Wanda & Raymond

President and Co-Founder of the International Justice Project, Raymond M. Brown, discusses the role of victims at the International Criminal Court

“Raymond M. Brown, who represents victims from Darfur in the case against Sudanese President Omar al-Bashir, argues that with a trend towards assigning victim representation to the [Office of Public Counsel for Victims (OPCV)] rather than allowing people to choose their counsel, ‘The effect is to make victims less visible and less dynamic in the victim participation process.'”[...]

“At a time when the court was seeking to establish itself as a force for good and work with supporters in a range of countries, reducing the involvement of external lawyers was ‘an opportunity lost,’ he said.”[...]

“The proper use and engagement of external counsel was a way for the ICC to engage with the human rights community across the globe,” Brown said. “To the extent that the role of counsel is broadly diminished, the court is injuring itself.”

Read full article by the Institute for War and Peace Reporting (IWPR) HERE

On the Crime of Aggression and the ICC in a Quasi-Westphalian System

Ayla Prentice-Cuntz, Law & Policy
Katie Flannery, Program Director

In 1998, the negotiating parties in Rome equipped the International Criminal Court (ICC) with jurisdiction over four international crimes in its establishing treaty, the Rome Statute: crimes against humanity, war crimes, genocide, and the highly debated crime of aggression. Jurisdiction over the crime of aggression was made subject to further negotiations, since no consensus could be reached on its definition in the Rome Statute. In June 2010, the Assembly of States Parties (ASP) convened in the Ugandan capitol of Kampala in an effort to define the crime of aggression. At the conference, the States Parties adopted a definition to be included in the Rome Statute as Article 8 bis, if it is ratified by 30 States Parties and thereafter approved by a two-thirds majority vote to activate the ICC’s jurisdiction. These proposed amendments to the Rome Statute are known as the Kampala Amendments.

However, 16 years after the inclusion of the crime of aggression in the Rome Statute, States are still debating whether and how to activate the Court’s jurisdiction over it. What is it about the crime of aggression that makes it such a critical issue for the Court? Has the crime of aggression become a “lightning rod” for broader push back against the ICC?

What is the Crime of Aggression?

The Nuremburg Tribunal was the first court to prosecute for crimes against peace—the equivalent of today’s crime of aggression. In 1947, the Nuremburg Judgment decried aggression as “the supreme international crime, differing only from other crimes in that it contains within itself the accumulated evil of the whole.” Since the use of force by one State against another is generally prohibited under Article 2(4) of the UN Charter, [1] an act of aggression historically triggered State responsibility. However, the Nuremberg Tribunal’s prosecution for crimes against peace for the first time triggered individual criminal responsibility for a political or military leader for an act that otherwise normally falls under the principles of jus ad bellum—that is, the branch of international law governing the conditions under which States may legally resort to war. [2]

In 1974, the General Assembly adopted Resolution 3314, in which it defined an act of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The Kampala Amendments’ proffered definition for the acts underlying the crime of aggression at the ICC mirrors the language of Resolution 3314, and also adds the additional element that the act constitute “a manifest violation of the Charter of the United Nations.” To complete the criminal act of aggression under the Kampala Amendments, an individual must plan, prepare, or initiate one of the enumerated acts, with knowledge of the circumstances establishing the act of aggression.

Responses to the Activation of the Crime of Aggression

The crime of aggression has proved to be a sensitive topic and difficult to define, in part because the definition has political and military repercussions for States. In fact, some States reject the idea of individual criminal responsibility for aggression altogether. [3] While a considerable number of the participants at the Kampala Conference supported the criminalization of acts of aggression, concerns about the relationship between the Court and the UN Security Council, the relationship between the crime of aggression and the other existing international crimes, [4] and the elements of the proposed amendments were expressed. [5]

Politicization of the Court

One of the main arguments articulated against crime of aggression jurisdiction is that of politicization. The ICC has often found itself in situations in which it had to defend itself against accusations of being politicized. What does politicization of the Court mean? A politicized court is one that bases its decisions on States’ national interests and follows political decisions. [6] Proponents of this argument claim that the crime of aggression is “of clearly marked political character” because it cannot be committed by an individual without the State also committing an act of aggression —and the decision by States to use force is itself political. [7] States have also expressed that the Kampala Amendments could deter legitimate military and self-defense operations to protect national interests. [8]

Security Council Determination of an Act of Aggression

One of the mechanisms conferring jurisdiction on the ICC for an act of aggression is provided for in Article 15 bis of the Kampala Amendments. Effectively, this provision provides that the ICC Prosecutor may investigate an act of aggression regardless of a Security Council finding of aggression at the State level, unless the Security Council defers the investigation under Article 16. Although the Prosecutor is expected to give the Security Council an opportunity to speak first on the issue, a UNSC determination is not binding for the Court’s purposes. The Prosecutor’s ability to investigate independently from a UNSC determination concerns a number of States deeply, which is why “compromises” like the one proposed by the United States have emerged: the United States is willing to accept the Kampala Amendments if the Security Council is, in turn, vested with the power to block any prosecution of a crime of aggression. In practice, this would mean effective immunity for the five permanent members of the Security Council (United States, China, Russia, France, and Britain) due to their power to veto any decision that is harmful to themselves or their allies.

Sovereignty and Resistance to the ICC

In addition to the pointed criticism over the inclusion of the crime of aggression, the ICC has been accused of functioning with “insufficient checks and balances” and “insufficient protection against politicized prosecutions,” and of showing symptoms of Western imperialism. However, in light of the foregoing discussion, the primary arguments brought against the ICC by a number of States may be grouped together as challenges that are based on a belief in the ICC’s irreconcilable co-existence with the concept of State sovereignty.

State sovereignty is the hallmark of the international world order known as the “Westphalian system,” beginning in 1648 with the Peace of Westphalia that ended the Thirty Years’ War. The Westphalian system introduced the concept of equal, autonomous States and the presumption against external interference. This new concept guaranteed rulers the absolute authority to regulate their domestic affairs. This theory dominated the field of international relations for several centuries, and in many ways continues to exert deep influence—in fact, the Westphalian affirmation of sovereign equality is listed as the very first principle of the United Nations, in Article 2(1) of the UN Charter.

While the rejection of foreign interference in domestic affairs was once a very rigid principle, the idea of individual criminal responsibility for State officials under international law had already emerged in some form by the early twentieth century,[9] thus robbing the Westphalian system of some of its initial strictness. More examples of the paradigm’s loosened influence include the development of the universal jurisdiction doctrine and the creation of the UN Security Council. Universal jurisdiction refers to every State’s power to prosecute for international crimes regardless of any recognized linking point between the crime and the prosecuting State, and therefore threatens the principle of non-intervention in a State’s domestic affairs. Similarly, the Security Council has the power under Chapter VII of the UN Charter to authorize foreign military intervention in a State, further eroding the foundation of the Westphalian system.

Although we have clearly moved beyond a purely Westphalian world order, the system in many ways continues to exert deep influence over fears and skepticisms of international institutions. The ICC is no exception: while the idea of an international criminal tribunal in a Westphalian system is not wholly absurd (after all, the ICC is still fundamentally rooted in State sovereignty, since States had to ratify the Rome Statute in the first place to bring the Court into existence), many of the Court’s most vocal opponents have their ideological roots firmly in the Westphalian system.

The Crime of Aggression in Context of the Pushback against the ICC

Where States are nervous about the operation of the Court inside its territory and against its citizens, the ongoing debate about the crime of aggression provides an opportunity to give full voice to critiques of the ICC. This is not as acceptable in discussions on the other crimes constituting the Court’s jurisdiction, which are bolstered by stronger consensus in the international community.

The challenge with reconciling the crime of aggression and classic, Westphalian-style sovereignty is that prosecutions for aggression would permit ICC prosecution of State officials whose activities are, by implication, acts of States themselves. States want to retain their authority over domestic affairs and the exclusive power to determine when to resort to armed force. The argument of State sovereignty is not a new one. On the contrary: States have used the concept of sovereignty for centuries as an excuse to opt out of certain treaty provisions that have pushed the envelope. [10]

However, although a supranational institution like the ICC seems, prima facie, to strip States of their sovereignty, the inclusion of the crime of aggression would actually re-emphasize the traditional Westphalian norm of non-intervention and the UN Charter norm of non-use of force: by adding another possible punishment for intervening in other States’ domestic affairs, ICC jurisdiction over aggression would thus arguably deter States from—and therefore protect the general principle of non-intervention and from using unlawful force against another State.

Conclusions

The Westphalian system has become a tool to be discarded or used as a shield against the ICC by States. Nevertheless, it seems that in the name of human rights and the struggle against impunity, States have generally proved willing to depart from the rigid Westphalian system for genocide, crimes against humanity, and war crimes. However, the political and fundamentally State-centric nature of war makes the crime of aggression a harder question. Many States are reluctant to give up, even partly, their rights under the principle of sovereignty when it comes to warfare.

If, as the Nuremburg Judgment said decades ago, the crime of aggression truly does “contain[] within itself the accumulated evil of the whole,” then increased resistance from States around aggression may signal an unwillingness by some to depart from the Westphalian system in the ways necessary to properly equip an international court like the ICC.

1. Exceptions to this rule are either the use of force as self-defense under UN Charter Article 51 or an authorization by the UN Security Council under UN Charter Article 42.
2. Ian Henderson, The Contemporary Law of Targeting 3 (2009).
3. Colonel Stuart W. Risch, Hostile Outsider or Influential Insider? The United States and the International Criminal Court, 432 Army Lawyer 61, 76 (2009).
4. See, e.g., Statement by Norway (expressing that the Court should prioritize genocide, crimes against humanity, and war crimes because investigations concerning crimes of aggression would be “extremely resource consuming”) at the Kampala Conference (2010), available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP9/OR/RC-11-Annexes-ENG.pdf.
5. See, e.g., Statement by Cuba (voicing concerns that the Court would qualify the definition’s element of a “manifest violation” of the UN Charter “with the usual subjective factor”) at the Kampala Conference (2010), available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP9/OR/RC-11-Annexes-ENG.pdf.
6. Gerry Simpson, Politics, Sovereignty, Remembrance, in The Permanent International Criminal Court: Legal and Policy Issues 471, Dominic McGoldrick, Peter Rowe, & Eric Donnelly (eds.) (2004).
7. Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int’l Crim. Just. 59, 59 (2012).
8. E.g., US Delegate Intervention, ‘Into the Homestretch: Towards the Activation of the Kampala Amendments on the Crime of Aggression’ Interactive Panel Discussion on the Occasion of the Day of International Criminal Justice (2014).
9. See e.g. the International Agreement for the Suppression of White Slave Traffic 1904 or the Treaty of Versailles 1919, Article 227.
10. A good example is the reservations made to the International Court of Justice’s (ICJ) jurisdiction.

Photo credit: UN Photo/Stuart Price

Complementarity: A Brewing Battle between the African Court and ICC?

by Stephanie Ng, Law and Policy, and Katie Flannery, Program Director

Earlier this month, African leaders voted to grant sitting heads of state immunity from prosecution for war crimes, crimes against humanity, genocide, and other egregious crimes at the newly-reconfigured African Court of Justice and Human Rights. In a move that sent shockwaves throughout the global community, the African Union (AU) voted to pass an amendment that safeguards heads of states and senior officials from prosecution. The reactions of the global community have been largely negative, with many civil society groups expressing dismay at the decision. These groups have raised serious concerns about letting country leaders operate unchecked. The numerous statements released in anticipation of and reaction to the vote highlighted the fact that granting immunity to leaders is a violation of both international and domestic law, as well as the constitutive act of the African Union. But even as many have registered incredulity at this decision, the long-running battle between the AU and the International Criminal Court (ICC) foreshadowed such an action.

Members of the African Union have pushed for head of state immunity protection from prosecutions for international crimes since Sudanese President Omar al-Bashir was first indicted by the ICC in 2009. The movement gained momentum with the election of Kenyan President Uhuru Kenyatta, who is currently facing trial for crimes against humanity at the ICC. In October 2013, the AU came together to request that the UN Security Council defer of the ICC’s criminal proceedings against both Bashir and Kenyatta—a request which was denied. Some African leaders, led by Kenya, also urged a mass withdrawal from ICC membership, in a display of their discontent with ICC proceedings.

The Birth of the African Court of Justice and Human Rights

The AU’s answer to the perceived shortcomings of the ICC has found life in the African Court of Justice and Human Rights (African Court). The African Court seems to be a manifestation of AU discontent with the ICC—a discontent which has spiraled into action with the recent decision to grant immunity from prosecution for heads of states. However, initial arrangements have yet to address issues of staffing, funding, and potential jurisdictional clashes with the ICC.

While many groups and coalitions have focused on the implications of immunity at the African Court and voiced their concerns over this development, another complication has quietly emerged. The AU’s extension of immunity for heads of states highlights the tension between the African Court and the ICC, an issue that can be traced back to the principle of complementarity. Under the Rome Statute, the ICC may only assert jurisdiction when a State fails to effectively investigate and prosecute crimes. This principle recognizes State sovereignty and the primacy of the State’s power to take care of its affairs, while granting the ICC the authority to step in when the state sovereign is unable or unwilling to genuinely prosecute.

As highlighted by the issue of immunity, raised into prominence by the AU’s vote, a major problem on the horizon is the question of how to reconcile the creation of the African Court with the ICC and Rome Statute. The AU’s decision to grant immunity to heads of states is an example of how this conflict may manifest. Per the Rome Statute, officers who serve as head of state or government are not exempt from criminal responsibility or from the ICC’s jurisdiction. With the AU vote to extend exactly this immunity in its new regional tribunal that has overlapping jurisdiction, tensions emerge among state, regional, and international courts as the global community is left in a gray area, with all sides laying claim to legal power.

The African Court, the ICC, and Complementarity

The creation of regional courts like the African Court leads inevitably to a discussion of the principle of complementarity, which has long recognized the ICC as a court of last resort to investigate and prosecute matters only when national courts have failed. With two courts in the same legal universe, the question of which court claims primacy arises. It is important to note that this tension would not arise in all instances where the newly configured African Court would operate: the African Court would also have jurisdiction over transnational crimes such as terrorism, piracy, and corruption that the ICC’s jurisdiction does not reach. Potential complementarity issues therefore are only likely to arise where the two courts overlap, namely in situations where prosecutions for genocide, war crimes, and crimes against humanity are at play.

The principle of complementarity is outlined in Article 17 of the Rome Statute, which states that the Court shall determine a case is inadmissible where:

(1)(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(1)(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

ICC decisions addressing complementarity also provide additional guidance for what might be considered in a jurisdictional battle between the African Court and the ICC. While these decisions provide valuable insight on how to interpret complementarity under the normal framework, the creation of the African Court presents unforeseen complications. The Rome Statute did not anticipate that regional courts would exercise criminal jurisdiction over crimes that would otherwise be tried by the ICC; the Statute allows cases to be transferred to States that demonstrate the willingness and ability to prosecute, but makes no mention of regional courts such as the African Court.

Given the language of Article 17, this raises the question of whether regional courts carry any weight at all in the complementarity calculus. Currently, there is no existing legal basis for ICC cases to be deferred to regional courts. However, it seems likely in the current political atmosphere that the African Court will be used to launch new challenges to the ICC’s jurisdiction in Africa, so it is worthwhile to review the key elements of successful and unsuccessful cases based on complementarity and to consider the implications for the African Court.

Principles of Complementarity

The ICC expanded on the rule of Article 17(1)(a) in Prosecutor v. Lubanga, stating that determination of inadmissibility of a case requires that the ongoing proceedings “encompass both the person and the conduct which is the subject of the case before the Court.” This “same person, same conduct” rule lays the burden on countries who oppose ICC intervention to demonstrate that their criminal justice system is investigating exactly the same suspects for exactly the same crimes that are the subject of the ICC proceedings.

In November 2013, the ICC Pre-Trial Chamber I controversially ruled (and the Appeals Chamber recently affirmed) that the case against Libyan former intelligence chief Abdullah Al-Senussi be returned to Libya for prosecution, based on the principle of complementarity. Libya challenged ICC jurisdiction, arguing that the case was inadmissible because their national judicial system had been actively investigating Al-Senussi for the same charges the ICC had been—an attempt to comply with the “same person, same conduct” rule. In ultimately ruling the case against Al-Senussi inadmissible at the ICC, the Pre-Trial Chamber cited Libya’s evidence about logistical aspects of his domestic trial, courtroom and prison facilities, support of UN agencies, and proof of the domestic investigation.

Similarly, in March 2011, Kenya challenged the admissibility of the ICC’s cases against Ruto, Sang, Kenyatta and Muthaura. The government argued that the adoption of Kenya’s new constitution and a round of legal reforms provided a basis to refer the cases back to Kenya. Unlike the situation in Libya, the Pre-Trial Chamber rejected these arguments and maintained that jurisdiction remained with the ICC. The Pre-Trial Chamber determined that, even with the introduction of legal reforms, there was no evidence the Kenyan government had actually begun investigations into the cases to be tried at the ICC, effectively striking down Kenya’s claim to complementarity.

Importantly, the decision also cited Kenya’s delay in providing the Court with status reports of their purported investigation as reason to doubt that there was a valid complementarity claim. The Chamber firmly stated that judicial reform and promises of future investigations were not enough to transfer jurisdiction back to Kenya. The Pre-Trial Chamber suggested that evidence of questioning of specific witnesses, investigatory steps taken, or other proof of action against the accused might satisfy Article 17(1)(a).

Lessons for the Future?

Previous decisions by the ICC give us a sampling of considerations that may be applicable to regional courts with concurrent jurisdiction with the ICC. The decisions also foreshadow potential complications the African Court could run into as it begins to take shape and assert its power. If the ICC eventually applies its complementarity framework to regional courts like the African Court, these are a few of the main lessons to be drawn from existing ICC jurisprudence:

1. ICC cases against incumbent African heads of state would remain unaffected: As a result the “same person, same conduct” rule, it would be essentially impossible for there to be a complementarity-based challenge to an ICC prosecution of an incumbent African head of state—the most politically volatile of the ICC’s cases current caseload—since the African Court would never be able to bring the same charges against such an individual based on the same conduct as an ICC prosecution. When the AU voted to extend immunity at the African Court, perhaps out of concern that governments could not prevent an empowered tribunal from prosecuting their leaders, it also eliminated any new argument against ICC jurisdiction over this category of cases.

2. Any uncooperativeness on the part of the African Court may be interpreted as evidence of the absence of genuine prosecutions: If the anti-ICC elements of the AU do exert inappropriate political influence over the African Court, the new institution may display the same foot-dragging tactics that we have seen used as a battle tactic to date. In other words: in a worst-case scenario, if the African Court simply becomes a new tool in the AU’s ongoing confrontations with the ICC, the unjustified delays that have characterized the Kenyan cases are unlikely to carry the day in a pitch for inadmissibility of cases over which both courts have jurisdiction.

3. Complementarily will not become an issue until the new African Court is fully operational: Under the line of ICC authority that requires evidence of actual steps in an investigation, rather than the promise of future investigations, the mere possibility of an investigation someday by the African Court would be unlikely to persuade the ICC to cede jurisdiction. As with the cases from Libya and Kenya, Article 17 requires proof of an actual investigation underway in an alternate forum—not simply the availability of an alternate forum where such an investigation can proceed. In light of the steps needed to make the African Court a reality (the many votes still needed, in addition to all actions to make it operational), any argument about complementarity is likely many years down the road.

There is no question that granting immunity to heads of state and other senior officials at the African Court raises serious concerns about human rights abuses and the interests of justice for victims of mass atrocities. But beneath these problems, there are additional lurking issues deeply-rooted in the structure of the court systems and the ever present principle of complementarity. It remains to be seen what the outcome will be when the African Court inevitably goes toe-to-toe with the ICC—in one way or another.

Photo credit: UN Photo/Eskinder Debebe

Summer 2014 IJP Interns with ICC President and Judge Song Sang-Hyun

Panel Discussion on the Activation of the Kampala Amendments

IJP Interns with ICC Judge Song Sang-Hyun
IJP Interns with ICC Judge Song Sang-Hyun

Last Thursday, we celebrated International Justice Day, designated on July 17th of each year to mark last day of the negotiations of the Rome Statute in 1998. As part of our International Justice Day celebrations, the International Justice Project had the honor of attending an interactive panel discussion hosted by the Permanent Mission of the Principality of Liechtenstein focused on the activation of the Kampala Amendments on the Crime of Aggression.

The Rome Statute specifically envisions International Criminal Court (ICC) jurisdiction over the crime of aggression, but only after additional steps are taken to amend the Statute. Negotiated in 2010, the Kampala Amendments provide a definition for the crime of aggression and establish a framework for how the Court will exercise its jurisdiction over this crime. The ICC’s jurisdiction over the crime of aggression can only be activated after 2017.

In order for jurisdiction over the crime of aggression to take effect, at least 30 States Parties must ratify the Amendments. Lichtenstein, the host of the meeting, was the first country to ratify them on May 8, 2012. At the beginning of the panel, 14 States Parties had ratified the amendments. At the conclusion of the discussion, a representative of Austria announced his country’s decision to ratify the amendments as well, bringing the total to 15 ratifications—exactly half of what is needed.

The panel consisted of the Honorable Judge Sang-Hyun Song, President of the International Criminal Court; H.E. Mr. Andrej Logar, Permanent Representative of the Republic of Slovenia to the United Nations; H.E. Mr. Christian Wenaweser, Permanent Representative of the Principality of Liechtenstein to the United Nations; and Professor Beth van Shaack, Professor of Law at Santa Clara University-School of Law. The discussion was moderated by Mr. David Tolbert, President of the International Center for Transitional Justice.

Judge Song opened the discussion with a brief overview of the progress of the ICC through the years, demonstrating how the ICC transformed from a paper court to the busy, fully-functioning institution it is today. In the course of this history, Judge Song referred to the completely new paradigm of justice that the ICC represents, and described how the Court changed the way in which the world thinks in relation to atrocity crimes. He described the Kampala Amendments as an important opportunity to reaffirm international unity in this regard.

Ambassador Wenaweser gave a short summary of the Kampala Amendments, including an overview of the proposed elements of the crime. The first section of the amendments defines individual criminal liability for the crime of aggression as

the planning, preparation, initiation or execution by a person in in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

The amendments go on to define an “act of aggression,” and to discuss jurisdictional implications.

Ambassador Wenaweser addressed concerns that the inclusion of the crime of aggression could distract the Court’s attention from other serious crimes. He argued that the ICC has focused on genocide, war crimes, and crimes against humanity since its inception, which an expansion of its jurisdiction would not change. Wenaweser added that, due to the inherent difference in nature of the crime of aggression from the three crimes the Court currently has jurisdiction to prosecute, the potential for distraction is in fact minimal.

Beth Van Schaack injected a “note of caution” into the discussion, expressing relief that activation of the Kampala Amendments would be delayed until at least 2017. The extra time, she explained, provides an opportunity to further discuss issues such as the definition of “manifest violation of the UN Charter” in the crime’s definition, and which acts specifically would constitute a crime of aggression. She also voiced concern that the definition as it stands might inappropriately politicize the Court, or even deter humanitarian interventions that should fall under the Responsibility to Protect framework.

The moderator, David Tolbert, encouraged Judge Song to speak about further steps that need to be taken before the Court would be ready to prosecute instances of the crime of aggression. Judge Song specifically mentioned the growth and strengthening of the Office of the Prosecutor’s (OTP) capacity. With yet another crime under the Court’s jurisdiction, the OTP would need greater support since its workload would increase and budgetary and organizational issues would arise.

When the floor opened for discussion, representatives from Spain and Poland expressed support for the amendments. The Parliament of Poland approved the ratification bill of the Kampala Amendments on February 21, 2014, and the President of the Republic of Poland is expected to sign the depositary instrument soon. The Parliament of Spain is expected to finish its examination of the Kampala Amendments this August, with the potential for ratification in late 2014.

A representative from the United States voiced several concerns with the Kampala Amendments, such as the risk that the amendments could deter legitimate military and self-defense actions by countries, the politicization of the court, and situations where the ICC has jurisdiction over non-parties to the Rome Statute for crimes of aggression. The United States urged those present to engage in more open discussion over potential problems before making a final decision on ratification.

The discussion ended with closing remarks from the panelists, concluding the highly informative session that covered multiple facets and different viewpoints of the Kampala Amendments. Attendees received an update on the status of the ongoing ratification and implementation of the amendments and had the opportunity to speak with the panelists at the conclusion of the panel.

Panel DIscussion

Justice Matters

IJP Statement on Malaysia Airlines Flight MH17

The International Justice Project staff offers our sincerest condolences to the friends and families of the victims of the Malaysia Airlines crash. We are heartbroken to hear of the senseless loss of so many innocent individuals. We are especially saddened to hear of the loss of so many representatives from civil society, both from the public health community and otherwise. This is a bewildering and shocking loss, and our thoughts go out to all those affected. This terrible event has touched people around the world and the International Justice Project shares its passionate hope that those responsible for this needless tragedy will be brought to justice.

Nelson Mandela: Evidence of a Malleable World

By Chandler Hart-McGonigle, Digital Communications Intern

December 5, 2013, the day of Nelson Mandela’s death, was a heart-breaking day for people all around the world. Nelson Mandela was more than just a man, prisoner, protester, and leader; he became more than human when he became a symbol for peace and justice—not only among his fellow South Africans, but for all humans around the world. He showed the world that it was possible for bitter enemies to set aside their differences and compromise for the common good. For many years before his death, it was clear that Mandela was more to South Africa and the world than a former South African president. He became, even in life, a symbol of what one can achieve with true dedication to a cause, an authority whose name inevitably stood tall alongside other inspirational figures like Mahatma Gandhi and Martin Luther King Jr.

Being a larger-than-life figure, Madiba’s death was deeply felt, and it seemed at the time that it would also serve as a reminder for leaders and citizens around the world that it is possible to improve our global community. The countless tributes, biographies, and other commemorations for Mandela’s life indicated a cautious hope that things would get better—that such a loss would inspire people to be better and work harder towards creating a world we can all be proud to live in. But taking stock of the state of current crises around the world, it seems that progress has, instead, been devastatingly absent. People are still being murdered, displaced, and persecuted. Leaders are still failing their people, and justice seems farther and farther away.

Today would have been Nelson Mandela’s 96th birthday. Instead, we celebrate Mandela Day without his presence for the first time. We will all take a moment to remember the humanitarian giant and his endless list of achievements, feel the sadness of this great loss for humankind, perhaps even devote 67 minutes to helping others—and then Saturday will come and not much will be different. The feeling of the impossibility of solving the problems that we face around the world will resurface.

In the face of such persistent heartache, it is easy to feel like the work we do is meaningless, and that no matter how hard we try to facilitate change, we cannot heal the world’s wounds. But perhaps the most important lesson that we can take from Nelson Mandela’s legacy is this: you don’t have to be extraordinary to change the world. Instead, working to change the world will make you extraordinary. Nelson Mandela’s greatness was born of his principles and his desire to live by higher standards. His life exposed flaws just like any other human being, but he saw his country’s need for a leader, and he rose to the occasion. He was not perfect, but his legacy is one that has inspired millions around the world.

Mandela left South Africa a wholly changed country from 60 years ago. His role in shaping the nation and the impression he made on the world will never be forgotten, and rightly so. On this day, we should ask ourselves, “Why should Nelson Mandela be remembered?” I believe the answer is that we should remember him to celebrate his impressive legacy, but also—and most importantly—we should use his memory to remind ourselves that change is possible and that we are all capable of creating it.

UN Photo/John Isaac

Photo Credits: UN Photo/John Isaac; UN Photo/Pernaca Sudhakaran

Darfur Victim Testifies at ICC Meeting on Non-Cooperation

Last Tuesday, the Prosecutor of the International Criminal Court briefed the United Nations Security Council (UNSC) on the Situation in Darfur, as she is required to do every six months by UNSC Resolution 1593 (2005). In her statement, Madame Fatou Bensouda called for a “dramatic shift” in the Security Council’s approach to Darfur, in light of the complete failure to meet the expectations of Darfur’s victims in the past 10 years.

The following day, Prosecutor Bensouda and dozens of States Parties to the Rome Statute heard directly from one of those victims. The Court’s focal points on non-cooperation—Belgium, Uruguay, and Japan—convened a meeting of the New York Working Group on cooperation and non-cooperation in the Darfur Situation, in the hopes that Mrs. Bensouda’s UNSC briefing might provide a springboard for creativity in addressing the Court’s inability to obtain custody of Sudanese President and ICC accused Omar al-Bashir. Mrs. Bensouda and several representatives from her office attended, along with at least 40 representatives from States Parties.

In an attempt to humanize the issue of non-cooperation and to remind States Parties of exactly what is at stake for the victims of Darfur while Bashir eludes justice, the focal points invited a recognized victim of the ICC’s case against Bashir to address the participants. “H,” a recognized victim at the ICC since 2006 who is represented by the IJP’s co-founders Wanda Akin and Raymond Brown, agreed to testify. The meeting was “H”’s first-ever opportunity to participate in ICC proceedings, despite having been officially recognized nearly 10 years ago.

The Permanent Representative of Belgium, Ambassador Bénédicte Frankinet, delivered opening remarks to begin the meeting. Minister Cristina Carrión of Uruguay set the procedural context of the ICC’s involvement in Darfur, and Professor Rebecca Hamilton of Columbia Law School provided a cogent overview of the root causes of the genocide.

“H,” who had never told his story in public before, spoke for an emotional 20 minutes about the experiences that transformed him from a young man teaching in Darfur to a self-identifying “genocide survivor.” He described his life before the war began, and then told the room of the torture he endured in a “ghost house” detention center for two months at the hands of the Sudanese government. He described his escape and return to his hometown, only to discover that the Janjaweed militias were on their way. He spoke at length about the Janjaweed attack on his hometown, and the intense fear he and his family experienced as they fled the city for the Chadian border.

“H” also spoke of his losses. He spoke of his best friend, a young man he had grown up with, who was murdered by the Janjaweed as they invaded the city. He spoke of his wife and young child, who he left in the care of his father in Chad because the refugee camps were not safe from marauding Sudanese militiamen looking for young Zaghawa men who might sympathize with the cause of Darfurian equality. And he spoke of a lost way of life, which he is unsure he will ever experience again.

In closing, “H” asked the States Parties and the Prosecutor to find urgently new ways of working with the UN Security Council to finish the work begun by the international community in Darfur. He forcefully reminded the participants of how Bashir has been emboldened by the years of inaction, and pressed for the renewed commitment that the ongoing crisis requires.

Prosecutor Bensouda thanked “H” for his testimony, and stressed her agreement with his comments about Bashir feeling emboldened by the international community’s failure to arrest him. A number of representatives from States Parties voiced their thanks and support for “H”’s presentation. For many, it was their first opportunity to hear from a Darfurian about what is happening there.

In the second part of the meeting, the States Parties and the Prosecutor had a strategic exchange on how to improve instances of cooperation and non-cooperation in the Darfur Situation. “H,” his Legal Representatives Wanda Akin and Raymond Brown, and the International Justice Project all stand ready to assist.

“H” was accompanied and supported by his ICC Legal Representative, Wanda M. Akin, and the International Justice Project’s Program Director, Katie Flannery.


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

**Note: ”H” asked that we not use his real name, but gave permission to share the photo of him with Prosecutor Bensouda.

Press Release: IJP Urges Ambassador Power to Act on UNAMID

For Immediate Release

International Justice Project: Katie Flannery, (973) 375-2696
United to End Genocide: Erik Leaver, (240) 535-8725

Rights Groups Call on Ambassador Power, UN Security Council to Respond Swiftly to UNAMID Scandal in Darfur

Today, April 28, 2014, 46 activists, rights groups, and Diaspora associations delivered a letter to Ambassador Samantha Power, the U.S. Ambassador to the United Nations, urging American leadership for an immediate Security Council investigation of recent allegations against the African Union-United Nations Hybrid Operation in Darfur (UNAMID).

Information recently made available by Aicha Elbasri, the former spokesperson of UNAMID, “indicates that UNAMID has collected extensive evidence of the Government of Sudan’s involvement in serious crimes, including aerial attacks and the continued use of Janjaweed proxy militias to target civilians, in violation of UNSC Resolutions 1591 (2005) and 1556 (2004).”

UNAMID officials have allegedly withheld a great deal of collected evidence on these crimes and on the direct link between the Sudanese Government and the Janjaweed’s targeted attacks against civilians, not only from the public but also from other United Nations entities, including the Security Council.

The seriousness of these accusations and the reliability of the sources demand that they be treated with the utmost seriousness. The letter asks Ambassador Power to introduce a Security Council Resolution ordering a full investigation of Ms. Elbasri’s allegations, as well as the apparently unreported Sudanese violations of previous Security Council Resolutions.

The letter further calls for Ambassador Power to use this shocking new information as a catalyst to reevaluate the United Nations approach to Sudan, beginning with embracing a comprehensive peace plan in Sudan as a way to address the root causes of the numerous conflicts within its borders.

Peace is possible in Sudan, but it requires charting a new course. Ms. Elbasri’s courage in revealing the true nature of what is taking place in Darfur should compel Ambassador Power and the entire Security Council to break with the past, failed policies in Sudan—and chart a new course toward peace and justice. It is long past time for the world’s leaders to show the people of Darfur, and all of Sudan, that they are committed to ending impunity and restoring democracy.

Read the full letter.

UN Photo/Olivier Chassot

#Right2Truth Action Page

Ready to take action?

1. Contact your representative to urge him or her to join the 100+ bipartisan cosponsors of the Sudan Peace, Security, and Accountability Act of 2013.

2. Donate $100 to fund the complete shelter, food, and transportation costs for one week for a Darfurian refugee rebuilding her life with dignity in the United States.

3. Read our blog on the need for truth and dignity, and share it with a friend!

4. Find out about BashirWatch, an international grassroots coalition dedicated to bringing President Bashir to account for his crimes in Darfur.

5. Share the video you saw above on your Facebook and Twitter accounts. Help spread the word!

Truth and Dignity: Two Sides of Justice

by Djoye Mendy and Katie Flannery

“The right to the truth is both an individual and a collective right. Each victim has the right to know the truth about violations against them, but the truth also has to be told more widely as a safeguard to prevent violations from happening again.” UN Secretary-General Ban Ki-moon

In 2006, the United Nations confirmed that people have the right to know the truth about gross human rights violations and serious violations of human rights law. This right is linked to governments’ duties and obligations to protect and guarantee human rights, to conduct effective investigations, and to guarantee effective remedy and reparations. In December 2010, in a bid to promote human rights, the UN proclaimed March 24 as the “International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims.” The purpose of the Day is, among other things, to honor of the memory of victims of gross human rights violations; promote the importance of the right to truth and justice; and to pay tribute to those who have lost their lives in the struggle to protect human rights.

In 2009, the Office of the UN High Commissioner for Human Rights released a report on the Right to the Truth, which identified best practices for the effective implementation of this right—and in particular, practices relating to archives and records concerning gross violations of human rights, and programs on the protection of witnesses and other persons involved in trials connected with such violations.

The year 2009 was also crucial for international criminal justice. On March 4, 2009, Sudanese President Omar al Bashir became the first sitting president to be charged by the International Criminal Court (ICC), when it issued the first of two arrest warrants against him for directing a campaign of mass killing, rape, and pillage against civilians in Darfur. Through victim participation, the ICC provides an opportunity for victims of these horrific crimes to assist in establishing the truth and seeking justice, in partnership with the international community.

Despite this ongoing and shameful decade of genocide, the government of Sudan has not surrendered any suspects to the ICC and remains the paymaster of gross violations of human rights in Darfur and throughout Sudan.

Truth and Dignity in Darfur

Dignity entails more than physical well-being; it demands respect for the whole person, including the values and beliefs of individuals and affected communities. Without dignity, none of the protections of the various legal human rights mechanisms can have real meaning, which is why the concept has held, and continues to hold, a central place in the international human rights framework. “The right to life with dignity” is reflected in the provisions of international law, and specifically human rights provisions concerning the right to life, to an adequate standard of living, and to freedom from torture or cruel, inhuman or degrading treatment or punishment.

Justice is crucial to recognizing survivors as victims—and victims as survivors. Victims of gross human rights violations are owed justice. And truth, as has been pointed out, is a precondition of true justice.

Survivors today strive to rebuild and bring dignity back into their lives. Refugees who have managed to reach safe third countries are learning new languages, finding new ways to support themselves, and reuniting with family members. Even as they build new lives, many of them remain actively tied to their home communities, and suffer alongside their loved ones when renewed attacks bring new displacement and loss. It is a mockery of this incredible strength and remarkable dignity to allow the ongoing impunity in Sudan to continue. Indeed, it is nothing short of injustice: such impunity “has ensured that perpetrators of human rights abuses have no incentive to stop and has encouraged others to commit similar abuses.”

On this International Day for the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims, we must be mindful that “[f]ighting against impunity is the job of anyone who claims to contribute to a better society… we are obliged to restore the dignity of victims by helping them find out what happened, and putting those who committed barbaric acts in their proper place in history.”

For suggestions on steps you can take to honor the dignity of the people of Darfur on this International Day, visit our #Right2Truth Action Page.

Seeking justice for victims of mass atrocities

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