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Archive for April, 2009

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ICC Observers Project-Oxford Transitional Justice Research

Exclusive Interview: Linda Bishai, Senior Program Officer, The United States Institute of Peace

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Full PDF of Interview:bishai_interview_official1

Q. What are some of the potential consequences of the indictment of President Bashir domestically in Sudan with regard to the North-South conflict and the situation in Darfur?

A: We can already see the consequences. There is increased tension. Local partners, civil society organizations, and activists are trying to keep their heads down. They are nervous and unsure. This is a regime that can be very unpredictable, and so the consequences are that the unpredictability is ratcheted up a little more. People are afraid that Bashir might do something to punish the West. So far, [March 10 2009] we’ve seen the expulsion order [of aid agencies] and I am hoping that that is the maximum extent of the response, but we’re still not sure.

In terms of a North-South relationship, the indictment again puts stress and tension on a relationship that is not a great one to begin with. Salva Kiir and Bashir are not the best of friends; they do not seem to consult each other before making decisions. We’ve already had an announcement from the representative of the Government of South Sudan mission in Washington this week that the decision to expel the aid organizations was taken without consultation of the SPLM, which is a significant decision to be taken without consulting your partner in government. This is national unity in name only. The public nature of the decision, and that it was taken unilaterally, puts stress on what should be a functioning political partnership. It still seems that the balance of calculus is in favor of continuing the theater of the peace: acting as if the peace is holding because neither side seems to feel that it is beneficial to actually descend into North-South war again. So that is holding it together.

This [increased tension] is what would be the case if there were any kind of external pressure on Bashir. This response is not particular to the ICC arrest warrant; it is just the result of additional pressure on Bashir.

Q. Given the work that you have done on education in Sudan and universities as sites of social change, what is support like for Bashir among the educated and professional Sudanese elite? Can we expect internal opposition, political support, or demands for accountability to increase or diminish after the indictment? What is the perception of the ICC among these groups?

A: Inside the universities, all of the administrative positions down to the chairs of departments are political appointees. They are selected for loyalty, so the administration of the public universities would pledge public support for Bashir. For some, the public role that they play in universities may be different from their private beliefs, but they are not going to publicly challenge the government. For others, particularly after 2005 when the CPA took hold, a number of people returned from the diaspora, including academics who had gone and taught somewhere else to escape the restrictions of the regime from 1989. Those people have to walk an extremely fine line.

I have to say that the university system has been effectively neutralized as a kind of incubator for transformation or revolution. Transformation possibly, but revolution far less likely. The Government keeps a close eye on political activity; it is very tightly controlled. If students want to demonstrate, or if there is any kind of movement that looks like it is aimed at the government, it will be struck down with serious force. So that just tells you that it will take a very brave collection of students or faculty members indeed to get past what is obviously willingness by the regime to use serious force in the university environment. This has happened since 1989. There have been incidents of demonstration and even violence by the students where they become highly contentious and will fight each other and those situations are put down forcefully; they are not allowed to get out of hand. The Government says it is keeping the peace, but it also has the effect of quelling the kinds of revolution that might spring out of the academy.

Q. Can you speak about the construction of memory around the North-South conflict in terms of educational instruction, textbooks, and so forth, and how this might affect future generations of students, the conflict itself, and transition after the conflict, should that happen?

A: My understanding is that the Northern curriculum is still quite untouched. It hasn’t been modified very much from the height of the war years when it was a heavily militarized curriculum, in which the examples were those of the honor of fighting for your country, being a Muslim fighting against non-Muslims, in which there is a clear reference to the South being the enemy. The Northern curriculum for primary school is still fairly antiquated. It hasn’t really addressed the shift in circumstances: the Government of National Unity, the CPA, and the transition.

The universities are a little more free to try to use external sources for their texts, so they are, but they’ve also been seriously hampered by the general degradation in academic standards. Students don’t read and write any foreign languages very well, English among them, and English in particular is the best language for getting up to date information in most fields. So the university professors of a certain age who were themselves educated in a very robust system that still resembled the English educational system that was left behind when the British left in 1956 are really unhappy because their students aren’t up to snuff. There are scholars in Sudan who are appalled by this and want to see it changed, even in the government. There is a new Minister of Higher Education, from the SPLM. But of course, the ministries given to the SPLM are often weakened by lack of support from the civil service, so it is unclear what kind of power he’ll be able to exert. But, he is clearly interested in being proactive, and in peaceful appreciation of unity and diversity. It will be interesting to see if he’s able to achieve anything in terms of curriculum for universities and in terms of raising the standards. There is still quite a lot of need to update the standards, the textbooks, the materials, and the curriculum. It will take a generation or so to get the academic institutions back to where they were before this regime, before the educational revolution.

In the South, it’s a whole different story. They are really investing heavily in completely rewriting their own curriculum, so it will be significantly different. I don’t know what kind of history they will tell, so I can only speculate whether it will be conducive to living peacefully with a northern neighbor should they secede, or to unity should they stay in the country. It is an incredibly complicated and complex social process that the South is undergoing right now. And of course the South, let alone what kind of history they’re teaching, has a tremendous literacy issue that the Government will have to address very aggressively. This question is still open. It remains to be seen what will happen in terms of curriculum contributing to peaceful relations in the future. There are people who are interested in making peace studies and conflict resolution a very significant part of curriculum from the start, but whether they’ll be able to succeed is another question.

Q. Secretary General Ban Ki Moon has recently said that there might still be potential for some kind of domestic prosecution in Sudan. Do you think there are domestic mechanisms that may seek accountability for crimes in Darfur? Also, what is the perception of the ICC within Sudan? President Bashir has called the ICC a court of Western imposition and linked it to neo-colonialism. Is this a pervasive view? How much traction does it have with the broader population?

A: On the Secretary General’s comment, I don’t see it, unless he’s referring to a hybrid court. There are certainly very skilled attorneys and legal minds in Sudan, but as a whole, the bar and the court system have not demonstrated the necessary independence in any significant way. To put Bashir through the ordinary existing court system while his government still stands would not be justice or meet internationally fair standards. If he’s referring to conversations that he’s had in which the issue of a possible hybrid court has been raised, in which there’s an ability to check and monitor the Sudanese process, then that’s a significant difference.

The question of how the ICC is perceived in Sudan today is a very complex one. Publicly, in statements made by the SPLM and newspaper editors, there’s been a real hesitation and reluctance to come out in favor of the Court and against Bashir. Only Turabi seems to have the stature and the courage to say that Bashir should just submit himself to the process. There were statements like that a few months ago, before it was clear that the warrant was really coming. People wrote editorials saying that the proper response would be to show the evidence in your defense. People were able to say that a few months ago, but not now. You have very intimidating remarks by the head of the intelligence services, such as “We’ve been extremist before, we can do it again.” That’s a very threatening kind of statement. No one doubts that he’s capable of ordering very severe measures. So there’s a real dampening effect on speech.

Of the six or seven Darfurians I have spoken with, in the US and in Darfur, they are fairly positive about the process. They seem to understand that it will not necessarily make their lives better. They are happy that Bashir is indicted, but they are of course a little bit anxious about what the results of that might mean for them. But I haven’t heard them condemn the process as artificial.

The Southerners, the SPLM, have to be careful in public They may not mind privately if Bashir is prosecuted, but this stance cannot be stated while they are part of the GONU.  And they are very concerned about not jeopardizing the CPA. The truth is that it’s hard to get the truth, because you have to get Sudanese where they’re safe in order to really hear it. What they’re able to say publicly on this issue is really limited.

Q. Are you surprised by any of the responses from regional actors to the indictment?

A: I thought they were pretty predictable. The Arab League was predictable. The Africa Union is taking the easy way out. There was a very pertinent and good editorial by Desmond Tutu in the New York Times last week, in which he made the argument that African leaders are dropping the ball, but he’s a lone voice so far from the African continent.

Q. Does the ICC have an implicitly political role to fulfill in conflict situations? What should that role be? Should the Court strive to be politically neutral in conflict situations?

A: The Court and the political process are inextricably intertwined. We’ve been focusing a lot on the political nature of the Court but what we haven’t been focusing on very much is the legal nature of the international system. The international system – the UN Security Council and all sovereign states – all rely on a legal structure of nonintervention and sovereignty, which is a legal concept, not a political one. States need institutions like the Court to say that they’re legitimate rulers. We aren’t living in a system of monarchs or empires. We’re living in a system where the political structures of the states actually depend on a perception of legitimacy. Those that are perceived to be illegitimate are excluded by the rest of the international system. So there is a very legal and very necessarily legal aspect to political interactions in the international system. That said, yes, the Court has a political role to fulfill. It cannot escape it and cannot pretend that it is solely a legal entity because there is no such thing as a solely legal entity. Legal entities are created by a political process; they don’t just spring out of the ground. They have to be somewhat responsive to the conditions of their own creation. The Court is created by a political process– the Rome treaty — and it is responsive in its very functioning to the behavior of state parties.

That said, when the Court is involved in the process of investigation and indictment, it needs to be as neutral as humanly possibly. I don’t believe that true neutrality exists. You could say I’m a post-structuralist in that sense. Reality is constructed and neutrality is impossible, but the perception that the prosecutor is acting neutrally, the perception that he’s willing to see both sides of the story, that he’s wiling to investigate rebel atrocities as well as government atrocities, is very necessary for the Court to have legitimacy. So there is a political aspect to the operation of the Court but neutrality in its process is absolutely necessary.

Q: Do you think the Court’s participation in ongoing conflicts could undermine its legitimacy?

A: I don’t think so. Although I do think there’s the perception that it does. Obviously there are people making that argument right now because of Darfur as an ongoing conflict or at least one of the hottest ones that the Court’s involved in. I think that’s a mistake to see that an investigation in a hot conflict necessarily means the prosecutor is biased. That’s like saying the prosecutor who goes after the mob has to be biased. We do not say this for domestic issues and when we go after organized crime we are very methodical, we spend years taking apart organized criminal syndicates and their activities continue while we do it. We don’t have to wait for them to finish; they are never going to finish. We need to be wary of requiring the Court and prosecutor to somehow wait until the situation is completely calm before they can go in and investigate. If there is enough evidence to trigger an investigation, then the investigation should go on to the best ability of the prosecutor to undertake it. Obviously Bashir’s lack of cooperation in Sudan, given that he didn’t let Ocampo into the country, made it extremely difficult and challenged Ocampo’s ability to gather firsthand evidence. Ocampo is under some criticism for that, but is part of the judicial process and a judicial tribunal will weigh his evidence. It isn’t as if he can get away with fake evidence and the judges will just rubber-stamp it. They have already shown that they are not a rubber stamp committee by not allowing the genocide charge to stand. There is a failure to recognize that this is what justice looks like; it is not clean and neat and perfect, it’s a little messy. We have to do justice the best we can. It is not clean from on high and absolutely pristine with no mud. It has mud; it’s a human process. That is the best we can do and we have to recognize that fact. So far the Court has shown that it is making the best of a flawed human process.

Q: What kind of outcomes will we need to see from the Court in order to ensure its legitimacy? What about the Lubanga and Bemba trials: do you think the Bashir case has taken too much attention away from them? What will be the outcome for the Court if these two cases are tried successfully, but Bashir remains at large? What do we need to see overall from the Court in order to establish it as a legitimate actor on the international stage?

A: Obviously Bashir has taken a lot of the limelight at the moment, but I don’t expect that to last. We are just not a culture that pays attention to one story for more than two weeks in a row. Bashir is already off the front pages and I expect it will go completely out of the news in the next few weeks unless something triggers attention again inside Sudan. I don’t see the Bashir indictment as a problem in the short term. It could be a problem if five years come and go and he is still in power and he is the only sitting head of state the Court ever indicts and they never get him. On the other hand, if they are seen to produce fair trials in their other cases and they are able to get custody of other indicted defendants, then I think they stand a chance.

Like any court system, the ICC is not some particularly odd creature, it is just unusual because it’s new. Like any Court system, the international court really depends on buy-in from its constituents and its constituents are states. The US Supreme Court or the House of Lords in the UK or any high court would not be worth a dime if nobody paid attention to it, if people never took cases to it, and if people did not follow requirements that it stipulates. A court is only as powerful as belief in its efficacy, and if the process takes hold enough that more people believe in its efficacy and more states are willing to actually participate in its processes then it might succeed. Of course this will take a long time; it is a new endeavor to get an international criminal court off the ground. It has already gotten remarkably far. The referral by the Security Council to the prosecutor in the Bashir case is remarkable. It shows a remarkable trust, which may now well be regretted by some other actors, in using a legal process as a response to atrocities. Given their willingness to do that, we hopefully will see a response by the Court that it can rise to the occasion and produce a fair process. I think elimination of the genocide charge is part of that process. It shows that the Court considers these issues very carefully and shows that it is not operating in a bubble. I won’t expect to see the Court take off for another ten years or so. This process takes time. It will take a number of cases in a row for the Court to look like it is here to stay. On the other hand it will also take a long time for the Court to fail. Court’s don’t fail overnight; courts fail after 20 years and when no defendants have been brought. Reports of the Court’s demise are greatly exaggerated. It will take time for us to know what the Court’s future will be.

Q: How significant is it that the first (and still all) of the cases currently before the Court are against Africans for crimes committed in Africa? How does this affect the perception of the Court in Africa and in the international community more broadly?

A: I know that in popular discourse they make a great deal about this issue and to some extent I think this is primarily the usual suspects saying the usual thing about post-colonialism. I would be more willing to accept a charge that the Court is a court of the powerful against the weak rather than a colonialist court directed against Africans. If you look at the African cases, three of them were self-referrals and the other was a Security Council referral. The prosecutor did not decide of his own discretion: “Africa’s a mess so I’ll go there.” This is not really a fair charge. What is fairer, that we all know to be true, is that you won’t see Russian, Chinese, British, French or American defendants in front of the Court any time soon. We won’t see this for all kinds of reasons, but primarily just due to raw political and military power. For example, we are not going to see the Chechen case in front of the Court anytime soon, even though I am quite sure that Chechen atrocities continue. We will probably see Latin American cases. I think that if you give the Court time we will also probably see Eastern European cases. I understand the Court is also looking into the possibility of cases in Georgia, although I am not sure they will be able to initiate an investigation in that case. I do not expect the charge that the Court is unfairly focused on Africa to hold. I understand where this charge is coming from. It is the kind of charge that’s easy to levy because it looks true, but if you peel away the layers it is not a fair charge.

Q. What will be the role of regional tribunals like the ICTY and ICTR in the future? As the ICC develops do you think the ICC will deal with the majority of cases? Or will there still be a place for regional tribunals in the system of international criminal law?

A: I think that there is still a role for particular tribunals like we’ve seen developed for Lebanon in the case of Hariri. It is critically important in many cases, if possible, to have justice take place locally. It is really difficult for the ICC to appear legitimate when it sits in The Hague and The Hague seems like a foreign place to most of the victims of the crimes. There is still room for hybrid tribunals and special tribunals. There is certainly no legal reason why these types of tribunals cannot exist. The ICC does not preclude them in any sense. Regional tribunals are a good tool to keep in mind. If possible, if conditions for justice exist in that country, then the use of a regional tribunal is actually a preferable way to pursue justice. It is critical to have a process that is accessible to the people who most need to see it

Q: Where do you think the Court will be in five or ten years? What are the best and worst case scenarios for the Court? What can both the Court and other international actors do to improve the Court’s standing in the international community?

A: If the international actors actually do work to improve its standing then its standing will improve. The worst case would be that the prosecutor continues to issue indictments, the judges continue to issue warrants, and no one ever goes before the Court. In that case you would have a number of useless outstanding warrants. The next step is then that countries gradually forget to pay their dues, and the Court just sinks into obscurity. After that, in another 15-20 years, the Court might be defunct simply because no one uses it. That scenario is a possibility, but at the moment it does not seem to be the most likely one.

Most likely, the Court will go in fits and starts. It will have moments of incredible public controversy, moments of failure, moments of great success, and it is likely to sputter along like that for a while. It is possible that American leadership, if there’s a real diplomatic initiative to see the Court as a useful and necessary tool of justice, could significantly enhance the role of the Court. This is going to be tough because the US has a checkered history with the ICC. The US does not necessarily have to sign on to the Rome Statute to say the ICC is a valuable tool and should be encouraged. The US can indefinitely defer the issues of its membership in the ICC, while it watches the Court and its trials and to help the Court in cases where it seems to be important that it have US support. That was the initial thinking behind the Darfur referral and abstention in the Security Council. It still remains to be seen what the Obama administration will do about the Court. We heard some positive remarks during the campaign about the ICC, but it is not clear how much that point of view will be born out, especially now that there is a contentious Congress to deal with. The President cannot just rely on Congress to take part in what might be perceived as an unpopular measure.

It is also an uphill battle to really start using the Court because that will require serious multilateral diplomacy. The ICC cannot just be an American creature; you have to bring in China, Russia, Europe and the other expanded Security Council member contenders, including India, Japan, Germany, and Brazil. These countries need to publicly say that they support the Court in order to encourage its acceptance in the international system. I do not see that happening in the next couple of months. There is room for it to happen and it may still happen. There’s an emerging sense of public responsibility and accountability in the international system at present; there is not a willingness to say simply that justice is unnecessary. Even China won’t say that. This is something that international law continues to thrive on. No one will openly say international law is. totally useless. Even states that seem to most rely on sovereignty understand that they need to support some sort of legal process to look legitimate. States have to walk a fine line in supporting an institution like the ICC while trying not to come under its auspices.

Interview conducted by Zachary Manfredi and Julie Veroff on March.13.2009.

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Sudan Tribune, 25 April 2009

April 24, 2009 (WASHINGTON) — The Sudanese president Omer Hassan Al-Bashir will not be invited to the inauguration ceremony of the South African president-elect Jacob Zuma, according to news reports.

The ruling African National Congress (ANC) headed by Zuma has an absolute majority in general polls paving the way for the parliament to elect him as the new head of state in an early May vote.

The UK based ‘Times’ newspaper citing unidentified South African diplomatic sources reported that Zuma indicated that Bashir will not be welcome at his inauguration on May 9, and that he could even risk arrest and deportation to International Criminal Court (ICC).

Last month the ICC judges officially charged Bashir for seven counts of war crimes and crimes against humanity making him the first sitting head of state to be indicted by The Hague based court.

South Africa is a member of the ICC and is legally obligated to apprehend Bashir if he lands on its territory. However under former South African president Thabo Mbeki it has taken a strong stance in support of Bashir against the ICC.

Mbeki is now heading an African Union appointed panel to resolve the row between Sudan and the ICC by finding other means to bring accountability while preserving peace stakes.

‘The Australian’ online newspaper said that the heads of state of four other states with “undemocratic” leaders from Madagascar, Mauritania, Guinea-Bissau and Guinea were also told to stay away from the ceremony.

The move by the powerful nation in the continent will deal Sudan a severe diplomatic blow after successfully managing to rally African nations on its side against the ICC decision.

It remains to be seen if South Africa will take a less sympathetic policy towards Sudan particularly with regards to the six year conflict in Darfur. During its term in the UN Security Council (UNSC), South Africa has stood against resolutions not approved by Khartoum including those on the peacekeeping force.

Read the article here.

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Harold Hongju Koh, nominated as the Legal Advisor at the U.S. Department of State, recently submitted answers to pre-hearing questions to the Senate Foreign Relations Committee. Below are excerpts focused on Darfur and the ICC. The entire document can be found here.

Question:

In testimony before the Senate Judiciary Committee in September 2008, you stated that the next U.S. Administration “should reengage diplomatically with the Contracting Parties to the International Criminal Court to seek resolution of
outstanding U.S. concerns and pave the way for eventual U.S. ratification of the Rome Treaty.” Please indicate what specific concerns you believe would need to be addressed before it would be advisable for the United States to consider becoming a party to the Rome Statute.

Answer (Koh):

The recent bipartisan American Society of International Law Task Force on the International Criminal Court—which was co-chaired by former Legal Adviser William H. Taft IV and Judge Patricia Wald and included former Supreme Court
Justice Sandra Day O’Connor—recommended that the United States could announce a policy of “positive engagement” with the International Criminal Court. Such a policy would allow the United States to help shape the development of the
Court and could facilitate future consideration of whether the United States should join the Court.  See American Society of International Law Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement iii
(2009), http://www.asil.org/files/ASIL-08-DiscPaper2.pdf.

In considering such a recommendation, among the many questions would be:  whether to announce a new policy toward the Court; whether and how to respond to the 2002 “unsigning” of the Rome Statute; whether and how to support
the ICC’s Prosecutor in particular cases; whether to participate in some capacity in the 2010 conference that will address the definition of the crime of aggression; whether to propose amendment or waiver of particular provisions of the American
Servicemembers’ Protection Act; and whether ultimately to seek ratification of the Rome Treaty, a step that would require the Senate’s advice and consent.  All of these issues would require extensive interagency discussions, in which I would
hope to participate if confirmed.   In particular, the U. S. Government has long expressed concern about the
authority of the ICC Prosecutor to initiate investigations of U.S. soldiers and government officials stationed around the world.  Particularly because the United States has the largest foreign military presence in the world, this is an important
issue on which we would need further discussion and clarification within the government.  If confirmed, I would also wish to consult extensively with military commanders and other experts, and members of this Committee, before I would
deem it advisable to recommend to the Secretary of State and the President that the United States take any steps with regard to the Rome Statute.

Questions:

36. Do you believe that events currently taking place in Darfur meet the legal definition of genocide contained in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide?  Please indicate the reasons for your
conclusion.

37. When then-Secretary of State Colin Powell announced the Bush Administration’s position in September 2004 that events then occurring in Darfur met the legal definition of genocide, he based his conclusion on a contemporaneous study conducted by the State Department documenting atrocities in Darfur, including field interviews with over 1,100 Darfur refugees.  Has the Obama Administration conducted a similar study of events currently taking place in Darfur?  If not, does the Administration intend to conduct such a study to inform future judgments it may make about the legal character of events in Darfur?

Answer:
As reflected in Secretary of State Colin Powell’s September 9, 2004 statement before the Senate Foreign Relations Committee, the Department of State’s comprehensive review of the situation in Darfur provided the basis for the
conclusion that the events on the ground met the requirements for genocide under the Convention on the Prevention and Punishment of the Crime of Genocide.  That statement appeared to me to be well-reasoned, as Secretary Powell pointed to,
among other things, a consistent and widespread pattern of killings, rapes, burning of villages and other acts that indicated the specific intent to destroy in whole or in part non-Arab groups in Darfur.  I am not aware of what recent information may be available within the U.S. Government on this subject or what the Department’s plans might be for conducting a study on the subject.  However, if confirmed, I would work closely with Secretary Clinton, others at the State Department, and the
members of this Committee to determine how best to address the situation in Darfur.

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Human Rights Watch, 27 March 2009

On March 4, 2009, the International Criminal Court (ICC) issued an arrest warrant for President Omar al-Bashir of Sudan on charges of war crimes and crimes against humanity. On March 5 the government of Sudan sought to divert attention from al-Bashir’s alleged responsibility for widespread atrocities by announcing its intention to expel aid agencies from Darfur and blaming the ICC. The intense public controversy generated by these events includes a number of myths, which are not borne out by reality:

1. Myth: The International Criminal Court has put people at risk by issuing an arrest warrant for the Sudanese president because international aid groups have been expelled from Sudan as a result.

Reality: It is the Sudanese government, not the International Criminal Court, that is creating catastrophic consequences for the people of Darfur by ousting humanitarian assistance. Expelling aid groups further victimizes those already made victim by atrocities al-Bashir is accused of committing in Darfur. This step compounds the responsibility of the top Sudanese leadership for the gravest crimes committed in Darfur, and highlights the risks of allowing those allegedly responsible for these crimes to escape accountability.

Sudan has an obligation under international humanitarian law to ensure that relief aid reaches people in need in conflict situations. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), the agencies that have been expelled provided roughly half of the total humanitarian assistance for all of Darfur. The number of people who are affected by lack of water, food, sanitation and medical care is in the millions. For example, OCHA has described the situation for the Kalma camp-one of the largest camps for displaced people in Darfur-as dire. In addition to having provided medical care and other essential assistance, the agencies that were expelled were responsible for Kalma’s water supply.

2.    Myth: Sudan’s expulsion of humanitarian assistance organizations is not a big problem since only 13 international organizations were expelled and dozens of other international organizations and hundreds of Sudanese organizations are still in Darfur. The remaining organizations can take over the work, and the government of Sudan also said that it will help.

Reality: The 13 international organizations expelled employed 40 percent of all humanitarian staff working in Darfur. The United Nations estimates that they were supplying food and water to 1.1 million people and medical care to 1.5 million people in a complex, insecure, and physically challenging environment. Non-governmental organizations and UN agencies that have been allowed to remain are doing what they can to fill in the gaps, but they do not have the necessary capacity to take over all of the programs affected by the expulsions. Even if they did, the manner in which the government closed the programs makes effective handover impossible. Organizations were given no advance notice, and government officials removed their property, including computers, communications equipment, and vehicles. Government officials also ordered organizations to dismiss national staff, many of whom have now returned to their homes elsewhere in Sudan. Handing over large-scale and complex programs is a process that in the best of circumstances takes months and cannot be achieved in a matter of hours, particularly without essential information and equipment.

A United Nations-Government of Sudan assessment report of March 21, 2009, two weeks after the 13 organizations were forced to cease operating, highlights that as the situation currently stands:

  • The UN World Food Program currently has no partners to carry out its next food distribution, due in May, for over a million people. While the UN agency supplies food, it relies on non-governmental organizations to distribute it.
  • 32 health facilities and 28 therapeutic feeding centers for severely malnourished children have either closed or suspended a significant part of their services, with the result that 650,000 people now have very limited or no access to health care.
  • Some 700,000 people who would have been served will not receive distributions of urgently needed non-food items and emergency shelter prior to the rainy season.
  • In many locations sanitation and hygiene activities have completely stopped, greatly increasing the threat of disease.
  • The current stop-gap measures to maintain water supplies in many camps can only last another 2 to 4 weeks, after which water supplies will begin to run dry. This could affect over a million people and greatly heighten the risk of disease outbreaks.

If the Sudanese government were willing and able to provide aid to the affected populations, humanitarian organizations would not have been working so extensively in Darfur. The notion that the government can somehow step in effectively to address a massive void created by the expulsions is not at all realistic. Some of the organizations expelled also ran programs in other parts of Sudan, including East Sudan and Southern Kordofan. In many of these areas, there are few other organizations and very limited government capacity to provide any assistance at all so people there may be at even greater risk than those in Darfur.

Read the other five myths.

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AFP, 21 April 2009

ARUSHA, Tanzania (AFP) — Prosecutors at the International Criminal Tribunal for Rwanda (ICTR) called on the court to impose a life sentence on the first woman ever charged with genocide by a world court.

They also requested the maximum sentence for Pauline Nyiramasuhuko’s son — the Tanzania-based court’s youngest detainee — and four other co-accused.

Nyiramasuhuko, a former minister for the family and women’s empowerment, has been charged with genocide and incitement to rape committed in Rwanda’s southern Butare region during the 1994 genocide.

Her son Arsene Shalom Ntahobali, 39, former Butare prefects Alphonse Nteziryayo and Sylvain Nsabimana as well as former mayors Joseph Kanyabashi and Elie Ndayambaje were charged on several genocide counts.

“The prosecutor respectfully submits that the appropriate sentence in this case is imprisonment for the remainder of their lives,” prosecutor Holo Makwaia said in her closing arguments.

Makwaia argued that the accused had “the intent to destroy in whole or in part the Tutsi ethnic group in Butare.”

But Nyiramasuhuko’s defence lawyer, Nicole Bergevin, said the prosecution had failed to prove that her client was guilty. The defence will begin its presentations Wednesday.

Nyiramasuhuko’s case, which began in June 2001, is the ICTR’s longest-running trial.

The UN-backed ICTR was formed in late 1994 and is tasked with trying the masterminds of Rwanda’s genocide in which some 800,000 people, mostly Tutsis and moderate Hutus, were killed in the space of 100 days.

Article available here.

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ICC Press Release, 20 April 2009

The International Criminal Court (ICC) strongly refutes that two of its judges who will come to Kenya in the next days to attend a regional parliamentary event will unofficially start preparations for handling cases of post-election violence in The Hague”, as stated in an article of the Nairobi Star on 17 April 2009.

While Judges Nsereko and Aluoch will interact with other participants of the workshop, addressing outstanding challenges for East African countries to implement the Rome Statute, they will not have meetings with Kenyan government officials nor discuss in any way the eventuality of the Kenya situation to be referred to the ICC. Furthermore, contrary to what was mentioned in the article, they will not be accompanied by a team of experts on international law.

The visit of Judges Nsereko and Aluoch is not related at all to the preliminary analysis that the Office of the Prosecutor is conducting into the post-election violence in Kenya in early 2008, as suggested in the article published.

Judges of the International Criminal Court are impartial and independent magistrates. They are responsible for conducting the proceedings of the Court at different stages. They never engage in discussions concerning potential situations prior to these being submitted to them in the course of properly instituted legal proceedings.

Only the Office of the Prosecutor, an organ of the Court which operates separately and independently from the judicial divisions, is responsible for conducting the preliminary analysis in Kenya. The visit of Judges Nsereko and Aluoch to Kenya does not prejudge in any way the outcome of this analysis.

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ICC Observers Project-Oxford Transitional Justice Research

Exclusive Interview Eric Leonard, Professor of Political Science Shenandoah University

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Professor Leonard is an Associate Professor of Political Science and the Henkel Family Endowed Chair in International Affairs at Shenandoah University in Winchester, VA.  He has published several articles, case studies and a book on such issues as the International Criminal Court, U.S. Foreign Policy, humanitarian law, theoretical conceptualizations of sovereignty, and global governance.   His book is entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Full PDF Version of Interview: leonard_interview_official

Q: You have written about the relationship between the US and ICC, what do you think the current relationship with will be between the ICC and the US under the Obama administration? Will the US show increased support the ICC? Is there a possibility that the US will ratify the Rome Statute? How will the arrest warrant for Bashir affect the dynamic between the US and the ICC?

A. It’s going to be interesting to see how the Obama Administration approaches the ICC question. At this point, prior to the Bashir arrest-warrant, the Obama administration was in many ways hedging its bets on the ICC and possible US support. During the election process there was really only one mention of the ICC by the Obama campaign, and what he said was that this would be a situation that they would look at, he could counsel with his generals and military personnel, and then they would approach the subject a later date. He really danced around the issue of the ICC and possible US support. There have been, however, some positive steps that have occurred recently. One, not necessarily with the Obama administration, but with the Democratic Congress, was the elimination of the Nethercutt Amendment in the Ominbus Bill that just passed. At this point the US is moving away from a belligerent attitude against the ICC. Article 98 agreements are no longer a part of US foreign policy towards the ICC. However, I am not sure we can say that this shift in attitude towards the ICC is just a result of the Obama administration’s policies. We saw this softening towards the ICC occur at the end of the Bush administration. Condoleezza Rice was the first to stipulate that Article 98 agreements were a means by which the US was shooting itself in the foot. With the case in Sudan, the fact that the US did not oppose the Security Council referral of the Darfur cases to the ICC but merely abstained from the vote was another indication that there was a bit of a softening.

The Bashir arrest warrant changes things a bit. I think that it’s putting more pressure on the Obama administration to actually do something about the ICC. Again though, they are really trying to push the issue of the ICC to the side. When questioned about this, the Obama administration is saying things like “you cannot criticize us for doing nothing, we are having backroom negotiations with the British and the French, and we are trying to come up with a solution.” However, Darfur and the ICC are clearly not their primary concerns at the moment. Domestic interests have consumed the Obama administration’s interest. This has been very disheartening to many of us who want the US to be part of this process and part of the ICC’s attempts to end impunity. This is a particularly unfortunate point, given that Obama called US failure to act in Sudan as a “stain on our souls.”

In terms of ratification, I have no hope at all that the US will ever ratify the Rome Statute. I think the best that we can hope for is a situation where the US is able to cultivate a relationship with the ICC in which the US is supportive of what the ICC is doing to a certain degree, and possibly more important, that the US at least does not actively oppose the ICC and what it is attempting to do. Getting the Rome Statute through two-thirds of the Senate and having ratification is, however, something that is just implausible.

Q: What would you say are the primary goals of the Court? Do you think the goals for the Court differ for international, national, and local actors; for government and non-governmental actors? How will the Court fit into the overall structure of the international system? How so?

A. In terms of the primary goals of the Court, the ICC is trying to be an instrument by which we can end impunity in regard to those specified core crimes. I do not think that the goals are necessarily different from international, national, and other local actors, or even different in terms of actors defined in terms of government or non-government. I think there is a core of the international community that is now working towards this goal, although possibly doing so in different ways. One of the things I find frustrating about the attempt to achieve international justice, is that oftentimes you see these different actors as counterpoised in terms of what they are trying to achieve. We talk about – is it better to have domestic or international prosecutions? Is the ICC simply preventing national justice from occurring to end impunity? The goal here is to see the different actors as behaving in a complementary way. So issues of domestic universal jurisdiction laws vs. international tribunals, the ICC vs. hybrid courts—I think it’s a real problem to see these issues as being in competition with one another, which is often how they are viewed. From an ICC perspective, I do not think the intent of the ICC is to be in competition with other forms of justice. I think the point of complementarity is to work with these other actors and to establish universal justice standards that will be fulfilled for all parties involved in the ICC process. The goal of ending impunity is what we are trying to achieve, and no matter how it is achieved, if we are successful then that will be satisfactory to the members and the supporters of the ICC.

Q: Does (and will) the doctrine of complementarity actually work to accommodate both national sovereignty and the enforcement of fundamental human rights? Under what circumstances can we expect the Chief Prosecutor to accept assertions of national jurisdiction? Where might there be sources of conflict between the ICC and national jurisdictions? How should those conflicts be resolved?

A. I think the principle of complementarity, its intent, theoretically, is to work to accommodate national sovereignty, but not to simply accept national sovereignty as the end-all, be-all. So some of the things I have written about sovereignty and its relationship to the ICC address this question. If you look at the notion of sovereignty and the idea of sovereignty as absolute and final authority, when we look at the ICC, it does have that final and absolute authority within this particular arena. Will it always be able to act on that? That is a separate question. Theoretically, however, it does in many ways override national sovereignty while still trying to accommodate it through the principle of complementarity. The ICC does a good job of acknowledging that sovereignty is a principle fundamental to the idea of international law and vital to the stability of the international community, but we cannot simply accept that national sovereignty will trump issues of international justice with regard to war crimes, crimes against humanity and genocide.

In terms of the Chief Prosecutor and times in which he might accept assertions of national jurisdiction, specifically talking about Ocampo, I am not sure that he would ever not proceed with an investigation if a country gave him assurances that they were themselves going to investigate. Just in terms of how he has behaved up to this point, I think he would say “I’m going to conduct my own investigation and we will see what they come up with. If they proceed through this process and have a trial that is acceptable to the Court, then we will allow that to stand, but if not, we need to be prepared to step in and investigate ourselves.” A good example of this would be the Uganda case. The ICC was invited in to investigate, it was a self-referral case, but then there was backpedaling by the Ugandan government. They claimed that they wanted to investigate things themselves and Ocampo simply would not accept that answer – he told the Ugandan government that they invited the Court in and that he was going to continue his investigation. I do not think that Ocampo is necessarily going to cater to the issue of national sovereignty, but I think the Court in general, if it sees a legitimate trial occurring in a national context, then according to the Statute they must accept it, and I hope they will.

Q: What is the significance of the Court prosecuting state vs. non-state actors in the international system? In the case of Sudan for example, the Court has focused on state crimes, whereas in the DRC and Uganda the emphasis has been on rebel groups and non-state actors? Does the choice of who to prosecute in particular situations affect the perceptions of the Court’s legitimacy on the international Stage?

A. In many ways, this is really a political question. This goes back to the question of how Ocampo wants to deal with the political issues that the Court is embroiled in on a daily basis. For the prosecutor, dealing with non-state actors and non-government officials may be politically easier than moving forward against government officials. My sense of Ocampo, however, is that, although he is somewhat aware of the political dynamics of what’s going on, I think in many ways he is also trying to push forward in as objective a fashion as he possibly can. I am not sure that the political calculus is going to influence how he proceeds in investigations and whether he looks at non-state or state actors.

I think the only real problem in terms of legitimacy, in relationship to this question, is whether the perception by the international community is that the Court is proceeding in a purely political manner. If it chooses to prosecute only state or non-state actors on a fairly regular basis, then the perception might become that the selection of cases is simply based on a political calculation by the Court. I think that such a perception will hinder the ICC’s legitimacy more than anything else. However, if they proceed in a juridical, objective fashion, then I don’t see a real problem in terms of legitimacy.

Q: Does the ICC have an implicit political role to fulfill? What is this role? Should the Court strive to remain politically neutral in conflict situations? Does the Court’s participation in political conflicts threaten to undermine its perceived legitimacy? Can the ICC be successful if it conceives itself purely as a juridical institution?

A. I’m not sure that the ICC has an implicit political role to fulfill. In some ways I think I’m wary of that line of questioning because it almost makes it seem as if the ICC has to recognize its political role in the system and act upon it in some way. I think I would come at it a little bit different. I think the ICC has to recognize, and what Ocampo has to recognize and I don’t think he really did at first, is whether he likes it or not, the ICC is a political institution. I fully believe that there are no institutions, governmental, legal, etc., that are not political institutions. There is a political component to all aspects of the global community and the ICC is not exempt from that. So do they have a political role to fulfill? No. I think they have to approach the selection of cases and whom they prosecute within those cases in the most objective fashion possible. They do, however, have to be aware of the political implications that every decision that they make have. Ocampo doesn’t always understand the political implications of what’s going to happen. With the Uganda case and the self-referral, standing there with the president of Uganda to announce that the ICC is going to prosecute gives a very political nature to the case, almost immediately. And he is starting to recognize those problems. However, I think the Bashir case is another instance where I’m not entirely sure that he fully recognized the political implications. This may add to the legitimacy of the Court, the fact that he and the Court in some way are going after those they believe are guilty of certain crimes. But this doesn’t alter the political nature of every institution in the global community. I don’t think that their participation in these political crimes will undermine their legitimacy; it will only undermine their legitimacy if the perception is that they’re clearly favoring one side or the other. I fully believe that perception in many ways creates reality and the biggest problem for the ICC is to create a perception of being a purely juridical institution; despite the fact that I don’t think they can be a purely juridical institution. But the perception among large portions of the international community has to be that this objectivity is the Court’s ultimate goal and that they’re doing a good job. In some ways, they have done well at this, in other ways they’ve failed. The have to be aware that the perception in many ways will determine their legitimacy in the international community. How they are perceived could provide them with a sense of legitimacy, which will allow them to fulfill their goals.

Q:  What is the ideal relationship between the ICC and the Security Council as detailed by the Rome Statute? How have the current activities of the Court and the Council failed, exceeded or lived up to this ideal?

A. I think so far the relationship has been pretty good. I am not sure I would call it ideal, but my understanding of how the ICC and the Security Council should interrelate is in line with the principle of complementarity that defines the relationship between the ICC and national jurisdiction. I think that the Security Council in many ways is also supposed to complement the ICC when needed. So in the Sudan case, this is a great example of a situation where the international community was more or less calling for action and the Security Council was able to step up and complement the ICC’s activities by giving them the power to go in and investigate. At that point the Security Council was to step back and allow the ICC to proceed as they see fit. I would hope that that is how the relationship will evolve, and I think this is how the relationship was intended when the international community drafted the Rome Statute. Those in Rome were very wary of the politicization of the Court by the Security Council; however, they also recognized that there had to be some sort of relationship between the Security Council and the ICC and that the relationship should be in many ways a complementary one. Coming back to the political question, the Security Council is also going to have to recognize when the ICC has gotten in over its head in a political situation. That might be the point at which Article 16 is going to be implemented. I think, however, that it is going to be rare that you see Article 16 authorized – it will be rare that the Security Council acts in concert to say that they are going to stop the ICC’s activities for 12 months and possibly renew it after that. So as long as it proceeds in that way and they use Article 16 sparingly and the Security Council is there to give the ICC the authorization to go in to investigate situations like the one in Sudan, then, to me, I think that’s living up to the standards that were set in the Rome Statute.

Q: Does Article 16 of the Rome Statute effectively give the Security Council authority over the prosecutor’s office? On what grounds and in what types of situations should the Council invoke Article 16? What will the implications of adopting an Article 16 Deferral in general but also in the Bashir case in particular?

A. I do think that Article 16 does in many ways give the Security Council authority over the Prosecutor’s office. Article 16 provides the Security Council with the opportunity to suspend the activities of the Prosecutor’s office for 12 months and then renew the investigation more or less at their discretion. So this power of deferral of investigations and prosecutions is clearly a point at which authority resides in the Security Council and not the Prosecutor’s office. However, in terms of when this might be used, I address the issue from two perspectives– personally, my hope is that it would be used sparingly. I hope that the Security Council would more or less grant the ICC and the prosecutor’s office leave to proceed with investigations as they see fit. Then thinking specifically about what types of situations or criteria exist where they would invoke Article 16, I think, practically speaking, that invocations of Article 16 will be few and far between. There has been talk of doing this for the Bashir case, and I am not sure that I see all members of the Security Council accepting suspending the indictments of the ICC in this case unless there was a very clear indication that a cessation of the crimes was going to occur in the Darfur region. The reality of that happening is minimal at best. I simply do not think that the countries of the Security Council are going to be duped into accepting that, and I personally do not think that Bashir would ever offer that up given how he has reacted to the warrant in the past few weeks.

Are there theoretical debates about when and how Article 16 should be used? Possibly. The peace versus justice question is a very real question; I tend to believe that you cannot disaggregate the two. However, if there was a situation where you had a peace plan on the table and the one stipulation was that all warring parties would sign this if the ICC arrest warrants are suspended against certain individuals, then yes, I think that that is a situation where Article 16 would be appropriate. The key with Article 16— in terms of what types of situations it should be used in—is to remember that it only suspends the prosecution from its activities. If a year later, the peace process breaks down, then the ICC can go back in after the 12 months and renew its investigation and prosecution. Article 16 does not simply make the situation go away; I think this is a key aspect of Article 16 that many critiques of it forget.

Q. How significant is it that the first (and still all) of the cases currently before the Court are against Africans for crimes committed in Africa? How does this affect the perception of the Court’s legitimacy in the international community?

A. Perception often creates reality and this is a problem that the Court has to work on. The perception at this point is that the Court is focusing on Africa and that it has a Western bias and that this is why it is looking at these particular cases. It is regrettable that this is the perception of what the Court is doing. I do not believe that the fact that all the cases are in African countries is necessarily problematic. We have to remember that all of these cases are either self-referrals, or were initiated by the UN Security Council. The Court has not done a good job making these facts known to the broader public. To those that study the ICC and look at this issue, I think there is a better understanding of why these cases were chosen and why the ICC is acting like this in these particular instances. I think the ICC has to work on its public relations in terms of portraying a more legitimate and beneficial perception of itself to the broader international community. Until it does that, these questions of legitimacy, in relationship to where the Court is investigating, are going to persist. They have looked at other cases and there has been a discussion of opening other cases in other parts of the world. Unless you are looking at particular cases or following the press releases of the ICC, you are not going to be aware of these facts. It is unfortunate that the majority of the public and the international community are not fully aware of everything that the prosecutor’s office is doing.

Q: The Rome Statute was originally supposed to govern the crime of aggression as well? What do you think the future of the crime of aggression will be for the Rome Statute? Will the States Parties to the ICC agree upon a definition of aggression? How might this influence the role of the Court in the future?

A. I’ve become very pessimistic on this question. This question has dogged the establishment of this Court since the WWII era. When you had the activities after WWII, in the late 1940s and early 1950s, to establish this Court, the official justification for not establishing it was that they could not come up with an agreed upon definition of the crime of aggression. That probably was not the sole reason given the emergence of the Cold War and other issues. But as we move forward, we have a definition that emerges in the 1970s that was not palatable to enough actors that they were willing to implement it into a juridical institution like the ICC. So at this point, I am not very optimistic that the crime of aggression will ever be a part of the Rome Statute. Quite honestly, I’m not sure that this is necessarily a bad thing at this point. To me, as I look at the crimes contained in the Rome Statute, I think the crime of aggression may be the most easily politicized of all because it does not have an accepted definition as I think most of the other crimes do. So to have this undefined crime of aggression put into play in the Rome Statute and to allow the prosecutor to act on that, I think would be extremely problematic; I would worry about the politicization of that crime and the overuse of that crime and in many ways, I would think it might hinder the legitimacy of the Court rather than help it. The ICC would be best served to stay with the longstanding definitions of the three core crimes it already governs, and then eventually they can come to a definition of the crime of aggression, but only when and if the Court is a more accepted institution in the international community.

Q: What do you see as the future role of the Court in 10 years? Will international criminal law gain increased authority and enforceability? Why or why not? Can you give an example of a best- and worst-case scenario for the Court?

A. I think the future of the court is extremely dependent on the world’s state actors. As much as I loathe a state-centric, realist perspective of the world, I think the reality is that states still play a fundamental role in how the future international community will be constructed. And so as we look at the Court, I think that the future role of the court will be dependent on the acceptance of the Court and the buy-in by the international community of states. Without that buy-in by the international community of states the ability of the Court to arrest people like Bashir, to act on the warrant, to have any type of enforceability, is extremely limited. The Court simply does not have the independent means to fulfill its mandate. It must rely on states to fulfill its mandate. Simply having a hundred plus ratifications does not mean in a practical sense that these states are going to support the Court in a clear fundamental way in terms of the enforcement of its rulings on the arrest warrants, etc. The best-case scenario is that you do get the buy-in from these states, they do accept the mandate, see it as beneficial to their interests in the international community and they assist in every way possible. The worst-case scenario is that these states don’t buy-in and the Court simply flounders for the next ten years in terms of its inability to enforce anything. At that point I would rather have seen the Rome Statue fail in 1998 than have the ICC.

The ICC’s fate is solely dependent on the international community of states. If the ICC is not to become a dead letter institutions, then it’s up to the states to prop it up and make it a fully functioning institution, but this will simply be about how states wish to construct the future international community and whether they believe their interests are best served by multilateral means or not.

Interview conducted by Zachary Manfredi and Julie Veroff.

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