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Wednesday, September 23, 2009

Spot the Errors... the ICC, "established by the UN in 1993"...

I know I am only giving it totally undeserved publicity by posting it here, but the recent column in the Jerusalem Post by Seth Frantzman on the ICC and international justice is just too good to be true.

It presents the ICC as a UN court established in 1993, which "has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals", with no Appeals system and an American judge on the bench (did I miss the USA joining the ICC???).
It is not only inaccurate, it is also biased (the two being unfortunately frequent travel companions). It glorifies Nuremberg... which had the same flaws as supposedly identified in the ICC. The author wrongly states that the ICC has no appeal system, which was indeed the case in Nuremberg, and criticises the ICC for not doing trials by jury, when neither Nuremberg, nor even Israel in the Eichmann case provided jury trials!

Once you get over the total shock of how many factual mistakes there are in the text, it actually makes for some amusing reading. It should be standard reading in both law school and journalist students as a masterclass in what not to do...

Feel free to contact the editors of the Jpost to express your shame/anguish/sadness/joy...

Wednesday, September 2, 2009

Holding the ICC review conference in Kampala: On the edge of the cliff... and taking a step forward!

This is old news for anybody following these issues, but I've been wanting to make a few comments for some time now on the organisation of the Review Conference of the ICC in Kampala next year. This decision was taken last November by the ASP.
Uganda is one of the situations under consideration by the ICC, along with DRC, Darfur and the Central African Republic. Which means that out of the 110 countries which are party to the Rome Statute, the ASP felt the need to choose one the only 3 State parties the Prosecutor is investigating (Soudan not being a State party). This is, to say the least, a strange decision.

We have been told that this is to appease relations with Africa, in light of criticism that the ICC has focused so far exclusively on African States, despite having received communications from all over the world, including the ones that he publicly dissmissed from Venezuela and Irak. This distrust in the institution became very clear and public when the African Union adopted a resolution stating that it would not cooperate with the ICC on the Bashir Arrest Warrant until the the Security Council considered whether to defer the case under its article 16 powers. In this context, the traditional debates on the victimisation of Africa and western neo-colonialism find renewed strength.

However, this reasoning is unconvincing.
For one, it should be recalled that, except for the case of Sudan, all the situations under consideration have been self-referrals coming from the governement themselves, including Ivory Coast, who made a declaration under article 12(3) accepting the jurisdiction of the court without being a party. It seems a little disingenuine to complain afterwards. Given this situation, the real problem is not so much the exclusive focus on Africa, but the systematic refusal by the OTP to exercise his proprio motu powers to open an investigation when it hasn't be referred by a State or the Security Council.
Second of all, it is difficult to speak of neo-colonialism when the ICC, through its prosecutorial policy, is actually indirectly supporting the people in power. Indeed, both in DRC and Uganda, arrest warrants have been issued essentially against political rebel groups, not the governement. Even in CAR, the Prosecutor managed to do Kabila a favour by indicting and arresting Jean-Pierre Bemba, his strongest political opponent.
Third of all, the arguments of neo-colonialism and power struggle have some truth to them, but have been misused to the point of losing most of their credibility. It is often a fig-leaf to hide african leaders' incapacity to implement democratic reforms and more generally to allow them not to ever take responsibility for their own failings. The international community has screwed up time and again in Africa, but this is no excuse or reason for Africans to compound these errors with their own actions.

Beyond the general political dimension, and to get back to the review conference, choosing Uganda is yet again another PR slip, after the famous one where the arrest warrants where made public by the OTP in a joint press conference with Museveni. Uganda is the only situation where nobody was arrested so far. Even Sudan sent a token case to the Hague, with Abu Garda making a voluntary appearance before the Court to face three counts of war crimes (whether attacking and killing 12 AU soldiers and appropriating some material is a crime of sufficient gravity is another problem... suprisingly, the PTC declined to consider the issue... more on this as the case evolves).
The ASP should have taken a stand, in terms of perceptions of neutrality in relation to Uganda. The whole "situation" is under investigation, which means potentially government officials and even Museveni. Does the ICTY hold meetings in Karadzic's holiday home? It is not neo-colonialism to state that Museveni has contributed to the instability of the whole region since his election in 1986 (DRC, Rwanda, Sudan), that he has manipulated the ICC in the context of the ongoing civil war and that he is still trying to do so today. It is bad taste to reward him with a review conference. The ICC is on the edge of the cliff in its relation to Africa, and has decided to take a step forward...

PS: I have been told that in fact, the ASP had no other choice, because Uganda was the only candidate for the organisation. Why not organise it with the UN in that case?

PPS: Our political comments do not imply that we pass judgment on the legal choices made by the Prosecutor. There would of course be a lot to say about the choices of the OTP in its cases and charges, but let's keep this debate for another time...