Some thoughts on the Garzon lovefest: next step the ICC?

In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I've mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.

Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.

The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don't think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that thet won't be recognised by another State's courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).

More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I've read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims' groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.

Another point that is highlighted in most commentaries, is the fact that "The charges were brought by two far-right groups who fear an open investigation of the Franco-era record" (NY Times Editorial) and that "allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights". Of course I don't have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are "politically motivated" (this would require some discussion on the useful but illusory narrative that human rights are "apolitical"...). They are also trying to "intimidate" dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.

Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.

In summary:

1) Yes, amnesties for crimes against humanity might be contrary to international law, 2) yes, one can argue that Spain's amnesty law prevents the country from facing its past, but 3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues, 4) Garzon is not a political leader or human rights activist whose function is to promote change, 5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and thefore 6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and 7) if he's not happy with the existing legal framework, he should quit.

However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is "only" a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quichotte Complex, but that could be the topic of another post.With all this in mind, I'll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities.... Any thoughts on that?

ICC and Kenya: questions of prosecutorial communication

I've posted an extensive legal comment on the Invisible Blog on last week's decision at the ICC to allow the commencement of a formal investigation in Kenya. But important in these matters is also the question of communication and how the Court is perceived by various communities who have an interest in the functioning of the Court. As I mentioned in a previous post, I don't believe that the Court focusing on Africa is a sign of its neo-colonialist nature. But the fact remains that perceptions, whether right or wrong, are fundamental, especially for an institution that relies so heavily on governmental and non-governmental cooperation for its daily operation.
In this context, it is interesting to look at the press conference held by the Prosecutor the day after the decision.  Mr. Ocampo has once again shown his capacity to express himself in a clear and synthetic way, with strong Orwellian statements aimed at striking our hearts and minds. Here's one example:

The judges decided. There will be justice in Kenya. To contribute to the prevention of crimes during the next election we must proceed promptly. We will. There is a list of 20 suspects, but it is not binding. We envision at least two cases against one to three persons in each case. We will focus on those most responsible according to the evidence that will be impartially collected. We aim to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.

On the content, there is nothing "decided" yet, the judges just allowed the commencement of a formal investigation. There have been no indictments, no arrest warrants or confirmation of charges and I would be surprised if anything notable happened in the next 18 months before the next election.

But for the purposes of this post, I'd like to focus on the form. It just seems incomprehensible that the Prosecutor of an international Court express himself in such a telegraphic fashion. Mr. Ocampo also appears in a video produced by the Hauser center where he reproduces exactly the same way of conveying ideas. And the example I give earlier does not show that he actually repeats some of sentences throughout the statement, to increase their impact...
I don't know why he believes he should express himself like this. The statement seems to be perfectly tailored for an audience that seems to be perceived as incapable of comprehending sentences longer that 5 words (Human Rights activists and Africans?...). I'm a little reluctant to attribute such thoughts to Prosecutor Ocampo, but one can't help feeling patronized when being spoken to like a child. And if it's not based on what he perceives to be what people want to hear, I don't really see any other explanation for such absence of effort in drafting a statement. Ok. We get it. Justice good. Criminals bad.

More importantly, this is not just an issue of the Prosecutor. He is also the most visible figure of the ICC. He represents the Court when he travels abroad or announces new investigations and cases. Critics of the ICC in past years invariably focus on the Prosecutor and I believe that the capacity of the Court depends, and will depend in the future on how the Prosecutor conveys his ideas to the communities whose help the ICC as a whole requires. Too often, Mr. Ocampo seems to act as a spokesperson of the Court and of the general "interests of justice". That is not his function. He is a prosecutor whose role is to gather legal evidence of the commission of crimes and provide both incriminating and exonerating facts against a defendant. His statements, both in form and in content, go beyond this by portraying him as a avenger of wrongs, on a crusade against crime, which reflects badly on the ICC (see, among other examples, Ocampo's recent "Bashir is Hitler" comment). Indeed, the ICC is but one institution in the general international framework for the advancement of international peace and security, and Mr Ocampo is but one keg of this institution. A perception of arrogance (whether real or not is not the question) on the part of the most public figure of the ICC can only be a hindrance for its ultimate success.

Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 2

Question 4: The increased dissatisfaction with the ICC from the African Union seems to be based largely on the al-Bashir indictment (please correct me if you think I’m wrong). Some ICC advocates might say that this is merely a sign of African despots guarding their future impunity, and thus, the AU criticism actually shows that the ICC is heading in the right direction – that is, going after ‘the big fish’. Do you agree with this? Also, should one differentiate between support from African leaders and support from the civil society in this regard, or do you think that disappointment with the ICC is widespread in Africa?

I think I’ve broadly answered this question within my previous answers. You are right in considering that the dissatisfaction with the ICC in Africa is largely due to the Bashir arrest warrant which has made other African leaders a little weary of ICC intervention in their affairs, without their consent. As for this meaning that the ICC is going in the right direction, I told you before how skeptical I am of the “big fish” approach, despite its apparent appeal. If you really want my opinion on Darfur, I have exposed part of it in an opinion on the Hague Justice Portal, where I comment on the recent Bashir decision. I actually have my doubts, both in international law and from a policy point of view, of the Prosecutor over-insistence on the genocide charge and his reading of the political situation in Darfur. But should the prosecutor have to “read” political situations? I put some general remarks on this at the end of question 5.

On the complexity of African support for the ICC, I mentioned previously the variety of actors involved who will all have different reasons to be dissatisfied or satisfied with the court, so I think you have a good intuition in asking this question.

Question 5: What could the ICC do to regain some of the legitimacy that it appears to have lost in Africa? (Someone has suggested that the court should expand its focus beyond Africa – might this be helpful?)

Again, I have already started to answer your question in my previous answers. Legitimacy is not this monolithic object that an institution possesses or doesn’t possess. The question makes no sense as a general question. The answer depends on who you are trying to be legitimate to. For a lot of Human Rights activists, the question of Africa is irrelevant. What constitutes the legitimacy of the court is whether it is prosecuting the crimes that these activists consider as important, be that child soldiers, or forced marriage. The same is true for victims of crimes. Generally, the Court will always be “legitimate” to some and “illegitimate” to others, depending on each person’s or group’s agenda.

Linked to “legitimacy” is the question of expectations. Depending on your expectations, your disappointment will be more or less strong. And I think this is the real question that runs through all your other questions. What are the expectations of the court, and are those expectations legitimate? In my opinion, in my cases they are actually not, and this is where perception problems arise. Indeed, fundamentally, this is a Criminal Court, not an actor in peace negotiations, not primarily a “reconciler” or a granter of reparations to victims. Of course, I’m not naïve, politics are everywhere. But it is totally different to acknowledge that the ICC is one actor in a complex international political scene, and another to want to “import” international politics within the workings of the court. For example, is it really the role of the court to prosecute both sides to a conflict? I’m not sure. More broadly, should the situations investigated be equally distributed across the globe? Again, I don’t think so. Defenders of the ICC have created in my opinion too many and too high expectations of what the court is and what is should and can do, and for me this, correcting these incorrect perceptions  is the first place to start before dealing with the actual question of legitimacy.

Of course, moving back to more pragmatic considerations, and I’m sorry if my previous remarks are too theoretical for the purposes of your article, if the ICC does move to other parts of the world, it will obviously help its case in relation to this criticism. And as I mentioned before, this could happen both in Columbia and in Gaza. But one musn’t forget one important thing: the prosecutor is dependent on the fact that States must have signed and ratified the Statute. And the fact remains that the African continent contains, after Europe, the biggest number of State parties, and there are indeed a lot of crimes being committed there that are within the jurisdiction of the court. Other situations in the world would require a Security Council referral, but this is beyond prosecutorial policy and the power of the ICC as an institution. It is not really fair that the ICC should receive the criticism that should be aimed in fact the at the Security Council.

Question 6: The question of crimes of aggression is up for debate later this year. According to the Daily Telegraph, there has been talk in Britain about whether an agreement upon this crime opens the possibility of an indictment of Tony Blair. I know it is probably unlikely that an agreement would have retroactive effects, but even leaving that aside, is it not unrealistic that we will ever see Western leaders appear before the ICC (perhaps this also goes for Western soldiers, given the OTP’s refusal to go after British soldiers in Iraq)? If so, does this make the ICC vulnerable to charges of a ‘Western bias’?

In relation to aggression, you are right to point out that even  if there is an agreement on the definition at the Review Conference in Kampala later this year, it will in any case not apply retroactively.

As for the likelihood of seeing western leaders and soldiers being prosecuted at the ICC, you are probably right. But again, I’m not convinced about the “western bias” argument. The Iraq situation is quite specific, and there is no doubt (in my opinion) that the invasion of the country by the US and UK is an aggression under international law, and that specific war crimes have been committed. But most situations where western soldiers are involved are less ambiguous humanitarian or UN operations. There are often isolated cases of war crimes, but rarely the widespread situations of crimes that we all expect the ICC to deal with. Calling the fact that the ICC will more likely prosecute a perpetrator of crimes against humanity in Africa rather than a western soldier who committed a rape a “western bias” is just misplaced political correctness. Moreover, soldiers of western states are more likely to be prosecuted nationally, thus triggering the principle of complementarity. But it is totally disingenuine to use legitimate outrage about Irak to generalize on “western bias”. The fact is that in most cases, the widespread and systematic crimes that affect world peace will not be committed by western leaders and western soldiers.

Again, there is the specific situation of Irak and you mention the Prosecutor refusing to prosecute british soldiers. But this decision does make sense in the context of the ICC. For one, for reasons of jurisdiction, the prosecutor could not look at aggression. Second of all, he could only look at nationals of State parties, given that Irak is not a State party. With this in mind, the prosecutor did acknowledge that there was evidence of some cases of war crimes from british soldiers (based also on evidence provided by the British MoD), but that there was no evidence of a widespread commission of them by british soldiers and therefore decided not to pursue the investigation. Beyond the general issues with Irak, would it really be understandable that so much money be spent to prosecute these crimes (however reprehensible they are) when other situations legitimately deserve more attention, particularly applying the big fish theory? 

War Don Don: Raising questions about the SCSL

Last night, in the context of the Movies that Matter festival that opened in The Hague, I saw the documentary called War Don Don, which followed several actors involved in the Issa Sessay trial at the Special Court for Sierra Leone. The film was interesting in many ways, most notably in not trying to take sides.

For one, it gives an opportunity to both the defense team and the prosecutors to express their views. This allows us to see how personal such a trial can be, with one Prosecutor, David Crane, saying that he looked into Sessay's eyes and saw no soul, and the lead defense counsel, Wayne Jordash, saying how likeable Sessay was and how in other circumstances they could have been friends. Both statements can be unsettling, but I must say, and this is probably my defense bias, that I'm much more uneasy with Crane's statement, because this quasi-religious crusade of Good Vs Evil transpired in court, when he referred to Dante's inferno in his opening statement.
More generally, I tend to side with the criticism of the prosecution case of JCE that seems to strip all political motive from the actions of the RUF. The fact that the country was, and still is, a corrupt ridden place, where basic social welfare is not insured, which could explain that part of the population might legitimately want to get rid of their leaders, is generally absent from the story as told by the prosecution. Moreover, I've always been struck by the parallels in narrative between Sierra Leone and Rwanda. Indeed, the story of greed and power grabbing as sold to us by the SCSL, with Foday Sankho being an outsider financed by a foreign head of state, Charles Taylor, can very well apply to Kagame and Museveni. But the genocide that occurred in Rwanda has been clouding the issue, which means that while Kagame and Museveni are in power and will probably never face trial for having destabilised the whole region for so long, Foday Sankho died in custody and Charles Taylor is currently in the UN Detention center in the Hague...

Another issue raised in the movie is the question of the rights of the defense. I've never worked at the the SCSL, but everybody i've met from the institution and a lot of the decisions i've read so far seem to show that the legal reasoning is often sloppy and doesn't give a very positive image of the Court's capacity to render justice in a satisfying way. As pointed out by Jordash at one point, what is even more worrying is the institution's incapacity to reflect on its own flaws...

The question of Peace and Justice is also present in the documentary. How much credit should Sessay have received for enacting the disarmament of the RUF after Sankho's death? Apparently, he got none and is going to spend most of the rest of his life in jail. What message does it send to future negotiators? Should they not sign a peace treaty, given that they will end up in court anyway? The question arose at the Special Court with the issue of the amnesty granted by the Lomé peace agreement. In a notably badly reasoned series of decisions, the SCSL rejected its application. This was legally justified by the Statute itself, but is this extreme position of the international legal community against amnesties really politically sound (as well as not necessarily being legally so absolutely clear, as I argue in an upcoming publication)?

Another issue is the question of the goals of international justice. One example is the opening statement by the President of the Chamber who starts by saying that the tribunal is there for "justice for victims and reconciliation". I find that quite shocking. That the moral background of international tribunals is broader societal aims is one thing. That such a goal is the only statement made during the opening line of the trial itself by the presiding judge is another. Trial transcripts of international trials are full of these examples.
Another example, at several moments in the film, the question of truth is mentioned. Jordash regrets that the way the judges conducted the trial did not lead to truth, except if the defense team does "a good job". Later, he denounces the arrogance of people from the outside wanting to tell a population about its own history. During the debate after the film, I asked him if a criminal trial should at all be about the "truth". It should be about the innocence or guilt of an individual in an adversarial system that cannot be tailored for establishing a neutral historical truth. This idea is an illusion of the transitional justice field and allegedly justifies the right of victims to get a trial.

Which leads me to the last interesting aspect. The film shows interviews of Sierra Leonians which illustrate the difficulty in identifying exactly what the victims want and how they feel. One man wishes Sessay to spend the rest of his life in jail, while one woman calls for forgiveness. This highlights one fallacy of debates in the field of international criminal justice, that there is this monolithic discourse of Victims who would all want the same thing: international prosecutions. This is a handy argument, because it takes the moral high ground and portrays any doubter as a cynical cold-hearted person. But ultimately, it does not really help in advancing the resolution of the difficult issues surrounding the implementation of international justice.

Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 1

I gave a lecture last night at the Grotius Center on the Lebanese Special Court (more on this some other time) where my blog was mentioned as being updated at least weekly! So I have no other choice than to make this a reality...
I wanted to share with you an email Q&A session I did with a researcher in ICL on the relationship between the ICC and Africa. There were 6 questions, so I'll post 3 today and 3 later. Please comment at will!

Question 1: There seems to be an increasing agreement among scholars that the ICC has an ‘image problem’ on its hands when it comes to its involvement in African states. Obviously, the crudest critique that has been leveled at the Court and the Office of the Prosecutor is that it’s a neo-colonialist institution. In your opinion, does the ICC’s troubles with African nations (i.e., what seems to be a growing distrust from the African Union) amount to a mere ‘publicity’ issue, or do they have a basis in the actions and rationales of the ICC?

In relation to the « image perception » of the ICC in Africa, I think it is only partly grounded in reality. Indeed, when the ICC is accused of investigating crimes only in african countries, one musn’t forget that all, but for Darfur, are self-referrals. So it is a little disingenuine for African leaders to turn around some years later and claim that this is not what they wanted. Moreover, statistically, it’s hard to ignore the fact that Africa does host some of the most violent and active civil wars in the world, with regional dimensions that are quite important.

The Darfur case is very different because it is a Security Council referral imposed on a country without its consent. There are actually quite strong arguments in international law against this procedure, which is suprisingly little discussed in academic littérature, but I don’t think that’s the focus of your article. Politically, I really do believe that this is where the disatisfaction takes a new turn, because it seems like a unilateral imposition of international will, in a sort of « neo-colonialist » way, as you pointed out. Before that, the main point of contention in Africa had been in Uganda, where it was considered that the ICC was hindering peace. But it hadn’t led to such large-scale disatisfaction.

Another point, which is in relation to another one of your question, is that there is not one « african public opinion ».  African leaders will try and protect themselves, so will be weary of an active ICC. But there are other sources of disatisfaction. For many human rights activists, it is inaction in many situations which is considered a problem. The same is true of victim right’s advocates who consider that the reparation mechanisms and protection of victims and witnesses are insufficient. And even among the « justice » community, you will find disagreements, between the tenants of international prosecutions through the ICC, and the defenders of more flexible methods of transitional justice, such as traditional mechanisms (gacaca in Rwanda) or truth commissions.

It is therefore very difficult to « map » a unidimensional « african opinion » on the ICC. And although I’ve voiced my concerns and criticism about the ICC, especially the prosecutor, time and again, I don’t really buy this « anti-african » criticism.

Question 2: Critics of the ICC have claimed that the OTP has been politically pragmatic or even opportunistic in its choice of cases, going after rebel groups in Uganda, Congo and CAR while leaving alone government leaders – possibly due to the OTP’s dependency of state corporation during investigations, possibly because of their status as Western allies. In your opinion, are these allegations well-founded?

The cases being investigated do seem to confirm the allegation. The most clear-cut case is Uganda, where the direct rebels are being prosecuted. In CAR, the OTP even manages to indict the main political oponent of the DRC President ! in DRC, this is also largely true, even if the position of the rebel leaders vis-à-vis the governement has been more fluctuating in recent years.

The real question is whether the OTP can realistically act differently ? I don’t think that Ocampo is pandering to western interests. It is a real pragmatic position of needing the cooperation of the States in the investigation of the crimes. I believe it was necessary to proceed in this way in the early life of the ICC. What kind of criticism would the prosecutor have heard had he chosen cases impossible to investigate and prosecute? In this sense, there does seem to be an evolution in the approach of the prosecutor. In other situations he is now looking at, most notably Kenya, but also Colombia and hypothetically Gaza, the focus is on “both sides” of the conflict, therefore including the government.

Question 3: In the same vein: does the OTP run the risk of becoming a tool for the governments that have made self-referrals? One person I interviewed considered this a very real risk, and said that the ICC will only have reached a sufficient level of maturity once the OTP starts going after ‘the big fish’ (government officials etc.) like del Ponte did at the ICTY – regardless of whether these leaders are supported by the west (as Museveni, for instance, has been). Do you agree with this?

Which leads to question 3, as you rightly put it. Which is in fact two questions.

The first one relates to  self-referrals. As you know, it was not at all considered as an option or discussed during the negotiations of the Statute before and in Rome. You are right to point out that a self-referral will always carry a risk of political manipulation of the ICC by the government. When the ICC prosecutor announced the investigation in Uganda in a press conference with Museveni, it obviously sent a such a message.

However, I’m not sure that the situation is as “bad’ as described by some. In Uganda, even if the OTP has not opened any cases concerning government officials, it has been very clear in not giving in to Museveni in relation to dropping the arrest warrants in the context of the peace negotiations. More generally, as I pointed out earlier, I don’t think it was necessarily a bad strategy initially, when the court was looking for its first cases. I think that today, the OTP seems to be leaning towards more autonomy.

The second part of your question relates to case-specific prosecutorial strategy. The “big fish”/”small fish” debate has been going on as long as there have been international tribunals. The first ICTY case, Tadic, was a typical situation where the tribunal went for whatever it could get. There is no doubt that if Tadic had been arrested 10 years later, he would have been transferred for trial in a national court. 

Is the same true for the ICC? I’m not too sure, because, to say the least, the strategy of the prosecutor seems a little obscure sometimes. Of course, he didn’t open an investigation against Museveni, but he did indict the top leaders of the LRA. In CAR, Bemba is clearly a “big fish”. And the same is true in Darfur, with the indictment of Bashir. As for DRC, the policy seems to be “crime specific” rather than “person specific”. The prosecutor seems to have chosen a crime, child soldiers, and then chosen an alleged perpetrator (although he has slowly evolved towards a focus on sexual violence, which has created so many problems in the Lubanga trial, as you probably know). The same is partly true in CAR, where is a strong insistence on rape.

Personally, I must admit that I don’t have a fixed opinion on the “perfect” prosecutorial strategy.

The “big fish” theory is very popular, but I’m not sure how effective it actually is. For one, one has to wonder towards whom the court is trying to be “legitimate”. The arrest and trial of Milosevic and now Karadzic have done nothing to increase positive responses towards the ICTY in Serbia. And if any reconciliation is to happen, it will have to include the Serb population.  Linked to this is the relative notion of “big fish”. For example there is a lot of talk about Mladic not being arrested yet, while the international press never mentions that his superior is currently on trial (I’m sorry, I don’t recall his name right now… which kind of proves my point I suppose…).  Second of all, is it so illegitimate for the Prosecutor to focus on the crimes, which are labeled as the worst, rather than picking and choosing the perpetrators, which will also always be a political decision?