Archive for the ‘Interviews’ Category


ICC Observers Project-Oxford Transitional Justice Research

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


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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ICC Observers Project-Oxford Transitional Justice Research

Exclusive Interview Eric Leonard, Professor of Political Science Shenandoah University


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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ICC Observers Project-Oxford Transitional Justice Research
Exclusive Interview: Colin Thomas-Jensen, Enough Project Policy Advisor


Colin Thomas-Jensen is a Policy Advisor at the Enough Project. Based in Washington, D.C., Colin helps to guide Enough’s analysis and policy recommendations to end crimes against humanity. He also oversees Enough’s field research in Sudan, Chad, Congo, Uganda, and the Horn of Africa. Colin previously worked at the International Crisis Group, where he had a range of responsibilities including direct advocacy with senior policymakers and research trips to Africa. He joined Crisis Group from the U.S. Agency for International Development (USAID), where he was an information officer on the humanitarian response team for Darfur. He also served as a Peace Corps volunteer in Ethiopia and Mozambique, and has traveled extensively in East, Central, and Southern Africa. Colin has an MA in African Studies from the University of London’s School of Oriental and African Studies (SOAS), with a concentration in the history of Islam in Africa, African politics, and Islamic family law. He has written for Foreign Affairs on U.S. policy in the Horn of Africa, publishes regular commentaries and op-eds in U.S. and African newspapers, and speaks frequently with international news outlets.

Full PDF Version of Interview: colin-thomas-jensen_interview_official

Q. You recently authored a strategy paper for ENOUGH outlining different mechanisms for peace building and conflict resolution in Eastern Congo. In the report you argued that Court should investigate and prosecute cases in North and South Kivu. Specifically, what role do you think the Court can play in conflict resolution in the DRC? You say the Court should increase pressure on international actors to develop an apprehension strategy for Ntaganda – how can it do this? More generally, what should be the political role of the Court?

A. One of the big issues that’s fueling conflict and atrocities and human rights violations across Congo is impunity. You essentially have a state with non-functional / dysfunctional court system and a limited capacity to investigate, arrest, try, and hold people accountable for the crimes that they commit, all the way from shoplifting up through war crimes. In the Kivus, certainly over the past ten years, we’ve seen a level of criminality and a level of violence directed towards civilians that’s almost unprecedented. For anyone doing human rights work, the Great Lakes is one of the biggest challenges that we have. Beginning to establish accountability for war crimes and crimes against humanity is critical to changing the behavior of combatants in these conflicts and ultimately ending them.

In the Kivus specifically, and since 2002 because we’re talking about the ICC here, we’ve seen sexual violence perpetrated on a massive scale, we’ve seen war crimes, forced displacement, murder, torture. All of the ingredients are there for what I believe should be a full scale ICC investigation. The state in question is unable to end impunity on its own in the Kivus and certainly because of the situation we’re seeing now with Bosco Ntaganda, unwilling to even live up to its own commitments under international law and as a signatory to the Rome Statute. And on that question in particular, I was really struck when Nkunda was removed from the head of the CNDP and replaced by Bosco Ntaganda that there was almost deafening silence from the human rights community, from nation states–specifically those signatories to the Rome Statute–and from the Court itself, on the fact that Bosco was essentially walking around unmolested in Goma. And that continues. He appears regularly in public, he spends time with government officials, yet this is someone who they’re obligated under international law to arrest. I’d like to see the Court increase pressure on the Congolese government to arrest him, and doing that means pounding the table a bit more. The prosecutor and his deputy do have a bully pulpit and can start to make a lot more noise about the fact that this guy, a guy who’s responsible for some pretty heinous stuff, is not only walking around carefree in Eastern Congo, but also has been given military responsibilities by the Congolese government that most certainly would give him yet another platform to commit atrocities.

Q. In the case of the Sudan, Enough’s strategy has particularly focused on accountability for state actors and state crimes, but in the DRC, your strategy appears to focus more specifically on rebel leaders and non-state actors like Ntaganda and the CNDP. What is the reason for this strategy? Is there a role for the ICC to play in helping to assure accountability for state crimes in the DRC, as well as for those committed by rebel leaders?

A. Justice must be impartial. In the case of DRC, there’s no question that the Congolese army – whether of Kabila I, Kabila II, the transitional government, or the current government – has been responsible for a significant number of human rights abuses and in many ways has been one of the causes of the conflict. In Congo, the army is more of a predator and a protector. The inability of the state not only to protect its own citizens but the decision by members of the military to commit atrocities is something that ought to be punished. The focus thus far has been on rebel leaders because as we’ve seen, the state referred the case and Nkunda and Bosco and others are obvious targets because of their reputations and the investigations that have gone on by a lot of human rights groups that I’m sure presented information to the Court. But the state in this case is often complicit in violence against civilians, particularly sexual violence. And also, I think here, again, there’s a split. Because the Court’s mandate is 2002 on, we’re looking at different periods. Many of the war crimes committed during Congo’s civil war were committed before 2002. Many of the criminals responsible for this violence are sitting in rather plum positions in the military or have retired to nice villas. In addition to the Court going after crimes post-2002, we also need to start looking at broader forms of transitional justice in DRC and particularly a process to vet army officers and remove and punish those who are proven to be responsible for war crimes and crimes against humanity.

Q. What was your reaction to the arrest of Jean-Pierre Bemba and the charges of war crimes and crimes against humanity brought against him? Is it significant, and how so, that these charges are for crimes committed in the Central African Republic and not the Democratic Republic of Congo? How might this affect the perception of the Court and his trial at the local level as opposed to an international level?

A. Bemba is someone who bears significant responsibility for crimes in both CAR and in DRC and the Court very well could have put together a pretty strong case against him for his conduct during the Congo War. That the arrest warrant was issued for crimes committed in CAR and that that case was referred to the Court by President Bozize and that that President Bozize is a close ally of Kabila and that Bemba is Kabila’s main political rival – these factors add to the perception that Kabila, like Museveni in Uganda, many think, have used the Court to isolate and neutralize political or military enemies. And whether that’s true or not, the question is: has the Court done its job in investigating crimes committed by all sides in putting together strong cases against the most egregious offenders and in ultimately, bringing these guys to justice? On the specific case of Bemba, I think it’s quite obvious that he did some pretty awful stuff in CAR and I do think he deserves to be in the dock for that and for that the ICC should be commended. But the other side of that is that there were atrocities committed by all sides in the war in Central African Republic and I would hope that there are ongoing and aggressive investigations to bring those members of the government responsible for atrocities to justice.

Q. We have seen some successful military tribunal trials in Eastern Congo recently, despite larger problems of impunity that you previously discussed. It seems that individuals like Lubanga or Bemba could ostensibly have been tried in military tribunals instead of the ICC. How does this affect the legitimacy of the Court? Are these too small of fish to be tried by the ICC, or did these cases warrant ICC attention?

A. The trials in Katanga ought to be seen as big successes, though from a human rights perspective, it’s unfortunate that the defendants were sentenced to death. Because I focus mostly on the Kivus, my understanding of what’s gone on in Katanga is mostly from Human Rights Watch and friends and colleagues there, and a successful Congolese prosecution is something we ought to applaud. But at the same time it is a small drop in the bucket of the level of criminality and violence that has characterized these wars. The imperative in the Kivus, where we often forget that 1,000 people are still dying a day due to this war, is bringing the conflict to an end. I think that whatever mechanisms are available to both the Congolese government and the international community to end impunity, which is fueling these wars, have to be exploited and the ICC is certainly one of them. I’m not sure if it’s a question of big fish versus little fish – the ICC certainly wants to be going after the high-profile individuals, those with command responsibility and responsibility for significant violations of international law. But in the Kivus, there are so many murderers running around and so many people with blood on their hands that the Court certainly has a role in both conducting its own investigations but also, and Ocampo always stresses this, working with local government or the host country government to improve its capacity to do these types of things on their own. And in some way, and I wish I had the evidence for this, with the trials and convictions in Katanga, there is perhaps a connection between the success that the Court has had in Ituri and in apprehending suspects and having them delivered to the Hague and the Congolese government taking on more responsibilities to try and prosecute its own war criminals.

Q. What do you think of the Pre Trial Chamber’s decision to issue an arrest warrant for Omar al-Bashir? What is the impact of the absence of a genocide charge on the advocacy movement? If there is a consensus among international jurists from the UN Commission of Inquiry Report from 2005 and now the Pre-Trial Chamber of the ICC that the violence of Darfur does not constitute genocide, will this affect the advocacy movement’s, and Enough’s, strategy and advocacy focus with regard to the conflict?

A. First, on the Pre-Trial Chamber’s decision, I understand that the deliberations, specifically over the question of genocide charges, were extremely contentious and that a couple of the judges are no longer on speaking terms because of it. And I think that speaks to the fact that this wasn’t, as some armchair academics have said, a slam-dunk in the face of the Prosecutor that Bashir is not responsible for genocide. It was something the judges debated and discussed and disagreed upon. Whether those charges are warranted or not – ultimately in this case not – there will be other prosecutions and I’m sure there will be other attempts through whatever justice mechanism, whether it’s domestic in Sudan or international, to prove these charges, because I think there’s evidence enough to warrant at least a trial on genocide charges. I say that in part because of the decision reached by the US government to call this genocide, and it was not one taken lightly. It resulted from a legal investigation and determination by State Department lawyers, who are not known to interpret these things liberally. They are quite conservative, so to make that determination was something they felt quite strongly they had legal basis to do. And look at the Commission’s report itself. It was incredible to me that despite the litany of crimes listed as committed by the government and its proxies, the government of Sudan was able to twist the report into quite a propaganda machine for itself simply because the commission didn’t say that genocide had been committed. It said that there were acts committed that were tantamount to genocide but didn’t quite reach that threshold. But there was very little legal discussion of what that meant. To me it sounded like the US State Department talking about Rwanda in 1994, when the spokesperson famously said that acts of genocide had been committed but the U.S. government shamefully refused to say, in the face of continued questioning, that genocide was being committed.

On the question of how this is going to impact advocacy and activism: my own strong belief is that the question of whether or not what’s happening in Darfur, or what has already happened in Darfur, was or is genocide is important from a legal perspective and from the victim’s perspective. It has to be said that the use of the word was certainly important to building an activist movement and certainly catalyzed a number of communities to take action in the United States and around the world. The continued use of that term is a contributing factor to the energy that we’ve seen built up around ending this conflict. But at the same time, the debate over whether or not it is genocide has been unproductive in many ways. It’s also been non-productive and it’s been counterproductive to the movement to end whatever we want to call it: war crimes, crimes against humanity, genocide, mass atrocities, atrocities, atrocities crimes. It has been unproductive in the sense that it’s been a distraction. We’re still seeing reams being written and discussed about whether this is or is not a genocide. At this point, it is important from a legal perspective, but it is more important that six years into this conflict, we have yet to see meaningful steps taken to end it, except by the ICC. It is non-productive because, even though the US reached the determination that the violence constituted genocide, it then made this astonishing leap and said, “And we’re doing all that we can to stop it.” The fact that you had the conservative General Counsel and lawyers at the State Department authorizing the US to make a pretty extraordinary claim on the international stage and then following it up by saying, “And that’s basically it,” raises the question of: what was the point? What then did it mean? And then I think counterproductive for the reason I said before: the fact that any time an institution or a commission makes a finding that it is in fact not genocide, the government of Sudan can rail against the United States and others for their claims without having to face what’s often embedded within the text, which is that the government is responsible for terrible crimes against humanity and atrocities no matter how you cut it or how you define it.

I think the way it’s going to impact the movement in immediate terms of the Chamber’s decision is minimal. I think that many activists and, it must be said, many lawyers and academics believe strongly that genocide has occurred and may be still occurring. And as a way to frame a conflict in which civilians have certainly been targeted on the basis of their race and ethnicity, it’s going to continue to be a descriptor and it’s going to continue to drive a movement that we hope will help to end the conflict.

Q. Looking at Enough’s four “P” strategy – Peace, Prevention, Protection and Punishment – sometimes these various objectives may come into conflict with one another. Could you describe the decision making process of Enough staff when deciding to support a decision like the ICC arrest warrant for Bashir that, while it furthers the interests of justice, may also have negative implications for peace and protection in the short term?

A. Our strong belief is that you need all three at the same time if you are going to make any progress towards ending a conflict. Protecting civilians in and of itself not going to end a conflict. Peace without justice most likely fails to end conflict and accountability in the absence of anything else is not going to end the conflict either. You need to move forward on all fronts. We also have to be realistic and sober when we think about what the impacts of various moves might be for people on the ground and it is disingenuous for any activist to say that the ICC’s decision and the way that the government of Sudan has responded to the ICC’s decision, is not going to have an extremely harmful impact on civilians in Darfur, in both the short and perhaps medium term. That is why the international response to the Sudanese government’s decision is so important is that up until now, the government has really faced very few if any real consequences for what it has done in Darfur. I do agree with some that the regime is acting in part out of paranoia that western NGOs are embroiled in a plot to bring down this government. However, I also think that they have calculated the human cost of this decision and it is something that plays into their war strategy. If there is no response, or if the response is to consider an Article 16 suspension of the warrant so that humanitarian assistance can continue, we will have essentially enabled the regime and others like it to manipulate humanitarian assistance and accountability to their own ends. If the Sudanese government does not reverse its decision to expel humanitarian groups or face harsh consequences for its actions, the immediate lesson for this regime and others like it is that for all of the rhetoric of human rights, international law, and responsibility to protect, the international community remains as toothless in the face of genocide as it was in Rwanda. A return to the status quo right now, despite the overwhelming costs that I fear civilians are going to suffer, is the worst thing that can happen to Sudan just now.

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? Where might the Court issue its next set of indictments? Where should the Court look for future prosecutions? Also, as a parallel question given that Enough also describes itself as an organization dedicated to ending genocide and crimes against humanity, what is the significance that all of the conflicts Enough has thus far focused on are also African? Does Enough plan to focus on other conflict situations in the future?

A. At Enough, when we began our work, it was essentially two Africanists that founded the organization – John Prendergast and Gayle Smith – and I was a sort of wobbly third wheel and also an Africanist. We believed strongly at the time that the three conflicts that warranted the most attention and would benefit the most of a constituency of Americans pushing policymakers to take action to end atrocities were Sudan, Congo, and Northern Uganda, or wherever the LRA happened to be at the time. Over time, however, our strategy certainly is going to be to expand beyond just Africa and to start adding any crisis to our portfolio in which crimes against humanity or genocide are occurring. One of the ways we are going to make those determinations is through a project to establish metrics for those places most at risk—tackling this question with political science research. We are going to examine the question of where atrocities are most prevalent and what countries are most at risk of atrocities. I am pretty certain that once we finish that project, we will have a roadmap to some of the other countries that we are going to be working on. I have no doubt that Sri Lanka and Burma would be high on the list as places where civilians are bearing a high cost in war. It must be said that we receive a constant barrage of feedback on the website from people asking why we are not focusing on Iraq and Gaza. There is a strong case to be made that atrocities are being committed in the Middle East, but many of these crises already get a whole lot of attention from the media and policymakers and from activists. Our mandate is to try to shine a spotlight on those conflicts that are equally bloody, if not bloodier, but that do not generate the same kind of heat. That is how we make our decisions.

As for the Court and the fact that its work has been limited to Africa, I do think the Court now has a big perception problem on its hands. I think they are aware of it, but I do not know what specific steps they are taking to deal with it. For those who critique the Court on these grounds, their argument is that it is a neo-colonialist imperialist enterprise aimed at keeping African countries in their place. The counter-argument of course is that three of the current cases – CAR, Congo, and Uganda – were referred to the Court by elected, sovereign governments and the Sudan case was referred by the Security Council, which is the ultimate arbiter of international peace and security. It may not look fair, the argument goes, that the Court only has cases in Africa, but that it has just turned out that way early on. I think that that is the case, but the issue of perception has to be managed better as well; the perception that this is a Court of white man’s justice needs to be accepted on face value and combated aggressively not only by the Court but by state parties to the Rome Statute as well. My greatest frustration with the ICC is not with the institution itself, but rather with the states that signed the Rome Statute and the fact that in the face of criticism from the global south, criticism from multilateral organizations like the Arab League and the African union, that the Court’s major backers have been somewhat muted in their response—this certainly hurts the ICC.

It is not the prosecutor’s and the Court’s responsibility alone to defend their actions day in, day out. They need support from those countries and those institutions that helped to establish the Court. And not only does the Court need defense against and criticisms and questions about whether they are targeting Africa, but they also need support in executing the warrants. It was incredible to me that the ICC issued arrest warrants for Joseph Kony and his close associates and the Court’s major backers within the international community literally had no plan and no notion of a plan on how to execute them. As a justice mechanism it is the prosecutor’s job is to take on cases, pursue them aggressively, and put people behind bars, but it is the broader international community’s job to support that effort in the face of criticism and to support the prosecutor if he makes a mistake. I’d like to see a more friends of the ICC that were more vocal and assertive in putting forth that alternative narrative, because I’m getting pretty sick of hearing how the Court is targeting Africans, particularly when it has to be acknowledged that some of the worst war criminals in the world are killing with impunity in Central African and Sudan.

Q. What do you see as the future role of the Court in 10 years? Will international criminal law gain increased authority and enforceability? Could you speculate about possible best- and worst-case scenarios for the Court? What can the ICC and other international actors do to ensure its own legitimacy in the future?

A. I think we have to look at the broader trends. Although by no means is the job close to being finished, the world has made leaps and bounds in halting atrocities and in ending impunity for war criminals. I do think you can say that we have made significant progress through the international tribunals of Rwanda and the Former Yugoslavia, and the Special Court for Sierra Leone; we are seeing major war criminals behind bars, on trial, in the dock, answering tough questions about their behavior and ultimately spending time behind bars. That is not something that was happening 20 or 30 years ago. The optimist part of me, and it is not a large part, but the optimist in me says that despite the fits and starts that are inevitable with any institution that the ICC, over time, is going to establish its legitimacy through prosecuting and putting people behind bars and that it is going to earn increased support. A very important issue for the future is the strategy that the Court and its backers put in place to manage its perceptions, particularly in the Global South. I think there does need to be much more considered and concerted action taken to do that. I also think that the work that the Court’s main backers do behind the scenes to support its work is of incredible importance. The ICC does not have an army and it does not have a huge investigative force. When it does investigations, it relies on support from others within the international community. I know people who have provided evidence in a number of cases—they have just volunteered. They have said, “I have these photos of this incident, do you want them?” And the Court says of course. Those of us who support international justice have a responsibility to do what we can on an institutional and a personal level to support the Court. If the ICC does receive that support, we’ll have an institution that in ten years is locked in place within the international system. It will have its ups and downs, but will be well established as a mechanism to bring the worst war criminals to justice.

I don’t want to speculate on the worst-case scenario. Certainly the Sudan case is a major challenge and the fact that the Court’s backers and Rome Statute signatories have allowed the African Union and the Arab League and others to marshal as much opposition to this arrest warrant as they have is problematic. The possibility of African states pulling out in a block from the Court is a very real problem and one that ought to be combated. I do not think that would be a deathblow to the Court, but it would certainly be a significant shot. My general sense though is that, despite the horrible crimes that are still occurring, the trends in international law towards ending impunity and preserving human rights are positive. I think the ICC will ride that wave and in ten years will be in a place that might not be as far ahead as we would like it to be, but will be well-established.

Interview conducted by Zachary Manfredi and Julie Veroff.

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ICC Observers Project-Oxford Transitional Justice Research
Exclusive Interview: William Schabas, Professor of Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland, Galway

Professor William A. Schabas is director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the chair in human rights law. William Schabas is an Officer of the Order of Canada. Professor Schabas is the author of eighteen monographs dealing in whole or in part with international human rights law, including Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007, 3rd  ed.), and Genocide in International Law (Cambridge: Cambridge University Press, 2009. 2ndf ed.). Schabas has often participated in international human rights missions on behalf of non-governmental organizations such as Amnesty International (International Secretariat), the International Federation of Human Rights, and the International Centre for Human Rights and Democratic Development to Rwanda, Burundi, South Africa, Kenya, Uganda, Sudan, Cambodia and Guyana. He is legal counsel to Amnesty International Ireland. In May 2002, the President of Sierra Leone appointed Professor Schabas to the country’s Truth and Reconciliation Commission, upon the recommendation of Mary Robinson, the United Nations High Commissioner for Human Rights.

Full PDF Version of Interview: schabas_interview_official

Q: In a recent article, you wrote that the UN Commission of Inquiry’s report on Darfur, while finding that “the Government of Sudan has not pursued a policy of genocide,” left room for the possibility of individual actors having committed genocidal acts. Does the ICC ruling change your opinion about this possibility? What is the distinction in customary international law between “acts of genocide” and an organized state “policy of genocide”?

A: There is case law from the Yugoslavia tribunal that holds that the crime of genocide as defined internationally doesn’t require any contextual element such as a state plan or policy. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has held that an individual acting alone can commit genocide. That view was endorsed, in a sense, by the Commission of Inquiry that was presided over by Professor Cassese, but in a purely theoretical sense, because the Commission did not find any individual with a genocidal intent in Darfur on which to hang that accusation. I have personally never found this to be a particularly helpful proposition because I do not think the problem of an individual with a genocidal intent should be of any concern to international criminal law. The problem of an individual acting in isolation with a genocidal intent should be a concern for psychiatry. I have argued this position since the 1999 decision of the ICTY, I’ve written about this, and I reiterate my position in the second edition of my book on genocide, which is that a state policy element is essential for a determination of genocide. In the article you are referring to, I took the view that the Commission of Inquiry on Darfur had confirmed the importance of a state policy because it had in effect responded to a question from the Security Council – was genocide being committed in Darfur? –with the answer, “No, we don’t see any genocide in Darfur because we do not observe a state policy of genocide.” So I took the report of the Commission of Inquiry as confirmation of my position, although I have to acknowledge that the Commission says that they cannot exclude the possibility that an individual acting alone could have genocidal intent. I know this to be the view of Professor Cassese, but I don’t agree with that position.

Now, in the recent decision on the Bashir arrest warrant, the majority of judges hold the view that genocide requires the policy element, in effect deriving this standard from the Elements of rimes. It is important to understand that the Elements of Crimes, which were negotiated in late 1999 and early 2000, took place in context of the ICTY and the cases involving the lone genocidal perpetrator. It is well known that the requirement of a contextual element for genocide, which is in the Elements of Crimes, was a response to the decision of the ICTY. The majority of the Pre-Trial Chamber has insisted on applying the Elements of Crimes for the purposes of applying the law of the Rome Statute. They distinguish it from the position taken by the ICTY but without making any observation as to what it might constitute for international criminal law. The judges of the ICTY would no doubt say that the Pre-Trial Chamber’s decision is a particular interpretation of the provisions of the law applicable to the ICC rather than a statement of customary law; this is only because they think what they are pronouncing on is customary law. I have noticed that the judges of the ICTY refer to the Rome Statute as authority of customary law when they agree with it, and when they do not agree with it they say it is not representative of customary international law. This suggests that customary international law is what the five judges of the Appeals Chamber of the ICTY think it is. I do not think that’s the correct position.

I think that the Elements of Crimes, which represent a consensus of the states involved in the ICC, is more authoritative of what customary international law is than what the judges of the Appeals Chamber of the ICTY think it is. However, no one can answer that question definitively – we now have a situation where we have one interpretation from the Yugoslavia Tribunal, which is based on the judges’ own interpretation of treaty law, namely Article 2 of the Genocide Convention as repeated in Article 4 of the Yugoslavia Statute. The ICTY judges are relying on a literal interpretation of that provision, because they argue that there is nothing in the text that says that in order to commit genocide there needs to be a contextual element or state policy element, so they conclude that you do not need a state policy element. That is, unfortunately, the extent of their analysis. To say that this view is customary international law is pretty superficial, because there is no attempt to identify what customary international law is in this case, but rather their opinion is based only on a literal interpretation of the treaty provision.

What the ICC has in its favour is that when you combine its text – which is the same text in Article 2 of the Genocide Convention, Article 4 of the ICTY Statute, and Article 6 of the Rome Statute – with the Elements of Crimes, and a dose of common sense, you end up with a contextual element to the crime of genocide. What we do not know now is whether people will look to the Pre-Trial Chamber’s decision in the future and say this is a useful correction that helps us to clarify customary law or whether people are going to interpret it as a particular decision dictated by the specific terms of the Elements of Crimes.

We have to bear in mind that there is a dissenting opinion in this case that tends to dismiss the significance of the Elements of Crimes. There is also Article 10 of the Rome Statute that reminds us that the Rome Statute is not necessarily a codification of international law. Those are all the pieces of the puzzle and where things will go from here I cannot say, but I am pleased with the arrest warrant decision.

Q: How does the Pre-Trial Chamber’s ruling in the Bashir case relate to the 2005 UN Commission of Inquiry’s findings? Does the Court’s refusal to grant the genocide charges support the findings of the Commission? Are we reaching a consensus that the violence in Darfur is not appropriately classified as genocide? How will this influence the future development of international criminal law?

A: Yes, it is clear that there is a growing authority for the view that the events of Darfur do not constitute the crime of genocide: the Commission of Inquiry, the Pre-Trial Chamber, and the major human rights NGOs – Human Rights Watch and Amnesty International – have not used the term genocide. I think it is clear that when one gives an interpretation based on the definition of the Genocide Convention, we get the result that this is not a case of genocide. When one looks at something like the document produced by Madeline Albright entitled Preventing Genocide, from her Genocide Task Force in 2008, we see it adopts a definition by which genocide means all forms of mass killings. That is not a particularly legal determination and she and her co-authors tend to dismiss objections to their view as legal pedantry. I, however, do not know that it is proper to dismiss the Genocide Convention and the Rome Statute as merely legalistic pedantry. These are significant and recognized distinctions in international criminal law between genocide and other forms of mass killing, which would constitute crimes against humanity or war crimes.

The definition of genocide and the answer to the question of whether genocide is taking place in Darfur depends on whom you are talking to. If you are talking to an international lawyer, then it is not genocide. If you are talking to an American politician or sociology professor, then they might say it is genocide. It just depends how you use the word. The Oxford English Dictionary adopts the definition from the Genocide Convention. However, people are free to use words as they want. For example, sometimes people will use rape to describe violent sexual assault, while some merely use the word to describe something unpleasant. So when we debate whether ‘genocide’ is taking place in Darfur, we need to know what people mean by genocide. There are a lot of different meanings floating around out there.

For international law, it means that there is growing support for the feeling that Darfur is best not characterized as genocide, and there is also growing authority for the view that the definition of genocide in the Convention and Rome Statute should be interpreted in a relatively strict and narrow manner. We now have a great deal of authority for this view: the decision of Pre-Trial Chamber, the ICJ ruling in Bosnia v. Serbia, and the Yugoslavia Tribunal in the Krstic ruling, and we have the report of the Commission of Inquiry. Against that, you have a few dissenting judges, and you have a few national court decisions that weigh on the other side, but on balance, the authority is clearly in favour of a narrower interpretation. That is why so many thought that the actions of the Prosecutor in attempting to get the arrest warrant for genocide given the indications of the law were not very productive. I am not talking about the demagoguery or extravagant use of the term genocide in this case. The consensus among international lawyers and from the UN Commission was that the prosecutor could not get an arrest warrant on the grounds of genocide. So in terms of international law, the Pre-Trial Chamber’s decision is just further evidence of a trend towards a narrow interpretation of the crime of genocide.

Q: What do you make of the possibility that Moreno-Ocampo might appeal the judges’ decision or bring future charges of genocide against Bashir and other Sudanese officials?

A: I do not see that as a serious possibility. He has filed an application for leave to appeal, and it will have to be determined by the judges of the Pre-Trial Chamber who issued the arrest warrant. There is no appeal of right of a decision denying issuance of an arrest warrant He has to demonstrate that the ruling would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and that an immediate determination of the question by the Appeals Chamber is required. He would have an argument if the warrant itself had been denied. But he has his warrant, and he now can proceed to trial, and he lead all of the evidence he requires. If he succeeds in establishing genocide, the judges at trial can amend the charges. So all of this can be addressed according to the normal procedure. No useful purpose is served by an appeal at this point. This suggests to me that it is unlikely the Pre-Trial Chamber judges would give him leave to appeal this.

As for him producing new evidence—and people have made a lot of the fact that the judges included a paragraph to this effect—you can say that about anything. There is no need to put that in the judgment; it is obvious. If he produces new evidence, he can get a new arrest warrant. If new evidence comes to light, he does not even have to get the arrest warrant amended. The judges themselves can propose that the charges be amended to include genocide. The introduction of new evidence has always been a possibility. I do not know if it is particularly productive to insist that there is something significant about the fact that the judges reserved his right to come back with new evidence, since the prosecutor had this right anyway. On one occasion in the past the judges even asked for new evidence, and I assume Moreno Ocampo gave it his best shot. This is not like Srebrenica where there was a mystery about whether they could get secret communications from the Serbs ordering the massacre. Here the facts are pretty straightforward and well known. A lot has been written about this issue documenting the statistics similar to the arguments of the prosecutor.

If someone were to come forward and say that the prosecutor made a mistake because there is a whole lot of evidence that was not presented with regard to the case of Darfur, then we might have a more compelling argument that the Pre-Trial Chamber ruling could be revised or that there will be another bite at the apple. I have not heard that, and I assume the prosecutor has presented the best evidence that he has, and it is widely available evidence, including the UN Commission’s report and all the NGO material. I do not think it is likely that he will get leave to appeal, and I question whether the judges will even agree that they can give him leave to appeal such a decision. If they do grant him leave to appeal, well, then we are into the question of fact and of law. Mainly, however, we are not debating the facts here, we are debating the application of the legal definition to the facts. No one quarrels with the facts Moreno Ocampo presented and I do not think he has additional facts that could provide him with stronger arguments for a genocide charge.

Q: Does the Court’s refusal to grant the genocide charge amount to a failure in any way for the prosecutor? Some have argued, in Sudan, that this shows the weakness of all the charges. Others think that it shows that the Pre-Trial Chamber is a credible body and not merely a rubber-stamp for the prosecutor. What do you think?

A: I think this shows one more bad exercise of discretion by the prosecutor, one more bad call by Moreno Ocampo. He was chastened last year because of his decisions on gathering evidence that he could not then disclose to the defense and that led to a terrible and unnecessary delay in the Lubanga proceedings for more than six months. This was an error in judgment and I think seeking a warrant for genocide charges in Darfur was also an error in judgment. I think he should have confined himself to the clearly established charges of crimes against humanity and war crimes. The same Pre-Trial Chamber has already granted two arrest warrants for those charges; the judges had already concluded that the events in Darfur justify those two charges, as in the Ali Kushyab and Ahmad Harun arrest warrants. Presumably they would have done the same thing in the blink of an eye should that have been all they were asked to do. Then the only question would be: does the evidence link the dots between Bashir and those crimes. Had this been Moreno Ocampo’s strategy, we probably would have had an arrest warrant in August instead of February. The delay of six months in issuing the arrest warrant was due to the prosecutor insisting on trying to get a genocide charge, which was doomed to fail as shown by the Pre-Trial Chamber’s ruling. These actions show a lack of good judgment on the prosecutor’s part; it is a mistake, and not the first he’s made.

As for showing weakness or strength of the Court, it just shows it is a Court that functions properly. When the prosecutor asks for something, the judges look at it seriously and come to a decision that is based on an accurate, intelligent and well-reasoned assessment of the law; people should be satisfied that what we have here is a serious, functioning institution capable of issuing judgments of high quality. What more could you ask for?

Q: In one of your articles you mention that some human rights activists considered the UN Commission’s report a betrayal because it failed to find genocide charges. What will be the reaction of human rights activists to the Court’s findings? How will the Court’s ruling influence the actions of human rights activities on Darfur in the future?

A: Well, I cannot predict how they all will react. As I’ve mentioned, two of the leading international NGOs, Amnesty International and Human Rights Watch, have not labeled the conflict in Darfur a genocide. I haven’t checked what the International Federation of Human Rights or International Commission of Jurists have said on the matter, but I imagine they’ve taken the same cautious approach. The big international human rights organizations have not bought into the idea that the violence in Darfur should be labeled as genocide, and everything from these organizations I have read indicates great satisfaction that a head of state was charged with serious atrocities and this is being addressed by the ICC. I think there must be a considerable amount of jubilation, at least among the major international NGOs.

There is, of course, another community, a specialized community of NGOs focused on Darfur, and some of the academics who write about Darfur as well, and they may find this ruling to be a repudiation of their views. Some of them are not singing from the same hymn sheet as the rest of us because they adopt a definition of genocide that is simply their own. I work from the Genocide Convention, the Yugoslavia Statute, the Rome Statute, and so on, but some of the people involved in these debates have their own definition of genocide. All that these actors can say is that the narrow definition of genocide, which they do not endorse, has been applied by the Court.

I have always thought that there was a bit of an obsession with trying to label Darfur as genocide. This is not the only case where we see this obsession: there are people who want to label speeches by Iranian President Ahmadinejad as genocidal, people who want to label the war in Gaza as genocide, etc. There are many examples of what I call the ‘extravagant’ use of the term genocide. For people who indulge in that, they can keep doing it, but if they want to be part of the legal debate, they should just get over it.

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 these cases? 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: The Court is doing that right now. It is becoming more and more of a legitimate actor on the international stage. It had a slow start. The first phase in the history of the Court was the adoption of the Rome Statute and that was from the early 1990s until 1998. This was an exhilarating period in terms of the development of international criminal law and particularly because the more hesitant or conservative models of what an international criminal court might look like, which were the ones advanced by the International Law Commission in 1994, were totally set aside in favour of a much more robust and innovative, radical if you will, international criminal court, with an independent prosecutor separate from the UN, and many features that I won’t go into. But what resulted was the Rome Statute. So that was a very exciting period. And then there was a period of about four years for entry into force, which was like a continuation of the first period. Achieving 67 ratifications within less than four years was something nobody had ever dreamed would take place. Most people on the night of July 17, 1998 when the Statute was adopted thought it would take at least a decade to get to 60 and maybe longer. So things went very quickly. And then when the Court started, when all the officials were elected and the Court became operational in mid- 2003, it went through a difficult period when things didn’t seem to work. There were plans that it would hold its first trial in 2005, the budget set aside money for the first trial, but there was no trial until 2009. That’s four years behind schedule, and pretty much everything has seemed to take much longer [in this period]. I don’t know what the explanation is for that, but whatever it is, it’s taking longer than expected and perhaps it is simply that that’s how long things should take. We’d been through a previous period that had gone exceedingly quickly and that led us to think that it would always be like that and it hasn’t been. But now the Court is operating and it is addressing the big conflicts of our time, like Darfur. It wasn’t insignificant that a little over a month ago the Palestinian Authority attempted to engage the Court with regard to Gaza. Whether that will or can take place is a matter of some debate, but the idea that the Court was appearing to engage with or be relevant to the conflict in the Middle East is a big step; it shows the Court is on the big stage now. It’s moving forward, it’s just taken a little longer than we thought. Now we have a trial going, we’re going to have more trials. This is great. I don’t have any magic formula for what it should do now. I think it should just do more of what it’s doing. The prosecutor ought to reflect upon some of his mistakes and try to correct them. That would make his office more productive and more efficient.

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

A. I’m glad you asked that question. I have strong opinions on this. I would have held to the view in the 1990s that the Court should be totally separate from political debates and that there should be no possibility of political involvement in the work of the Court. As you know, in the final Statute, there’s a bit of a compromise there, mainly with respect to Article 16, which allows the Security Council to temporarily halt the proceedings of the Court. The other places where you have quite a clear political involvement of the Court are the triggering mechanisms where you allow both the Security Council and states to trigger the Court. This is politics. These are political bodies that make their decisions politically. I’m increasingly of the view that politics is actually a part of international criminal law and that it’s unavoidable.

I see this increasingly in decisions about whom to prosecute: decisions about individuals who are prosecuted and also about the organizations that are targeted. In Uganda, for example, the prosecution has targeted the rebels and not the government. I think that’s a political decision. The prosecutor has couched it in a strange and ultimately unconvincing theory about prosecuting the most serious crimes, but he defines this in a purely quantitative way. So if the rebels kill more people than the government, then the rebels should be the focus. But the problem with that is you need a more qualitative approach when deciding who your targets should be. Most of us living in an orderly society would find it far more threatening that the government is committing crimes, even if the outlaws are committing more, because outlaws are supposed to commit crimes and governments aren’t. So the prosecutor’s decision to go after rebels rather than the government has a whiff of the political to it. If it is purely based on this mathematical calculation, then it’s a mistaken one.

I think there’s politics going on already. The Darfur prosecution, the decision to prosecute a head of state, is a profoundly political decision. There can hardly be anything more political. You’re calling for regime change; that’s the consequence of what you’re doing. When the prosecutor explained this last July, he said: “I investigate the facts, I’m just an apolitical prosecutor who investigates the facts and goes where they lead me,” as if he were Colombo or Sherlock Holmes. But that’s not what he’s doing. It’s a political decision: he goes to the Security Council and asks them to intervene. I’m increasingly of the view that there is politics in this.

I think that our debates in the 1990s when the Rome Statute was being adopted were a bit distorted. What we didn’t like about politics in the 1990s was the idea that the Security Council would be the political guardian. That was the extent of our vision. So the way we rejected the Security Council’s engagement with the Court and the Security Council’s possible control over the Court was with the argument that there should be no politics in the Court. I think in retrospect that maybe we went too far with that. I actually think that those prosecutions often, perhaps not always, involve political determinations.

I’ve asked people about this at the Court and some people say no, there should be no politics, like what the prosecutor said. Others have said to me, actually the prosecutor has political advisors around him, which kind of confirms my own intuition, which is that there is politics involved and it is quite conscious. But that being said, I think part of the problem is, the idea that political decisions will be taken by the prosecutor suggests a prosecutor who has a different skill set than the man in the job right now. He’s a criminal law prosecutor. Once you acknowledge that the role of the prosecutor has a strong political dimension, then you either solve it by getting a prosecutor who is recruited for political expertise and judgment, or you provide some other mechanism to provide political oversight for the prosecutor. These are my preliminary reflections.

I go back and look at events like Nuremberg, where you could say it was political forces who set up the tribunal and they decided politically that the Nazis needed to be prosecuted. One of the critiques of Nuremberg that you often hear was that it was one-sided. That’s obviously true, but my question to people is: what should they have done then? Should they have had a second trial of the tribunal that tried 24 British leaders and 24 American leaders? Everyone seems to acknowledge that that’s an absurd suggestion, but say maybe they should have prosecuted a few of the allied war crimes for balance. We get this debate at the Yugoslavia tribunal with choosing the ethnicity of the defendants, we get into claims at the Rwanda tribunal that the RPF and not just the Hutu extremists should be prosecuted, we’ve had it at the Sierra Leone Special Court where they submitted arguments about which faction should be prosecuted and how harshly, how relevant it was that one side was good guys and one bad guys, and all of this involves politics. And I’m more and more of the view that rather than being in denial about the politics we should acknowledge it and then confront it. We should recognize that it is part of these decisions and then find ways to address it in an appropriate and transparent and convincing way, rather than saying as the prosecutor sometimes does that this isn’t about politics. It is about politics.

Q. Could you speculate on the future of the Court five or ten years from now? What are the best- and worst-case scenarios for the Court and what can international actors do to improve the Court’s standing and legitimacy in the next few years?

A: I really don’t know. It is extremely difficult to predict the future in this case.

I think, when you say best and worst case, certainly people shouldn’t exclude the possibility that the Court will be a failure, that it will collapse and won’t work. I think that people are naïve to just think that this just moves ahead. The idea that the Court is just going to move ahead and keep progressing and everything, which we would all like, I don’t see that as being guaranteed, and we certainly have historical examples of institutions created way ahead of their time. The League of Nations, for example, was ahead of its time. It collapsed and a new institution had to be created. I can’t rule that out for the ICC. I heard James Crawford, who was involved in the International Law Commission in the early 1990s and one of the key architects of the Rome Statute, speculating about this at a conference last May. He said we had a conservative draft at the International Law Commission in 1994 because we didn’t think the international community was ready for more than that. It wasn’t because we were conservative, he said; we were giving the international community what we thought it was ready for. But of course what happened between the draft in 1994 and the Rome Statute in 1998 was the radical reconfiguration of the Statute and a new conception of what the Court should be. That happened very quickly and maybe we moved too quickly. Maybe we created an institution that’s ahead of its time. I’m not arguing that position, but it is just one of the possible scenarios. That was Professor Crawford’s explanation of maybe why we’re having such a hard time now, why we had such a hard time getting the Court going. I can’t rule that possibility out.

The other scenario is that the Court moves forward, solves its problem, and becomes a more dynamic and more universal institution. Here the difficulties are, as I’ve mentioned, the role of politics in the Court. And I do think we need to find a solution to this one or face continuing difficulties or problems. In terms of participation in the Court, we’re now up to 108 state parties and likely there will be some more. But we still don’t have the biggest countries or some of the most powerful countries, including India, China, or the US, and we don’t have three of the five permanent members of the Security Council: China, the US, and the Russian Federation. We don’t have India, Pakistan, or Iran. These are big pieces and it’s a question, a big question mark, of whether the Court will become more universal by engaging with those pieces. The other part of it is that the Court is right now not dominated by the permanent members of the Security Council. So the absence of three of the permanent members is perhaps a weakness but it is also a blessing because it’s enabled this institution to develop and grow without the overwhelming role and participation and presence of the permanent members of the Security Council and the Security Council acting as the Security Council, which is what would happen if you got 3 or 4 of them. I’m told now that at the Assemblies of States Parties they talk about the P4, which describes the permanent members excluding the US, because it has been boycotting the Assembly of States Parties for the last several years. If the big players are brought in, it will change the dynamics of the Court and it may make the smaller players less enthusiastic and less keen on it. So that’s maybe a development too that we have to keep an eye on.

I’m also seriously concerned about recent developments around the Bashir arrest warrant. African states were keen supporters of the Court in the early years. Now, they seem to be turning against the Court. This is not a good development. At the same time, the United States is warming up to the Court. Personally, I like the court better when it had the support of African States and was disliked by the US.  I prefer that to a Court that the US likes but that African States are uncomfortable with.

But you know, if one looked at the last 15 years or so, that is, the point when what we might call the international justice accountability movement began in earnest, it now shows no signs of stopping. It reflects some kind of idea in the human rights movement and a thirst that people have in countries around the world to see that the perpetrators of serious human rights violations are brought to justice in one form or another. That field generally continues to grow. I would assume that the ICC is in a way the centerpiece of this, and the movement that surrounds the ICC keeps growing in so many other ways, that even if the ICC would falter a little bit, the movement would keep pulling the Court along with it. I would bet my money on the ICC being a much more significant and meaningful and relevant institution ten years from now than it is at present. But I’m prepared to acknowledge the caveat, because it focuses our mind to accept the danger that the Court could fail. We shouldn’t be overconfident; we have to keep addressing the shortcomings and the problems.

Interview conducted by Zachary Manfredi and Julie Veroff.

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ICC Observers Project – Oxford Transitional Justice Research
Exclusive Interview: Phil Clark, Research Fellow in Courts and Public Policy, University of Oxford, and David Anderson, Professor of African Politics and Director of the African Studies Centre, University of Oxford


David Anderson, MA (BA Sussex; PhD Cantab), is a Professor of African Politics, Director of the African Studies Centre, and a Fellow of St. Cross College at the University of Oxford. He has a long-standing interest in the history and politics of Eastern Africa and state violence and its consequences. He is the author of The Khat Controversy, which examines the global expansion of Eastern Africa’s khat economy, and of Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire, which is the first full history of the Mau Mau rebellion and its brutal suppression in 1950s Kenya. Professor Anderson is also the founder and Executive Editor of the Journal of Eastern African Studies.


Phil Clark is a Research Fellow in Courts and Public Policy at the Centre for Socio-Legal Studies, University of Oxford, and convenor of Oxford Transitional Justice Research. He has a DPhil in Politics from Balliol College, University of Oxford, where he studied as a Rhodes Scholar. Dr. Clark is author of Justice without Lawyers: The Gacaca Courts and Post-Genocide Justice and Reconciliation in Rwanda (Cambridge University Press, forthcoming), co-editor of After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (Columbia University Press and C. Hurst and Co.) and currently completing a monograph entitled, Doing Justice during Conflict: The International Criminal Court in Uganda and the Democratic Republic of Congo.

Full PDF of Interview: clark-and-anderson_interview_official

Q. How will the potential referral of cases from Kenya be viewed on the ground and how will it impact construction of the violence?

David Anderson:
The Kenya case for the ICC is really intriguing because it brings to light some of the real dilemmas that the ICC throws up. The people who want the ICC in Kenya are the civil society groups, Kenya Human Rights Commission, and their allies. The reason that they’re so keen on the ICC is not because they think it’s a wonderful institution necessarily but because they feel that international justice is the only justice they will ever get. They have no faith in their local judiciary. They feel that the collapse of institutions in Kenya is such that if they wait for Kenyan justice then it will never come. So they’re appealing to an international route because that’s the only one that will work.

The Kenyan government on the other hand, which is known as the unity government or coalition government, is made up of two blocks of politicians. Among each of those two blocks, there are people who might find themselves indicted. Those indictments might relate to the violence of last January and February of 2008 or they might relate to the other events that the UN Special Rapporteur for Extrajudicial Killings, Mr. Philip Alston referred to in his report of two weeks ago, which included police killings of alleged criminals and gangsters in the summer of 2007, and also referred to army atrocities, which are extremely well documented, from Mount Elgon in March and April 2008. So for the Kenyans there are a number of things coming together here. The ICC is seen to be a useful device.

But the government of course doesn’t want this. Those politicians, quite unlike the human rights activists, see the ICC as a tremendous threat because it will expose them. Now, in this sense, the indictment of Bashir in the Sudan, combined in the Kenyan case with the visit of the Special Rapporteur from the UN, Mr. Alston, to Kenya two weeks before the indictment, has had an effect of significantly heating up the politics of this in Kenya. And following the indictment of Bashir a few days later, two Kenya human rights activists who worked for the Oscar Foundation were assassinated in Nairobi. Subsequent to that, threats have been issued to a group of other Kenyan human rights activists and several are now in hiding and many are in fear of their lives.

Now, the extent to which the Kenyan government is a coalition of gangsters needs to be recognized. You can’t say this might happen anywhere else. Kenya’s politics are particular and peculiar at the moment, so one wouldn’t want to infer any comparative lessons from this, but there is a direct relationship between the indictment of Bashir and what is now going on in Kenya because people realize the stakes have been raised.

Q. If the Waki Report is turned over and indictments are issued in Kenya by the ICC, what might the impact be for peace and reconciliation and on the political situation?

David Anderson:
That’s the question that everyone is now mulling over. Since the violence of January and February 2008, there has been much thought given in Kenya to the likely impact of trying to prosecute those who were responsible. Now, public opinion is pretty well divided down the middle on this. Some people argue that to take this forward might be morally and ethically correct but because of the condition of Kenya’s politics and institutions, it would be likely to spark further violence of a targeted, specific nature such as the assassinations of the human rights workers. In other words, people are worried that to pursue these people when you don’t have the protections that a state institution that functions would give you is very dangerous and very destabilizing. Others argue that that may be the case but that we shouldn’t let that stop us with moving forward with these prosecutions because what else can we do? If Kenyans don’t have the courage to grasp this nettle, then they’re forever in the throes of these gangsters and thugs. That is the dilemma. You’d have to be a very brave person to say which of those arguments is right. For myself, personally, I worry about it because ethically I want to see these people prosecuted. But I don’t want to see my friends in the human rights community killed or threatened. So this is a genuine moral dilemma, and a very difficult one.

Q. If the ICC is the mechanism of justice pursued instead of local or national mechanisms, will that deter or increase future violence?

David Anderson:
There is now anxiety about the ICC in Kenya. Last month, the Kenyan parliament voted down a bill that would have created indigenous tribunals to try the people accused of violence in January and February of last year. It’s fairly obviously why parliament turned down that bill, because too many parliamentarians feared that they and their staff would find themselves in the dock. It is as simple as that. Whatever careful language one wants to use to describe it, it’s an avoidance strategy. Everyone in Kenya knows this. This is no secret. But it’s the decision not to have the indigenous tribunals that has also promoted this crisis; it’s not justice the ICC’s indictment of Bashir, it’s also an internal political process that has failed. And Kofi Annan, who was the arbiter of the Kenyan dispute last year is the one who is threatening to give the names to the ICC of the people he is aware of who were involved in the violence.

Now, I should say that there is another context to this that needs to be understood. Why do Kenya’s human rights activists have no faith in the judicial process? There are many reasons for that in terms of the lack of functionality of the judiciary but there are also more immediate concerns. Since January, there have been at least six attempts to prosecute individuals who were named as having participated in the violence. None of these cases have been successful. Every time the case is thrown out, usually because of lack of evidence. What this reflects is that witness protection is a serious problem and people are being got at, but it also reflects the ethical dilemma I referred to. Some very honest, good, upright people don’t want to give evidence if that evidence leads to further killing. This conspiracy builds up a momentum that goes beyond the conspirators and affects ordinary people who feel challenged and threatened by the very act of saying what it is they saw.

Q. We’d like to ask you to speak about the ICTR and regional tribunals more generally. How can these actors interact with the ICC and local justice actors? What connections should they be maintaining with national and local actors? What role should complementarity play?

Phil Clark:
There are a couple of things to say on this. The first is that the legacies of an international tribunal located in Africa are very messy. What we’ve seen with the ICTR is in many ways an institution that is, in the future, going to make it very difficult for international agencies to operate in Africa. The reason is that the ICTR has been very ineffectual in terms of understanding the politics of Rwanda and the politics of the region as a whole, which has really hampered its relationships with governments and its ability to do trials effectively. Subsequently, there’s been a real forfeit of legitimacy of that tribunal.

In the bigger framework, what that means is it’s now very difficult for international justice to happen in Africa and for it to be seen as a legitimate process. Populations look at these very expensive tribunals that have been foisted upon them from the outside, the ways in which they’ve blown in, and found it very difficult even to do legal jobs, to get investigations going, and to do it quickly, let alone to have any kind of bigger impact. So the ICTR has made it more difficult for justice to happen on the grander scale.

In terms of the regional dimension, it’s very difficult to see where the regional impetus for justice in Africa is coming from at the moment. The AU is reluctant to go down this path. There’s been some talk of setting up an Africa-wide justice mechanism that could perhaps be more locally situated and with a greater understanding of domestic politics than the ICC might have. But the AU has its hands full in terms of peacekeeping issues and broader security questions, and it’s also an institution that is struggling to maintain internal coherence. It’s a deeply divided organization with many factions. Without that kind of cohesion, including a range of leaders who have very different viewpoints on whether justice is a good thing or not, depending on their own actions domestically, then it’s difficult to think that that kind of regional dream is ever going to become a reality. So you have a difficult situation where international justice in many ways is debased across Africa, and regional questions are even more complicated.

So when asked, “What’s the likelihood for seeing justice done in a range of African countries?” this is where the conversation turns to the possibility of using national jurisdictions, and perhaps even community level processes. The ICC at least at the rhetorical level supports this move because of the principle of complementarity and giving domestic courts the first bite of the justice cherry. The problem of course has been – and Dave alluded to this in the Kenyan case – that it is difficult to see many domestic judiciaries being willing to go after their own, being willing to deliver justice for sitting members of government. Perhaps with one key example that hasn’t been discussed enough internationally: in Congo, the increasing capacity and willingness of the military courts to deal with very serious cases. This is an interesting development. I don’t think many people looked at Congo and thought that military courts were going to be where justice would be done, but that’s what we’ve seen. The military courts, in the last year and a half, have prosecuted some serious perpetrators, including high-ranking officials within the army and senior rebel leaders for serious crimes, including war crimes and crimes against humanity. And in many ways, on the ground in Congo, the perception is that it’s not the regional bodies nor the ICC that is most likely to do justice for the most serious perpetrators; it’s actually the military courts operating in people’s midst. Now it’s difficult because military tribunals across Africa don’t have a good history of doing justice. They’ve been very selective in the candidates that they’ve prosecuted; they’ve usually insulated their own. Military courts have often done very short shrift to the justice processes across Africa, but what we’re seeing in Congo is a change. So that’s a challenge to the human rights community internationally, who would not inherently have a lot of faith in military tribunals. But in terms of domestic processes in Africa geared toward prosecuting major crimes, the military courts in Congo are probably the most active at the moment.

Q. How do you think the doctrine of complementarity can be best implemented to work with local and national jurisdictions to provide the whole picture of justice?

Phil Clark:
I think the key to complementarity working is for the ICC to enact the principle in the way that it was originally defined, which is that the reason the ICC exists is to prosecute the most difficult cases that national jurisdictions are not able or willing to prosecute. The problem that we’ve seen in the ICC’s first five or six years of operation is it has been dealing with the small fish only: middle ranking officials, rebel leaders, who, as the Congolese example indicates, could have been prosecuted domestically. The problem we’re seeing at the moment is the Court is not dealing with the difficult cases it was ultimately designed to prosecute. This engenders a lot of confusion in the wider realm of justice about where this international institution actually fits in. It undermines the confidence of domestic judiciaries; it sends a message that they might be trying to reform themselves and might be trying to deal with very complicated justice questions, but that’s not necessarily going to stop an international body from intervening.

So it comes back to the question: What then is the purpose of having the Court? In an ideal sense, the notion of complementarity is a useful one in that it divides the labor between a number of different actors. It gives states the possibility to reform their judiciaries and to pursue justice for serious perpetrators. But the big question across Africa, and this is what the Court needs to wrestle with the most, is the extent to which the state is one of the key perpetrators in cases of mass conflict. What we’re seeing consistently is state judiciaries being unwilling to prosecute their own.  That’s where the ICC can certainly play a role. If the Court is interested in getting runs on the board in the early years and storing up its legitimacy to help the Court in the future, then that’s where it needs to be targeting its operations. It needs to be going after leaders like Bashir and other heads of state who are responsible for very serious crimes. I think some of the peace and stability questions that Dave refers to are salient and we should always be cautious about the impact that this kind of justice can have. But for the Court to be going after the middle-ranking suspects it has so far does a huge disservice to the principle of complementarity and to the whole enterprise of justice.

David Anderson:
I think there’s a connection between the thrust of international policy in the region, which is increasingly limiting its goals to stabilization. This is a word we’re seeing more and more being used in policy documents. So the ambition is not statebuilding anymore, it is just stabilization. If you think about that, you see that the justice issue becomes even more of a dilemma, because in order to pursue justice against some of these major state players, you are going to threaten stability. So there is a more powerful argument than before for not pursuing justice. This is very interesting because the African Union has embraced this stabilization idea for exactly the reasons I’m suggesting. It takes the sting out of certain interventions and it makes it easier to negotiate and broker deals. The African Union essentially favors power-sharing. In a positive sense, power-sharing is epitomized in the government of Rwanda’s system of proportional representation that gives the losers something out of the process. At the other end of the scale of power-sharing are Kenya and Zimbabwe, where it generates a government of inertia, put together by people who are trying to avoid the consequences of their actions. The problem is that stabilization views all of these things as a general good. The OAU, the AU’s predecessor, was often referred to as a trade union of tyrants. The AU has to prove it is not the same and, at the moment, it’s not doing a very good job. I think much of the international community would share a disappointment in this, given the hopes invested in the AU at its rebirth a few years ago.

I would also put into the mix that the regional organization for Eastern Africa, EGAD, went through a very positive phase in the late 1990s and 2000s, largely under Kenyan leadership, when EGAD really seemed to be addressing some of the region’s problems. With hindsight, we can realize that EGAD’s successes also held the seeds of some of the current problems. It raised the stakes in some of these conflicts, particularly Great Lakes and Sudan, and people have taken perhaps more entrenched positions. The governments in East Africa have begun to realize that these regional and subregional organizations are the places where you can build your consensus. This is reinforced by the sense that the international community doesn’t wish to be seen to be imposing solutions upon any region in the world and that ownership of political decision-making is a crucial and accepted norm and good. So the countries that wish to assist Eastern African countries are keen for them to decide their own solutions to these problems. That means that for the Kenyan and Sudanese governments, counseling their neighbors and canvassing support in EGAD and the AU can build a powerful bulwark against any wider international consensus. And it’s notable that the amount of lobbying done in EGAD and the AU has gone up considerably in the last 18 months. Politicians across the region have come to realize this is where you build your support base against wider international criticism and interference. In the Kenyan case, they have skillfully built a support network in EGAD and the AU, and similarly in the Sudanese case. They have very cleverly made alliances that will protect them from international criticism. What this leads to is a divide that sees African governments as representatives of these organizations taking one position while the ICC takes another. And that is a very dangerous political position to find ourselves in. It is disempowering for many of the western donors in particular, who don’t want to be exposed as standing against African governments. They want to be seen as moving forward in decisions with African governments. African governments have realized this and are playing politics accordingly.

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?

Phil Clark:
There is an unfortunate cliché that the ICC is a court of Western intervention in Africa, targeting only African leaders, and the suggestion is that there is something inherently illegitimate about the Court. In many ways this argument has been hijacked by the regional actors Dave’s talking about. The argument also does not take into account that there is very serious – although certainly not universal – support for the ICC at the popular level in a number of countries. An interesting case to look at is Zimbabwe. In some cases similar to the Kenyan question, Zimbabwe is a country where the ICC is not yet operating, but the possibility of its involvement is a question that hangs in the air and is having an impact on politics on the ground. In the Zimbabwe situation, for a number of different reasons, civil society has aligned itself with the elements within the power-sharing government in opposing the ICC. So the argument—and it’s interesting that it is coming from human rights groups and NGOs, as well as the government—is that it’s about local solutions, we need to sort this situation out ourselves. There is a very different message coming from many victims of the violence, however, saying “we have no faith both in the judiciary of this country and in this power-sharing agreement and the leaders within it. We’re not going to see serious justice done by these people so there may be recourse to a body like the ICC.” Zimbabwe is a particular case where the strongest support for the ICC comes from the grassroots level, but it is very difficult for those voices to be heard because of the government and civil society opposition to the Court.

This is something that opponents of the Court need to contend with. For many African populations there is a great amount of hope for the ICC. We saw this in Congo and Uganda in early days when the ICC first became involved. These cases concerned populations that had seen the debasement of domestic institutions, suffered at the hands of their own governments, and had huge hopes and expectations of international bodies. I think the problem in Uganda and Congo has not been outright popular opposition to the Court – it’s been, in many ways, unfulfilled hopes. Because of the way the Court has gone about its work in Uganda and Congo, it has disappointed the people the most. That’s the sad reality for the ICC at the moment.

David Anderson:
‘Unfulfilled hopes’ is a very good way of summarizing it. It leads on to the question of the perceptions that people have of the ICC, which are not entirely positive, and the actual practicalities of what the ICC can do and should do. On the one hand, you have the arguments that the ICC is ‘white man’s justice’ being applied to international law. I think this is a gross misrepresentation of what the ICC is and what it is trying to do. However, the current configuration of the politics is making it all too easy for politicians in Kenya, Sudan, and Zimbabwe to portray it in that way. The fact that we now have a situation where both the African Union and the Arab League have publicly opposed the indictment of Bashir, while Western governments have generally supported it, has polarized this debate in a way that allowed politicians who wish to popularize the idea that this is white man’s justice to do so. I think that is very unfortunate and I think it misrepresents the reality of the Court. We are now on the back foot having to sort that out, which is taking up a lot of time and effort. The substantive issue that makes it more difficult still is that the ICC has not always had the best record. Its decisions and processes have sometimes been wanting. Now we know, internationally, especially from experience in the Balkans, that if you want to prosecute state actors for atrocities and organized political violence—which is an extremely difficult and laborious task—then it is likely to require a strong investigative process in which the Court and the prosecutors need to be highly professional and robust. In attempting such prosecutions, you are fighting against a set of institutional and controlling parameters and mechanisms that work in the interests of those you are seeking to convict. If one talks to prosecutors in the Balkans, they will tell you about this in detail. Thousands of pages of testimony, months of work—this is a slow process and it is an enormously expensive process. Now relate that to the ICC: understaffed, under-resourced, and with too many things on its plate. The ICC is not equipped, yet, to deal with this kind of justice. So perhaps, if the prosecutor has made decisions to go forward with certain cases rather than others, then that might be a pragmatic decision given the resource and staffing issues. Whatever the reason, the ICC has not always been able to do its job very effectively. There are also management and cultural problems within the organization itself and it needs to be revived and to reconsider some of its procedures, some of its staffing issues. Maybe the quality of the staff in the ICC needs to be improved, bringing in those with local expertise and knowledge, and maybe the sense of which level of detail and proof are required for prosecutions needs to be reconsidered and set at a higher level. All these things are institutional, procedural matters that the ICC needs to deal with. I would argue that unless and until the ICC tackles these issues, it is going to find it difficult to win more supporters for what the Prosecutor rightly and justly want to do.

Q. Is there a role for politics in the prosecutor’s work? Does the Court have an implicitly political role to fulfill in conflict situations?

Phil Clark:
The first thing to say is that, whether the court likes it or not, it is a political institution. These questions of whether the ICC and the prosecutor are political actors in many ways are facile and unhelpful. As soon as the Court begins to operate on the ground in Africa, and particularly when it begins to operate in conflict environments, it will inevitably be embroiled in political situations. For that reason, and I would concur with Dave entirely on his last point, that this is largely a question of ICC staffing. Something that has hamstrung the Court immensely is the absolute absence of country specific experts within the institution itself. The court has undoubtedly some of the most talented legal advisors on the planet, but what it does not have is experts who are well versed in the nuanced politics of Sudan, Central African Republic, Uganda, etc. Without that expertise, the Court is not able to judge well how politics is playing out on the ground.

This is important for two reasons. First is a practical one for the court itself: if you want to intervene in ongoing conflict situations, you had better know who you need to talk to, how to get to them, how to get people to trust you, to give you evidence and to assist you in your investigations. Without that level of cooperation, trials do not get off the ground. The Court has found that difficult to achieve so far. The second reason is a broader political issue: the Court needs that ground level expertise because it needs to know how its operations are going to be represented locally, nationally and internationally. The Court has struggled with the extent to which its job has been manipulated and broadcast by others for their own means. We have seen this in the Bashir situation because of the way the Court has gone about constructing the case against Bashir and the way the Court has gone about releasing information about what it has done in Sudan—this has played into Bashir’s hands. Bashir has found a political savior in the ICC. We are talking about a president who was bedeviled domestically, and facing increasing political opposition in Khartoum let alone the rest of Sudan. In the ICC Bashir has found a rallying cry. He has used alliances with the African Union and the Arab League to bolster the argument he is propagating domestically that the ICC constitutes neocolonialist meddling in Sudan’s affairs. What we have seen now is vociferous support for Bashir from erstwhile opponents and silence from even the government of Southern Sudan and some of the rebel movements in Darfur, who are very concerned about what it would mean domestically to openly support the ICC. Bashir has manipulated this situation extremely well. It remains to be seen how sustainable that support will be. As national elections near and the referendum in Southern Sudan looms, we will see the cracks in Sudanese politics reappear. In the immediate, however, Bashir has gained a huge amount of credence since the indictment. That makes the Court’s job a whole lot harder. It has to deal with questions of white man’s justice, it has to deal with the fact that there is decreasing sympathy towards the Court domestically. This will make it more difficult to get the material and evidence that would be necessary for a trial of Bashir.

The Court has tried to be an apolitical organization and it has not wrestled with these realities on the ground, and it has made its own job harder in the process. What we have learned form international justice in the last ten years is that it is one thing to have the best lawyers in the world, but you have to understand the societies where you are operating. The ICTY under Louise Arbour was particularly good at hiring country experts. And what those experts were able to do was shape the Court’s operations and make sure the ICTY was able to convince governments to hand over their own. That was one of the great successes of that tribunal. In absolute contrast, you have the ICTR, particularly under Carla del Ponte, that did not believe that the nuances of local politics mattered. As a consequence there was continual bad blood between the tribunal and Kigali. This made it impossible for the tribunal to act effectively on the ground and completely eliminated the possibility of looking at crimes committed by the sitting government of the day. I think the sad thing from the ICC’s point of view is that it has not learned these very obvious lessons from the tribunals that preceded it. The prosecutor often talks about the ICC as representing the evolution of international justice, building on a heritage of law developed through the ad hoc tribunals. But in the case of politics and the importance of local politics for international justice, the ICC has not learned these lessons.

Q. Could you speculate on the future of the Court in five of ten years? What are the best and worst case scenarios for its standing in the international system? What can the Court and international actors do to cement the Court’s legitimacy?

Phil Clark:
I’ll make two main points here. The first thing is that we are going to see a shift in prosecutorial strategy as time goes on. The early years of the Court have inevitably been difficult because it is a new judicial institution that needs to get results. I think that has led to the kind of pragmatism from the Court that we have seen so far. Part of the reason that the Court has gone after low and middle ranking officials, rather than the Bashirs of the world, is because it has to get legal results. The hope of course is that with the cases that the ICC has at the moment we are going to see those kinds of judicial results and this will then allow the Court to be more ambitious. We are probably going to see convictions in the Congolese cases; I think the cases against those individuals are quite strong, the evidence has been very systematically gathered—although not always by the ICC but by other sources—nevertheless I think the legal cases are quite firm. What this will do is buy the Court some breathing space, and that breathing space will be a key factor when the current prosecutor moves on. In that way Ocampo has had the most difficult job, which is to get the Court off the ground. The next prosecutor will face a very different set of challenges, namely whether the Court can live up to its highest vision of itself, will it prosecute the toughest cases, will it move outside of Africa and truly become a global court? This will be a big challenge for the incoming prosecutor.

The second issue, and this is where it is uncertain whether the Court will succeed or fail, is can it get the US on side? This will have to be one of the Court’s major goals over the next five to ten years. Without the US’s support the ICC is going to continue to face difficulties within the Security Council, which translates to blocking the Security Council’s referral of the most important cases to the Court. Let’s be honest, with Bashir, we were never going to see a head of state brought to the ICC if we had to rely on a state referral; the ICC needed the UN to do that. This is a trend that is going to continue into the future. We will probably only see sitting members of government indicted by the ICC if they are referred by the Security Council. So if the ICC is going to fulfil this utmost vision of itself, dealing with the toughest cases, then it is going to require strong support and coherence from the Security Council, and the US will be central to this. The other reason that the Court is going to need Security Council support is that it will rely on UN peacekeeping missions and other military support on the ground to do the arresting of the suspects in question. The problem that the Court has faced to date it is that it has rarely had that support. The Court can issue arrest warrants for the LRA in the Northern Uganda situation, but what good is that if there is no military presence to back this action and arrest and transport these individuals? The same situation will undoubtedly come into play with Bashir: yes he’s been indicted and most members of the Security Council have backed that rhetorically, but Ocampo is right to doubt the fortitude of the UN and AU missions on the ground in Sudan to do the dirty work. He knows that for the future of the Court this issue has to be dealt with, and that there has to be this kind of cooperation and the US will be the most important state in terms of getting that cooperation.

David Anderson:
I think the ICC is standing at the crossroads. The decisions of the next eighteen to twenty-four months are probably going to be critical. Everything depends on credibility: can the Court maintain credibility if they cannot get Bashir into the dock? How the international community chooses to react to this is critical. Much of this may be out of the current prosecutor’s hands; Mr. Ocampo may have no control over this whatsoever. What he has done by indicting Bashir is rolled the dice. The crucial actors here are the US and the EU. Will they support the Court and will they lobby and canvass for it to be properly resourced and developed in such a way that will allow it to bring its cases forward? Or will they decide that you can only do that if you have the support of other regional organization? If that is what they decide, and I think that is what they might decide, then the future of the ICC is very troubled. At present I cannot see the US under the Obama administration or the leading EU countries, UK and France, moving forward to support the ICC if they know that it is going to bring confrontation with the AU and the UN. We have not really talked about the UN structures here but they are very important, you have to ask why did the UN Security Council pass the Bashir case on to the ICC and why did the US abstain? To an extent here you have a game being played called ‘pass the parcel.’ The UN is very good at passing problems on to other bodies when it does not think it can fix them without breaking a consensus. The UN now has a Peacebuilding Commission, which is very rapidly becoming more important in the UN. It seems likely that the Peacebuilding Commission will adopt a stabilization and power-sharing approach, and this will incline towards non-prosecution, aiming to build peace in the short-term, and leaving prosecution issues to the long-term. I may be wrong, but my best bet at the moment is that the combination of the lack of resolve on the behalf of the US and the EU, the UN’s desire not to cause any major rifts with member states, plus the Peace Building Commission’s commitment to stabilization does not bode well for the ICC. My view is not optimistic; I think the ICC could be in for a very difficult four or five years.

Interview conducted by Zachary Manfredi and Julie Veroff.

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ICC Observers Project-Oxford Transitional Justice Research
Exclusive Interview: David Tolbert, Deputy ICTY Prosecutor and Senior Fellow, Jennings Randolph Fellowship Program at the United States Institute of Peace

David Tolbert most recently served as U.N. assistant secretary-general and special advisor to the U.N. Assistance to the Khmer Rouge Trials (UNAKRT). From 2004 through March 2008, he was the deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY). Tolbert has extensive experience in international law. Prior to his position as deputy prosecutor, Tolbert was the deputy registrar of the ICTY. He also served as executive director of the American Bar Association’s Central European and Eurasian Law Initiative (ABA CEELI), which manages rule of law development programs throughout Eastern Europe and the former Soviet Union. Prior to his work at ABA CEELI, Tolbert also served at the ICTY as chef de cabinet to the then president and as the senior legal Adviser to the Registry. He has held the position of chief, General Legal Division of the U.N. Relief and Works Agency (UNRWA) in Vienna, Austria and Gaza. He has also taught international law and human rights at the post-graduate level in the United Kingdom and practiced law for many years in the United States. He has published a number of publications regarding international criminal justice, the ICTY and the International Criminal Court (ICC) and represented the ICTY in the discussions leading up to the creation of the ICC.

PDF Version of Interview: tolbert_interview_official

Q. You have worked at the ICTY and in Cambodia, cases in which the application of the genocide convention was controversial. What do you make of the Pre-Trial Chamber’s failure to grant Ocampo genocide charges in this case? What is the significance here?

A. I have not had the chance to study seriously the Pre-Trial Chamber’s ruling on the genocide charge. In terms of a general comment, in the course of the history of the ICTY, the only occasions that we were able to obtain genocide convictions arose out of the Srebrenica massacre. Thus, there was a limited application of the Genocide Convention in the ICTY case law, as compared to the ICTR. In Cambodia, the principal crimes do not fall within the ambit of the Genocide Convention because, for the most part, the killings did not target specific religious, national, racial or ethnic groups. There may be genocide charges relating to specific ethnic or national groups such as the Hmong or Vietnamese populations in Cambodia, but the Genocide Convention does not appear to apply to the vast majority of the killings and crimes committed during the Khmer Rouge period.

One of my general concerns with respect to genocide is that while obviously genocide is a very serious crime, there is often a feeling among victims and among the international community as a whole, that if crimes are not found to be genocide then they are somehow less serious than other violations of international humanitarian law, with the perception that crimes against humanity take second place since genocide is perceived to be ‘the crime of crimes’. This disturbs me because genocide is a very particular crime and it is difficult to show the intent that is required to prove genocide. Moreover, there are many crimes against humanity that are just as serious, but do not qualify as genocide because they are not committed with the specific intent to destroy, in whole or in part, a specific ethnic, religious, national or racial group. Cambodia is a good example of this issue.  During the Khmer Rouge period, the worst crimes committed in my lifetime occurred, but most of these acts do not fit within the rubric of genocide.

With the recent Pre-Trial Chamber decision in the Bashir case, there are allegations of extremely serious crimes against humanity: extermination, persecution, etc. My concern, however, is that people can see the failure to have the label of genocide put on these findings and believe they are somehow less serious or should be taken less seriously. I think we need to do a much better job as international lawyers, particularly those of us in the international criminal law field, of explaining genocide in terms of its legal elements. We need to help people understand that this criteria applies in particular situations and does not apply to other situations, but that crimes against humanity and war crimes can be every bit as serious as crimes of genocide.

I was on a panel at a conference some years ago with Geoffrey Robertson, who advocated doing away with the crime of genocide because it is so difficult to prove and controversial. I do not agree with that argument. Genocide is a crime that is on the books and needs to be prosecuted where it applies, but we need to do a better job of explaining how crimes against humanity and war crimes can be just as serious.

Q. How does the Pre-Trial Chamber’s ruling in the Bashir case relate to the 2005 UN Commission of Inquiry’s findings? Does the Court’s refusal to grant the genocide charges support the findings of the Commission? Are we reaching a consensus that the violence in Darfur is not appropriately classified as genocide? How will this influence the future development of international criminal law?

A. I want to be very cautious because I understand the prosecutor has said he is going to appeal the decision, so I think we have to wait and see what is the result of that appeal especially, particularly since the Pre-Trial Chamber’s decision was a split decision. The Commission and the majority of the Pre-Trial Chamber did not find the facts sufficient to support a genocide charge.  I think we have to wait and see and let the process play itself out. Also the Pre-Trial Chamber said although there is not enough evidence to sustain a genocide charge at this stage, it is open to receiving additional evidence. The prosecutor has not been able to get into Sudan for the last several years. In any event, the Pre-Trial Chamber’s decision is an indication that we may well be dealing with crimes against humanity and not genocide in the Darfur case. However, we should wait until we have a more final judicial determination before we make any predictions.

The Pre-Trial Chamber has found that there is a prima facie case of horrific crimes in Darfur. Thus, I go back to my first answer and say that we need to do a better job of explaining that simply because there is not a genocide charge, it does not mean that these crimes are not as serious as those that fall under the rubric of genocide. These are extremely serious crimes and human suffering is present in these cases regardless of whether the label of genocide, crimes against humanity or something else is used. I hope the world does not lose focus or somehow downgrade the significance of the charges because of the particular legal label that is attached to them.

Q. You are currently researching the impact of international criminal tribunals on peace and security in the countries where they have jurisdiction. What methodologies are you using in this study to measure the impact of the tribunals? What case studies are you using? What are your preliminary findings?

A. I have narrowed the focus of my research.  I have not come up with the right term yet, but I am examining what I call “positive complementarity” or the “other side of complementarity.” I am looking at how international courts can work effectively with domestic courts. On behalf of International Criminal Law Services, an NGO, I spent a month in Bosnia in November and was there again recently, and Aleksandar Kontic and I did an extensive assessment of the Bosnia State Court and Prosecutor’s Office, looking at how these institutions are performing. The State Court is a national court that has hybrid elements: international judges sit with domestic judges, and international prosecutors work with national prosecutors. I was interested in these institutions because I spent considerable time at the ICTY working with actors in the region and with the State Court.  When I served as Chef de Cabinet to President McDonald, we set up the first international tribunal outreach program to try and explain the role of the ICTY to people in the former Yugoslavia. I was also involved in establishing the Rules of the Road program, whereby the Office of the Prosecutor reviewed cases from domestic prosecutors to see whether they met international standards, and subsequently we moved on to transferring indicted cases from the ICTY to national courts, subject to monitoring. I chaired the joint ICTY-OHR legal framework task force (which was responsible for establishing the legal infrastructure for the transfer of cases) and then headed the Office of the Prosecutor’s Transition Team, which handed over cases that had been developed but not indicted at the ICTY to national prosecutors (called, in our parlance, Category 2 cases).  We also shared information by allowing our databases to be accessed by national prosecutors. I have been very interested in how that process is working and I have been pleased to find that it is working well in Bosnia in most respects.

We are moving past the era of the ad hoc tribunals. We also have the benefit of the experience of the Special Court for Sierra Leone and other experiments with hybrid courts, but what we are missing is a fully developed strategy to assist national courts in prosecuting these crimes.  Complementarity at the ICC needs to be about more than the legal standard that the ICC applies in determining which cases or situations it is eligible to take.  If the ICC takes the case of the general, who prosecutes the colonel? If war crimes prosecutions are going to be effective, how can we build national systems that are effective as well? This is an issue facing the international justice movement, and I am trying to look at these issues, particularly given my experience in Bosnia and the former Yugoslavia and to see whether those models can be applied more broadly.

Q. What do you think will be the role of regional and hybrid tribunals in the future of international criminal law? Given that the ICC is now up and running and is a permanent court, will the creation of tribunals like the ICTR, ICTY, Sierra Leone etc., no longer be necessary? Will all major violations of international criminal law be filtered through the ICC? Also, how should the ICC view the case law of the regional and hybrid tribunals?

A. I do not think there are going to be more ad hoc tribunals like the ICTR and ICTY. I do think that there will be additional hybrid tribunals, similar to those in Sierra Leone and Bosnia, and perhaps prosecutions under UN Transitional Authorities like Kosovo and East Timor. I believe we have to develop a better way of doing this, and we have to find ways to build up local capacity and to create partnerships between local courts and the ICC. Thus, we need a wider concept of complementarity. If complementarity is merely the standard used to determine who gets prosecuted at the ICC, and nothing happens in the country of origin, if there are no further efforts to prosecute or investigate the alleged crimes, then the ICC’s impact is going to be relatively limited. Thus, we must have a broader strategy. While it is a great accomplishment to have the ICC in place, it is going to deal with a relative small number of cases and only a handful of leaders, particularly given the number of conflicts in the world.

In terms of the decisions and substantive law that has been generated by the ICTR and the ICTY in particular, I believe the decisions of these courts have to be given a great deal of weight by the ICC, and I think they are being given this weight. Obviously these decisions are not binding on the ICC, but they represent a body of law that been developed by a common appeals chamber and is entitled to respect. As a former prosecutor I have not always agreed with the decisions of the appeals chamber, but on the whole, the ICTR and ICTY and some of the other courts have developed a solid basis of international criminal jurisprudence that has being referred to by the ICC and should be taken very seriously. It is not binding but it must not be disregarded.

Q. What types of outcomes will the ICC need to produce in order to establish its legitimacy on the international stage? In terms of the Bashir case, the Lubanga Trial or the Bemba Trial, but also more generally, what does the Court need to be to be seen as a viable, respected actor?

A. The ICC needs to have solid cases with solid decisions that meet international standards that are widely seen as fair. That is the basic outcome that we will need to see to establish the Court’s legitimacy. When we look back to the early days of the ICTY, I can remember the first (Tadic) trial, with Judge McDonald presiding. It was widely seen as a fair trial, which was important for the legitimacy and credibility of the ICTY as an institution. The trials at the ICTY and ICTR have largely been seen to be fair and to have been conducted in accordance with applicable international and domestic standards of law. This is the same outcome that we need to see at the ICC.

An important issue that always haunts these international courts is that they do not have coercive powers; they do not have police forces or ways to effect arrests and garner evidence. This is a big factor that works against them. We should take the long-view and assess these tribunals over time. I know that there are many comments that Bashir will not be coming to The Hague. On the other hand, if I think back to Milosevic and all the people we indicted at the ICTY, we heard the same concerns. Now Karadzic is in the dock, Milosevic stood trial, and of the 161 people that were indicted, 159 have come to The Hague, had their cases heard, dismissed or transferred, or they are deceased. On the whole, the record of the ICTY looks quite good. The ICTR’s record does not look bad either. Moreover, I would not judge the ICC or other tribunals on cooperation issues; I would judge the ICC on its ability to conduct fair trials in proceedings that are seen as such by objective, outside observers.

Q. As a follow up question: do you think if Bashir were never brought to trial before the ICC, but that the Court did still manage to have a series of successful prosecutions for lower level officials in different conflicts, that the Court would still be viewed as successful?

A. I think the Court will not be viewed as a success or failure on the basis of one case. I hope it will be judged on its overall record over a longer period of time. I do not think it would be fair to put too much weight on one case. I would not want to judge the ICTY, for example, on the basis of Milosevic dying during the trial. I do not think that it is fair and objective standard. We would not judge the US Supreme Court solely on the basis  of the Dred Scott case or Plessy vs. Ferguson. The House of Lords has made some bad decisions over the years, but if you look at the record of these courts as a whole, it is a different story.

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

A. In general, of course the prosecutor has to be fully aware of the political situation that he or she is acting in. Prosecutors are elected officials in the sense that the Assembly of State Parties selects them. Most prosecutors need to be cognizant of the political situation in which they are dealing and that affects things like the timing of the issuance of indictments and also has a significant impact on important questions like witness protection, security of staff, and related matters. The political situation is something that the prosecutor always has to be aware of. However, my view is that the prosecutor is first and foremost a judicial actor. Therefore, his or her primary focus is to apply the relevant law to the situation, and the criteria that is set forth in the applicable statute. So yes, there are going to be political considerations or political factors that will have an impact of the Prosecutor’s work and on decisions, but a prosecutor first and foremost must be guided by the law and be a judicial officer. If he or she is seen as a political actor, then, at the end of the day, he or she is going to lose credibility and the Prosecutor’s office is going to lose legitimacy. It is thus important to keep the judicial framework in mind.

Q. There’s been discussion recently that the African Union and the Arab League potentially want to seek a deferral on the basis of Article 16 for the Bashir indictment. Is that a viable option and what should be the criteria for deploying or using article 16? What might be the impact of using it for the future of the Court?

A. Article 16 was essentially a compromise. I remember when it was introduced by Singapore at a New York ICC Preparatory Committee meeting. It was a compromise to placate the permanent five members of the UN Security Council, particularly the United States, which had wanted the Security Council to be in a position to control the situations that the Prosecutor was allowed to investigate. Since this position was not accepted, Article 16 gave the Security Council some power to temporarily halt an investigation when the Prosecutor exercised his or her proprio motu powers or where there had been a state referral.  My understanding of Article 16, and I believe that former US War Crimes Ambassador David Scheffer has been pretty clear about this, was never intended to apply to a referral by the Security Council itself. This kind of stop-start approach, whereby the Security Council sanctions an investigation and then pulls it back, was not the intention behind Article 16. Be that as it may, I guess Article 16 can be interpreted in this way. However, my view is that Article 16 is intended for some kind of extraordinary situation.  Thus, as a former prosecutor, it causes me concern and nervousness that one could begin a legitimate investigation and then have it halted for reasons that are essentially political and not judicial. My opinion is that the Security Council should exercise Article 16 extremely cautiously. I do not foresee a situation where it would be used, and I certainly do not see the Darfur situation as warranting an application of Article 16. I realize the situation in Darfur is very complex, and there is clearly a considerable political dimension at play, but it seems to me like the prosecutor is acting appropriately under the statute thus far and the process should be left to proceed on its own terms.

Q. How significant is it that the first set of cases that have been referred to the ICC are all for crimes committed in Africa? How might this affect its overall legitimacy? Where, in the future, do you think the Court might find other indictments?

A. What I find a little odd about this ‘only in Africa’ mantra is that my recollection is that in the case of Uganda, the situation was a self-referral made by Government of Uganda. The DRC was self-referred by that government as was the case of Central African Republic. So out of the four situations, three have been referred by the countries themselves. Moreover, the Prosecutor has looked at a number of other situations, such as Iraq, Colombia, Georgia, etc. It does not look to me like the prosecutor has simply focused on Africa. It appears that, except in the case of Sudan, these countries came to him. You can have an argument about whether self-referral is intended in the ICC Statute. There is criticism of the process of self-referral and that is a legitimate subject for discussion and debate, but it is not as if the prosecutor has exclusively focused on Africa. African leaders to the Court referred these cases. However, I do think that this discussion does raise a fundamentally important question regarding international justice and for which we do not have an adequate answer yet. That is that the ICC’s jurisdiction is not universal. While the situation has certainly improved dramatically with the ICC, as with the ICTY, it only had jurisdiction over the former Yugoslavia and the ICTR over Rwanda. Now the ICC has a much broader jurisdiction. Nonetheless, there are many war crimes that are being committed or have been committed that it does not have jurisdiction over. There are only 108 state parties to the ICC out of the 192 members of UN, so there are many countries that are not covered by the ICC’s jurisdiction. The Security Council referrals are obviously subject to the veto of the permanent five, so there are still vast areas of the world that are not covered by the ICC and this is a problem. I do not think it is an argument against international justice; instead it is an argument for expanding the coverage of the ICC so that it covers the entire world. However, at present the ICC is imperfect in terms of its jurisdictional scope, and we have to push harder for further ratifications. Nonetheless, if we go back to 1993, when no international court or tribunal had any jurisdiction and see that 15 years later the ICC has broad jurisdiction, then we are making progress. It is indeed essential for more states to join the ICC, so we address the lacunae that presently exist.

Q. The mandate of the Rome Statute was originally supposed to govern the crime of aggression as well. There has been much debate about how the crime of aggression will be defined and whether it will actually be incorporated into the list of crimes the Court will prosecute. What do you think is the future of the definition for this crime and its relation to the ICC?

A. It looks to me like it will continue to be debated for some time. We will have to see what the review conference comes up with. There is a lot of controversy around the crime of aggression, and there always has been. The very term is difficult to define. To some extent, the Court has plenty of work to do already, dealing with genocide, crimes against humanity, and war crimes. I doubt the issue of aggression is going to be solved anytime soon, but on the other hand, I have not attended the ICC meetings on aggression. Thus, I am just a distant observer.

Q. Could you speculate on the future of the Court in five of ten years? What are the best and worst case scenarios for its standing in the international system? What can the Court and international actors do to cement the Court’s legitimacy?

A. My first reaction is to say what Chou En-lai said of the impact of French Revolution: it’s a little early to tell…. There are a couple of possible scenarios. Hopefully the Court will become stronger, passing some of these early tests and difficulties, expanding the number of states parties, thus having much broader jurisdiction, and becoming a truly effective court. Of course, one can see an alternative scenario where things go in another direction, and the Darfur situation is deeply worrying in this regard.  However, I am heartened by the ad hoc tribunals’ experience. I will never forget in 1997 when I was working in the ICTY, and I was thinking to myself: where is this going? We had only a couple detainees in custody, and we seemed to have no hope for additional indictees arriving. The world’s attention seemed to have shifted away, and the ICTY looked in bad shape.  A leading commentator, writing in Foreign Affairs, advocated for winding up the tribunal and closing it down. Over the next ten years, the situation completely turned around. Thus, it is difficult to make predictions, but based on the experience of the ICTY and ICTR and the general course of the international justice movement, I think there are some causes for optimism. I think you have to be an optimist in this business.

Interview conducted by Zachary Manfredi and Julie Veroff.

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Oxford Transitional Justice Research – ICC Observers Project
Discussion Summary: Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law at New York Law School

Ruti Teitel is an internationally recognized authority on transnational law, comparative law, international human rights, transitional justice, and comparative constitutional law. Her path-breaking book, Transitional Justice (Oxford University Press, 2000), examines the 20th century transitions to democracy in many countries.

Professor Teitel led a discussion with OTJR members on 02 March 2009. The following is a summary of the key points that Professor Teitel and OTJR members discussed.

PDF Version of Discussion:teitel_discussion_official

Topic 1: Transitional Justice in the US Post-Bush Administration: Truth Commissions and Ethics Investigations

The debate over whether there should be a transitional justice process in the US and how to handle issues of accountability with regard to the Bush administration is very quiet and has been overshadowed by the financial crisis. The terrorist attacks of September 11th also overshadowed the rule of law and accountability issues that emerged with Bush v. Gore in 2001. We are now experiencing a sense of déjà vu; the pressing questions have been diverted.

Putting the financial crisis aside, President Obama ran on the politics of unity and change and never articulated an agenda for transitional justice. Rather, his agenda is for reconciliation. He is an almost unassailable figure because he voted against the Iraq war and has the purity and legitimacy of someone who can stand on his own integrity. In this way, he is a Vaclav Havel type character. The appeal of reconciliation is that we are currently in a financial emergency and need to move beyond politics; there is no time to look back, only to look forward.

Yet there are developments underway within the Department of Justice. Under investigation are John Yoo, a former Office of Legal Counsel official and Berkeley law professor, now on leave from Chapman University, who was the principal author of national security opinions between 2001 and 2003; Jay Bybee, who oversaw the OLC during the same period and is now a federal appeals court judge; and Steven Bradbury, who oversaw the OLC during Mr. Bush’s second term. They are responsible for the memoranda that advocated for harsh methods of interrogation and misstated the law and justified torture. In evaluating the memos, one should ask whether what was written in them was reasonable; would a reasonable person have written them? The answer is no. Adequate citations were missing; moreover, misstatements of critical terms, i.e. the definition of torture given was significant harm to an organ. Coming up with any kind of clear answer about whether the memos are problematic and by what standard may draw on precedent from the Nixon administration. Responsibility, of course, is not just with those who wrote the memos; it may also be with those who took the advice.

The current investigation will likely produce information not widely known to the public and may bring to light a second round of memos written during the second term of the Bush presidency that have not yet been released, including the Bradbury memo. It is not clear yet whether the DOJ will keep these confidential, or if Attorney General Holder will release them. Should they be made public, there may well be enough troubling information that there will be more interest in the public and a broader group than exists at present may push for action to be taken.

Certain human rights groups, Senators and Congresspersons, and members of the broader global community are interested in calling for truth commissions and prosecutors. Senator Pat Leahy (D-VT) has called for a truth and reconciliation commission, and Congressman John Conyers, Jr. (D-MI) has called for legislation that would establish a national commission on presidential war powers and civil liberties. The proposed Conyers Commission would have subpoena powers and other coercive tools to call witnesses; it is less conciliatory in name.

There is a debate as to whether the ‘truth finding’ process should be open ended. That is, should we learn the truth and then decide what to do, or should there be a finite process established from the beginning? The human rights community has been absolute on this: where there is evidence of crime, there should be a trial. There is very little support for a truth commission or trials from the Obama administration. The DOJ ethics investigation is the only step in this direction made thus far.

There is also, however, the powerful symbolism of closing down Guantanamo and leaving Iraq. Mr. Obama has moved towards these substantive changes quickly, though implementation may take much longer and there are practical implications such as where to send the detainees that are stateless or could face torture upon return to their country of origin. Mr. Obama has not yet stepped away from the military tribunal set-up. Domestic courts pose a challenge because of the standard of evidence required and because of how some of this evidence was obtained. It may be easier to try the detainees in military tribunals, which offer somewhat truncated proceedings.

There is a question as to whether “transitional justice” is the right term to use in this context. Certainly the term itself is rather vague, and we must consider what we mean by justice and by a transition. The move from Bush to Obama is not a regime change, but definitely a transition in that we have a new administration and a different party in power. It is clear that the transition from a Democratic to Republican administration, from Clinton to Bush, affected Bin Laden’s calculations. We suffered from a lack of continuity at that time. President Obama may think it is better to have continuity for the country’s stability (which is also vulnerable at this time given the financial crisis) and to limit the potential for terrorism.

There are statutes of limitation on torture and there will soon come a point in time after which criminal investigation is not possible. But there has always been a role for the passage of time. Societies are not always organized for quick trials. Consider that in Argentina, trials began almost three decades later.

Topic 2: The International Criminal Court, US Politics, and Transitional Justice Mechanisms

In response to the question of the possibility of ICC involvement in the US transition, it is important to consider the perception of the ICC in American politics more broadly. President Obama will certainly have a different relationship with the ICC than his predecessor, although there hasn’t been any serious discussion just yet about exactly how Mr. Obama will approach the Court. There has been no new congressional discussion concerning the ICC either. Ultimately, the fact that the US is not a signatory to the Rome Statute makes it unlikely the ICC will play a serious role in U.S. transitional justice debates. There was some discussion earlier about the possibility of a joint US-UK commission, but nothing has manifested on this front either. Moreover, it bears noting that Chief Prosecutor Ocampo has a great deal on his plate already with the Sudan case and ongoing investigations in Afghanistan, Colombia, and other countries without attempting any controversial investigations concerning the US.

In terms of the ICC’s other investigations, however, it seems likely that the US will be more willing to play ball. The US does have a record of providing expertise and funding to international tribunals in the past, from Nuremberg to the ICTY and ICTR. Moreover, the Obama administration will not have such a strong opposition to the ICC, and it is unlikely, especially given Mr. Obama’s current advisory team, which includes Susan Rice and Samantha Power, that the US will pursue additional bilateral Article 98 agreements.

In a broader sense there is still great concern about the lack of a definition of the crime of aggression in the Rome Statute. The US is obviously apprehensive about this issue, as are China and Russia, especially given debates about the degree of independence given to the prosecutor. In regards to the crime of aggression, which the Statute technically has authority over even though the member states have yet to agree upon a definition of the crime, there is controversy about whether the prosecutor should be independent or if his or her actions will require UN Security Council approval. The crime of aggression is of particular interest because of its history; while it was not a part of the ICTY mandate, aggression was the primary issue of concern at Nuremberg. It will be important to see if and how the crime of aggression is received in contemporary discussions of international criminal law. Additionally, given the ongoing nature of the US “war on terror,” the definition of aggression will continue to complicate the US perspective on the ICC.

Moreover, it is important to consider the ICC in the context of larger debates about accountability and transition. In issues of transitional justice we tend to find pockets of accountability all over: in international courts, but also in domestic contexts and even through the activities of civil society.

When we think about the purpose of the ICC we should consider larger questions about the overall objectives of truth processes. We need to ask exactly what it is the ICC supposed to achieve. Many critiques of the Court do not distinguish between issues of peacemaking and the role of justice, but we should ask ourselves if and how different institutions can achieve these goals. Courts are often seen as having an explicitly nonpolitical role, and while it would be a mistake to think of a court like the ICC as completely independent from political processes, we should consider the specific nature of the ICC and other mechanisms for achieving justice in light of current political contexts and situations.

We can think of at least three potential objectives for transitional justice mechanisms: punishment, truth-telling, and reconciliation. In this sense, reconciliation can mean something as broad as “reconciling to reality,” or providing common acceptance and acknowledgment of past atrocities. While the role of law needs to be distinct from politics in the sense that political power can’t control legal reality, one needs to consider how different mechanisms for justice best achieve these different ends and what types of institutions are best suited to attain particular objectives, particularly when some of these thought to serve political purposes, such as attaining or maintaining the peace.

Discussion summary prepared by Zachary Manfredi and Julie Veroff.

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