In June this year two lawyers filed a complaint at the International Criminal Court (ICC) naming European Union member states’ migration policies in the Mediterranean as crimes against humanity.

Members of the NGO ‘SOS Mediterranee’ during the rescue of more than 250 migrants on a wooden boat off the Libyan coast. EPA-EFE/Christophe Petit Tesson

The court’s Prosecutor, Fatou Bensouda, must decide whether she wants to open a preliminary investigation into the criminality of Europe’s treatment of migrants.

The challenge against the EU’s Mediterranean migrant policy is set out in a 245-page document prepared by Juan Branco and Omer Shatz, two lawyer-activists working and teaching in Paris. They argue that EU migration policy is founded in deterrence and that drowned migrants are a deliberate element of this policy. The international law that they allege has been violated – crimes against humanity – applies to state policies practiced even outside of armed conflict.

Doctrinally and juridically, the ICC can proceed. The question that remains is political: can and should the ICC come after its founders on their own turf?

There are two reasons why the answer is emphatically yes. First, the complaint addresses what has become a rights impasse in the EU. By taking on an area stymying other supranational courts, the ICC can fulfil its role as a judicial institution of last resort. Second, by turning its sights on its founders (and funders), the ICC can redress the charges of neocolonialism in and around Africa that have dogged it for the past decade.

ICC legitimacy

The ICC is the world’s first permanent international criminal court. Founded in 2002, it currently has 122 member states.

So far, it has only prosecuted Africans. This has led to persistent critiques that it is a neocolonial institution that “only chases Africans” and only tries rebels. In turn, this has led to pushback against the court from powerful actors like the African Union, which urges its members to leave the court.

The first departure from the court occurred in 2017, when Burundi left. The Philippines followed suit in March of this year. Both countries are currently under investigation by the ICC for state sponsored atrocities. South Africa threatened withdrawal, but this seems to have blown over.

In this climate, many cheered the news of the ICC Prosecutor’s 2017 request to investigate crimes committed in Afghanistan. As a member of the ICC, Afghanistan is within the ICC’s jurisdiction. The investigation included atrocities committed by the Taliban and foreign military forces active in Afghanistan, including members of the US armed forces.

The US, which is not a member of the ICC, violently opposes any possibility that its military personnel might be caught up in ICC charges. In April 2019 the ICC announced that a pre-trial chamber had shut down the investigation because US opposition made ICC action impossible.
Court watchers reacted with frustration and disgust.

EU migration

An estimated 30,000 migrants have drowned in the Mediterranean in the past three decades. International attention was drawn to their plight during the migration surge of 2015, when the image of 3-year-old Alan Kurdi face-down on a Turkish beach circulated the globe.

More than one million people entered Europe that year. This led the EU and its member states to close land and sea borders in the east by erecting fences and completing a Euro 3 billion deal with Turkey to keep migrants there. NATO ships were posted in the Aegean to catch and return migrants.

Migrant-saving projects, such as the Italian Mare Nostrum programme that collected 150,000 migrants in 2013-2014, were replaced by border guarding projects. Political pressure designed to reduce the number of migrants who made it to European shores led to the revocation and non-renewal of licenses for boats registered to NGOs whose purpose was to rescue migrants at sea. This has led to the current situation, where there is only one boat patrolling the Mediterranean.

The EU has handed search and rescue duties over to the Libyan coast guard, which has been accused repeatedly of atrocities against migrants. European countries now negotiate Mediterranean migrant reception on a case-by-case basis.

A rights impasse

International and supranational law applies to migrants, but so far it has inadequately protected them. The law of the sea mandates that ships collect people in need. A series of refusals to allow ships to disembark collected migrants has imperilled this international doctrine.

In the EU, the Court of Justice oversees migration and refugee policies. Such oversight now includes a two-year-old deal with Libya that some claim is tantamount to “sentencing migrants to death.”

For its part, the European Court of Human Rights has established itself as “no friend to migrants.” Although the court’s 2012 decision in Hirsi was celebrated for a progressive stance regarding the rights of migrants at sea, it is unclear how expansively that ruling applies.

European courts are being invoked and making rulings, yet the journey for migrants has only grown more desperate and deadly over the past few years. Existing European mechanisms, policies, and international rights commitments are not producing change.
In this rights impasse, the introduction of a new legal paradigm is essential.

Fulfilling its role

A foundational element of ICC procedure is complementarity. This holds that the court only intervenes when states cannot or will not act on their own.

Complementarity has played an unexpectedly central role in the cases before the ICC to date, as African states have self-referred defendants claiming that they do not have the resources to try them themselves. This has greatly contributed to the ICC’s political failure in Africa, as rights-abusing governments have handed over political adversaries to the ICC for prosecution in bad faith, enjoying the benefits of a domestic political sphere relieved of these adversaries while simultaneously complaining of ICC meddling in domestic affairs.

This isn’t how complementarity was supposed to work.

The present rights impasse in the EU regarding migration showcases what complementarity was intended to do – granting sovereign states primacy over law enforcement and stepping in only when states both violate humanitarian law and refuse to act. The past decade of deadly migration coupled with a deliberately wastrel refugee policy in Europe qualifies as just such a situation.

Would-be migrants don’t vote and cannot garner political representation in the EU. This leaves only human rights norms, and the international commitments in which they are enshrined, to protect them. These norms are not being enforced, in part because questions of citizenship and border security have remained largely the domain of sovereign states. Those policies are resulting in an ongoing crime against humanity.

The ICC may be the only institution capable of breaking the current impasse by threatening to bring Europe’s leaders to criminal account.

This is the work of last resort for which international criminal law is designed. The ICC should embrace the progressive ideals that drove its construction, and engage.

Courtesy: The Conversation

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‘Most importantly, it might pave the way for the Rohingyas, who suffered extremely to get justice they deserve’
 

The International Criminal Court (ICC) is exploring ways to conduct investigations into the forced deportations of hundreds of thousands of Rohingyas from Myanmar to Bangladesh as a possible crime against humanity, a top diplomat at the Foreign Ministry told the Dhaka Tribune on Thursday.

“This is our best bet to bring those responsible on the other side of the border to account for their crimes,” he said, expressing optimism that the ICC investigation will help solve the Rohingya crisis Bangladesh is facing without being a party to it.
“Most importantly, it might pave the way for the Rohingyas, who suffered extremely to get justice they deserve,” he added.

The diplomat did not specify the date and time of beginning and completion of the investigation.

“If you look at past instances you will see that the ICC investigations are always time-consuming. It does not have its own resources. The court gets the investigations done by the parties of the state,” he explained.

 “Though time consuming, I think it’s worth it. Think about the implications worldwide if the ICC in one year or so, issues an arrest warrant against one of the generals.”

“The ministry and our embassy in The Hague, Netherlands where the ICC is based, are following the developments and we stand ready to provide any assistance in regards to the investigation,” said the diplomat.

Responding to a query, he said: “I don’t have any idea if anyone from the ICC visited Bangladesh in respect of the investigation.”

On September 18, ICC prosecutor Fatou Bensouda issued a statement stating that a preliminary examination into the allegations of crimes committed by Myanmar in forcing deportation of Rohingyas from Rakhine to Cox’s Bazar had begun.

“Since the end of 2017, my Office has received a number of communicationsand reports concerning crimes allegedly committed against the Rohingya population in Myanmar and their deportation to Bangladesh,” she said in the statement.

ICC jurisdiction
“The review of these communications, which constitutes the first phase of my office’s preliminary examination activities, shed light on a preliminary legal issue concerning the jurisdiction of the International Criminal Court (“ICC” or “the Court”), which I deemed appropriate to bring to the attention of the Court’s judges,” said the prosecutor.

“Having received confirmation from the Judges of Pre-Trial Chamber I that the Court may indeed exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, as well as potentially other crimes under article 7 of the Rome Statute, I have decided to proceed to the next phase of the preliminary examination process and to carry out a full-fledged preliminary examination of the situation at hand,” she said.

On September 6, the ICC, in response to a request from the prosecutor Bensouda, ruled that the court had jurisdiction over alleged deportations of Rohingya people as a possible crime against humanity.

Although Myanmar is not a member of court, Bangladesh is, and the cross-border nature of deportation was sufficient for jurisdiction, it said in its ruling.

“The Court has jurisdiction over the crime against humanity of deportation allegedly committed against members of the Rohingya people,” a three-judge panel said in a written summary, adding, “The reason is that an element of this crime – the crossing of a border – took place on the territory of a State party (Bangladesh).” 

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An outside view of the new complex of the International Criminal Court (ICC) in The Hague, The Netherlands. Picture by Robin Utrecht/ABACA/PA Images.

In a world where states very reluctantly – if ever – cede powers to supranational organisations, the ICC has seen 124 states ratify its Rome Statute. The adolescent court is also seeing its jurisdiction expand this year to include a new crime: the crime of aggression.Added in the last hours of the drafting of the Rome Statute in 1988, due to the dogged persistence of three Nuremberg Trial prosecutors throughout the night, the crime was mentioned in the Statute but its definition was left for later.

Later was 2010, when an amendment to the Rome Statute containing the definition was agreed on by state parties in Kampala. The result of intense and lengthy negotiations, the addition was praised as a historic achievement for international criminal law. That was not the end of it, though: the amendment then had to be ratified by 30 states to come into force.

The crime of aggression is referred to as being the planning, initiation or execution, by a political or military decision-maker, of the use of armed force by a state against another.

In June 2016, the State of Palestine became the 30th to ratify it, allowing the court to exercise jurisdiction over the crime of aggression after the 1st of January 2017. The Assembly of States party to the Rome Statute are expected to vote to activate that jurisdiction this year.

The crime of aggression is referred to as being the planning, initiation or execution, by a political or military decision-maker, of the use of armed force by a state against another.

The Rome Statute provides a list of acts that qualify as an act of aggression, including invasion or attack, bombardment, blockade of ports or coasts, and even the sending of mercenaries against another state.

Turning point, or more of the same?

The potential power of this addition to the court’s jurisdiction is remarkable. The need to hold to account those responsible for illegal acts of aggression remains one of the biggest challenges of our time, and is forever present on the agenda of international law: think Russia in Crimea, the US and UK in Iraq and Afghanistan, NATO in Libya, the US and Saudi Arabia in Yemen, etc.

The ability to investigate and expose illegal military interventions and, in some cases, punish those responsible for them, will play a crucial role in moving our system of international relations away from the concept of ‘might makes right’. Already, states are increasingly seeking to justify the legality of their attacks (France came up with no less than three legal grounds for its intervention in Mali). The threat of prosecution will only encourage this trend.

Of course, for all those hopeful to see the impunity of warmongering states challenged, a reality check is called for.

The ICC’s new power will not re-open the wounds of the past: the court will only be able to investigate crimes of aggression that happen in 2017 or after.

Firstly, the ICC’s new power will not re-open the wounds of the past: the court will only be able to investigate crimes of aggression that happen in 2017 or after.

Secondly, it is possible for state parties to refuse the ICC’s authority for this crime only, via a simple procedure (Kenya did so in July 2016).

Thirdly, crimes of aggression by non-party states (or in their territory) cannot be investigated, even if perpetrated against a state party. Non-party states include three superpowers (the US, Russia and China) and several regional powers (India, Turkey, Indonesia and Israel ), so any wars initiated by these states are off limits. This defers from the three other international crimes for which the ICC can prosecute non-party states if the crime was committed in a state party’s territory or if it was referred to the ICC by the UN Security Council (UNSC).

Fourthly, the UNSC can defer or block investigations for the crime of aggression, in a way that compromises the supposed independence of the ICC.

Let’s imagine France invades Mali (again. This time without the alleged invitation by the Malian government). The invasion can be referred to the ICC either by the UNSC (unlikely, since France has veto power), by a state party (say, Mali) or by the ICC’s prosecutor herself. Imagine it is the latter.

The prosecutor must then go to the UNSC and ask whether the Council believes France committed a crime of aggression. The UNSC has six months to give its take on the matter (note that this is before investigations start, so the Council’s decision will not be based on any fact-finding, and will likely reflect the interests of its members).

If it unanimously agrees that a crime of aggression has been committed, investigations can start. In this example, France would surely disagree so the UNSC would either fail to provide an answer within six months, or reply that no crime of aggression has occurred. The prosecutor must then go to the Pre-Trial Division and convince a panel of four judges that investigations are necessary.

When deciding whether to allow the investigations, the Pre-Trial Division will take judicial notice of – and put significant weight on – the refusal by the Security Council to recognise the crime. It might therefore decide that investigations are not appropriate for this situation, and France will remain immune to prosecution for invading another country.

What if the Pre-Trial Division finds that a crime of aggression clearly has happened and that disallowing investigations would be unjustifiable? Article 16 of the Rome Statute comes to France’s rescue: this provision allows the Security Council to exceptionally defer or pause ICC investigations – at any point – for a year (and again for a year after that, ad infinitum). For that, France would need its best negotiators to convince 8 other Security Council members (out of 15) to vote in favour of deferral, as well as persuade the permanent members not to veto it (a single veto would block deferral).

If successful, France will not face investigations for violating the UN Charter, at least not for another year.

This system gives the UNSC unjustified power and effectively projects the imbalance of power of international relations onto the ICC, perpetuating the impunity of powerful states

Clearly, this system gives the UNSC unjustified power and effectively projects the imbalance of power of international relations onto the ICC, perpetuating the impunity of powerful states. The system also encourages smaller states to do everything they can to maintain close ties with the powerful states, so as to sway their vote if investigations against them were proposed.

Let’s not be fooled: the ICC, having been created by states, inevitably reflects their interests and the power dynamics between them. You could be forgiven for hoping that this “new” crime might re-balance the activities of the court by allowing it to focus on the leaders of powerful states, who tend to wage more illegal wars than others. At last the crime would be able to counter the increasingly fair criticism of neocolonial bias (in 15 years the ICC has only prosecuted black Africans).

With the crime of aggression, the spotlight would be on the bullies of our world: those states that can afford war-mongering, financially and politically

Perhaps this new crime could redeem the credibility of the court and retain the growing number of suspicious members. In October last year Burundi and South Africa both announced their pulling out and are now spear-heading an African Union strategy of mass withdrawal. Gambia followed suit soon after, accusing the court of having become “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”

With the crime of aggression, the spotlight would be on the bullies of our world: those states that can afford war-mongering, financially and politically.

Too political a crime for the ICC?

But the reaction around the world has been far less optimistic, arguing that the court is attempting to run before it can walk. It is feared that this ‘new’ crime will only politicise an already fragile institution, potentially polarising its members. Indeed investigations for the crime of aggression will involve political choices, such as evaluating a government’s claim that an intervention is “humanitarian”, or deciding whether its fear of an imminent attack was reasonable. It would also involve determining the intent of political or military leaders (and what about if they are in a coalition with other states?).

What’s more, having no enforcement powers of its own, this ICC will be dependent on states to intervene to stop a crime of aggression or arrest a perpetrator, which could then encourage disputes and hostilities between states enforcing the ICC’s indictment and those opposing the indictment.

However, the argument that the crime of aggression will politicise the court forgets that all ICC investigations are politicised.

They could not be otherwise: they examine politicians and policies. The process in which they are initiated is deeply political and continues to be dependent on a political body: the UN Security Council. ICC prosecutions propose a political vision: one in which transparency and accountability matter. The court itself is the result of political negotiations and works within a heavily politicised arena, shaped by state interests. The question is not whether the ICC is becoming too political, but rather whether it can overcome politics to be effective and provide equality for states before the law.

While prosecution by the ICC for illegal war-mongering seems very unlikely as of now, the addition of the crime of aggression to the court should be cause for optimism. The threat of investigations and prosecution can be just as important as their result. The ICC needs however to remember that for this threat to be effective, it needs to be real.

Deterrence literature suggests that the swiftness and especially the likelihood of punishment may more effectively deter crime than severity of punishment. The ICC is not known to be quick, and because of additional hurdles put in place for the investigation of this particular crime, it could be slower than usual. The ICC will need to increase efficiency and challenge political influences that damage its impartiality, if it hopes to find the teeth to take a bite at the impunity of powerful states.

Laurène Veale is a graduate from the University of Edinburgh with an MA in Arabic and Politics, she has worked and volunteered for aid organisations and human rights campaigns in Palestine, Egypt, Turkey and Lebanon. She's currently Head of Learning for a charity in London which uses the law and the skills of lawyers to promote human rights and fair development.

This story was first published on openDemocracy.

 

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Foreign Policy reports that the International Criminal Court is poised to formally investigate US actions for the first time in its history

The remains of the Médecins Sans Frontières hospital in Kunduz, Afghanistan, six months after it was attacked in a U.S. airstrike. (Photo: Reuters)
 

The International Criminal Court (ICC) is preparing to initiate a full investigation into potential war crimes in Afghanistan, including those committed by US military personnel, Foreign Policy exclusively reported last week.

The magazine writes:

Multiple sources have indicated that the chief prosecutor, Fatou Bensouda, will seek to initiate an investigation in the coming weeks, likely after the U.S. presidential election but before the end of the year. U.S. officials visited The Hague recently to discuss the potential investigation and to express concerns about its scope.

A formal investigation of US activities would be the first in the history of the ICC, to which the US is not a party. But because Afghanistan is a member, an investigation is "certainly possible," Phyllis Bennis of the Institute for Policy Studies told Common Dreams. "Afghanistan joined the ICC in 2003, so all actions after that time are subject to ICC jurisdiction," Bennis said.

"But then you get to the question of political will," Bennis added.

"Is the prosecutor concerned enough about the accusations of discrimination levied against the ICC that she's willing to go after US clients and US officials?"
—Phyllis Bennis, Institute for Policy Studies

The ICC has famously failed to investigate powerful Western nations while prosecuting African dictators, a disparity so glaring that several African countries recently quit the court, condemning it as the "International Caucasian Court."

"Is the prosecutor concerned enough about the accusations of discrimination levied against the ICC that she's willing to go after US clients and U.S. officials?" Bennis asked.

Rights advocates hope that Bensouda may be willing to take aim at powerful nations. The prosecutor was behind the preliminary ICC report published last year, "Report on Preliminary Examination Activities" (pdf), which suggested that the U.S. was "responsible for 'physical and psychological' violence and torture that 'debased the basic human dignity' of those detained" in Afghanistan, as Common Dreams reported.

Indeed, photos released by the Pentagon earlier this year demonstrated the brutal abuse of detainees at the hands of U.S. forces in Afghanistan.

Bensouda may also probe the deadly bombing by U.S. forces of a Doctors Without Borders/Médecins Sans Frontières (MSF) hospital in Kunduz, Foreign Policy reports. MSF has characterized the airstrike as a war crime, and rights groups have harshly criticized the Pentagon for its light punishment of those responsible for the attack.

Despite the looming investigation, Foreign Policy observes that prosecution of US forces for war crimes is still a long way away and may not happen:

[Prosecution] would require significantly more evidence than the prosecutor's office currently possesses. The ICC normally does not interview witnesses, take testimony, or gather forensic evidence during its preliminary examinations, and that work would be just the beginning.

In order to charge Americans with war crimes, Bensouda would likely also have to demonstrate a link between the conflict in Afghanistan and US detention policies, which may not be easy; the United States reportedly brought several detainees to Afghanistan from other parts of the world. Perhaps most controversial, the prosecutor's office would have to determine that the United States has failed to address allegations of torture through its own domestic prosecutions, investigations, and reviews.

Moreover, any indictments related to Afghanistan would be months if not years away. Because no ICC member has referred the situation to the court, Bensouda will need the approval of a three-judge panel before launching an investigation. ICC judges have approved all three previous investigative requests from the prosecutor (in Kenya, Cote d’Ivoire, and Georgia), but their review can take several months, and the judges might request additional information before authorizing an investigation.

"Still, the readiness of the prosecutor's office to open an investigation represents a sharp setback for President Barack Obama's administration, which has sought several times to discourage an investigation in Afghanistan and even to avoid ICC mention of possible U.S. crimes," Foreign Policy notes.

And once an investigation is underway, Bennis noted, the ICC prosecutor will be faced with "the question of how far up the chain of command do you go."

"Do you start and stop with the soldier who tortured and abused detainees? This is what happened with Abu Ghraib," Bennis explained. "Individual soldiers were slapped on the wrist. Their commanders who set the standards that said it was okay to humiliate and sexually abuse people, to tie them up naked in a dog collar and take pictures of it—the commander establishes the tone of what their work entailed, but that was never considered."

Bennis observed: "One of the questions that will have to be dealt with by the prosecutor if she decides to go forward is: do you go all the way up? Do you go after George W. Bush for using torture as a part of U.S. strategy?

This report was first published on Common Dreams.

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Former Bosnian Serb leader Radovan Karadžić has been sentenced to 40 years in prison by the International Criminal Tribunal for the former Yugoslavia (ICTY).

The court found the former president of the Bosnian Serb republic guilty of one count of genocide and nine war crimes, all relating to the war in the former Yugoslavia in the 1990s. He is criminally responsible for the Srebrenica massacre in 1995.

This marks the final chapter in three interlinked stories of hubris, war and retribution in Europe at the turn of the millennium.

The first of these stories is a personal journey of an ambitious intellectual – a psychiatrist and a poet who rose from poverty and obscurity to eventually join the political elite. It’s the story of a man who went on to lead a nationalist movement responsible for some of the most heinous crimes seen on the continent since 1945.

Karadžić held political authority over the Bosnian Serb forces that perpetrated the crimes for which he was charged by the ICTY. Ousted from power after the conclusion of the Dayton Peace Agreement, he remained a fugitive until 2008. He was found living on the outskirts of Belgrade disguised as a new-age healer. It’s a tale that could have been taken from a Yugoslav surrealist film.

He will undoubtedly spend the remainder of his life in prison – an apt ending to this extraordinary trajectory.

The intriguing question that remains is how an apparently tolerant and convivial man, who worked and associated with Bosnians of different religious backgrounds and exhibited no particular nationalist leanings prior to 1990, became a ruthless political ideologue who oversaw a policy of mass murder, torture, rape and the forced removal of non-Serb populations for the sake of creating an “ethnically cleansed” Serbian state in Bosnia.

A new kind of justice

The second story is that of the international tribunal itself. Set up by the UN in 1993 to investigate the war crimes that took place in the Balkans in the 1990s, the ICTY has undergone several metamorphoses over its 20-year existence.

The tribunal began as an ineffectual and underfunded institution. It was unable to press Western governments into capturing the more important war criminals. But from 2001 it went on to score some remarkable successes. All its indictees were eventually arrested, including the big fish, such as Serbia’s former president Slobodan Milošević and the Bosnian Serb political and military leaders Karadžić and Ratko Mladić (who is currently on trial).

This success was due largely to new governments coming to power in the post-Yugoslav states and the West’s policy of making financial aid and accession to the EU conditional on co-operation with the tribunal.
 

A woman visits the memorial to the people who died in the Srebrenrica massacre. EPA/Fehim Demir

The ICTY has provided impressive evidence of the worst crimes committed in the Yugoslav wars. It identified those involved and charted the chains of command. It set some important milestones in international law, paving the way to the creation of a permanent International Criminal Court. Without the ICTY, it is unlikely that some of the worst perpetrators in the Yugoslav wars would have been brought to justice or that we would have such detailed knowledge about the conduct of those wars.

However, the tribunal has been very controversial in the region. It has ultimately made little headway in its mission of contributing to reconciliation.

Nationalist politicians have sought to portray the ICTY as victimising their individual national groups. They present the indictments of their own former political or military leaders as disproportionate and unjust.

The tribunal has remained insular and remote from the region, making little attempt to explain its indictments, procedures and judgements to the war-ravaged and traumatised populations for which it was meant to provide justice.
Often relatively short sentences issued for capital crimes have rankled with victims and some of those tried by the tribunal have now returned home and were welcomed as war heroes.

The acquittals of high ranking military and security figures from Croatia and Serbia in 2012 and 2013 produced consternation even among the greatest champions of the tribunal. Even some ICTY judges publicly protested.

An international journey

The Karadžić judgment (along with those pending for Mladić and a few others) also marks the end of a third story – that of external involvement in the region’s reckoning with its legacy of war.
 

Karadzic and Milosevic with UN special envoy Yasushi Akashi in 1994. EPA/Srdjan Suki

Without international intervention, there would probably have been little justice. However, the actions of external actors sometimes had counterproductive effects, undermining the reformist political forces seeking genuine change in their countries. And, ultimately, real reckoning with a difficult past cannot be orchestrated from outside.

If the Karadžić judgment is to have any longer-term resonance in the region, it will need to be part of a sustained internal and introspective process in those states where the crimes were perpetrated.

That usually implies the presence of both genuine political commitment and a propitious socio-economic context. Unfortunately, neither of these conditions are on the horizon yet anywhere in the region.

This article was first published by The Conversation.
 

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