Thierry Cruvellier writes: Last month, the International Criminal Court opened two investigations, including a sensitive one in Afghanistan, and a call has been made to allow it to intervene in Myanmar. But such a flurry of announcements mainly testifies to the impasse at which the court finds itself.
On Nov. 20, after 11 desperately long years conducting a “preliminary examination,” Fatou Bensouda, the prosecutor of the International Criminal Court, formally requested authorization to investigate war crimes and crimes against humanity in Afghanistan thought to have been committed since 2003, after the United States-led invasion of the country.
It is a contentious move: Afghanistan recognizes the court’s jurisdiction, but the United States does not, and the I.C.C. is expected to investigate acts by American soldiers and C.I.A. personnel, along with some by the Taliban and Afghan National Security Forces.
The court was controversial from the moment it was created in 1998: Major states, including the United States, China and Russia, opposed its foundational treaty, the Rome Statute.
The I.C.C. has since come under repeated attack for being too slow, too accommodating to powerful states, inefficient and sloppy. It has gone after only Africans, indicted at most a few defendants in each of its eight concrete investigations, secured only four convictions and even botched investigations.
In November, the prosecutor also disclosed that she has opened an investigation into crimes committed in Burundi since April 2015 by state agents and the ruling party’s youth wing. Two days after the I.C.C. judges allowed the investigation, Burundi became the first country to formally withdraw from the court. There is meager hope of a significant outcome.
The fact that crimes were committed in Afghanistan is hardly in dispute. The Taliban, the office of the prosecutor wrote, has led “a widespread and systematic campaign of intimidation, targeted killings and abductions of civilians” perceived to oppose them, while the Afghan Army and police showed “systemic patterns of torture and cruel treatment” of war prisoners, including acts of sexual violence. Such acts are also alleged against United States agents and servicemen, principally in the 2003-04 period.
The problem is that none of the targeted authorities is likely to cooperate. The Taliban can’t be bothered with international justice. Despite being an I.C.C. member state, Afghanistan has shown no sign of commitment to a court that has no means to enforce arrest warrants.
The United States will at best ignore the I.C.C. or at worst be actively hostile, as it was during the early years of the George W. Bush administration, when it pressured more than a hundred states, including Afghanistan, to sign bilateral agreements not to surrender Americans to the I.C.C.
The I.C.C. will be able to claim that it no longer targets only Africans, which seems its primary motive to open the investigation now. But it will keep showing its powerlessness. [Continue reading…]
Pacific Standard reports: Negotiators at the COP23 climate talks in Bonn, Germany, last week made some incremental progress toward fulfilling the Paris Agreement’s aim to limit global warming. But the intensifying urgency of the climate crisis requires bigger and bolder steps, including more lawsuits, according to a group of legal experts who met on November 15th in the basement of a converted church in downtown Bonn.
“We have a strong message for climate polluters: We’ll see you in court,” said Fijian activist Makereta Waqavonovono, a legal practitioner with the Pacific Islands Climate Action Network who made it clear that Fiji expects help from wealthier countries to pay for relocating about 800 coastal villages that will be flooded by rising sea levels in the next few decades.
At the panel, organized by the Heinrich Böll Foundation, climate activists and attorneys said that, as international climate policy keeps failing, litigation is becoming an increasingly important part of the strategy to force reductions of dangerous heat-trapping greenhouse gases—and to hold climate polluters financially accountable for the damage they’ve caused.
At the talks in Bonn, the question of compensation—Loss and Damage, in negotiator jargon—was once again shunted aside for the most part, said Naomi Ages, a climate liability expert with Greenpeace USA.
“Sometime soon there has to be a day of reckoning. Who’s going to pay for the climate damage already caused?” she said. “All governments are obligated to consider the human rights aspects of climate change, and the International Criminal Court has said that climate change is a possible reason for charges on crimes against humanity,” she added. [Continue reading…]
The Washington Post reports: The chief prosecutor of the International Criminal Court on Monday formally requested authorization to investigate the U.S. military and CIA for alleged war crimes and crimes against humanity in Afghanistan.
Fatou Bensouda, a Gambian jurist who has been the ICC’s chief prosecutor since 2012, confirmed earlier suspicions that the United States would be implicated in the probe. The decision marks the first time the ICC under Bensouda will investigate American forces and operatives.
In a statement, Bensouda clarified that alleged “war crimes by members of the United States armed forces” and “secret detention facilities in Afghanistan” used by the CIA justified the court’s investigation. Earlier this month, she had announced that “there is a reasonable basis to believe that war crimes and crimes against humanity have been committed” in Afghanistan but had declined to specify by whom.
On Monday, she named the U.S. armed forces and the CIA among a roster of probe targets that also included the Taliban and its affiliated Haqqani network, as well as the Afghan National Security Forces. [Continue reading…]
Der Spiegel reports: The man who hopes to become the prime minister of Kosovo has a past, documented under case file IT-04-84 at the International Criminal Tribunal for the former Yugoslavia in The Hague. Forty-eight-year-old Ramush Haradinaj, aka Smajl, was accused of crimes against humanity in 37 cases, including murder and torture.
The allegations are from the 1990s, when he was a field commander for the Kosovo Liberation Army (UÇK) in the war against the Serbs. The court ultimately found Haradinaj not guilty, a product of witnesses declining to testify at the last moment or, in some cases, dying suddenly. The United Nations police force in Kosovo has accused the UÇK veteran of dealing cocaine, while Germany’s foreign intelligence service, the BND, described him in a 2005 analysis as being the head of a group involved in “the entire spectrum of criminal activities.”
Despite his past, though, Haradinaj’s alliance of former fighters managed to emerge victorious in Kosovo parliamentary elections earlier this month. With 34 percent of the voters supporting his alliance, it is now up to him to form a governing coalition.
The news from Kosovo, the mini-republic located northeast of Albania, is consistent with the atmosphere in the Western Balkans these days. Kosovo, Macedonia and Bosnia-Herzegovina, all part of former Yugoslavia, have spent years waiting to become members of the European Union, but it seems in the early summer of 2017 as though they have almost been forgotten. And people there are beginning to lose their patience. The result: increasing numbers of people leaving the region, accelerated Islamization and rising nationalism. Violent protests recently in the Macedonian capital of Skopje along with ranting about a Greater Albania in both Tirana and Pristina, the capitals of Albania and Kosovo respectively, have served to demonstrate just how tense the situation has become. [Continue reading…]
The New York Times reports: The evidence is staggering.
Three tons of captured Syrian government documents, providing a chilling and extensive catalog of the state’s war crimes, are held by a single organization in Europe. A Syrian police photographer fled with pictures of more than 6,000 dead at the hands of the state, many of them tortured. The smartphone alone has broken war’s barriers: Records of crimes are now so graphic, so immediate, so overwhelming.
Yet six years since the war began, this mountain of documentation — more perhaps than in any conflict before it — has brought little justice. The people behind the violence remain free, and there is no clear path to bring the bulk of the evidence before any court, anywhere.
More than 400,000 people have been killed in the Syrian war. Half the country’s population has been displaced. Syrian human rights groups list more than 100,000 people as missing, either detained or killed. Tens of thousands languish in government custody, where torture, deprivation, filth and overcrowding are so severe that a United Nations commission said they amounted to “extermination,” a crime against humanity.
But so far, there is only one war-crimes case pending against Syrian officials: filed in Spain, over a man who died in government custody.
No cases have gone to the International Criminal Court. Syria never joined it, so the court’s chief prosecutor cannot start an investigation on her own. The United Nations Security Council could refer a case to the court, but Russia has repeatedly used its veto power to shield Syria from international condemnation. And even if the Council were to take action, President Bashar al-Assad and his top officials are battened down in Damascus, making their arrests difficult, to say the least. [Continue reading…]
Max Fisher writes: The Trump administration is preparing executive orders that would clear the way to drastically reduce the United States’ role in the United Nations and other international organizations, as well as begin a process to review and potentially abrogate certain forms of multilateral treaties, officials said.
The first of the two draft orders, titled “Auditing and Reducing U.S. Funding of International Organizations” and obtained by The New York Times, calls for terminating funding for any United Nations agency or other international body that meets any one of several criteria.
Those criteria include organizations that give full membership to the Palestinian Authority or Palestine Liberation Organization, or support programs that fund abortion or any activity that circumvents sanctions against Iran or North Korea. The draft order also calls for terminating funding for any organization that “is controlled or substantially influenced by any state that sponsors terrorism” or is blamed for the persecution of marginalized groups or any other systematic violation of human rights.
The order calls for then enacting “at least a 40 percent overall decrease” in remaining United States funding toward international organizations.
The order establishes a committee to recommend where those funding cuts should be made. It asks the committee to look specifically at United States funding for peacekeeping operations; the International Criminal Court; development aid to countries that “oppose important United States policies”; and the United Nations Population Fund, which oversees maternal and reproductive health programs. [Continue reading…]
The Guardian reports: Russia has said it is formally withdrawing its signature from the founding statute of the international criminal court, a day after the court published a report classifying the Russian annexation of Crimea as an occupation.
The repudiation of the tribunal, though symbolic, is a fresh blow to efforts to establish a global legal order for pursuing genocide, war crimes and crimes against humanity.
In recent months, three African countries who were all full members of the ICC – South Africa, Burundi and Gambia – have signalled their intention to pull out, following complaints that ICC prosecutions focused excessively on the African continent.
The Russian foreign ministry made the announcement on Wednesday on the orders of the president, Vladimir Putin, saying the tribunal had failed to live up to hopes of the international community and denouncing its work as “one-sided and inefficient”.
Russia signed the Rome statute in 2000 and cooperated with the court, but had not ratified the treaty and thus remained outside the ICC’s jurisdiction. This means that the latest move, though highly symbolic, will not change much in practice. [Continue reading…]
The New York Times reports: The prosecutor of the International Criminal Court said Monday that she had a “reasonable basis to believe” that American soldiers committed war crimes in Afghanistan, including torture.
The international prosecutor has been considering whether to begin a full-fledged investigation into potential war crimes in Afghanistan for years. In Monday’s announcement, the prosecutor, Fatou Bensouda, signaled that a full investigation was likely.
Still, the prosecutor did not announce a final decision on an investigation, which would have to be approved by judges, and it is unlikely that the United States will cooperate. [Continue reading…]
The Washington Post reports: Gambia has announced that it will withdraw from the International Criminal Court, the third African country to declare its departure in just two weeks.
Explaining the country’s decision, Gambian Information Minister Sheriff Bojang said on state television late Tuesday that the global judicial body was really an “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”
Last Tuesday, Burundi announced its own intention to leave the court and on Friday, South Africa did the same. Then came Gambia, the tiny West African country. There are worries that this could be the beginning of an African exodus from the court, a dwindling membership on a continent with a long list of conflicts and human rights abuses to adjudicate.
Experts believe Kenya, Namibia and Uganda could be among the next countries to leave the court.
For years, many African nations have claimed that the ICC, which was established in 2002, is biased against the continent’s leaders. Nine of its 10 current investigations involve African countries.
The decision of three successive countries to leave the court could mark a watershed moment for an institution whose legitimacy is derived largely from its members’ consent. No country had previously withdrawn from the ICC. [Continue reading…]
The International Criminal Court is not known for prosecuting people responsible for huge oil slicks, chopping down protected rainforests or contaminating pristine land. But these people may now one day find themselves on trial in The Hague.
The move was announced by chief prosecutor Fatou Bensouda in a recent policy document that contains a new and welcome focus on the prosecution of individuals for human atrocities that are committed by destroying the environment in which we live and on which we depend.
The document doesn’t change the law applied by the court. There is no new crime of ecocide for instance. Instead, it sets out the types of cases that the court will now select and prioritise for prosecution. These will include the illegal exploitation of natural resources, cases of environmental destruction, and “land grabbing”, where investors buy up vast areas of poor countries.
The International Criminal Court, or ICC, has already shown a willingness to apply its laws to situations involving environmental destruction. Between 2009 and 2010, then-prosecutor Luis Moreno Ocampo successfully obtained arrest warrants from the court against the president of Sudan, Omar Al-Bashir, for acts of genocide, war crimes and crimes against humanity. Among other acts, these alleged crimes involved the contamination of wells and water pumps in Darfur to target and destroy certain groups of people. Al-Bashir’s trial has not yet commenced as he continues to evade arrest.
Al Jazeera reports: Israel has agreed to allow the International Criminal Court (ICC) in The Hague to send a delegation to Israel and the occupied territories. It was revealed over the weekend in a step that could dramatically increase the risk of Israeli officials being tried for war crimes.
Emmanuel Nahshon, a foreign ministry spokesman, confirmed to Al Jazeera on Sunday that Israel had agreed to the visit in principle, though the “when and how” were still under discussion.
The ICC’s move comes as human rights groups have harshly criticised Israel for closing investigations into dozens of allegations that its military has broken the laws of war during an attack on Gaza in the summer of 2014.
The Hague prosecutors are reportedly interested in examining how effective Israel’s legal mechanisms are in investigating allegations of war crimes.
Under the terms of its founding statute, the ICC could take over jurisdiction of such probes if it is persuaded that Israel is unable or unwilling to conduct credible investigations itself. [Continue reading…]
Ben Taub writes: The horror of Syria’s war is in the millions of pictures that are too gruesome to circulate—charred limbs stacked outside hospital wards, bloated bodies rotting in sniper alleys, a toddler plucked from the rubble without a head. It is in a group of relatives trying to carry the sixty-pound corpse of a man who died of hunger — the boiled grass he’d been living on could no longer sustain him — but struggling under his weight, because they, too, are starving to death. It is in a generation of orphans, of children who never learned to read but can tell you the difference between the sounds of shelling and those of air strikes. It is in the intentional bombing of hospitals and clinics, the targeted assassinations of medical workers, the forced displacements, the chemical-weapons attacks. It is in a death toll so high, and so impossible to verify, that the U.N. stopped counting two years ago.
Following the horrors of the First World War, a British lawyer named Hugh Bellot spent years beseeching the League of Nations to establish an international criminal court at The Hague, to prosecute war crimes and “all offenses committed contrary to the laws of humanity.” For Bellot, allowing the “outrages” committed during the war — which included the widespread use of chemical weapons — to go unaddressed was as “dangerous to humanity and civilization” as the atrocities themselves had been. Bellot’s efforts fell short; it took the Holocaust for the international community to set up the world’s first international war-crimes tribunal, and another half century of atrocities in South America, Asia, Africa, and Eastern Europe for his vision to be fully realized. In 1998, after the widespread killings in Rwanda and Bosnia, the United Nations convened a five-week assembly in Rome, to draft a treaty that would establish an international criminal court that could prosecute war crimes, genocide, and crimes against humanity. In theory, the U.N. believed, the very existence of such a court would give pause to dictators and warlords prone to brutality; perpetrators living anywhere in the world could be hunted until their dying breaths.
Nowhere has the supposed deterrent of eventual justice proved so visibly ineffective as in Syria. Like most countries, Syria signed the Rome Statute, which, according to U.N. rules, means that it is bound by the “obligation not to defeat the object and purpose of the treaty.” But, because Syria never actually ratified the document, the International Criminal Court has no independent authority to investigate or prosecute crimes that take place within Syrian territory. The U.N. Security Council does have the power to refer jurisdiction to the court, but international criminal justice is a relatively new and fragile endeavor, and, to a disturbing extent, its application is contingent on geopolitics. In 2014, when a measure to give the I.C.C. jurisdiction in Syria came before the council, Russia and China blocked it. Meanwhile, since 2011, not a minute has passed in which the Syrian government has not been committing multiple, simultaneous, widespread war crimes and crimes against humanity. The body of court-ready evidence against top officials within the Syrian government is more complete and damning than any that has ever previously been collected during an active conflict. And yet there is no clear path for prosecuting the highest-level offenders. [Continue reading…]
The Guardian reports: The first defendant to plead guilty at the international criminal court has apologised to Mali and to mankind for destroying religious monuments in the ancient city of Timbuktu.
Ahmad al-Mahdi admitted directing the destruction of nine mausoleums and a mosque door in 2012, when Timbuktu was controlled by rebels and members of al-Qaida in the Islamic Maghreb.
At the opening of his trial for war crimes in The Hague, he expressed his “deep regret” to the people of Timbuktu, to whom the monuments had been of great religious and cultural importance.
“I seek their forgiveness and I ask them to look at me as a son who has lost his way,” he said. “Those who forgive me will be rewarded by the almighty. I would like to make them a solemn promise that this was the first and the last wrongful act I will ever commit.”
Wearing a grey suit, blue shirt and tie and glasses, his long curly hair slicked back, Mahdi said he drew on Islamic teachings to enter his guilty plea. “We need to speak justice even to ourselves. We have to be truthful, even if it burns our own hands,” he said.
“All the charges brought against me are accurate and correct. I am really sorry, and I regret all the damage that my actions have caused.” [Continue reading…]
Ben Taub reports: The investigator in Syria had made the drive perhaps a hundred times, always in the same battered truck, never with any cargo. It was forty miles to the border, through eleven rebel checkpoints, where the soldiers had come to think of him as a local, a lawyer whose wartime misfortunes included a commute on their section of the road. Sometimes he brought them snacks or water, and he made sure to thank them for protecting civilians like himself. Now, on a summer afternoon, he loaded the truck with more than a hundred thousand captured Syrian government documents, which had been buried in pits and hidden in caves and abandoned homes.
He set out at sunset. To the fighters manning the checkpoints, it was as if he were invisible. Three reconnaissance vehicles had driven ahead, and one confirmed by radio what the investigator hoped to hear: no new checkpoints. Typically, the border was sealed, but soldiers from the neighboring country waved him through. He drove until he reached a Western embassy, where he dropped off the cargo for secure transfer to Chris Engels, an American lawyer. Engels expected the papers to include evidence linking high-level Syrian officials to mass atrocities. After a decade spent training international criminal-justice practitioners in the Balkans, Afghanistan, and Cambodia, Engels now leads the regime-crimes unit of the Commission for International Justice and Accountability, an independent investigative body founded in 2012, in response to the Syrian war.
In the past four years, people working for the organization have smuggled more than six hundred thousand government documents out of Syria, many of them from top-secret intelligence facilities. The documents are brought to the group’s headquarters, in a nondescript office building in Western Europe, sometimes under diplomatic cover. There, each page is scanned, assigned a bar code and a number, and stored underground. A dehumidifier hums inside the evidence room; just outside, a small box dispenses rat poison.
Upstairs, in a room secured by a metal door, detailed maps of Syrian villages cover the walls, and the roles of various suspects in the Syrian government are listed on a whiteboard. Witness statements and translated documents fill dozens of binders, which are locked in a fireproof safe at night. Engels, who is forty-one, bald and athletic, with a precise, discreet manner, oversees the operation; analysts and translators report directly to him.
The commission’s work recently culminated in a four-hundred-page legal brief that links the systematic torture and murder of tens of thousands of Syrians to a written policy approved by President Bashar al-Assad, coördinated among his security-intelligence agencies, and implemented by regime operatives, who reported the successes of their campaign to their superiors in Damascus. The brief narrates daily events in Syria through the eyes of Assad and his associates and their victims, and offers a record of state-sponsored torture that is almost unimaginable in its scope and its cruelty. Such acts had been reported by survivors in Syria before, but they had never been traced back to signed orders. [Continue reading…]
Philippe Sands writes: Eight mass graves reportedly found in the Iraqi city of Tikrit earlier this month are believed to hold some of the bodies of 1,700 Shia military cadets who were rounded up by Islamic State in June 2014 and paraded through the streets, before disappearing.
These graves, and surely others in and around the city, will be subjected to a grim, intimate process followed too often around the world, a fruit of ethnic and religious strife. As in Rwanda and various parts of former Yugoslavia with now familiar names – such as Srebrenica and Vukovar– the sites will be mapped and documented; bodies will be identified, photographed, removed and then minutely analysed by forensic anthropologists for identity and trauma; full excavation of the site will follow, with identification and accounting for the moment of mass death. What happens next?
These sites are crime scenes, with a resonance going beyond the local. Their dimension is international because of their scale, nature and context. Such acts of unlawful killing may be war crimes in armed conflict, or “crimes against humanity” when occasioned beyond the battlefield. If it can be established that the killings were motivated by an intention to destroy Shias as a group in whole or in part (as the UN has intimated in relation to accounts of the murder by Islamic State forces of members of the Yazidi community in Iraq), then “genocide” may have been committed. [Continue reading…]
After more than five years and much diplomatic wrangling, Palestine has joined the International Criminal Court (ICC). Now, the prospect of Israel being held accountable for war crimes has greatly increased, and that will have significant repercussions for the peace process and for Palestinian statehood.
ICC prosecutor Fatou Bensouda opened a preliminary investigation on January 16. This can investigate everything that has happened in Palestinian territories since June 13 2014 – the date that Palestine formally accepted ICC jurisdiction. This is also the date when Israel broke a ceasefire with Hamas leading to Operation Protective Edge, which raged throughout the summer of 2014, leading to the deaths of at least 1,473 civilians in Gaza and bringing widespread international condemnation against Israeli actions.
The story dates back to 2009, when the Palestinian Authority requested that the ICC investigate Israel over Operation Cast Lead, but was rejected for not being a state. It was rejected for full membership in the United Nations in 2011, but was granted the status of non-member observer state the following year.
Palestine then joined numerous international organisations, such as UNESCO, and while the question of its statehood remains controversial, it has now been allowed to join the ICC. In the interim it has periodically indicated it would refer Israel to the ICC, but was held back by pressure from the US, the UK and France – and because using the threat suited Palestinian political interests.
Avenues of enquiry
The prosecutor could investigate the civilian casualties in Operation Protective Edge. She could also investigate whether the Israelis carried out the war crime known as collective punishment. This includes demolishing the homes of suspected Hamas militants, thus rendering their families homeless, as well as killing civilians in these buildings. During Operation Protective Edge alone, Amnesty International reported that “more than 18,000 homes were destroyed or damaged beyond repair”.
The prosecutor would also be likely to investigate Palestinians over the hundreds of rockets Hamas fired indiscriminately into Israel from Gaza, which resulted in the deaths of at least six civilians.
Most substantially, Bensouda could look at the continued occupation of Palestinian territory, including both the West Bank and Gaza. Specifically this might look at Israel’s settlement policy, which appears to contravene Article 8 of the ICC’s founding Rome Statute.
Al Jazeera reports: Palestine has formally attained membership of the International Criminal Court, a move that could open the door to possible war crime indictments against Israeli officials despite uncertainty over its wider ramifications.
The accession on Wednesday is another landmark in the Palestinian diplomatic and legal international campaign, which gained steam in 2014.
The Palestinians moved to join The Hague-based court on January 2, in a process that was finalised on Wednesday, setting the scene for potential legal action.
“Palestine has and will continue to use all legitimate tools within its means in order to defend itself against Israeli colonisation and other violations of international law,” said senior Palestinian official Saeb Erakat. [Continue reading…]
Reuters: The International Criminal Court has launched an inquiry into possible war crimes in the Palestinian territories, opening a path to possible charges against Israelis or Palestinians.
In a statement on Friday, prosecutors said they would examine “in full independence and impartiality” crimes that may have occurred since June 13 last year. This allows the court to delve into the war between Israel and Hamas militants in Gaza in July-August 2014 during which more than 2,100 Palestinians and 73 Israelis were killed.
The U.S. State Department said it strongly disagreed with the move. The United States has argued that Palestine is not a state and therefore not eligible to join the ICC.