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From InLawGrrls’ Naomi Norberg, 24 May 2009

In the first-ever application of Canada’s Crimes Against Humanity and War Crimes Act (2000), the Cour supérieure of Québec found Désiré Munyaneza (left, credit) guilty of all 7 counts pending against him since 2005: genocide (intentional murder and serious bodily or mental harm), crimes against humanity (intentional murder and sexual violence) and war crimes (intentional murder, sexual violence and pillage). The charges stem from acts committed between 06 April and 04 July 1994 in Rwanda. The Crimes Against Humanity and War Crimes Act implements the Rome Statute establishing the International Criminal Court and the Québec court’s decision, delivered by Judge André Denis, addresses an international audience, abundantly citing case law from the international criminal tribunals for Rwanda and the former Yugoslavia.
Commentators are saying this may be just the beginning of further such trials. Indeed, one of the major obstacles in transnational trials was overcome here: almost all the witnesses hailed from beyond Canada and spoke a foreign language (Kinyarwanda). The judge’s “unshakable faith” in their testimony apparently surprised the defense, which has has already made its intention to appeal known.The decision is available here.

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AFP, 06 April 2009

MONTREAL (AFP) — Fifteen years after the Rwandan genocide, which saw the massacre of some 800,000 people, prosecutors say hundreds of suspected perpetrators are still at large.

They include many of those on the wanted list of the International Criminal Tribunal for Rwanda (ICTR), presumed to be living under false identities in Belgium, Canada, France, Kenya and the Democratic Republic of Congo (DRC) experts say.

Some are out in the open claiming political refugee status, as they are eyed with suspicion by families of the victims.

After the massacre of the Tutsi minority many Hutu militants fled the troops of Rwandan President Paul Kagame to neighboring DRC, still holding on to their weapons.

Some, like Felicien Kabuga, who allegedly bankrolled the 1994 massacre, stayed in Africa, in places Kenya, which according to the ICTR refuses to apprehend him.

But others chose to leave Africa’s Great Lakes region and are now living in exile in North America and Europe, especially in Belgium and Canada where hundreds reside, according to Rwandan prosecutors.

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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
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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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AFP, 23 March 2009

THE HAGUE (AFP) — A court in The Hague on Monday sentenced a Rwandan man to 20 years in prison for torturing to death two women and their four children during the 1994 genocide in his country.

The prosecution had called for a life sentence.

An appeal court had previously ruled he could not face charges of genocide in the absence of sufficient evidence.

Joseph Mpambara, 40, was tried in the Netherlands as part of an agreement between several European countries and the International Criminal Tribunal for Rwanda (ICTR) under which they try genocide suspects in their national courts.

He was the first Rwandan to be condemned in the Netherlands for crimes during the genocide in which 800,000 Tutis and moderate Hutus died, according to United Nations estimates.

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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

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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.

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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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AFP, 20 March 2009

FREETOWN (AFP) — Up to eight people sentenced by Sierra Leone’s war crimes court can serve their sentences in a new Rwandan prison under a deal with Kigali, the court said Friday.

Signed in the Rwandan capital Wednesday, the deal offers one answer to where to send prisoners convicted by the UN-backed Special Court for Sierra Leone, since local jails do not meet United Nations standards. The court has been in negotiations to have other African countries accept them.

Rwanda’s newly built Mpanga prison has a special wing to house those convicted by the separate Tanzanian-based International Criminal Tribunal for Rwanda (ICTR), which judges suspects in the east African country’s 1994 genocide.

It is setting aside several places for those sentenced by the Sierra Leone court.

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The New Times, Kigali, March 18 09 —

The trial of Ildephonse Hategekimana started Monday at the International Criminal Tribunal for Rwanda (ICTR) a trial that began with prosecution assuring the court that they have overwhelming evidence against him. The accused, a former officer in the Ex-FAR, is charged with Genocide or in the alternative complicity to Genocide, murder and rape as crimes against humanity.

Hategekimana was supposed to be transferred to Rwanda for trial alongside four other accused, but was blocked by the court. His is the latest trial to begin at the already backlogged tribunal that is supposed to end this year.

Prosecutor William Egbe told the court that the accused exercised his authority and ordered soldiers to carry out the massacres.

“He ordered Hutu civilians, Interahamwe and soldiers to kill Tutsis in Butare (Southern Province),” the Senior Trial Attorney said. Egbe added that Hategekimana ordered soldiers in the Ngoma camp to rape Tutsi girls and women before killing them and that he also armed the perpetrators of the acts with grenades, machetes and guns.

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