Tag

ICC

Lawyers Without Borders Canada Organizes an Event on the Fight against Impunity in Mali

By | Communiqués de presse, News, Press Releases

CPIJ Co-Researcher Janine Lespérance and Abdoulaye Doucouré. (Photo by Catherine Savard)

5 December 2018 – On this first day of the 17th Assembly of State Parties (ASP) to the International Criminal Court (ICC), which takes place from 5 to 12 December 2018, in The Hague (Netherlands), CPIJ partner organization Lawyers Without Borders Canada (LWBC) organized a side-event on the fight against impunity in Mali, titled “Réconciliation et lutte contre l’impunité au Mali : un faux dilemme” (“Reconciliation and Fight against Impunity in Mali: A false dilemma”).

At the occasion of this event sponsored by Canada, who was represented by the Head of Canada’s Delegation at the ASP, Mr. Alan Kessel, CPIJ Co-Researcher Janine Lespérance moderated a panel composed of Mr. Abdoulaye Doucouré, LWBC Transitional Justice Coordinator in Mali, and Ms. Bouaré Bintou Founé Samaké, President of the Malian division of the organization Women in Law and Development in Africa.

The event discussed the possibility for victims of international crimes perpetrated in Mali since the start of the armed conflict in 2012 to have access justice, thus deepening the reflection initiated at the occasion of a side-event organized during the 17th ASP in 2017.

Alan Kessel presented introductive remarks. (Photo by Catherine Savard)

After introductive remarks were presented by Mr. Kessel, discussions critically explored the draft law on “national understanding”, which was recently transmitted to the Malian National Assembly to be discussed on 13 December 2018. LWBC declared itself highly concerned by the possible adoption of this bill, which would open the door for an amnesty to be granted to authors of serious crimes perpetrated during the armed conflict which raged in this country.

The permanent insecurity that prevails in many northern communities and that has recently spread in the center of Mali was identified as a major hindrance for victims to have access to justice. It was further highlighted that sexual and gender-based violence are rampant and rarely ever denounced.

(Photo by Érick Sullivan)

Since 2015, LWBC has been active in Mali in the context of the project “Justice, prévention et réconciliation” (“Justice, Prevention and Reconciliation” or JUPREC). This project is made possible thanks to Global Affairs Canada’s financial support, and is implemented by LWBC in consortium with the Centre d’étude et de coopération internationale and the École nationale d’administration publique.

The Canadian Partnership for International Justice is attending the 17th Assembly of State Parties to the International Criminal Court

By | News, Press Releases, Student News

3 December 2018 – For the third year in a row, the Canadian Partnership for International Justice (CPIJ) is represented at the Assembly of States Parties (ASP) to the International Criminal Court (ICC) by a delegation of practitioners, academics and students from various NGOs and academic institutions.

Each year, the ASP is one of the most important events in the field of international justice. Representatives of states that have ratified or acceded to the Rome Statute gather to take crucial decisions on issues the Court is currently facing. Many ICC senior officials are also attending, and many side-events are organized by civil society organizations to stimulate the discussions and strive to find solutions to outstanding issues that hamper the project envisioned in the Rome Statute.

The 17th ASP, held from 5 to 12 December 2018 at the World Forum in The Hague (The Netherlands), will allow students to deepen their knowledge of the most important issues pertaining to international justice while living a real experience of judicial diplomacy. This event is an amazing opportunity for CPIJ to train a cohort of students who are educated, engaged and networked in international and transnational law. Through blogging and live twitting, our delegates will train and educate diverse Canadian audiences about the challenges, pitfalls and potential of the system of international justice, and about the priorities to improve the system. Thanks to their experience and knowledge, the delegation will contribute to enhancing Canada’s role as a global leader in the fight against impunity.

Follow CPIJ’s Twitter and Facebook accounts and watch for the delegates’ posts on CPIJ partners’ platforms (IntLawGrrls, Quid Justitiae, Justice in Conflict, Blogue d’Avocats sans frontières CanadaPKI Global Justice Journal) to learn more about this year’s specific issues and to get news and updates.

 

Who is attending the ASP this year?

Academics

Practitioners

Students

Gabriel Boisvert

Gabriel Boisvert is a Canadian lawyer who practised criminal defense before trial and appeal courts in Quebec between 2014 and 2017. Having a strong interest in international criminal law, he chose to resume his studies at Université Laval to pursue a master’s degree in international and transnational law (LL.M) under Professor Fannie Lafontaine. Gabriel participated to the works of the International Criminal and Humanitarian Law Clinic of Université Laval and joined the Canada Research Chair on International Criminal Justice and Human Rights as co-coordinator. Also involved as a board member of the NGO SHOUT Canada, Gabriel contributes to the organization of the Reflections on Rwanda (RoR) program, which is an educational program in Rwanda to learn about the impact of genocide and the processes of restorative justice and reconciliation. Gabriel’s main research interest is international criminal jurisdictions and their cooperation with states and international organizations.

Moussa Bienvenu Haba

Moussa Bienvenu Haba is a doctoral student at Université Laval. His thesis focuses on the role of hybrid tribunals in the peacebuilding process in transitional countries. Mr. Haba holds a master’s degree in Private Law (Conakry University) and a master’s degree in International Law (Université Laval).

During his studies at Université Laval, Mr. Haba participated in many projects within the International Criminal and Humanitarian Law Clinic and the Canada Research Chair on International Criminal Law and Human Rights. He was a research and teaching assistant in international criminal law and refugee law. He is currently lecturer in international criminal procedure and evidence.

Melisa N. Handl (@HandlMelisa)

Melisa Handl is an Argentine lawyer and a Ph.D. student in the Faculty of Law at the University of Ottawa (Canada). Her research interests include international law, gender, development, qualitative research, and international human rights. Melisa holds a Master of Arts in International Affairs with specialization in “International Institutions and Global Governance” from the Norman Paterson School of International Affairs (Canada). Melisa also holds a Master of Laws from the University of Ottawa with a specialization in Human Rights and Social Justice. She is currently investigating whether conditional cash transfers are contributing to greater gender equality in the context of Argentina, and intends to connect a top-down approach to international human rights with the experiences of actual beneficiary women on the ground. She is part of a Canada-Mexico project which involves training Mexican judges on issues related to international human rights and is in charge of the “Violence Against Women and Gender” workshop. She is working with Professor and CPIJ Co-Researcher Penelope Simons on corporate accountability, gender, and the extractive industry and specifically, writing about gendering the United Nations Guiding Principles on Business and Human Rights from a socio-legal feminist methodology.

Sarah Nimigan

Sarah Nimigan is a Ph.D. candidate in the Department of Political Science at the University of Western Ontario with specialization in Transitional Justice and Post-Conflict Reconstruction. Her dissertation addresses the problems facing the International Criminal Court through the African experience. More specifically, her research traces the active role taken by various African delegations in negotiating the Rome Statute from 1993-1998 to better explain and situate the criticisms levied against the ICC today. She holds an LL.M. in International Human Rights Law from the University of Exeter (United Kingdom) and a Master of Arts in Political Science with specialization in Migration and Ethnic Relations. Both her LL.M. and M.A. degrees focused on sexual and gender-based crimes within the contexts of international criminal law and transitional justice.

Marie Prigent (@MariePrigent)

Marie Prigent holds a master’s degree of International and Comparative Law from Toulouse 1 Capitole University in France. She studied international law abroad, at the Complutense University of Madrid and Université Laval in Quebec. She then joined Université Laval’s International Criminal and Humanitarian Law Clinic in January 2018 and continues her work as a research intern. Her researches focused on transitional justice, amnesty laws, victims’ participation and rights of human rights defenders. Her fields of interest include criminal, humanitarian and human rights law. She will prepare Quebec bar exam from January 2019.

 

Marilynn Rubayika (@Rubayikam)

Marilynn Rubayika earned a Juris Doctor and a Licence in Civil Law from the University of Ottawa in 2017. She is the 2018-2019 Public Interest Articling Fellow at the Canadian Centre for International Justice. Her main interests are the victims’ participation regime at the International Criminal Court and questions related to sexual and gender-based violence. She has, in her most recent experiences, worked directly with victims of international crimes.

Previously, Marilynn completed legal internships at the International Humanitarian Law department of the Canadian Red Cross and at the Crimes Against Humanity and War Crimes Section of the Canadian Department of Justice. She also volunteered for the Philippe Kirsch Institute and completed a volunteer legal advisor mandate with Lawyers Without Borders Canada in Ivory Coast.

Marie-Laure Tapp (@MarieLaure_Tapp)

Marie-Laure Tapp is a lawyer and LL.M. Candidate (International and Transnational Law) at Université Laval. She holds a B.A. in Political Science and International Development from McGill University and degrees in Civil Law and Common Law, also from McGill University. She completed her articles at the International Committee of the Red Cross (ICRC) in Geneva and subsequently worked as a volunteer legal advisor in Mali with Lawyers Without Borders Canada and in Nepal with the International Institute for Democracy and Electoral Assistance. She was involved with Université Laval’s International Criminal and Humanitarian Law Clinic and works as a translator and team supervisor for the translation of the Updated Commentary on the Second Geneva Convention, a partnership between Université Laval and the ICRC Delegation in Paris. Her main areas of interest (which are numerous) are the respect and dissemination of international humanitarian law and, on the international criminal law front, the principle of complementarity and universal jurisdiction. She is also very much interested in human rights investigation and advocacy. She has also been involved in several human rights education and access to justice initiatives over the past 10 years.

Ariel Wheway

Ariel is a 4th  year student in the joint Juris Doctor and Masters of Arts in International Affairs program at the University of Ottawa Faculty of Law and the Norman Patterson School of International Affairs at Carleton University. Her studies have focused on international human rights law and international criminal law. She is currently a member of the ICC moot team at the University of Ottawa and is conducting research for the UN Special Rapporteur on the Right to Adequate Housing.

 

Coordination

Érick Sullivan (@2_ErickSullivan)

Érick Sullivan is a lawyer, the Deputy Director of the International Criminal and Humanitarian Law Clinic(Clinic), Coordinator of the Canadian Partnership for International Justice, co-editor of the blog Quid Justitiaeand member of the Canadian Council on International Law’s Board of Directors. Holder of a Bachelor of Law (2009), he was recruited in 2010 by the Clinic as an assistant and was later appointed Deputy Director in 2012. As such, he was involved in more than 50 projects in many areas of law and carried out by international organizations, non-governmental organizations (NGOs), States and lawyers. He notably co-directed a mapping of human rights violations completed by Avocats sans frontières Canadain support of the Malian Truth and Reconciliation Commission. Since 2010, he has supervised the researches of more than 300 students and has reviewed hundreds of papers. He also contributed in different ways to numerous scientific events, such as the workshop on collaboration between national prosecuting authorities and NGOsin the prosecution of international crimes, which he co-organized in March 2018 in Ottawa.

Catherine Savard (@c_savard1)

Catherine Savard is Assistant Coordinator of the Canadian Partnership for International Justiceand member of the Canada Research Chair on International Criminal Justice and Human Rights. She currently pursues a master’s degree in international law at Université Laval under the supervision of Prof. Fannie Lafontaine. Her research interests are international criminal, humanitarian and human rights law. She recently represented her university at the Jean-Pictet international humanitarian law competitionand will represent it again in 2019 the context of the Charles-Rousseau public international law competition. She has also been very involved with the Université Laval’s International Criminal and Humanitarian Law Clinic, for which she has completed nearly 10 research mandates. Her research focus on modes of liability in international criminal law, sexual and gender-based violence and cultural genocide of indigenous peoples in Canada.

Neighbors Refer Venezuela to Criminal Court in ‘Historic’ Rebuke

By | CPIJ in the Media, News | No Comments

By Ernesto Londoño and Marlise Simons | The New York Times

President Nicolás Maduro, center, in Caracas this week. The crisis in Venezuela “demands collective action,” the president of Peru said. (Photo Miraflores Press Office)

 

Five Latin American countries and Canada on Wednesday urged the International Criminal Court to consider prosecuting senior officials in Venezuela for extensive human rights abuses, the first time that member nations have referred another member to the tribunal.

In a region where leaders tend to avoid criticizing one another publicly, the step by Argentina, Chile, Colombia, Paraguay and Peru represented an extraordinary rebuke of President Nicolás Maduro.

Governments in the region have become increasingly alarmed about the economic and political crisis in Venezuela. Acute shortages of food and medicine have prompted millions to migrate, largely to neighboring countries.

The referral gives The Hague-based tribunal a renewed sense of urgency to investigate abuses in Venezuela.

“The leaders of these six countries have taken a historic step today, unprecedented in the history of the Americas, creating a crucial milestone in the interests of justice, accountability, non-repetition and reparation to the victims of the Venezuelan dictatorship,” said Luis Almagro, the secretary general of the Organization of American States, in a statement.

Here are some facts about the referral to the international court and what it could mean for Venezuela:

Why did the other countries refer Venezuela?

Venezuelan migrants walking to Colombia this month. (Photo by Federico Rios Escobar for The New York Times)

They’re overwhelmed by the unrelenting exodus of Venezuelans, which has accelerated amid soaring inflation. The United Nations estimates that 1.6 million Venezuelans have left since 2015 and that as many as 1.8 million could migrate this year.

In recent years Venezuela’s neighbors have had an open-door policy, but it has come at a political cost as communities feel increasingly besieged by migrants, many of whom arrive with no savings and with serious health problems.

“The magnitude of this exodus is unprecedented in our region,” President Martín Vizcarra of Peru told the United Nations General Assembly on Tuesday, noting that his country has taken in some 450,000 Venezuelans. “It demands collective action by the international community.”

How unusual is this step?

“The magnitude of this exodus is unprecedented in our region,” President Martín Vizcarra of Peru told the United Nations General Assembly. (Photo by Richard Drew/Associated Press)

Highly. The court has never opened a case brought by one government against another, and governments in Latin America for decades have adhered to an unspoken rule: Stay out of the messy internal affairs of neighbors. But several have begun to see Venezuela’s economic unraveling as a growing regional threat. The tide of migrants has led to spikes in crime and strained the health and education systems of other countries.

“This is a significant, historic event,” said Fernando Cutz, a former senior White House official who worked on Latin America policy in the Obama and Trump administrations. “Ten years ago, it would have been impossible to think of the region turning on one of its own.”

What’s the gist of the referral?

Protesters during clashes with the Venezuelan police last year. (Photo Meridith Kohut for The New York Times)

In a letter signed by the six heads of state this week in New York, on the margins of the United Nations General Assembly, the countries asked the international court’s top prosecutor, Fatou Bensouda, to investigate human rights abuses committed by the Venezuelan government since February 2014. During that month, the government used harsh tactics to clamp down on mass protests.

The letter notes that human rights experts have documented abuses that include arbitrary detentions, extrajudicial killings, torture and sexual crimes.

Isn’t the International Criminal Court already investigating Venezuela?

“Hunger!” and “Dictatorship” are scrawled on a security door in Caracas. (Photo by Meridith Kohut for The New York Times)

Yes. Ms. Bensouda announced in February that her office had launched a “preliminary examination” into allegations of large-scale human rights abuses in Venezuela. That step can lead to a formal investigation and criminal charges.

The court said it is investigating allegations that security personnel have used excessive force against demonstrators, detained members of the political opposition and subjected prisoners to “serious abuse.”

The court was established in 2002 as a tribunal of last resort for war crimes, genocide and crimes against humanity. Since its inception, it has indicted only Africans and has won only a handful of convictions.

How long will an investigation take?

Venezuela issued new currency in response to runaway inflation. People waited in long lines last month in Caracas to get the bills. (Photo Meridith Kohut for The New York Times)

It’s unclear. Court investigations have tended to last for years, and experts said it would be highly unlikely for charges to be filed any time soon.

“Time frames at the I.C.C. are measured in years, not months,” said Todd Buchwald, a former senior State Department official who oversaw global criminal justice matters from 2015 to 2017.

But the sense of urgency conveyed by neighboring countries may prompt the court to make the case a priority.

People visiting a so-called red spot in Caracas, where voters presented a special identity card to receive boxes of food. (Photo Meridith Kohut for The New York Times)

“It does telegraph to the prosecutor these states are keen to provide access to people who have fled” and may have relevant information, said Joanna Harrington, a law professor at the University of Alberta who specializes in international criminal law.

Several of Venezuela’s neighbors have sought to isolate Mr. Maduro’s government as he has become increasingly authoritarian in recent years.

They also have tried to create rifts within Venezuela’s ruling party.

The threat of being prosecuted in The Hague “will most likely galvanize those in the inner circle to pull together,” said Mr. Cutz, the former White House official. But it could prompt others on the periphery of power to turn on the government, he added

President Trump described the crisis in Venezuela as a “human tragedy,” but he also challenged the authority of the International Criminal Court. (Photo Chang W. Lee/The New York Times)

Washington has long called on Latin American leaders to take a harder line against Venezuela. But Wednesday’s referral to the court is not a move the Trump administration can endorse.

During his speech to the United Nations General Assembly on Tuesday, President Trump described the crisis in Venezuela as a “human tragedy.” But in the same address he also lashed out at the International Criminal Court, saying that “as far as America is concerned,” the court has “no legitimacy and no authority.”

This echoes comments made this month by John R. Bolton, the national security adviser, who called the court “ineffective, unaccountable, and indeed, outright dangerous.” Mr. Bolton’s criticism was in response to a preliminary review of allegations of abuses in Afghanistan, which may include acts committed by American military or intelligence personnel.

The State Department would not specify whether the United States supports efforts to hold Venezuelan officials accountable at The Hague.

“We encourage thorough and transparent investigations into all credible reports of abuses,” the State Department said in a statement. “The crisis in Venezuela will only be resolved through the restoration of democratic governance, realistic economic policies, the rule of law, and respect for fundamental human rights and freedoms.”

Source: https://www.nytimes.com/2018/09/26/world/americas/venezuela-international-criminal-court.html

A chance at justice for the Rohingya?

By | CPIJ in the Media, News | No Comments

Following Canada’s declaration that crimes against the Rohingya constitute ‘genocide,’ Payam Akhavan asks: Do the refugee camps in Bangladesh hold the key to prosecutions by the International Criminal Court?

By Payam Akhavan | OpenCanada

Kutupalong refugee camp. Photo by Yousuf Tushar.

 

26 September 2018 –“A wild elephant killed him,” an aid worker explained.

Having survived the scourge of the notorious Tatmadaw, the Myanmar military that slaughtered his people and drove them into exile, the 12-year-old boy — Shamsu Uddin — was trampled to death by the enormous beast as he slept.

Just two years ago, in 2016, Kutupalong was a wildlife refuge where endangered animals roamed freely in pristine forests. Now, it is the largest refugee camp in the world, an ocean of misery comprising some 700,000 Rohingya who have fled Myanmar’s Rakhine State to face an uncertain future in neighbouring Bangladesh. The mere existence of this city of sorrow is mute testimony to what the United Nations High Commissioner for Human Rights has described as a “textbook example of ethnic cleansing.”

As I walked through the camp in June, reflecting on the cruel irony of the boy’s fate, there were countless other children just like him, wandering in the dirt roads amidst the makeshift bamboo and tarpaulin shelters on the deforested hills they now called home. Their playful smiles masked the unspeakable horrors they had witnessed. Their experience was captured by that most potent of words, “genocide,” invoked by UN reports and, as of last week, Canadian parliamentarians alike, to condemn these monstrous atrocities. In terms of concrete action, what is most significant in the House of Commons’ September 20 motion is the call for punishment of the perpetrators before the International Criminal Court (ICC). But, as Canadian officials will no doubt see, the process to get there is long and complicated.

My visit to Kutupalong some months earlier was in pursuit of justice against seemingly impossible odds. I was there at the invitation of the Bangladesh government, gathering facts, speaking to people on the ground, trying to see what could be done. Some time before, I had hosted Bob Rae, Prime Minister Justin Trudeau’s special envoy to Myanmar, for a lecture at McGill University. In the Q&A, students had asked what Canada could do to ensure accountability. The fundamental question that emerged from those exchanges was: Does the ICC have jurisdiction over these crimes, and if so, on what basis?

The discussion was sadly an all too familiar ritual for those of us who toil in the human rights world. The vows of “never again,” the expressions of regret, the lectures on lessons learned, the condemnation of genocide, the calls for justice at The Hague; these exhausted moral mantras are soon overtaken by new abominations, and the cycle of recrimination and remorse repeats itself again and again — Bosnia, Rwanda, Congo, Darfur, Iraq, Syria, and now, Myanmar.

Places we never knew existed are now seared into our consciousness as sites of grief and rage, mourned and condemned for a time, only to be forgotten in the fleeting attention span of the news cycle. The calls for accountability after the fact may be all that we can pursue given the power realities of global politics, but what does justice mean against the overwhelming gravity of such atrocities? Is it ever possible to punish genocide? There is nothing like listening to survivors to remind us of both the inadequacy and utter necessity of struggling for whatever measure of justice can be achieved. In the case of Myanmar, that struggle takes place within the manifest constraints of that feeble court in The Hague that we invariably look to in desperation as a beacon of hope.

It is easy to despair and give up, but talking to the people in Kutupalong reminded me of the power of empathy, or rather, of how indifference makes us an accomplice to injustice. The impact of meaningful engagement is easily forgotten in our privileged corner of the world, far removed from the realities that most convincingly demonstrate the consequences of our choices. Sometimes our role models are found in the most unlikely places.

When the mass-exodus of the Rohingya began in late August 2017, the hapless survivors arrived in Bangladesh traumatized, starved and dehydrated. Many of them had terrible wounds, caused by bullets and machetes, while some had missing limbs because of land mines. There were no international relief agencies to receive them. It was the poor local farmers who took it upon themselves to help as best as they could with their meager supplies of food, clothing and medicine. Some cooked whatever rice they had and brought it to the desperate refugees in Tuk-Tuk rickshaws. Others hosted them in their modest homes. These accounts of selfless generosity were humbling. They put to shame the narcissistic currents of xenophobia and apathy in the prosperous Western world; our indifference to the suffering of others. The example of these compassionate first responders was an inspiration, a reminder that when confronted with suffering, there is no room for despondence, that we must do what we can, however inadequate it may be.

During my trip earlier this year, after meetings with the border guards and refugee agency officials, I was told that my next meeting would be with a group of women who wished to share their stories. It was with some apprehension that I entered the room, my heart racing with dread. I knew that what I was about to hear would be deeply disturbing. I also knew that I would probably be seen as the outside saviour by those desperate for hope. I was acutely aware that beyond listening with empathy, there wasn’t much I could do to heal their wounds.

Just two years earlier, I had visited the Yazidi camps in northern Iraq, listening to the heartbreaking account of two teenage sisters who had been enslaved by their ISIS captors. It reminded me of Bosnia and Rwanda in the 1990s when I worked with the UN. Across these divergent contexts, the accounts of sexual violence against women and girls were disturbingly similar; the weaponization of male narcissistic rage to humiliate, degrade and destroy. In meeting these anguished women, it was not lost on me that the Rohingya are by and large traditional Muslims, and that I found myself in their midst during the sacred month of Ramadan.

The meeting room at the Kutupalong reception centre was full of women, their faces covered by black niqabs. With only their eyes visible, it was difficult to gauge their facial expressions, but the piercing stares conveyed the enormity of their suffering. Mindful that they may not feel comfortable with a man, I didn’t pose any questions, letting them choose what they wished to share with me. I was soon surprised. In a striking display of defiance, they stood up one by one, walked towards me in sequence, and removed their head cover so I could see their face. With an astonishing dignity, they told their stories, bearing witness to the truth, an attempt to reclaim their voice, and their humanity. The horrors they conveyed were beyond words. “They threw my baby in the fire,” one of the women told me, speaking through the translator. The tears streaming from her eyes conveyed the deeper meaning of her words. It didn’t take long to notice that several of them were pregnant, visibly in their third trimester.

I confirmed later that as I had suspected, these were mostly children conceived as a result of rape. The women told me their stories because they wanted the world to know what had befallen them. They expected the UN to punish the perpetrators. I didn’t have the heart to tell them about the political cynicism that time and again left survivors with no justice. It was time for us to leave. I didn’t know how to say goodbye, what to promise them to give them a bit of hope. One of the women had an infant in her arms. I caressed his little head, smiling at his mother, trying to pretend that somehow, everything would be fine.

The author, Payam Akhavan, during his visit to the Kutupalong refugee camp. Photo by Yousuf Tushar.

Back at home, in the conference circuit of the human rights academics and activists, those of us in the business of global justice were marking the 20th anniversary of the adoption of the ICC Statute. Upon the conclusion of the Rome Diplomatic Conference in July 1998, this pivotal moment was hailed as a triumph for international law, the beginning of the end for an entrenched culture of impunity in global politics. The ICC was built on the relatively successful precedents of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), established by the UN Security Council in 1993 and 1994 respectively.

Twenty years later however, with only a handful of “small fish” convicted, the court has proved to be a disappointment to those who envisaged a robust institution with teeth. The lack of political support by the erstwhile champions of a rule-based international order — demonstrated recently by US National Security Advisor John Bolton’s scathing attack against the ICC — and the attendant resource constraints are compounded by a bureaucratized and inefficient institution that is perceived even by its most vocal supporters as being in need of a significant overhaul.

Yet, for those in pursuit of global justice, the ICC is often the only available option where, as in Myanmar, the prospect of national trials occurring is slim to none. Of course, the states with the most appalling human rights records — such as Syria and Sudan — are least wont to sign the court’s statute, because to do so invites scrutiny of political and military leaders who devise and act in furtherance of criminal policies such as “ethnic cleansing” and genocide.

Myanmar (also) does not recognize the ICC’s jurisdiction, which should not come as a surprise. The only way around this limitation is for the UN Security Council to refer a situation based on its enforcement powers under Chapter VII of the UN Charter — the basis for establishment of the ICTY and ICTR in the 1990s, and the referral of Sudan and Libya to the ICC in 2005 and 2011 respectively. In fact, Canada’s House of Commons is calling for the referral of Myanmar on this same basis. But given the spread of myopic nationalism, the consequent retreat of multilateralism, and the intensifying power struggles among the Council’s permanent members (China, France, Russia, the UK and the US) — each wielding a veto power — there is little prospect that this will happen.

This is where the location of Kutupalong is decisive for the pursuit of justice.

Unlike Myanmar, Bangladesh is a party to the ICC Statute. Thus, there it falls under ICC jurisdiction if crimes against humanity have been committed on the territory of Bangladesh. Some creative lawyering led to the conclusion that although the underlying crimes of murder, torture, rape, and wanton destruction of towns and villages occurred on the territory of Myanmar, the mass-expulsion of the Rohingya across the boundary with Bangladesh through these coercive acts qualified as the crime of “deportation,” which was in fact completed on the territory of Bangladesh. Kutupalong is not only the most significant source of witness testimony for a potential investigation; its very existence is a basis for the court’s jurisdiction, at least over some if not all of the crimes.

In fact, Myanmar’s pretext for mass-expulsion has been that the Rohingya are in fact “illegal” Bengali immigrants rather than nationals of Myanmar. Thus, in April of this year, ICC Prosecutor Fatou Bensouda made an unusual request to a pre-trial chamber, asking for an opinion as to whether the court had jurisdiction over the crime of deportation based on the territory of Bangladesh. On September 6, a decision was rendered, declaring that the court did in fact have jurisdiction over deportation (and related crimes) based on the territory of Bangladesh, and calling for an expeditious preliminary examination of the evidence with a view to an investigation.

The House of Commons’ motion welcomes this decision, which may be the only viable option given the likely failure of the UN Security Council to make a Chapter VII referral. Meanwhile, following the decision, the ICC prosecutor has declared her intention to conduct a “preliminary examination” as a prelude to a formal investigation. Given the resource constraints and problems of efficiency faced by her office, perhaps the Government of Canada should consider contributing investigative resources to expedite what could otherwise be a prolonged and time-consuming process.

It may be tempting for the cynic to dismiss these efforts as purely symbolic and ineffective. Nobody would disagree that it is far from an ideal situation where the perpetrators could be promptly arrested and prosecuted. It is noteworthy however, that Myanmar has gone to great lengths to challenge the court’s jurisdiction, issuing press statements resembling a legal brief, and even seeking to make surreptitious submissions to the court through front non-governmental organizations seeking to demonize the Rohingya as “terrorists.” There have also been official statements to the effect that Myanmar’s willingness to repatriate refugees is inconsistent with a policy of “ethnic cleansing.” It is notable that beyond deportation, the ICC decision also includes denial of the right of return of refugees as an additional crime against humanity, also based on the territory of Bangladesh. Surely, Myanmar leadership is aware that even if arrest warrants cannot be executed on its territory, the indictment of the most senior ranks of the Tatmadaw for crimes against humanity will be a significant long-term liability.

To make matters worse for Myanmar, a UN independent fact-finding mission concluded in late August not only that the crimes against the Rohingya constituted genocide, but also that six senior Tatmadaw officials were suspects. This includes the commander-in-chief of the Myanmar armed forces, Senior-General Min Aung Hlaing, and the former commander of the western region, Major-General Maung Maung Soe, who is also subject to targeted sanctions under Canada’s Special Economic Measures Act, in addition to similar EU and US lists. In fact, his recent dismissal has led to speculation that it may be linked with his international stigmatization and Myanmar’s pariah status.

It remains to be seen whether and how such naming and shaming, combined with the ICC process, will impact Myanmar’s behaviour, especially if it achieves any degree of deterrence against the “ethnic cleansing” of the up to half million Rohingya that remain in the country, or the prospects, however unlikely, of the voluntary repatriation of at least some proportion of the refugees in Kutupalong. But we owe it to the survivors in Kutupalong to at least try and do what is feasible.

Hannah Arendt famously said of the 1946 Nuremberg judgment that the crimes of the Nazis “explode the limits of the law;” that for genocide, no punishment is enough. Yet, despite the enormity of the crimes against the Rohingya, it would seem that some justice is better than no justice at all, and it remains to be seen what effect historical truth and the vindication of international law will have on the future of this tormented people.

As I read the decision of the court establishing its jurisdiction, anticipating an investigation and arrest warrants in the coming months, and two weeks later, the House of Commons’ motion, I wondered what this would all mean to those back in Kutupalong. Was it at least a ray of hope for future generations, a small redemption of the humanity of those who, robbed of everything they once had, can only hope to reclaim a semblance of their dignity? My mind wandered back to a striking image upon my arrival at the camp. There, amidst the misery and squalor, was a surreal sight, a tower of joy: children on a makeshift wooden carousel, circling in bliss, touching the sky, dreaming of other worlds.

Kutupalong refugee camp. Photo by Yousuf Tushar.

 

The comments in this article are only those of the author in his personal capacity and do not necessarily represent the view of either the ICC or the Bangladesh government.

Source: https://www.opencanada.org/features/chance-justice-rohingya/

 

Who’s Afraid of the International Criminal Court?

By | CPIJ in the Media, News | No Comments

By Eleanor Beevor | Al Bawaba News

US National Security Adviser John Bolton listens as President Donald Trump (not seen) speaks on April 13, 2018 at the White House in Washington, DC. (Photo by AFP)

 

23 September 2018 – The anniversary of September 11th might seem like an odd time for the United States to choose to slam institutions championing international cooperation and justice. But John Bolton did it. President Trump’s National Security Adviser told an audience at the Federalist Society in Washington DC:

“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us…

If the court comes after us, Israel or other US allies, we will not sit quietly. We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

Apparently, his speech was in reaction to the news that the International Criminal Court’s (ICC) Pre-Trial Chamber would soon decide whether or not to investigate suspected war crimes in Afghanistan.

Bolton’s anger toward the court is ideological. He has an anarchic view of the international arena, and sees international legal restrictions as infringing on American sovereignty. He is especially angered by the fact that the ICC is, in theory, able to investigate and charge American citizens with war crimes, despite the fact that America “unsigned” itself from being party to the court’s founding treaty, the Rome Statute.

The ICC was always going to present moral conundrums. It was set up with the aim of prosecuting the most extreme war crimes and crimes against humanity. It is supposed to level the playing field in places where civilians have fallen prey to a predatory state that would purposely deny them justice, or when the state cannot deliver justice on its own.

States can request the ICC to investigate crimes in their territory on their behalf. The United Nations Security Council can authorise an ICC investigation. Or, the ICC can begin an investigation itself, so long as the Chief Prosecutor and a team of judges in the Pre-Trial Chamber both authorise it. Before they do this, they need to have robust evidence that war crimes, genocide or crimes against humanity were likely committed. And they need evidence that justice has still not been properly served by the countries in question.

What’s interesting about Bolton’s speech is that he makes the ICC out to be an unstoppable, unconstrained power, and a serious threat to American servicemen, who might be arbitrarily prosecuted at any moment for doing their jobs. He said that the ICC paves the way for anti-American “political trials”.

Not all Bolton’s points about the ICC are overblown. He rails against American citizens being subject to a judiciary that neither they nor their government elected to be a part of – a legitimate line of moral argument. However, to imply that the ICC can subvert American interests or foreign policy is a huge overstatement of the court’s capabilities.

The ICC cannot prosecute countries or institutions, only individuals. True, in some cases it has gone after heads of state. But any case against America would in all likelihood centre on the actions of individual American soldiers. Whether or not the ICC should be able to try them is a matter of opinion, but their conviction would hardly be an existential threat to American power. Even if an investigation into war crimes in Afghanistan were to be opened, there is no guarantee it would sweep up American soldiers. Sergey Vasiliev, a Professor of International Criminal Law at the University of Leiden told Al Bawaba:

“For the first cases in Afghanistan, the Prosecutor is highly likely to concentrate on actors other than US forces, as a matter of strategy. I do not exclude that this Prosecutor (or her successor) might also eventually decide to prosecute members of US military, even though this will be more of a symbolic gesture because the execution of arrest warrants would pose serious problems lacking cooperation by the US and all countries which pledged not to surrender US citizens to the ICC pursuant to bilateral agreements. But, as matters stand, I do expect a handful of cases involving mid-level non-US figures being brought in the next few years – if and after the judges give the green light to investigate.”

Bolton’s suggestion that the ICC could pursue a “political trial” against the United States as and when it liked is also clearly false. One can make many criticisms of the ICC, but it cannot be said that they take decisions lightly. For context, the preliminary investigation into Afghanistan has gone on for over a decade. This is not an official investigation – it is the groundwork to determine whether or not there is enough evidence of relevant crimes, and a lack of alternative justice, to merit starting an investigation. And the nature of the ICC’s work means that they can expect political backlash every time they open a new case.

To put it another way, unless there was practically watertight evidence that at least some individuals had committed war crimes, it is highly unlikely that the ICC would risk investigating.

Hence came a November 2017 announcement from ICC Chief Prosecutor Fatou Bensouda that there was a “reasonable basis to believe war crimes and crimes against humanity were committed in Afghanistan and that all sides in the conflict would be examined including members of the US armed forces and Central Intelligence Agency”.

On this basis, she asked the team of Pre-Trial Chamber judges to authorise an investigation into war crimes in Afghanistan. Their answer is still pending. Sergey Vasiliev added:

“The Prosecutor’s request has been pending before the Chamber for 10 months now. This is a very long period for the Court, which has given rise to speculations about the reasons for this delay. Rumours have circulated for a while that the judicial decision was imminent, but it may well turn out to be the case this time.”

It is the anticipation of this announcement that seems to have prompted Bolton’s diatribe, along with the extraordinary threats to sanction the ICC and subject its staff to American criminal justice. The question is whether these threats will deter an investigation into Afghanistan. It is rather unlikely that Bolton’s threats will make much difference, for it would do the ICC far more harm than good to be seen to acquiesce to his threats.

Amanda Ghahremani, an international criminal lawyer and the Director of the Canadian Centre for International Justice told Al Bawaba:

“It is highly unlikely that the ICC would capitulate to such pressures by the U.S. administation, because the Court could be perceived as lacking independence and impartiality. In light of the circumstances, the Court will likely have to make a decision soon on the situation of Afghanistan, and if it chooses not to proceed with a formal investigation, it will have to provide very clear and legally sound reasons for not pursuing an investigation to avoid being perceived as succumbing to political pressure.”

The ICC’s dilemma is that it has to be seen to go after the powerful to be credible, and so succeed in deterring future war crimes. But the powerful are very determined to prevent the ICC doing just that. One of the most hypocritical moments of Bolton’s speech was when he repeated the criticism that the ICC’s focus has overwhelmingly been on Africa.

It is perfectly, and troublingly true that ten out of eleven of the ICC’s current investigations are in Africa, and this prompted plenty of skepticism that the court was indeed – as Bolton put it – “…just the latest European neocolonial enterprise to infringe upon their sovereign rights”. The court’s excessive focus on Africa is legitimate criticism, but Bolton – a pathological advocate of American military intervention abroad – is hardly a credible defender of other nations’ sovereignty. Least not when, in the same speech, he mockingly included the Democratic Republic of the Congo as one of the nations that could have a say over the ICC’s influence in American affairs.

CC Chief Prosecutor Fatou Bensouda (ICC Website)

But more to the point, Bolton has been one of the most active figures in preventing the ICC expanding its remit beyond Africa. The grim reason that the ICC’s open caseload is so Africa-focused is because that is where it encounters the least resistance from major global powers. But – justifiably – this has dented the court’s claim to impartiality. The only way it can win back that claim is by opening a case closer to the heart of the powers on the UN Security Council. Investigating war crimes in Afghanistan – including alleged abuse of Afghan detainees by American forces – would silence the court’s doubters.

And ironically, Bolton’s threats will probably enhance support for the ICC’s pursuit of the case. Mark Kersten, a Fellow at the University of Toronto and an expert on the ICC told Al Bawaba:

“The ironic thing about Bolton’s speech is that he has made the Court out to be a genuine threat to global powers when many people criticize precisely for not challenging such powers. As a result, Bolton may have inadvertently lent the ICC credibility at a time when the institution is facing a number of challenges.”

There is no telling whether the Trump administration would actually allow Bolton to follow through on his threats. On the one hand, President Trump has pulled out of a number of international agreements and rocked age-old alliances for the sake of partisan gesturing before. On the other hand, Trump may conclude that the uproar and the legal ramifications of following through with these threats is not worth indulging Bolton’s obsession for, particularly when there is no clear national security benefit. Sergey Vasiliev added:

“The combination of Trump and Bolton might actually a winning combination for the ICC. Such a bellicose speech by someone who is widely seen as the ICC’s old arch-enemy with a personal, lifetime mission to undermine the Court, enables the Court to refill its political capital which got depleted somewhat in the past years due to conflictual relations with African states. A wider political support and commitment to the Court can reinvigorate it for bolder action than what it would have afforded otherwise – even if it is not likely to yield results in terms of arrests and trials of any US citizens.”

The ICC wants to be feared by those who might commit the worst of war’s crimes. Up until now, it’s been seriously lacking that credibility. John Bolton just gave it to them.

Source: https://www.albawaba.com/news/whos-afraid-international-criminal-court-1189090

The ICC Prosecutor is opening a Preliminary Examination on the Rohingya situation

By | News, Press Releases | No Comments

19 September 2018 – On Monday, the Office of the Prosecutor of the International Criminal Court (ICC) announced it will open a preliminary examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh. This examination is the first step towards a proper investigation, which will take place if the examination shows reasonable basis to proceed accordingly.

The International Criminal Court in The Hague

The question of the Court’s jurisdiction on the Rohingya situation was the subject of a debate, as while Bangladesh is a State Party to the ICC, Myanmar is not. Given the cross-border nature of the crime of deportation, the Court was confronted to a new jurisdictional dilemma. For the very first time, the Prosecutor thus made use of Article 19(3) of the Rome Statute to seek a ruling on jurisdiction, and the Canadian Partnership for International Justice (CPIJ), along with other expert organizations, was invited to present Amici Curiae observations to the Court on that matter. On September 6, the ICC rendered a judgement in line with CPIJ’s observations: it ruled that the court has jurisdiction “over the crime the Court has jurisdiction over the crime against humanity of deportation allegedly committed against members of the Rohingya people” because “an element of this crime (the crossing of the border) took place on the territory of a State party to the Statute.

The Partnership warmly welcomes this decision from the ICC Prosecutor to move forward with a preliminary examination, which constitutes an important step forward the realization of a justice for the Rohingya. In addition, PCJI also considers that Canada can and should play an important role in the achievement of this justice, as explained in an op-ed published on Monday co-authored by Amanda Ghahremani, Mark Kersten and Fannie Lafontaine.

 

Al Bashir Case: CPIJ Co-Researcher Darryl Robinson presented observations before the ICC

By | News, Press Releases | No Comments

Darryl Robinson at the hearing

12 September 2018 – CPIJ Co-Researcher Darryl Robinson was yesterday before the International Criminal Court (ICC) to orally present Amici Curiae observations on controversial questions arising in the Al Bashir case. The Court’s decision will be of particular importance as the issue at stake, namely the question of immunities of heads of States, has been the subject of a heated debate over the last years.

President Omar Al Bashir of Sudan, accused of genocide and other crimes perpetrated in Darfur, is the object of an arrest warrant by the ICC. Following the failure of some States, including the Hashemite Kingdom of Jordan, to arrest him, the ICC rendered a decision in which it ruled that immunities of heads of States cannot be invoked to justify an absence of cooperation with the Court. Jordan appealed of this decision. It is in this context that on 18 June 2018, Darryl Robinson and a group of experts including members of the Canadian Partnership for International Justice were invited to submit Amici Curiae observations to the ICC concerning the appeal filed by Jordan. The Amici, namely Darryl RobinsonFannie LafontaineValerie OosterveldMargaret M. deGuzmanRobert Cryer and Carsten Stahn, argued that Al Bashir has no immunity before the ICC, in accordance with the interpretation adopted by the Pre-Trial Chamber.

On behalf of this expert group, Mr. Robinson, alongside with other Amici, was asked to orally present the Amici’s observations at a hearing before the ICC. The Partnership is proud to actively contribute to the making of a decision of the highest importance in the Court’s history with its Co-Researchers spearheading the development of complicated judicial advices.

More information about the Amici Curiae is available here.

The ICC has jurisdiction over the alleged deportation of the Rohingya people

By | News, Press Releases | No Comments

Today, the Pre-trial Chamber I of the International Criminal Court (“ICC”) ruled on the Prosecutor’s request regarding jurisdiction on the deportation of Royingha people from Myanmar to Bangladesh. This ruling follows most of CPIJ’s observations submitted as Amici curiae in June 2018.

In its decision, the Chamber first determined that “it has the power to entertain the Prosecutor’s request under article 119(1) of the ICC Rome Statute (“Statute”), as well as pursuant to the principle of la compétence de la compétence”. It then decided that the Statute “contains two separate crimes” (forcible transfer and deportation) and that “the Court may exercise its jurisdiction if either an element of a crime mentioned in article 5 of the Statute or part of such a crime is committed on the territory of a State that is party to the Statute”.

The Chamber therefore ruled that “the Court has jurisdiction over the crime against humanity of deportation allegedly committed against members of the Rohingya people” because “an element of this crime (the crossing of the border) took place on the territory of a State party to the Statute (Bangladesh)”. It also recognized that “the Court may also exercise its jurisdiction with regard to any other crime set out in article 5 of the Statute, such as the crimes against humanity of persecution and/or other inhumane acts”.

The dissenting Judge Perrin de Brichambault was of the view that “articles 19(3) and 119(1) of the Statute are inapplicable and that the principle of la compétence de la compétence cannot serve as an alternative basis for the Chamber to provide a ruling”. He “believed that the Court cannot rule on its jurisdiction” at this stage, “but that it remains open to the Prosecutor to present a request for authorisation of an investigation to a Pre-Trial Chamber.”

This decision followed most of the analysis proposed in the CPIJ’s Amici Curiae observations, submitted to the ICC on June 18, 2018. These observations, in support of the Prosecutor’s arguments, concerned three distinct issues. First, the scope of article 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it. Second, the scope of the ICC’s territorial jurisdiction under article 12(2). Third, the scope of the crime of deportation under article 7(1)(d) of the Statute.

Relevant documents:

CPIJ Co-Director Fannie Lafontaine Discusses her Role as an Independant Observer, the G7 and the Rohingya at Midi-Info

By | News | No Comments

Fannie Lafontaine

July 2018– On July 2 2018, the Canadian Partnership for International Justice (CPIJ) Co-Director Fannie Lafontaine was interviewed by journalist Manon Globensky on Radio-Canada, during the Midi-info radio program. Prof. Lafontaine talked about her role as an independent observer of the Montreal police department investigation into allegations of criminal acts perpetrated by police forces against native people. Later, she discussed two issues in which she was involved with CPIJ, namely the G7 Summit and the Rohingya situation in Myanmar and Bangladesh. In April 2018, Prof. Lafontaine together with CPIJ members met Ambassador Isabelle Hudon, Co-President of the Gender Equality Advisory Council, and submitted recommendations to advance gender equality and women’s empowerment in the context of the Canadian G7 Presidency in June 2018. Also, concerning the Rohingya situation, “the International Criminal Court [ICC] is not competent in regard to crimes perpetrated in Myanmar because Myanmar is not a State Party. However, Bangladesh is. Therefore, the legal question is: does the fact that Rohingyas are deported from a State non Party to the Court to a State which is Party makes the ICC competent?” Prof. Lafontaine explains. Last 18 June, many CPIJ members submitted an Amici Curiae to the ICC, in which they argued that the Court was competent with respect to this situation. the Amici can be accessed online here.

CPIJ members submit Amici Curiae to the ICC concerning the Rohingya situation

By | News, Press Releases | No Comments

June 2018 – On 18 June 2018, members of the Canadian Partnership for International Justice (CPIJ) submitted Amici Curiae observations to the International Criminal Court (ICC) on legal issues arising from the Prosecutor’s request for a ruling on jurisdiction concerning the Rohingya being deported from Myanmar to Bangladesh.

The Prosecutor’s request under Article 19(3) of the Rome Statute is the first of its kind. She asked the Court to determine if it has jurisdiction over the situation of the Rohingya, who are currently being deported from Myanmar (a non State party to the Rome Statute) to Bangladesh (a State party). The cross-border nature of this crime, involving a country who is not a party to the Court, raises important legal questions about to the Court’s ability to adjudicate the matter.

The Amici Curiae provided the Court with observations, in support of the Prosecutor’s arguments, on three distinct issues. First, the scope of Article 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it. Second, the scope of the ICC’s territorial jurisdiction under Article 12(2). Third, the scope of the crime of deportation under article 7(1)(d) of the Rome Statute. The full text of the observations can be found on the ICC website.

“We are proud to contribute to the development of complex judicial issues which are at the very heart of the Court’s work,” said Fannie Lafontaine, the Director of CPIJ. “In this case, it will be very important for the Court to provide clarity on its jurisdiction over cross-border crimes when a non-State party is involved.”

Members of CPIJ had submitted a request for leave on 25 May 2018 to provide these observations. The request was subsequently granted by the Court in a decision that recognized the extensive collective experience of CPIJ’s members in the field of international criminal law, human rights law, refugee law, migration and humanitarian law, as well as their previous interventions before domestic and international courts.

The Amici Curiae is signed by Fannie Lafontaine, Amanda Ghahremani, Jennifer BondRobert J. CurrieJulia GrignonMark KerstenFrançois LarocqueFrédéric MégretValerie OosterveldFrederick John PackerPascal ParadisDarryl RobinsonPenelope SimonsÉrick Sullivan, Alain-Guy Tachou Sipowo, Mirja Trilsch and Jo-Anne Wemmers.

 

For media requests, please contact:

Fannie Lafontaine
Fannie.Lafontaine@fd.ulaval.ca
1-418-656-2131 #3859
(English, French, Spanish)

 

Amanda Ghahremani
aghahremani@ccij.ca
1-514-915-0920
(English, French, Spanish)