The ICC Setting Its Eyes on Korea?
Posted by Xavier Rauscher in International Criminal Court, International Security Issues, Transitional Justice & International Criminal Law on 7 December 2010
From the ICC website (emphasis being, as always, mine):
ICC Prosecutor: alleged war crimes in the territory of the Republic of Korea under preliminary examination
The Office of the Prosecutor has received communications alleging that North Korean forces committed war crimes in the territory of the Republic of Korea. The Prosecutor of the ICC, Luis Moreno-Ocampo, confirmed that the Office has opened a preliminary examination to evaluate if some incidents constitute war crimes under the jurisdiction of the Court. They are:
- the shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others; and
- the sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.
The Republic of Korea has been a State Party to the Rome Statute since 13 November 2002. As such, the ICC has jurisdiction over war crimes, crimes against humanity or genocide possibly committed on the territory of the Republic of Korea or by its nationals since 1st February 2003, date on which the Statute entered into force in the Republic of Korea.
This, in combination with the recent Wikileaks regarding China’s readiness to drop the North Korean regime could make for an interesting situation to follow in Korea. The ICC as an instrument of justice, contributing to the reunification of the two Koreas?
Let’s not quite go beyond ourselves yet, but hey, why not?
UPDATE: Kevin Jon Heller over at Opinio Juris has also taken note of the news, and asked the opposite question: “Why?” This logically answering my “Why not?” KJH makes the case that the recent events in South Korea – the sinking of a South Korean warship, the Cheonan, and the shelling of Yeonpyeong Island either do not constitute a war crime (for the former) or have not reached the seriousness threshold for an ICC investigation (the latter). Therefore, he asks, why would the OTP open a preliminary examination?
My best guess is that Luis-Moreno Ocampo, the ICC Prosecutor, is following what has appeared to be his policy of opening preliminary examinations in States parties prone to forms of political violence in order to deter any further crimes from being committed. In that regard, Côte d’Ivoire and Guinea come to mind, with the mixed results we now know. We’ll have to see how it works – if it works at all – in the Korean peninsula.
Aside from that, your guess is as good as mine.
The Bemba Trial: Ersatz Justice?
Posted by Xavier Rauscher in Transitional Justice & International Criminal Law, International Criminal Court on 4 December 2010
This is a guest post by my good friend and journalist Mélanie Gouby, who is currently in the Kivus, in the Democratic Republic of the Congo. Being aware of her views on the Bemba Trial, I asked her if she would be willing to write a guest post for The International Jurist to share them and perhaps begin a discussion on the latest ICC trial. She readily accepted, and made time in what I know to be a very busy schedule to write the post in the briefest delays, for which I am very grateful.
You can read more of Mélanie Gouby’s work on her blog, Going with the Wind (Facebook page here), recently nominated in the Best New Blog category for the 2010 Aid Blog Awards. You can also follow her on Twitter @Melaniegouby.
Jean-Pierre Bemba Gombo at the ICC
The scales of the atrocities committed in central Africa over the last two decades is unmatched by any other conflict since World War Two, if only in the number of deaths. The Democratic Republic of Congo in particular has seen millions of people being massacred, raped, maimed, dying of diseases in insalubrious refugees camps and losing everything that made them human beings. Congo is an ongoing genocide. The reasons to the never-ending violence, devastating in a country already striped to the bones, are numerous. From the conveniently illegal mineral trade to the political factions trying to get their share of power, there is not one solution to end it. But there is one demand that unite all Congolese people: Justice. Read the rest of this entry »
A Late Reaction on Omar Khadr, the United States, and Child-Soldiers
Posted by Xavier Rauscher in 'War on Terror', International Security Issues, Law of Armed Conflict on 2 December 2010
I came across this interesting piece of information today: France pressed U.S. on Khadr as Ottawa stood silent: WikiLeaks. According to this article:
France’s foreign minister asked the United States to consider releasing Omar Khadr from Guantanamo Bay even though the Harper government adamantly refused to intervene, according to leaked U.S. diplomatic cables.
The memo, released by WikiLeaks, shows that Bernard Kouchner, who was French President Nicolas Sarkozy’s foreign minister until three weeks ago, personally asked U.S. Secretary of State Hillary Clinton to review the case in a meeting in February of 2009.
Oddly enough, France, a country which has, to my knowledge, no relation whatsoever with Mr. Omar Khadr, tried to plead his case before the American authorities even though the country of Mr. Khadr’s nationality, Canada, refused to.
Aside from the oddity of it all, that’s not really what made me jump to the ceiling. It turns out – and I do realize I’m about seven years late into this debate – that Mr. Khadr was “arrested” on the battlefield in Afghanistan, wounded, at age 15:
Khadr is the last Western prisoner at the Guantanamo Bay detention centre. He has been held at the American naval base since October 2002, accused of killing a U.S. soldier in Afghanistan.
The Pentagon said that after a July 2002 attack by U.S. forces on a suspected al-Qaeda compound, Khadr threw a grenade that killed one soldier, Sgt. Christopher Speer, and wounded another.
Khadr was 15 at the time. His defence team argued that their client was a child soldier and should be treated as a victim.
No kidding. I have heard of the Khadr case, like everyone else, for a long time, but bizarrely enough, that piece of information had escaped me until today. Read the rest of this entry »
The Economist on International Justice and Where It Stands
Posted by Xavier Rauscher in Transitional Justice & International Criminal Law on 27 November 2010
The Economist, one of my favorite sources for news and analysis, has a great piece on international justice in this week’s edition, that offers a very much on-the-spot assessment on the status of international criminal justice and the challenges ahead.
Although the article starts by explaining that international criminal justice, whether through the International Criminal Court or through the ad hoc tribunals (ICTY or ICTR), has never been busier than recently, it puts forward several arguments that I think are worth going over.
From The Economist Website
IGAD Summit: It Did Move to Ethiopia Because of the ICC
Posted by Xavier Rauscher in International Criminal Court on 15 November 2010
For some reason, this story keeps catching my interest. Here is the latest development (excerpt):
A Kenyan official today confirmed that the summit will take place in Addis Ababa to prevent Bashir’s presence from overshadowing the meeting.
“We don’t want to take our eyes off the ball. This is a very crucial meeting and we want to extract a commitment from the main actors in Juba and Khartoum that they will respect the Comprehensive Peace Agreement (CPA) and that they will play their role in ensuring the referendum goes ahead peacefully,” acting Foreign affairs Permanent Secretary Patrick Wamoto was quoted as saying by the ’Daily Nation’ newspaper.
Wamoto said that invitations for the summit in Addis Ababa went out in President Kibaki’s name because Kenya chairs the subcommittee on Sudan in the IGAD.
He further said Kenya would have preferred that the meeting be held in Naivasha where the North-South peace agreement was signed but the risk that Bashir’s presence would provide the main focus of international attention during the meeting forced a rethink.
Needless to say, I do not miss Moses Wetangula.
Many thanks to Uli Zumsande for sending me this via Twitter.
Previous posts on the subject:
- A Rapid Follow-Up to the al-Bashir in Kenya Saga
- The al-Bashir in Kenya Saga Continues
- An Intolerable Affront
Related reading:
Religion, Ethnicity, and Ethnic Cleansing: Discussion On Anti-Christian Violence in the Middle East
Posted by Xavier Rauscher in International Security Issues, Transitional Justice & International Criminal Law on 7 November 2010
Twitter will never cease to surprise me. How can 140-character messages be so thought-provoking and generate such pertinent and interesting debates? It’s a mystery, but it’s also a fact.
Today’s post relates to one of Daveed Gartenstein-Ross‘s tweets and the debate that followed. Here is the tweet:
Daveed was referring to Juan Cole’s story on the current violent attacks carried out against Christians in the Middle East, most notably in Iraq but also in Egypt. More specifically, Daveed was commenting Mr. Cole’s concluding paragraph:
The attacks on Christians in Iraq are serious, and hold the danger of ethnically cleansing that community. The threats against Copts, while they cannot be discounted, are less credible and may well backfire.
Juan Cole’s conclusion and Daveed’s reaction ask interesting questions for international criminal lawyers – does ethnic cleansing apply to religious group? And if it doesn’t, then does “religious” cleansing amount to genocide?
International lawyers who are familiar with the debates these notions generate within the international legal community will know what Juan Cole and Daveed Gartenstein-Ross have stepped in, namely how complex and endless these debates are, starting with the question of whether ethnic cleansing is not a form of genocide (recently shut down at least in part in the ICJ’s 2007 Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide – §190), and not to mention the general confusion between “social” and “legal” definitions of such crimes.
Without being so ambitious as to engage in these debates, I would like to clarify a certain number of these notions from a legal perspective.
Shedding Light on Tensions Between the African Union and the ICC
Posted by Xavier Rauscher in International Criminal Court, International Security Issues, Transitional Justice & International Criminal Law on 3 November 2010
The current tensions between the African Union and the International Criminal Court are often the object of international criminal lawyers’ discussions, and are particularly seized upon by skeptics and critics of the Court. For the Court and its supporters however, it has also been the subject of much reflection and concern, and this up to the highest levels (see ICC President Song’s opening remarks at the ICC-NGO biannual meetings a few weeks ago). Tensions and frustrations are flaring, and there seems to be no end to the standoff between the UN Security Council and the ICC on one side, and the African Union and Sudan on the other.
In the midst of these frictions that clearly threaten the ICC’s credibility in Africa, the Institute for Security Studies published last week an excellent Position Paper titled “An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC”, written by three African international law experts, namely Dapo Akande, Max du Plessis and Charles Chernor Jalloh.
As the title very clearly suggests, the authors give a very detailed analysis of the African Union’s position towards article 16 of the Rome Statute, in particular as it relates to the current tensions arising from the ICC’s involvement in Darfur.
Before giving some of my personal thoughts on the study’s findings, I first have to say that this report is brilliant and enlightening. It takes a very clear and rigorous approach to the raised questions on the role article 16 has to play, and makes the case for the African Union’s position without falling into the usual anti-West postcolonial political rhetoric that I find too often pollutes the debate and makes the real legal case inaudible. Although some would say there’s nothing new in the study for anyone who has followed AU-ICC relations closely, I still find that it puts a fresh perspective and offers a coherent analysis that puts the difference pieces of the puzzle in order.
I would recommend the reading of this report to anyone interested in understanding the state of ICC-AU relations, and more specifically, the legal aspects of the AU’s position towards the ICC.
I won’t summarize and go over the entire report, but briefly mention three main ideas that I think structure the paper and that particularly shed light on the ongoing conflict: Read the rest of this entry »
A Rapid Follow-Up to the al-Bashir in Kenya Saga
Posted by Xavier Rauscher in International Criminal Court, Transitional Justice & International Criminal Law on 30 October 2010
So al-Bashir did not go to Kenya today. Instead, the IGAD summit that was initially supposed to take place in Nairobi will take place instead at a date still to be determined in Addis Ababa, in Ethiopia, which is not a State Party to the Rome Statute and therefore is not bound to execute the arrest warrants. At the insistence of the United States, Security Council Resolution 1593, which referred the situation of Darfur to the International Criminal Court, makes that very clear at paragraph 2 (emphasis is mine):
2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;
Kenya did respond to Pre-Trial Chamber I’s request (see my previous post) by merely stating that there was no plan for the Sudanese President to come, which was, once the summit was moved to Ethiopia, true.
There’s not much to say here, and perhaps the saga ends here. The Pre-Trial Chamber’s “warning shot” probably did, despite (former) Kenyan Foreign Minister Wetangula’s claims, dissuade Kenya from holding the summit and receiving Bashir.
I did particularly enjoy Mr. Wetangula’s arguments in that article, not only claiming that Kenya did not push for the summit to be held in Ethiopia because of the ICC Judges’ request (to be fair, only the Kenyan authorities know for certain, but that’s very unlikely), but also said some pretty ludicrous things, such as “We have no demands from the ICC and we are not the arresting agents of the ICC so that is not an issue” (oh, really? Just imagine what people like Moses Wetangula would say if ICC investigators conducted an arrest à la Eichmann), and “ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to” (to be honest, I’m not really sure what that means).
As for the “former” in front of Foreign Minister, Mr. Wetangula resigned last Wednesday over allegations of corruption.
Is the Prosecutor of the ICC Forced to Play Dr. Jekyll and Mr. Hyde?
Posted by Xavier Rauscher in International Criminal Court, Transitional Justice & International Criminal Law on 27 October 2010
No, I am not talking about Prosecutor Luis Moreno-Ocampo in person, but of the Prosecutor of the ICC as an institution, and by extension of the entire Office of the Prosecutor (informally known as the OTP).
A recent submission by Mr. Callixte Mbarushimana’s lawyer, Mr. Nicholas Kaufman, has once more raised the issue of the neutrality of the Prosecutor, a matter that has been recurrent in submissions to the Court by Defence Counsels for at least the past six months.
Mr. Callixte Mbarushimana, an alleged leader of the Force Démocratique pour la Libération du Rwanda (FDLR), was arrested only a few weeks ago in France, in accordance with a warrant of arrest issued under seal. Mr. Mbarushimana is suspected by the International Criminal Court of crimes against humanity and war crimes allegedly committed in the Kivus in the DRC in 2009. Following his arrest, both the Registry and the OTP of the ICC issued press releases expressing satisfaction.
It is with the latter that Mr. Mbarushimana’s lawyer takes issue. Read the rest of this entry »
The al-Bashir in Kenya Saga Continues
Posted by Xavier Rauscher in International Criminal Court, Transitional Justice & International Criminal Law on 26 October 2010
Sudanese President al-Bashir present in Nairobi on August 27, 2010 for the promulgation of Kenya’s new constitution (photo by AFP)
The International Criminal Court, in a press release published today, announced that Pre-Trial Chamber I (PTC I) rendered a decision in which it requested that Kenya informs the Chamber by the 29 October about “any problem which would impede or prevent the arrest of Omar al-Bashir in the event that he visits their country on 30 October 2010.”
There has been rumors of late about a potential visit by the President of Sudan, subject to two different arrest warrants issued by the ICC for having allegedly committed war crimes, crimes against humanity and genocide in Darfur, to Kenya again in order to attend an Inter-governmental Authority for Development (IGAD) summit on Sudan, which is supposed to take place on 30 October.
The Court, which was taken by surprise and humiliated in consequence when Bashir was allowed by the Kenyan authorities to visit the country at the end of August 2010 without being arrested – despite the fact that Kenya is a State Party to the Rome Statute (and a situation country to boot) – appears this time to take all necessary precautions to make sure that the same problem does not happen twice. Read the rest of this entry »
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