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Home Articles posted by Patryk I. Labuda

The African Union’s Collective Withdrawal from the ICC: Does Bad Law make for Good Politics?

Published on February 15, 2017        Author: 

A number of news outlets reported last week that the African Union (AU) had adopted a strategy for collective withdrawal from the International Criminal Court (ICC) (see here, here and here). This follows withdrawals by three African states late last year, which in turn generated much debate at last November’s Assembly of States Parties and yet more calls for a re-assessment of the relationship between Africa and the Court. Although the prospect of collective withdrawal has been in the works for some time, what emerged from last week’s AU summit appears to be a politically benign and legally confused form of collective resistance. Despite the alarmist headlines, the withdrawal strategy may symbolize the high-water mark of AU opposition to the ICC.

Africa v. the ICC

The conflict between the ICC and the AU has been in the news for many years. It is hard to keep track of all the denunciations, threats and accusations that various African state representatives have leveled at the Hague-based court and yet, even by these standards, the year 2016 seemed to mark a nadir in the ICC-Africa relationship. In January, the AU requested the open-ended committee of Ministers of Foreign Affairs to develop ‘a comprehensive strategy’ for ‘collective withdrawal’, which would serve as guidance to African states wishing to re-assess their relationship to the ICC. After an inconclusive mid-year summit in Kigali in July 2016, where a few African states expressed doubts about withdrawal, the international justice community experienced something of a rude awakening when three states withdrew from the Rome Statute in quick succession. Burundi went first, followed by South Africa and the Gambia. While the precise trigger for their sudden departures in October 2016 remains a mystery, the taboo of treaty withdrawal had been shattered and a re-assessment of the ICC-Africa relationship acquired renewed urgency. Read the rest of this entry…

 
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Africa and the ICC: Shattered Taboos, and the Status Quo

Published on November 23, 2016        Author: 

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…

 
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UN Peace Operations: Tracking the Shift from Peacekeeping to Peace Enforcement and State-Building

Published on September 2, 2015        Author: 

On June 16, the UN secretary General’s High-Level Independent Panel released its eagerly awaited review of UN-mandated peacekeeping: ‘Uniting our Strengths for Peace’. A comprehensive assessment of the UN’s evolving role in conflict management and a detailed set of reforms to its peacekeeping architecture, the report has already generated thoughtful analysis, with many observers highlighting the Panel’s principal conclusion that “lasting peace is achieved not through military and technical engagements, but through political solutions” (Executive Summary). This post examines three significant trends in peacekeeping mandates – the use of force, state-building and criminal jurisdiction – which will likely remain contested aspects of UN-mandated conflict resolution going forward. Against the backdrop of the report’s main findings, it argues that the UN’s large-scale operations increasingly blur the lines between political mediation and classical peace-keeping on the one hand, and peace-building, peace enforcement and state-building on the other.

As is well known, peacekeeping missions have operated in increasingly hostile environments since the end of the Cold War. Beginning with the Balkans, Rwanda and Somalia in the 1990s, peacekeepers have often been deployed to areas with little or no peace to keep, while taking on a continuously expanding set of peace-building tasks. This trend has only intensified in the last few years, starting with the UN’s longstanding mission in the Democratic Republic of Congo (MONUSCO), its revamped mission in South Sudan (UNMISS), as well as newly established missions in Mali (MINUSMA) and in the Central African Republic (MINUSCA).

Yet, despite its expanding role in conflict-management, a striking feature of recent UN operations has been the Security Council’s practice of enshrining the classic principles of peacekeeping into mission mandates. Starting with the 2013 renewal of MONUSCO’s mandate, the Security Council has consistently re-affirmed the ‘trinity of virtues’ – impartiality, host state consent and non-use of force beyond self-defence and defence of the mission mandate – in the preambles of its largest peacekeeping operations (DRC: 2013, 2014, 2015; Mali: 2013, 2014, 2015; CAR: 2014, 2015; South Sudan: 2014, 2015). Although their status under international law remains contested, the three classic principles are grounded in an (almost) by-gone era of conflict-management, where UN peacekeepers monitored mutually agreed cease-fires.

Read the rest of this entry…

 

What Lies Beneath the ‘G’ Word? Genocide-Labelling and Fact-Finding at the UN

Published on May 28, 2015        Author: 

In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.

It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”

What about genocide?

The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.

This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):

…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.

There are two problems with this conclusion. Read the rest of this entry…