“The specter of a government pursuing investigations and prosecutions of the former regime while blatantly ignoring—or worse, covering up—its own crimes and misdeeds will very likely deepen mistrust across the social spectrum and lay the foundation for future conflict.”
By Jeffrey Smith • Freedom House
Côte d’Ivoire was once a promising model of economic prosperity and stability for West Africa, but in the last decade alone it has fallen prey to two civil wars, untold human misery, and large-scale impunity for perpetrators of human rights violations. The complex problems currently besetting the country are linked to the failure of its leaders to both commit to and successfully foster genuine democratic principles and practices.
The latest manifestation of poor political leadership occurred during the latter part of 2010, when incumbent president Laurent Gbagbo refused to relinquish power following his electoral defeat at the hands of a longtime adversary, Alassane Ouattara. By early December 2010, both men had been sworn in as president in separate, conflicting ceremonies. The stalemate sparked Côte d’Ivoire’s second civil war since 2002, resulting in over 3,000 deaths and the displacement of over a million people before Ouattara finally assumed power in April 2011.
The relative peace that now prevails is tenuous at best, threatened by persistent and deeply rooted political, tribal, and ethnic divisions. The recent discovery of mass graves, mainly located in the western part of the country, has done little to allay fears of renewed violence. The situation is exacerbated by the proliferation of small arms and the desperation caused by widespread poverty.
The UN-backed Muntarbhorn Commission determined that serious violations of human rights and international humanitarian law were committed by both sides during the postelection crisis. A number of important steps have since been taken to foster national reconciliation and ensure that key perpetrators are held accountable. A Truth, Reconciliation, and Dialogue Commission (TRDC) has been established, as has a separate Commission of Inquiry. A newly appointed public prosecutor assumed office in April 2011, and the International Criminal Court (ICC) has been cleared to investigate and prosecute those alleged to have violated international law. Gbagbo, for his part, already sits in The Hague, where he will stand trial before the ICC on four counts of crimes against humanity.
The Obama administration has pledged support to the Ouattara government, hoping to reestablish a normal trade and assistance relationship and provide a sense of stability to a country still reeling from a humanitarian disaster. However, this relationship is premised on Ouattara’s demonstrated commitment to advance national reconciliation, implement measures that decrease ethnic violence, and ensure that human rights violations are impartially investigated.
Unfortunately, the requisite progress on these fronts remains to be seen.
Back in October International Criminal Court Chief Prosecutor Fatou Bensouda submitted a nine page missive to the pre-trial chamber seeking to establish a December 31, 2015 deadline for South Africa to explain its (not-so-cut-and-dried-as-advertised) decision not to arrest Omar al-Bashir during a regional summit last July. The filing sought to rein in South Africa’s domestic wrangling over the issue “out of concern for the potentially open-ended time frame that may result from the need for resolution of the domestic proceedings…and the manner in which the proceedings have been represented in South Africa’s submissions in support of its request for an extension of time.”
The pre-trial chamber, so far as we can tell, simply ignored the request, but it looks as if rather than forcing South Africa to kneel, Bensouda’s attempted power-play may have made the nation more, not less, defiant.
From Business Day Live:
Which for some inexplicable, incredible reason the United Nations decided to widely publicize via Twitter:
— UN Library (@UNLibrary) December 31, 2015
Of course, the International Criminal Court and its backers could issue a one-page book on how to achieve de facto immunity: Be a rich, powerful nation that can expand either the treasury or purview of the Hague or…the client state of a rich, powerful nation that can expand either the treasury or purview of the Hague.
For further reading see…
A couple weeks back we asked whether it might be time for the U.S. to start worrying about the International Criminal Court — an institution that not only sees few if any real limits on its power and has been stealthily circling American soldiers for some time now. Today, as a service to those seeking a solid philosophical/intellectual foundation for skepticism of this sort of uber-judicial overreach, at home or abroad, we present the following thoughts and insights courtesy American Founding Father and author the Declaration of Independence, Thomas Jefferson.
Obviously Jefferson’s critique is of a federal judiciary he worried would overstep its Constitutional bounds. Nevertheless, all of these arguments are more not less pertinent when discussing an aspiring transnational behemoth that seeks to place the entire planet under its uneven and politicized jurisdiction.
1. Judges Are Men, Not Angels, and, Thus, Susceptible to the Temptations of Power
“It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that ‘it is the office of a good judge to enlarge his jurisdiction,’ and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear?” — Autobiography, 1821.
2. Ever-Expanding Power and Reach Is the Enemy of Impartiality
A few weeks back we noted Kenyan “human rights activist” Ken Wafula dramatically recanted his support of the International Criminal Court’s pursuit of Kenyan President Uhuru Kenyatta and Deputy President William Ruto after he was presented with evidence detailing “bogus and planted” witnesses marring the case.
ICC Chief Prosecutor Fatou Bensouda, on the other hand, continues — against all accepted norms of established, civilized jurisprudence — to defend, apparently without qualm, her determined use of recanted witness testimony.
How does she justify this? According to her filing in the court’s registry,
“For present purposes…it suffices to submit that the circumstances surrounding the witnesses’ recantation of their prior statements are such that they cannot, at this stage, provide a sufficient basis to conclude that the [statements] are incapable of belief.”
Thus, even if recanted and procured under questionable circumstances, testimony is valid so long as Bensouda says it is? Convenient! So much for impunity!
Here, in an hard-hitting op-ed for Lawfare Tyranny, is how Evans Monari — a highly respected senior litigation attorney in who argued successfully before the ICC in 2011 — described the shifting justifications of the Court in its case against Ruto and Joshua Sang:
International Criminal Court Chief Prosecutor Fatou Bensouda was recently asked by Yahoo! News, “What is the biggest challenge [the Court faces] in 2016?”
Her response is instructive:
“There is a lot of misunderstanding about how the court works …especially in the face of the propaganda that is being made against the court. Because people are deliberately misinforming about the ICC, politicizing the court.”
One might think the biggest problem the Court faces is after more than a decade and a billion dollars spent it has only managed to convict two obscure African warlords. Or that itconsistently worsens the already-fragile situations in the countries it gets involved in. Or that its deterrent effect is nonexistent. Or that Bensouda herself cannot bring herself toacknowledge mistakes and, therefore, the ICC is completely incapable of making the kind of institutional reforms that might make it more fair and less political. Or that it is used as a hammer by the Great Powers that would never submit themselves to its authority. Or that its got a real Africa problem.
But, no. We’re expected to believe the primary problem the ICC must deal with is a growing chorus of people pointing out the Court has utterly failed to live up to its own purported mission.
(Photo via ICC official Flick’r.)
A couple weeks ago we noted The Washington Times had launched its Ronald Reagan Thought Leadership Series at the Reagan Presidential Library in Simi Valley, California with an event entitled “The Hollow Hope of the International Criminal Court — A Look at Its Record” featuring UC Berkeley law professor John Yoo, Bush II Assistant Secretary of State for International Organization Affairs Brian Hook, and Syracuse University School of Law professor Tara Helfman.
Now video has surfaced of this hour-plus evisceration of ICC hubris and self-aggrandizement. Check it out below…
Parts two through four after the jump:
A scholar at the Institute for Justice and Reconciliation who a few months back declared the International Criminal Court an “important institution” that should be given enough power to cause “a rupture in global power arrangements” — a wildly overoptimistic degree of faith and trust the institution most certainly has not earned — now appears concerned over the persistently politicized culture around the co-called “international justice architecture.”
Specifically, Kelly-Jo Bluen takes issue with the way the ICC power-brokers during the recent Assembly of State Parties session at the Hague brushed aside African complaints over the “inequality of the global system including the UN Security Council’s referral of situations to the ICC while three of the permanent five are not ICC members, and the lack of prosecutions to date outside Africa.”
It had long been rumored that Namibian President Hage Geingob’s ultimately un-delivered speech to the African Union summit in South Africa last July included a stinging rebuke of the International Criminal Court.
Here are the widely reported relevant leaked lines:
Some people are saying we are the ones who created the ICC. However, when one creates something to be an asset but later on it becomes an abomination, you have the right to quit it since it has ceased serving its intended purpose….No institution or country can dictate to Africans, who and by whom they should be governed.
Now the nation’s information minister Tjekero Tweya has announced Geingob’s cabinet plans to make good on that warning, accepting a recommendation by the ruling Swapo Party to withdraw Namibia from the ICC — thorny “technical issues” of exiting the Rome Statute, which Namibia signed in 2002, notwithstanding.
The ICC’s earliest supporters, it appears, grow weary of being its only targets.
What should an International Criminal Court member state do if it feels the Court is behaving in an unfair, politicized manner by, say, using recanted testimony in a continuation of an already bafflingly “amateur” prosecution?
That’s easy, says the ICC: Sit down and shut up.
Here’s the story: A Kenyan delegation hoping to lobby other ICC member states at the London Assembly of State Parties Session in its quest to reform Hague practices has drawn the ire of the aspiring transnational behemoth.
هنا، نقلًا عن The Quint، نجد ترس مجهول في آلية الغول الطموح عابر الحدود لوطنية يشرح لماذا الهند، وهي دولة غير طرف في معاهدة روما، وعلى الرغم من ذلك ملزمة بالقبض على رئيس دولة أخرى بالمثل ليست طرفا في معاهدة روما:
يوضح محام في المحكمة الجنائية الدولية في لاهاي، الذي طلب عدم ذكر اسمه، أن الأمم المتحدة يمكن أن تتحدى الدفاع الهندي كونه ليس طرفًا في المحكمة الجنائية الدولية بموجب الفصل السابع. وهذا يمكن أن يخلق التزامًا على الدول الأعضاء مثل الهند للتعاون بموجب ميثاق الأمم المتحدة.
يقول هذا المحامي “لا يمكنك مجرد دعوة فرد مشتبه فيه بالقيام بالإبادة الجماعية إلى بلدك ثم تقول بعد ذلك أنك عضوًا مسؤولًا في المجتمع الدولي”.
وهذا، بطبيعة الحال، يطرح السؤال: ما هو هدف المعاهدة إذا كان على أي دولة العيش تحت نيرها سواء وقع ممثليها أم لا؟ هل قضية المحكمة الجنائية الدولية في حد ذاتها ضعيفة جدًا لدرجة أنها يجب عليها أن تعتمد على القوة والإكراه بدلًا من الإقناع؟
That is how Lawfare Tyranny described the International Criminal Court’s ill-advised and completely unwarranted entree into the most complex, thorniest political conflict in modern history.
And now, apparently, others are beginning to wake up to the fact that inserting a highly politicized, truculent aspiring transnational behemoth with a track record of acerbating, not reconciling, conflicts into the mix might not be such a great idea.
A United Nations Security Council resolution drafted by New Zealand and circulated amongst that body’s fifteen members, seeks an end to “provocative acts” on both sides, explicitly calling on Israel to stop settlement construction and strongly suggesting Palestinian leaders “to refrain from referring…a situation concerning Israel or the Occupied Palestinian Territories to the International Criminal Court.”
Naturally, Amnesty International — an organization that has never been able to discern the lofty mission statement of the ICC from the reality of its practices — is not pleased.
You have to appreciate the chutzpah of a Hague lawyer acting an utter coward in his demands for anonymity even as he claims essentially unlimited power for his organization.
Here, via The Quint, we find the nameless cog in the machinery of an aspiring transnational behemoth explaining why India, a state that is not party to the Rome Treaty, is nonetheless obligated to arrest the head of another state likewise not party to the Rome Treaty:
A lawyer at the ICC in the Hague, who wished to remain anonymous, explains that the UN can challenge the Indian defense of not being a party to the ICC under a Chapter VII resolution. This can create an obligation for member states like India to cooperate under the UN Charter. Continue reading
By Shawn Macomber • Lawfare Tyranny
The Russian state-funded media outlet Russia Today is hyping a recent interview in which journalist Neil Clark insists arresting former British Prime Minster Tony Blair on war crimes charges is not only the single viable way to keep the already-nebulous concept of international justice from becoming a “farce,” but also a wonderful opportunity for the International Criminal Court to at long last prove to the world it is not the den of racists its track record indicates it is.
The relevant bit from Clark:
The International Criminal Court, the ICC, I think has indicted 36 people so far — all of them are black Africans. They have been accused of being a racist body. Now there’s a chance for them to indict Tony Blair for war crimes. The case is absolutely crystal clear: He led Britain into an illegal war with a sovereign state on deceitful grounds… A million people have died…If Tony Blair isn’t put on trial for war crimes, then who else is going to be put on trial for war crimes? It really makes the whole system of international justice a farce… The ICC is indicting African leaders for crimes that are not on the same scale as Tony Blair’s crime. The Iraq war was the greatest crime of the 21st century.
Whatever the merits of the argument, it is obviously a popular sentiment over at Russia Today:
Of course, as usual, the ICC cheerleading is entirely situational.
في افتتاحيته القوية بواشنطن تايمز في نهاية هذا الأسبوع أعرب رئيس السودان الجنوبي، سلفاكير ميارديت، عن الابتهاج بتحقيق الاستقلال قبل خمس سنوات، والنضال من أجل بناء حكومة مُمثِّلة ومجتمع مدني في خضم الحرب الأهلية، وخيبة الأمل المريرة من جراء ضغط وتهديد الدول الغربية له من أجل التوصل الى اتفاق سلام، الذي على حد تعبيره، “يقوض مؤسسات الديمقراطية وسيادة أمتنا بصورة مخزية للغاية.”
وفيما يلي مقتطفات من هذا المقال: