Botswana: Out on a Limb

Justice in Conflict just published an excellent piece on Botswana's role in promoting international justice. A recent African Union statement accusing the International Criminal Court of racist motivations struck yet another blow to the relationship between Africa and the court, and Botswana stood as the only dissenting voice.

Botswana President Ian Khama
source: skynews.com.au

The accusation follows the election of Uhuru Kenyatta and William Ruto, both under indictment by the ICC, to the presidency and vice-presidency of Kenya. This election means that two African heads of state--Kenyatta and Omar al-Bashir of Sudan--are under investigation by the court (though the Kenyan leaders are appearing voluntarily, unlike their Sudanese counterpart). Under this renewed political pressure, countries such as Malawi, who have been strong defenders of the court, joined in the majority statement. Even the Gambia, home country of ICC Chief Prosecutor Fatou Bensouda, voiced opposition to the court.

Botswana's support, given despite expected political backlash, is important. More countries, including those outside of Africa, need to stand against political pressure in support of an international judicial system and an end to impunity. Certainly, the AU's concerns should be addressed--the ICC must ensure that it is not unfairly targeting the continent. But international law cannot be held hostage by the same powerful actors it seeks to hold accountable.

Côte d'Ivoire Joins the Club, and Egypt Stirs

On February 15, Côte d'Ivoire ratified the Rome Statute of the International Criminal Court, setting itself up to become the ICC's 122nd State Party (to see the press release, click here). Côte d'Ivoire's decision, which comes barely two years after the country's election violence descended into civil war, marks a considerable shift in the government's position and a growing influence of civil society in Ivorian politics. Civil society organizations were instrumental in pushing the government to join the court, breaking months of political gridlock on the issue. And as the country's president Alassane Ouatarra said, the event "demonstrates the will of the Ivorian authorities to make Côte d’Ivoire a state of law where justice is the same for all."

Côte d'Ivoire's Representative to the UN deposits instrument of
ratification with Tiina Intelmann,  President of the ASP
-CICC

Côte d'Ivoire isn't the only country making moves to join the court. Egypt, free from the 30-year rule of Hosni Mubarak, has given signs of interest in joining the ICC. Egypt's National Committee for International Humanitarian Lm aw met this week to lay out a plan for accession to the Rome Statute. In a further sign of support, some Egyptian parties have begun to see indicted Sudanese President Omar al-Bashir as a liability, rather than an ally (article here).

The continued interest of the African region, which already boasts the highest number of ICC state parties (33), reassures the court's international supporters that the continent has not lost faith in the court's equity and its values, despite charges of an anti-Africa bias by indicted leaders such as Bashir and his allies.  This important development should not be underestimated. The court must continue to work with communities in Africa and elsewhere to ensure that the court remains.

A Bittersweet Verdict in the Case of Mathieu Chui

Mathieu Chui, acquitted of war crimes and crimes against humanity
--AFP

Not Guilty.  The verdict came on December 18, acquitting Congolese militia leader Mathieu Ngudjolo Chui of 9 counts of war crimes and crimes against humanity, including sexual slavery, intentional attacks against civilians, and the use of child soldiers. The verdict--only the second in the court's history--is surely a relief to Mr. Chui, who since the trial's beginning has asserted his innocence, but it is a sharp blow to the ICC prosecutor, Fatou Bensouda, and her team.

The verdict was not the result of a particularly strong defense, nor convincing evidence to support the accused's claims of innocence. Rather, it was a failure of the prosecution to prove his guilt beyond a reasonable doubt, as is required in any ICC case. Presiding judge Bruno Cotte noted the witness testimonies as "too contradictory and too hazy," ordering the immediate release of Mr. Chui.

Judges Bruno Cobb and Christine Van Den Wyngaert
stand at the reading of the verdict
--Reuters

This trial's disappointing conclusion serves as a wake-up call to the Office of the Prosecutor. If the court is to maintain the trust of victims such as those in the Democratic Republic of the Congo, the prosecutor must significantly raise the quality of its investigations. In these crucial early years of the ICC, it cannot afford to have a 50% rate of acquittal. Resources are limited, as is the political will for international justice. The international community, as well as the victims of lager-scale atrocities, must see results.

But this verdict also has an up-side. It has proved (and, unlike the prosecutor, "beyond a reasonable doubt") that the court upholds its stated standard of impartiality. The ruling of "not guilty", in a verdict so highly anticipated by human rights groups, demonstrates that the court's judges will not blindly convict every individual the prosecutor presents. The ICC remains an institution of objectivity. This is a resounding victory for the judiciary. Its challenge now, the responsibility of the prosecutor, is to remain one of efficacy.

Progress for Justice: Why a Second (and Third) Verdict Matters for the ICC

Trial Chamber II of the International Criminal Court has announced its decision to halt trial proceedings for Mathieu Ngudjolo Chui and Germain Katanga of the Democratic Republic of the Congo. The judges are set to deliver their verdict on December 18. The two men, whose trials have taken place in a joint session, have been charged on 10 counts of war crimes and crimes against humanity. Among these are rape, murder, sexual slavery, pillaging, directing attacks on civilians, and the use of child soldiers.

In March the ICC made history when it delivered its first verdict against Thomas Lubanga, convicting him for the enlistment and use of child soldiers in hostilities. But the next two verdicts will solidify the ICC's reputation as a court that brings results, and bring it one step closer to its founders' goal--to be a court of universal justice, one that not only punishes crimes, but deters them.

The next two verdicts, with the Lubanga case still fresh in the minds of the international community, will give pause to those who would commit atrocities. The verdicts will demonstrate that the court is not purely symbolic. Even without the support of the United States, the ICC can be a practical tool for maintaining peace and justice.

A New State Party? The Status of Côte d'Ivoire

After taking steps in late September to ratify its constitution, Côte d'Ivoire (otherwise known as the Ivory Coast) could become the newest member of the International Criminal Court. 121 countries have ratified the Rome Statute to date, making them State Parties to the ICC. Of this number, 32 are from Sub-Saharan Africa. With the renewed possibility of a ratification by Côte d'Ivoire, both of these numbers are likely to grow in the coming months.

Ivory Coast is likely to ratify the Rome Statute,
becoming the 122nd State Party to the ICC
--BBC News

The Ivory Coast ceded jurisdiction to the court in 2003, but until recently the ratification process has gained little traction. This is partly due to the election crisis in 2010, which led to the 2011 civil war and an investigation by the ICC. Laurent Gbagbo, the former Ivorian president who refused to step down after losing the election, is awaiting trial in the Hague on charges of rape, murder, and other crimes against humanity.

As the country regains stability under its new president Alassane Ouatarra, its people are looking toward the future, recognizing the need to become full members of the court. As stated in an Ivorian press release, once the ratification process is completed, Côte d'Ivoire can "finally sit among the democratic nations fighting for effective, fair and impartial international criminal justice".

Militaries Respond to ICC, Demobilize Child Soldiers

--globalsecurity.org

--IRIN

Sudan's Justice and Equality Movement (JEM) is the latest in a series of military groups to ban the conscription, recruitment, and use of child soldiers.  On September 17, the rebel group issued an order banning the practice in accordance with international law.  The order includes a demobilization of all child soldiers currently serving in the JEM military.

JEM's order is not an isolated incident.  Governments, militias, and rebel groups have been issuing such orders in growing numbers.  The government of Myanmar signed a similar agreement on June 27, and Somalia's Transitional Federal Government on July 3.

Lubanga on trial in the Hague
--amsterdamnews

These acts follow the March 14 conviction of Thomas Lubanga by the International Criminal Court (ICC).  Congolese warlord and founder of the Union of Congolese Patriots (UPC), Lubanga was found guilty on charges of conscription, recruitment, and use of child soldiers as part of his rebel group in the Democratic Republic of the Congo.  The Lubanga trial, the ICC's first conviction in its 10 year existence, sent a strong message to military leaders who would use children as part of their military campaigns--a message that they would be held accountable for their actions.

JEM's latest announcement, as well as those in Somalia and Myanmar, are clear signs that the ICC message got through.  Prosecution and justice for these crimes is no longer an abstract, symbolic, or distant affair.  It is real and it has arrived.  When the ICC was established, its supporters believed that by holding international criminals accountable, they could deter future atrocities.  This certainly seems to be the case.

Bush, Blair, and Iraq: Aggression and the Limits of Justice

Former British Prime Minister Tony Blair (left) and
former US PresidentGeorge W. Bush (right), close allies during
2003 invasion of Iraq    --nickread.co.uk

In the wake of South Africa's Discovery Invest Leadership Summit, calls have increased for former US President George W. Bush and former British Prime Minister Tony Blair, the latter of which spoke at the summit, to be tried at the International Criminal Court for the 2003 invasion of Iraq.  Pressure intensified after Archbishop Desmond Tutu, slated to speak alongside Blair, refused to attend the summit, stating his view that the former leaders used Iraq "to behave like playground bullies and drive [the global community] further apart".

Ultimately, Tutu and many others are pointing out what they see as imbalances in the system of international law--war and aggression are denounced and punished when conducted by less powerful states, but those at the top of the international pecking order seem to be immune to the same pressures.  While basis may exist for Tutu's claims, the torch will not be taken up by international institutions--especially the ICC.  This is not because of bias or political fear; his voice will not fall on deaf or unwilling ears.  The ears of the institution are active, but the hands are immobilized.

In the case of Bush, he cannot be tried because neither the United States nor Iraq is party to the Rome Statute governing the ICC.  Absent a Security Council Resolution, one of these states must be a member for the court's jurisdiction to apply (see our earlier post on Syria).

Former South African Archbishop
Desmond Tutu, who recently accused Blair
of crimes against world peace --Associated Press

But what about Blair?  The United Kingdom has ratified the Rome Statute and a crime by any state party national can be prosecuted by the court.  As mentioned, what Desmond Tutu is denouncing is the crime of aggression, loosely defined as unwarranted military action of one state against another.  The crime of aggression is, indeed, a key part of the Rome Statute.  Unfortunately, the court's jurisdiction on this particular offense will not apply until at least 2017, and only then after a sufficient number of states ratify and agree on a definition for the crime.

The implication is that even with the strongest international pressure, Blair and Bush cannot be brought before the ICC for their involvement in Iraq, at least in the form of current accusations.  For now it is not a matter of unfairness, but a matter of jurisdiction.