of respondents surprisingly supported a mixed court of Afghan and international judges to try war criminals; whereas 27.6% were in favor of a fully international court and 21.5 were in favor of a court composed of Afghan judges. Afghanistan Independent Human Rights Commission, A Call for Justice. On the other hand, respondents in focus groups said that if possible, international judges should come from other Islamic countries, but not those involved in the conflict such as Pakistan, Iran, or Saudi Arabia. They also highlighted that the role of internationals would be most useful as observers or in a supporting capacity, and they mentioned the United Nations in this regard. Only about 5% of focus group participants had heard of international criminal tribunals, but most felt that domestic law should apply and that trials should be held in Afghanistan (79.5%). Many respondents believed that the international community had supported warlords (41.2%), nearly the same percentage as those who believed that the international community had taken steps to limit their power (40.4%).

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The Call for Justice report led to sufficient pressure on the government to result in the ratification of an Action Plan on Peace, Justice, and Reconciliation in 2006.219 The Action Plan was a high-water mark in the search for accountability in Afghanistan, but criminal justice was not mentioned explicitly, as it was deemed too sensitive.220 Shortly after the Action Plan was passed, the search for accountability suffered another serious setback. Human Rights Watch issued a press release calling for the prosecution of certain individuals in early 2007.221 The backlash to this call for accountability resulted in the eventual passage of the National Reconciliation, General Amnesty and National Stability Law. This law dealt a serious blow to accountability efforts in Afghanistan. In another blow, an extensive report on war crimes and crimes against humanity from 1978 to 2001 produced by the AIHRC, called the “Conflict Mapping Report,” was not allowed to be published by the Afghan Cabinet in 2012.222 In this very challenging context, the first official visit of the OTP to Afghanistan took place on November 16–18, 2013.223 Contacts between the Court and Afghan government institutions, however, remained limited.224 Afghanistan did not attend the Review Conference in 2010.225 The AIHRC expressed willingness to share information with the ICC but noted that there was no clear

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www.aihrc.org.af/media/files/Reports/Thematic%20reports/Action_Pln_Gov_Af.pdf. The Plan had five components, including (1) acknowledgment of the suffering of the victims; (2) building credible state institutions, including through vetting programs; (3) truth-seeking and documentation; (4) promoting measures of peace and reconciliation; and (5) the establishment of reasonable and effective accountability mechanisms. As part of the last component, the Action Plan provided almost prophetically that: “considering the lofty values of the sacred religion of Islam and in accordance with internationally recognized standards; the perpetrators war crimes, crimes against humanity and other serious human rights violations will not be ignored.” The author was involved in the policy discussions in framing the Action Plan in Afghanistan. Human Rights Watch. Afghanistan: Justice for War Criminals Essential to Peace, December 12, 2006. The author assisted the AIHRC in compiling this 1,000 page report between 2009 and 2010. Afghan Analyst Network, Ahmed Rashid. The Cloak of Silence: Afghanistan’s Human Rights Mappings, July 27, 2012. A member of the JCCD attended a conference at Kabul University on transitional justice. International Seminar on Peace, Reconciliation, and Transitional Justice, Kabul University, November 16–18, 2013. The conference was attended by around eighty representatives from the Afghan Independent Human Rights Commission, civil society, and the media. Niamatullah Ibrahmi. The Vacant Seat of Afghanistan at the ICC: A Short Report on the ICC Assembly of States Parties (ASP), The Hague, Netherlands, November 2009. www .watchafghanistan.org/article017.htm. Afghanistan was represented at the 12th Assembly of States Parties in The Hague, however, and it reaffirmed its support to the Rome Statute on that occasion.

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communication channel in place.226 On its side, the OTP pointed to security and budgetary constraints on its ability to engage in Afghanistan.227 All of this was prior to the opening of the investigation which is described in previous chapters. 2  Independence: A Court under the Influence of Western Powers In late 2013, the OTP for the first time found that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had occurred in Afghanistan, some seven years after first commencing a preliminary examination, but it failed to include international forces in its findings. This finding was met with disbelief in Afghanistan, as there was a widespread perception that international forces did in some cases engage in the gratuitous killing of Afghan civilians.228 Among civil society activists that support the ICC, there was a perception that the Court’s reluctance to engage in Afghanistan was due to political factors, including in particular the presence of the US and NATO. Another factor was presumed to be the reluctance of the Afghan authorities to pursue accountability for the Taliban and anti government forces in the current political climate and in light of the amnesty law.229 The perception of the Court was that NATO was “too powerful” while the Taliban were “out of reach.”230 In any case, the United States insisted on immunity of its forces, both under the original Status of Forces Agreement (SOFA) concluded in 2003, and as part of the 2013 discussions on the Bilateral Security Agreement.231 The SOFA from May 2003 stated that “The Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal [including the ICC], or any other entity without consent of the U.S. government.” The Bilateral Security Agreement stated at Article 13(5): “Afghanistan and the United States agree that members of the force and of the civilian component may not be surrendered to, or otherwise transferred to, the custody of an international 2 26 2 27

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International Seminar on Peace, Reconciliation and Transitional Justice, Kabul University, November 16–18, 2013. Interview with AIHRC Commissioner, Kabul, November 20, 2013. The following modalities for future cooperation between the Commission and the ICC were explored: the AIHRC offered to pay for OTP visits, to hold events to build capacity on the ICC among government actors and civil society, and to promote Afghan internships at the ICC. Interview with Researcher, Afghanistan Analysts Network, November 23, 2013. Interview with Director of Afghanistan Human Rights and Democracy Organization, November 22, 2013. Interview with Director of Afghanistan Watch, November 22, 2013. Interview with Director of Afghanistan Watch, November 22, 2013. Interview with Representative from Afghanistan Forensic Science Organization, November 20, 2013.

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tribunal or any other entity or state without the express consent of the United States.” Michael Newton argued that this meant that Afghanistan cannot delegate criminal jurisdiction of US personnel to the ICC.232 The first Prosecutor has argued too that the SOFA may be the “best US option” if the goal is to avoid ICC investigation and said that Afghanistan should present the ICC with the SOFA to argue that there is no jurisdiction under Article 19(3).233 These debates took place prior to the opening of an investigation, during which time US Secretary of State Mike Pompeo referred to the ICC as a “kangaroo court.” The widespread impunity for crimes of the past also contributed to an antipathy to an accountability mechanism such as the ICC. Accountability and transitional justice were depicted by warlords as a “Western” concept, and those who promoted them were accused of being “Western agents.”234 Since transitional justice and the ICC were promoted by the same actors (the AIHRC, the United Nations, and civil society), they were perceived of as part of the same package by some warlords in Afghanistan.235 Powerful Mujahideen who felt threatened by the ICC sought to portray it as an instrument of foreign powers and not in line with Islamic traditions.236 In the words of one Member of Parliament, a member of Jamiat: “When the Russians were here, the West was on our side and made us out to be heroes. After the Bonn Agreement, they called us warlords.”237 Former Mujahideen argued that they liberated Afghanistan from the Soviets and do not deserve to be treated as war criminals, although some did acknowledge that what happened during the Kabul civil war (1992–1996) is not defensible under the rubric of liberation.238 Still, the AIHRC was conceived of as anti-Mujahideen in its push for transitional justice, and opponents often recalled the communist past of the former Head of the Commission, Dr. Sima Samar, or her Hazara identity. In the words of one Afghan MP: “If you want to destroy a process, don’t attack it directly, but just defend it poorly.”239 Some Mujahideen 232 233 234

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Cited in Luis Moreno Ocampo. The ICC’s Afghanistan Investigation: The Missing Option. Lawfare blog, April 24, 2017. Ibid. Ahmad Nader Nadery describes how some were able to depict transitional justice initiatives as aimed against Mujahideen: Ahmed Nader Nadery. Peace of Justice? Transitional Justice in Afghanistan. The International Journal of Transitional Justice, Vol. 1 (2007) p. 177. Interview with MP from Panjshir, Kabul, March 17, 2014. Interview with Afghan Representative from Afghanistan Justice Sector Support Program, Kabul, November 20, 2013. Interview with Farid Hamidi, AIHRC Commissioner, Kabul, November 20, 2013. Interview with Member of Parliament from Panjshir from Jamiat-e-Islami, Kabul, March 18, 2014. Interview with Member of Parliament from Herat, Kabul, March 17, 2014. Interview with MP from Badghis, Kabul, March 16, 2014.

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believed that the National Reconciliation, General Amnesty, and National Stability Law would shelter them against the ICC. For instance, when General Dostum’s Secretary, Zaki, was asked whether General Dostum would submit himself to an international court for the crimes for which he apologized when he joined the government as vice president in 2014, he replied that General Dostum was protected by the amnesty.240 Transitional justice and human rights enjoyed strong support among Afghan women and minorities, such as the Hazara population.241 Many wondered, however, how women and minorities would be affected by peace negotiations with the Taliban, particularly if these would result in a power sharing government. Some took the view the Taliban would need to change if it were to play a role in Afghanistan today. One female MP was optimistic: She pointed to the fact that Hezb-i-Islami, which joined the government, was pleading for women’s votes, when their slogan in the 1990s was “women at home or in the grave.”242 Some argued that members of the Taliban should be tried.243 As mentioned in previous chapters, the Trial Chamber’s rejection of the Prosecutor’s request to open an investigation was believed by many inside and outside Afghanistan to be a response to US pressure. However, the decision of the Appeals Chamber to open an investigation served to refute that confirmed.

III Conclusion In order to optimize demonstration effect and to maximize its expressivist function, the Court should be viewed as impartial, independent, and relevant to local justice struggles. However, this chapter argues that the “derivative expressivism” of the Court has sometimes led to negative perceptions, which in turn diminish demonstration effect. The Court is not always perceived as a deliverer of justice. The International Criminal Court represents a limited intervention to combat impunity in a series of prolonged and complicated conflicts. The vast majority of crimes in the countries where the ICC currently operates are outside of its jurisdiction. In Uganda, the conflict had lasted for twenty years when the Court intervened; Libya had experienced forty-two years of 2 40 2 41 2 42 2 43

International Seminar on Peace, Reconciliation and Transitional Justice, Kabul University, November 16–18, 2013. Interview with female MP, Kabul, March 19, 2014; interview with Hazara MP, Kabul, March 18, 2014. Interview with female MP, Kabul, March 19, 2014. Interview Kabul, March 18, 2014.

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dictatorship; Afghanistan had seen forty years of continuous conflict; and in Colombia the conflict was almost fifty years in duration. The narrative of the conflict in the arrest warrants of the Court can seem simplistic snapshot. In selecting which cases to pursue, the ICC is often endorsing only a fraction of a long and complex narrative.244 This gives rise to perceptions that it is onesided or biased. Negative perceptions may also stem from the fact that the Court is externally imposed or that it contravenes the “self-narrative” of the population in relation to the conflict. Misunderstanding often flows both ways, and international actors sometimes dismiss local alternatives as not valid.245 Many other factors may influence the perceptions of the Court due to its “derivative expressionism.” Once the Court intervenes in a situation by way of an investigation, perceptions can complicate further due to the constraints under which it operates. In Uganda and Libya, perceptions of the Court were shaped by very limited numbers of highly selective arrest warrants which focused on one side of the conflict; the quick opening of an investigation without a more developed understanding of the local narratives or dynamics; and insufficient in-depth knowledge of context. Local justice demands are shaped by local dynamics. Law in the form of the ICC is not always perceived as justice. This is apparent from the frequent divergence or discord between what the Court is able to offer and what local populations are demanding in terms of justice. Local demands often focus on what will concretely improve the lives of victims. The ICC also suffers from perceptions that it is primarily guided by a Western agenda. In Uganda, the Court is perceived among some actors as “Western-style retributive justice.” In Afghanistan, it was perceived to be subjugated to the United States and its NATO allies. In Libya, the Court was perceived to have its own agenda in seeking custody over Abdullah 2 44

2 45

Marieke De Hoon. The Future of the International Criminal Court: On Critique, Legalism, and Strengthening the ICC’s Legitimacy. International Criminal Law Review. Vol. 17, No. 4 (2017) pp. 591–614. Avocats Sans Frontiers. Africa and the International Criminal Court: Mending Fences, July 2012, p. 8: “Uganda had the opportunity to present arguments declaring that despite the referral it had the capacity to try the suspected indictees, a move it did not pursue on the basis of sound legal assessments of its national judicial processes.” Kai Ambos. Expanding the Focus of the “African Criminal Court,” in Ashgate Research Companion to International Criminal Law: Critical Perspectives, edited by Y. Mc Dermott, N. Hayes, and W. A. Schabas, Ashgate (2012): “The implementation of a International Crimes Division at the High Court in Uganda, or the establishment of a hybrid court as proposed by the AU in Sudan, did not go much beyond the drafting of the corresponding legal provisions and did not produce any concrete results with regard to possible prosecutions or trials.”

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Al-Senussi in order to cater to Western intelligence interests in the Lockerbie case. In Colombia, the Court was referred to as “El Coco,” a monster. All of these hint at an often-voiced critique of the Court that it is an external imposition. Perceptions among affected populations are likely to remain mixed. For many, the Court may remain remote or irrelevant in terms of being incapable of addressing local justice concerns. This is reminiscent of the ICTY, about which Ralph Zacklin wrote in 2004 that it was perceived as too remote from victims and affected populations; and that victims misunderstood its mandate to be about uncovering the fate of loved ones, providing an official history, and giving compensation.246 The ICC, with its Hague-based processes, is even more remote culturally and geographically from the many countries under its purview. The SCSL was in danger of being a “spaceship phenomenon” but had some distinct advantages over the ICC, including its on-the-ground presence and extensive outreach activities.247 The ICC risks hovering in a different orbit from the affected populations that it is meant to serve.248 This may be why it is not universally perceived as an instrument of justice. 2 46 2 47 2 48

Ralph Zacklin. The Failings of Ad Hoc International Tribunals. Journal of International Criminal Justice, Vol. 2 (2004) pp. 541–45. Tom Periello and Marieke Wierda. The Special Court for Sierra Leone under Scrutiny, International Center for Transitional Justice (2006). Rabkin writes: “The most compelling justice comes from a court system which can claim to speak in the name of the society where the victims suffered.” In the proper setting, criminal punishment says: “The community acknowledges that a terrible wrong was done and state organs, in the name of this society, are committed to punishing this wrong, to prevent, as much as possible, such wrongs from recurring.” Jeremy Rabkin. Global Criminal Justice: An Idea Whose Time Has Passed. Cornell International Law Journal, Vol. 38 (2005) pp. 753–75.

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8 Conclusion: From Law to Justice

Law as a political instrument can play its most significant part in societies in which open group conflicts are accepted and which are sufficiently stable to be able to absorb them and settle them in terms of rules. As an instrument of terror, of coercive persuasion, and of revolutionary re-education, it is all but useless. Judith Shklar, Legalism It is the spirit and not the form of law that keeps justice alive. Earl Warren, US Supreme Court Judge

I Introduction This study shows that the ICC is having an impact as a system of law. It presents evidence of the normative impact of the Court on legal systems and institutions in a number of diverse countries. Several countries subject to this study adopted new laws on Rome Statute crimes or established new specialized institutions to investigate or prosecute these crimes. Several countries held domestic trials for Rome Statute crimes. These changes can also be seen in countries outside of the scope of this study. Moreover, two negotiations were held in the shadow of the ICC, first in Uganda and then in Colombia. These two examples show that the Rome Statute and the ICC did have a measurable transformative effect in both situations. The involvement of the ICC resulted in more attention to accountability and the perspectives of victims. In Uganda, the ICC intervention led to an increased international focus on the conflict and affected populations than might otherwise have been the case. In Colombia, victims themselves directly participated in the negotiations in Havana and confronted FARC and government leaders. In Uganda and Colombia, models of “peace with punishment” found their way into the respective peace agreements. 261

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The application of the law is not without problems. The Court’s strict interpretation of the “same person same conduct” test under complementarity is court-centric. This means that cases are being tried in The Hague that could conceivably be tried within domestic legal systems. The Prosecutor’s strict interpretation of the “interests of justice” test conflates it with the interests of victims in criminal justice. The procedures for victim participation and reparations are slow and bureaucratic. All of these examples illustrate the gap that can exist between the law and justice. However, this gap is even more apparent through the absence of societal impact. The reparative effect of the ICC in terms of delivering justice to victims, or impacting on how affected populations view justice, through demonstration effect, gives rise to serious doubts whether the ICC is delivering on justice. Can the Court improve its impact in terms of the delivery of justice by adjusting its procedures? Could it be that the legal changes represented by the Rome Statute and the ICC need more time to achieve their full impact? Are there limits to what the law can achieve in societies that are in conflict or disarray, or indeed in societies that have varied social conceptions of what justice may mean?1 Indeed, should the ICC project be continued in its current form? The IER argued that “substantial improvement” is possible, but largely worked from the premise that there should not be amendments to the Rome Statute itself and there should not be budget increases.2 This study, however, suggests that a more radical rethink may be needed.

II  No Shortcut to Utopia In general, the ICC project still suffers from a lack of clarity on the goals that the Rome Statute and the Court are meant to achieve. This leads to unrealistic expectations that in itself would set the Court up to fail. According to the ICC’s theory of change, its establishment should lead to a reduction in the world’s worst crimes. Nevertheless, the state of the world in terms of violence is worryingly worse today than when the ICC was created twenty years ago. A 2018 study by the United Nations and World Bank notes that while it was the most peaceful era of human history, there was a rapid increase in number and intensity of violent conflicts since 2010, resulting in big humanitarian crises and massive refugee flows. Most countries that are 1 2

Mark Drumbl. Atrocity, Punishment and International Law, Cambridge (2007) p. 5. Independent Expert Review, para. 17.

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under preliminary examination or investigation have experienced further atrocities, sometimes even committed by the very same actors. This, in combination with the low outputs of the ICC, has generated skepticism about the ICC project. However, it is unfair to expect the ICC to be a shortcut to Utopia. The ICC is not “a moral high ground floating somewhere above the earthly realm.”3 It cannot single-handedly prevent the world’s worst crimes from recurring. Neither should its impact be reduced to a much lower standard of a simple count of the number of investigations and trials in The Hague. It is urgent to define with more precision which results can be expected from the ICC project. Among commonly voiced aspirations are deterrence of the world’s worst crimes; historical clarification that can contribute to reconciliation of divided societies; and retribution against the perpetrators. Yet, the evidence to date, also from other Tribunals, casts doubt on whether these aspirations can be met. At the least, the Court can be expected to play an expressive function that can contribute to condemning (and prohibiting) the crimes; repairing the victims; and having a demonstration effect on affected populations (by demonstrating values such as independence, impartiality, and fairness). At the same time, lessons from the historic tribunals indicate that impact in these areas is not a given. There is an added complication in the fact that the Court’s expressivism is derivative. This study has argued that the impact of the Court should be assessed on four levels identified by the ASP at the Review Conference. Its normative impact can be assessed by its systemic effect (on legal systems, in terms of condemning or prohibiting the crimes) or transformative effect (on peace processes). Its societal impact can be measured through its reparative effect (on victims) or its demonstration effect (on affected societies). These effects span from law to justice, but in order to succeed, the Court should deliver on both. This requires both normative and societal impacts.

III  More Law than Justice A  Systemic Effect: Complementarity or Parallelism? The first Prosecutor suggested in 2003 that the true measure of success of the Court ought to be measured by an absence of ICC proceedings. If states

3

Duncan McCargo. Transitional Justice and Its Discontents. Journal of Democracy, Vol. 26 (April 2015) p. 11.

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themselves assume the responsibility to investigate and try the world’s worst crimes, the Rome Statute and ICC project will have maximum impact. Yet, experience to date shows that conceiving of complementarity as the incubator of “systemic effect” may be mistaken. Complementarity, including “positive complementarity,” is largely a Court-centric notion. The Court, with all its functions in The Hague, has remained the centerpiece of the international criminal justice architecture for states, policymakers, and international NGOs. The Court competes for cases, applying a rigid definition of complementarity that does not give sufficient deference to domestic jurisdictions. The relationship that developed between the Court and different states (Colombia, Kenya, Libya, and Uganda) was often adversarial in nature. For instance, while there is a level of cooperation with the Libyan authorities, Libya contested the admissibility of the Saif Al-Islam and Abdullah Al-Senussi cases and has not surrendered any of the Libyans under arrest warrants to The Hague. Complementarity is not in itself a shortcut to addressing the systemic problems facing national legal systems after periods of extended conflict or mass atrocities. Countries such as Afghanistan, Colombia, and Libya face fundamental challenges, including those of armed insurgencies, displacement, unregulated militia’s, in some cases terrorists and extremists, illicit trafficking economies, and corruption. The ultimate focus of the Court on just a few cases gives rise to a distorting effect, focusing attention on only a few individuals within this broader context. Complementarity cannot correct the fundamental human rights challenges that can plague domestic trials. In spite of the blatant shortcomings of the trial of Al-Senussi in Libya, the Court ruled the case inadmissible. Ideally, domestic trials ought to be conducted fairly, in order to contribute to rebuilding the rule of law after a conflict. Yet, complementarity has fostered a preference for the international realm, as the Court has become the holy grail among international criminal law professionals. It is useful to reorient the discussion on systemic effect to internalization of the Rome Statute, through implementation of the crimes and norms of the Rome Statute in domestic law, the strengthening of domestic capacities and conducting domestic proceedings. To recall the words of Harold Koh: “persuasion often occurs in the shadow of coercion, and acculturation often occurs in the shadow of persuasion.”4 Internalization requires not only coercion, but also persuasion and acculturation. These processes do not easily fit into the short timelines associated with admissibility proceedings, but require patience and resources to bring to fruition.

4

Harold Hongju Koh. Internalization through Socialization. Duke Law Journal, Vol. 54 (2005) p. 981.

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Even so, the effect of the Rome Statute in spurring states to conduct domestic proceedings is more pronounced in states that already have robust legal systems, the prime example being Colombia. The Colombian authorities often stress that they are conducting the most proceedings on international crimes of any country in the world. The numerous domestic proceedings in Colombia, whether under the Justice and Peace Law, the Special Jurisdiction for Peace, or ordinary criminal proceedings, demonstrate that the ICC may serve to strengthen an already existing internal drive to apply legal norms and standards. If that drive is lacking, the impact is less, as seen in Afghanistan or Libya. This points to parallelism rather than to complementarity. The Court may have the most impact where it is needed the least, that is, in states with domestic legal systems that are most able and willing to conduct their own investigation and trials, such as Colombia. At the same time, the ICC often faces the same challenges as the domestic level. If the national authorities are not able to guarantee security for investigations, such as in Afghanistan, to arrest the accused, such as was the case in Uganda, or protect witnesses, as in Kenya, neither is the ICC. The ICC lacks its own enforcement powers, and thus inherits the problems that national jurisdictions face. Internalization of the Rome Statute is still a promising avenue for increasing systemic effect and the impact of the Rome Statute. The process of internalization may be long and arduous, but if the overall goal is an end to impunity, this must primarily happen at the domestic level. This reasoning would suggest that maximizing the impact of the Rome Statute requires a refocus, away from the ICC as a Hague-based mechanism, and onto the domestic level, beyond what the current framework of “complementarity” stimulates. If one were to follow this logic, the Court should cease its practices of readily accepting state referrals through uncontested admissibility or competing for cases. It is not desirable that the Court should conduct cases that conceivably could be investigated and tried on the national level. This deprives countries of the benefits of “internalization” and depletes the valuable resources of the Court. This points to more need for a margin of appreciation or “qualified deference” as some scholars have argued. In order to maximize impact, in cases of inability rather than unwillingness, the Court should allow states to conduct their own trials, with other forms of international assistance. An example is the Cour Special established in the CAR, with the assistance of the United Nations.5 National proceedings 5

Patrick Labuda. The Special Criminal Court in the Central African Republic: Failure or Vindication of Complementarity? Journal of International Criminal Justice, Vol. 15, No. 1 (2007) pp. 175–206.

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have taken place in almost every situation under investigation. This shows the potential of fostering domestic trials. Would more utilization of qualified deference require an amendment of the Rome Statute? Not necessarily. According to the IER, positive complementarity and dialogue with states could take place even during an active investigation. It is not clear, however, how this will be perceived by states. States are often motivated to act precisely to avoid an investigation in the first place. Once investigations are opened, discussions may become more strained. Positive complementarity could be one of the considerations that play a role in case selection and prioritization. This approach would allow the OTP to hibernate preliminary examinations investigations to allow national authorities to take steps toward exercising domestic jurisdiction. This is a delicate balance but may serve to bring into sharper focus which states are willing but unable to act. Those willing but unable should be granted the time, and deference, to try their own cases.6 Of course, unwillingness rather than inability can be difficult to discern in practice, but it can help to start to define indicia of genuineness to assess domestic proceedings. Upholding international fair trial standards at the domestic level will certainly be a challenge. The Court’s ability to influence the fairness of trials is constrained by the Statute, as recognized by the Appeals Chamber in the case of Abdullah Al-Senussi. Improving the quality of national proceedings ought therefore to be an active focus of other organizations, including the United Nations, and development actors or rule of law organizations. In some cases, proceedings will not be genuine and will be intended to shield the accused. If the ICC continues its role as a Court of last resort in cases of unwillingness, it can still play an important role in contributing to ending impunity. Ideally, the involvement of the ICC will generate debate among various actors, whether they are proponents or opponents of the ICC, that itself will contribute to a “norm-generating process” where creative solutions to bringing justice can thrive.7 In fact, “when actors contribute to the creation of legal meaning, they will also feel more compelled to respect these legal norms and assume resulting obligations.”8 Internalization will mean the most if it results not just in normative, but also in societal impact.

6

For an explanation of qualified deference, see Carsten Stahn. Revitalizing Complementarity a Decade after the Stocktaking Exercise, TOAEP Policy Brief Series No. 115 (2020). 7 Philipp Kastner. Armed Conflicts and Referrals to the ICC: From Measuring Impact to Emerging Legal Obligations, JICL, Vol. 12 (2014) pp. 471–90, p. 487. 8 Ibid., p. 488.

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More active engagement with national stakeholders over time is needed to ensure this impact. The extensive engagement of the ICC in Colombia vis-à-vis other contexts under preliminary examination is instructive in what the Court may be able to achieve through such a deliberative process. In Colombia, the Court was able to impact on the formation and implementation of Law 975, the Legal Framework for Peace and Havana peace p ­ rocess, and the investigations of false-positive cases. The open-ended nature of the preliminary examination was an important asset. But this intervention required investment from the Court itself, including devoting resources and building up extensive knowledge of the situation. However, such a rebalancing of resources may yield more impact in the long term and may enhance the preventive potential of the ICC. Sustainable changes in domestic systems will not emerge purely due to a few rulings from The Hague. Internalization requires a longer-term, developmental approach. Internalization ought to be viewed primarily as a domestic law reform process, with similar political hurdles and obstacles. A margin of appreciation or qualified deference should accompany domestic efforts, particularly on matters of procedure, rather than on fundamental legal issues that would allow loopholes for impunity such as definitions of the crimes or modes of liability. Genuine domestic efforts should be supported both politically and with resources, in order to maximize the impact of the Rome Statute. This can lead to further impact on “the law,” and perhaps on long-term prevention. B  Transformative Effect: The Interests of Victims in Peace Peace versus justice is a dilemma as old as human history and is likely to remain, in spite of the Rome Statute or the existence of the ICC. The first Prosecutor advanced a hard position of the “law,” positioning the Court as a “game changer” in the world of peace negotiations, rendering an “amnesty for truth” settlement such as in post-apartheid South Africa, impossible in the future. He argued that the law introduced hard boundaries that cannot be adjusted. At the Review Conference in Kampala in 2010, a panel concluded that amnesties are “no longer an option.” The OTP’s policy paper on Article 53 renders the “interests of justice” virtually unusable for balancing peace and justice, resulting in what amounts to fiat justitia ruat caelum. The question is whether this serves to advance law or justice. A different interpretation of Article 53, aligning the “interests of justice” more closely with the interests of victims, including their interests in peace, or in different forms of justice, could reintroduce a balancing test and come closer to balancing peace and “justice.” Such an interpretation can be used

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to seek to introduce comprehensive measures to deal with accountability and safeguard the interests of victims.9 Experience in Afghanistan, Colombia, and Uganda demonstrates that the interests of victims cannot be captured in a simple application of the “law” through criminal justice. Many victims want basic security and want to end their suffering and rebuild their lives. They also emphasize the need for reparations and a life of dignity. These broader justice issues should be recognized in a discussion on the interests of victims. So far, evidence on whether the Court either promotes or hinders peace negotiations is not conclusive. It is not clear that States Parties are prepared to take amnesties off the table. Several countries under ICC jurisdiction have continued to pass or renew amnesty laws in recent years. The imperative to prevent future crimes will continue to weigh heavily against the need to punish the past. If the ICC is to contribute to prevention, it ought to heed this balance and leave the door open to transitional justice options in peace agreements. Colombia in particular has built up significant experience in balancing peace and justice, first through the Justice and Peace Law (Law 975), then through the Legal Framework for Peace, and now, through the Comprehensive System of Truth, Justice, Reparations and Guarantees of Non-Repetition. In spite of its legal complexities, the Special Jurisdiction for Peace has made a promising start. More negotiations will take place in the shadow of the ICC in years to come. In a best-case scenario, future negotiations will be inclusive of victims and will adopt the wide range of justice mechanisms found in the Colombia peace accord. The Rome Statute, and the continued scrutiny of the Court, may inspire states to “achieve peace with the maximum justice,” in the words of President Santos. This indeed can be in the interests of justice, in the plain meaning of these words. The experience in Colombia has demonstrated that the Court should heed democratic processes that seek to promote peaceful solutions to conflict and that it should exercise restraint in these situations. The Court, as a justice institution, ought to tolerate innovative solutions and locally attuned solutions to accountability and punishment, such as those put forward in Colombia. This is also the position that the Prosecutor eventually took, in relation to the Havana peace process in Colombia, reflected in the remarks of the Deputy Prosecutor in Bogotá in May 2015.10 The Court can afford flexibility, 9

10

Priscilla Hayner. The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict. Routledge (2018) pp. 105–06, pp. 108–10. Hayner suggest a more elaborate policy on behalf of the OTP on the “interests of justice,” with advisors and guidelines. James Stewart. Transitional Justice in Colombia and the Role of the International Criminal Court, May 13, 2015.

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particularly on what forms punishment should take, better than it can afford rigidity. The example of Colombia teaches the world that the interests of victims are broader than that of punishment of perpetrators and that it ought to include remedies for victims. There is, after all, no “universal formula” in deciding how to bring justice to any society in desperate need of peace. Peace with alternative forms of punishment, as appropriate to the context, may present a creative balance in the peace versus justice dilemma. The experiences of the Special Jurisdiction for Peace to date, in investigating the patterns of crimes committed in the conflict and in engaging with victims, show promise of delivering justice on the national level. C  Reparative Effect: Justice for Victims? The Rome Statute made a strong commitment to justice for victims by providing them with remedies, including reparations. Victim communities around the world put their hopes in the Court. The question now is whether this hope was justified. In the words of one victim in Uganda: “Ongwen’s trial is progressing well, but our concern is that the Court is caring for the suspect more than the victim as portrayed in the way Ongwen is well-kept.”11 The Court’s processes on participation and reparations, as currently being implemented, risk constituting only a nominal recognition of victims’ rights. The Court’s distance from situations in which it operates do not allow for significant interaction with victims. Furthermore, the Court’s structures and procedures struggle with the immense challenge of scale. Victims face the prospects of lengthy bureaucratic processes for participation or reparations, stretching into decades. In countries such as Northern Uganda and CAR, victims may not live to see the result. In the words of the IER, “victims wait a lifetime.”12 An approach to reparations that takes proportionality as a central principle cannot be fulfilled considering the means available to the TFV. The standard of “meaningful relief,” set in the jurisprudence, cannot be matched by resources. Pablo de Greiff observes that “the violations that reparations benefits are meant to address are frequently of the sort that is, strictly speaking, irreparable.”13 The limitations on reparations in individual cases also casts doubt on the purpose of victim participation. 11 12 13

Lino Owor Ogora. Questions about Ongwen’s Trial Dominate the International Justice Day Celebrations in Uganda, International Justice Monitor, July 18, 2019. IER, para. 879. Office of the High Commissioner for Human Rights. Rule of Law Tools for Post-Conflict States: Reparations Programs, 2008 (authored by Pablo de Greiff).

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The IER concludes that “for victims, so far the Court is not functioning and delivering as envisioned.”14 It is time to reconsider victim participation and reparations as part of the ICC’s procedures. Many suggestions focus on procedural changes. For instance, victim participation could be limited to decisive stages of the proceedings, such as the confirmation of charges; the decision on a no-case-to-answer; the closing statements of the trial; the sentencing process; or crucial parts of the appeal insofar as they touch on the interests of victims. This would free up resources that could also be reallocated to the TFV. For some victims, an opportunity to engage actively with the Court through outreach may have more meaning than participation in the trials themselves. Consultation, in terms of “a vigorous and respectful dialogue whereby the consulted parties are given the space to express themselves freely, in a secure environment,”15 may mean more than participation as it is currently approached. Victims themselves have highlighted that “justice itself is an experience and a process, and not simply an outcome.”16 Some suggest reallocating all resources to the TFV, to ensure that broader ranges of victims can receive assistance sooner. Or victim participation could be foregone entirely except in reparations proceedings—or even those could be eliminated in favor of relegating all victim-related issues to the TFV. However, the TFV would need to be greatly strengthened. It was found to not be “fit for purpose,” according to the IER. And it remains doubtful whether the TFV can significantly grow its resources. In this sense, it remains a “side show” to the ICC. Many of the options mentioned above would require an amendment of the Rome Statute and would be seen as a step backward by NGOs and victim’s rights advocates. At the same time, the alternative of holding out a promise to victims, without being able to deliver on justice, is worse—both for victims and for the legitimacy of the ICC. It may also prevent policymakers from exploring other avenues for justice for victims. Based on experience in the first twenty years, the future of the Court’s ability to provide justice for victims is in doubt. The TFV remains a body with limited resources. The legal proceedings of the Court introduce new hierarchies of victims and leave many deserving victims out of its ambit. In Kenya, 14 15

16

IER, para. 885. Office of the High Commissioner for Human Rights. Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice, 2009 (authored by Michael O’Flaherty). ICTJ Briefing. Reparations for Northern Uganda: Addressing the Needs of Victims and Affected Communities, September 2012.

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originally support for the ICC was high, but victims were betrayed by the withdrawal of charges against President Uhuru Kenyatta and other prominent accused. A number of potential and actual ICC witnesses were killed and the “do no harm” principle was not met. In Ntaganda, a reparations order was issued, which may never materialize. Victims need timely and tangible solutions that seek to improve the quality of their lives and that allow them to live in dignity. Many of these solutions may take local, culturally relevant forms that will differ per society. The comprehensive transitional justice measures put in place in Colombia, both through the Havana peace agreement and outside of it, provide inspiration for what is possible for victims at the domestic level. Real remedies to mass atrocities will require bottom-up approaches that allow victims to play a role in their own futures, the opposite of the “savages, victims and saviours” paradigm.17 The failure to provide effective remedies for victims through the Rome Statute system should give rise to serious reflection on the ICC project. D  Demonstration Effect: “Derivative” Expressivism The Court has served to focus international attention on conflicts in Afghanistan, Colombia, Libya, Northern Uganda, and other places. Its trials likewise have served to highlight certain types of violations, including the use of child soldiers, sexual violence, and attacks on cultural property. However, the expressive value of the ICC is indirect, and evidence so far indicates that it is not necessarily perceived as delivering justice to affected communities. The Court’s expressive impact is limited by factors such as the small number of accused and the limited nature of charges. These factors give rise to negative perceptions that undermine the ICC’s societal impact and its legitimacy. Perceptions initially may be more positive in countries where the ICC is in “the shadows,” at the preliminary examination stage. Perhaps, this is because the limitations of the Court process were not yet clearly understood in those situations. In preliminary examination countries (Colombia and, until recently, Afghanistan), the Court remained abstract, loomed large in the imagination, and was therefore more revered. Once it opens an investigation, the Court is in the “spotlight,” and its blemishes and limitations, such as one-sided investigations or limited numbers of arrest warrants, become more apparent (Libya, Uganda). 17

De Greiff argues that recognition, or acknowledgment, of the plight of victims should take a center stage in rebuilding civic trust between citizen and state. Pablo de Greiff. Justice & Reparations, in The Handbook of Reparations, edited by Pablo de Greiff, Oxford University Press (2006).

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The degree to which the Court is perceived as relevant among local actors varies. In Colombia, the ICC is seen by many as a critical player, albeit at times an intruder into a national process of negotiations. In Libya, the ICC was seen as relevant during the overthrow of Qadhafi, but its relevance diminished in the post-Revolution period and its arrest warrants are ignored. In Uganda, the ICC was much discussed during the Juba peace process but less so in its aftermath, in spite of the Ongwen trial, or recent election violence. In Afghanistan, Taliban or other groups such as the Haqqani network and ISIS, which widely practice suicide missions, are unlikely to fear the Court; and it will be virtually impossible to investigate international forces in the coming years considering the opposition from the United States. The Afghan government would have felt betrayed by its Western allies if it was either first or alone in being investigated or prosecuted. After all, it had long been an ally of the West in the war on terror. It has proved difficult for the ICC to align with local justice priorities. In Afghanistan and Colombia in particular, many decades of the conflict fall outside the ICC’s temporal mandate. In Colombia, local priorities prompted discussions of “benefits” or lenience for paramilitaries and FARC, respectively. In Uganda, local populations in the North tended to put a focus on traditional justice (the Mato Oput), and on truth telling and reparations. In Libya and Afghanistan, local demands for justice focused on various transitional justice measures, such as vetting of perpetrators from positions of power, as well as documentation or the plight of missing persons. The perception that the Court as an external actor seeks to “trump” local justice priorities is present in different countries. In Uganda, local religious and traditional leaders advanced the proposition that the ICC seeks to override an indigenous, restorative approach to justice. In Colombia, the Court was sometimes referred to as “El Coco,” an imaginary monster that scares children. The perception of lack of impartiality is particularly strong in Uganda and Libya. Many years of local organizations lobbying the Court to open an investigation against the UPDF for its actions in Uganda or DRC have not borne fruit. In Uganda, many believe that the Court is manipulated by Museveni, particularly due to the fact that the referral was first announced in a joint press conference by Museveni and the Prosecutor in January 2004. Likewise, in Libya, the rebels believed that the Prosecutor was “their” prosecutor. Similar accounts of the perception of one-sidedness or bias have emerged from other countries under investigation (DRC, Cô te d’Ivoire).18 In indicting the LRA, 18

Sophie Rosenberg. The ICC in Côte d’Ivoire- Impartiality at Stake? JICL, Vol. 15, No. 3 (2017) pp. 471–90.

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on the one hand, or Qadhafi, his son, and chief of intelligence, the ICC Prosecutor appeared to want to be on the right side of history, but these actions did not necessarily translate into the expressive effect that the Court may have wanted in Uganda or Libya. In Uganda, the message of impunity on the side of government actors was reinforced, whereas in Libya those who sided with the Revolution perceived themselves to be beyond the reach of the Court and went on to commit many new violations. In countries such as Libya and Afghanistan, the Court was perceived as subject to Western agendas. In Libya, the perception of the ICC as an agent of foreign powers emerged during the Abdullah Al-Senussi extradition. Afghans long expressed the view that the presence of American troops is the reason why the Court was reluctant to open an investigation. The Pre-Trial Chamber judgment served to validate this view. Can derivative expressivism have sufficient impact? The experience to date shows that this is by no means a given. The fact that the Court is involved in so many situations, with limited resources, makes it less likely that it will truly be able to connect with the local justice priorities in any given situation. This will be a continued restraining factor on its impact.

IV  From Law to Justice: Can the ICC Maximize Its Impact? If the ICC is to evolve from an instrument of law to one of justice, how should it adjust its current policies? Should it make more effort, as an international body, to understand the local context? And should it seek to “go wide” by remaining global, or should it aim to “go deep” by achieving more impact in a more limited number of situations? Will this be enough to bridge the gap between law and justice? A  Understanding the Local Context A first step that the ICC could take in increasing its impact is becoming more attuned to the local circumstances and realities of country contexts. The question is whether the Court is adequately equipped to take into account the nuances of the local context of all the situations under its scrutiny. As stated by Mbeki and Mamdani: “Human rights may be universal, but human wrongs are specific.”19 A range of factors operate as a constraint to the Court becoming more attuned to the local context. In the words of the IER, “there is a substantial 19

Thabo Mbeki and Mahmood Mamdani. Courts Can’t End Civil Wars, Op-Ed, International New York Times, February 4, 2014.

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problem with regard to absence in the OTP (and the Court as a whole) of sufficient expertise relating to situation countries.”20 The IER states: “having a larger cohort of staff in The Hague that understands the realities and challenges of working in the field would make for a better Court overall.”21 It finds that “the Court’s ability to develop and maintain positive relations with CSOs and the media is in need of improvement, especially in situation countries”22 and that “during official visits, the OTP focuses on meetings with high level government representatives, to the exclusion of civil society and victims groups.”23 At the preliminary examination stage, relatively few resources are usually devoted to developing a deep understanding of local dynamics. According to the Rome Statute, the Prosecutor operates from the seat of the Court during preliminary examinations, as it lacks investigative powers.24 The Jurisdiction, Complementarity, and Cooperation Division is relatively small, although some have argued that it has had too much influence on decision-making in the past. Only a few analysts may be working on any particular situation at a particular time. Usually, outreach is not done during this phase. With the exception of Colombia and Guinea, country visits during preliminary examinations are infrequent or even rare. In situations such as Uganda and Libya, decisions to open an investigation were taken very swiftly, before the context was well understood. The Court ran into unanticipated backlash or opposition that may have been avoided or managed better with more thorough context knowledge. The IER also strongly recommended that the OTP strengthens its context knowledge.25 A deeper understanding of the context will not necessarily determine whether the Prosecutor opens an investigation in a particular situation. But it may play an important role in decisions about discretionary issues, such as when to proceed, and against whom. These are all matters of case selection and prioritization that can and indeed ought to be responsive to context. The OTP recognizes this in stating that “the role of persons or groups may vary considerably depending on the circumstance of the case and therefore should not be exclusively assessed or predetermined on excessively formulistic grounds.”26 20 21 22 23 24 25 26

IER, para. 170. IER, para. 241. IER, para. 381. IER, para. 384. Rome Statute, Article 15(2). IER, Recommendation 296. OTP Policy Paper on Preliminary Examinations, November 2013, para. 60.

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Knowledge of context would be enhanced by more robust field presences. Field offices are the Court’s tentacles on the ground, but the bulk of the Court remains in The Hague. However, field offices were only opened after some years. They currently exist in Uganda, DRC, Kenya, CAR, and Cô te d’Ivoire. The OTP does not have dedicated field offices. Only around 15% of the Court’s overall staff was allocated to field offices. There is usually no permanent presence in countries under preliminary examination. Although this would require state consent and security guarantees, in some situations, it may be possible. In Afghanistan and Colombia, victims voiced a desire for contact with representatives of the Court. The OTP has acknowledged the weakness of its field presences and stated that it will explore with the Registry new models of field presences. It also stated that the Office will “aim at having a stronger presence of persons from (the region of) the country in which the situation under investigation is found because this will help in the understanding of the situation and in access to evidence.”27 On the twentieth anniversary of the Rome Statute, the ICC President said: “We must together ensure that the Court engages sufficiently the victims and communities affected by the crimes so that they can understand, participate in, and develop ownership of its proceedings.”28 The IER, too, found that “It will always be important for international justice, and the Court specifically, to engage with local communities and victims. Consequently, a more decentralized system might be contemplated in the future.”29 The key to “engagement” is that the learning process must be mutual and that the Court on occasion will be required to adjust its policies and strategies. As commented by Nesiah, this must mean more than what is often meant by international criminal justice advocates when they have insisted that “local ownership is precisely about persuading affected populations to cede the terrain of justice to the ICC.”30 Outreach is officially defined by the Court as “sustainable, two‐way communication between the Court and communities affected by situations that are the subject of investigations or proceedings. It aims to provide information, promote understanding and support for the Court’s work, and to provide access to judicial proceedings.”31 An outreach program ideally provides a frank 27 28 29 30 31

ICC OTP Strategic Plan June 2012–2015, para. 48. ICC President’s Remarks at Coalition for the ICC Launch Forum Commemorating the 20th Anniversary of the Adoption of the Rome Statute, January 15, 2018. IER, para. 992. Vasuki Nesiah. Local Ownership of Global Governance. Journal of International Criminal Justice, Vol. 14, No. 4 (September 1, 2016) pp. 985–1009. ICC Integrated Strategy for External Relations, Public Information, and Outreach, p. 3.

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explanation of the Court’s processes, designed to engage communities in a genuine dialogue. This in itself could result in an improved perception of the actions of ICCs and tribunals.32 Some argue that increased outreach itself can assist to reverse negative perceptions and can increase the ICC’s legitimacy.33 The external relations, public information, and outreach of the ICC have the ambitious goals of “building and maintaining cooperation and support for the activities of the Court,” thereby “increasing the broader impact of the Court, contributing to lasting respect for and enforcement of international justice.”34 The Court’s strategy states that “the Court strives to understand and act upon the information needs of affected populations, to build understanding and to foster a local sense of engagement.”35 FIDH argues that international law has to be “brought home” to local communities in order to “contribute to the internalization of the values ­embodied in the Rome Statute” and that this in turn is the only way to have a d ­ eterrent impact within situation countries.36 This again seems to be ­putting the cart before the horse in terms of “local ownership.” It is sometimes ­presumed that lack of support for international criminal ­justice institutions stems from ignorance on behalf of local actors and that ­w inning support or building local ownership is a matter of simply divulging more information about the Court and its processes. However, perceptions are not necessarily founded in misunderstandings, but rather in a realistic appreciation of the limitations of the Court, or disagreements with its actions or nonalignment with local priorities. There is a limit on the degree to which perceptions of international justice mechanisms can be “engineered” through outreach, at least in the short term.37 In fact, in the words of Hodžić, “everything a court with such a mandate

32

33

34 35 36 37

Hodzicˊ comments that “the ICTY never answered many basic questions. Why were some people indicted and others not? What was the philosophy of the sentencing policy? How was it possible to quash 1300 page judgments with a few pages of appeals?” Refik Hodžić. Accepting a Difficult Truth: ICTY Is Not Our Court. Balkan Insight (March 6, 2013). Kai Ambos. Expanding the Focus of the “African Criminal Court,” in Ashgate Research Companion to International Criminal Law: Critical Perspectives, edited by Y. Mc Dermott, N. Hayes, and W. A. Schabas, Ashgate (2012). Ibid., p. 2 Ibid. FIDH. Enhancing Victims’ Rights before the ICC: A View from Situation Countries on Victims’ Rights at the International Criminal Court, November 2013, pp. 7–8. Stuart Ford. A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms. Vanderbilt Journal of Transnational Law, Vol. 45 (2012) p. 408.

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does is in fact outreach, whether active or passive.”38 Experience indicates that the process of internalization of the norms of international tribunals is not a short-term result of one-way messaging by those courts themselves. Instead, as commented in the context of the ICTY, “the hard work of changing attitudes of the peoples of the Balkans is not going to be done by the ICTY, but by local and regional actors embedded in the affected societies.”39 Comparatively, the ICC’s efforts in terms of outreach have been more limited than that of other tribunals.40 In CAR, Darfur, and Libya the security situation mainly allowed for radio programming.41 Outreach has come under particular budgetary pressure.42 Steps have been taken to improve the quality of outreach, including through gathering feedback from participants.43 Nonetheless, even in a very challenging context such as Kenya, outreach activities largely rested on the shoulders of very few staff.44 The IER concluded

38

39

40

41 42

43 44

Hodžić. Accepting a Difficult Truth: “Outreach cannot compensate for the unwillingness to consider how judges’ work impacts the Tribunal’s ability to fulfil its broader mandate. Especially outreach as understood by the ICTY’s principals: a loose mix of public reactions, decontextualized dissemination of information and endless series of conferences.” Marko Milanovicˊ. Establishing the Facts about Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences. Georgetown Journal of International Law, Vol. 47, No. 4 (2016) pp. 1321–78. The SCSL is often cited as a positive example of outreach, but Sierra Leone is a relatively small country, and after the end of the conflict in 2002, it was reasonably secure. This meant it was easier to target large numbers of people. In 2007, a survey found that 96% of 1,700 randomly selected respondents around Sierra Leone had heard of the Special Court. BBC World Service Trust and ICTJ, Transitional Justice Survey in Sierra Leone, October 9, 2007. This widespread exposure is attributed to the fact that the SCSL ran an extensive, multitiered outreach program over the years: 48.18% of the respondents said they had participated in an outreach event at some point during the Court’s lifespan. SCSL, Sierra Leone Institute for International Law, Manifesto 99, No Peace without Justice, Liberian NGOs Network, and Coalition for Justice and Accountability. Making Justice Count: Addressing the Impact and Legacy of the Special Court for Sierra Leone and Liberia, September 2012, p. 32. Even so, observers have commented that this did not mean that this knowledge should be confused with internalization of support. Rachel Kerr and Jessica Lincoln. The Special Court for Sierra Leone: Outreach, Legacy and Impact: Kings College London War Crimes Research Group, Department of War Studies, Final Report (2008). Report of the Court on the implementation in 2013 of the revised strategy in relation to victims, October 11, 2013, ICC-ASP/12/41, para. 10. For instance, the report on activities and program performance of the International Court for the year 2012, dated June 4, 2013 (ICC-ASP/12/9), states that in 2012, five positions were canceled due to budgetary cuts (para. 166). Report of the Court on the implementation in 2013 of the revised strategy in relation to victims, October 11, 2013, ICC-ASP/12/41, para. 7. In 2014, the Court had deployed a single (albeit experienced) outreach officer in Kenya, and she was suffering from many threats due to the fact that she was the only public face of the ICC on the ground. Interview with civil society activist, Nairobi, February 4, 2014.

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that it was concerned with “lack of effective Court outreach,”45 recommended that it “should be built into the program budget of any new investigation,”46 and noted that “the resources allocated to outreach strategies in situation countries are miniscule (around 50,000 Euros per annum).”47 Increased local knowledge could be cultivated by more local presence and more engagement and consultation with local communities. Local staff can provide valuable knowledge and insight. In other cases, the Court has utilized the visiting professional program. These resources could be leveraged more strategically. Other tools currently underutilized can constitute in situ proceedings or site visits. A closer alignment with local justice priorities can increase the Court’s expressive value within a particular context. It can increase the Court’s impact, but it would mean a radical reshaping of the Court’s current, Hague-based model, and the Court would have to devote more resources to any given context. The question is whether there really exists the political will by States Parties for the Court to succeed on that level, or whether states are satisfied with the less tangible, more symbolic form of justice delivered from The Hague. B  Should the ICC Continue to Seek Universality? To date, the ICC has intervened in a large number of situations where there is potential jurisdiction. Perhaps, there was an option earlier in the lifespan of the Court to engage more deeply in fewer situations. The notions of gravity, admissibility (if one departs from a strict same accused/same conduct test), and the interests of justice could all be interpreted in ways that restrict opening new investigations. If the Court engaged in fewer situations, it would have been able to develop better in-depth analysis on particular situations. It could have pursued more thorough investigations and more arrest warrants per situation and would be less susceptible to accusations of one sidedness or bias. In short, it could have had more impact if it followed the vision of an international court, rather than a global court. What if the ICC were to change approach, by putting more emphasis on investigation and on cooperation with national authorities to conduct trials and by reserving its own jurisdiction for far fewer situations? Would this reshaping have more impact than the current approach? Some may argue this approach is inconsistent with the commitment to universality of the Rome Statute. It is 45 46 47

IER, para. 392. IER, Recommendation 165. IER, para. 398.

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difficult to argue that a global court should only be involved in a few situations. On the other hand, the current approach risks that the role of the Court in many situations becomes purely symbolic at best, or ineffective at worst. The United Nations, a global organization with all its staff and resources, has sometimes been criticized for its formulaic approaches and has been accused of not paying sufficient attention to context and to local ownership. The same was true for the ICTY and ICTR, although they engaged extensively with the domestic context. It is much more complex for the ICC. The ICC is forced to act in the world’s most ravaged societies, where conflicts have raged for decades, and to address the world’s worst crimes. These are some of the most politically polarized and divided societies. The Court is called to do that with far less resources at its disposal than the United Nations. In some circles, the Court may have been mainly intended as a “cost-saving” measure, so that ad hoc tribunals were no longer necessary, hence the strict ceiling on its spending. This fundamentally calls into question the realism of a global court for all situations. While the norms underlying the Rome Statute system should be seen as universal, and a universal global legal order remains a lofty goal, the wisdom of propagating a single mechanism for all of the world’s worst crimes should be put to question. In its strategic plan of 2019–2021, the OTP states: Stakeholders expect the Office to deliver more and better results, preferably within a shorter timeframe and some expect this to be accomplished within the bounds of existing of even fewer resources. Yet in the coming years, the Office expects to face an increase in the number of situations under investigation as its ongoing preliminary examinations progress, while resources are unlikely to significantly increase.

As is argued in this study, a highly selective prosecutorial approach, trying just a few cases per situation, has contributed to negative perceptions of the Court’s work. The IER makes a number of important recommendations in this regard. Generally, the experts took the view that fewer situations could: Impact positively on active investigations; result in a more comprehensive approach regarding the number of cases and accused per situation; lead to a more consistent implementation of Outreach strategies; and increase the potential for achieving more meaningful impact on victims.48

48

IER, para. 644. The IER recommended that the Prosecutor should consider adopting a higher threshold of gravity but recommended that feasibility should not be overemphasized in this regard. The IER also recommended that there should be a hierarchy for cases selection including the gravity of the crimes; the strength and diversity of the evidence; and the degree

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The road to fewer investigations is not an easy one, considering that feasibility ought not to play a major role in choosing investigations (to avoid the negative consequences of the Pre-Trial Chamber decision on Afghanistan). Also, the current investigations alone will keep the Court engaged for years, if not decades. In as far as possible, justice should continue to be pursued on the national level, through the internalization of international norms combined with strengthening national institutions and bottom-up approaches that empower justice-seekers. In this respect, recent years have seen the establishment of new hybrid models in a wide variety of places.49 Alternatives to the ICC should remain on the table, including in situations where the Court has potential jurisdiction. Justice can take many forms.

V  From Law to Justice for the World’s Worst Crimes The ICC can take steps to close the gap between law and justice and maximize its impact. These include more emphasis on “internalization” of the Rome Statute at the domestic level; more space for national proceedings; more room for innovative approaches to justice within peace processes; more attention to the interests of victims; real solutions for victims that render justice within their lifetimes; and constructive engagement with local communities in ways that respect their priorities. It may also include increasing an understanding of local context and a focus on fewer situations. Discussions should, however, continue on whether the ICC can ever fully close that gap. Justice must be defined by victims and affected communities themselves and should not be imposed on them. On the other hand, states wish to put a cap on what they are willing to invest in the ICC, but justice should not have a price tag.

49

of responsibility of potential suspects. The IER criticized the fact that prior to selection and prioritization of cases, there is no comprehensive mapping of all potential cases within a situation. It recommended the use of situation-specific strategic plans, as well as a clear and transparent policy for hibernation or closure of investigations. Finally, the IER recommended strategies on hibernation and completion of investigations. IER, Section XII. OTP Situations and Cases: Prosecutorial Strategies of Selection, Prioritisation, Hibernation and Closure. Beth van Schaack. The Building Blocks of Hybrid Justice. Denver Journal of International Law and Policy, Vol. 44 (2016) p. 169. Examples include the CICIG in Guatemala, the Cour Special in the CAR, the new EU Kosovo tribunal, a hybrid AU Tribunal suggested for South Sudan, and International Team to Investigate crime of ISIL in Iraq. Some scholars are speaking of a resurgence of hybrid tribunals. See the project of Mark Kersten and Kirsten Ainsley at https://hybridjustice.com/.

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Supporting the Court is but one policy option in striving to meet the ultimate goal of ending impunity and preventing the world’s worst crimes. The former Prosecutor of the ICC often referred to the ICC as the hub in a wheel of international criminal justice. Perhaps, it is better seen as a spoke in that wheel. The hub ought to be the normative prohibition on war crimes, crimes against humanity, and genocide. The ICC is but one avenue to pursuing justice for those crimes. Support for the norms should not necessarily be equated to support for the institution, unless the institution is indeed the most effective way to promote those norms. Mass atrocities are sufficiently complex that they require multifaceted, pluralistic approaches in order to prevent, combat, and remedy them. Just as many societies have shown resilience through decades of conflict, they should be first in line to propose unique solutions to their own historical legacies of violence.50 Justice has no “universal formula” and cannot easily be captured in a law. Only when international justice actors deepen their understanding about what justice means for victims and affected populations, their interventions will have real and lasting impact. If the ICC cannot effectively evolve from an instrument of law to one of justice, then justice advocates, and the states that support it should look further afield than The Hague. 50

The concept of transitional justice has been applied in various forms in different countries of the world. Goldstone, who was both an international Prosecutor and played a prominent role in the South African transition, has written: “transitional justice is ultimately about nations torn apart by gross violations of human rights learning to live together within a context of dignity, human rights and social justice.” Richard Goldstone, in Pieces of the Puzzle: Key Words on Transitional Justice and Reconciliation (Compress, www.oneworldbooks.com, South Africa) 2004.

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Postscript

Since the completion of this book in 2021, there have been many new developments, but they do not have fundamental implications for the conclusions. For instance, the International Criminal Court (ICC) Prosecutor made a visit to Libya, the first in a decade, in November 2022, and went to see the mass graves of Tarhuna. His staff joined a joint investigative team to investigate human trafficking. Khan also met with Field Marshall Khalifa Haftar to tell him that the Libyan National Army was under investigation. In Colombia, for the first time, a leftist president and a former M19 rebel, Gustavo Petro, was elected in 2022. However, two world events stand out and have important implications for the ICC. In August 2021, the Taliban took control of the state of Afghanistan. This did not mean an end to the ICC investigation. However, on September 27, 2021, the Prosecutor issued a statement in which he announced that Cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction for the Court that are being or have been committed in various parts of the world, I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State- Khorasan Province (“IS-K”) and to deprioritize other aspects of this investigation.

Thus, the Prosecutor has dropped the investigation pertaining to international forces in Afghanistan. This is welcome to the United States but may feed the perception once again that the ICC will not confront Western powers. The second event of great magnitude is the Russian invasion of Ukraine, which commenced on February 24, 2022. Can this event revitalize support for the ICC and give it renewed impetus? Time will tell. While Ukraine is not a State Party, it had twice made Article 12(3) declarations and has been under a lengthy preliminary examination, since 2014, during which the ICC 282

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had taken no action. On February 22, 2022, the ICC Prosecutor announced that he would seek authorization to open an investigation. On March 1, 2022, thirty-nine countries made a referral of the Ukrainian situation to the ICC, and they were joined by two more countries on March 11, 2022. (The referral countries are all European, Western, or Latin American, or aligned with the West. No African States joined the referral.) On March 2, 2022, the Prosecutor announced that he was proceeding to open an investigation on events from November 21, 2013 onward. The law is an important tool in the arsenal of Ukraine as it battles the illegal Russian invasion. Yet the ICC faces many challenges. First, the ICC cannot try the Russian Federation for the crime of aggression. Ukraine is at the forefront in calling for a special tribunal to try Russians for the crime of aggression. However, the creation of such a tribunal would form competition to the ICC and would be another expression of Western interests. In any case, universality of the Rome Statute is ever more distant (and indeed Ukraine itself is not a member yet). Second, it seems as if the ICC is prioritizing the Ukraine conflict over other situations. Moreover, until now, it is mainly focused on Russian crimes, which may affect perceptions of impartiality. The Office of the Prosecutor quickly deployed its biggest investigative team of forty-two experts on the ground in May 2022, with cooperation of the Government of The Netherlands. The Prosecutor met with President Zelensky. In May 2023, President Zelensky visited the ICC himself. The Prosecutor enjoys strong cooperation from the Ukrainian authorities and was able to get additional financial and in-kind support from many states, albeit along the geopolitical lines mentioned above. Once again, the ICC issued arrest warrants for high officials with great speed (albeit with limited charges). On March 17, 2023, Pre-Trial Chamber II issued arrest warrants for Mr. Vladimir Vladimorovich Putin, President of the Russian Federation, and Ms. Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights. Both are accused of the war crime of unlawful deportation of the population (children) and unlawful transfer of the population (children) from the occupied areas of Ukraine to the Russian Federation. There is currently no prospect for arrests. There can be no doubt that most crimes in the conflict until now are committed by the Russian Federation, and that Ukrainian victims of the conflict deserve justice, so do victims of other conflicts. Third, there remains the challenge of the scale of the crimes and the resulting expectations of victims. Both far exceed what the ICC can offer in its current form. Other approaches will be needed. The option of domestic accountability must therefore remain on the table and must be supported. In

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the meantime, a number of other accountability mechanisms are operational in Ukraine, including a UN Independent International Commission of Inquiry created by the UN Human Rights Council, a UN Human Rights Monitoring Mission, an OSCE mechanism to fact-find on violations of international law, and a Joint Investigations Team of the Eurojust Genocide Network. In addition, Ukraine has initiated proceedings at the International Court of Justice under the Genocide Convention. On November 14, 2022, the UN National Assembly approved a resolution calling for Russia to be held accountable for violating international law through its invasion of Ukraine, including by paying reparations for damage and killings of Ukrainians. However, the vote was underwhelming, with ninety-four in favor, fourteen against, and seventy-three abstentions. These are but some of the avenues used by Ukrainians in their quest for justice.

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Appendix A Methodological Note

I Introduction This study was informed by my field experiences as a transitional justice professional during a decade of work for the ICTJ and beyond (2000–2015). These field experiences determined my country selection, as I chose to focus on countries where I had lived and worked extensively. This enabled me to conduct long-term observation of some of the questions involved in four very different contexts. Second, I conducted an extensive literature survey and desk study. Third, my networks from my field experience allowed me access to key opinion-makers, both in the Court itself and in all countries involved. Those interviews further informed this study. A  Field Experience In the course of my work for ICTJ, I had the benefit of extensive professional field experience in the four countries described in this study. In this sense, my study differs from other studies because it captures a more diverse set of countries. Most other impact work has been done on the African continent. My experiences in Uganda, over fifteen field visits between 2005 and 2011, were instrumental to shaping my views. I first went to Uganda in 2005 to participate in a survey of victims’ views in the North on the ICC, with UC Berkeley. As described, the Court’s intervention in Northern Uganda met with strong opposition from local actors. This raised fundamental questions about why an impartial and international institution such as the ICC could evoke such a negative response on the part of victimized communities. I traveled extensively in the districts affected by the conflict and spoke with many persons. Eventually, I was involved as an advisor in the Juba peace talks in 2007, where I was asked to do a presentation on the ICC. I recommended that Uganda 285

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should seek to exercise complementarity in its domestic courts for LRA crimes. This option was pursued in the Juba Agreement on Accountability and Reconciliation, signed in 2008. In 2007–2010, I was involved in discussions held by Justice, Law and Order Sector on the establishment and the training of the International Crimes Division in Kampala. In Uganda, I conducted additional field research in 2014 for this study. In Colombia, I was also fortunate to have a limited role advising the High Commissioner for Peace and the Ministry of Justice on the Havana peace process in 2014–2015. Prior to that, as part of ICTJ, I was involved in advising local judges and lawyers during the years of the Justice and Peace Law (Law 975), in ten field visits between 2007 to 2013. I engaged extensively with legal practitioners, human rights organizations, scholars, and policy-makers (although I do not speak Spanish). In 2014–2015, over three visits, I was able to meet with and interview senior politicians, parliamentarians, victim groups, and judges. During my research, in March 2015, I was fortunate to meet President Santos himself, who subsequently won the Nobel Peace Prize for his peacemaking efforts in 2016.1 From 2009 to 2010, I spent a year in Afghanistan, embedded with the Afghan Independent Human Rights Commission (AIHRC), working on a large-scale documentation project on war crimes and crimes against humanity committed in Afghanistan between 1978 and 2001. Prior to that, I had conducted around fifteen visits to Afghanistan between 2003 and 2009, advising the AIHRC on its transitional justice work. I was able to observe that the ICC does not have much visibility in the Afghan context. In 2014, I was able to conduct two additional visits to Afghanistan to do research for this thesis, speaking with parliamentarians, NGOs, justice officials, and representatives of the government. In Libya, I served as the transitional justice advisor to United Nations Support Mission in Libya (UNSMIL) between 2011 and 2015. During these years, I held numerous meetings with the Minister of Justice, the General Prosecutor, and local prosecutors, as well as victims from the Qadhafi period, and was exposed to their opinions and views on the ICC. I also met with the ICC on their visits to Libya. UNSMIL was the only organization to monitor the trial of Saif Al-Islam and Abdullah Al-Senussi in Libya. The trials of the former regime

1

In 2013, President Santos had made an impassioned plea to the General Assembly of the United Nations: “What we are asking from the U.N. and the international community is to respect Colombia’s right, and the right of every nation, to pursuing peace. We ask you to keep accompanying us in this effort, respecting our choices, the way in which we act, and trusting that our decisions have never been against the international community’s needs.”

Published online by Cambridge University Press

Appendix A

287

figures in Libya, concluded on July 28, 2015, before the Tripoli Court of Assize, fell far short of international standards. I was one of the primary authors of the United Nations report on the trial. Finally, I have been fortunate to have a lot of professional exposure to the ICC over the years, from the period before its establishment, in attending the final few PrepComs in 2001–2002, the first few ASPs in 2002–2006, ICC various expert groups convened at the Court (including on the TFV and on complementarity) in 2002, NGO roundtables in 2002–2006, the Rome Review Conference in 2010, and numerous academic conferences dealing with ICCrelated issues from 2001 to 2020. In the period 2015–2020, while working for the NL Ministry of Foreign Affairs as a rule of law advisor, I had less interaction with the ICC, but attended several ASP side events and the ASP Hague Working Group on Complementarity (June 2020). I have also benefitted from formal and informal interactions with ICC officials over the years, including senior officials but also those working on the country situations described here. Due to this experience I was able to have many conversations with persons involved in these issues over the years which informed my views and provided inspiration, as well as a network of contacts. These views were tested and validated by desk research and targeted interviews. Other experiences, too, have provided valuable background and perspectives for this study. My experiences in Sierra Leone (2002–2005), and interactions with a wide range of persons, including perpetrators and victims, justice professionals, and politicians, taught me the importance of a comprehensive approach to transitional justice. In my role as criminal justice director at ICTJ, I observed and gave advice on domestic criminal justice processes in a number of contexts, including DRC, Iraq, Bangladesh, and Kenya.2 I also lived and worked in Lebanon from 2007 to 2009 and closely followed the establishment of the Special Tribunal for Lebanon. As a rule of law advisor to the Netherlands Ministry of Foreign Affairs, I continued to be involved in transitional justice issues in Libya and Afghanistan. B  Country Selection This analysis rests largely on a comparative analysis of country experiences. Much of the current debate on the impact of the ICC has centered on the 2

See for instance Miranda Sissons and Marieke Wierda. Political Pedagogy Baghdad Style: The Dujail Trial of Saddam Hussein, in Prosecuting Heads of State, edited by Ellen Lutz and Caitlin Reiger. Cambridge University Press (2009).

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Court’s role in Africa.3 This book seeks to go beyond this debate and to take a wider view of the Court’s impact and performance as a global justice mechanism. Four country experiences form the basis of this work, including one preliminary examination country (Colombia) and three countries under investigation (Afghanistan, Libya, and Uganda). A few references are included to other country situations, in particular Kenya, on the basis of research undertaken there. The country experiences were chosen based on my professional experience described earlier, but this diverse selection also serves to give a wider view of the global impact of the ICC than is currently addressed in much of the literature. The contexts are all highly diverse in political, societal, economic, and religious terms. The World Justice Project’s Rule of Law Index seeks to measure rule of law adherence in 113 countries based on 110,000 household and 3,000 expert surveys. In 2017–2018, Colombia ranked 72 with a score of 0.50, whereas Uganda ranked 104 with a score of 0.40 and Afghanistan 111th with a score of 0.34. Scores on Libya are not available.4 In addition, very little is written about the impact of the ICC in Libya and Afghanistan in comparison to other countries, which have been more accessible to researchers, such as Uganda or Colombia. At the same time, my own professional and educational background is Western (Dutch national, educated in the UK, US, and the Netherlands), so I cannot claim to have a particularly “local” perspective, which is a limitation of this study. Most data collection took place over 2014 and I was not able to conduct additional country visits for the purpose of data collection afterward. C  Data Collection In addition to the long-term observation as part of my professional experience, two methods of data collection were chosen, including (a) literature and document review and (b) key stakeholder interviews, used mainly to verify and supplement the conclusions. This study draws on a wide range of written sources and is cross-disciplinary in nature. As a main source, it references academic literature and reports of 3

Lydia Nkansah. International Criminal Court in the Trenches of Africa. African Journal of International Criminal Justice, Vol. 1 (2014) p. 1. 4 The World Justice Index uses eight indicators, including Constraint on Government Powers, Open Government, Order and Security, Civil Justice, Absence of Corruption, Fundamental Rights, Regulatory Enforcement, and Criminal Justice. On criminal justice, Colombia scores 0.34 or 92 out of 113, Uganda scores 0.34 or 94 out of 113, and Afghanistan scores 0.28 or 108 out of 113.

Published online by Cambridge University Press

Appendix A

289

policy institutions, think tanks, NGOs, and the media. While the Court’s interventions in Uganda and Colombia have generated significant writing and analysis, including by experts with extensive knowledge of the local context, less academic literature exists on the situations in Afghanistan and Libya. As this thesis seeks to follow ground-level impact in recent years, it also draws heavily on the reports of policy institutes and think tanks, as well as NGOS and media reports, as these tend to produce “real-time” information on the situation on the ground to a larger degree than academic writings. The study also cites media reports. I conducted research trips to Colombia (November 2013, May 2014, and November 2014), Afghanistan (November 2013, overlapping with the first ICC OTP visit, and April 2014), and Uganda and Kenya (February 2014), to gather additional data for this study. I could not visit Libya since the deterioration of the security situation there, although I continued to work for UNSMIL until February 2015. During these trips, I conducted further interviews where I had the chance to listen extensively to the views of individuals in the countries themselves. This study tries to capture these views. The data collection suffered from various limitations. First of all, the very limited funds available to the project only covered travel to Kenya and Uganda. For Colombia and Afghanistan, I relied on conference invitations to conduct further field visits. As a result, the interviews conducted per country situation were relatively limited (about thirty per country, except for Libya, where I was not able to do interviews due to the security situation in 2014). My interview selection relied mainly on my professional network, but did not follow a rigorous method of identifying interviewees, apart from the identification of individuals who were likely to have specialist knowledge due to their leadership positions. I conducted interviews with key stakeholders in three of the four situation countries (Uganda, Colombia, and Afghanistan) and a handful of interviews in Kenya, using semi-structured interviews, which were transcribed by hand. The interviews were usually around an hour, sometimes longer. I also interviewed the former Prosecutor and some ICC staff, but these interviews were all conducted in 2013–2014. The identities of the interviewees are not included in this publication for privacy reasons, but interviewees are referred to by their positions or occupations. In Colombia and Afghanistan, I received help from a local researcher in each location, and some interviews in those countries took place through translation. The persons interviewed all fall into the category of informed opinion-­ makers in that particular context. Interviewees included ICC staff, legal professionals, diplomats, United Nations officials, NGO staff, civil society leaders,

Published online by Cambridge University Press

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The Local Impact of the International Criminal Court

parliamentarians or other politicians, and victims. The questioning in the interviews followed a semi-structured format, focusing on one of the four effects as relevant in that situation. The data gathered through the interviews were used in the following ways: • Interviews with legal professionals assisted to inform the chapter on systemic effect, although for its conclusions, this chapter relies mainly on legal sources and documentary sources. • Interviews with persons directly involved in the negotiations in Uganda and Colombia were used in the chapter on transformative effect, although this chapter also relies on personal experience, documentary, and academic sources. • Interviews with NGOs, victims, and Court staff were used to supplement legal sources on reparative effect in Chapter 6. • Interviews with victims, NGOs, and other stakeholders, such as intellectuals and parliamentarians, were instrumental in identifying trends in perceptions and form the basis for some of the conclusions in Chapter 7. Nonetheless, the chapter clearly states that this data should not be viewed as quantitative or representative, but only as indicative of trends. The data gathered was qualitative in nature but provides some of the nuance and depth that is needed to inform debates on this subject.

Published online by Cambridge University Press

Appendix A Methodological Note

I Introduction This study was informed by my field experiences as a transitional justice professional during a decade of work for the ICTJ and beyond (2000–2015). These field experiences determined my country selection, as I chose to focus on countries where I had lived and worked extensively. This enabled me to conduct long-term observation of some of the questions involved in four very different contexts. Second, I conducted an extensive literature survey and desk study. Third, my networks from my field experience allowed me access to key opinion-makers, both in the Court itself and in all countries involved. Those interviews further informed this study. A  Field Experience In the course of my work for ICTJ, I had the benefit of extensive professional field experience in the four countries described in this study. In this sense, my study differs from other studies because it captures a more diverse set of countries. Most other impact work has been done on the African continent. My experiences in Uganda, over fifteen field visits between 2005 and 2011, were instrumental to shaping my views. I first went to Uganda in 2005 to participate in a survey of victims’ views in the North on the ICC, with UC Berkeley. As described, the Court’s intervention in Northern Uganda met with strong opposition from local actors. This raised fundamental questions about why an impartial and international institution such as the ICC could evoke such a negative response on the part of victimized communities. I traveled extensively in the districts affected by the conflict and spoke with many persons. Eventually, I was involved as an advisor in the Juba peace talks in 2007, where I was asked to do a presentation on the ICC. I recommended that Uganda 285

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The Local Impact of the International Criminal Court

should seek to exercise complementarity in its domestic courts for LRA crimes. This option was pursued in the Juba Agreement on Accountability and Reconciliation, signed in 2008. In 2007–2010, I was involved in discussions held by Justice, Law and Order Sector on the establishment and the training of the International Crimes Division in Kampala. In Uganda, I conducted additional field research in 2014 for this study. In Colombia, I was also fortunate to have a limited role advising the High Commissioner for Peace and the Ministry of Justice on the Havana peace process in 2014–2015. Prior to that, as part of ICTJ, I was involved in advising local judges and lawyers during the years of the Justice and Peace Law (Law 975), in ten field visits between 2007 to 2013. I engaged extensively with legal practitioners, human rights organizations, scholars, and policy-makers (although I do not speak Spanish). In 2014–2015, over three visits, I was able to meet with and interview senior politicians, parliamentarians, victim groups, and judges. During my research, in March 2015, I was fortunate to meet President Santos himself, who subsequently won the Nobel Peace Prize for his peacemaking efforts in 2016.1 From 2009 to 2010, I spent a year in Afghanistan, embedded with the Afghan Independent Human Rights Commission (AIHRC), working on a large-scale documentation project on war crimes and crimes against humanity committed in Afghanistan between 1978 and 2001. Prior to that, I had conducted around fifteen visits to Afghanistan between 2003 and 2009, advising the AIHRC on its transitional justice work. I was able to observe that the ICC does not have much visibility in the Afghan context. In 2014, I was able to conduct two additional visits to Afghanistan to do research for this thesis, speaking with parliamentarians, NGOs, justice officials, and representatives of the government. In Libya, I served as the transitional justice advisor to United Nations Support Mission in Libya (UNSMIL) between 2011 and 2015. During these years, I held numerous meetings with the Minister of Justice, the General Prosecutor, and local prosecutors, as well as victims from the Qadhafi period, and was exposed to their opinions and views on the ICC. I also met with the ICC on their visits to Libya. UNSMIL was the only organization to monitor the trial of Saif Al-Islam and Abdullah Al-Senussi in Libya. The trials of the former regime

1

In 2013, President Santos had made an impassioned plea to the General Assembly of the United Nations: “What we are asking from the U.N. and the international community is to respect Colombia’s right, and the right of every nation, to pursuing peace. We ask you to keep accompanying us in this effort, respecting our choices, the way in which we act, and trusting that our decisions have never been against the international community’s needs.”

https://doi.org/10.1017/9781009153805.011 Published online by Cambridge University Press

Appendix A

287

figures in Libya, concluded on July 28, 2015, before the Tripoli Court of Assize, fell far short of international standards. I was one of the primary authors of the United Nations report on the trial. Finally, I have been fortunate to have a lot of professional exposure to the ICC over the years, from the period before its establishment, in attending the final few PrepComs in 2001–2002, the first few ASPs in 2002–2006, ICC various expert groups convened at the Court (including on the TFV and on complementarity) in 2002, NGO roundtables in 2002–2006, the Rome Review Conference in 2010, and numerous academic conferences dealing with ICCrelated issues from 2001 to 2020. In the period 2015–2020, while working for the NL Ministry of Foreign Affairs as a rule of law advisor, I had less interaction with the ICC, but attended several ASP side events and the ASP Hague Working Group on Complementarity (June 2020). I have also benefitted from formal and informal interactions with ICC officials over the years, including senior officials but also those working on the country situations described here. Due to this experience I was able to have many conversations with persons involved in these issues over the years which informed my views and provided inspiration, as well as a network of contacts. These views were tested and validated by desk research and targeted interviews. Other experiences, too, have provided valuable background and perspectives for this study. My experiences in Sierra Leone (2002–2005), and interactions with a wide range of persons, including perpetrators and victims, justice professionals, and politicians, taught me the importance of a comprehensive approach to transitional justice. In my role as criminal justice director at ICTJ, I observed and gave advice on domestic criminal justice processes in a number of contexts, including DRC, Iraq, Bangladesh, and Kenya.2 I also lived and worked in Lebanon from 2007 to 2009 and closely followed the establishment of the Special Tribunal for Lebanon. As a rule of law advisor to the Netherlands Ministry of Foreign Affairs, I continued to be involved in transitional justice issues in Libya and Afghanistan. B  Country Selection This analysis rests largely on a comparative analysis of country experiences. Much of the current debate on the impact of the ICC has centered on the 2

See for instance Miranda Sissons and Marieke Wierda. Political Pedagogy Baghdad Style: The Dujail Trial of Saddam Hussein, in Prosecuting Heads of State, edited by Ellen Lutz and Caitlin Reiger. Cambridge University Press (2009).

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The Local Impact of the International Criminal Court

Court’s role in Africa.3 This book seeks to go beyond this debate and to take a wider view of the Court’s impact and performance as a global justice mechanism. Four country experiences form the basis of this work, including one preliminary examination country (Colombia) and three countries under investigation (Afghanistan, Libya, and Uganda). A few references are included to other country situations, in particular Kenya, on the basis of research undertaken there. The country experiences were chosen based on my professional experience described earlier, but this diverse selection also serves to give a wider view of the global impact of the ICC than is currently addressed in much of the literature. The contexts are all highly diverse in political, societal, economic, and religious terms. The World Justice Project’s Rule of Law Index seeks to measure rule of law adherence in 113 countries based on 110,000 household and 3,000 expert surveys. In 2017–2018, Colombia ranked 72 with a score of 0.50, whereas Uganda ranked 104 with a score of 0.40 and Afghanistan 111th with a score of 0.34. Scores on Libya are not available.4 In addition, very little is written about the impact of the ICC in Libya and Afghanistan in comparison to other countries, which have been more accessible to researchers, such as Uganda or Colombia. At the same time, my own professional and educational background is Western (Dutch national, educated in the UK, US, and the Netherlands), so I cannot claim to have a particularly “local” perspective, which is a limitation of this study. Most data collection took place over 2014 and I was not able to conduct additional country visits for the purpose of data collection afterward. C  Data Collection In addition to the long-term observation as part of my professional experience, two methods of data collection were chosen, including (a) literature and document review and (b) key stakeholder interviews, used mainly to verify and supplement the conclusions. This study draws on a wide range of written sources and is cross-disciplinary in nature. As a main source, it references academic literature and reports of 3

Lydia Nkansah. International Criminal Court in the Trenches of Africa. African Journal of International Criminal Justice, Vol. 1 (2014) p. 1. 4 The World Justice Index uses eight indicators, including Constraint on Government Powers, Open Government, Order and Security, Civil Justice, Absence of Corruption, Fundamental Rights, Regulatory Enforcement, and Criminal Justice. On criminal justice, Colombia scores 0.34 or 92 out of 113, Uganda scores 0.34 or 94 out of 113, and Afghanistan scores 0.28 or 108 out of 113.

https://doi.org/10.1017/9781009153805.011 Published online by Cambridge University Press

Appendix A

289

policy institutions, think tanks, NGOs, and the media. While the Court’s interventions in Uganda and Colombia have generated significant writing and analysis, including by experts with extensive knowledge of the local context, less academic literature exists on the situations in Afghanistan and Libya. As this thesis seeks to follow ground-level impact in recent years, it also draws heavily on the reports of policy institutes and think tanks, as well as NGOS and media reports, as these tend to produce “real-time” information on the situation on the ground to a larger degree than academic writings. The study also cites media reports. I conducted research trips to Colombia (November 2013, May 2014, and November 2014), Afghanistan (November 2013, overlapping with the first ICC OTP visit, and April 2014), and Uganda and Kenya (February 2014), to gather additional data for this study. I could not visit Libya since the deterioration of the security situation there, although I continued to work for UNSMIL until February 2015. During these trips, I conducted further interviews where I had the chance to listen extensively to the views of individuals in the countries themselves. This study tries to capture these views. The data collection suffered from various limitations. First of all, the very limited funds available to the project only covered travel to Kenya and Uganda. For Colombia and Afghanistan, I relied on conference invitations to conduct further field visits. As a result, the interviews conducted per country situation were relatively limited (about thirty per country, except for Libya, where I was not able to do interviews due to the security situation in 2014). My interview selection relied mainly on my professional network, but did not follow a rigorous method of identifying interviewees, apart from the identification of individuals who were likely to have specialist knowledge due to their leadership positions. I conducted interviews with key stakeholders in three of the four situation countries (Uganda, Colombia, and Afghanistan) and a handful of interviews in Kenya, using semi-structured interviews, which were transcribed by hand. The interviews were usually around an hour, sometimes longer. I also interviewed the former Prosecutor and some ICC staff, but these interviews were all conducted in 2013–2014. The identities of the interviewees are not included in this publication for privacy reasons, but interviewees are referred to by their positions or occupations. In Colombia and Afghanistan, I received help from a local researcher in each location, and some interviews in those countries took place through translation. The persons interviewed all fall into the category of informed opinion-­ makers in that particular context. Interviewees included ICC staff, legal professionals, diplomats, United Nations officials, NGO staff, civil society leaders,

https://doi.org/10.1017/9781009153805.011 Published online by Cambridge University Press

290

The Local Impact of the International Criminal Court

parliamentarians or other politicians, and victims. The questioning in the interviews followed a semi-structured format, focusing on one of the four effects as relevant in that situation. The data gathered through the interviews were used in the following ways: • Interviews with legal professionals assisted to inform the chapter on systemic effect, although for its conclusions, this chapter relies mainly on legal sources and documentary sources. • Interviews with persons directly involved in the negotiations in Uganda and Colombia were used in the chapter on transformative effect, although this chapter also relies on personal experience, documentary, and academic sources. • Interviews with NGOs, victims, and Court staff were used to supplement legal sources on reparative effect in Chapter 6. • Interviews with victims, NGOs, and other stakeholders, such as intellectuals and parliamentarians, were instrumental in identifying trends in perceptions and form the basis for some of the conclusions in Chapter 7. Nonetheless, the chapter clearly states that this data should not be viewed as quantitative or representative, but only as indicative of trends. The data gathered was qualitative in nature but provides some of the nuance and depth that is needed to inform debates on this subject.

https://doi.org/10.1017/9781009153805.011 Published online by Cambridge University Press

Appendix B The Current State of the International Criminal Court

The Court is not perfect, but it is working, is delivering, and has matured. Silvia Fernández de Gurmendi,1 ICC President in 2017

I Introduction A  The Court’s Performance: Facts and Figures Discussions on the impact of the Court to date were often focused on its “performance legitimacy,” based on its core mandate of investigations and prosecutions.2 The OTP Strategic Plans submitted over the years accurately predicted a low number of investigations and trials, to offset expectations that its performance in this regard could be compared to other Tribunals. In terms of numbers of investigations and prosecutions, the ICC indeed has a poorer record than any of the other ad hoc Tribunals.3 As of 2020, the Court had opened thirteen investigations and issued nine convictions (including four contempt cases) and four acquittals. It had issued several reparation orders and tens of thousands of victims participated in the proceedings.4 1

Speech by Silvia Fernández de Gurmendi at Nuremberg Forum 17, 10 Years after the Nuremberg Declaration on Peace and Justice “The Fight against Impunity at a Crossroad,” October 20–21, 2017. 2 Antonio Cassese. The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice. Leiden Journal of International Law (2012) 25 p. 493. This concept borrows from an article that I wrote on the Special Tribunal for Lebanon: Marieke Wierda, Habib Nassar, and Lynn Maalouf. Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon. Journal of International Criminal Justice, Vol. 5 (2007) p. 1065. 3 David Davenport. International Criminal Court: 12 Years, $1 Billion, 2 Convictions. Forbes March 21, 2014: “You don’t have to be a legal expert to figure that the preventive effect of convicting 2 warlords in 12 years doesn’t exactly leave international war criminals shaking in their boots.” 4 Secretary General’s Message for the Event Marking the 20th Year Anniversary of the International Criminal Court, February 15, 2018.

291

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In early 2021, the ICC had brought charges in twenty-eight cases (some of which had more than one accused). Seventeen people had been detained at the Court and thirteen remained at large. Charges against three were dropped due to their deaths and against another four during confirmation of charges. Four were acquitted. But the Court had only issued five convictions for Rome Statute crimes (one pursuant to a guilty plea). Four more were convicted for contempt of court.5 By way of contrast, in twenty-two years, the ICTY indicted 161 individuals, sentenced ninety-nine, acquitted nineteen, and referred thirteen to the domestic courts.6 The ICTR indicted ninety-two, sentenced sixty-two, acquitted fourteen, and referred ten to domestic courts. The Special Court for Sierra Leone, which was created at the same time as the ICC, completed cases against nine individuals over the same time span, including appeals. None was acquitted. As of February 2021, the ICC had issued five convictions: (1) Thomas Lubanga Diyolo, convicted on March 14, 2012, for the very narrow charges of child recruitment and sentenced to fourteen years; (2) Germain Katanga, convicted on March 7, 2014, and sentenced to twelve years; (3) Ahmed Al Faqi Al-Mahdi, convicted on September 27, 2016, pursuant to a guilty plea, for the war crime of attacking religious and historical buildings in Timbuktu, and sentenced to nine years; (4) Bosco Ntaganda, convicted on July 8, 2019, of eighteen counts of war crimes and crimes against humanity in Ituri, and sentenced to thirty years; and (5) Dominic Ongwen, convicted on February 4, 2021, of sixtyone counts of war crimes and crimes against humanity in Northern Uganda. Jean-Pierre Bemba was originally convicted on March 21, 2016, for war crimes and crimes against humanity, including sexual violence committed in CAR, but was acquitted on appeal. Lubanga and Katanga have been released, having served their sentences. In Lubanga’s case, his community celebrated his return. The Court faced many problems at trial. In the trial of Lubanga, the first witness famously recanted his testimony, and the Trial Chamber heavily criticized the Prosecution for its reliance on intermediaries.7 Katanga was acquitted of all the original charges leveled against him and was only convicted because a majority of the Trial Chamber re-characterized certain crimes.8 Four other accused from DRC were convicted for offences against the administration of justice. On June 8, 2018, in an epic setback, the Appeals Chamber acquitted JeanPierre Bemba, deciding that the Trial Chamber had “failed to appreciate 5

ICC website as of December 2020. Richard Goldstone. Acquittals by the International Criminal Court, EJIL Talk January 18, 2019. 7 Prosecutor versus Thomas Lubanga Dyilo, Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings,” Case No. ICC-01/04-01/06, March 7, 2011. 8 Prosecutor versus Germain Katanga, Judgment, Minority Opinion of Judge Christine van den Wyngaert, ICC-01/04-01/07-3436-AnxI, March 7, 2014, paras. 138–39, 140. 6

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Appendix B

293

limitations” that Bemba faced in his role as remote commander to troops deployed to the CAR, in the investigation and prosecution of their crimes.9 On January 15, 2019, Trial Chamber I acquitted Laurent Gbagbo and Charles Blé Goudé from all charges against them, at the end of the Prosecution case.10 The Trial Chamber found that the Prosecutor failed to demonstrate several core constitutive elements of the crimes as charged. The acquittal was upheld by the Appeals Chamber in a decision of March 31, 2021. The Prosecutor has a particularly poor record prosecuting heads of state. First, a PTC dismissed genocide charges against Sudanese President Omar Al-Bashir, even though the ICC Prosecutor had compared the situation in the camps in Darfur to the concentration camps of Nazi Germany.11 Charges against Qadhafi were brought within three months, but Qadhafi was killed shortly afterward. In the case of Laurent Gbagbo, the confirmation of charges was delayed so that the Prosecutor could expand the charges against him, which were underpinned by “apparently insufficient” evidence.12 In another notoriously high-profile setback, on December 5, 2014, the Prosecutor announced the withdrawal of charges against Uhuru Kenyatta.13 One witness had to be withdrawn from the case after admitting that he had provided false evidence, and another had indicated he was no longer willing to testify, so that there was insufficient evidence to proceed to trial. The Kenyatta case raised the difficult question of why the Prosecution chose to proceed on thin evidence in such a high-profile case. Witness interference has accompanied many cases brought at the ICC.14 A subsequent expert report on the Kenyatta trial concluded that 9

Wairagala Wakabi. Bemba Acquitted of War Crimes at the ICC. International Justice Monitor, June 8, 2018. 10 ICC Press Release. ICC Trial Chamber I Acquits Laurent Gbagbo and Charles Blé Goudé of All Charges against Them, January 15, 2019. 11 Mahmood Mamdani. Beware Human Rights Fundamentalism, Mail and Guardian Opinion, March 20, 2009. 12 The Trial Chamber observed that of forty-five incidents with which Gbagbo was charged, “the majority of them are proven solely with anonymous hearsay from NGO Reports, United Nations reports and press articles. As explained above, the Chamber is unable to attribute much probative value to these materials.” Prosecutor vs Laurent Gbagbo, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02-11-01/11m June 3, 2013, at para 36. 13 Marlies Simmons and Jeffrey Gettleman. International Court Ends Case against Kenyan President in Election Unrest: Uhuru Kenyatta Faced Allegations of Crimes against Humanity, International New York Times, December 5, 2014. 14 For a narrative and journalistic account of many of the trials, see Tjitske Lingsma. All Rise: The High Ambitions of the ICC and the Harsh Reality. Ipso Facto, Utrecht (2017). The ICC has faced major challenges in providing adequate protection and support to witnesses. Gaelle Carayon and Jonathan O’Donohue. The International Criminal Court’s Strategies in Relation to Victims. Journal of International Criminal Justice, Vol. 15, No. 3 (July 1, 2017) pp. 567–91.

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the first Prosecutor chose a target-based approach and micromanaged the OTP to the detriment of prosecutors developing a strong case, and that the threat against witnesses was gravely underestimated.15 If the Court is to be judged solely by facts and figures relating to its investigations and prosecutions, its record is poor. Apart from trials, the OTP has a poor record on confirmation of charges.16 In the words of HRW, “the ICC’s investigations and prosecutions have failed to demonstrate coherent and effective strategies for delivering meaningful justice to affected communities.”17 Neither are there many cases awaiting trial.18 The poor track record of the ICC has led to calls to evaluate its performance. In 2019, four ex-Presidents wrote in an op-ed: “we are disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential.” The op-ed was one of the triggers for the IER.19 B  Factors Impacting Performance A number of policy choices contributed to the low number of cases and convictions at the ICC. Some of these have been debated over the years and are briefly described below. Other factors that impinge on the length and efficiency of proceedings are not described here, except to note that the IER spoke of “an urgent need for the Court to consider and adopt practices enhancing the efficiency, effectiveness, considerateness, courtesy, and fairness of proceedings.”20 15 16

17 18

19 20

Tom Maliti. Experts Say OTP Did Not Follow Evidence in Collapsed Kenya Cases. International Justice Monitor, December 10, 2019. The PTC failed to confirm charges against Callixte Mbarushimana; Abu Garda (who successfully brought evidence of an alibi, almost unheard of in international criminal proceedings); Henry Kosgey; and Muhammed Hussein Ali. Charges against another Kenyan accused, Francis Muthaura, were withdrawn after the Prosecutor admitted, “several people who may have provided important evidence regarding Mr. Muthaura’s actions, have died, while others are too afraid to testify for the Prosecution.” Statement by ICC Prosecutor on the Notice to withdraw charges against Mr. Muthaura, March 11, 2013. HRW. Unfinished Business: Closing Gaps in the Selection of ICC Cases, September 2011. Currently the trial of Dominic Ongwen, the only accused from the Lord’s Resistance Army to be surrendered to the ICC is awaiting judgment. The trial of Al Hassan (Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) from Mali started in July 2020 and Alfred Yekatom and PatriceEdouard Ngaissona from the CAR, are awaiting trial. The International Criminal Court Needs Fixing, an op-ed by four ex-Presidents of the ASP on April 24, 2019, on the Atlantic Council website. IER, para. 983.

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1  From Sensation to Investigation One factor that accounts for low numbers in the Court’s investigations and prosecutions is the Court’s approach to “focused investigations,” under which investigative teams were kept small and rotated between different situations and cases.21 The number of incidents investigated per case was kept purposely small.22 However, the investigative teams of the ICC were criticized for lack of seniority and experience.23 This resulted in “active investigations which are understaffed and investigations in hibernation where the capacity is lacking to maintain contact with the witnesses and preserve their cooperation.”24 During the early phases of the investigation, time in the field was often minimized.25 Decisions on how to structure investigations sought to conserve resources, but led to poor results in court.26 In its Strategic Plan of 2019–2021, the Prosecutor reflected and concluded that: [T]hose cases that had unsatisfactory results in court in particular, resulted from a mixture of causes, including the residual effects of a previous strategy, a need to further strengthen the present strategy, cooperation and security challenges, and difficulties in appreciating legal standards flowing from sometimes conflicting jurisprudence and practice.27

However, the OTP has pointed out that its approach to investigations has changed significantly since 2012 and that it has resulted in improvements (the so-called Investigations 3.0 approach).28 The approach of focused investigations was completely abandoned. Current investigative teams usually have a size of about ten to telve investigators, with two or three analysts. The OTP has compiled a “basic size document,” which makes recommendations on the standard composition of an investigative team, but this could not always be adhered to due to budget constraints. 21 22 23

24 25 26 27 28

Christian De Vos. Investigating from Afar: The ICC’s Evidence Problem. Leiden Journal of International Law, Vol. 26, No. 4 (December 2013) pp. 1009–24. OTP Strategic Plan June 2012–2015, para. 48. HRW. Courting History: The Landmark International Criminal Court’s First Years (2010) p. 47. Many senior investigators left the court since 2005, alleging that the input of investigators is not sufficiently valued within the OTP. OTP Strategic Plan June 2012–2015, para. 17. HRW. Courting History. See also War Crimes Research Office, Investigative Management, Strategies and Techniques of the ICC OTP, 2012. Alex Whiting. Guest Post: ICC Prosecutor Announces Important Changes in New Strategic Plan, Just Security Blog, October 24, 2013. OTP Strategic Plan 2019–2021. Response of the OTP to OSJI et al. report of workshop held on March 25–26, 2020.

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Increasingly, the OTP engaged senior investigators with experience of complex crime investigations both at international tribunals and on the domestic level, as well as investigators with local knowledge or context expertise. Furthermore, the “OTP agrees that establishing a field presence during an investigation, where possible, is essential.”29 According to its Strategic Plan, the OTP is constantly seeking to adapt its investigative strategies and methods, together with partners from investigative and prosecutorial agencies in different countries. It has reinforced quality control of its investigations and prosecutions, for instance, by deploying enhanced field presences in order to “increase situational awareness and reduce costs.”30 It also invested in information technology streamlining its information, knowledge, and evidence management framework across different sections of the office. In addition, the role of the JCCD was clarified in recent years: This section in particular was criticized in the days of the first Prosecutor, for exceeding its role. In some areas, the OTP engages in innovative investigative work, including in online or remote investigations and big data management, including analysis of communication-related data and intercepts. All in all, these changes should lead to improved results, as argued by the OTP: No one in the OTP is complacent about investigations, because, without competent investigations, nothing can be accomplished in Court, nor the ICC project of accountability and deterrence advanced.31

At the same time, the IER still concluded that the Investigations and Prosecution Divisions are still understaffed.32 The IER also recommended other changes, including situation-specific strategic planning per investigation, and stronger partnerships with other entities, more field presence, a strengthened role for analysts, and more quality control on evidence reviews.33 So far, the improvement in results remains to be seen.

29 30 31 32 33

Ibid., p. 9. OTP Strategic Plan 2019–2021. Response of the OTP to OSJI et al. report of workshop held on March 25–26, 2020, p. 15. IER, para. 178. IER, Section XIV. Investigations. The IER identifies the elements that should be part of the strategic plan in Recommendation 270: (1) the goals of the investigation, (2) the main incidents identified and discreet investigative strategies, (3) a matrix of incidents with potential suspects, (4) the types and value of evidence, (5) analysis requirements, (6) field presences, (7) prospects for arrest, (8) resources necessary, and (9) closure and hibernation.

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2  Focus on “Those Bearing the Greatest Responsibility” Another factor that contributes to low numbers of successful prosecutions is the focus of the ICC on those of the highest levels of responsibility.34 Investigating only small numbers of those at the top does not necessarily require building a solid investigative “pyramid” of evidence. Moreover, it can run the risk of perpetrator-­focused rather than evidence-led investigations. The Appeals Chamber in Ntaganda found that the focus on those bearing the greatest responsibility is a policy, but not a legal requirement.35 As mentioned, in 2012, the Prosecutor changed her approach to investigations, to replace focused investigations with “the principle of in-depth, openended investigations while maintaining focus,”36 and said that in some cases she will focus on lower and mid-level perpetrators in order to build better cases.37 In the words of the OTP: “the Office has made a radical shift in strategy away from focused (a less broad evidentiary base) and phased (only ready for each phase of the proceedings) investigations and prosecutions toward a strategy aimed at open-ended, in-depth investigations with a stronger base and with the aim to be trial-ready as early as possible, and in any event no later than the confirmation of charges hearing.”38 At the same time, even though the investigative policies of the second Prosecutor have differed from the first Prosecutor, she issued very few new arrest warrants during her mandate (although most of these were for mid-level perpetrators). The focus on African heads of state and other senior figures resulted in an extensive powerplay with African politicians, which has undermined the Court. 3  Uncooperative States The ICTY, like its predecessors, the International Military Tribunals at Nuremberg and Tokyo, could rely on significant support from IFOR and SFOR, international forces deployed to the former Yugoslavia, particularly in conducting arrests. This is not the case for the ICC.

34

35 36 37 38

Paul Seils. The Selection and Prioritization of Cases by the Office of the Prosecutor of the International Criminal Court, in Case Selection and Prioritization, edited by Morten Bergsmo. FICHL, Publication Series No. 4 (2010) p. 69. Ibid. OTP Strategic Plan, June 2012–2015, para. 6. Ibid., para. 4. OTP Strategic Plan 2019–2021.

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The challenge of uncooperative states, combined with an ASP that has not adequately responded to this challenge, is a factor in the Court’s poor performance. In Sudan and Libya, the two countries subject to a Security Council referral, no efforts were made to date to arrest and surrender suspects. Even after Omar Al-Bashir was ousted from power in 2019, he still remains in Sudan, under house arrest. Prior to this, Omar Al-Bashir traveled to several Rome States Parties who did not arrest him, including Kenya, South Africa, and Uganda, prompting much debate about whether they were under a legal duty to do so. In May 2019, the Appeals Chamber ruled controversially that Jordan should have arrested him when he visited there on March 29, 2017, even though he was a Head of State at the time.39 4  Security and Logistical Challenges Compared to some other tribunals, the Court faces the security challenge of investigating crimes that are committed in “real time” and during ongoing conflicts. Proponents of real-time prosecutions argue that “memories fade over time, witnesses move or pass away, documentary or physical evidence can be lost, and suspects may no longer be available for prosecution.”40 Conversely, Whiting argues: “in war crimes cases delay can often be essential for allowing the truth to emerge, which means that a rush to prosecute may result in incomplete justice.”41 But the fact remains that many of the countries where the Court is working are among the most violent and fragile in the world, and conducting investigations there is naturally challenging in security and logistical terms. This would point to the need for a lot of knowledge on context, but this is where the the capacity of the Court is thin. The IER has pointed out that “there is a substantial problem with regard to the absence in the OTP (and the Court as whole) of sufficient expertise relating to situation countries.”42 It encourages the OTP to make increased use of field offices,43 and points to the “numerous accounts of disconnect between the staff in the field and The Hague.”44 39 40 41 42 43 44

Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re. Al-Bashir Appeal, ICC-02/05-01/09-397-Corr, May 6, 2019. HRW. Seductions of “Sequencing”: The Risks of Putting Justice Aside for Peace, December 2010, pp. 3–4. Alex Whiting. In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered. Harvard International Law Journal, Vol. 50, No. 2 (Summer 2009) p. 326. IER, para. 170. Ibid., para. 198. Ibid., para. 200.

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5  Large Volume of Cases vs. Limited Resources To make a fair assessment, the Court’s performance should be assessed against limits on its resources.45 The question of allocation of resources is largely in the domain of the ASP, which approves the annual budget. As described by Whiting, “the ICC cannot focus on just one conflict or set of conflicts for a prolonged period. Rather, it must, with roughly the same resources, investigate and prosecute cases across a range of situations around the world.”46 This precisely is the challenge. The Court itself has adhered to a “Basic Size” assessment and “­limited growth” model encouraged by the ASP. The budget of the ICC is allocated with accountability to its organs. The Court’s annual budget is roughly equal to that of the ICTY at the height of its operations, and its staff is roughly the same. This has prompted some debate on whether it is fair to compare the ICTY and the ICC. Stuart Ford has calculated that the ICC spends less of its budget on investigations and trials and more on administration. He has calculated that the ICC spends 71.8% of its budget on staff and almost 10% more on staff posts than the ICTY. 47 This raises concerns over efficiency. At the preliminary examination stage, once a situation is selected, there is no discretion except to proceed, provided that the conditions of jurisdiction, admissibility, and the interests of justice are met. This creates a bottleneck and may necessitate the Court to apply case selection and prioritization to hibernate investigations for which there are insufficient resources or where there is little feasibility to achieve results.48 For years, since the economic crisis in 2008, the Court has continuously faced a zero-growth budget, forcing it to do more with less. Due to the variety in the situations under its purview, the Court does not necessarily benefit from an “economy of scales” in its additional investigations. In this respect, it can be argued that the global nature of the ICC is not a merit, but a flaw. It does not set any inherent limit on what the Court is expected to do. In his dissenting opinion in the decision opening the Kenya investigation, Judge Hans-Peter Kaul of Germany warned that if the scope of ICC 45 46 47 48

A 2003 paper on some policy issues before the OTP states that “the Office should endeavor to maximize its impact while operating a system of low costs.” Whiting. Guest Post, at Just Security blog. Stuart Ford. How Much Money Does the ICC Need? The Law and Practice of the International Criminal Court, edited by Carsten Stahn. Oxford University Press (2015). Response of the OTP to OSJI et al. report of workshop held on March 25–26, 2020, p. 4.

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interventions were stretched out this far, it would result in a “hopelessly overstretched, inefficient international court, with related risks for its standing and credibility.”49 This prediction is increasingly accurate.

II  A Global Court without Universality? Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must. Thucydides

The legitimacy of international criminal justice institutions has been described as weak at birth, and such institutions must battle to gain acceptance, support, and credibility with time.50 However, the legitimacy of the ICC remains a challenge twenty years on. The strongest support for the Court continues to come from the EU, Latin America, and certain African states, and not from the great powers. Opposition to the Court has gone through various phases. The first decade, and half of the second, was marked by African opposition to the ICC, culminating in some withdrawals, but never resulting in the mass withdrawals that were rumored. However, in the last few years, the Court broadened its purview, taking on powerful states. The political challenges to the Court have changed. On the one hand, the Court suffers from attacks by powerful states. While a certain block of states, the “like-minded” group, has generally sought to protect the Court, even their support is not always consistent when it comes to dealing with “hard cases” such as Afghanistan and Palestine. On the other hand, the last few years have also seen the first cases of referrals by third states, in the case of Venezuela, and the creative approach of the Prosecutor on Myanmar. Nonetheless, the Court is buckling under the weight of the many preliminary examinations and investigations before it, so it is not clear if this increased geographic scope of cases will quickly bolster its credibility.

49

50

Dissenting Opinion of Judge Hans-Peter Kaul in Pre-Trial Chamber II, “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya,” ICC-01/09-19-Corr 01-04-2010 (March 31, 2010). Carsten Stahn. Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal justice? Leiden Journal of International Law, Vol. 5, No. 2 (2012) p. 258. Klarin refers to “four battles” as including the battle for survival, the battle for respect, the battle for hearts and minds, and the battle for time. Mirko Klarin. The Tribunal’s Four Battles. Journal of International Criminal Justice (2004) pp. 546–57.

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A  Reliance on Self-Referrals: Focus on Africa Out of ten initial investigations originally pending before the ICC, six were African self-referrals (Uganda, DRC, Côte d’Ivoire, Mali, and two from CAR). Supporters of the Court argue that the fact that so many situations before the Court were triggered by self-referrals is evidence of the legitimacy of the Court.51 Instead, the Court’s reliance on self-referrals in Africa has contributed to a view within Africa that the Court was opportunistic and politicized.52 The Court’s practice on accepting referrals has made it appear that the Court was intent on picking low-hanging fruit, while avoiding situations that would aggravate powerful states.53 B  Impact of Security Council Referrals on Legitimacy Initially, it seemed as if Security Council referrals might serve to further legitimize the Court.54 The second Security Council referral on Libya Resolution 1970 (2011) was discussed only for a day before the Security Council adopted it unanimously in March 2011.55 The first Prosecutor argued that the relationship between the ICC and the Security Council in the Libyan case should be viewed as a new paradigm for international relations, one of a global acceptance of the ICC.56 However, in the words of former ICTY Prosecutor Arbour: “two referrals by the Security Council

51

52

53

54

55

56

Yuval Shany. Assessing the Effectiveness of International Courts. Oxford University Press (2014) p. 244. See also Avocats Sans Frontieres. Africa and the International Criminal Court: Mending Fences, July (2012) p. 8. See Chapter 7 on perceptions. Max du Plessis. Universalising International Criminal Law: The ICC, Africa and the Problem of Political Perceptions, ISS, December 6, 2013. See also Alana Tiemessen. The International Criminal Court and the Politics of Prosecutions. International Journal of Human Rights, Vol. 18 (2014) pp. 444–61. Sarah Nouwen and Wouter Werner. Doing Justice to the Political: The International Criminal Court in Uganda and Sudan. European Journal of International Law, Vol. 21, No. 4 (2010). See also Tiemessen. The International Criminal Court and the Politics of Prosecutions. On March 31, the Security Council adopted Resolution 1593, referring Darfur to the ICC, with eleven votes in favor (nine of which were States Parties) and four abstentions, including Algeria, Brazil, China, and the United States. Carsten Stahn. Libya, the International Criminal Court and Complementarity: A Test for “Shared Responsibility.” Journal of International Criminal Justice, Vol. 10, No. 2 (2012) pp. 325–49. Luis Moreno Ocampo. Gruber Distinguished Lecture in Global Justice, at Yale (unpublished, on file with author). Luis Moreno Ocampo. The Gaddafi Case, NYU School of Law’s Hauser Colloquium on International Law, September 2013.

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to the ICC, in the cases of Darfur and Libya, have done little to enhance the standing and credibility of the ICC, let alone to contribute to peace and reconciliation in their respective regions.”57 The Libyan referral, originally mandated to protect civilians, was part of a Security Council approach that led to an overthrow of the regime.58 Immediately afterward, it is interesting to note that even the states who promoted the referral considered brokering a political deal in contradiction to the Security Council referral.59 Attempts to refer the conflict in Syria to the ICC via the Security Council proved impossible, resulting in vetoes exercised by Russia and China.60 This has rendered the ICC irrelevant to the conflict in Syria, one of the largest-scale conflicts since WWII. C  Threat of Withdrawals The travails of the ICC are reflected in the fact that some countries withdrew from the Rome Statute or are contemplating withdrawal. So far, these are mostly countries which have come under investigation. In late 2016, a number of countries announced that they were seeking to withdraw from the Rome Statute.61 The first was Burundi, which is subject to an investigation by the ICC. However, it was soon followed by South Africa, a country that had long been supportive of the ICC.62 South Africa was criticized for ignoring an ICC order to arrest Sudanese President Omar Al-Bashir during his visit in 2016. Shortly thereafter, the Gambia also announced it was withdrawing from the Rome Statute, President Jammeh referring to the Court as an “International Caucasian Court.”63 In November 2016, Russia announced that it would seek to “un-sign” the Rome Statute, which it had signed in 2000, because “[t]he ICC has not justified hopes placed upon it and did not become a truly 57 58 59

60 61 62 63

Louise Arbour. Doctrines Derailed? Internationalism’s Uncertain Future, International Crisis Group’s Global Briefing, October 28, 2013. Security Council Resolution 1970 (2011). William Hague, less than one month after the Court issued arrest warrants, said that a deal may be possible allowing Qadhafi to stay in Libya—while evading questions on whether he should be given immunity. Nicholas Watt and Richard Norton Taylor. Muammar Qadhafi Could Stay in Libya, William Hague Concedes. The Guardian, July 25, 2011. The suggestion of a deal was supported by the United States and Italy: Julian Borger and Richard Norton-Taylor. Diplomats Discuss Libya’s Future as Italy Plots Gaddafi’s Escape Route. The Guardian, March 29, 2011. UN News Center. Russia, China Block Security Council Referral of Syria to the International Criminal Court, May 22, 2014. A mass withdrawal had long been referred to in AU meetings but had not yet occurred. The Guardian. South Africa to Quit the ICC, October 21, 2016. Reuters. Burundi Notifies UN of ICC Withdrawal, October 26, 2016.

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independent  and authoritative judicial body.”64 (This took place against a backdrop of criticism of Russia’s armed interventions in Ukraine and Syria.) However, the tide of States seeking to withdraw turned. President Jammeh was overthrown in the Gambia, and his successor, Adama Barrow, announced in early 2017 that it would not withdraw from the ICC.65 Not long thereafter, South Africa announced in a letter to the UN Secretary General that its High Court had ruled that the letter of withdrawal was “unconstitutional and invalid,” considering that Parliament had not been consulted.66 This is not to say the Court’s troubles are permanently abated.67 On March 14, 2018, President Duterte of the Philippines announced it would withdraw from the Rome Statute, after the OTP opened a preliminary examination into his war on drugs.68 In 2019, Malaysia also backtracked on its ratification of the Rome Statute. These developments raise the fundamental question of how long the Court will be able to continue as a “less-than-universal” project. At some point in the future, states may no longer want to subject themselves to a legal regime that does not bind the powerful.69

III  Damned If You Do, Damned If You Don’t: The Hard Cases The perception that the ICC avoids powerful states was long strengthened by the Court’s previous (in)action in “hard cases,” including Afghanistan, Iraq, and Palestine. Not acting in these cases affected the Court’s legitimacy by making it seem beholden to powerful states. On the other hand, acting on 64 65 66 67

68 69

Lizzie Dearden. Independent, Russia to Withdraw from ICC amid Calls for Syrian Air Strikes Investigation, November 16, 2016. See www.africanews.com/2017/02/09/the-gambia-will-remain-in-the-icc-president-barrowconfirms/. Norimitsu Onishi. South Africa Reverses Withdrawal from ICC. New York Times, March 8, 2017. At the ASP in December 2017, South Africa’s Justice and Correctional Services Minister, Michael Masutha, announced that he would file a new notice of withdrawal from the Rome Statute with the South African Parliament. Peter Fabricuis. South Africa Confirms Withdrawal from the ICC. Daily Maverick, December 7, 2017. The Guardian. Rodrigo Duterte to Pull Philippines out of the International Criminal Court, March 14, 2018. This has long been the argument of Third World Approaches to International Law scholars such as Antony Anghie. Anghie argues that the non-European world is peripheral to the making of international law. Anghie suggests that TWAIL needs to make the experience of the disadvantaged the basis of an inquiry about what should constitute international law. Antony Anghie. LatCrit and TWAIL. California Western International Law Journal, Vol. 42 (2012) p. 311.

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these cases has ignited the wrath of powerful states, with consequences that remain to be seen. A.  Allegations against the UK in Iraq On February 9, 2006, the OTP published a letter to state it had decided not to open an investigation into communications dealing with war crimes committed during military operations by UK soldiers in Iraq between March and May 2003. This was because the number of willful killings (less than twenty in all) did not meet the required level of gravity because these crimes did not appear to be committed “as part of a plan or policy.” On January 14, 2014, the German-based European Center for Constitutional and Human Rights and a UK law firm, Public Interest Lawyers, announced it had filed with the Court a 250-page document, detailing 412 cases of grave mistreatment against detainees, including 200 unlawful killings, eleven deaths in custody, and many cases of torture.70 It since gave additional information on a total of 1,071 cases of ill-treatment of detainees, 319 alleged unlawful killings (including fifty-two in detentions), and twenty-one rapes of male victims.71 The OTP concluded that there is a reasonable basis to believe that UK nationals committed Rome Statute crimes in the context of Iraq. However, on December 2020, it issued a 184-page report closing the preliminary examination, stating that it “could not substantiate allegations that the UK investigative and prosecutorial bodies had engaged in shielding, based on a careful scrutiny of the information before it.” This is in spite of the fact that the UK’s Iraq Historic Allegations Team was shut down and that no charges had been brought against any soldiers. The UK authorities themselves cited a “dearth of forensic evidence and inconsistencies in witness testimony given the historical nature of the investigations, years after the events.”72 B  The Palestinian Situation The Israeli incursion into Gaza in 2009, Operation Cast Lead, resulted in over 1,200 Palestinian deaths, many of them civilians, as documented in the Human Rights Council’s “Goldstone Report.”73 On January 22, 2009, Ali 70

71 72 73

European Center for Constitutional and Human Rights/Public Interest Lawyers. The Responsibility of UK Officials for War Crimes Involving Systematic Detainee Abuse in Iraq from 2003 to 2008, p. 6. OTP Report on Preliminary Examination Activities, 2016, para. 87. OTP Final Report: Situation in Iraq/UK (December 9, 2020). Report of the United Nations Fact Finding Mission on the Gaza Conflict (“Goldstone Report”), A/HRC/12/48, September 25, 2009.

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Kashan, then Minister of Justice of the government of Palestine, filed an Article 12(3) declaration for “acts committed on the territory of Palestine since 1 July 2002.” Reportedly, members of the OTP encouraged the Palestinian Authority to file the declaration, in order to gain credibility with the Arab street to counter criticism over the arrest warrant against Omar Al-Bashir.74 Over the next three years, the OTP solicited views on whether it should accept the declaration but finally issued a decision on April 3, 2012, of only two pages. It concluded that “it is for the relevant bodies at the United Nations or the ASP to make the legal determination whether Palestine qualifies as a State for the purposes of acceding to the Rome Statute and thereby enabling the exercise of the jurisdiction of the Court under article 12 (1).”75 In 2013, the OTP argued that the United Nations General Assembly Resolution (67/19), adopted on November 29, 2012, recognizing Palestine as a nonmember observer state to the United Nations did not “cure the legal ­invalidity” of the 2009 declaration, since Palestine had not acceded to the Rome Statute.76 Several states including Canada, Germany, The Netherlands, the UK, and the United States voted against or abstained from a General Assembly Resolution recognizing Palestine as a state, arguing that statehood could result in an ICC prosecution and that this would hinder the pursuit of peace.77 Israel threatened to abandon peace negotiations if Palestine initiated any action at the Court.78 In July 2014, a widespread conflict broke out once more in Gaza, under operation “Protective Edge.” In the aftermath, the Guardian newspaper alleged that the decision of the Prosecutor not to open an investigation on Palestine was the result of political pressure,79 but this was denied by the

74

75 76

77 78 79

Morten Bergsmo, Wolfgang Kaleck, Sam Muller, and William Wiley. A Prosecutor Falls, Time for the Court to Rise. Torkel Opsahl Academic E-Publisher. FICHL Policy Brief Series No. 86 (2017). ICC-OTP. “Situation in Palestine,” April 3, 2012. The comments were an answer to a legal opinion filed by two well-respected human rights organizations, Al-Haq and the Palestinian Center for Human Rights, in October 2013 arguing that if the goal of the Statute is to end impunity, the Court should accept jurisdiction on the basis of the Article 12(3) declaration, in spite of the fact that Palestine has not yet acceded to the treaty. Harriet Sherwood, ICC Urged to Investigate “Commission of Crimes” in Palestinian Territories. The Guardian, October 4, 2013. www.theguardian.com/world/2013/ oct/04/icc-urged-investigate-commission-of-crimes-palestinian. Anthony Dworkin. Case Study: Goldstone and After—Judicial Intervention and the Quest for Peace in the Middle East. European Council on Foreign Relations, November 5, 2013. Sherwood. ICC Urged to Investigate “Commission of Crimes” in Palestinian Territories. Julian Berger. Hague Court under Western Pressure Not to Open Gaza War Crimes Inquiry. The Guardian, August 18, 2014.

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Prosecutor.80 On January 2015, Palestine acceded to the Rome Statute accepting the ICC jurisdiction since June 13, 2014, through an Article 12(3) declaration. On January 16, 2015, the Prosecutor opened a preliminary examination on the situation in Palestine. Israel immediately responded by lobbying Australia, Canada, and Germany to cut funding to the ICC—to no avail.81 The OTP started the process of gathering relevant submissions and available information. It also paid visits to Palestine and Israel.82 The situation involves many complex legal and factual questions, but the OTP stated it would reach conclusions within a “reasonable time frame.”83 On May 15, 2018, the State of Palestine itself made a referral to the ICC pursuant to Articles 13(a) and 14 of the Rome Statute.84 The scope of the referral encompasses Israel’s settlement policy, arguing that it constitutes both a wide variety of war crimes and a crime against humanity. Palestine, in its referral argues, “ensuring justice and accountability is crucial to achieving peace, to deterring the commission of crimes, and to the integrity and credibility of the ICC itself.”85 On December 20, 2019, the Prosecutor announced that she had concluded her preliminary examination into the situation in Palestine “with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.” She concluded that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (‘Gaza’)” and that potential cases would be admissible. The Prosecutor sought a ruling from the PTC, not on authorization, since jurisdiction arose from the referral, but on the scope of the territorial jurisdiction for the ICC under Article 12(2)(a) of the Rome Statute in Palestine, and whether this territory could include the West Bank, including East Jerusalem, and Gaza. On February 5, 2021, the PTC issued a decision to confirm that the Court has jurisdiction over Palestine, including the territory occupied by Israel since 80

81 82 83 84 85

Fatou Bensouda. The Truth about the ICC and Gaza. The Guardian, August 29, 2014. See also Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: The Public Deserves to Know the Truth about the ICC’s Jurisdiction over Palestine, September 2, 2014: “The simple truth is that the Office of the Prosecutor has never been in a position to open such an investigation for lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.” See www.jpost.com/Arab-Israeli-Conflict/Liberman-We-will-lobby-Canada-Australia-andGermany-to-cut-ICC-funding-388099. OTP Report on Preliminary Examination Activities, 2016, paras. 140–43. OTP Report on Preliminary Examinations, 2017. Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute. www .icc-cpi.int/itemsDocuments/2018-05-22_ref-palestine.pdf. Referral, para. 7.

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1967 (Gaza, the West Bank, and East Jerusalem), making a finding not on Palestine’s statehood under international law, but simply on whether Palestine qualified as a State Party by acceding to the Rome Statute.86 The case of Palestine remains highly controversial. The legitimacy of the Court depends on its ability to try such “hard cases,” but the decision of the PTC was immediately denounced by Israel as “pure anti-Semitism,”87 and the  US State Department expressed “serious concern.” Palestinian leaders and human rights organizations welcomed the decision. On March 3, 2021, the Prosecutor announced she was opening an investigation, again provoking strong reactions from Israel and the United States: [T]he United States believes a peaceful, secure and more prosperous future for the people of the Middle East depends on building bridges and creating new avenues for dialogue and exchange, not unilateral judicial actions that exacerbate tensions and undercut efforts to advance a negotiated two-state solution.88

Some argue that taking on this conflict is a bridge too far for the Court and that “the Court’s long-term legitimacy is more important than any individual investigation, no matter how deserving of investigation a situation might be.”89 That view, however, undercuts the fundamental idea of universality and the global nature of the Court.

IV Conclusion Recent years have seen new innovations at the ICC. The OTP took an innovative and bold step in requesting a ruling on jurisdiction in the context of the intentional deportation of more than 670,000 Rohingya from Myanmar into neighboring Bangladesh, based on the reasoning that an essential legal element of the crime, the crossing of an international border, occurred on the territory of a State Party to the Rome Statute.90 On September 27, 2018, six states, Argentina, Canada, Colombia, Chile, Paraguay, and Peru, referred 86 87 88

89 90

ICC Press Release. ICC Pre-Trial Chamber I Issues Its Decision on the Prosecutor’s Request Relating to Territorial Jurisdiction over Palestine, February 5, 2021. Isabel Kerschner. ICC Rules It Has Jurisdiction to Examine Possible Israel War Crimes. New York Times, February 5, 2021. Press statement, Anthony Blinken. The United States Opposes the ICC Investigation into the Palestinian Situation, March 3, 2021. www.state.gov/the-united-states-opposes-the-iccinvestigation-into-the-palestinian-situation/. See Kevin Heller. Britain to Support Palestine’s GA Resolution? November 12, 2012. http:// opiniojuris.org/2012/11/26/britain-to-support-palestines-unga-resolution/#comments. Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC 44 (3)-01/18-1.

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The Local Impact of the International Criminal Court

the situation in Venezuela to the ICC for crimes committed since February 12, 2014. Later on, on February 13, 2020, the Venezuelan government itself also referred the situation to the ICC, in respect of the US sanctions against Venezuela. While these situations may be seen as an attempt to revive the idea of a universal Court, it remains to be seen whether they will compound the problems that the Court already faces in terms of lack of resources. Twenty years in, the ICC project is faltering. The Court should not be judged by facts and figures alone, but its performance has to improve. Its poor performance record gives rise to much criticism and has prompted an Independent External Review. The Review, with 384 recommendations, has highlighted numerous ways in which the internal workings of the Court ought to be improved. The question however will be whether these recommenda­ tions go far enough. So far, states that support the Court neither want to amend the Rome Statute nor increase resources available to the Court. It may be that the Court has stretched itself too thin. Within its existing resources, being involved in so many situations will ultimately detract from the ability to play more than a perfunctory role in any situation. The political environment in which the Court finds itself remains a fundamental challenge. Supporters of the Court continue to insist that universality of the Court is the ultimate aim and that the Court must be global to be seen as legitimate. The current situation is still that “powerful actors in the international arena are in position to ignore the demands of international courts, and the sword of justice tends to be used most against individuals from states that occupy a lowly place in the de facto existing hierarchy of states.”91 The Appeals Chamber decision on Afghanistan was crucial in this regard: without it, withdrawals of states from the Court may have accelerated. The absence of universality, if not addressed in the Court’s approach to “hard cases,” may well determine whether it will still be around in the decades to come. In the words of Jean Ping, Chairman of the African Union: “The law should apply to everyone and not only the weak.”92 91 92

Mirjan Damaška. What Is the Point of International Criminal Justice? Chicago-Kent Law Review, Vol. 83, No. 239 (2008) p. 330. Sudan Tribune. AU Backs Sudan President in ICC Row, February 3, 2009. As stated by Mamdani: “the fact that the court is answerable to the Security Council means that it will create a regime for impunity for its permanent members and their close allies or clients. Anyone following the practice of the court since its creation will find these fears warranted.” Guernica, The Genocide Myth: Joel Whitney Interviews Mahmood Mamdani, May 12, 2009.

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Index

Abdel-Jalil, Mustafa, 233, 239 Achellam, Caesar, 94 Acholi people, 219n11, 220n18, 221–26, 228–31 admissibility same person same conduct test, 59–60 two-prong test, 55–57 admissibility challenges, 57, 60–64 and due process theory, 70–72 Afako, Barney, 116, 150, 155, 156, 159 Afghanistan amnesty law, 142–46 as test for transformative effect, 44 Call for Justice report, 254–55 child recruitment, 88 death penalty, 88 demonstration effect of ICC, 248–58 deterrent effect of ICC, 20 do no harm principle, 124 domestic proceedings, 135 effect of ICC arrest warrants, 134–39 extent of ICC involvement, 248–52 impact of United States, 5, 10, 135–38, 253–54, 256–57, 273 impunity and power of past warlords, 252–54, 257 interests of justice test, 122–23 internalization of Rome Statute International Crimes Directorate, 98–99 Rome Statute Crimes, 87–88 victims’ rights, 89 legal system, 249, 254 nature of conflict, 248–49, 252 outreach to victims, 193 perceptions of ICC, 256–58 prior transitional justice attempts, 253–56 security concerns, 69 state of justice system, 65 African Union, 131, 133–34, 210 aims of ICC. See goals of ICC Ainley, Kirsten, 9n2

Al Hassan, Ag Abdoul Aziz, 294n18 Alagi, Mohammed, 233 Al-Bashir, Omar Hassan Ahmad, 19, 61, 117, 293, 298, 305 Alfonsin, Raúl, 124n44 Al-Hassadi, Abdel-Aziz, 66 Al-Hussein, Prince Zeid Raad Zeid, 1 Ali, Muhammed Hussein, 294n16 Al-Keib, Abdurahhim, 239–40 Allen, Tim, 125–26, 230 Al-Mahdi, Ahmed Al Faqi, 27–28, 196, 199, 292 Al-Mahmoudi, Baghdadi, 78n139, 79n145, 240n138 al-Obaidi, Abdul-Ati, 79, 240 Aloisi, Rosa, 28 Al-Senussi, Abdullah, 62–63, 73–76, 80–81, 232, 240, 259–60, 264, 266 Al-Tuhamy, Mohamed Khaled, 63, 238 Alvarez, José E., 12 Al-Werfalli, Mahmoud, 19, 63–64, 238–39 al-Zwai, Belgassem, 79n146, 240n138 Ambos, Kai, 259n245 Amin Dada, Idi, 150, 219 amnesties Afghanistan, 142–46 Libya, 146–47, 234 Uganda, 141–42, 221–22 use generally by states, 140–41 Amnesty International, 71, 119, 162–63, 235–36 Anghie, Antony, 303n69 An-Naim, Abdullah Ahmed, 113 Annan, Kofi, 83 Appel, Benjamin, 17 Arbour, Louise, 140–41, 148, 301–302 Arendt, Hannah, 23n86, 24 Argentina, 307–308 Australian Defence Force, 139 Avocats Sans Frontiers, 108, 259n245 Axboe-Nielsen, Christian, 22

309

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310

Index

Bangladesh, 307 Barrow, Adama, 303 Bassiouni, Cherif, 235 Belfast Principles, 140n135 Bemba, Jean-Pierre, 5, 57–58, 189, 292–93 Bensouda, Fatou approach to investigations, 297 integrity of, 5 on Colombia national proceedings, 171–72, 177–80 on Juba Peace Talks, 157n55 on Palestine, 305–307 on peace versus justice, 121–22 on working methods of OTP, 46–47 US sanctions against, 138 Besigye, Kizza, 66n80, 156 Biden, Joe, 138 Bigombe, Betty, 119, 154 Birjandian, Saghar, 208 Bolton, John, 137 Bosco, David, 138 Bosnia, 181, See also International Criminal Tribunal for the former Yugoslavia (ICTY) Brahimi report, 26n102 Brahimi, Lakhdar, 253n209 Branch, Adam, 125, 132, 142, 151, 215 Burchard, Christoph, 22n80, 34 Burke-White, William W., 50–51 Burundi, 302 Cambodia, 99n96 Canada, 305, 307–308 Carayon, Gaelle, 191 case selection by ICC, 47 Cassese, Antonio, 21–22 Castañ o brothers, 163 Central African Republic (CAR), 57–58, 152, 199, 265–66, See also Bemba, JeanPierre; Ngaissona, Patrice-Edouard; Yekatom, Alfred Chatah, Mohamed, 20n71 Chavez, Hugo, 247 child recruitment and abduction, 15, 18, 57, 87n22, 88, 220 Chile, 307–308 China, 10, 302 Chissano, Joaquim, 162n82 Chui, Ngudjolo, 57 Cingranelli-Richards index, 17 Clark, Phil, 10 Cobia, Reverend Samuel, 97 collective responsibility, 22 Colombia and genuineness of national proceedings, 105–10, 267 as example for future, 268–69

child recruitment, 87n22 demonstration effect of ICC, 241–48 deterrent effect of ICC, 20 false positive cases, 103–105, 107–108, 176–77 Havana Agreement, 121, 149–50, 176 Agreement Regarding Victims, 169–70 background, 166–67 Comprehensive System of Truth, Justice, Reparations and Guarantees, 171–72 Special Jurisdiction for Peace, 172–77 ICC in shadows, 245 internalization of Rome Statute Context and Analysis Unit (UNAC), 94–96 modes of liability, 90 Rome Statute Crimes, 86–87 victims’ rights, 89 Justice and Peace Law (Law 975), 101–102, 105, 106, 108 background to, 242–43 empowerment of victims, 153–54 impact of Rome Statute, 163–66 public support for, 243 reparations paid, 244 land issues, 242 Legal Framework for Peace, 167–69, 181–82 saga of the letters, 177–80 nature of conflict, 241–42, 245 para-politics trials, 102–103, 107–108 peace with punishment model, 180–85 public opinion, 243, 245–48 ratification of Rome Statute, 100 referral of Venezuela, 307–308 relationship with ICC, 241 reparations and assistance payments, 198, 244–45 robustness of legal system, 265 truth-seeking, 244 views of judiciary on ICC, 246–47 complementarity flaws adversarial relationships, 60–64 blindness vis-à-vis due process, 70–72 competition for cases, 56–60 conclusions, 81–82, 263–65 Court-centric approach, 52–55 focus on small number of cases, 66–67 systemic problems in domestic systems, 64–66 where ICC unable to proceed, 67–70 meaning of term, 50 positive complementarity, 40, 50–51, 56, 266 Congo. See Democratic Republic of Congo (DRC) Coomaraswamy, Radhika, 18

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Index Côte d’Ivoire, 15, 198 Croatia. See International Criminal Tribunal for the former Yugoslavia (ICTY) Damaška, Mirjan, 14, 23 Dancy, Geoff, 41 Darfur conflict, 224 Davenport, David, 291n3 Daw, Mansour, 79n145, 240n138 de Greiff, Pablo, 194, 215, 269 de Gurmendi, Silvia Fernandez, 291 De Guzman, Margaret, 47 de Waal, Alex, 134 death penalty, 71, 88 Democratic Republic of Congo (DRC). See also Chui, Ngudjolo; Katanga, Germain; Lubanga, Thomas; Ntaganda, Bosco attack on LRA, 131 competition for cases, 57, 58 deterrent effect of ICC, 15, 18 Luanda Agreement, 152 UPDF activities in, 224 views on TVF activities, 205–206 demonstration effect assessment of, 29 conclusions, 258–60, 271–73 in situation countries Afghanistan, 248–58 Colombia, 241–48 Libya, 231–40 Uganda, 218–31 lessons from other tribunals, 33–39 meaning of term, 217 proposed framework, 45–48 deterrence function, 15–21 do no harm principle, 123–24, 196 failure in Kenya, 211–13 Donais, Timothy, 24n92, 215n184 Dorda, Abu Zaid, 79n145, 80, 240n138 Dostum, Abdul Rashid, 142–43, 253, 258 Drumbl, Mark, 25n97, 46, 84, 114 due process theory, 70–72 Dugard, John, 148 Duque, Iván, 175 Duterte, Rodrigo, 303 Egeland, Jan, 151 El Salvador, 140 Ellis, Mark, 80n147 Emmerson, Benedict, 81 Enough Project, 151 Escobar, Pablo, 184, 242 establishment of ICC, 10 European Center for Constitutional and Human Rights, 304 expectations of ICC. See goals of ICC

311

expressivism, assessment of condemning and prohibiting crimes, 27–28 demonstration effect, 29 derivative nature, 271–73 importance of, 26–27 justice for victims, 28 measurement, 27 uncertainty of impact, 263 Extraordinary Chambers in the Courts of Cambodia (ECCC), 37–38 Fahim, Mohammed Qasim, 142–43 FARC, 95, 166, 169–171, 171n141, 179–80, 241–42 Ferencz, Ben, 32 Finnstrom, Sverker, 155n37, 220, 229 Fletcher, Laurel, 23–24, 217 Ford, Stuart, 299 Freeman, Mark, 140 Frigaard, Siri, 181 Fulford, Judge Sir Adrian, 55, 190 GAD, 250 Gaddafi, Muammar. See Qadhafi, Muammar Gaddafi, Saif Al-Islam. See Qadhafi, Saif Al-Islam Gaddis, William, 1 Gambia, 302–303 Garda, Abu, 294n16 Gbagbo, Laurent, 5, 189–90, 293 Geneuss, Julia, 14 genuineness of national proceedings, 100, 266 assessing experiences of Colombia, 105–10 Georgia, 198 Germany, 99, 305, See also Nuremberg trial Ghani, Ashraf, 139, 146 Glasius, Marlies, 29 goals of ICC consensus on, 11–14, 262–63 deterrence, 15–21 expressivism, 26–27, 263 reconciliation, 21–24 retribution, 24–26 Goldston, James, 47n213 Goldstone, Richard, 281n50 Goodman, Ryan, 83–84 Gotovina, Ante, 22, 36n158 Goudé, Charles Blé, 5, 293 Greentree meetings, 52n7, 66 Guilfoyle, Douglas, 5 Guinea, 15 Haftar, Khalifa, 238 Hague, William, 302n59 Hartmann, Michael E., 65 Hayner, Priscilla, 15, 122n37, 268n9

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312

Index

Hekmatyar, Gulbuddin, 142–43, 146 Heller, Kevin Jon, 41n188, 70–72 Hezb-i-Islam, 144 historical record, 23–24 Hodžić, Refik, 22, 276n32, 277n38 Holmes, J. T., 72 Hovil, Lucy, 124–25 human rights considerations, 71 Human Rights Council, 304 Human Rights Watch, 18, 93, 107, 119, 146, 157, 169, 171, 227, 236, 237, 250, 255, 294 Ibrahim, Ahmed, 79n145, 240n138 impact of ICC. See also demonstration effect; performance of ICC; reparative effect; systemic effect; transformative effect maximizing, 273–81 measuring, 13, 39, 263 impunity gap, 54 impunity, defined, 12n13 in situ hearings, 55 Independent Expert Review (IER), 6, 11, 51, 193, 298 basic premise, 262 limitations of review, 8 on fewer and more comprehensive investigations, 279 on ICC strategy in Uganda, 203 on in situ proceedings, 55 on positive complementarity, 266 on reparations proceedings, 197 on victim participation and reparations, 45, 191, 192, 194, 215 India, 10 Indonesia, 10 interests of justice test interests and views of victims, 123–29, 267–68 pragmatism of Pre-Trial Chamber, 122–23 rigid stance of Prosecutor, 118–22, 267 internalization coercion versus persuasion debate, 83–84 conclusions, 113–16, 265–67 creation of specialist institutions Afghanistan International Crimes Directorate, 98–99 Colombia Context and Analysis Unit (UNAC), 94–96 importance as indicator, 92 Kenya proposed institutions, 96–98 Uganda International Crimes Division, 92–94 domestic adoption of legislation ICC procedures, 90–92 modes of liability, 90 Rome Statute Crimes, 85–88 victims’ rights, 89–90

genuineness of national proceedings Colombia domestic trials analysed, 100–110 importance as indicator, 99–100 impact of, 84 indicators of, 84–85 Kwoyelo trial, 110–13 meaning of term, 83 International Bar Association, 80 International Criminal Tribunal for Rwanda (ICTR) comparison with ICC, 292 criticisms of, 279 goals in sentencing judgements, 183 normative impact, 30–31, 33, 36–37 International Criminal Tribunal for the former Yugoslavia (ICTY) aims and expectations, 13, 21–22 and historical context, 23–24 and historical record, 23–24 as inspiration for UNAC, 95 author’s experience of, 1–2 comparison with ICC, 292, 299 criticisms of, 279 normative impact, 20, 30, 32–33, 35–37 Bosnia, 36 Croatia, 22, 36n158 Kosovo, 36n161 Serbia, 35–36 number of trials held, 181 on retribution and deterrence, 24, 183 support of international forces, 297 International Crisis Group, 65 International Federation for Human Rights (FIDH), 162–63, 188 Invisible Children, 131–32, 151, 225 Iraq, UK operations in, 304 Israel, 5, 193, 304–307 Jallow, Hassan, 20–21, 24n90 Jammeh, Yahya, 302–303 Japan, 99n96, 198n75, See also Tokyo trial Jaramillo, Sergio, 148, 164n100, 168n124 Jessberger, Florian, 14 Jinks, Derek, 83–84 Jo, Hyeran, 15, 16 Jordan, 298 Joya, Malalai, 254n215 Juba Agreement, 60, 71, 117, 120, 127, 131, 155–63, 285–86 justice versus peace dilemma. See peace versus justice dilemma Kagezi, Joan, 93 Kampala Review Conference 2010, 39, 40, 46, 56, 116–17, 120–21, 129, 255 Karadžić, Radovan, 33n136

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Index Karzai, Hamid, 142, 144, 254 Kashan, Ali, 304–305 Kastner, Philipp, 84 Katanga, Germain, 46n209, 57, 195–96, 199, 292 Kaul, Judge Hans-Peter, 299–300 Kazini, James, 130 Kendall, Sara, 191 Kenya deterrent effect of ICC, 15, 19 in situ hearings, 55, 69 internalization of Rome Statute modes of liability, 90 proposed specialized institutions, 96–98 Rome Statute Crimes, 85–86 victims’ rights, 89 limited focus of ICC, 67 no arrest of Al-Bashir, 298 public opinion on ICC, 209 relationship with ICC, 60–62, 209–11 reparative effect of ICC, 209–13 sexual and gender based violence, 212, 213 victim participation and reparations, 190, 193–94, 197 witness safety and intimidation, 69, 210–13 Kenyatta, Uhuru, 19, 61, 62, 67, 98, 118, 209–13, 270–71, 293–94 Khalili, Karim, 142–43 Khan, Ismail, 142–43, 253 Khan, Karim, 5–6 Kilo, Sam, 154 Kirsch, Philippe, 118 Klarin, Mirko, 35, 36, 300n50 Koh, Harold Hongju, 83–84, 264 Koizumi, Junichiro, 35 Kony, Joseph, 18, 68, 131–32, 157–60, 184, 219, 220 Kosgey, Henry, 294n16 Koskenniemi, Martti, 12n15 Kosovo. See International Criminal Tribunal for the former Yugoslavia (ICTY) Krstic judgment, 33n135 Ku, Julian, 16 Kwoyelo, Thomas, 93n56, 94, 110–13, 141 Lebanon, 20 legalism, 10 Libya. See also Al-Senussi, Abdullah; Qadhafi, Muammar; Qadhafi, Saif Al-Islam admissibility decisions, 73–75 alleged rapes in Misrata, 234–36 amnesty laws, 146, 234 competition for cases, 58 demonstration effect of ICC, 231–40 deterrent effect of ICC, 19 ICC arrest warrants, 132–34, 233–34

313

internalization of ICC procedures, 91–92 lack of impartiality of ICC, 233–39 lack of legitimacy of ICC, 239–40 limited focus of ICC, 3, 67 national trials, 75–81 nature of Qadhafi regime, 231–33 opposition to ICC, 60, 62–64, 68, 264 potential violations by revolutionaries, 234–38 Security Council referrals, 301–302 state of justice system, 66 Lord’s Resistance Army (LRA), 17–18, 60, 94, 126–32, 141–42, See also Juba Peace Agreement; Kony, Joseph; Kwoyelo, Thomas; Ongwen, Dominic Luban, David, 25n98, 27n106 Lubanga, Thomas, 15, 18n54, 28, 55, 57, 189, 194–95, 199, 224, 292 Luther, Martin, 116 M19 guerrilla organization, 243 M23 rebel group, 18, 153 Macdonald, Anna, 208 Machar, Riekh, 155, 159 Machochoko, Phakiso, 138 Madoko, Futamura, 22, 34–35 Malaysia, 303 Mali, 198 Mallinder, Louise, 140, 156n46 Mamdani, Mahmood, 25, 132, 226 Mandela, Nelson, 43 Marghani, Salah, 3, 76, 234 Márquez, Gabriel García, 241, 242 Márquez, Iván, 179 Masutha, Michael, 303n67 Matsanga, David, 159 Mbarushimana, Callixte, 294n16 Mbeki, Thabo, 25 McCargo, David, 25n100 Meernik, James, 28 Mégret, Frederic, 59–60, 71, 74–75, 91, 114 Meijers, Tim, 29 methodology of study country selection, 287–88 data collection, 287–88 field experience, 285–87 Milanovic,́ Marko, 36–37 Miloševic,́ Slobodan, 22, 23, 35 Mladic,́ Ratko, 33n136 Moffett, Luke, 215–16 Montal, Florencia, 41 MONUSCO, 156 Morris, Madeline, 147n175 Morton, J.B., 217 Mue, Nonjo, 212 Mujahid, Abdel-Hakim, 2, 145, 251

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314

Index

Museveni, Yoweri, 60–61, 124, 130–31, 150, 158, 218–19, 228n69, 272 Muthaura, Francis, 213, 294n16 Mutunga, Willy, 97–98 Myanmar, 300, 307 Nadery, Ahmad Nader, 257n234 Nadya Sadat, Leila, 40 national proceedings, genuineness of, 100, 266 experiences of Colombia, 105–10, 267 National Resistance Movement (Uganda), 130, See also Museveni, Yoweri Nesiah, Vasuki, 128 Netherlands, 305 Ngaissona, Patrice-Edouard, 58, 294 Niño, Carlos, 26, 43, 124n44, 148n178 norm projection, assessment of condemning and prohibiting crimes, 27–28 demonstration effect, 29 derivative nature, 271–73 importance of, 26–27 justice for victims, 28 measurement, 27 uncertainty of impact, 263 Norman, Hinga, 38n174 Nouwen, Sarah, 70, 125, 191 Ntaganda, Bosco, 18, 153, 190, 196–97, 271, 292 Nuremberg Conference and Declaration, 120, 140n135 Nuremberg trial, 22n80, 23, 30, 32–34, 297 Nzelibe, Jide, 16n39 O’Donohue, Jonathan, 54, 72–73 Obita, James, 159 Obote, Milton, 219 Ocampo, Luis Moreno and Uganda, 132, 155, 218–20, 220n18, 223, 272 at Kampala Review Conference, 116–17, 129, 187 in Kenyatta trial, 293–94 leadership style and decision-making, 211 legacy, 5 on Afghanistan, 251–52, 257 on Article 53, 119–21, 267 on Colombia national proceedings, 102–103, 181–82, 247 on establishment of ICC, 4 on ICC as hub in wheel, 281 on impact of ICC, 9, 40, 152 on Libya, 58, 73–74, 234–35, 238–40 on positive complementarity, 56 on Security Council referrals, 301 on true measure of success, 263 opinion of in Kenya, 209 Ochola, Bishop Baker, 229

Ochora, Walter, 125n54 Odhiambo, Okot, 159 Ojul, Martin, 159 Okello, Tito, 219 Onek, Hilary, 141 Ongwen, Dominic, 28, 55, 61, 68, 160n68, 190, 191, 203–205, 269, 292, 294 Ordonez, Alejandro, 167 Orentlicher, Diane, 20, 22, 24, 29, 35, 99–100 Otim, Michael, 158–60 Otti, Vincent, 156, 158, 159 Ottunu, Olaro, 226 Palestine, 193, 304–307 Paraguay, 307–308 parallelism, 67–70, 81–82, 265 Pastrana, Andrés, 100n101, 242 Peace Research Institute Oslo (PRIO), 16–17 peace versus justice dilemma as challenge to ICC impact, 42 conclusions, 267–69 impact of ICC legal framework Article 16, 117–18 Article 53 (interests of justice test), 118–29 conclusions, 147–48 effect of arrest warrants, 129–39 state practice on amnesties, 140–47 impact of ICC on peace negotiations Colombia, 163–85 Uganda, 150–63 South African approach to transition, 43 peace-building, United Nations report, 66 Peñ a, Mariana, 191 performance of ICC. See also impact of ICC conclusions, 308 factors impacting focus on those with greatest responsibility, 297 focused investigations approach, 294–97 security and logistical challenges, 298 uncooperative states, 297–98 volume of cases versus resources, 299–300 facts and figures, 291–94 indicators, 7–8 Perišić, Momčilo, 36n158 Peru, 307–308 Philippines, 303 Ping, Jean, 308 plea-bargaining, 23 Pompeo, Mike, 137, 138, 257 Porter, Holly, 229n77 positive complementarity. See complementarity Prosecutors. See Bensouda, Fatou; Khan, Karim; Ocampo, Luis Moreno Public Interest Lawyers, 304 punishment, appropriate level of, 180–85

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Index Qadhafi, Al-Sa’di, 77 Qadhafi, Muammar, 73, 132–34, 231–33, 236, 239, 293 Qadhafi, Muatasim, 236 Qadhafi, Saif Al-Islam, 58–59, 62, 72–78, 80–81, 91–92, 133, 233, 239–40, 264 qualified deference, 51, 60, 265–66 Rabbani, Burhanuddin, 142–43, 253 Rabkin, Jeremy, 147n175, 260n248 rape victims, 33 reconciliation function, 21–24 Refugee Law Project, 126, 141, 205, 227n67 reparative effect as part of complementarity, 71 assessment of, 28 importance to victims, 188 in Kenya, 209–13 in Uganda, 201–208 lessons from other tribunals, 32–33 meaning of term, 187 meaningful victim participation, 189–94 proposed framework, 44–45 reparations proceedings effectiveness of, 197–98 governing law, 194 in specific cases, 194–97, 199 length of proceedings, 197 limited resources, 194 reparative framework, 200–201 restorative justice and, 187 Trust Fund for Victims, 45, 194, 196–200, 214 role in specific cases, 195–97, 205–208 whether justice for victims, 214–16, 269–71 research methodology. See methodology of study resources of ICC, 6–7, 299–300 Trust Fund for Victims, 194, 199–200 restorative justice, 187 retribution function, 24–26 Review Conference. See Kampala Review Conference 2010 Rigney, Sophie, 72n105, 72–73 Robinson, Daryl, 118 Robinson, Patrick, 32 Rock, Alan, 151–52 Rodriguez, Father Carlos, 158 Röling, B.V.A., 94 Rome Statute adoption and ratification, 1, 4 Article 16, 116–18 Article 53 (interests of justice test) interests and views of victims, 123–29, 267–68

315

pragmatism of Pre-Trial Chamber, 122–23 rigid stance of Prosecutor, 118–22, 267 importance of, 4, 40, 187–88 Preamble, 11–12, 26 withdrawals from, 302–303 Romero, Alvaro Alfonso Garcia, 90 Rover, Donatella, 235–36 Rugunda, Ruhakana, 153n27 Russia, 10, 302–303 Ruto, William, 19, 62, 67, 98, 209–13 Rwanda. See International Criminal Tribunal for Rwanda (ICTR) Said, Mahamat Abdel Kani, 58 Saleh, Salim, 130 Samar, Sima, 257 same person same conduct test, 59–60 Samson, Marika Giles, 59–60, 71 Sang, Joshua, 211 Santos, Juan Manuel, 3, 103, 149, 166, 171, 179, 184–85, 242, 268, 286 Sargan, Judge Diego Garcia, 140 Sayyaf, Abdel-Rassoul, 142–43, 253 Schabas, William, 58, 155, 199 scholarship on ICC, 9–11 Schomerus, Mareike, 158 Security Council referrals, 301–302 self-referrals, 54–55, 301 sentencing, expressive value of, 46 Serbia, 99–100, See also International Criminal Tribunal for the former Yugoslavia (ICTY) Sergiwa, Seham, 235 sexual and gender-based violence (SGBV), 196, 198, 212, 213 Shany, Yuval, 13 Shklar, Judith, 10, 261 Sierra Leone. See Special Court for Sierra Leone (SCSL) Simmons, Beth, 15, 16 Slim, Lokman, 20n71 Sloane, Robert, 46n208 South Africa, 43, 298, 302–303 South Sudan, 131, 156 Special Court for Sierra Leone (SCSL) aims and expectations, 21 and internalization, 99n96 and reconciliation, 24n90 comparison with ICC, 260, 292 deterrent effect, 20–21 normative impact, 33, 37–38, 277 number and focus of prosecutions, 182, 214n179 Spiegel, 238 Stahn, Carsten, 12, 29, 40, 52, 60, 81 Stewart, James, 180, 182n203, 186

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316 Stromseth, Jane, 48 Sudan, 10, 18–19, 68, 156, 224, 298 Syria, 302 system crimes, 94 systemic effect, 39–42, 50, See also complementarity; internalization; parallelism Taliban, 2, 65, 134–39, 144–46, 248–51, 258 Tantush, Khalid, 79 Tatanaki, Hassan, 238 Taylor, Charles, 38n174 Terracino, Julio Bacio, 41n186 theory of change, 11, See also goals of ICC; peace versus justice dilemma Thucydides, 300 Tobiko, Keriako, 98 Tokyo trial and Allied war crimes, 23 normative impact, 22, 32, 34–35 support of international forces, 297 Tolbert, David, 46n205 Totani, Yuma, 34n147 transformative effect. See also peace versus justice dilemma meaning and overview, 42–44 Trojillo, Carlos Holmes, 167 Trump, Donald, 137–38 Trust Fund for Victims (TFV), 45, 194, 196–200, 214, 269–70 role in specific cases, 195–97, 205–208 Tutu, Desmond, 43, 43n197 Uganda. See also Juba Peace Agreement; Kwoyelo, Thomas; Lord’s Resistance Army (LRA); Ongwen, Dominic Amnesty Act 2000, 141–42, 221–22 and reparations for victims, 71 conclusions, 185–86 demonstration effect of ICC, 218–31 deterrent effect of ICC, 15, 17–18 effect of ICC arrest warrants, 129–32 ICC impact on accountability debate, 150 conduct of state actors, 152–53 humanitarian assistance, 151–52 Juba Agreement, 153–63 initiatives by religious and traditional leaders, 221 internalization of Rome Statute ICC procedures, 90–92 International Crimes Division, 92–94 Rome Statute Crimes, 85–86 victims’ rights, 89 lack of relevance of ICC, 227–28 limited focus of ICC, 67 Luanda Agreement, 152

Index no arrest of Al-Bashir, 298 no investigation of UPDF, 223–24, 226–27 origins of LRA conflict, 219 peace with punishment model, 180, 182, 184 public attitudes to ICC, 2–3, 218–19, 222–24, 226–27 ratification of Rome Statute, 218 referral to ICC, 218–19 relationship with ICC, 60–61 reparative effect of ICC, 201–208 role and activities of UPDF, 224–26 state of justice system, 66, 68 suffering of Acholi people, 220n18, 224–26 traditional justice alternatives, 228–31 victims’ views, 124–28, 197 violent nature and cult-like qualities of LRA, 219 Uganda People’s Defence Forces (UPDF), 130, 131, 152–53, 207, 223–27 uncontested admissibility doctrine, 55 United Kingdom, 198n75, 304, 305 United Nations, 26, 66n81, 279, 286, 301–302 United States and Afghanistan, 5, 10, 135–38, 253–54, 256–57, 273 and Palestine, 305 on LRA, 130, 131, 159 sanctions against Venezuela, 307–308 Uprimny, Rodrigo, 179–80, 186 Uribe, Alvaro, 103, 105, 163, 164, 169, 242, 247 Usacka, Judge Anita, 59 van den Wyngaert, Judge Christine, 190, 192, 197, 198 Venezuela, 300, 307–308 victims impact of ICC as part of complementarity, 71 assessment of, 28 conclusions, 200–201, 214–16, 269–71 in situation countries, 201–13 lessons from other tribunals, 32–33 meaningful victim participation, 189–94 proposed framework, 44–45 importance of ICC, 188 interests of justice test, 123–29 priorities in Colombia, 153–54, 243–46 reparations proceedings, 194–99 rights adopted into domestic law, 89–90 Trust Fund for Victims, 45, 194, 196–200, 214, 269–70 role in specific cases, 195–97, 205–208 Voeten, Erik, 114–15 Waki Commission, 19, 69, 96–97 Warren, Earl, 261 Waters, Timothy, 50, 54

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Index Weinstein, Harvey, 23–24, 217 Weisburd, Mark, 215n184 Wemmers, Jo-Anne, 191n23 Whiting, Alex, 298, 299 Wierde, Marieke, 215 Wippman, David, 31n124 withdrawals from Rome Statute, 302–303 workload of ICC, 6–7, 299–300 World Bank, 82

Yekatom, Alfred, 57–58, 294n18 Yugoslavia. See International Criminal Tribunal for the former Yugoslavia (ICTY) Zacklin, Ralph, 260 Zaki, Faizullah, 258 Zalaquett, José, 44n197, 148n179 Zuluaga, Iván Carlos, 167n116

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317